Brittany S. v. Amos F.
232 W. Va. 692
W. Va.2012Background
- Consolidated custody actions concern minor A.F., born 2004; prior 2007 order gave mother primary residence and father visitation.
- In 2009 maternal great-grandparents sought guardianship; ex parte order temporarily placed custody with great-grandparents; father sought primary custody.
- Sept 21, 2009 hearing; mother appeared pro se; request for continuance to obtain counsel denied.
- GAL Dec 2009 recommended father have primary custody with mother sharing parenting time; great-grandparents favored mother.
- Dec 4, 2009 hearing; great-grandparents withdrew petition; court treated father's response as counterclaim; procedural concerns noted.
- Circuit court affirmed family court; WV Supreme Court reversed due process violations, stayed custody transfer, remanded for full evidentiary hearing on best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether custody modification had proper pleading and notice. | Mother: no proper petition or notice; due process violated. | Father: modification properly before court; notice adequate. | Due-process violation; orders reversed; transfer stayed; remand for hearing. |
| Whether modification complied with statutory requirements for custody changes. | Mother: no substantial change or proper petition. | Father: substantial changes proven; modification warranted. | Procedural and substantive defects invalidated modification; remand warranted. |
| Whether remand for evidentiary hearing is appropriate to determine best interests. | Mother: due process and stability concerns require delay or dismissal. | Father: needs review of best interests with proper procedure. | Remand for full evidentiary hearing on best interests; custody transfer stayed. |
Key Cases Cited
- Czaja v. Czaja, 208 W.Va. 62, 537 S.E.2d 908 (2000) (modification requires petition, hearing, and showing of changed circumstances)
- State ex rel. Chris Richard S. v. McCarty, 200 W.Va. 346, 489 S.E.2d 503 (1997) (due process requires reasonable notice before modifying custody)
- Crone v. Crone, 180 W.Va. 184, 375 S.E.2d 816 (1988) (due process rights prior to modification of custody)
- Acord v. Acord, 164 W.Va. 562, 264 S.E.2d 848 (1980) (notice and opportunity to be heard in custody matters)
- Allen v. Allen, 173 W.Va. 740, 320 S.E.2d 112 (1984) (child welfare governs custodial discretion; avoid instability)
- In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991) (unjustified delays harm child; priority to resolve custody.)
- James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991) (custody matters require expeditious resolution to protect child)