No. 21474: - Patricia Ann S. v. James Daniel S.
Workman, Chief Justice, dissenting:
The majority opinion marks a sharp departure from the primary
caretaker rule which has been a viable and working concept in West
Virginia for more than a decade. More disturbing, however, is the
determination that it is in the best interests of children to place
them in the custody of a parent who has abused both the wife and
the children. In doing so, the majority implicitly places its
stamp of approval on physical and emotional spousal abuse.
Deaths by domestic violence are increasing dramatically every
year in West Virginia, and there is much discussion about the
inefficacy of the judicial system in dealing with family violence.
But until judicial officers on every level come to a better
understanding of the phenomenon of family violence in its finer
gradations, the response of the court system will continue to fall
short. The majority demonstrates a tragic lack of understanding of
the true nature of the dynamics that underlie family violence.
The primary caretaker rule as set forth in Garska v. McCoy,
167 W. Va. 59, 278 S.E.2d 357 (1981), has been an important part of
domestic relations law in child custody disputes for more than
twelve years. In actuality, the concept dates back further to our
case of J.B. v. A.B., 161 W. Va. 332, 242 S.E.2d 248 (1978),
wherein this Court "established a strong maternal presumption with
regard to children of tender years." Garska, 167 W. Va. at 60-61,
278 S.E.2d at 358. This Court abolished the gender-based
presumption in Garska, imposing in its place the gender-neutral
primary caretaker rule. See id. at 70, 278 S.E.2d at 363. We
explained the development of the primary caretaker rule in Garska
In setting the child custody law in
domestic relations cases we are concerned with
three practical considerations. First, we are
concerned to prevent the issue of custody from
being used in an abusive way as a coercive
weapon to affect the level of support payments
and the outcome of other issues in the
underlying divorce proceeding. Where a
custody fight emanates from this reprehensible
motive the children inevitably become pawns to
be sacrificed in what ultimately becomes a
very cynical game. Second, in the average
divorce proceeding intelligent determination
of relative degrees of fitness requires a
precision of measurement which is not possible
given the tools available to judges. . . .
Third, there is an urgent need in contemporary
divorce law for a legal structure upon which a
divorcing couple may rely in reaching a
167 W. Va. at 66-67, 278 S.E.2d at 361-62. After stating the rationale for implementing the primary caretaker rule, this Court ruled that: "in any custody dispute involving children of tender years it is incumbent upon the circuit court to determine as a threshold question which parent was the primary caretaker parent before the domestic strife giving rise to the proceeding began." Id. at 68-69, 278 S.E.2d at 363.
In the instant case, it was clearly an abuse of discretion for the family law master and the circuit court to deny primary caretaker status to the mother. It is unfathomable that a woman who gives up her career (in this case, that of being a kindergarten teacher) to stay home to raise three children does not qualify as the primary caretaker, when as a full-time stay-at-home mother she breast-fed all three children; was so concerned about unnecessary additives and excess sugar that she processed her own baby food; was responsible for the majority of meal planning and preparation; was primarily responsible for laundering the family's clothing and housecleaning; was a Girl Scout troop leader; was a regular volunteer at her children's school and an active member of the parent-teacher organization; was responsible for scheduling and taking the children to their medical appointments; and was primarily responsible for managing the children's social activities.See footnote 1 For some unarticulated reason, both the family law master and the circuit court appear to have been bowled over by the fact that the father helped in the evenings and weekends. Not unlike many modern fathers, the Appellee did participate in some of the household and childrearing responsibilities. The mother and father jointly oversaw the bedtime routine of the children. Upon the birth of the third child, the father, by agreement of the parties, awoke the two oldest children and prepared their breakfasts, because the baby (Jennifer) was up a lot at night. As Jennifer grew older and began sleeping all night, the parties continued this routine. Although the mother stayed up late, during those evening hours she cleaned up from dinner, prepared lunches for the children to take to school the next day, and did other household duties. The Appellee planned recreational activities such as camping and hiking trips, primarily for the boys. Given the father's admitted ten to twelve-hour work days combined with frequent business trips which took him away from home, it is difficult to conceive how he could ever qualify as having equal caretaking responsibility. The family law master and circuit court's conclusions that neither individual qualified as the primary caretaker has the effect of somehow elevating the father's necessarily limited hours with the children, given his lengthy work days, to accord him the same caretaker status as the full-time stay-at-home mother. The majority in essence places a higher value on a father's time and contribution. See footnote 2
By upholding the circuit court's ruling, the majority begins
an erosion of the primary caretaker rule,See footnote 3 or at least sends a
signal to domestic relations practitioners that it will be
situationally ignored when expedient. While this Court did
acknowledge in Garska that there will be cases where neither
parent has clearly taken primary responsibility for nurturing and
rearing the children, this clearly is not such a case. See Syl.
pt. 5, Garska, 167 W. Va. at 59, 278 S.E.2d at 358. What has
happened in this case is precisely what this Court was concerned
with in David v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 (1989),
when we ruled in syllabus point four, in part, that: "[i]n West
Virginia we intend that generally the question of which parent, if
either, is the primary caretaker of minor children in a divorce
proceeding is proven with lay testimony from the parties themselves
and from teachers, relatives and neighbors." Id. at 68, 385 S.E.2d
at 913. Whereas the majority "do[es] not believe the family law
master or the circuit court judge deviated from the above-mentioned
guideline[,]" the circuit court in a "Summary Of Ruling" on the
issue of Appellant's petition for review of the family law master's
recommended decision explicitly acknowledges that "[t]he surface
appearance is that this is a matter of competing experts." Sadly,
that is exactly what this case boils down to--one expertSee footnote 4 versus
another, rather than a decision based on lay testimony. We
explained the dangers of relying on expert testimony in custody
cases in David M.,
Expert witnesses are, after all, very
much like lawyers: They are paid to take a
set of facts from which different inferences
may be drawn and to characterize those facts
so that a particular conclusion follows.
There are indeed cases in which a mother or
father may appear competent on the surface,
only to be exposed after perfunctory inquiry
as a child abuser.
. . . The side with the stronger case can afford to hire only competent experts with profound integrity; the side with the weaker case, on the other hand, wants impressively glib experts who are utterly devoid of principles. When both parents are good parents, the battle of the experts can result only in gibberish.
182 W. Va. at 63-64, 385 S.E.2d at 919.
In this case, the testimony of three expert witnesses was
admitted. Only one of the three, Dr. Charles Yeargan, was deemed
by the court to be an independent expert. The Appellee sought out
Dr. Mari Walker, who has since been disciplined by the West
Virginia Psychological Association for violation of the ethical
principles of the American Psychological Association for her
testimony in this case. Without ever meeting with the Appellant
(and only briefly meeting with Appellee and the children), Dr.
Walker gave an opinion that custody of all three children should be
awarded to their father. Later, the Appellee sought out another
expert, Dr. Carl McGraw, who concurred with the findings of Dr.
Walker that custody should be placed with the father. Of primary
interest to Dr. McGraw was his concern that the children not be
split up among the parents. While this is certainly a laudable
concern, it appears that this focus may have totally overshadowed
Dr. McGraw's "objectivity" with regard to his ultimate
The upshot of this case is that first, the family law master,
and ultimately, the circuit court, bypassed the "threshold
question" of primary caretaker and were sidetracked by testimony
concerning the relative fitness of the parties. Garska, 167 W. Va.
at 69, 278 S.E.2d at 363. Only after the primary caretaker issue
has been resolved does the question of fitness become relevant.
See syl. pt. 4, David M., 182 W. Va. at 58, 385 S.E.2d at 913. In
this case, both the trier of fact and the circuit judge "avoided"
the primary caretaker issue by prematurely infusing the issue with
questions of relative fitness and relying on "experts."
The family law master and circuit court also erred by
permitting testimony on the issue of the relative fitness of the
parties. Fitness, once it has properly been raised, does not
involve a comparison of the parties, but instead requires a showing
that the individual designated as the primary caretaker is unfit.
As we stated in syllabus point four of David M., in part,
Once the primary caretaker has been
identified, the only question is whether that
parent is a 'fit parent.' In this regard, the
court is not concerned with assessing relative
degrees of fitness between the two parents
such as might require expert witnesses, but
only with whether the primary caretaker
achieves a passing grade on an objective test.
Id. at 58, 385 S.E.2d at 913. Because there was no showing of unfitness on the part of the mother, who clearly qualified as the primary caretaker, the majority opinion does great disservice to the primary caretaker rule in addition to exacerbating the pain of this family.
The lower tribunals then embarked on a best interests
analysis, and it is in this arena that the family law master and
circuit court demonstrated the most overwhelming lack of insight
into the dynamics of this family and indeed the dynamics of
This father not only takes a belt to the three childrenSee footnote 5
regularly, but he also has taken a belt to his wife. Phenomenally,
the family law master did not permit the wife to testify in detail
to the physical abuse she endured throughout the marriage, as he
apparently concluded it had nothing to do with the children.
In fact, spousal abuse has a tremendous impact on children.
Children learn several lessons in
witnessing the abuse of one of their parents.
First, they learn that such behavior appears
to be approved by their most important role
models and that the violence toward a loved
one is acceptable. Children also fail to
grasp the full range of negative consequences
for the violent behavior and observe, instead,
the short term reinforcements, namely
compliance by the victim. Thus, they learn
the use of coercive power and violence as a
way to influence loved ones without being
exposed to other more constructive
In addition to the effect of the
destructive modeling, children who grow up in
violent homes experience damaging
psychological effects. There is substantial
documentation that the spouse abuser's
violence causes a variety of psychological
problems for children. Children raised in a
home in which spouse abuse occurs experience
the same fear as do battered children. . . .
. . . .
. . . .
Spouse abuse results not only in direct
physical and psychological injuries to the
children, but, of greatest long-term
importance, it breeds a culture of violence in
future generations. Up to 80 percent of men
who abuse their wives witnessed or experienced
abuse in their family of origin. Abused
children are at great risk of becoming abusive
Thus, the ultimate question in assessing
the relative fitness for custody of the abuser
and victim is which parent is most likely to
provide the children with a healthy, caring
and nonviolent home.
L. Crites & D. Coker, What Therapists See That Judges May Miss, The Judges' Journal, 9, 11-12, (Spring 1988) (footnotes omitted) (emphasis in original).
There is yet another aspect of spousal abuse that judges and
many others find difficult to understand. These relationships are
characterized not only by physical abuse, but also by repeated
humiliation and other psychological abuse that "'reaches the level
of a campaign to reduce the partner's sense of self-worth and to
maintain control[;]'" and "a pattern on the part of the abusive
partner to control the victim's daily actions. . . ." Crites &
Coker, supra, at 9.See footnote 6
It is clear from Mr. S.'s testimony that he ran this family
with an iron hand, a significant trait in abusive relationships
being the total power and control of one party. The evidence
reflects that for some period of time Mrs. S. was not allowed to
have a cent, not even grocery money. She was permitted to write a
grocery list, and if her husband was ever-so-gracious, he would
include her requests. Once she attempted to take $20 from his
wallet and wound up in the emergency room after he wrestled with
her over it. Mr. S. testified that he actually found the whole
episode rather humorous, likening his wife clinging desperately to
the $20 bill by hiding it in her mouth as resembling a lizard with
lettuce sticking out of its mouth.
One of the complaints made about this mother is that she
lacked the ability to manage the boys, ages twelve and ten at the
time of the hearings, and surely the record is clear that it was
difficult for her to manage these boys, especially Jason, the older
of the two. In her petition for review, she pointed out that for
several years, her husband had been "mentally, emotionally, and
physically cruel" to her.See footnote 7 Studies demonstrate that after ages
five or six, children show strong indications of identifying with
the aggressor and losing respect for the mother. See Crites &
Coker, supra, at 11.
In her personal petition for review to the circuit court, she stated
My two boys in particular identify with
their father. Unfortunately, their father has
downgraded me for years in front of them and
continues to do so. I would become angry in
response. The children have seen their father
hit me with a belt. My oldest son Jason has
bit me and kicked me so hard to have left
bruises on me. Jason repeats to me in
arguments what his father tells him happens in
court. Jason has attacked my mother and
caused my father to get a lump on his head by
slamming an attic door on his grandfather.
Jason is the thirteen year old who has the
added problems of puberty on top of this
divorce. My second son Justin is ten years
old and is having difficulty adjusting. Since
he has been with his father, his grades have
gone from "A's" and "B's" to some "C's",
"D's", and one "F". My six year old daughter,
Jennifer is a 4.0 student in first grade. She
is also in the gifted program. She has done
fine under my care alone this past year.
The evidence reflects that Mr. S. modelled for these children
the behavior of demeaning, discrediting, and otherwise
disempowering the mother. For example, the father devised a point
system to reward good behavior and punish bad behavior. When the
mother attempted to participate in the system as a method of
encouraging good behavior and managing the children, the children
were told that "mommy's points don't count" and "mommy is crazy."
The mother testified that the children's response was that "you're
not the boss, daddy's the boss. . . ." Furthermore, the father
would tally the points and take the children to the toy store for
the payoff, which the mother had no financial resources to do.
From Dr. Yeargan's report:
Mr. S. reported that he can't see himself
trying to tell the boys to be kinder and
gentler to their mother for fear that he'll
lose credibility with them. He said, "I'm not
too interested in finding a way to help the
enemy camp look good or better. . . . until
all three kids are together and this is
resolved. My primary objective is to have the
Mrs. S. testified that she attended counselling, both in an
effort to save the marriage and in an effort to get help in working
with the children, and that she read a number of books on parenting
and divorce. She admitted that she used bad language (as did the
whole family) and that the husband's constant demeaning of her in
front of the children made her angry. She acknowledged she had
made mistakes and was working to correct them.
Mr. S., however, presents himself as the perfect father as
demonstrated by his testimony that his rapport with the children
was "exemplary," and "that it would be very difficult to improve
upon." He described himself as "nurturing," "kind," "loving,"
"caring," "understanding," and "patient."
But a look at Dr. Yeargan's report presents a very different
picture of this man:
some of the same parental behaviors that
previously contributed to the children feeling
torn between parents is continuing; those
behaviors are (a) increasing the alienation
between the children and their mother and (b)
exacerbating the loneliness which the boys
feel for their sister and vice versa. In this
examiner's opinion the behaviors of Mr. [S.]
. . . . are of primary importance in the creation of more alienation and loneliness in the children.
The same report details the control and manipulation of the
children by Mr. S.:
All three children report pain over being
split but the two boys report it in a way that
reflects their father's opinion. Jason, for
example, reports the opinion that the children
should not be separated and says that they
shouldn't " . . . because we'll grow up to be
total strangers." Justin reports that being
". . . sad over Jennifer" is his biggest
concern. He then goes on to say, "That's
really the only problem. Dad says to just
tough it out and he's working on it. It's
wrong to split up the children cause they'd
not grow up together and they'd be total
strangers." Two weeks after I talked with the
boys Mr. [S] . . . reported to me virtually
verbatim the same rationale for why the
children should not be split. I infer that
(a) the children would naturally express their
discomfort in existential terms of the things
that they are not now enjoying, (b) their
expression of concern for future estrangement
indicates how their father is contributing to,
not allaying, their fears and (c) the boys,
and possibly Jennifer, have been led by their
father to hope that he will eventually get the
children together under one roof.
. . . .
All three children report knowledge of
complaints which their father has with their
mother which should not be told to them. The
obvious effect that this knowledge has is to
(a) divide their allegiance deeper and (b)
alienate them further from their mother.
Jennifeer [sic], for example, mentions that
her mother does not want to pay the phone
bill. Jason reports of his mother, "She'll
run up his (father's) credit cards, get new
glasses, run up his medical bills, buy
vitamins and stuff like that that she doesn't
need." When asked how he knew about all of
that he replied, "Dad tells us cause there's
really nothing he has to hide from us."
Justin reports that they "sometimes" still see
parents fussing during the times when the
parents are picking up or dropping off the
children to one another. He goes on to report
that his father tells them about various
arguments which occur between him and their
mother (arguments which occur on the phone, at
the office, etc.).
Mr. [S.]. . . . arranged for the boys to
see a counselor (Michael Sheridan) after the
separation and reported to Mrs. [S.]. . . .
that it was because of their relationship to
their mother. According to Mrs. [S.]. . . she
was excluded by Mr. [S.]. . . . from any
information or advice by that counselor. Mr.
[S.]. . . . reported to me that Mr. Sheridan
had helped the boys to accept that some of the
sanctions being imposed by their mother during
visitations were a direct result of their
behavior (trashing their mother's Christmas
decorations, etc.) However, Mr. [S.] . . .
did not use that opinion of Mr. Sheridan to
support the boys' mother in dealing with the
destructive things the boys were doing; he
declined to tell her anything about what
transpired in Mr. Sheridan's office.
Furthermore, in his discussion with me he
missed the point that the boys should assume
responsibility (i.e. feel some measure of
reproach or make amends for misbehaving.)
Instead, he assumed that the important lesson
that the boys learned from Mr. Sheridan was
that ". . . you can esteem yourselves for
coping well with difficulty."
Mr. S. acknowledges that, (although less frequently on five-year-old Jennifer), yes, he does use a belt on all three children,
and according to unrefuted testimony he also has grabbed Jason by
the shoulders and banged Jason's head against a tree.
His own description of how he handles physical discipline shows best the kind of fear he uses to exert control over this family:
Normally, the punishment is a smack on
the behind with a belt. And I tell them what
will happen if they transgress or exceed
certain limitations; and, when they, on
occasion - not recently, but on occasion -
test an adult's authority, which all children
are want (sic)to do, I have no choice but to
follow through consistently with what I told
them would happen.
And when I do that, we discuss it, and I
make sure they understand the nature of the
discipline. We even negotiate sometimes about
how many smacks they want. I will frequently
ask them how many smacks that they think that
the offense is worth, and frequently they will
say four, and I had only planned, maybe, to
give them one, maybe two at most, and we will
discuss the issue.
Frequently, I will, at the last minute,
decide that I can't even spank them anyway,
after having gotten them ready to be spanked,
decide that I -- it's difficult to do, and
will let the belt fall aside and smack the bed
or the floor and say to them, I'm going to let
you go this time, but don't do that again.
On the occasions when I do smack their
behinds with a belt, I will always make sure,
after I have done it in a controlled and
unemotional way - never in anger - that they
understand what the punishment was for and why
I had to do it, and I will always check their
little bottoms to make sure that there is not
sufficient force to seriously damage them, say
bruising or whatever.
With all of these circumstances, one may wonder why the
children were taken from the mother. A close reading of the record
reveals that the most damaging things that can be said about Mrs.
S. are that 1) she uses bad language; 2) she is very angry;
3) the children told the psychologists that they wanted to live
with their father; and 4) one of the psychologists concluded that
they "feel safer with their father."
What judges and indeed many therapists usually fail to
understand is the behavior manifestations battered women frequently
demonstrate. For example, a battered woman
may appear in court as unstable, nervous, inarticulate, or angry--a result of her ordeal. The batterer, on the other hand, may appear in command of himself, calm, well spoken and so forth--and may appear in court as the more fit parent. This may operate to the disadvantage of the victim not only in the eyes of the judge, but also with counselors meeting with one or both of the parents and with psychologists hired to do a psychological evaluation.
Crites & Coker, supra, at 40.
It has further been recognized that:
many women do not present a tearful passive
personality to the psychologist. . . . Anger
and a new assertiveness are positive
characteristics of the recovering abuse
victim. She is angry at being abused, and
angry at having been blamed by him and by
unaware therapists for having caused it. And
she is especially angry at his attempts to
take the children away.
Crites & Coker, supra, at 41.
Psychologists unfamiliar with all the circumstances and with
the unique dynamics of family abuse may make these mistakes:
1. They fail to see that the victim's anger
is appropriate and normal. . . . 2. They
look to the victim's behavior and personality
problems to explain the abuse. . . . Such
blaming of the victim tends to reinforce the
abuser's position that . . . the victim is
crazy. 3. They seem to identify with the
seemingly sociable, 'appropriate' male as a
man who has been pushed beyond his limits by
an 'angry woman." 4. They fail to see
beneath the sincere, positive image of the
abuser, but look instead for the 'typical'
abuser personality. . . . 7. Finally, they
criticize [the woman] for focusing her anger
on her husband. . . .
Crites & Coker, supra, at 42.
It does not appear that any of the psychologists had any
information on the domestic abuse and none dealt with the physical
abuse; only Dr. Yeargan seems to have had any information on the
psychological abuse and domination. If family law masters and
judges are to make decisions on the lives of troubled families,
they must become sufficiently knowledgeable about physical and
emotional domination to enable them to recognize that these factors
are just as invidious, and probably more pervasive, than physical
abuse alone. And we must begin to see anger on the part of the
victim as healthy.
The children of David Koresh felt safe with him. While this
dissent does not seek to compare Mr. S. with David Koresh, it
implores judges to see that family relationships wherein one person
has all the power (frequently not only through the purse-strings,
but also as a result of both learned and socially-imposed
helplessness) are also abusive.
These children learned from their father that their mother did not have even sufficient authority to purchase a package of Oreo cookies for them, that it was okay to demean, disobey, and verbally abuse her, and that physical violence awaited those who did not do as he said. The mother reacted with anger, and the father by word, deed, and dollar delivered the message that mommy's crazy and mommy's contemptible.
Jason was twelve years old at the time of the hearings before
the family law master and thirteen by the time of the divorce.
Thus, he was only thirteen at the time he last expressed a
preference on the record in this case (not fourteen, as the
majority indicates). We have said that a child has a right to
nominate his own guardian at age fourteen, and that his preference
can be accorded deference even before fourteen, depending on his
age and maturity. See David M., 182 W. Va. at 64, 385 S.E.2d at
920. Consequently, even though the mother was the primary
caretaker, the circuit court cannot be said to have abused its
discretion in giving weight to Jason's preference and placing him
in the custody of his father. In all likelihood, and by all the
evidence, this young man has already demonstrated a propensity to
act out anger with violence, and we can only hope we do not see him
in court in another generation.
Justin was ten years old and Jennifer six years old at the
time their preferences were expressed. Although it could be argued
that a ten-year-old's preference could be given some weight,
Jennifer at six was too young to express a meaningful preference.
Furthermore, a reading of the record makes it quite clear that
Jennifer was spirited off to see psychologists by her father and
instructed rather specifically on the way by her father and older
brother regarding what to say. She related to her mother after-the-fact that she told lies and even Dr. Yeargan discerned that she
had been coached.
Justin and Jennifer should have been placed in the custody of
their mother. The majority wreaks further havoc on this family
(especially Jennifer) by a remand for further evidence. It appears
that anxiety and manipulation will again be the order of the day
for this little girl, and life's most basic uncertainties will
resume as the family is figuratively killed with due process.
This case as written will have little impact on anyone's lives
other than the parties themselves. But what it should have is a
very clear, bright line syllabus point that domestic violence is a
very important consideration in determining child custody. So long
as this Court sends a different signal to family law masters,
magistrates and circuit judges, the response of the judicial system
to family violence will continue to be inadequate.
The judicial system in this country is the last bastion of
almost total male domination. Judges bring to their work all their
social, cultural, personal values and experiences.
In 1971, two white male law professors studied the response of
American judges to sex discrimination cases up to that time and
Our conclusion, independently reached,
but completely shared, is that by and large
the performance of American judges in the area
of sex discrimination can be succinctly
described as ranging from poor to abominable.
With some notable exceptions, they have failed
to bring to sex discrimination cases those
judicial virtues of detachment, reflection and
critical analysis which have served them so
well with respect to other sensitive social
issues. . . . Judges have largely freed
themselves from patterns of thought that can
be stigmatized as "racist" . . . [but]
"sexism"--the making of unjustified (or at
least unsupported) assumptions about
individual capabilities, interests, goals and
social roles solely on the basis of sex
differences--is as easily discernible in
contemporary judicial opinions as racism ever
L. Crites, A Judicial Guide to Understanding Wife Abuse, The Judges' Journal, 5, 7 (Summer 1985).
In 1977, Beverly Cook of the University of Wisconsin in
Milwaukee analyzed the United States Supreme Court cases affecting
woman from 1971 to 1977, and concluded that members of the Court
were more influenced by their personal values than by legal
principles. See Crites, supra, at 7.
Obviously, gender bias continues to exist in the court system
in many contexts, pointing up not only the need for judicial
education on gender-related issues, but also for larger numbers of
women in the judiciary.
Since the majority has directed that this case be remanded on
the best interests of Jennifer, the family law master and circuit
court should permit evidence on family violence and should appoint
an expert who knows something about this issue, for both evaluation
and counselling. Carlotta Smith, the director of the Women's
Resource Center in Beckley, West Virginia, who is a master's level
counsellor and works daily with families whose lives have been
disrupted by abusive relationships or someone with similar
expertise should be considered.
Lastly, this Supreme Court in its administrative capacity
should not only continue to develop training for judges, family law
masters and magistrates on domestic violence, but should also get
in touch with the fact that the members of this Court need such
training as well.
Footnote: 1This woman fits the profile of what at least one member of the Court (Justice Neely) has said mothers should be. Furthermore, a full exploration of the evidence reflects that one of the major complaints about this woman is that she uses bad language, a quality that Justice Neely surely can't hold against her.
Footnote: 2The majority cites Dempsey v. Dempsey, 172 W. Va. 419, 306 S.E.2d 230 (1983), for the proposition that the length of time a parent is "alone with the child" is not dispositive. Dempsey did not involve the length of time a parent was alone with the child. It was a case wherein the mother was the sole caretaker from 1978-1980 and the appellee was the sole caretaker from 1980 until the time of the divorce. This Court held that even though the appellant had assumed the caretaking duties for a longer time, that "length of time alone (in which each party has sole responsibility) is not determinative of whether the presumption should attach." Id. at 420, 306 S.E.2d at 231. It spoke not at all in terms of "length of time alone with the child," as the majority implies.
Footnote: 3When the Appellee presented the first expert witness on the fitness/best interests issue, the family law master, in response to Appellant's objection, even acknowledged that it was a deviation from the primary caretaker rule, but in essence said the rule was being eroded "and we should feel free to deviate from that if there is some real good reason for that."
Footnote: 4The "expertise" of the Appellee's experts is also questionable, which will be explored later in this opinion.
Footnote: 5According to the mother's testimony, the father also regularly disciplined Jason (the oldest boy) by grabbing his shoulders and pushing him up against a wall or tree, on one occasion bruising his head. The father admitted overreacting and perhaps using excessive force, but denied it happened on a regular basis. The mother admitted that she, at one time, also used corporal punishment on the children, but had taken parenting classes in 1989 and learned that there were better ways to handle discipline. She testified that she used time-outs and withdrawal of privileges following her completion of the parenting classes.
Footnote: 6An abused woman may be defined as one who is repeatedly subjected to any forceful physical or psychological behavior in order to coerce her to do something without any concern for her rights. See I. Bessenyey, Visitation in Domestic Violence Context: Problems and Recommendations, 14 Vt. L. Rev. 57 (1989),
Footnote: 7As noted earlier, the family law master interrupted her testimony on physical abuse to assure the parties that he always entered a "boiler plate" restraining order on both parties and essentially indicated he wished to hear no more on this issue.