Filed: July 16, 1993
James Wilson Douglas
Sutton, West Virginia
Attorney for the Appellant
George M. Cooper
Sutton, West Virginia
Attorney for the Appellee
This Opinion was delivered PER CURIAM.
"In a divorce proceeding where custody of a child of
tender years is sought by both the mother and father, the court
must determine in the first instance whether the primary caretaker
is a fit parent, and where the primary caretaker achieves the
minimum, objective standard of behavior which qualifies him or her
as a fit parent, the trial court must award the child to the
primary caretaker." Syllabus point 6, Garska v. McCoy, 167 W.Va.
59, 278 S.E.2d 357 (1981).
This is an appeal by Cheryl Lynn May Reynolds from an
order of the Circuit Court of Braxton County awarding custody of
her infant child to the child's father, the appellant's former
husband, Larry Delbert Reynolds. On appeal, the appellant claims
that the trial court erred in awarding custody to the child's
father. After reviewing the record and the questions presented,
this Court agrees. Accordingly, the judgment of the Circuit Court
of Braxton County is reversed.
The evidence in this case shows that the appellant and
Larry Delbert Reynolds were married in Greenbrier County, West
Virginia, on November 16, 1980. They, however, moved to Braxton
County shortly thereafter. On March 1, 1984, a son was born to the
parties. Initially after the birth, the appellant, who had
previously been employed full time, returned to employment on a
part-time basis so that she could care for the child. In June,
1986, she returned to work on a full-time basis.
Over the next several years, the parties lived together
with the child and enjoyed a relatively normal home life. In spite
of this, on October 24, 1991, Larry Delbert Reynolds initiated a
divorce proceeding against the appellant. In his complaint, he
sought, among other things, custody of the couple's child, who was
then seven and one-half years old. In her answer to Larry Delbert
Reynolds' complaint, the appellant also prayed for custody of the
A pendente lite temporary hearing was held on October 28,
1991, and at that hearing custody of the child was temporarily
awarded to the appellant, pending final disposition of the
questions in the case by the family law master.
Hearings were subsequently conducted on the question of
which party should have custody of the child, and during those
hearings Larry Delbert Reynolds moved that the family law master
conduct an in camera interview with the child, who was then eight
years old, to determine his custodial preference. The appellant
opposed the interview, and the family law master subsequently
refused to conduct the interview.
After taking evidence on the question of custody, the
family law master, on June 1, 1992, submitted proposed findings of
fact and conclusions of law. In those findings of fact and
conclusions of law, the family law master found that the parties
had stipulated, and that the evidence showed, that both parties
were fit and proper persons to have custody of their infant child.
The master also discussed at some length the evidence on who had
been the primary caretaker of the child. The master noted that for
six weeks after the birth of the child, the appellant had stayed at
home to care for him while Larry Delbert Reynolds worked. Over the
next two years, the appellant worked part time, and Larry Delbert
Reynolds worked full time. From June, 1986, both parties worked
Relating to who was the primary caretaker of the child
over these years, the master specifically found that:
[The babysitter's] testimony revealed that the Defendant [appellant] made the majority of arrangements with the babysitter, including delivery, pick up, calling the sitter if either party would be late in retrieving . . . [the child], paying the sitter for her services, and providing medications, food, diapers, and toys for . . . [the child] for use while at the sitters.
As to extracurricular school and religious
activities, the Defendant and her witnesses
stated that the Defendant participated with
. . . [the child] in the same much more than
did the Plaintiff [Larry Delbert Reynolds].
These activities included school holiday
parties and parades for the school children,
school birthday parties for . . . [the child],
and vacation bible school. Further, as to
initial contacts with school authorities, the
Defendant produced certain documents (i.e.,
consent forms) which corroborated her
testimony that for the most part she, and not
the Plaintiff, made such initial contacts.
Also, even as to regular church attendance,
the Defendant was in attendance with . . .
[the child] more than the Plaintiff was in
such attendance (apparently due to the
Plaintiff having to work on certain Sundays).
The Defendant's testimony in this regard was
corroborated by several witnesses, which
witnesses were called to testify by both
When . . . [the child] would become sick at
school, the school authorities called the
Defendant, and the Defendant would then at
times have to leave work . . . . One of the
Plaintiff's witnesses even corroborated the
Defendant's testimony in this regard.
At least three evenings of each week, the Plaintiff worked past . . . [the child's] bed time. During these evenings, the Defendant cared for . . . [the child] and put him to bed.
At certain annual picnics and gatherings
through the Defendant's employment, the
Defendant and . . . [the child] participated
in the same to a much greater degree than did
the Plaintiff. Also related to the Defendant's
employment is the testimony of three of the
Defendant's co-workers who stated that on
several occasions . . . [the child] was at the
Defendant's place of employment, primarily
. . . after school hours. Consistent with
this testimony, the Defendant stated that she
picked up . . . [the child] from school and
brought him back to work until her shift
Although the Plaintiff claimed that he did
almost all of the parties' grocery shopping
due to his convenience of working at Kroger's,
the Defendant presented countless canceled
checks written in varying amounts and varying
dates over several years written by her to
From the totality of this evidence, as well as other
evidence introduced, the master concluded that the appellant had
been the primary caretaker of the child and suggested that under
the law custody of the child should be awarded to her, subject to
the right of reasonable visitation in Larry Delbert Reynolds.
Larry Delbert Reynolds took issue with the family law
master's findings and claimed before the Circuit Court of Braxton
County that the family law master had erred by failing to conduct
an in camera interview with the child to determine his custodial
The Circuit Court of Braxton County, after taking the
family law master's findings under consideration, as well as
considering Larry Delbert Reynolds' objections to the findings,
determined that the parties' child should be interviewed by a
psychologist for the purpose of determining whether he could
discuss his custodial preference and his rationale for the
The psychologist interviewed the child, as well as the
parties, and concluded that the child was capable of expressing a
custodial preference and a rationale for the preference.
After learning of the psychologist's findings, the
circuit court scheduled a hearing for the purpose of eliciting from
the child a statement of his custodial preference and his rationale
for that preference. At the hearing, the child, who since the
initiation of the proceedings had moved with the appellant back to
Greenbrier County from Braxton County, stated that he ". . . was
not too happy with the Greenbrier County schools and that the same
did not compare to the Braxton County Schools, and further that
. . . [he] was not too happy with the boyfriend of the
After obtaining the child's statement, the circuit court,
notwithstanding the findings of the family law master regarding the
primary caretaker status of the appellant and the fact that she was
a fit parent, rejected the master's conclusions and recommendations
and awarded permanent custody of the child to Larry Delbert
Reynolds, the child's father. It is from that custody award that
the appellant now appeals.
In Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981),
this Court examined the factors which a trial court should consider
in determining which of a minor child's parents should have custody
of that child as a result of a divorce proceeding. In syllabus
point 6 of Garska, the Court concluded:
In a divorce proceeding where custody of a child of tender years is sought by both the mother and father, the court must determine in the first instance whether the primary caretaker is a fit parent, and where the primary caretaker achieves the minimum, objective standard of behavior which qualifies him or her as a fit parent, the trial court must award the child to the primary caretaker.
In spite of this rule, the Court has recognized that if
a child is of the age of discretion, he or she should be consulted
and due weight should be given to his or her wishes in the matter
of custody and care. State ex rel. Kiger v. Hancock, 153 W.Va.
404, 168 S.E.2d 798 (1969); see J.B. v. A.B., 161 W.Va. 332, 242
S.E.2d 248 (1978). The Court has also said that the age of
discretion is generally fourteen, although in syllabus point 7 of
Garska v. McCoy, supra, the Court pointed out:
. . . Where there is a child under fourteen years of age, but sufficiently mature that he can intelligently express a voluntary preference for one parent, the trial judge is entitled to give that preference such weight as circumstances warrant, and where such child demonstrates a preference for the parent who is not the primary caretaker, the trial judge is entitled to conclude that the presumption in favor of the primary caretaker is rebutted.
In Rose v. Rose, 176 W.Va. 18, 340 S.E.2d 176 (1985),
this Court further examined the question of the weight to be given
to a child's preference when the child was under the age of
discretion. In that case, the Court recognized that it was
appropriate for a trial judge to conduct a private interview with
the child outside the presence of the parties and counsel for the
purposes of examining the child's wishes.
In note 4 of Rose v. Rose, Id., the Court offered
guidelines for trial courts to follow during such examinations.
That note states, in part:
As already discussed, an inquiry should be made into the child's intelligence and maturity to see if the child's choice was intelligently made. Equally important, however, is the child's rationale for his decision. In order to be accorded weight, a child's preference for one parent over the other ought to be based on good reason . . . In making its examination of the child, the trial court should try to explore several aspects of the child's decision. We offer the following guidelines to the trial court as to areas which may have an effect on the weight placed on the child's decision:
1. The trial court should give greater weight
to the wishes of a child which are expressed
with strength, clearness, or with great
sincerity . . . .
2. A child's preference should be given less
weight where it appears that the preference is
based on a desire for less rigid discipline or
restraint . . . .
3. The trial court should investigate whether
the statement of preference by the child was
induced by the party in whose favor the
preference was expressed. If so, said
statement of preference should be accorded
little, if any, weight . . . .
4. Where an otherwise intelligent child makes
an illogical decision based on unimportant
factors, the trial court may disregard the
child's statement of preference . . . .
Finally, in Rose, the Court suggested the advisability of
the trial court's making of a record of the court's interview with
the child and the court's permitting the parties to have access to
the record by way of an accurate or verbatim summary.
It appears that in the present case the trial court did
take steps to ascertain the ability of the parties' eight-year-old
child to make a mature selection of a custodian parent. The court
had the child evaluated by a licensed psychologist, who also
interviewed the parties. The licensed psychologist concluded that
the child was of sufficient maturity to express a desire as to his
After conducting the interview with the child, the court
summarized for the parties what the child said. The court's
summary proceeded as follows:
[I]t was apparent said . . . [child] wanted to return to Braxton County from Greenbrier County and preferred to live with his father. . . . The court further noted that said . . . [child] was not too happy with the Greenbrier County Schools and that the same did not compare to the Braxton County Schools, and further that . . . [the child] was not too happy with the boyfriend of the Defendant . . . .
The court also noted that there was no evidence of any influence
being brought upon the child by either of the parties and that the
child was concerned about the injured feelings that the appellant
would suffer from his desire to return to Braxton County to live
with his father.
As indicated in the authorities cited, the clear
preference of the law in West Virginia is that custody of an infant
child be placed with the primary caretaker, provided the primary
caretaker is a fit and proper person to have custody of the child.
Some substantial showing is necessary to overcome this fundamental
Although a mature and intelligently made expression of
preference by a child may be accorded weight in overcoming the
primary caretaker presumption, Rose v. Rose, supra, indicates that
for the child's preference to be accorded weight, the preference
must be based on some good reason.
The record of the present case adequately demonstrates
that the appellant is a fit and proper person to have care and
custody of the child and that she has heretofore been his primary
caretaker. Further, the apparent reasons assigned by the child in
this present case are that the child preferred to live in Braxton
County rather than Greenbrier County, that he was not too happy
with the Greenbrier County schools, and that he was not too happy
about the appellant's boyfriend. As previously indicated, the
record shows that the child was eight years old at the time he
expressed the preference, and it further shows that he had rather
recently been relocated from Braxton County to Greenbrier County.
In this Court's view, the factors assigned by the child
for the basis of his preference are relatively unimportant and may
very well be as simple expression of temporary dissatisfaction with
a recent move.
Given the overall circumstances of the case, the fact
that the record establishes that the appellant was the primary
caretaker, the fact that there is no showing that she is or was an
unfit parent or unfit to have custody, and given the fact that the
child was eight years old at the time he expressed his preference
and that he based his preference on what this Court
considers to be relatively unimportant factors, this Court
concludes that the trial court erred in overruling the family law
master's findings and in awarding custody of the infant child to
the appellee, Larry Delbert Reynolds.
For the reasons stated, the judgment of the Circuit Court
of Braxton County is reversed, and this case is remanded with
directions that the appellant, Cheryl Lynn May Reynolds, be awarded
custody of the infant child involved in this proceeding.
The Court notes that the appellee has apparently been a
fit and caring father and that the circumstances suggest that he
should be awarded liberal visitation rights. The circuit court is,
therefore, directed to award him such rights in conjunction with
the basic custody award to the appellant.