Jeffrey L. Hall
Diana, West Virginia Charleston, West Virginia
Attorney for Amicus Curiae Gregory R. Nevins
Jeffrey L. Hall in his capacity as Lambda Legal Defense and
Guardian ad Litem for Education Fund, Inc.
the minor child, Z.B.S. Atlanta, Georgia
Leslie Cooper Courtney Joslin
American Civil Liberties Union National Center for Lesbian Rights
Lesbian and Gay Rights Project San Francisco, California
New York, New York Attorneys for Amici Curiae
Terri S. Baur Lambda Legal Defense and
American Civil Liberties Union Education Fund, Inc., and
of West Virginia Foundation National Center for Lesbian Rights
Charleston, West Virginia
Attorneys for Amici Curiae
Lesbian and Gay Rights Project
of the American Civil Liberties Union
and the American Civil Liberties Union
of West Virginia Foundation
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
The appellant herein and petitioner below, Tina B., (See footnote 1) appeals from an order entered December 2, 2003, by the Circuit Court of Clay County. By the terms of that order, the circuit court denied Tina B.'s petition for custody of the minor child, Z.B.S., who Tina B. had raised from infancy with her now-deceased partner, finding that Tina B. lacked standing to seek an award of custody under W. Va. Code § 48-9-103 (2001) (Repl. Vol. 2004). Additionally, the circuit court granted temporary custody of Z.B.S. to his maternal grandfather, the appellee herein and respondent below, Paul S. On appeal to this Court, Tina B. complains that the circuit court erred by finding that she lacked standing to assert her status as Z.B.S.'s psychological parent and to seek his custody in such capacity. Upon a review of the parties' arguments, the record presented for appellate consideration, and the pertinent authorities, we conclude that Tina B. is a proper party to seek custody of Z.B.S. Accordingly, we reverse the contrary decision of the Clay County Circuit Court.
In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.
Syl., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). See
also Syl. pt. 2, Lucas v. Lucas, 215 W. Va. 1, 592 S.E.2d 646
(2003) (In reviewing challenges to findings made by a family court judge
that also were adopted by a circuit court, a three-pronged standard of review
is applied. Under these circumstances, a final equitable distribution order
is reviewed under an abuse of discretion standard; the underlying factual findings
are reviewed under a clearly erroneous standard; and questions of law and statutory
interpretations are subject to a de novo review.).
Of particular relevance to the case sub judice is our specific manner of reviewing the correctness of orders determining child custody:
The exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused; however, where the trial court's ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal.
Syl. pt. 2, Funkhouser v. Funkhouser, 158 W. Va. 964, 216 S.E.2d
570 (1975), superseded by statute on other grounds as stated in David
M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 (1989).
Lastly, we accord plenary review to matters involving statutory interpretation: Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Accord Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995) (Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.). Mindful of these standards, we proceed to consider the parties' arguments.
The primary objective of this article is to serve the child's best interests,
(1) Stability of the child;
(2) Parental planning and agreement about the child's custodial arrangements and upbringing;
(3) Continuity of existing parent-child attachments;
(4) Meaningful contact between a child and each
(5) Caretaking relationships by adults who love the child, know how to provide for the child's needs, and who place a high priority on doing so;
(6) Security from exposure to physical or emotional harm; and
(7) Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child's care and control.
(b) A secondary objective of [this] article is to achieve fairness between the parents.
These legislative statements of purpose also are consistent with this Court's pronouncements identifying the best interests of the child as being the paramount consideration by which custody determinations should be made. We repeatedly have held that '[i]n a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.' Point 2, Syllabus, State ex rel. Lipscomb v. Joplin, 131 W. Va. 302[, 47 S.E.2d 221 (1948)]. Syl. pt. 1, State ex rel. Cash v. Lively, 155 W. Va. 801, 187 S.E.2d 601 (1972). See also Syl. pt. 3, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (Although parents have substantial rights that must be protected, the primary goal . . . in all family law matters . . . must be the health and welfare of the children.); Syl. pt. 5, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996) (In visitation as well as custody matters, we have traditionally held paramount the best interests of the child.); David M. v. Margaret M., 182 W. Va. 57, 60, 385 S.E.2d 912, 916 (1989) (The child's welfare is the paramount and controlling factor in all custody matters. (citations omitted)). Thus, [t]o justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child. Syl. pt. 2, Cloud v. Cloud, 161 W. Va. 45, 239 S.E.2d 669 (1977) (per curiam).
To further promote this stated goal to safeguard the best interests of children, the Legislature has recognized that, in certain circumstances, persons who are not a child's parent or legal guardian might also be proper parties to a custody proceeding. In this regard, the statute at issue in this proceeding, W. Va. Code § 48-9-103 (2001) (Repl. Vol. 2004), delineates who may participate in actions involving custodial determinations by identifying various categories of persons who have statutorily been granted permission to participate in custodial determination actions:
Persons who have a right to be notified of and participate as a party in an action
filed by another are:
(1) A legal parent of the child, as defined in section 1- 232 [§ 48-1-232] of this chapter;
(2) An adult allocated custodial responsibility or decision-making responsibility under a parenting plan regarding the child that is then in effect; or
(3) Persons who were parties to a prior order establishing custody and visitation, or who, under a parenting plan, were allocated custodial responsibility or decision- making responsibility.
(b) In exceptional cases the court may, in its discretion, grant permission to intervene to other persons or public agencies whose participation in the proceedings under this article it determines is likely to serve the child's best interests. The court may place limitations on participation by the intervening party as the court determines to be appropriate. Such persons or public agencies do not have standing to initiate an action under this article.
W. Va. Code § 48-9-103. Of the four enumerated classes, the
parties agree that neither subsection (a)(2) nor subsection (a)(3) applies
to the case sub judice insofar as no parenting plan or custodial and
visitation order has previously been entered regarding Z.B.S. See W. Va.
Code §§ 48-9-103(a)(2-3). See also W. Va. Code § 48-1-235.3
(2001) (Repl. Vol. 2004) (defining parenting plan). (See
The parties disagree, however, as to which of the remaining subsections of W. Va. Code § 48-9-103 is applicable to the facts at issue herein and whether the pertinent provision permits Tina B. to participate in Z.B.S.'s custody proceeding. Tina B. contends that she is Z.B.S.'s legal parent and thus is entitled to participate in the proceedings pursuant to W. Va. Code § 48-9-103(a)(1). By contrast, Paul S. asserts that the only provision that could conceivably grant Tina B. permission to participate in these proceedings is W. Va. Code § 48-9-103(b) and that, even under that subsection, Tina B. is not entitled to custody of Z.B.S. We will consider each of these arguments in turn.
In stating who may be a child's legal
parent, the Legislature has left undefined the qualification described
as other recognized grounds. See W. Va. Code § 48-1-232.
Absent precise legislative guidance, we must defer instead to the common,
ordinary and accepted meaning [of the terms] in the connection in which they
are used. Syl. pt. 1, in part, Miners in Gen. Group v. Hix, 123
W. Va. 637, 17 S.E.2d 810. The customary construction of the word recognized is [a]cknowledged,
admitted; known. VIII The Oxford English Dictionary 253 (1970 re-issue).
More specifically, to recognize is to acknowledge formally. Webster's
Ninth New Collegiate Dictionary 984 (9th ed. 1983). Accord Random House
Webster's Unabridged Dictionary 1611 (2d ed. 1998) (defining recognize as to
acknowledge or accept formally a specified factual or legal situation . . .
to acknowledge or treat as valid). See also Price v. United States,
100 F. Supp. 310, 316 (Ct. Cl. 1951) (construing word recognize as
meaning to acknowledge by admitting to a privileged status (internal
quotations and citation omitted)). Thus, it is apparent that the Legislature's
reference to other recognized grounds in W. Va. Code § 48-1-232
contemplates a formal acknowledgment of parental status or the functional equivalent
thereof. A brief survey of this State's statutory law regarding the care and
custody of minor children provides several examples of the above- referenced other
recognized grounds wherein the Legislature has formally acknowledged parental
status or has recognized its functional equivalent.
For example, the Legislature has determined that, in paternity proceedings, a man may automatically be declared to be a child's legal father in certain circumstances. Where there exists scientific certainty that a man is the subject child's biological father, he is denominated as such: Undisputed blood or tissue test results which show a statistical probability of paternity of more than ninety-eight percent shall, when filed, legally establish the man as the father of the child for all purposes and child support may be established pursuant to the provisions of this chapter. W. Va. Code § 48-24-103(a)(3) (2002) (Repl. Vol. 2004) (emphasis added). Accord Syl. pt. 5, Mildred L.M. v. John O.F., 192 W. Va. 345, 452 S.E.2d 436 (1994) (Under W. Va. Code, 48A-6-3 (1992), undisputed blood or tissue test results indicating a statistical probability of paternity or more than ninety-eight percent are conclusive on the issue of paternity, and the circuit court should enter judgment accordingly.).
Likewise, a man who acknowledges that he is the subject child's father will be legally declared as such: A written, notarized acknowledgment executed pursuant to the provisions of section twelve [§ 16-5-12], article five, chapter sixteen of this code legally establishes the man as the father of the child for all purposes and child support may be established in accordance with the support guidelines set forth in article 13-101, et seq. [§§ 48-13-101 et seq.]. W. Va. Code § 48-24-106 (2001) (Repl. Vol. 2004) (emphasis added). See also Syl. pt. 2, State ex rel. W. Va. Dep't of Health & Human Res., Child Support Div. v. Cline, 197 W. Va. 79, 475 S.E.2d 79 (1996) (Absent a judicial determination that an acknowledgment of paternity was entered into under fraud or duress, a written notarized acknowledgment by both the man and woman that the man is the father of the named child legally and irrevocably establishes the man as the father of the child for all purposes including child support obligations. (emphasis added)). In either circumstance, the formal recognition of paternity accords the man unrestricted parental status as the child's legal father, accompanied by a duty to support the child and to repay past due child support obligations. See W. Va. Code § 48-24-104 (2001) (Repl. Vol. 2004).
Additionally, the Legislature has declared that, in adoption proceedings, the male parent of a child will be accorded determined father or legal father parental status depending upon the circumstances surrounding such a denomination. Based upon the nuances of a particular factual scenario, a man may be declared to be the subject child's [d]etermined father:
Determined father means, before adoption, a person: (1) In whom paternity has been established pursuant to the provisions of article 24-101 et seq. [§§ 48-24-101 et seq.], and section 16-5-12, whether by adjudication or acknowledgment as set forth therein; or (2) who has been otherwise judicially determined to be the biological father of the child entitled to parental rights; or (3) who has asserted his paternity of the child in an action commenced pursuant to the provisions of article 24-101, et seq., that is pending at the time of the filing of the adoption petition.
W. Va. Code § 48-22-109 (2001) (Repl. Vol. 2004) (emphasis added). In other situations, the man may be denominated as the child's [l]egal father:
Legal father means, before adoption, the male person having the legal relationship of parent to a child: (1) Who is married to its mother at the time of conception; or (2) who is married to its mother at the time of birth of the child; or (3) who is the biological father of the child and who marries the mother before an adoption of the child.
W. Va. Code § 48-22-110 (2001) (Repl. Vol. 2004) (emphasis added).
Regardless of the appellation that is factually appropriate in a given case,
the status of both a determined father and a legal father are accompanied by
legal rights to the care and custody of the minor child such that the consent
to adoption or relinquishment of parental rights of either a determined father
or a legal father is required before his child may be adopted by another person. See W. Va.
Code §§ 48-22-301(a)(1,4) (2001) (Repl. Vol. 2004) ([C]onsent
to or relinquishment for adoption of a minor child is required of: (1) The
parents or surviving parent, whether adult or infant, of a marital child . . .
and (4) The determined father.).
Moreover, the Legislature has recognized the functional equivalent of parental status to exist in certain circumstances. For example, one who is appointed or nominated as a guardian upon the death of a minor child's parent(s) is formally accorded rights and responsibilities that are substantially the same as those that would have been enjoyed by the child's parent(s). See W. Va. Code § 44-10-1 (1923) (Repl. Vol. 2004) (describing [t]estamentary guardians); W. Va. Code § 44-10-3 (2004) (Repl. Vol. 2004) (concerning judicial appointment of guardian); W. Va. Code § 44-10-4 (2004) (Repl. Vol. 2004) (addressing ability of older child to nominate his/her guardian upon death of child's parent(s)). Under such circumstances, the guardian essentially steps into the shoes of the deceased parent(s) to fulfill the parental role as a result of the inability of the parent(s) to do so.
In this regard, a guardian appointed or nominated upon the death of a minor child's parent(s) shall have the possession, care and management of his ward's estate, real and personal, and out of the proceeds of such estate shall provide for his maintenance and education; and shall have also, except as otherwise provided in this article, the custody of his ward. W. Va. Code § 44-10-7 (1996) (Repl. Vol. 2004). A guardian also possesses legal rights to the child such that the guardian's consent is required before the child may be adopted. See W. Va. Code § 48-22-301(d) (2001) (Repl. Vol. 2004) (If all persons entitled to parental rights of the child sought to be adopted are deceased . . . then consent or relinquishment is required of the legal guardian or any other person having legal custody of the child at the time.).
Similarly, the Legislature has accorded the West Virginia Department of Health and Human Resources the functional equivalent of parental status in cases involving the abuse, neglect, and/or abandonment of a child. In such cases, [i]t shall be the responsibility of the state department to provide care for neglected children who are committed to its care for custody or guardianship. W. Va. Code § 49-2-1 (1998) (Repl. Vol. 2004).
child committed to the state department for guardianship, after termination of
parental rights, shall remain in the care of the department until he attains
the age of eighteen years, or is married, or is adopted, or guardianship is relinquished
through the court.
A child committed to the state department for custody shall remain in the care of the department until he attains the age of eighteen years, or until he is discharged because he is no longer in need of care.
W. Va. Code § 49-2-2 (1972) (Repl. Vol. 2004). Although a distinction
has been made between children whose guardianship, as distinguished from custody,
has been committed to the State, it is nevertheless apparent that, in both
instances, the State steps into a parental-type role insofar as it retains
ultimate responsibility for the health and welfare of the subject child.
When a child's custody has been awarded to the State, the Legislature has additionally vested the State with sufficient legal rights to the child to require its consent to the child's adoption if the parental rights of the child's parents' are ultimately terminated or relinquished. Compare W. Va. Code § 49-3-1(a)(1) (2001) (Repl. Vol. 2004) (Whenever . . . the department of health and human resources has been given the permanent legal and physical custody of any child and the rights of the mother and the rights of the legal, determined, putative, outside or unknown father of the child have been terminated by order of a court of competent jurisdiction or by a legally executed relinquishment of parental rights, . . . the department may consent to the adoption of the child pursuant to the provisions of article twenty-two [§§ 48-22-101 et seq.], chapter forty- eight of this code.) with W. Va. Code § 48-22-301(d) (2001) (Repl. Vol. 2004) (If all persons entitled to parental rights of the child sought to be adopted . . . have been deprived of the custody of the child by law, then consent or relinquishment is required of the legal guardian or any other person having legal custody of the child at the time.).
'The Legislature, when it enacts legislation, is presumed to know its prior enactments.' Syllabus Point 12, Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953). Syl. pt. 5, Pullano v. City of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986). Based upon the foregoing analysis, it is evident that our construction of the phrase other recognized grounds is consistent with the Legislature's intent in employing that terminology when it defined legal parent in W. Va. Code § 48-1-232 and in keeping with the parameters of parental status, or comparable rights and responsibilities, that the Legislature has bestowed upon individuals in certain enumerated circumstances in order to safeguard the best interests of the children involved. Accordingly, we hold that, pursuant to W. Va. Code § 48-1-232 (2001) (Repl. Vol. 2004), a legal parent is an individual defined as a parent, by law, on the basis of biological relationship, presumed biological relationship, legal adoption or other recognized grounds. The phrase other recognized grounds refers to those individuals or entities who have been formally accorded parental status or the functional equivalent thereof by way of statute or judicial decree. Such parental status is comparable to the rights and responsibilities of a biological or adoptive parent and includes, but is not limited to, the right to care, control, and custody of the minor child; the right to consent or object to the child's adoption by another person; and the duty to support the child. (See footnote 8)
Applying this construction to the facts presently before us, we are unable to accord Tina B. status as Z.B.S.'s legal parent. Her relationship with Z.B.S. does not fall neatly into any of the categories described above in which the Legislature has specifically bestowed parental status. Neither has Tina B. adopted Z.B.S. Most closely analogous to the case sub judice is the appointment or nomination of a guardian upon the death of the child's parent. Unfortunately, however, there is no record evidence to support a finding that Christina S. made such a testamentary appointment of guardianship in favor of Tina B. Moreover, the judicial appointment of a guardian for Z.B.S. upon Christina S.'s death was made in favor of Paul S. While the aforementioned examples of other recognized grounds are by no means the only instances in which legal parent status might be accorded, they are indicative of a definite legislative intent to formally recognize someone who is not biologically or adoptively related to a child as the child's functional parental equivalent. Absent further record evidence or legal authority to support Tina B.'s claims, we simply cannot conclude that she meets the definition of a legal parent set forth in W. Va. Code § 48-1-232. Accordingly, Tina B. is foreclosed from seeking custody of Z.B.S. pursuant to W. Va. Code § 48-9-103(a)(1), which accords such standing only to legal parents.
[i]n exceptional cases the court may, in its discretion, grant permission to intervene to other persons or public agencies whose participation in the proceedings under this article it determines is likely to serve the child's best interests. The court may place limitations on participation by the intervening party as the court determines to be appropriate. Such persons or public agencies do not have standing to initiate an action under this article.
In other words, a person may, subject to the exercise of the court's discretion,
intervene in a proceeding adjudicating custody if the facts of the particular
case warrant such intervention and if the intervention is likely to promote
the best interests of the subject child(ren). See W. Va. Code § 48-9-103(b).
At this juncture, we feel it is necessary to address the procedural manner in which the case sub judice was initiated in the Family Court of Clay County. Paul S. complains that, because Tina B. joined in the filing of this lawsuit with Clifford K., she is not now entitled to participate in these proceedings as an intervenor. While we appreciate the less-than-perfect procedural posture of this case, we do not think this imperfect style of pleading disentitles Tina B. to participate in these proceedings.
Under subsection (b) of W. Va. Code § 48-9-103,
if the facts of the case and the best interests of Z.B.S. so warrant, Tina B.
could be granted permission to intervene in a suit seeking his custody, but,
pursuant to the plain statutory language, she could not initiate such an action
herself. See W. Va. Code § 48-9-103(b). Nevertheless, the
instant proceeding was initiated by both Clifford K. and Tina B. as joint petitioners,
rather than having been filed by Clifford K. with Tina B. moving to intervene
therein. This procedural posture is not fatal to our consideration of the matter,
however, because the family court has cured this defect by apparently treating
Tina B.'s petition as a motion for intervention and finding that she is a proper
party to these proceedings. Arguably, it would have been preferable for Clifford
K. to have filed the underlying custody proceeding and for Tina B. to have moved
to intervene in that case pursuant to the plain language of W. Va. Code § 48-9-103(b). (See
footnote 9) However, [w]e decline to delay the resolution of
these pivotal issues on technical procedural grounds, particularly because all
necessary parties appear to be before the court. Zikos v. Clark,
214 W. Va. 235, 241, 588 S.E.2d
400, 406 (2003) (per curiam). Furthermore, we previously have stated that 'a mere procedural technicality does not take precedence over the best interests of the child[.]' In re Erica C., 214 W. Va. 375, 380, 589 S.E.2d 517, 522 (2003) (per curiam) (quoting In re Tyler D., 213 W. Va. 149, 160, 578 S.E.2d 343, 354 (2003) (per curiam)). In short, we refuse to elevate form over substance when the family court has found that Tina B. was a proper party to the proceedings commenced in that tribunal. See May v. May, 214 W. Va. 394, 399 n.10, 589 S.E.2d 536, 541 n.10 (2003) (The distinctions elevate form over substance and do not affect the ultimate outcome[.]); Brooks v. Isinghood, 213 W. Va. 675, 684, 584 S.E.2d 531, 540 (2003) (observing importance of insur[ing] that cases and controversies be determined upon their merits and not upon legal technicalities or procedural niceties (internal quotations, citation, and footnote omitted)); Dunlap v. Friedman's, Inc., 213 W. Va. 394, 399, 582 S.E.2d 841, 846 (2003) (Davis, J., dissenting) (noting that a conclusion which elevates form over substance . . . defies common statutory construction (internal quotations and citation omitted)). Consequently, we, too, will treat Tina B. as if she had intervened in the lower court proceedings pursuant to W. Va. Code § 48-9-103(b) and now consider whether that statutory language entitles her to do so.
Turning back to the statutory requirements for one to be accorded permission to intervene in a custody determination proceeding, then, it is apparent that if Tina B. can demonstrate that the facts surrounding Z.B.S.'s custodial determination are such as to be exceptional, she would, subject to the court's discretion and the best interests of Z.B.S., be entitled to intervene in such proceedings. See W. Va. Code § 48-9-103(b). As with our prior analysis of the meaning of other recognized grounds, however, the Legislature has left undefined exceptional cases.
In custodial proceedings, the Legislature has reserved the right to participate therein to a child's parents and custodians and to certain other persons who are permitted to intervene in specific cases. See W. Va. Code §§ 48-9-103(a-b). Identifying those other persons and/or entities who may intervene, the Legislature has specified that their intervention is appropriate in exceptional cases. See W. Va. Code § 48-9-103(b). Absent a statutory definition of exceptional cases, we must necessarily defer to the common, ordinary and accepted meaning [of the terms] in the connection in which they are used. Syl. pt. 1, in part, Miners in Gen. Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810. The word exceptional is defined as [t]he rare _ the unusual or extraordinary case or circumstance. Ballentine's Law Dictionary 426 (3d ed. 1969) (citation omitted). Accord Chambers 20th Century Dictionary 438 (1983) (interpreting exceptional as unusual); Random House Webster's Unabridged Dictionary 674 (2d ed. 1998) (stating that exceptional is forming an exception or rare instance; unusual; extraordinary); Webster's Ninth New Collegiate Dictionary 432 (9th ed. 1983) (defining exceptional as forming an exception: rare). Stated otherwise, exceptional has been construed to mean [o]f the nature of or forming an exception; out of the ordinary course, unusual, special. III The Oxford English Dictionary 374 (1969 re-issue). Accord Webster's Third New International Dictionary of the English Language Unabridged 791 (1970) (understanding exceptional as forming an exception; usu: being out of the ordinary: uncommon, rare). From these definitions of exceptional, it is apparent that the Legislature intended to permit intervention in custodial proceedings only in unusual or extraordinary cases. Therefore, we hold that the reference to exceptional cases contained in W. Va. Code § 48-9-103(b) (2001) (Repl. Vol. 2004) signifies unusual or extraordinary cases, and, accordingly, a court should exercise its discretion to permit intervention in such unusual or extraordinary cases only when intervention is likely to serve the best interests of the subject child(ren). (See footnote 10) We believe that the factual predicate of the case sub judice presents the unusual and extraordinary circumstances contemplated by the legislative intent of W. Va. Code § 48-9-103(b).
In this case, we are faced with the unique situation of a child who, since his birth, has lived in a nontraditional household and who has more than the customary number of parental figures in his young life. On the one hand are the biological parents of Z.B.S., Christina S., his now-deceased biological mother, and Clifford K., his biological father, who initiated the underlying custody action but who does not wish to assume custody of Z.B.S. On the other hand is Tina B., who has resided continuously with Z.B.S. since his birth and who has cared for and treated him as if he were her own biological child. As a result of the deep attachment and emotional bonds that have mutually arisen between Tina B. and Z.B.S., Tina B. characterizes herself as the child's psychological parent. Although we previously have recognized the concept of a psychological parent in our jurisprudence, we have never formally defined it. In order to ascertain whether Tina B. is Z.B.S.'s psychological parent and what effect, if any, such status would have upon her ability to intervene in these custodial proceedings, it is necessary first to gain a better understanding of the nature and scope of psychological parent status.
We first recognized the notion of a psychological parent in the case of State ex rel. McCartney v. Nuzum, 161 W. Va. 740, 248 S.E.2d 318 (1978), overruled on other grounds by In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996). In that case, we recognized that in certain instances psychological testimony would . . . be relevant in aiding the determination of who should have custody of a child. 161 W. Va. at 744 n.3, 248 S.E.2d at 320 n.3 (citation omitted). However we declined to award custody to the psychological parent in that case because we previously had determined the child's natural mother to be entitled to her custody. See McCartney v. Coberly, 250 S.E.2d 777 (W. Va. 1978), overruled on other grounds by Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27
Our next consideration of psychological parent status was in Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989). Honaker involved a custodial contest between a child's natural father and her stepfather, with whom she had resided since she was just over one year old. In recognizing that a gradual transition of custody from the stepfather to the natural father was warranted, we observed with respect to the child's longtime residence with her stepfather and half-brother that [t]hese familial surroundings are the only ones she has ever known, and it is undisputed that she has developed a close and loving relationship with her stepfather. 182 W. Va. at 450, 388 S.E.2d at 323. Thus, by recognizing the significant role her stepfather had played in the child's life as her psychological parent, we accorded visitation privileges to him, as well as to the child's half-brother, despite the ultimate award of the child's custody to her biological father.
The following year we again revisited the concept of a psychological parent in the case of In re Brandon L.E., 183 W. Va. 113, 394 S.E.2d 515 (1990). In Brandon, we were called upon to ascertain which court possessed jurisdiction to decide the fate of a child embroiled in a bitter custody dispute between his biological father, with whom he had had infrequent contact, and his maternal grandmother, who had participated in his upbringing since his birth and who was, at the time of the proceedings, serving as his primary caretaker. During the course of our deliberations, we acknowledged that
psychological parent status is entitled to consideration in appropriate cases:
If a child has resided with an individual other than a parent for a significant period of time such that the non-parent with whom the child resides serves as the child's psychological parent, during a period when the natural parent had the right to maintain continuing substantial contact with the child and failed to do so, the equitable rights of the child must be considered in connection with any decision that would alter the child's custody. To protect the equitable rights of a child in this situation, the child's environment should not be disturbed without a clear showing of significant benefit to him, notwithstanding the parent's assertion of a legal right to the child.
Syl. pt. 4, In re Brandon, 183 W. Va. 113, 394 S.E.2d 515.
Thereafter, in Ortner v. Pritt, 187 W. Va. 494, 419 S.E.2d 907 (1992) (per curiam), we considered who, as between the child's biological mother, with whom the child had resided only sporadically, and the child's paternal grandmother, with whom the child had lived for over half of his young life, was entitled to custody. We found the grandmother had become the child's psychological parent and awarded custody to her, instead of to the child's biological mother, because such a custodial placement was found to be in the child's best interests. We did not, however, expound upon the law of psychological parent status or further clarify that term.
In 1993, we decided Simmons v. Comer, 190 W. Va. 350, 438 S.E.2d 530 (1993). Simmons involved a concept that is remarkably similar to that of psychological parent status: the functioning father. Under the facts of that case, we determined that where a putative father has developed a strong relationship with a child and served as the child's functioning father, he may later have standing to seek custody of the child as against the child's a biological mother.
Where a biological mother is married to the putative father or, although not married, advises him that he is the biological father and he marries her, he may have standing through the doctrine of equitable estoppel to assert a right to custody of the child. In order to maintain his claim of custody, the putative father must demonstrate that he has developed a caring relationship to the child such that he has become a functioning father. He will also have the benefit of the primary caretaker presumption if the facts so warrant.
Syl. pt. 5, Simmons v. Comer, 190 W. Va. 350, 438 S.E.2d 530. In order to attain such status, the putative father must demonstrate that he has a significant parental relationship with the child.
nonbiological father must show a caring father-child relationship, which means
not only providing for the financial support of the child, but also emotional
and psychological support. The relationship must have begun with the consent
of the biological mother. It must not have been temporary and there must have
been sufficient time for the nonbiological father to become the functioning father.
Syl. pt. 6, Simmons, 190 W. Va. 350, 438 S.E.2d 530. Defining the concept of functioning father, we recognized that the duration of the relationship between the child and the functioning father assists a court's determination as to the extent of the child's bond with the functioning father. Id., 190 W. Va. at 359, 438 S.E.2d at 539 (citations omitted). An additional consideration is 'the need for consent to ensure that the existing legal parent has cooperated with or encouraged a man to assume a parenting role[.]' Id., 190 W. Va. at 359 n.14, 438 S.E.2d at 539 n.14 (quoting J.H. Anderson, The Functioning Father: A Unified Approach to Paternity Determinations, 30 J. Fam. L. 847, 865-67 (1992)).
We also stated in Simmons that [w]e believe the principle of a functioning father is consistent with our previous cases and, particularly, In Interest of Brandon L.E., 183 W. Va. 113, 394 S.E.2d 515 (1990), where we used the term 'psychological parent.' 190 W. Va. at 360, 438 S.E.2d at 540 (footnote omitted). Recognizing this similarity, we further acknowledged that
[a] psychological parent is one who, on a continuing, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, . . . adoptive, foster, or common-law . . . parent, or any other person. There is no presumption in favor of any of these after the initial assignment at birth[.]
190 W. Va. at 360 n.15, 438 S.E.2d at 540 n.15 (quoting Joseph Goldstein et al., Beyond the Best Interests of the Child 98 (1979)). Accord Overfield v. Collins, 199 W. Va. 27, 37 n.8, 483 S.E.2d 27, 37 n.8 (1996). (See footnote 11)
Most recently, in In re Jonathan G.,
198 W. Va. 716, 482 S.E.2d 893 (1996), we considered the role that foster
parents may play in abuse and neglect proceedings in view of the significant
relationship they have developed with the child for whom they have cared. We
concluded that, as a result of the bonds that have formed, foster parents are,
subject to the court's discretion, entitled to participate in such proceedings.
In this regard, we held that [t]he level and type of participation [by
the foster parents] in such cases is left to the sound discretion of the circuit
court with due consideration of the length of time the child has been cared for
by the foster parents and the relationship that has developed[.] Syl. pt.
1, in part, id. We ultimately concluded that, as a result of the strong
emotional attachment the child had to the foster parents, who had served as his
custodians from the time he was ten months old until he was over four years old,
they were entitled to visitation with the child, provided such visitation was
in the boy's best interests.
From our prior decisions, we can glean several common threads as to the meaning of psychological parent status, both from our specific recognition of this term and from our cases involving persons who have not been specifically denominated as psychological parents but who nevertheless have established such a meaningful relationship with a minor child so as to be entitled to greater protection under the law than would ordinarily be afforded to one who is not the biological or adoptive parent of the child. Stitching together these common threads, we find that the most crucial components of the psychological parent concept are the formation of a significant relationship between a child and an adult, (See footnote 12) who may be, but is not required to be, related to the child biologically or adoptively; (See footnote 13) a substantial temporal duration of the relationship; (See footnote 14) the adult's assumption of caretaking duties for and provision of emotional and financial support to the child; (See footnote 15) and, most importantly, the fostering and encouragement of, and consent to, such relationship by the child's legal parent or guardian. (See footnote 16) Moreover, our prior decisions suggest that one may attain psychological parent status either while living in the same household as the child and his/her legal parent or guardian (See footnote 17) or while residing with the child in the absence of the child's legal parent or guardian. (See footnote 18) Accordingly, we hold that a psychological parent is a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child's psychological and physical needs for a parent and provides for the child's emotional and financial support. The psychological parent may be a biological, adoptive, or foster parent, or any other person. The resulting relationship between the psychological parent and the child must be of substantial, not temporary, duration and must have begun with the consent and encouragement of the child's legal parent or guardian. To the extent that this holding is inconsistent with our prior decision of In re Brandon L.E., 183 W. Va. 113, 394 S.E.2d 515 (1990), that case is expressly modified. (See footnote 19)
With the announcement of this holding we also wish to make it abundantly clear that the mere existence of a psychological parent relationship, in and of itself, does not automatically permit the psychological parent to intervene in a proceeding to determine a child's custody pursuant to W. Va. Code § 48-9-103(b). Nothing is more sacred or scrupulously safeguarded as a parent's right to the custody of his/her child.
In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.
Syl. pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). Accord Syl., Whiteman
v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960) (A parent
has the natural right to the custody of his or her infant child, unless the
parent is an unfit person because of misconduct, neglect, immorality, abandonment
or other dereliction of duty, or has waived such right, or by agreement or
otherwise has transferred, relinquished or surrendered such custody, the right
of the parent to the custody of his or her infant child will be recognized
and enforced by the courts.). See also Honaker, 182 W. Va.
at 452, 388 S.E.2d at 325 (stating that [a]lthough we recognize the attachment
and secure relationship between the child and her psychological parent
stepfather, such bond cannot alter the otherwise secure
natural rights of a parent, namely the child's biological father). But see Syl. pt. 6, in part, Lemley v. Barr, 176 W. Va. 378, 343 S.E.2d 101 (1986) (The law does not recognize any absolute right in any person or claimant to the custody of a child.); Syl. pt. 3, in part, State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948) ([T]he court is in no case bound to deliver the child into the custody of any claimant and may permit it to remain in such custody as its welfare at the time appears to require.). For this reason, the limited rights of a psychological parent cannot ordinarily trump those of a biological or adoptive parent to the care, control, and custody of his/her child. Nonetheless, as we have alluded to throughout the course of this opinion, the case we presently have before us does not comport with the usual facts attending a custodial determination under W. Va. Code § 48-9-101, et seq. Consequently, we hold that, in exceptional cases and subject to the court's discretion, a psychological parent may intervene in a custody proceeding brought pursuant to W. Va. Code § 48-9-103 (2001) (Repl. Vol. 2004) when such intervention is likely to serve the best interests of the child(ren) whose custody is under adjudication. (See footnote 20)
Applying these principles to the case sub judice, we first must determine whether Tina B. is Z.B.S.'s psychological parent. Without a doubt, she is. From the moment of his birth, Tina B. resided in Christina S.'s household with Z.B.S. and parented him as if he were her own biological child. Although Christina S. was the child's primary caretaker, Tina B. nevertheless also attended to his needs and provided financial as well as emotional support for the child. In fact, the circuit court, adopting the findings of the family court, specifically so found:
evidence shows that Tina B[.] and Christina S[.] planned the birth of Z.B.S.
and enlisted the involvement of Clifford K[.] only for the purpose of impregnating
Christina S[.] It was their apparent intention together to raise Z.B.S. . . .
as a family unit . . . . [A] strong parent-child
bond exists between Z.B.S. and Tina B[.]
Apparently no relationship existed between Clifford K[.] and Christina S[.] before conception of Z.B.S. Although he has had contact with Z.B.S. since the child's birth, he has performed limited care-giving functions and his planned as well as actual involvement with the child has been limited. Clifford K[.] would not have sought primary custody of Z.B.S. but for the death of Christina D. S[.] in June 2002. The bond between Clifford K[.] and Z.B.S. is not as strong as the bond between Z.B.S. and Tina B[.]
. . . .
Prior to the death of Christina S[.] on June 1, 2002, Christina S[.] was the primary custodian and caretaker of Z.B.S. and of the parties to this matter, Tina B[.] provided the most caretaking services to Z.B.S. prior to June 1, 2002.
(Emphasis added). The circuit court also noted that the child resided
with the biological mother and [Tina] B[.] from birth until the biological
mother's untimely death, when the child was approximately two and a half years
These findings are further supported by the recommendations of the child's guardian ad litem, who similarly observed that
as an intended consequence of
their intimate relationship, Tina and Chris [Christina S.] enlisted the assistance
of the Petitioner Clifford K[.] (hereafter Cliff) to impregnate Chris,
so that Tina and Chris could have a child together. . . .
In April, 1999, Chris's pregnancy was confirmed. . . .
From April, 1991 until December, 1999, Tina accompanied Chris to almost all prenatal medical appointments. Z[.B.S.] was born on December 25, 1999. . . . Tina, Chris, and Z[.B.S.] . . . continued to reside together in Clay County as a family unit.
. . . Tina kept Z[.B.S.] the vast majority of the time after his first year of life while Chris was at work. . . .
. . . [A] significant bond and affection exists between Tina and Z[.B.S.] . . .
. . . .
But for Chris' tragic death in June of 2002, . . . Chris and Tina would have continued to raise Z[.B.S.] as they had from his birth on December 25, 1999 until June 1, 2002. . . .
. . . [Tina B.] has been Z.[B.S.]'s psychological parent since the date of his birth on December 25, 1999. She, along with Chris (until her death), has lived with Z[.B.S.] since his birth and she has performed all of the traditional caretaking functions of a parent as well as having financially supported him during his life. And the fact that she served as Z[.B.S.]'s parent was not by accident. Rather, it was by design, and by the agreement of Chris, Cliff, and Tina.
. . . Z[.B.S.] has clearly resided with Tina for a significant period of time such that Tina (by design and in practice) served as Z[.B.S.]'s psychological parent . . . .
. . . Tina was and is Z.[B.S.]'s second mother, by
design and in actuality. . . .
Thus, there unquestionably exists a relationship of significant duration between
Tina B. and Z.B.S. in which Tina B. has provided for the physical, psychological,
financial, and emotional needs of Z.B.S. and such that the child regards Tina
B. as a parental figure in his life.
Moreover, Christina S. not only consented to the formation of this strong relationship between Tina B. and Z.B.S.; Christina S. actively fostered and nurtured this bond. In the same manner, Clifford K. also acquiesced in the development of secure ties between Z.B.S. and Tina B., and, like Christina S., purposefully encouraged such a familial relationship. Having satisfied the above-enumerated criteria, we are convinced that Tina B. is the psychological parent of Z.B.S.
Having established Tina B.'s relationship to the subject child, we next must determine whether her status as a psychological parent entitles her to intervene in proceedings seeking a determination of his custody. Under the unique facts and circumstances of this case, we agree with the family court's conclusion that Tina B. is a proper party to these proceedings and disagree with the contrary decision reached by the circuit court. Although we caution that not every psychological parent is, by virtue of such status, entitled to intervene in custodial proceedings pursuant to W. Va. Code § 48-9- 103(b), the very unusual and extraordinary facts of this case warrant extending that privilege to Tina B. Not only do the facts support such a finding herein, but the best interests of the subject child demand such a result. The best interests of Z.B.S. also militate in favor of an award of custody to Tina B., consistent with the result obtained by the Family Court of Clay County.
At the forefront of our decision is the counsel of the Legislature that the aim of the governing statute is to secure the best interests of the children whose custody is to be determined and to promote stability and certainty in their young lives. The primary objective of this article is to serve the child's best interests, by facilitating . . . [s]tability of the child . . . [and] . . . [c]ontinuity of existing parent-child attachments[.] W. Va. Code §§ 48-9-102(a)(1,3). This appreciation for stability in a child's life has also been a frequent refrain of this Court. [S]tability in a child's life is a major concern when formulating custody arrangements. Snyder v. Scheerer, 190 W. Va. 64, 72-73, 436 S.E.2d 299, 307-08 (1993) (per curiam) (citation omitted). Therefore, in cases where a child has been in one home for a substantial period, '[h]is environment and sense of security should not be disturbed without a clear showing of significant benefit to him.' In re Brandon, 183 W. Va. at 121, 394 S.E.2d at 523 (quoting Lemley v. Barr, 176 W. Va. 378, 386, 343 S.E.2d 101, 110 (1986) (internal quotations and citations omitted)). We would be remiss if we did not also reiterate that [a] child has rights, too, some of which are of a constitutional magnitude. Lemley, 176 W. Va. at 386, 343 S.E.2d at 109 (internal quotations and citations omitted). Among these, [a] child has a right to continued association with individuals with whom he has formed a close emotional bond . . . provided that a determination is made that such continued contact is in the best interests of the child. Syl. pt. 11, in part, In re Jonathan, 198 W. Va. 716, 482 S.E.2d 893. Accord Snyder v. Scheerer, 190 W. Va. at 72, 436 S.E.2d at 307 (recognizing the right of a child to continued association with those individuals to whom the child has formed an attachment). In this regard, [t]he length of time that the child has remained with [such individual(s)] is a significant factor to consider in determining this issue. In re Jonathan, 198 W. Va. at 736 n.41, 482 S.E.2d at 913 n.41.
The tragic events that have led to the circumstances in which Z.B.S. currently finds himself have resulted in litigation over his permanent custodial placement only because too many people love this little boy. Oh that all of the children whose fates we must decide would be so fortunate as to be too loved. That said, it is now up to this Court to ascertain whether the family court correctly determined that Z.B.S.'s best interests would be served by awarding his custody to Tina B. First and foremost, we have determined that Tina B. is Z.B.S.'s psychological parent, with all the bonds, attachments, caretaking functions, and responsibilities that such status entails. In reaching this decision, we have found that both of the child's biological parents not only acquiesced in, but actively fostered, the relationship that has developed between Tina B. and Z.B.S.
We also are persuaded by the current situation into which the child has been thrust upon the tragic death of his mother: the other parental figure with whom he has continuously resided, Tina B., is eager to legally assume his custody and to continue attending to his daily needs, and his biological father, his sole surviving legal parent, readily agrees and enthusiastically consents to such an arrangement. To reunite Tina B. and Z.B.S. through a formal custodial arrangement would be to secure the familial environment to which the child has become accustomed and to accord parental status to the adult he already views in this capacity. Simply stated, an award of custody to Tina B., having found no indication that she is unfit (See footnote 21) to serve as the minor's custodian, would promote Z.B.S.'s best interests by allowing continuity of care by the person whom he currently regards as his parent and would thus provide stability and certainty in his life. (See footnote 22) See Syl. pt. 11, In re Jonathan, 198 W. Va. 716, 482 S.E.2d 893; In re Brandon, 183 W. Va. at 121, 394 S.E.2d at 523; Lemley v. Barr, 176 W. Va. at 386, 343 S.E.2d at 110. (See footnote 23)
While we applaud the efforts of the maternal
grandparents of Z.B.S. to secure his guardianship upon his mother's death to
ensure that his care, custody, and control would not be left to chance, their
rights to and relationship with Z.B.S., while significant and substantial, simply
are not on par with those of Tina B. under the facts and circumstances of this
case. Cf. Rozas v. Rozas, 176 W. Va. 235, 238, 342 S.E.2d
201, 205 (1986) (Absent a showing that a natural parent is unfit, a natural
parent's right to custody outstrips that of a grandparent. (citations omitted)); Leach
v. Bright, 165 W. Va. 636, 638, 270 S.E.2d 793, 794 (1980) (per curiam)
(The law in this jurisdiction has long been that the fit natural parent's
right to custody of his or her child is paramount to that of any third party,
including a grandparent. (citation omitted)). See also Syl. pt.
3, State ex rel. David Allen B. v. Sommerville, 194 W. Va. 86, 459
S.E.2d 363 (1995) (holding that, with regard to establishment of paternity, rights
of grandparent are more limited than those of alleged biological parent); Frame
v. Wehn, 120 W. Va. 208, 212, 197 S.E. 524, 526 (1938) (finding that
rights of grandparents were not coextensive with those of parents in guardianship
For these reasons, then, we find that Tina B. was entitled to participate in Z.B.S.'s custodial proceedings. Accordingly, we reverse the December 2, 2003, ruling of the Clay County Circuit Court which denied Tina B. permission to participate in Z.B.S.'s custodial determination. Furthermore, remanding this case for additional proceedings to determine Z.B.S.'s permanent custody would be futile. The family court has consistently held that the best interests of Z.B.S. dictate that his custody be awarded to Tina B., which finding is consistent with the guardian ad litem's recommendations and the psychological evidence presented below. Moreover, the circuit court has adopted these findings of fact in rendering its decision in this matter which differs from the conclusions of the family court solely on the basis of the application of the law to the facts of this case. From our consideration of this matter, we agree with the family court's assessment of the evidence and the circuit court's adoption of those findings. Simply stated, the child's best interests would best be served by awarding permanent custody of Z.B.S. to Tina B. Thus, we reinstate the July 25, 2003, decision of the Clay County Family Court awarding custody of the minor child Z.B.S. to Tina B. (See footnote 24)
In closing, we wish to restate a cautionary admonition we first intimated in Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989), and later reiterated in Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996):
The work that lies ahead for both [adults] is not without inconvenience and sacrifice on both sides. Their energies should not be directed even partially at any continued rancor at one another, but must be fully directed at developing compassion and understanding for one another, as well as showing love and sensitivity to the child[']s feelings at a difficult time in all their lives.
Overfield, 199 W. Va. at 38, 483 S.E.2d at 38 (quoting Honaker,
182 W. Va. at 453, 388
S.E.2d at 326-27). This same wise counsel applies with equal force to the parties in this case, Tina B. and Paul S. We only hope that they and their respective families can let bygones be bygones and now interact amicably for the sake of Z.B.S.