745 S.E.2d 204
W. Va.2013Background
- Two children, T.C. (10) and M.C. (6), were involved in a custody dispute between the divorced Colorado parents.
- Mother initially had primary custody with father visitation; relocation to West Virginia occurred in 2010 to facilitate his involvement.
- Father filed a West Virginia modification petition after the move; the family court and circuit court granted/affirmed a modification awarding primary custody to father.
- Experts (Dr. Krieg and Dr. Shade) opined it would be in the children's best interests for father to have primary custody, based in part on the children's preferences.
- The circuit court acknowledged concerns about the stepmother’s childcare role and the mother’s working schedule, but upheld the family court’s modification order.
- The West Virginia Supreme Court reversed, holding no substantial change in circumstances and that modification did not serve the children’s best interests, remanding for entry of an order restoring primary custody to the mother.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relocation constituted a substantial change in circumstances | Perry alleged no substantial change due to relocation aiding visitation | H.C. argued relocation created change in circumstances | Relocation did not constitute a substantial change in circumstances |
| Whether the children's preferences supported modification | Mother argued preferences were not decisive | Father relied on children's expressed desire to live with him | Children’s preferences considered but not sole basis; modification not warranted by preferences here |
| Whether modification served the best interests of the children | Modification would not benefit children; mother fit | Modification would promote stable environment with father | Modification did not materially promote the welfare of the children; best interests favored mother |
| Whether the stepmother/childcare considerations were improperly relied upon | Stepmother’s role and external childcare were improper factors | These factors arose from custody arrangements and caregiving arrangements | Court erred in considering stepmother’s caregiving as a basis for modification; not listed as valid justification in statute |
Key Cases Cited
- Carr v. Hancock, 216 W. Va. 474 (2004) (standard of review for abuse of discretion and de novo questions of law)
- Skidmore v. Rogers, 229 W. Va. 13 (2011) (substantial change in circumstance; best interests guidance)
- Cloud v. Cloud, 161 W. Va. 45 (1977) (change in custody requires change to promote welfare of the child)
- Nichols v. Nichols, 160 W. Va. 514 (1977) (custody decisions are within court’s sound discretion; best interests paramount)
- Carter v. Carter, 196 W. Va. 239 (1996) (custody decisions guided by best interests of the child)