652 S.E.2d 490
Per Curiam:
The appellant herein, Misty C.V. (See footnote 1) (hereinafter “Misty”), appeals from an
order entered October 30, 2006, by the Circuit Court of Cabell County. By that order, the
circuit court affirmed an earlier ruling by the Family Court of Cabell County, entered June
23, 2006, wherein the family court determined the appellees herein, Christopher and Tanya
F. (hereinafter “Christopher” and “Tanya”), to be the “psychological co-parents” of the
minor child involved in these proceedings, Senturi N.S.V. (hereinafter “Senturi”). The
circuit court also affirmed the family court's ruling that Christopher and Tanya had a
“shared parenting arrangement” with Misty vis-a-vis Senturi. On appeal to this Court,
Misty contends that Christopher and Tanya are not the psychological co-parents of Senturi
and that she did not enter into a shared parenting arrangement with them. Upon a review
of the parties' arguments, the pertinent authorities, and the record presented for our
consideration, we reverse the October 30, 2006, order of the Circuit Court of Cabell County
and restore Misty's full custodial rights to her daughter, Senturi.
[i]n 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). Guided by these standards,
we now consider the parties' arguments.
(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.
Applying this statute to the parties presently before the Court, it is undisputed
that Misty and Joshua are the legal parents of Senturi. See W. Va. Code § 48-9-103(a)(1). See also Syl. pt. 1, In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138 (2005) (“Pursuant to
W. Va. Code § 48-1-232 (2001) (Repl. Vol. 2004), a 'legal parent' is 'an individual defined
as a parent, by law, on the basis of biological relationship, presumed biological relationship,
legal adoption or other recognized grounds.' The phrase 'other recognized grounds' refers
to those individuals or entities who have been formally accorded parental status or the
functional equivalent thereof by way of statute or judicial decree. Such parental status is
comparable to the rights and responsibilities of a biological or adoptive parent and includes,
but is not limited to, the right to care, control, and custody of the minor child; the right to
consent or object to the child's adoption by another person; and the duty to support the
child.”).
Moreover, it is apparent from the record in this case that the only person who
was “allocated custodial responsibility or decision-making responsibility” of Senturi “under
a parenting plan regarding the child that is then in effect” is Misty. See W. Va. Code § 48-
9-103(a)(2); W. Va. Code § 48-1-235.4. Likewise, only Misty and Joshua are “[p]ersons
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.”
W. Va. Code § 48-9-103(a)(3). Thus, the only way in which Christopher and Tanya could
have been accorded standing to participate in the proceedings below is to find that the
instant matter constitutes an “exceptional case[]” as contemplated by W. Va. Code § 48-9-
103(b).
Ostensibly, the family court determined both that Christopher and Tanya had
a shared parenting arrangement with Misty and that they were Senturi's psychological co-
parents in order to accord them standing pursuant to W. Va. Code § 48-9-103(a)(2) and
W. Va. Code § 48-9-103(b). Although the family court determined that Christopher and
Tanya had standing on these grounds, and the circuit court affirmed this ruling, such a
determination was erroneous. First, as we observed above, there was in effect a parenting
plan regarding Senturi that had been entered by the family court in the course of Misty's
initial action seeking custodial allocation and child support. Only Misty and Joshua are
parties to this parenting plan; Christopher and Tanya are not. See W. Va. Code § 48-1-
235.4. Moreover, Christopher and Tanya contend that Misty entrusted Senturi to their care,
frequently for visits spanning several days, and that they provided the child with food,
clothing, and shelter while they were caring for her. Thus, Christopher and Tanya claim
that these facts demonstrate that they had a shared parenting arrangement with Misty
although they concede that Misty never executed any written documents transferring
permanent or temporary custody of Senturi to them. Misty denies that she ever entered into
a shared parenting arrangement with Christopher and Tanya and characterizes their care of
Senturi as that typically provided by babysitters. As for Senturi's extended visits with
Christopher and Tanya, Misty claims that because Christopher and Tanya are part of
Joshua's extended family, she wanted to allow her child to develop a relationship with that
part of her family by visiting with them for extended periods of time.
While we appreciate that Christopher and Tanya have provided significant
care for Senturi and have attended to her needs during these periods of time, the record
evidence before us simply does not support the family court's conclusion that Misty had
entered into a shared parenting arrangement with Christopher and Tanya. The right of a
parent to his/her child's custody is scrupulously protected.
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).
In recognition of the importance of a parent's right to the custody of his/her
child, we held in Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996), that a parent
wishing to transfer the custody of his/her child to a third-party must execute a written
document memorializing this intent. Such a writing is imperative whether the custodial
transfer is contemplated as being temporary or permanent in nature. Thus, “[i]f a natural
parent intends to voluntarily transfer temporary custody of a child to a third person, then
the document effecting the transfer should expressly provide that it is the intention of the
parent to temporarily transfer custody to the third person.” Syl. pt. 5, Overfield v. Collins,
199 W. Va. 27, 483 S.E.2d 27. Likewise, “[i]f a natural parent intends to voluntarily
transfer permanent custody of a child to a third person, then the document effecting that
transfer should expressly provide that it is the intention of the parent to permanently transfer
the custody of the child to the third person.” Syl. pt. 4, Overfield, 199 W. Va. 27, 483
S.E.2d 27.
Because there is no writing in the case sub judice reflecting Misty's intent to
transfer either the temporary or the permanent custody of Senturi to Christopher and Tanya,
we find no basis for upholding the family court's finding of the existence of a shared
parenting arrangement (See footnote 11) or according standing to Christopher and Tanya on this basis. See
W. Va. Code § 48-9-103(a)(2). Were we to allow the lower court's ruling to stand, it goes
without saying that the potential ramifications would be crippling to the parents of children
in this State. Virtually any parent who must rely upon child care, whether to allow the
parent to work, attend school, care for elderly parents, visit the doctor, or for any other
reason, could potentially face a challenge from the child's care giver asserting the existence
of a shared parenting arrangement despite the absence of any writing evincing such an
intent by the parent. We simply cannot condone a ruling that would permit such pervasive
interference with parents' custodial rights. Accordingly, we reverse the circuit court's
ruling upholding the family court's decision in this regard.
Additionally, the family court accorded standing to Christopher and Tanya
because it determined that they are Senturi's psychological co-parents, and, as such,
“exceptional circumstances” require their participation in these proceedings. See W. Va.
Code § 48-9-103(b). See also Syl. pt. 4, In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138
(“In exceptional cases and subject to the court's discretion, a psychological parent may
intervene in a custody proceeding brought pursuant to W. Va. Code § 48-9-103 (2001)
(Repl. Vol. 2004) when such intervention is likely to serve the best interests of the
child(ren) whose custody is under adjudication.”). In Syllabus point 2 of In re Clifford K.,
217 W. Va. 625, 619 S.E.2d 138, we explained that
[t]he reference to “exceptional cases” contained in
W. Va. Code § 48-9-103(b) (2001) (Repl. Vol. 2004) signifies
unusual or extraordinary cases, and, accordingly, a court should
exercise its discretion to permit intervention in such unusual or
extraordinary cases only when intervention is likely to serve
the best interests of the subject child(ren).
This case, however, is not an “exceptional case” within the contemplation of
this holding. In the Clifford K. case, we were faced with a situation in which a child's
biological mother had died, the child's biological father played an insignificant role in the
child's upbringing, and the mother's partner lived with the mother and the child as the
child's second parent. That case presented unique circumstances under which according
intervenor status to the mother's partner was quite reasonable and, in fact, was warranted
by the facts of the case insofar as the child regarded the mother's partner as his second
parent. The instant matter, however, does not present unique or extraordinary
circumstances such that intervention was warranted. Senturi has two parents, Misty and
Joshua; she resides with Misty and has visitation privileges with Joshua. Although Senturi
also spends time with Christopher and Tanya, there have been no allegations that either of
her biological parents are unfit to care for her or that there exist other circumstances to
require the presence of intervenors to protect her best interests. Simply stated, this case is
not an “exceptional case[]” as contemplated by W. Va. Code § 48-9-103(b), and the family
court erred by ruling to the contrary.
Be that as it may, the family court proceeded to find that Christopher and Tanya are Senturi's psychological co-parents and accorded them intervenor status on this basis. See W. Va. Code § 48-9-103(b); Syl. pt. 4, In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138. Again, however, the family court erred in applying the relevant law to the facts of this case because Christopher and Tanya do not meet the definition of a psychological parent.
A psychological parent is a person who, on a continuing
day-to-day basis, through interaction, companionship,
interplay, and mutuality, fulfills a child's psychological and
physical needs for a parent and provides for the child's
emotional and financial support. The psychological parent may
be a biological, adoptive, or foster parent, or any other person.
The resulting relationship between the psychological parent
and the child must be of substantial, not temporary, duration
and must have begun with the consent and encouragement of
the child's legal parent or guardian. To the extent that this
holding is inconsistent with our prior decision of In re Brandon
L.E., 183 W. Va. 113, 394 S.E.2d 515 (1990), that case is
expressly modified.
Syl. pt. 3, In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138. In the cases in which this
Court has determined a person to be a psychological parent to a child, that person typically
has resided in the child's household and interacted with the child on a daily basis. See, e.g., In re Clifford K., id.; In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996); Simmons
v. Comer, 190 W. Va. 350, 438 S.E.2d 530 (1993); Honaker v. Burnside, 182 W. Va. 448,
388 S.E.2d 322 (1989). Moreover, a psychological parent is one who essentially serves as
a second parent to a child and is a relationship to which the child's parent has consented.
See generally In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138; Simmons, 190 W. Va. 350,
438 S.E.2d 530; Honaker, 182 W. Va. 448, 388 S.E.2d 322.
In the case sub judice, the record reflects that Christopher and Tanya have
provided some level of care for Senturi since Christmas, 2004, and that some of the periods
of care have lasted for more than one day. There is no indication, however, that
Christopher and Tanya reside in the same household as Misty and Senturi or that they have
daily interactions with the child such that they routinely serve as additional parents to
Senturi. Furthermore, although Misty has consented to the formation of a relationship
between Senturi and Christopher and Tanya, it is not apparent from the record that the
relationship is so pervasive as to accord Christopher and Tanya the status of psychological
co-parents as that concept is defined in Clifford K. Obviously, a child will hold in high
esteem any person who looks after him/her, attends to his/her needs, and lavishes him/her
with love, attention, and affection. However, simply caring for a child is not enough to
bestow upon a care giver psychological parent status. Were this the law of the State, any
person, from day care providers and babysitters to school teachers and family friends, who
cares for a child on a regular basis and with whom the child has developed a relationship
of trust could claim to be the child's psychological parent and seek an award of the child's
custody to the exclusion of the child's parent. Clearly, this is not the result contemplated
by this Court's prior holding, and the family court's extension of the concept of
psychological parent to accord standing to Christopher and Tanya in this case was
improper. Accordingly, we reverse the decision of the circuit court affirming this ruling by
the family court.
In closing, we would be remiss if we did not address the convoluted
conflagration of events that has culminated in the instant appeal. From our first review of
this case, we have been deeply troubled by the utter disregard for Misty's rights to
the custody of her child. Misty first was deprived of her parental rights to her child when
she followed the court-approved parenting plan to notify Joshua of her intent to relocate
with Senturi to Texas. Upon complying with the notification requirement, Misty lost both
the custody of her child and her right to visit with her child not to the child's father, but to
Christopher and Tanya. No finding was made that Misty was unfit to have the custody of
her daughter (See footnote 12) as generally is required to effectuate a change in a child's custody. See, e.g.,
Syl. pt. 2, Cloud v. Cloud, 161 W. Va. 45, 239 S.E.2d 669 (1977) (per curiam) (“To 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.”). See also W. Va. Code §§ 48-9-401 (2001) (Repl. Vol. 2004), 48-9-402 (2001) (Repl. Vol. 2004)
(discussing methods for modifying parenting plan).
This unsupported usurpation of Misty's custodial rights was compounded
when the family court entered its temporary order to award Misty not the custody of her
child but rather minimal visitation with her pending the court's issuance of its final order.
By final order, the family court finally restored custody of Senturi to Misty, (See footnote 13) although it
required her to share parenting time with Christopher and Tanya, who the court found to
be Senturi's psychological co-parents. Even under the parties' present arrangement, Misty
does not have the exclusive care, custody, and control of her daughter. As a result of the
“'significant' parenting time” ordered by the family court and affirmed by the circuit court,
Misty represents in her brief to this Court that
[Christopher and Tanya] spend time with Senturi from
approximately 8:30 a.m. Friday until 6:00 p.m. on Monday.
Misty . . . spends time with her daughter from Monday evening
until Wednesday morning when [Christopher and Tanya] have
the child. They then return the child on Wednesday evenings
and Misty spends time with the child until Friday morning. Under this schedule, Misty may be designated as Senturi's “primary residential parent,” but
Senturi appears to actually be spending more time per week with Christopher and Tanya,
with whom she was not ordered to reside. Moreover, requiring Misty to acquiesce to
visitations between Senturi and third-persons with whom her relationship has substantially
deteriorated as a result of the instant litigation does not afford her the freedom to make
decisions for her child inherent in the rights accorded to a custodial parent.
In light of the facts and circumstances presently before us, and the lower
courts' complete and utter disregard of Misty's parental rights, we are compelled to
reiterate the preeminent importance of a parent's right to the custody of his/her child. As
we held in Syllabus point one of 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.
Therefore, we urge family and circuit courts to be ever vigilant when issuing rulings to
protect the best interests of children to ensure that the rights of those children's parents are
not unnecessarily trammeled in the process of administering justice.