IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2001 Term
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No. 29096
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LEE BOWMAN and NANCY BOWMAN,
Petitioners below, Appellees,
v.
BUFORD BLEVINS, SR.,
Respondent below, Appellant.
________________________________________________________
Appeal from the Circuit Court of McDowell County
Hon. Kendrick King, Judge
Civil Action No. 00-D-180-K
AFFIRMED
________________________________________________________
Submitted: September 19, 2001
Filed: November 28, 2001
Ronald Keith Flinchum, Esq.
Harold
B. Wolfe, III, Esq.
Welch, West Virginia
Princeton,
West Virginia
Attorney for Appellees
Attorney
for Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS
“Any attempt by a non-parent
to judicially change the care and custody of a child from a natural parent must
precede that attempt with: (1) the filing of a petition setting forth all of
the reasons why the change of custody is required; and (2) the service of that
petition, together with a reasonable notice as to the time and place that petition
will be heard. Following the filing and service of the petition and notice of
hearing upon that petition, the natural parents whose rights are being affected
shall have the right to: (1) present evidence as to the reasons why custody
should not be changed; and (2) obtain a decision from a neutral, detached person
or tribunal.” Syllabus Point 1, Overfield v. Collins, 199
W.Va. 27, 483 S.E.2d 27 (1996).
Per Curiam:
In this case we affirm the
decision of a family law master and circuit judge in their determination that
two grandchildren may choose to live with their grandparents.
I.
The appellant, a former West
Virginia resident, is the father of two children who were born in West Virginia;
a daughter born June 20, 1983, and a son born May 13, 1985. After the children's
mother died in 1986, the children moved to North Carolina with the appellant.
About 5 years ago, both children came to live in McDowell County, West Virginia
with their maternal grandparents, who are the appellees in the instant action.
The older child has lived with the appellees since then, attending high school
here. The younger child moved back to North Carolina to live with the appellant
in 1998. While relations between the appellees and the appellant may have been
strained at times, it appears that the children have enjoyed support from both
the appellant and the appellees, and have visited extensively in both directions.
The instant case began when
the appellees filed a petition seeking a child custody order in the Circuit
Court of McDowell County. The filing of the petition was triggered by the appellant
telling the older child that she must leave the appellees' home and return to
North Carolina with her younger sibling, who was visiting the appellees at the
time.
The petition asserted, inter
alia, that both children strongly wanted to reside with the appellees.
After a hearing on the petition,
a family law master issued an order awarding custody of the two children to
the appellees. This order was approved by the circuit judge, and the instant
appeal followed. The family law master's decision was based primarily on the
children's clear and reasoned expression of their preference to live with the
appellees. The law master met with the children individually and away from the
parties; the interview was tape recorded and we have reviewed the tape.
II.
The appellant asserts that the
family law master did not have jurisdiction to entertain the appellees' petition.
However, we recognized the jurisdiction of a court to entertain such a petition
in the case of Overfield v. Collins, 199 W.Va. 27, 483 S.E.2d 27 (1996).
Syllabus Point 1 of Overfield states:
Any attempt by a non-parent
to judicially change the care and custody of a child from a natural parent must
precede that attempt with: (1) the filing of a petition setting forth all of
the reasons why the change of custody is required; and (2) the service of that
petition, together with a reasonable notice as to the time and place that petition
will be heard. Following the filing and service of the petition and notice of
hearing upon that petition, the natural parents whose rights are being affected
shall have the right to: (1) present evidence as to the reasons why custody
should not be changed; and (2) obtain a decision from a neutral, detached person
or tribunal.
The appellees followed the procedure described in Overfield.
The appellant also asserts that
the family law master improperly decided the merits of the appellees' petition
by elevating the children's stated preferences over the appellees' “right”
to the children's custody as their sole surviving natural parent.
We stated in Rose v. Rose,
176 W.Va. 18, 340 S.E.2d 176 (1986) that:
. . . [i]t is well established
that in controversies relating to the custody and care of children, the child,
if he or she is of the age of discretion, should be consulted and due weight
should be given to his or her wishes in the matter of custody and care. . .
. This does not mean that the child's decision is binding on the trial court
or that the parties are forbidden to introduce evidence to rebut the child's
testimony. . . . an inquiry should be made into the child's intelligence and
maturity to see if the child's choice was intelligently made. Equally important,
however, is the child's rationale for his decision. In order to be accorded
weight, a child's preference . . . ought to be based on good reason. . . . In
making its examination of the child, the trial court should try to explore several
aspects of the child's decision. We offer the following guidelines to the trial
court as to areas which may have an effect on the weight placed on the child's
decision: 1. The trial court should give greater weight to the wishes of a child
which are expressed with strength, clearness, or with great sincerity. 2. A
child's preference should be given less weight where it appears that the preference
is based on a desire for less rigid discipline or restraint. 3. The trial court
should investigate whether the statement of preference by the child was induced
by the party in whose favor the preference was expressed. If so, said statement
of preference should be accorded little, if any, weight. 4. Where an otherwise
intelligent child makes an illogical decision based on unimportant factors,
the trial court may disregard the child's statement of preference.
Id. at 20-21 n.2-4, 340 S.E.2d at 179-80 n.2-4.
In the instant case, the children,
ages 15 and 17, were over 14, the “age of discretion.” Although the
appellant states in his brief that he unsuccessfully tried to obtain a copy
of the tape recording of the hearing before the family law master, including
the law master's interview with the children, we were able to obtain a copy
of the tape without difficulty. Upon review of that tape recording, we conclude
that the methodology prescribed in Rose was carefully followed. The law
master inquired thoroughly and the record establishes that the children's preferences
were firmly and reasonably held, that they were not under any undue influence,
that the grandparents' home was a fit place, and that the children have strong
ties there.
(See footnote 1)
III.
We find no error and affirm
the decision of the lower court.
Affirmed.
Footnote: 1