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2. “'“A court, in defining a parent's right to visitation, is charged with giving paramount consideration to the welfare of the child involved.” Syl. Pt. 1, Ledsome v. Ledsome, 171 W.Va. 602, 301 S.E.2d 475 (1983).' Syl. Pt. 2, Mary Jean H. v. Pamela Kay R., 198 W.Va. 690, 482 S.E.2d 675 (1996).” Syllabus Point 3, Hawk v. Hawk, 203 W.Va. 48, 506 S.E.2d 85 (1998).
Per Curiam:
This case is before this Court upon appeal of two final orders of the Circuit
Court of Randolph County entered on December 22, 2004. In those orders, the court,
affirmed, in part, and modified, in part, an order of the Family Court of Randolph County
entered on September 2, 2004, and adopted a parenting plan with regard to Serena D., (See footnote 1) daughter of Billy D., the appellant and defendant below, and Mary R., the appellee and
plaintiff below.
In this appeal, Billy D. seeks reversal or modification of the final orders. He
contends that Serena's visitation with Mary R. should be supervised; that he should be
reimbursed for child support he paid while Serena was in his custody; that he should be
reimbursed for certain medical expenses he incurred for Serena from 1999 through 2001;
that he should be reimbursed for his psychological evaluation which was ordered pursuant
to a request from Mary R.; that the location for the exchange of custody should be changed
to his residence; and that additional provisions agreed to by the parties should be
incorporated into the parenting plan.
This Court has before it the entire record and the briefs of the parties. For the
reasons set forth below, we find that Serena's visitation with Mary R. should be supervised.
Accordingly, the final orders are reversed, and this case is remanded to the circuit court with
directions to enter an order immediately remanding this case to the family court for further
proceedings consistent with this opinion.
In August 1999, Billy D. contacted West Virginia law enforcement and the
West Virginia Department of Health and Human Resources (hereinafter “DHHR”) and
reported that Serena had told her maternal grandmother that she had touched her stepfather's
penis. The DHHR immediately began an investigation. Billy D., who had Serena in his
custody in Pennsylvania for her summer vacation pursuant to the custody agreement, elected
not to return her to Mary R.'s residence. On September 17, 1999, Mary R. filed a motion for
contempt contending that Billy D. had failed to comply with the custody agreement when he
did not return Serena to her custody on August 23, 1999. On September 28, 1999, Billy D.
responded by filing a motion for an emergency change of custody.
As part of the DHHR investigation, Serena was interviewed by a Pennsylvania
social worker since she was still in Billy D.'s custody. Serena reported that she and her
three-year-old half-brother sometimes played with her stepfather's penis and that her
stepfather was nude when this occurred. The social worker found Serena to be very credible
and consistent with her story.
Subsequently, Mary and Charlie R. were interviewed by the DHHR. They
explained that they are nudists and often do not wear clothing in their home. Mary and
Charlie R. both acknowledged that Serena and her half-brother had touched Charlie R.'s
penis and stated that they thought the touching was merely the result of childhood curiosity.
Mary R. said that she told Serena to stop the touching.
On October 14, 1999, the circuit court entered an order granting Billy D.'s
motion for an emergency change of custody. (See footnote 4) The court found that there had been
inappropriate sexual contact between Serena and Charlie R. Thereafter, Mary R. filed a
motion for visitation. By order entered on February 16, 2000, the family law master granted
supervised visitation to Mary R. On May 30, 2000, the family law master further ordered
Mary R. to pay child support in the amount of $196.25 per month commencing on May 1,
2000. Billy D.'s obligation to pay child support was suspended retroactively to October 1,
1999. On August 27, 2003, the family court judge (See footnote 5) granted a motion for modification filed
by Mary R. and reduced her child support obligation to $131.00 per month commencing July
1, 2003.
A final hearing was scheduled by the Family Court of Randolph County for
August 16, 2004. Prior to the hearing, the court was advised by counsel for Mary R. that
Billy D. had called his office and indicated that he was on his way to the hearing, but would
be late. Billy D. did not contact the family court directly to request a continuance. Thus, the
court proceeded with the hearing. The court received into evidence a letter from Children's
Protective Services of the DHHR indicating that services had been provided to Mary and
Charlie R. and that Charlie R. had changed his behavior and had been allowed to return
home. (See footnote 6) Counsel for Mary R. presented parenting plans proposed by each party. Neither
parenting plan was adopted as a whole. Instead, the family court designated Billy D. as the
custodian of Serena but granted Mary R. visitation with Serena every second and fourth
weekend of every month in addition to certain designated holidays. The court directed the
custody exchange to occur in Washington, D.C. The family court also stated that Charlie R.
should not be left alone at any time with Serena.
Billy D. filed an appeal of the family court order with the circuit court. On
December 22, 2004, the circuit court entered an order adopting, in part, and modifying, in
part, the family court's order. The circuit court found that the family court did not abuse its
discretion. However, the court determined that visitation on alternate weekends in the state
of West Virginia would require Serena to spend as much as 32 hours per month in transit
which would be excessive. The court also found that the custody exchange should take place
at a point halfway between the parties rather than in Washington, D.C. Finally, the court
stated that although the DHHR had provided services to Mary and Charlie R. and had now
deemed their home suitable for children, nonetheless, Charlie R. should not be left as the
supervising adult for Serena or otherwise alone in her presence. The parties were directed
to meet immediately and attempt to negotiate a revised parenting plan. They did so, and on
December 22, 2004, the court also entered an order adopting the revised agreed parenting
plan. Pursuant to that order, Mary R. is entitled to custody of Serena one weekend per month
in West Virginia as well as visitation with Serena one weekend a month in Pennsylvania.
The parties further agreed to divide custody on holidays and school vacations as set forth in
the agreement. Following entry of these orders, Billy D. filed this appeal.
Now, this case is somewhat different in that, basically, the inappropriate sexual touching has been admitted although the degree and the intentions have been contested. Ms. [R]. has said that there was a touching twice and it could have only been twice _ the _ Mr. [D] has said that the child indicated that she had been _ what would appear to be masturbating her step- father. But I believe it was the report from the interviewer in Pennsylvania from the Department of Social Services there who apparently has no interest or argument in this case at all and that interviewer reports that the child said that sometimes she liked playing with her step-father's penis and sometimes she didn't.
It seems at least in the opinion of the child this Court
would have to find that it's more than an exploratory type of
touching or an innocent touching. There's also the allegation
undenied by Mr. [R] that this has been going on for four (4)
years or since the child was (2) years old.
Now, Mr. Skinner (See footnote 7) has defended on the grounds that this
is the lifestyle of the [R.'s] _ nudity _ and the Court will have to
recognize that society has _ has to accept different lifestyles
because it's a free country, but we also have to accept that
certain things are practically universally not accepted. And
although nudity might be more acceptable in California than it
is in Randolph County West Virginia certainly perhaps even in
California the _ a six (6) year old child playing with her step-
father's penis would be considered to be inappropriate, and it's
certainly considered inappropriate here in Randolph County,
West Virginia. And I'm going to specifically find that there was
inappropriate sexual contact between the six (6) year old child
and her step-father's penis.
(Footnote added).
Given the circuit court's finding, we are unable to affirm any order that allows
Serena to have unsupervised visitation with her mother and stepfather. “In visitation as well
as custody matters, we have traditionally held paramount the best interests of the child.”
Syllabus Point 5, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996). In other words,
“'“A court, in defining a parent's right to visitation, is charged with giving paramount
consideration to the welfare of the child involved.” Syl. Pt. 1, Ledsome v. Ledsome, 171
W.Va. 602, 301 S.E.2d 475 (1983).' Syl. Pt. 2, Mary Jean H. v. Pamela Kay R., 198 W.Va.
690, 482 S.E.2d 675 (1996).” Syllabus Point 3, Hawk v. Hawk, 203 W.Va. 48, 506 S.E.2d
85 (1998). As we explained in In the Interest of Carlita B., 185 W.Va. 613, 629, 408 S.E.2d
365, 381 (1991),
In the difficult balance which must be fashioned between
the rights of the parent and the welfare of the child, we have
consistently emphasized that the paramount and controlling
factor must be the child's welfare. “[A]ll parental rights in child
custody matters,” we have stressed, “are subordinate to the
interests of the innocent child.” David M. [v. Margaret M.],
[182 W.Va. [57] at 60, 385 S.E.2d [912] at 916 [(1989)].
Having thoroughly reviewed the entire record in this case, we believe that it
is in Serena's best interests to have supervised visitation with Mary R. Given the fact that
inappropriate sexual contact occurred between Charlie R. and Serena, we believe that Charlie
R. should have no visitation with Serena. Furthermore, considering Mary R.'s
characterization of the events that occurred in 1999 as “childhood curiosity” and her
testimony that it only happened twice despite evidence to the contrary, we are concerned
about Mary R.'s ability to comply with an order requiring that Serena have no contact with
Charlie R. In this instance, we find that supervised visitation is the only way to ensure that
Serena's best interests will be protected. Accordingly, the final orders are reversed, and this
case is remanded to the circuit court with directions to immediately remand this case to the
family court for further proceedings to establish a new parenting plan whereby Mary R.'s
visitation with Serena is supervised and Serena has no visitation or contact with Charlie R.
whatsoever. (See footnote 8)
Reversed and Remanded with Directions.