*1 585 denied, 132, Kelly, 331 S.C. (1998), cert. 502 99 525 S.E.2d U.S. (1999) (death 1077, 816, 119 142 penalty S.Ct. L.Ed.2d 675 defendant failed to prejudice presence jury show room religious pamphlet concerning penalty, death God’s view verdict). misconduct did not where affect jury’s CONCLUSION
Roberts’ convictions and sentence are affirmed. We have
mandatory
required by
conducted the
review
S.C.Code Ann.
(1985).
§ 16-3-25
The evidence indicates the sentence was
passion, prejudice,
not the result of
or
other
any
arbitrary
factor,
the evidence
supports
finding
aggravating
circumstances,
sentence is not
to that
disproportionate
Sapp,
similar cases. State v.
imposed
283,
366 S.C.
621
—
denied,
cert.
(2005),
U.S. —,
2025,
883
126
S.E.2d
S.Ct.
Hughes,
v.
(2006);
585,
164
State
L.Ed.2d 787
521
336 S.C.
denied,
cert.
1025,
(1999),
1434,
S.E.2d 500
529 U.S.
120 S.Ct.
Johnson,
v.
(2000);
119,
S.E.2d 106 S.Ct. U.S. (1985).
L.Ed.2d 178
AFFIRMED.
TOAL, C.J., MOORE, PLEICONES, JJ, BURNETT concur.
Court of of South Carolina.
Submitted March 2006. April 24,
Decided 2006. June 2006. Revised Rehearing July Denied 2006. *3 Pleasant, Fabri, Burns, D. Margaret A. of Mt.
Daphne Charleston, Appellant. McCants, Florence, Eugene Holl- Elizabeth Johnson GA, Warner-Robbins, no ington, appearance.
HEARN, C.J.: the family
Kenneth from an order of appeals Hollington, him Joshua minor denying visitation with biologically Middleton admits he is not relat- Although child. Josh, he because he argues ed to he is entitled visitation years as for ten “psychological parent” served because Josh’s best interest. We reverse and visitation remand.
FACTS (Mother) long-term and Elizabeth had a Johnson At the time early they from 1979 until the 1990s. *4 met, a daughters: four-year-old Mother had two small named Middleton also one-year-old and a named Tenille. Chelsea Andrea, eleven, daughter, his was daughters; had two older Kenisha, daughter, and his was four. While Mother younger Middleton, children spent Thursdays dated she and her Middleton, through at his home. with Mother’s Sundays encouragement, developed strong, parental relationship a with girls finan- daughters. supported both Mother’s He two are cially emotionally, though they grown, and even now fact, he daughters. still considers them his when Chelsea married, despite Middleton escorted her the aisle down fact that her biological wedding. father attended the
By Mother and no longer Middleton were in serious however, relationship; they had intimate encounter July later, 7, 1993, of that year. April Nine months Joshua Hollington was born. she During pregnancy, Mother’s told Middleton the father her Eugene Hollington was child. However, birth, after Josh’s Mother called Middleton and told Josh, him he needed to see a photograph she sent Middleton when Josh was three months old. implication was that Middleton was Josh’s father because the resemblance between and Middleton striking. Josh was so
Once Middleton saw and the simi- photograph physical himself, larity between picture Josh he showed the various They thought, members and friends. all as did Middleton, that Josh and biologically Middleton were related. Subsequently, Middleton to his went doctor blood test performed, and test did not exclude him as Josh’s father. biological
Beginning old, when Josh was three months Middleton took an active role in He regularly spent Josh’s life. time with him supported financially. Josh and approxi- When Josh was year old, one mately Eugene DNA test revealed Hollington time, to be By Josh’s father. Middleton testi- father, fied he already being committed Josh’s and with blessing, Mother’s Middleton continued to love and take care three, though Josh as he were a son. When Josh was Mother lived in a home owned Middleton that was next door to Middleton’s father’s house. Middleton checked on his daily, father nearly every time at Middleton was his house, Often, father’s Mother sent visit. Josh over to Middle- ton take would Josh home to spend night. preschool,
When and Mother began Josh shared signed costs. Middleton report picked cards and preschool per Josh three up days least week. Essen- tially, joint arrangement, Mother custody Middleton and had caring Mondays through Wednesdays Mother Josh keeping remainder week. *5 briefly interrupted was custody arrangement
This joint old, and Mother four years approximately when Josh was attempt- point, At that Mother boyfriend. moved in with her her boyfriend because seeing to Middleton from Josh stop ed in their This was like lives. presence did not Middleton’s daycare entire pay offered to Josh’s resolved when Middleton through Sunday Thursday normal at which his expense, point, schedule resumed. visitation school, Middleton, Moth- without public started
When Josh er, kindergarten. Josh’s teachers day took to his first Josh that all second, third, they testified grades and fourth Even on father. believed Middleton was Josh’s Middleton, night did not with days spend when Josh also mornings. in the He him to school Middleton would drive school, and he nearly day after attended every Josh picked up houses, trips, and other school- meetings, PTA field open as Middleton acknowledged The teachers related activities. Mother, in and Mother never corrected father front Josh’s in Boy Scouts and them. Middleton also enrolled Josh that testified basketball coach league. a basketball dad,” took “my to as referred Middleton and Josh practice to every game. Josh Mother date John grade, began Wflien was Josh serious, called more Mother couple McCants. As the became did not want at Middle- and stated Josh McCants her boyfriend, To accommodate every ton’s house weekend. she and Middleton Mother came with schedule where up time, this McCants was By point week. days every rotated Mother, eventually the two married. living with schedule, spent rotating Christmas part As Ac- Year’s Eve Mother. 2002 with Middleton New schedule, return visitation Josh was cording however, 1, 2003; called Mother January Middleton’s house on that she day explained going Middleton that had to acting up, had been she bring Josh over because he he following day, him. When Josh came over punish that Mother had left marks Middleton and told him hugged Josh showed Middle- by hitting him him with studded belt. area. groin near his thighs, ton marks on his upper Middleton testified that he had previously signs observed physical abuse and he had spoken hitting Mother about Josh. Middleton was concerned if reported he this sus- *6 abuse, pected Mother would forbid him from Josh. seeing Because Middleton did not want to jeopardize his Josh, marks, with he with spoke principal Josh’s about the but did not otherwise contact the authorities. that evening,
Later Mother to speak called asked with Josh. Middleton informed her in get Josh was about to shower, and that Josh call her would back once he was later, through. Moments Mother called back demanded to brought be her. did Middleton not understand what could have in those make transpired few minutes to Mother so angry, speculated but in change Mother’s demeanor could have occurred thought because she might Middleton see marks she left on Josh when to Josh undressed shower. Josh, Middleton told Mother it was his with and because night earlier, Josh had been he sick should not travel outside right winter after a shower. Middleton testified he afraid was for Josh’s bring welfare refused to him to Mother’s house. ended, When telephone police conversation he called the department reported the alleged abuse. Mother and McCants also contacted the police report to Middleton’s refus- al to return Josh. arrived,
When the police they brought Mother and McCants with them. Because Mother legal custody, had Josh was to Maggie returned her. Officer the case to reported Carver Services, but Department Social the De- inexplicably, partment in a informed Officer Carver voicemail that it would not “take the case.” Officer Carver testified she believed Middleton’s for reporting alleged reason abuse out of true concern for Josh. 2003,
After this in January incident Mother terminated all contact between Josh and Middleton. also contacted She school officials and told them not to Middleton was allowed see later, Mother, McCants, Josh. Approximately year one Florence, Josh moved to South Carolina. 11, February
On Middleton action seeking filed this ad guardian also a motion to have He filed custody Josh.1 answered, stating represent Josh. Mother appointed litem Middleton, being be because action should dismissed The Josh, proceed. standing lacked related biologically (2) dismiss; (1) ap motion to court denied Mother’s family Josh; (3) represent required guardian pointed (4) father; and Hollington, join Eugene any April visitation. On denied Middleton to the action. complaint joining Hollington filed an amended having pleadings action and joined Despite being mail, receipt requested, return on him certified served responded. or Hollington appearance has never made an seeking filed a motion guardian On June requir- an court issued order counseling Josh. Mother, Middleton, counseling. to cooperate and Josh ing filed ex parte emergency later the guardian months Several compliance Mother’s continued compel motion seeking taking stopped because Mother counseling mandated *7 ordered healing, family After a court counseling. Josh therapist, with the meeting Mother and Josh continue both Kay Dr. Newman. 10, 2004, report issued her Dr. Newman
On November In her visitation with Josh. Middleton resume recommending kind, gentle boy primary was a whose she stated Josh report how much he loves was that Dr. understand concern Newman Newman, to Dr. Josh According Middleton. close, be very happy relationship “report[ed]
separately, Mr. much about Middleton’s them. Josh reminisce[d] tween church, Scouts, him for and up him taking Boy signing his and other events.” Dr. New attending league, basketball noted that dad had never been involved man life,2 been, bless Middleton had with Mother’s in Josh’s while to be stated declined very involved. She also McCants ing, Further, report of the sessions. her any therapy involved been instrumental that because Middleton had revealed involving important in activities and was an source trial, seeking complaint, only amended the visitation 1. At Josh. with old, days seeing than Josh one time when Josh three 2. Other Hollington never visited Josh. has socialization, the move to coupled Florence with contact losing Middleton, had a negative impact emotionally. with on Josh Ultimately, Dr. Newman recommended Josh resume visitation Middleton, with Mother’s liberal into input the form of visitation. trial,
After a three-day court denied family Middleton’s right family visitation. The found Moth- despite position Josh, er’s that Middleton had been overindulgent with Middleton had done nothing negative “which would have a effect on between the child and his Mother.” However, family court found that under the law of South Carolina, fit, biological parent right has the fundamental make decisions concerning party may whether visit her child. family court reasoned that because Josh knew he father, a biological had Middleton could not be his psychologi- parent, cal and therefore Middleton had no legal right for visitation. petition appeal This followed.
STANDARD OF REVIEW On appeal family court, this court has the authority to find facts in its accordance with own view preponderance of the v. Rutherford, evidence. Rutherford (1992). S.C. 414 S.E.2d scope This broad require review does not us to disregard family court’s Thomasson, findings. Cherry 524, 525, 276 S.C. 280 S.E.2d (1981). We remain mindful of the fact court judge, who saw and heard the is in .parties, a better position to their credibility assign evaluate arid their weight to testimony. Id.
LAW/ANALYSIS *8 case, In this are legal we asked to determine standard what to a of applies party’s non-biological third claim visitation a child for he whom claims to have functioned as a psychological
parent. argues On Middleton he has seek appeal standing to visitation he functioned as a to psychological because parent below, For the reasons set agree, Josh. forth and find the we family court erred in concluding Middleton was not Josh’s psychological and erred in parent finding Middleton entitled to visitation. Accordingly, we reverse and remand.
.594 Standing
I. cases, the welfare of child custody
In all child
“primary, paramount.
is the
the child’s best
interest
”
Cobb,
v.
271
court....
Cook
consideration of the
controlling
(1978)
136,
612,
v.
140,
(citing Davenport
245 S.E.2d
614
S.C.
(1975)).
524,
228
To further
220
Davenport, 265 S.C.
S.E.2d
of chil
the best interests
goal
safeguarding
promote
dren,
that in certain
Assembly
recognized
has
the General
circumstances,
legal
not a child’s
or
parent
who are
persons
a
parties
custody proceeding.
to
may
proper
be
guardian
20-7-420(20)
grants
of the South Carolina Code
Section
a
to
child to
family
jurisdiction
custody
court
award
or institution.”
person
or
other
parent
“any
proper
child’s
to
statute,
been allowed
parties
Pursuant
to that
have
Kramer,
v.
an
See Kramer
bring
custody
action for
of child.
custody
(Ct.App.1996) (awarding
Under standing to Because Middleton would right visitation. it that he also have bring custody, action for follows would standing Dodge Dodge, to seek visitation. In S.C. “no this court found (Ct.App.1998), S.E.2d of nineteen authority” grant rights stepfather visitation father, months, been in prison, once the who had biological However, no specifically we found custody. resumed full stepfather existed between psychological parent relationship children, father. biological as the children often saw their at 350. Id. 505 S.E.2d case, has right
In claims he visitation this signifi- and the based on his status as more denying explained causes Josh. As cant harm visitation below, family court erred fully agree, we hold bring this action. finding standing Middleton lacked Party’s Right II. Third To Visitation Psychological A. Parent Doctrine visitation, grant refusing knew had a found that because Josh he specifically *9 595 father, Middleton was not Josh’s psychological father. We disagree. psychological
The notion of a
parent or de facto
parent
recognized by
first
the
Supreme
South Carolina
Court
Moore,
75,
(1989).
Moore v.
300 S.C.
Subsequently, Dodge 332 Dodge, S.C. S.E.2d court (Ct.App.1998), this found that although loving children had close and relationship with their stepfather and grandparents, did level attachment rise to the level of a psychological parent-child relationship. Therefore, we found the family granting joint court erred in custody stepfather grandparents, and should -have the biological awarded father full Id. custody.
S.E.2d at 351.
Both Moore and Dodge recognized the existence doctrine; however, psychological-parent explores neither case how a party establishes that he or she is the psychological fit, parent to child of legal parent. of who be question may parent deemed a psychological
for purposes receiving parental responsibilities has been variously. answered par- Some states define a psychological ent by breaking parenthood down its fundamental elements. California, a de example, facto defined as “a person assumed, who has been found basis, day-to-day of parent, role both the child’s fulfilling affection, physical and psychological needs for care and who has assumed that role for a period.” substantial Cal. 1401(8); D.E.W., Court, Rules of R. see also C.E.W. (Me.2004) (declining A.2d to define a de facto parent, but “it noting surely must be limited to those adults fully who have and completely permanent, undertaken a un- committed, role responsible parental
equivocal, life”)! child’s further attempted concept refine
Other states have *10 The psychological parenthood. the definition of by expanding a as: parent defined Supreme psychological Alaska Court has basis, interaction, who, com a day-to-day through on [O]ne mutuality, psy fulfills the child’s interplay, and panionship, This becomes an essen chological needs for adult. adult life, he is the of only the child’s for not source tial focus of needs, the but also physical the fulfillment of the child’s The of needs.... psychological source his emotional and loved, valued, and appreciated, one who is wanted child is for as the adult who cares person an essential viewed a and may exist between child relationship him.... This adult; the into the category it which any depends upon foster, or common-law—but biological, adoptive, adult falls— of interaction. mutuality and the upon quality (Alaska 2004). McTaggart, Evans v. 88 Simi P.3d K., in In re 217 W.Va. S.E.2d larly, Clifford (2005), Court defined the nature of Virginia Supreme the West party a relationship supports finding The stated: parent. acted as a psychological greater has under “psychological parent,” protection A who ordinarily in a child than would custody proceeding the law adoptive one not the or biological be afforded to who is who, child, day-to- of a a continuing parent person basis, interaction, through interplay, day companionship, physical fulfills mutuality, psychological a child’s for the child’s parent provides needs for a emotional financial support. Id. at 157. four- developed Court has a Supreme Wisconsin has a person test for whether a become
prong determining the existence order demonstrate psychological parent. parent-child relationship, petitioner a psychological of must show: to,
(1) biological adoptive parent[s] that the or consented fostered, of formation and establishment petitioner’s (2) child; peti- that the parent-like household; together and the child in the same tioner lived (3) that the petitioner obligations parenthood assumed by- care, significant taking responsibility for the child’s edu- development, cation and including contributing towards support, expectation child’s without compensa- financial tion; (4) that the has been in a role petitioner parental [and] for a length of time sufficient to have established with bonded, child dependent in nature. relationship parental H.S.H.-K., In re Custody Wis.2d N.W.2d (1995). 435-36 this frame provides good We believe test work for determining whether a psychological parent-child relationship exists. These four nonpar factors ensure that a ent’s eligibility strictly status will be limited.
The first factor is “critical it because makes the or adoptive parent participant creation v. M.J.B., parent’s the psychological relationship with the child.” V.C. (2000) *11 163 N.J. 748 A.2d 552 the (explaining first prong). Wisconsin test’s This factor that recognizes life, when a a legal parent invites into a party child’s a essentially providing invitation alters child’s life him with another parent, legal parent’s unilaterally the to rights sever that relationship necessarily legal are reduced. The parent’s the fostering active rela psychological parent-child tionship significant parent because the has control over legal or anyone whether not to into private sphere invite the parent legal encourages between and child. Where a a parent parent-like relationship between a child and a third “the party, right of the legal parent erasing extend to a [does] third party] between and her child which [the [the legal parent] voluntarily created fostered.” Id. at actively E.P.H., 552 682 (citing Pa.Super. J.A.L. 453 A.2d (1996)). 1322 ability A has the control and parent absolute However, maintain a or privacy zone of around his her child. a parent cannot maintain an zone of if he or privacy absolute voluntarily she invites a third as a party parent function E.L.M.C., (Colo.Ct.App. the child. See In re 100 P.3d (R.I. 2004); DiCenzo, see also Rubano v. 759 A.2d 2000) (explaining legal parent third-party when allows one equal parents, assume role she child’s.two parental renders her minor rights respect own the they than otherwise exclusory” less child “less exclusive and been). would have considers whether the
As which prong, for the second together, it further and child lived parent third- class of parent by restricting protects legal child, Normally, legal rights. parties seeking parental resided have at one all psychological parent point, parent, However, conceive of a the same roof. we can together under situation, case, and the legal parent as in this where the joint custody a sort under psychological parent operated legal half the time spends where child agreement of the time is at the spent house. The other half parent’s house, also considers which child psychological parent’s to meet the arrangement home. This also suffices type part second of the test. they most because important
The last are the prongs two respon- assumed the parent ensure both that the psychological there parenthood parent-child sibilities of and that exists and child. The psy- bond between the psychological obligations parent- undertake the chological parent must affirmatively hood involved in child’s life. by being caretaking pro- duties and must assume psychological parent duties, however, for child. These support vide emotional gain, than financial which must be done for reasons other or paid babysitter nanny qualify that a cannot guarantees E.L.M.C., P.3d at re psychological parent status. See 976) (“The Rubano, (citing A.2d at additional elements against by neighbors, claims protect legal parent further caretakers, nannies, rela- nonparental au babysitters, pairs, friends.”). tives, further note that when both We life, a third biological parents are involved child’s *12 never rise to the level relationship with child could party’s a as there is no void in the parent, parental of psychological life. child’s
Additionally,
psychological parent
of time the
length
in a
must be sufficient for a
parental capacity
parent-
acted
of a
child bond to have
established.
existence
been
“is
not a court-bestowed determina-
parent-child
simply
bond
finding
...
of such a bond reflects
tion
of
existence
[t]he
connection, ordinarily
singular
spiritual
that the
emotional and
only
child,
expected
relationship
parent
of a legal
and
has been
created between
adult
child”
and
who
neither
adoption
blood nor
between
Id. at
(Long,
them.
J.,
Further,
concurring).
“inherent in
bond
between child
parent
and
is the risk of
psychological
emotional harm to the
child should the
be
In
relationship
curtailed or terminated.”
E.L.M.C.,
re
P.3d
at 560. South
long recog
Carolina has
attachment,
nized the importance
degree
of
by
echoed
jurisdictions,
other
between a child and a
in mak
third-party
ing
custody
determination between a
and
parent
Moore,
80-81,
the third
See
party.
S.C. at
at
S.E.2d
whether
(considering
psychological
relation
parent-child
ship
attachment);
exists in order to determine the
degree
K.,
(“The
see also In re
Turning facts the record is replete showing that evidence Mother invited as a Middleton act father. sent pictures Mother Josh as a baby insinuated that he was Josh’s father. When Josh three was old, years Mother Middleton worked out a schedule whereby Middleton had from Thursday Sunday Josh through every costs, at paid week. Middleton least half the daycare and was as the emergency daycare listed contact on the registration.
As school, Josh entered elementary it Middleton rather than Mother him to accompanied day who his first of kinder- garten, and it was Middleton who brought Josh to school every morning. almost picked up Middleton also Josh nearly every day school accompanied Josh school field trips. Middleton took to doctor Josh and dentist appoint- ments, and attended family Josh reunions and functions with Middleton. life,
For ten years the first of his spent considerable amount of time with Middleton. Mother rela- cultivated this tionship by giving parental responsibilities allowing spend Josh to significant amount his childhood essence, with Middleton. Josh lived with Middleton *13 Mother, ceding by most of his life. of the week for least half Middleton, to responsibilities of her large part parental over a bond Middleton Josh. parent-child between fostered test, that the psychological parent prong The second also met. together, reside is psychological parent child and half of week any given at least shows Josh spent evidence Josh had his own Additionally, residing with Middleton. clothes, house. room, books Middleton’s school obligations parent- also find Middleton assumed We care, edu- for taking significant responsibility hood Josh’s by for Josh’s cation, development. paid preschool. Middleton per he mother dollars month while Additionally, paid $250 custody. Middleton had not Although in Mother’s Josh was approxi- he was able to document keep receipts, thought Further, $12,000 years. he had Mother over mately given for education. savings established a account Josh’s Middleton financially develop- contributed Josh’s only Middleton they ment, spent he also Josh. On weekends quality'time with Sundays, Fun to movies and visit Frankie’s Park. On go would on the Hollington, and Josh attended church. Middleton hand, to fulfill emotional need attempt other made no Josh’s fact, than one time when he seeing father. other old, This days Hollington three has never visited Josh. coupled left father with the parental by void obligations assumed Middleton us find parental compel necessary responsibilities that undertook Middleton test. prong psychological-parent meet the ten spent the fourth record reveals Josh prong, As to thinking his life of Middleton as father is years of court-, Newman, Dr. in his absence. suffering greatly that therapist, appointed opined not seen though that Josh has Josh. She stated even tell years, he her to the court he two wanted In her clinical misses Middleton and wants see Middleton. and Middle opinion, the emotional attachment between Josh time, strong despite' passing years’ ton is so two Newman, loss. to Dr. According Josh still feels sense of Middleton and Josh will severance of between a profound, impact negative for the rest of life.3 his B. Compelling Circumstances *14 visitation, declining grant Middleton the family court
stated: our not grant “When law does allow us to autonomous visitation grandparents the of a fit I against parent, wishes don’t know how we can grant autonomous visitation an unrelated third party against the of a fit parent.” wishes While great deference is accorded to visitation the decisions made by parent, a fit can in the fact grant visitation third-party objection to a over a fit parent’s when faced compelling with circumstances. Granville,
In Troxel v. Supreme the of the Court United States the considered whether of application the state Washington’s visitation statute violated Granville’s due process right to make concerning custody, care, decisions the 57, control of 2054, her children. 530 U.S. 120 S.Ct. 147 (2000). dispute L.Ed.2d 49 The in Troxel arose because Granville to limit her sought per in-laws’ visitation to one visit 71, month holidays. turn, Id. 120 at S.Ct. 2054. In the grandparents sought Washington visitation under a statute provided “any person” petition rights could for visitation at “any time.” Id. at The S.Ct. 2054. grandparents did not rely on common de law facto or psychological parent
doctrine.
A plurality explained parents Court protected liberty care, interest in the custody, and control of 65-66, their Id. at children. 2054. The plurality S.Ct. noted this right parents fundamental encompasses presumption that a fit will act in best interest of his or her child.
The Supreme Court held visitation Washington’s statute unconstitutionally infringed upon Granville’s fundamental right to direct of her The upbringing children. statute’s language effectively “any party seeking allowed visita- tion subject any decision a parent concerning visitation review,” of the parent’s children to and if trial state-court Additionally, says 3. Dr. Newman that Josh he has a knows father, knowing but not sense in not him. does a loss Josh's sense directly loss is related to the loss Middleton in his life. of the child’s determination disagreed parent’s
judge interest, Id. at prevail. would judge’s best view the trial court’s order “was 2054. The noted plurality S.Ct. might justify factors that any special not founded on right fundamental State’s interference with Granville’s at children. Id. S.Ct. make decisions” her regarding 2054. conclusion support three reasons to its plurality gave interference “special justified
that no
factors”
State’s
not
that Gran-
First,
allege
did
grandparents
this case.
pre
and therefore Granville was
parent,
ville was
unfit
of her children.
Id.
to have acted in the best interest
sumed
Second,
give
the trial court did not
2054.
S.Ct.
of what was
her
special weight to Granville’s determination
Third,
Id. at
Here, the replete record is illustrating with evidence how Mother’s refusal to visit allow Middleton to with Josh has caused significant Josh harm. After separation, fourth grade teacher asked the guidance school’s counselor talk just with Josh because “he himself wasn’t seemed [and] really guidance sad.” counselor ar testified that she ranged for Josh attend a support group children who suffered someone losing they love. these During sessions, Middleton, group expressed grief losing over who Josh talked about father “as his and his dad.” Johnson, daughter,
Mother’s Tenille about spe- testified cial relationship Middleton had with Josh. Since Josh’s visita- ended, tion with Johnson testified Josh “is not person same that he be” happy used to and that his attitude life has changed. toward Newman,
Dr. who counseled Josh for eighteen months prior *16 to the hearing, final that explained the severance of Middle- ton’s visitation with ... profound Josh “will have a impact life.” throughout [that] reverberates Dr. Newman further Josh, explained that ten years who was old when his relation- ended, ship with Middleton abruptly particularly was devastat- ed by the loss because he at a life stage was when he was learning report how socialize. In the the she submitted to court, opined Dr. Newman that Josh’s loss contact with “at-risk regarding rendered Josh his ability trust, form and relationships.” [and maintain close to] counselor, teachers, from Josh’s testimony the
Similar sister, ad reiterat- guardian litem court-appointed and his the I Judge strongly that I can tell the that thing ed: one “[T]he Kenneth Middleton. Hollington believe is that Joshua loves that I no doubt of misses Kenneth Middleton. He “the of a separation testified that guardian whatsoever.” a half done to lessen year, year nothing [Josh’s] had there.... feelings Middleton] [S]ince [the I don’t he is—I’m not trained like Ms. Newman is. ended missing the far as but he’s grieving, correct terms’as know bit.” Even Mother herself testified quite Mr. doubt all that loves “any that she did not have at ... Middle- Kenneth Middleton Josh misses Kenneth [or] ton.”
CONCLUSION record, we overwhelming Based evidence that Middleton not finding reverse court’s absence from Josh’s parent. Middleton’s psychological harm to significant has continue to cause life caused will Thus, case are compelling Josh. the circumstances this must “evidentiary third-parties meet the hurdle” enough objection of a fit seeking when visitation over overcome Camburn, 579-80, at at 568. parent. S.E.2d automatically today caution that our decision does We custody in a give parent right to demand psychological legal parent psychological parent. between the dispute usually The limited cannot right psychological parent’s right upbringing control legal overcome K., re See or her child. his W.Va. Clifford (2005) cases (noting “exceptional that in S.E.2d 157-58 discretion, subject psychological parent to the court’s ... inter may custody intervene in a when such proceeding child(ren) is to serve the best interest likely vention V.C., ____”) added); see (emphasis (stating 748 A.2d custody usually given to the legal parent, with “[visita parents). as the rule” “presumptive tion” is a difficult under- psychological parenthood Establishing established, However, once the bond taking. between unilaterally not be sev- psychological parent child should *17 by ered the biological parent fostered the in who first place. standard to be is applied compel- whether ling circumstances exist overcome the presumption that fit, interest, course, in legal parent acts the child’s best and of actually visitation must be child’s best interest. The compelling encompasses circumstances standard a situation where, here, as a third party has attained psychological parent status.
Accordingly, we reverse the order of the family court and remand the so action suitable visitation schedule can be as expeditiously possible. established as Because we find absence, suffering Middleton’s we order that visitation between Middleton and Josh resume on a schedule month, of one in per weekend the month of beginning May 2006, until a final can be hearing scheduled.
REVERSED AND REMANDED. J.,
KITTREDGE, ANDERSON, J., concurs and concurs in in only opinion. result a separate
ANDERSON, in (concurring only J. result in separate opinion): Granville,
In Troxel v.
530 U.S.
S.Ct.
(2000),
L.Ed.2d 49
the Supreme Court of the United States
care,
held that
parents
protected liberty
have
interest in the
custody and control of their
children
is a fundamental
right protected
the Due Process
Clause. This fundamental
right encompasses
presumption that a fit
act in
parent will
the best
interest
his or her
I
gargantuan
child.
Smith,
v.
trepidation
regard
expanding
Camburn
(2003),
Moore,
S.C.
I judice VOTE ALLOW visitation the case sub over objection of the biological mother and would confine holding unique factual circumstances in this particular case.