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 W.Va.
Code § 48-9-103(b) allowing intervention “by other persons or public
agencies” in “exceptional cases” in such a manner as to create
a substantive right where none existed before. The majority has effectively broadened
the three categories of persons who have standing to participate in custodial
determinations pursuant to W.Va. Code § 48-9-103(a) to include a fourth
entirely new category it calls “psychological parents.” I do not believe
that this judge-made category was contemplated when the Legislature enacted subsection
(b) of W.Va. Code § 48-9-103 to deal with “exceptional cases.”
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, W.Va. Code § 49-3-1(a) (2001) provides for
grandparent preference in determining adoptive placement for a child where parental
rights have been terminated. While this is not an abuse and neglect case, I believe
that the public policy set forth in this statute _ to place children who cannot
live with a natural parent in the custody of a grandparent where possible _ should
have been considered here. Obviously, this preference for grandparent custody
is derived from the natural right to custody of a biological parent. See Syllabus
Point 1, Leach v. Bright, 165 W.Va. 636, 270 S.E.2d 793 (1980) (“A
parent has the natural right to the custody of his or her infant child and, 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 permanently transferred, relinquished or surrendered such custody, the right
of the parent to the custody of his or her child will be recognized and enforced
by the courts.”). In my opinion, the majority's decision to create a new
class of “psychological parents” to resolve the custody issue in this
case was simply unwarranted given the public policy expressed in W.Va. Code § 49-1-3(a).
In this
case, there was no evidence presented indicating that placing Z.B.S. in the custody
of his maternal grandparents would not be in his best interests. To the contrary,
the record reflects that Z.B.S. has spent a considerable amount of time with
his maternal grandparents and that a strong child-grandparent bond exists. Given
these circumstances, I can see no reason why Z.B.S. could not have a happy and
healthy childhood in their care.
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.