Susan M. v. Timothy Z., 16-0998

Background

Parents (Mother Susan M. and Father Timothy Z.) share custody of A.Z. (b. 2011); Mother was designated residential/custodial parent by family-court order and a visitation/holiday schedule was set.
Mother filed a petition to modify and for contempt alleging Father violated the parenting plan (improper holiday visitation, cutting child’s hair, leaving child with third parties/overnights, refusing to provide contact info, locking child in a room, denying birthday contact, and generally excluding Mother from decision-making).
Father answered, admitted cutting the hair, filed a counter-petition accusing Mother of interference and alleging mental instability, and requested a mental evaluation and potential sole custody if Mother were found mentally ill.
Mother moved for appointment of a guardian ad litem (GAL) to investigate Father’s allegations and to interview the child; family-court hearing occurred April 14, 2016, lasting about 15 minutes; parties agreed to mediate.
Family court denied modification and the GAL request (no substantial change in circumstances; insufficient evidence of unfitness or specific incidents); Mother’s reconsideration was denied; the circuit court affirmed; Supreme Court of Appeals of West Virginia issued memorandum decision affirming.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether family court abused discretion by not appointing a guardian ad litem	Mother: Father’s allegations about her mental instability, plus Father leaving child with third parties and alleged locking incident, warrant a GAL to protect the child’s interests	Father: Allegations were insufficiently specific; he did not seek GAL or modification based on Mother’s mental state; child’s time with relatives was known and not shown unfit	Court: No abuse of discretion—Mother failed to proffer specific evidence of unfitness or particular incidents; GAL not warranted
Whether family court denied adequate hearing or blocked evidence / violated Rule 50 procedures	Mother: Hearing was too short, no scheduling order, court refused to take evidence, preventing presentation for modification	Father: Parties had opportunity to present evidence; Mother did not call witnesses or testify and did not request continuance or object to procedure	Court: No error—transcript shows Mother did not attempt to present evidence or seek continuance; parties had ample oral argument; waiver principles apply
Whether there was a substantial change in circumstances to justify modification of the parenting plan	Mother: Child’s anxiety, alleged locking, frequent placement with third parties, and communication/holiday disputes constitute substantial change not anticipated in prior order	Father: Disputes are routine communication/clarification issues and matters anticipated or resolvable by mediation	Court: No abuse of discretion—court reasonably found no substantial, unanticipated change; issues better handled in mediation
Whether circuit court erred in affirming family court’s denial of reconsideration	Mother: New events post-mediation created grounds for reconsideration and modification	Father: No new, compelling evidence; family court addressed concerns and ordered mediation	Court: Affirmed—reconsideration denial proper given record and lack of new, dispositive evidence

Key Cases Cited

Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004) (standard of review for family-court findings and circuit-court review)
Skidmore v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011) (modification of parenting plan requires substantial change in circumstances not anticipated in original order and must serve child’s best interests)
Maples v. West Virginia Dep’t of Commerce, 197 W. Va. 318, 475 S.E.2d 410 (1996) (litigants may not silently acquiesce to error then raise it on appeal)
Hopkins v. DC Chapman Ventures, Inc., 228 W. Va. 213, 719 S.E.2d 381 (2011) (same principle regarding waiver and contributing to alleged error)