Submitted: May 11, 1994
Richard A. Bush
Bush & Trippel
Parkersburg, West Virginia
Attorney for the Appellant
Robin Jean Davis
Segal & Davis
Charleston, West Virginia
William J. Leon
Gianola, Leon & Barnum
Morgantown, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE NEELY dissents.
SYLLABUS BY THE COURT
1. "With reference to the custody of very young
children, the law presumes that it is in the best interests of such
children to be placed in the custody of their primary caretaker, if
he or she is fit." Syllabus point 2, Garska v. McCoy, 167 W.Va.
59, 278 S.E.2d 357 (1981).
2. "The primary caretaker is that natural or adoptive
parent who, until the initiation of divorce proceedings, has been
primarily responsible for the caring and nurturing of the child."
Syllabus point 3, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357
This is an appeal by Susan A. Shearer from an order of
the Circuit Court of Monongalia County awarding custody of her
three-year-old child to the child's father, Dan L. Shearer, IV.
The award of custody was made in conjunction with a divorce
proceeding. On appeal, the appellant contends that the award of
custody was improper and prays that this Court reverse the decision
of the circuit court. After reviewing the questions presented and
the documents filed, this Court agrees. Accordingly, the judgment
of the Circuit Court of Monongalia County is reversed, and this
case is remanded with directions that the circuit court award the
appellant custody of the parties' child.
On September 1, 1989, the appellant and Dan L. Shearer,
IV, were married in Monongalia County, West Virginia.
Approximately six months prior to the marriage, the parties had had
the infant child whose custody is in issue in the present
Following their marriage, the parties lived together in
Morgantown, West Virginia, with the infant child.
In January, 1992, the appellant filed a complaint for
divorce in the Circuit Court of Monongalia County. In the
complaint she alleged that irreconcilable differences had arisen between herself and Dan L. Shearer, IV, or, in the alternative,
that Dan L. Shearer, IV, had been guilty of cruel and inhuman
treatment. She sought custody of the parties' infant child, an
award of child support, an award of alimony, and equitable
distribution of the marital assets of the parties. In support of
her claim for custody of the infant child, she alleged that she had
been the primary caretaker of the child, who was then three years
Dan L. Shearer, IV, filed an answer in which he admitted
that irreconcilable differences had developed between the parties.
He, however, denied that the appellant had been the primary
caretaker of the infant child, and he demanded custody of the
infant child, an award of child support, and distribution of
marital assets of the parties in conformity of the terms of an
existing prenuptial agreement.
Following the filing of the complaint, a preliminary
hearing was conducted in the matter on February 11, 1992. At the
conclusion of that hearing, the family law master who conducted it
equally divided the temporary care, custody, and control of the
infant child between the parties. He scheduled a final hearing in
the matter for March 30, 1992, and he awarded the appellant custody
of the child for half of the intervening time, with weekend
visitation to Dan L. Shearer, IV, and he awarded Dan L. Shearer,
IV, custody for the remaining half of the intervening period of time, with weekend visitation to the appellant. The family law
master also required each custodial parent to permit the
noncustodial parent the first option of babysitting in lieu of
daycare or third-party babysitting.
Final hearings in the matter proceeded as scheduled. The
first session was conducted on March 30, 1992. Two later sessions
were conducted on May 11 and May 15, 1992.
During the final hearings, both parties admitted that the
other was involved to a considerable degree in the care of the
infant child. Differences arose over the relative extent or degree
of that involvement.
At the conclusion of the final hearings, the family law
master found that both parties were fit parents and also found that
during their marriage both parties were actively involved in the
rearing of the infant child and that, therefore, neither party had
established that he or she was entitled to the benefit of the
primary caretaker presumption for the purposes of determining
custody of the child. The family law master went on to state:
After further inquiry into the relative degrees of parental competence, the Law Master finds that it is in the best interest of the child of the parties that custody be awarded to the Defendant. In this regard, the Law Master finds that the Defendant is a life long resident of Morgantown; has completed his graduate school education and is now gainfully employed in Morgantown, West Virginia; that the Defendant has both paternal and maternal relatives living in the Morgantown area; and that between the Plaintiff and Defendant, Defendant is better able to financially support the child. The Law Master finds that Plaintiff has not yet completed her graduate school education; that her future employment and living arrangements are uncertain at present. For these and such other reasons as appear on the record, the Law Master finds that it is in the best interest of the child that custody be awarded to the Defendant.
It appears that at the conclusion of the hearings in the case, the appellant, through her counsel, sought to present rebuttal evidence. Without objection from Dan L. Shearer, IV, the family law master refused to hear such rebuttal evidence and declared the case submitted.
Since the appellant was denied the opportunity to present
rebuttal evidence at the final hearing, through counsel she sought
an alternative procedure to place her rebuttal evidence before the
circuit court which had responsibility for making the final
decision in the case. She, accordingly, served notice of the
taking of her own deposition, and despite objections from Dan L.
Shearer, IV, the deposition was taken on June 3, 1992.
Both parties filed petitions for review of the
recommended order of the family law master, and in conjunction with
her appeal, the appellant attempted to submit the deposition.
After reviewing the questions raised on appeal, the
circuit court found that both parties appear to have shared equally
in the raising of their son, and, in view of this finding, the
court concluded that it was appropriate for the master to find that
neither party was entitled to the primary caretaker presumption.
The court also found that the family law master's finding that Dan
L. Shearer, IV, was better suited to care for the parties' child
could not be viewed as being the result of an abuse of discretion.
Accordingly, the court, in effect, adopted the family law master's
In the present proceeding, the appellant claims that the
trial court erred in confirming the findings of fact and
conclusions of law of the family law master to the effect that
neither party was entitled to the primary caretaker presumption and
that the best interest of the child would be served by an award of
custody to the child's father, Dan L. Shearer, IV. She claims that
this was especially so when the family law master refused to permit
her to offer rebuttal evidence and the court refused to consider
her post-hearing deposition offered in lieu of rebuttal evidence.
The appellant also argues that the evidence of the case
was overwhelming that she was the primary caretaker of the infant
child and the overwhelming weight of the evidence showed that the
best interest of the child would have been promoted by an award of
custody to her.
In Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981),
this Court discussed at some length the award of custody of a child
of tender years. Under the principles set forth in Garska, the
three-year-old child of the parties in the present case would
clearly qualify as a child of tender years.
The fundamental rule set forth in Garska for the award of
custody of a child of tender years is summarized in syllabus point
2, as follows:
With reference to the custody of very young children, the law presumes that it is in the best interests of such children to be placed in the custody of their primary caretaker, if he or she is fit.
In syllabus point 3 of Garska v. McCoy, the Court defined the primary caretaker as follows:
The primary caretaker is that natural or adoptive parent who, until the initiation of divorce proceedings, has been primarily responsible for the caring and nurturing of the child.
In David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912
(1989), the Court, following Garska v. McCoy, outlined the criteria
to be used in determining which parent has been the primary
caretaker of a child of tender years. The Court stated that the
primary caretaker was the parent who:
. . . has taken primary responsibility for, inter alia, the performance of the following caring and nurturing duties of a parent: (1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e. transporting to friends' houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e. babysitting, day-care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e. teaching general manners and toilet training; (9) educating, i.e. religious, cultural, social, etc.; and, (10) teaching elementary skills, i.e., reading, writing and arithmetic.
182 W.Va. at 67, 385 S.E.2d at 923.
In the present case, the evidence adduced demonstrated
that the appellant, who was not married to the appellee until six
or seven months after the infant child of the parties was born,
remained at home and cared for the parties' infant child during the
first six months of the child's life. The evidence on who was the
primary caretaker of the child after the first six months of the
child's life is somewhat conflicting. The appellant testified that
she did approximately thirty percent of the cooking in the home,
while the appellee did approximately seventy percent of the
cooking. However, the evidence also shows that the parties and the
infant child seldom ate at home. Instead, it suggests that they
ate most of their meals out. The appellant testified that she did
the majority of the shopping, and the appellee did not refute this
testimony, although there was evidence that he did, from time to
time, stop at the grocery store to pick something up. Additional
evidence showed that, for the first year or so after the birth of
the infant child, the appellant did the bathing and grooming of the child. According to the appellant, during this period the appellee
stated that "I don't do baths." When the child became older, the
child would often take a shower with his father, but on these
occasions the appellant would undress the child and hand him to his
father, who was at the time in the shower.
In her testimony, the appellant did not mention the
purchase of clothing for the child. The appellee, on the other
hand, testified that he had bought clothing for the child.
However, the testimony of Sarah Jo Scolopio, an individual who
worked with the appellant, indicated that the appellant often left
work early in the afternoons to go shopping for clothing.
Testimony regarding who did the laundry was essentially
The evidence relating to the medical care of the child
showed that the appellant started taking the child to a
pediatrician shortly after birth and later took the child to the
pediatrician on a continuing basis. This testimony was given by
Dr. Ferrari, the pediatrician. Dr. Ferrari did, however
acknowledge that the appellee had on occasion delivered the child.
The evidence relating to the social interaction of the
child indicated that most of his social interaction was with the
appellee's family. There is no question that the arranging of this
interaction was done by the appellee. However, affecting the question of social interaction was the fact that the child was very
young and was not, in fact, involved in the interaction-type of
functions which slightly older children participate in.
The evidence also rather clearly showed that the appellee
did most of the arranging of child care for the parties' child.
The appellee's family had a financial interest or connection with
a child care center, and this center was the primary place used for
alternative child care.
The evidence on who put the child to bed at night and
attended to him at night was sketchy. The evidence relating to
discipline and toilet training was somewhat conflicting. It
appears that the parties disagreed about disciplining and toilet
training, but the testimony of the appellant was that until the
child was toilet trained, she was the one who changed the infant's
diapers, even when both parties were in the home.
The evidence on education was also somewhat conflicting.
The appellee took the child to movies and read such material as
sports magazines to him. The appellant, on the other hand,
suggested that she was involved with the education of the child.
When the divorce proceeding was initiated, the child had just
reached the age of three years old. At that point, he obviously
had not received much education in elementary skills.
In examining the evidence adduced in this case, this
Court believes that it rather clearly shows that for the first six
months of the child's life, or for approximately one-sixth of the
child's life prior to the institution of the divorce proceedings,
the appellant was clearly the primary caretaker of the child.
Thereafter, while the child was in diapers, the appellant generally
changed the diapers, and until he became somewhat older, she bathed
him. Even after the appellee became involved with bathing the
child, the appellant continued to participate in that function.
The evidence further suggests that the appellant was primarily
responsible for the health care of the child.
There is some conflict in the evidence of who purchased
clothing for the child and who prepared meals.
In reviewing the factors to be considered in who was the
primary caretaker, as stated in David M. v. Margaret M. supra, it
is apparent that certain of those factors are involved in the care
of all young children, from the youngest infant on, whereas other
of the factors become significant only as the child becomes
slightly older. Obviously, meals, dressing, bathing, and medical
care, and attending to a child at night, are factors involved with
the care of all children. Other things, such as teaching reading,
writing, and arithmetic, education in terms of religious, cultural
and social values, the teaching of general manners, and many aspects of social interaction are not factors which are profoundly
significant in the care of extremely young infants.
This Court believes that the evidence in the present case
shows that the parties' infant child was very young at the time the
divorce proceeding was initiated. He, in fact, had only just
arrived at his third birthday.
Under the circumstances, the Court believes that the
appropriate focus in addressing the question of who was the primary
caretaker should be which party performed the most basic functions
necessary to the care of very young children, such things as
medical care, feeding, bathing, etc. Factors such as arranging boy
scout meetings are less relevant.
In this Court's view, the evidence rather clearly shows
that the appellant was the one most closely involved with the
primary functioning of the parties' infant child prior to the
initiation of the divorce proceedings in this case. For the first
six months of the child's life, the appellant appears to have been
almost the exclusive caretaker. As outline above, thereafter she
was deeply involved with the general care of the child, as well as
his medical care.
Although the evidence suggests that the appellee was a
caring father, and that as the child grew older the appellee paid attention to the disciplining of the child and to arranging
rudimentary social interaction and that he became more involved
with the child, this Court believes that a fair reading of the
evidence suggests that the appellant was, in fact, the primary
As previously indicated, Garska v. McCoy, supra,
indicates that where a primary caretaker is fit, the law presumes
that it is in the best interests of a very young child to be placed
in the custody of that primary caretaker.
There was no evidence introduced in this case that
indicates that either of the parties was an unfit parent. Given
the overall circumstances of the case, the Court believes that the
trial court erred in holding that neither party was the primary
caretaker and in awarding custody to the appellee.
For the reasons stated, the judgment of the Circuit Court
of Monongalia County is reversed, and this case is remanded with
directions that the circuit court enter an order awarding the
appellant custody of the parties' infant child. The Court notes
that the evidence demonstrates that the appellee was a fit and
caring parent. Under the circumstances, the Court believes that he
should be awarded liberal visitation privileges.