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Michael
Garska v. Gwendolyn McCoy n1
n1 This case
was incorrectly styled upon papers presented
by counsel to this Court. In order to prevent
confusion we have styled the case: Michael
Garska, Appellee v. Gwendolyn McCoy,
Appellant. The case was presented to us
styled as follows: Stergil Altizer, et al.,
Plaintiffs Below v.Jonathan Conway McCoy,
Defendant Below, Michael Garska, Appellee,
Stergil Altizer, et al. etc., Defendants
Below,Gwen McCoy, Intervenor, Gwendolyn
McCoy, Appellant. This peculiar styling arose
because of the factual situation discussed
infra. Since our Court and the lower court
have treated this case as a custody dispute
we suggest that the natural mother, Gwendolyn
McCoy and the natural father, Michael Garska,
should be the named parties to the action on
remand.
No. 14962
Supreme
Court of Appeals of West Virginia
167 W. Va.
59; 278 S.E.2d 357; 1981 W. Va. LEXIS 619
May 26,
1981, Decided
DISPOSITION:
[***1]
Reversed and
remanded.
HEADNOTES: 1.
Infants -- Custody
W. Va. Code,
48-2-15 [1980] provides a sexneutral standard for
custody determinations based on the best
interests of the child.
2. Infants --
Best Interest of Child
With reference
to the custody of very young children, the law
presumes that it is in the best interests of such
children to be placed in the custody of their
primary caretaker, if he or she is fit.
3. Infants --
Primary Caretaker
The primary
caretaker is that natural or adoptive parent who,
until the initiation of divorce proceedings, has
been primarily responsible for the caring and
nurturing of the child.
4. Divorce --
Primary Caretaker
In establishing
which natural or adoptive parent is the primary
caretaker, the trial court shall determine which
parent has taken primary responsibility for the
caring and nurturing duties of a parent.
5. Parent and
Child -- Trial Court -- Primary Caretaker
Presumption
If the trial
court is unable to establish that one parent has
clearly taken primary responsibility for the
caring and nurturing duties of a child neither
party shall have the benefit of the primary
caretaker presumption.
6. [***2]
Divorce -- Custody -- Primary Caretaker
In a divorce
proceeding where custody of a child of tender
years is sought by both the mother and father,
the court must determine in the first instance
whether the primary caretaker is a fit parent,
and where the primary caretaker achieves the
minimum, objective standard of behavior which
qualifies him or her as a fit parent, the trial
court must award the child to the primary
caretaker.
7. Infants --
Custody -- Preference and Age of Child
The concept of a
"child of tender years" is somewhat
elastic; obviously an infant in the suckling
stage is of tender years, while an adolescent
fourteen years of age or older is not, as he has
an absolute right under W.Va. Code, 44-10-4
[1923] to nominate his own guardian. Where there
is a child under fourteen years of age, but
sufficiently mature that he can intelligently
express a voluntary preference for one parent,
the trial judge is entitled to give that
preference such weight as circumstances warrant,
and where such child demonstrates a preference
for the parent who is not the primary caretaker,
the trial judge is entitled to conclude that the
presumption in favor of the primary caretaker
[***3] is rebutted.
SYLLABUS: Unwed
mother appealed from order of the Circuit Court,
Logan County, Harvey Oakley, Judge, which gave
custody of her son to putative father.
COUNSEL: Raymond
F. Crooks for appellant.
Baer, Napier
& Colburn and James Allan Colburn for
appellee.
JUDGES: Neely,
Justice.
OPINIONBY: NEELY
OPINION: [*60]
[**358] The appellant, Gwendolyn McCoy, appeals
from an order of the Circuit Court of Logan
County which gave the custody of her son,
Jonathan Conway McCoy, to the appellee, Michael
Garska, the natural father. While in many regards
this is a confusing case procedurally, since the
mother and father were never married, nonetheless
it squarely presents the issue of the proper
interaction between the 1980 legislative
amendment to W. Va. Code, 48-2-15 [1980] which
eliminates any gender based presumption in
awarding custody and our case of J.B. v. A.B.,
161 W.Va. 332, 242 S.E.2d 248 (1978) which
established a strong [*61] maternal presumption
with regard to children of tender years.
In February,
1978 the appellant moved from her grandparents'
house in Logan County, where she had been raised,
to Charlotte, North Carolina to live with her
mother. [**359] [***4] At that time appellant was
15 years old and her mother shared a trailer with
appellee, Michael Garska. In March, Gwendolyn
McCoy became pregnant by Michael Garska and in
June, she returned to her grandparents' home in
West Virginia.
The appellant
received no support from the appellee during her
pregnancy, but after she gave birth to baby
Jonathan the appellee sent a package of baby food
and diapers. In subsequent months the baby
developed a chronic respiratory infection which
required hospitalization and considerable medical
attention. Gwendolyn's grandfather, Stergil
Altizer, a retired coal miner, attempted to have
his great-grandson's hospitalization and medical
care paid by the United Mine Workers' medical
insurance but he was informed that the baby was
ineligible unless legally adopted by the
Altizers.
In October, 1979
Gwendolyn McCoy signed a consent in which she
agreed to the adoption of Jonathan by her
grandparents, the Altizers. Upon learning of the
adoption plan, the appellee visited the baby for
the first time and began sending weekly money
orders for $15. The Altizers filed a petition for
adoption in the Logan County Circuit Court on 9
November 1979 and on 7 January [***5] 1980 the
appellee filed a petition for a writ of habeas
corpus to secure custody of his son.
Both the
adoption and the habeas corpus proceedings were
consolidated for hearing and the circuit court
dismissed the adoption petition upon finding that
the baby had not resided with the Altizers for
the requisite six months before the filing of the
petition, under W.Va. Code, 48-4-1(c) [1976],
since Gwendolyn McCoy had moved away from their
home for a short period. The circuit court heard
testimony from three witnesses on the father's
petition to be awarded custody of the child and
then adjourned the [*62] hearing without a
decision. The hearing on the habeas corpus
petition resumed on 27 May 1980 and the circuit
court awarded custody of Jonathan McCoy to the
appellee based upon the following findings of
fact:
(a) The
petitioner, Michael Garska, is the natural father
of the infant child, Johathan Conway McCoy;
(b) The
petitioner, Michael Garska, is better educated
than the natural mother and her alleged fiance;
(c) The
petitioner, Michael Garska, is more intelligent
that the natural mother;
(d) The
petitioner, Michael Garska, is better able to
provide financial support [***6] and maintenance
than the natural mother;
(e) The
petitioner, Michael Garska, can provide a better
social and economic environment than the natural
mother;
(f) The
petitioner, Michael Garska, has a somewhat better
command of the English language than the natural
mother;
(g) The
petitioner, Michael Garska, has a better
appearance and demeanor than the natural mother;
(h) The
petitioner, Michael Garska, is very highly
motivated in his desire to have custody of the
infant child, and the natural mother had
previously executed an adoption consent, for said
child.
The appellant
asserts the following errors: (1) the circuit
court failed to apply the tender years
presumption in favor of the mother articulated in
J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248
(1978) and earlier cases since it was the
operative rule of law at the time the pleadings
were filed; (2) the circuit court established and
applied arbitrary and inappropriate standards to
determine the relative fitness for custody of the
parties; and (3) the circuit court erroneously
refused to allow the petitioner to withdraw her
"consent for adoption" even though the
adoption petition itself had been dismissed.
[*63] [***7]
While the issue of adoption by the Altizers does,
indeed, enter into this case, in the final
analysis the entire dispute comes down to a
custody fight between the natural father and the
natural mother. Although Code, 48-2-15 [1980] is
concerned with the award of custody in a divorce
proceeding, that section is the preeminent
legislative expression of policy concerning
custody between natural parents in that it
abolishes all gender based presumptions and
[**360] establishes a "best interest of the
child" standard for the award of custody.
The final order was entered after the operative
date of the 1980 Amendment to W.Va. Code,
48-2-15, the relevant part of which provides:
In making any
such order respecting custody of minor children,
there shall be no legal presumption that, as
between the natural parents, either the father or
the mother should be awarded custody of said
children, but the court shall make an award of
custody solely for the best interest of the
children based upon the merits of each case.
Furthermore, the
case was tried below on the theory that Code,
48-2-15 [1980] applies to this case to the extent
that it obliterates the [***8] presumption of J.B.
v. A.B., supra, that children of tender years
should be awarded to the mother.
This Amendment
was enacted in response to J.B. v. A.B., where we
said in syl. pt. 2:
In a divorce
proceeding where custody of a child of tender
years is sought by both the mother and father,
the Court must determine in the first instance
whether the mother is a fit parent, and where the
mother achieves the minimum, objective standard
of behavior which qualifies her as a fit parent,
the trial court must award the child to the
mother.
In the case
before us the father, by providing fifteen
dollars a week child support, probably showed
sufficient parental interest to give him standing
to object to an adoption. n2 However, there is no
evidence before us to [*64] indicate that the
mother was an unfit parent and, consequently, no
justification for the trial court to remove
custody from the primary caretaker parent and
vest it in a parent who had had no previous
emotional interaction with the child.
n2 W.Va.
Code, 48-4-1(a)(2) [1976] says that a
determined father means any person who
"has acknowledged his parental status by
contributing to the child's support" and
W.Va. Code, 48-4-1(b)(1) says that "[i]n
the case of a child sought to be adopted, the
written consent, duly acknowledged, of the
mother and father (in the case of an
illegitimate child, the mother and determined
father) or the surviving parent of such child
sought to be adopted must be obtained."
[***9]
I
It is now time
to address explicity the effect which the strong
presumption in favor of the primary caretaker
parent articulated in J.B. v. A.B., supra has
upon the equity of divorce and child custody
dispositions. In this regard we must be concerned
not only with those disputes which are decided by
trial judges in court but also with all those
cases which are settled outside of court in
reliance on the rules we generate.
The loss of
children is a terrifying specter to concerned and
loving parents; however, it is particularly
terrifying to the primary caretaker parent who,
by virtue of the caretaking function, was closest
to the child before the divorce or other
proceedings were initiated. While the primary
caretaker parent in most cases in West Virginia
is still the mother, nonetheless, now that sex
roles are becoming more flexible and high-income
jobs are opening to women, it is conceivable that
the primary caretaker parent may also be the
father. If the primary caretaker parent is,
indeed, the father, then under W.Va. Code,
48-2-15 [1980] he will be entitled to the alimony
and support payments exactly as a woman would be
in similar circumstances. Peters v. [***10]
Narick, 165 W.Va. 662, 270 S.E.2d 760 (1980).
Since the parent
who is not the primary caretaker is usually in
the superior financial position, the subsequent
welfare of the child depends to a substantial
degree upon the level of support payments which
are awarded in the course of a divorce. Our
experience instructs us that [*65] uncertainty
about the outcome of custody disputes leads to
the irresistible temptation to trade the custody
of the child in return for lower alimony and
child support payments. Since trial court judges
generally approve consensual agreements on child
support, underlying economic data which bear upon
the equity of settlements are seldom investigated
at the time an order is entered. While Code,
48-2-15 [1980] speaks in terms of "the best
[**361] interest of the children" in every
case, the one enormously important function of
legal rules is to inspire rational and equitable
settlements in cases which never reach adversary
status in court. n3
n3 For a
complete discussion of this proposition see
Mnookin & Kornhauser, "Bargaining in
the Shadow of the the Law: The Case of
Divorce," 88 Yale L.J. 950 (1979).
[***11]
If every
controversy which arose in this society required
court resolution, the understaffed judiciary
would topple like a house of cards. It is only
voluntary compliance with the criminal law and
the orderly settlement of private affairs in the
civil law which permits the system to function at
all. Consequently, anytime a new statute is
passed or a new rule of common law developed,
both legislators and judges must pay careful
attention to interpreting it in a way which is
consonant with equity in the area of private
settlements.
Syl. pt. 2 of
J.B. v. A.B., supra, attempted to remove from
most run-of-the-mine divorce cases the entire
issue of child custody. Certainly if we believed
from our experience that full-blown hearings on
child custody between two fit parents would
afford more intelligent child placement than an
arbitrary rule, we would not have adopted an
arbitrary rule. However, it is emphatically the
case that hearings do not enhance justice,
particularly since custody fights are highly
destructive to the emotional health of children.
Furthermore, our mechanical rule was really quite
narrowly drawn to apply only to those cases where
voluminous evidence would inevitably [***12] be
unenlightening. We limited the mechanical rule to
the custody of children who are too young to
formulate an opinion concerning their own custody
and, further, we limited it to cases where an
initial [*66] determination had been made that
the mother was, indeed, a fit parent. While in J.B.
v. A.B., supra, we expressed ourselves in
terms of the traditional maternal preference, the
Legislature has instructed us that such a gender
based standard is unacceptable. However, we are
convinced that the best interests of the children
are best served in awarding them to the primary
caretaker parent, regardless of sex.
Since trial
courts almost always award custody to the primary
caretaker parent anyway, establishment of
certainty in this regard permits the issues of
alimony and support to stand upon their own legs
and to be litigated or settled upon the merits of
relevant financial criteria, without introducing
into the equation the terrifying prospect of loss
to the primary caretaker of the children. As we
noted in J.B. v. A.B., supra, at 242
S.E.2d 255, "empirical findings directly
or indirectly relevant to questions for which
judges deciding difficult [custody] cases [***13]
need answers are virtually nonexistent. Okpaku,
Psychology: Impediment or Aid in Child Custody
Cases? 29 Rutgers L.R. 1117, 1140 (1976)."
The 1980 Amendment to Code, 48-2-15 was not
intended to disturb our determination that in
most instances the issue of child custody between
two competent parents cannot be litigated
effectively. Its intent was merely to correct the
inherent unfairness of establishing a
gender-based, maternal presumption which would
defeat the just claims of a father if he had, in
fact, been the primary caretaker parent.
II
In setting the
child custody law in domestic relations cases we
are concerned with three practical
considerations. First, we are concerned to
prevent the issue of custody from being used in
an abusive way as a coercive weapon to affect the
level of support payments and the outcome of
other issues in the underlying divorce
proceeding. Where a custody fight emanates from
this reprehensible motive the children inevitably
become pawns to be sacrificed in what ultimately
becomes a very cynical game. Second, in the
average divorce proceeding intelligent
determination of relative degrees of fitness
requires a precision of measurement [*67] [***14]
which is not possible given the tools available
to judges. Certainly it is no more reprehensible
for judges to admit that they cannot measure
minute gradations of psychological capacity
between two [**362] fit parents than it is for a
physicist to concede that it is impossible for
him to measure the speed of an electron. n4
Third, there is an urgent need in contemporary
divorce law for a legal structure upon which a
divorcing couple may rely in reaching a
settlement.
n4 According
to the Heisenberg Principle in Physics it is
impossible to assert in terms of the ordinary
conventions of geometrical position and of
motion that a particle (as an electron) is at
the same time at a specified point and moving
with a specified velocity for the more
accurately either factor can be measured the
less accurately the other can be ascertained.
While recent
statutory changes encourage private ordering of
divorce upon the "no-fault" ground of
"irreconcilable differences," W.Va.
Code, 48-2-4(a)(10) [1977], our legal [***15]
structure has not simultaneously been tightened
to provide a reliable framework within which the
divorcing couple can bargain intelligently.
Nowhere is the lack of certainty greater than in
child custody. Not very long ago, the courts were
often intimately involved with all aspects of a
divorce. Even an estranged couple who had reached
an amicable settlement had to undergo
"playacting" before the court in order
to obtain a divorce. Now, however, when divorces
are numerous, easy, and routinely concluded out
of court n5 intelligible, reliable rules upon
which out-of-court bargaining can be based must
be an important consideration in the formulation
of our rules.
n5
"Typically, the parties do not go to
court at all, until they have worked matters
out and are ready for the rubber stamp."
Friedman & Percival, A Tale of Two
Courts: Litigation in Alameda and San Benito
counties, 10 Law & Soc'y Rev. 267, 270
(1976), quoted in Mnookin & Kornhauser
supra n.2.
Since the
Legislature has concluded that private [***16]
ordering by divorcing couples is preferable to
judicial ordering, we must insure that each
spouse is adequately protected during the
out-of-court bargaining. Uncertainty of outcome
is very destructive of the position of the
primary caretaker parent because he or she will
be willing to [*68] sacrifice everything else in
order to avoid the terrible prospect of losing
the child in the unpredictable process of
litigation.
This phenomenon
may be denominated the "Solomon
syndrome", that is that the parent who is
most attached to the child will be most willing
to accept an inferior bargain. In the court of
Solomon, the "harlot" who was willing
to give up her child in order to save him from
being cleaved in half so that he could be equally
divided, was rewarded for her sacrifice, n6 but
in the big world out there the sacrificing parent
generally loses necessary support or alimony
payments. n7 This then must also be compensated
for "in the best interests of the
children." Moreover, it is likely that the
primary caretaker will have less financial
security than the nonprimary caretaker and,
consequently, will be unable to sustain the
expense of custody litigation, n8 requiring as is
[***17] so often the case these days, the
payments for expert psychological witnesses.
n6 1 Kings
3:16 et. seq.
n7 There is
very little hard evidence to support this
theory that parents use the specter of
custody proceedings to gain leverage in
financial settlements. An interview
transcript on file with the Yale Law Journal
with the Assistant Clerk of New Haven County
Superior Court at p.7 (Dec. 17, 1977) attests
to the frequency of fathers using threats of
a custody battle to gain a reduction in
alimony. See Note, "Lawyering for the
Child", 87 Yale Law Journal 1126, 1131
n. 21 (1978).
n8 For a
discussion of decision making by the parties
to litigation, see Galanter, "Why the
'Haves' Come Out Ahead: Speculatories or the
Limits of Legal Change", 9 Law &
Soc'y Rev. 95 (1974).
Therefore, in
the interest of removing the issue of child
custody from the type of acrimonious and
counter-productive litigation which a procedure
inviting exhaustive evidence will inevitably
create, we hold today [***18] that there is a
presumption in favor of the primary caretaker
parent, if he or she meets the minimum, objective
standard for being a fit parent as articulated in
J.B v. A.B., supra n9 regardless of sex.
Therefore, [**363] in any custody dispute
involving children of tender years it is
incumbent upon the [*69] circuit court to
determine as a threshold question which parent
was the primary caretaker parent before the
domestic strife giving rise to the proceeding
began.
n9 As we
said in J.B. v. A.B., supra, where the
primary caretaker fails to provide: emotional
support; routine cleanliness; or nourishing
food, the presumption shall not apply.
While it is
difficult to enumerate all of the factors which
will contribute to a conclusion that one or the
other parent was the primary caretaker parent,
nonetheless, there are certain obvious criteria
to which a court must initially look. n10 In
establishing which natural or adoptive parent is
the primary caretaker, the trial court shall
determine which [***19] parent has taken primary
responsibility for, inter alia, the performance
of the following caring and nurturing duties of a
parent: (1) preparing and planning of meals; (2)
bathing, grooming and dressing; (3) purchasing,
cleaning, and care of clothes; (4) medical care,
including nursing and trips to physicians; (5)
arranging for social interaction among peers
after school, i.e. transporting to friends'
houses or, for example, to girl or boy scout
meetings; (6) arranging alternative care, i.e.
babysitting, day-care, etc.; (7) putting child to
bed at night, attending to child in the [*70]
middle of the night, waking child in the morning;
(8) disciplining, i.e. teaching general manners
and toilet training; (9) educating, i.e.
religious, cultural, social, etc.; and, (10)
teaching elementary skills, i.e., reading,
writing and arithmetic.
n10 The
Oregon Supreme Court has also relied upon a
determination of the primary caretaker parent
in reaching custody decisions. That court
awarded custody to a mother when: "The
undisputed evidence in this case was that the
wife was not merely the mother but was also
the primary parent. During the marriage she
was not working and performed the traditional
and honorable role of homemaker. She cleaned
the house, cared for the children, fed the
family, nursed them when sick and spent those
countless hours disciplining, counseling and
chatting with the children that every
homemaker should. For some families the
husband may perform this role and be the
primary parent. In other families the parents
evenly divide the role and there is no
primary parent. In this family the husband
played the traditional role of breadwinner,
working eight to ten hours a day. In his
off-hours he dedicated much time and
attention to the children, but the lion's
share of the child raising was performed by
the wife. It is undisputed that the children
were happy and well-adjusted and that the
relationship between the wife and children
was close, loving and successful. Although
the same relationship unquestionably existed
to a degree with the husband, the close and
successful emotional relationship between the
primary parent and the children coupled with
the age of the children dictate the
continuance of that relationship." Derby
and Derby, 31 Or. App. 803, 806-7, 571 P.2d
562, 1080 (1977), modified on other
grounds, 31 Or. App. 1333, 572 P.2d 1080
(1977), rev. den. 281 Or. 323 (1978).
[***20]
In those custody
disputes where the facts demonstrate that child
care and custody were shared in an entirely equal
way, then indeed no presumption arises and the
court must proceed to inquire further into
relative degrees of parental competence. However,
where one parent can demonstrate with regard to a
child of tender years that he or she is clearly
the primary caretaker parent, then the court must
further determine only whether the primary
caretaker parent is a fit parent. Where the
primary caretaker parent achieves the minimum,
objective standard of behavior which qualifies
him or her as a fit parent, the trial court must
award the child to the primary caretaker parent.
Consequently,
all of the principles enunciated in J.B. v.
A.B., supra, are reaffirmed today except that
wherever the words "mother,"
"maternal," or "maternal
preference" are used in that case, some
variation of the term "primary caretaker
parent," as defined by this case should be
substituted. In this regard we should point out
that the absolute presumption in favor of a fit
primary caretaker parent applies only to children
of tender years. Where a child is old enough to
formulate an opinion about his [***21] or her own
custody the trial court is entitled to receive
such opinion and accord it such weight as he
feels appropriate. When, in the opinion of the
trial court, a child old enough to formulate an
opinion but under the age of 14 has indicated a
justified desire to live with the parent who is
not the primary caretaker, the court may award
the child to such parent.
[**364] III
In the case
before us it is obvious that the petitioner was
the primary caretaker parent before the
proceedings under consideration in this case
arose, and there is no finding on the part of the
trial court judge that she is an unfit parent.
[*71] In fact, all of the evidence indicates that
she mobilized all of the resources at her
command, namely the solicitous regard of her
grandparents, in the interest of this child and
that she went to extraordinary lengths to provide
for him adequate medical attention and financial
support. While, as the trial court found, the
educational and economic position of the father
is superior to that of the mother, nonetheless,
those factors alone pale in comparison to love,
affection, concern, tolerance, and the
willingness to sacrifice -- factors about which
conclusions [***22] can be made for the future
most intelligently upon a course of conduct in
the past. At least with regard to the primary
caretaker parent there is a track record to which
a court can look and where that parent is fit he
or she should be awarded continued custody.
Certainly the
record in the case before us does not demonstrate
any intent by the mother to abandon the child
through permitting him to be adopted by the
grandparents; it is well recognized that mothers
in penurious circumstances often resort to
adoption in order to make the child eligible for
social security or union welfare benefits, all of
which significantly enhance the child's
opportunities in life. Absent an explicit finding
of intent to abandon we cannot construe
manipulation of the welfare system to direct
maximum benefits towards this child as anything
other than a solicitous concern for his welfare.
Accordingly, for
the reasons set forth above the judgment of the
Circuit Court of Logan County is reversed and
remanded with directions to enter an order in
favor of the petitioner.
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