CLIFFORD K. and Tina B., Petitioners Below TINA B., Petitioner Below, Appellant, v. PAUL S., in His Official Capacity as Next Friend and Guardian of Z.B.S., an Infant, Respondent Below, Appellee.
No. 31855
Supreme Court of Appeals of West Virginia
June 17, 2005
619 S.E.2d 138 | 217 W. Va. 625
DAVIS, Justice
Submitted March 8, 2005. Dissenting Opinion of Justice Maynard July 11, 2005. Concurring Opinion of Justice Starcher, July 14, 2005. Concurring and Dissenting Opinion of Justice Benjamin Aug. 8, 2005.
Donald K. Bischoff, Summersville, West Virginia, Attorney for the Appellee.
Jeffrey L. Hall, Diana, West Virginia, Attorney for Amicus Curiae Jeffrey L. Hall in his capacity as Guardian ad Litem for the minor child, Z.B.S.
Leslie Cooper, American Civil Liberties Union, Lesbian and Gay Rights Project, New York, NY, Terri S. Baur, American Civil Liberties Union of West Virginia Foundation, 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.
Mary Downey, Charleston, West Virginia, Gregory R. Nevins, Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, Shannon Minter, Courtney Joslin, National Center for Lesbian Rights, San Francisco, CA, for Amici Curiae Lambda Legal Defense and Education Fund, Inc., and National Center for Lesbian Rights.
DAVIS, Justice:
The appellant herein and petitioner below, Tina B.,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
I.
FACTUAL AND PROCEDURAL HISTORY
Tragically, Christina S. died as a result of injuries she sustained in a motor vehicle accident on June 1, 2002. On that same day, while Tina B. was still hospitalized as a result of injuries she had sustained in the aforementioned accident, Paul S., the father of Christina S. and the maternal grandfather of Z.B.S., assumed physical custody of the child. Afterwards, on June 10, 2002, Paul S. sought the office of and was appointed guardian of Z.B.S. by the Clay County Commission as a result of Christina S.‘s death. Thereafter, Clifford K. and Tina B. jointly filed a petition for custody of Z.B.S. on July 16, 2002; although Clifford K. was a party to the petition for custody, he apparently did so on Tina B.‘s behalf and not because he sought custody of Z.B.S. for himself.3
By Temporary Order entered September 23, 2002, the Family Court of Clay County awarded equal visitation with Z.B.S. to both Tina B. and Clifford K., and granted Paul S. temporary custody of Z.B.S. Upon the conclusion of this hearing, a guardian ad litem for the minor child was appointed and extensive psychological evaluations of all parties were conducted. The guardian ad litem recommended that sole custody of Z.B.S. be awarded to Tina B. because she is his “second mother, by design and in actuality,” with reasonable visitation by Clifford K., Paul S., and Paul S.‘s wife, who is Christina S.‘s mother and Z.B.S.‘s maternal grandmother. In light of the guardian ad litem‘s recommendations and the psychological evaluations, the family court, by Final Order entered July 25, 2003, found that “Tina B[.] has standing to seek custody of Z.B.S.as a ‘psychological parent’ due to the significant caretaking services she provided prior to the death of Christin[a] S[.] and the strong parent-child bond that now exists between Tina B[.] and Z.B.S.” The court then awarded primary custody of Z.B.S. to Tina B. based upon Tina B.‘s status as the child‘s psychological parent and because such a placement served the child‘s best interests by promoting “[t]he stability of the child and the continuity of existing parent-child relationships.” Shared custody by way of visitation rights, denominated “custodial time,” was awarded to both Clifford K. and Paul S. and his wife.
Paul S. appealed the family court‘s adverse ruling to the Circuit Court of Clay County. By Order of Remand entered December 2, 2003, the circuit court adopted the family court‘s findings but determined, instead, that “[Tina] B[.] does not have standing to seek custody of the infant child” under
Following the circuit court‘s order awarding temporary custody of Z.B.S. to Paul S., the family court, by order entered January 6, 2004, refused Tina B.‘s motion to stay the circuit court‘s order and continued custody in Paul S. Thereafter, the family court, on remand, entered a Permanent Custody Order on March 2, 2004, recognizing the circuit court‘s ruling finding that Tina B. did not have standing to seek custody of Z.B.S.;
During the pendency of the family court remand proceedings and Paul S.‘s ensuing appeal to the circuit court, Tina B. petitioned this Court for appeal from the Clay County Circuit Court‘s December 2, 2003, first Order of Remand which had directed the family court to determine who, as between Clifford K. and Paul S., should be granted permanent custody of Z.B.S. By order entered September 2, 2004, this Court granted Tina B.‘s petition for appeal; stayed the circuit court‘s December 2, 2003, and May 3, 2004, orders transferring custody to and maintaining custody in Paul S.; and reinstated the family court‘s July 25, 2003, Final Order awarding primary custody to Tina B.
II.
STANDARD OF REVIEW
The sole issue presented for resolution by the instant appeal is whether the circuit court properly interpreted
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 review-ing 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 adminis-
III.
DISCUSSION
On appeal to this Court, Tina B. challenges the circuit court‘s decision concluding that she does not have standing to seek custody of the minor child, Z.B.S., who has resided with her since his birth and whom she has raised and cared for, with her now-deceased partner, since that time. In so ruling, the circuit court determined that Tina B. did not meet any of the criteria enumerated in
At issue in this proceeding is the solitary question of whether Tina B. is statutorily authorized to seek custody of Z.B.S. To determine this issue, it is necessary to examine not only the statute governing which parties are entitled to participate in custody proceedings,
Where, however, the statute‘s terms are less clear, statutory construction, rather than strict application, is appropriate. In such instances, “[j]udicial interpretation of a statute is warranted only if the statute is ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative intent.” Syl. pt. 1, Ohio County Comm‘n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983). Accord Syl. pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992) (“A statute that is ambiguous must be construed before it can be applied.“). Furthermore, statutory construction is necessary to ascertain the meaning of undefined words and phrases. “In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.” Syl. pt. 1, Miners in Gen. Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982).
Applying the aforementioned analytical framework, we first consider the Legisla-
(a) The primary objective of this article is to serve the child‘s best interests, by facilitating:
(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 parent;
(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 custo-dy 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,
(a) 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.
The parties disagree, however, as to which of the remaining subsections of
A. W. Va.Code § 48-9-103(a)(1)
Tina B. contends that she is the legal parent of Z.B.S., and, thus, she is entitled to seek his custody pursuant to
In stating who may be a child‘s “legal parent,” the Legislature has left undefined the qualification described as “other recognized grounds.” See
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.”
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.].”
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.
“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.
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
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.”
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.”
A 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.
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
“‘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
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 par-
B. W. Va.Code § 48-9-103(b)
Despite her inability to participate in the custodial determinations regarding Z.B.S. as the child‘s legal parent, Tina B. may nevertheless still be granted permission to intervene in such custodial proceedings if she satisfies the requirements of
[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
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
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
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
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 (1996).
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 peri-
od 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.
A 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).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,12 who may be, but is not required to be, related to the child biologically or adoptively;13 a substantial temporal duration of the relationship;14 the adult‘s assumption of caretaking duties for and provision of emotional and financial support to the child;15 and, most importantly, the fostering and encouragement of, and consent to, such relationship by the child‘s legal parent or guardian.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 par-
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
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
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:
The 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 old.”
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, 1999 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
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[.]”
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 psycho-
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 unfit21 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.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 110.23
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 grandparents 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 proceedings).
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
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.
IV.
CONCLUSION
For the foregoing reasons, the December 2, 2003, decision of the Circuit Court of Clay County is hereby reversed.
Reversed.
Justice STARCHER concurs and reserves the right to file a concurring opinion.
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.
MAYNARD, Justice, dissenting:
(Filed July 11, 2005)
I am dismayed that this Court has written an opinion that is so anti-family. The majority‘s decision in this case places a child in a single-parent home with a person who is not a biological relative even though a two-parent home consisting of the child‘s biological relatives-his grandparents-is available. I am simply at a loss to understand the majority‘s reasoning, and therefore, I dissent.
Contrary to the majority, I do not believe that Tina B. had standing to seek custody of Z.B.S. pursuant to
What is clear to me is that it is the province of the Legislature, not this Court, to extend custodial rights to the same sex partner of a biological parent. In that regard, virtually all of our law with respect to family matters is statutory in nature. Since divorce and custody are purely statutory and the common law is not implicated, this Court must look to the Legislature to make or change family law. It is improper for this Court to make new law in this area. While the Legislature recodified our family law statutes in 2001, it did not address the right of same sex partners of biological parents to seek custody and visitation upon the dissolution of their relationships through death or separation. The majority, however, has done so with this case by construing language in
I am afraid that the majority has headed down a slippery slope with its decision in this case. I say this because I think that the following scenario is likely to be presented to courts all over West Virginia. Bob and Jane get married, have a child, and soon after, they divorce. Jane and the child then begin living with Freddy, but Jane does not marry Freddy. After Jane and her child have lived with Freddy for three or fours years, Jane dies. Can Freddy then claim that he is the “psychological parent” of the child with standing to litigate and oppose biological father Bob‘s right to custody? I believe the majority‘s decision in this case creates that right for Freddy. Furthermore, it may also allow Freddy to sue Jane for custody of the child if they merely separate and she and the child move out. If Freddy could sue one biological parent for custody, why not the other? After all, if Tina B. is a psychological parent, then Freddy is also a psychological parent, and there is nothing to prevent him from having standing to sue Jane for custody. Pursuant to the majority‘s decision, Freddy clearly has standing, that is unless the majority intended this case to give standing only to same-sex partners of biological parents. However, the majority did not say such was the case so it must also apply to and give standing to heterosexual partners as well.
I certainly sympathize with the parties in this case. They suffered a tragic loss and each is attempting to fulfill what they believe were Christina S.‘s wishes for Z.B.S. I also recognize that this Court has always resolved custody disputes by considering first and foremost the best interests of the child. See, e.g., Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989) (“[T]he best interests of the child is the polar star by which decisions must be made which affect children.“). That is the precedent of this Court, it should be followed, and it is the right thing to do. However, in order to achieve what it believes is in the best interests of Z.B.S., the majority has resorted to legislating a new class of persons who will now have standing to take part in custodial disputes even though they have no biological or other statutorily recognized right to do so. Although families in our society today have taken on new forms, many have not yet been recognized by our Legislature. In my opinion, this Court should not impose its judgment where the Legislature has not spoken.
Surprisingly, the majority has actually chosen to ignore the guidance the Legislature has provided on this issue. In that regard,
While Z.B.S‘s relationship with Tina B. should be respected and allowed to continue, I do not believe there was any statutory basis for this Court to place him in her custody. Like the circuit court below, I believe that the question of whether to extend the concept of “psychological parent” to reach these circumstances is a question better left to the Legislature in its capacity as a voice of the people of the State of West Virginia. Accordingly, I respectfully dissent to the majority‘s decision in this case.
STARCHER, J., concurring:
(Filed July 14, 2005)
I write separately to applaud the actions of the family court judge in this case. While bad facts often make bad law, in this case the family court judge followed the polar star of any child custody case and determined that it was in Z.B.S.‘s best interest that Tina B. have custody.
The dissenting opinion of Justice Maynard suggests that because Z.B.S. shares some percentage of genetic material with Paul S., then Paul S. is legally entitled to his care, custody, and any income which might result from Z.B.S.‘s lawsuit arising from the death of his mother or his social security benefits. This dissent casts the majority‘s decision to support the family court judge as “anti-family.” Nothing could be further from the truth.
A family is a collection of people composed of parents and children.1 But not all families are composed of parents and children who are related by blood. Many families have stepparents, stepchildren, foster children, adopted children, or are composed of guardians and wards. We would never go so far as to say these latter compilations founded on love are not “families,” and, more importantly, we should never say that mere blood relations should trump a relationship based upon love and trust.
In this case, Tina B. was a “mother” to Z.B.S. Tina B. shared in the decision to bring Z.B.S. into this world, helped plan the birthing of Z.B.S., helped create a nursery in which to care for Z.B.S. upon his arrival, and also “mothered” Z.B.S. from birth until the death of his biological mother, Christina S.
Time and again cases come before courts where an adult has voluntarily taken on the responsibility for raising a child to whom they are not related in any fashion. After a period, the child and adult usually form a parent-child psychological bond. A court cannot and would not allow a stranger to the child to intervene and take that child away from a biological parent who had raised the child, and by the same reasoning, should not allow a stranger to the child even if genetically related to take the child away from a psychological parent.
I therefore concur with the majority opinion.
BENJAMIN, Justice, concurring, in part, and dissenting, in part:
(Filed Aug. 8, 2005)
Ours is a consideration of rights, not politics; of law, not agendas. The determination of Z.B.S.‘s best interests, being the touchstone in this case, must derive from the law of this State and not from generalized preconceptions, or misconceptions, interjected by the parties or by groups with outside partisan agendas to foster. Justice requires that we, as a court, apply this law to the actual findings specific to this case. Justice likewise demands that we decline the invitation from some to pander to derisive prejudices and from others to engage in social engineering from behind the closed doors of our chambers. Fundamental to the justice
The facts of this case are as compelling as they are tragic. What is clear in this case is that Z.B.S. does not need to become the latest means to a political end; a forgotten footnote in the annals of competing national political agendas.1 I concur with the majority that Tina B. does not meet the requirements for standing under