In re the marriage/children of: W. Shane H. v. Heather H.
16-0729
| W. Va. | Oct 23, 2017Background
- Parties divorced after separation; two minor children. A July 3, 2012 Agreed Temporary Order adopted petitioner’s parenting plan (every other weekend + one evening per week) with respondent’s modifications for holidays; plan was incorporated into a July 18, 2013 Final Order of Divorce.
- The Final Order was later vacated and the July 3, 2012 Agreed Temporary Order was reinstated pending equitable distribution; petitioner sought to increase parenting time via a new plan.
- Family Court denied petitioner’s motion to modify the temporary order, finding petitioner failed to meet the burden under W. Va. Code § 48-9-203; a GAL was appointed and an evidentiary hearing occurred.
- Petitioner appealed to the Circuit Court, arguing (1) there was no agreed permanent parenting plan under § 48-9-201(a), (2) the courts failed to allocate custody according to the objectives in § 48-9-206, and (3) there was a substantial change in circumstances warranting modification.
- The Circuit Court affirmed, concluding that even if no agreement existed, the allocation followed § 48-9-206 (preseparation caretaking allocation), and that petitioner failed to show a change in circumstances making modification in the children’s best interests.
Issues
| Issue | Petitioner (W. Shane H.) | Respondent (Heather H.) | Held |
|---|---|---|---|
| Whether parties had a binding permanent parenting agreement under W. Va. Code § 48-9-201(a) | No agreement existed; court should not treat temporary plan as permanent | The parties had operated under the plan for years and it reflected their agreement | Court accepted lower court’s finding of an agreement for purposes of order; alternatively applied § 48-9-206 and affirmed result |
| Whether custody allocation should have been determined by § 48-9-206 objectives (including goals (4) and (6)) rather than by the alleged agreement | Lower courts failed to consider objectives (protecting child welfare re attachments; practicality/stability) and should adopt petitioner’s plan | Allocation mirrored preseparation caretaking (respondent was primary caretaker); objectives didn’t require departure | Court held the allocation was consistent with § 48-9-206 (preseparation caretaking) and petitioner did not show objectives required a different allocation |
| Whether there was a substantial change in circumstances warranting modification of parenting time (Skidmore standard) | Children aged and bonded more to petitioner; petitioner’s business changes give him more availability — this is a substantial, modifying change | Changes (aging, bonding, work) were anticipated or insufficient; petitioner’s conduct (missed appointments, lack of involvement) undermined best-interest showing | Court held petitioner did not prove a substantial change that made modification necessary for the children’s best interests; modification denied |
Key Cases Cited
- Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (W. Va. 2004) (standard of review for circuit-court review of family-court orders)
- Skidmore v. Rogers, 229 W.Va. 13, 725 S.E.2d 182 (W. Va. 2011) (change in child’s age can be a substantial change; modification requires it be necessary for the child’s best interests)