2. In the Matter of the Application of Betty Ann Cronauer - Writ of Habeas Corpus v. State of West Virginia (McHugh, C.J.) 322 S.E.2d 862 (1984) - The State of California asked W.Va. for extradition of mother on felony warrant for violation of a child custody order. The request was honored by W.Va. even though (1) child had been returned, and (2) the defendant mother had arguable right to children under prior North Carolina order. McGraw, J. dissented.

4. Arbogast v. Arbogast (Harshbarger, J.) 327 S.E.2d 675 (1984) - This is an important case on the Federal Parental Kidnaping Prevention Act (PKPA) of 1980. The concept of "continuing jurisdiction" is applied demonstrating how important it is to read the W.Va. UCCJA together with case law and PKPA provisions. As the final remedy for the denial of visitation by the mother, custody was given to father.

5. Sams v. Boston (McHugh, J.) 384 S.E.2d 151 (1989) - In 1983, shortly after the wife filed for divorce, the father disappeared with the couple's 3 children. Unable to locate the children, the wife obtained a final divorce in 1984, but the order was silent as to child custody. In 1986, the wife located the children in Florida. By executing an agreement not to seek permanent custody the wife was allowed to have the children visit her in W.Va. Despite her agreement, wife filed to modify her divorce decree to obtain permanent custody of the children. In 1987, the trial court, after communicating with court in Florida, held that W.Va. was the "home state" or "significant-connection" state and awarded the mother permanent custody of the children. Meanwhile, Florida court ruled that it had "home state" jurisdiction and granted father permanent custody of the children. Father appealed W.Va. custody order. Supreme Court held that under both the UCCJA and PKPA a state remains the "home state" for a "reasonable period of time, where the children have been abducted and concealed in another state by one of the parents." Court affirmed trial court's subject-matter jurisdiction and remanded case for full evidentiary hearing on custody. Miller, J. concurred.

6. In the Interest of Brandon L.E. (Workman, J.) 394 S.E.2d 515 (1990) - In a custody battle, between child's maternal grandmother and his father, the circuit court in W.Va. was asked to modify a Florida order granting custody to the father, but judge ruled that under the UCCJA, W.Va. lacked jurisdiction to reopen the case. Supreme Court reviewed ways to establish jurisdiction under the UCCJA and held that Florida could no longer assert jurisdiction. Both the child and grandmother had significant connections to W.Va. as the "home state", and the courts here therefore had access to the most important evidence regarding the child. Court held that if a third party serves as a child's "psychological parent" for a "significant period of time" while the natural parent failed to maintain ties with child, "the child's environment should not be disturbed without a clear showing of significant benefit to him."

7. Escudero v. Henry (Neely, C.J.) 395 S.E.2d 793 (1990) - In May, 1986, the parties were divorced in W.Va. and the wife was granted custody of the parties' child with liberal visitation for the husband. After one modification of visitation, the wife moved with the child to Kentucky in July, 1988, and the W.Va. court again modified the visitation schedule. In December, 1989, the husband petitioned the W.Va. court to authorize unsupervised air transportation for the child, and 3 days later prior to receiving any notice of the W.Va. proceeding, the wife filed a petition in Kentucky to limit visitation because of the child's school enrollment. When both courts asserted jurisdiction and proceeded to hear their respective cases, the wife petitioned the Supreme Court to prohibit the W.Va. judge from exercising jurisdiction over the case. Supreme Court held that PKPA has clear preference for "continuing jurisdiction" in the state that issued a valid initial order. A W.Va. court may retain jurisdiction if: 1) the initial order follows the UCCJA and PKPA; 2) under UCCJA the court continues to have jurisdiction to modify its order; 3) the court's long involvement means substantial evidence is available regarding the child; and 4) the W.Va. litigant has substantial interest in W.Va. court retaining jurisdiction. Because the husband remained a resident of W.Va. and the court had substantial knowledge about the child, it was not an abuse of discretion for the W.Va. court to hear the modification.

8. UNITED STATES SUPREME COURT - Thompson v. Thompson, 108 S.Ct. 513, 98 L.Ed. 512 (1988) - When the state courts of California and Louisiana each granted one of the parties sole custody of their child, the father sought a federal district court order, under the Federal Parental Kidnaping Prevention Act of 1980 (PKPA), declaring the Louisiana decree invalid and the California decree valid. The district court dismissed the complaint on grounds that no claim was made upon which relief could be granted and court of appeals affirmed. U.S. Supreme Court held that PKPA does not provide an implied cause of action in federal court to determine which of two conflicting state custody decisions is valid. Congress intended to extend requirements of Full Faith and Credit Clause to custody determinations, and not to create an entirely new cause of action.

9. Sheila L. v. Ronald P.M. (Cleckley, J.) 195 W.V. 210, 465 S.E.2d 210 (1995) - The parties are parents of Ronald M.M. who was born in Ohio in 1990 and whose paternity was established by the court in Ohio. The mother moved with the son to W.Va. in 1992. During a visit with the father in Ohio, conduct termed "sexual exploration" was noted and reported to the mother who immediately sought counseling for her son. During a later visit in 1993, the father obtained an ex parte order granting him temporary custody from the Ohio court based on charge that son was in danger in mother's custody of physical harm from sexual abuse. Mother immediately petitioned for custody in W.Va. circuit court which ruled W.Va. had jurisdiction and asked the Ohio court to stay proceedings so that all issues could adjudicated in W.Va. The Ohio court responded that it would retain continuing jurisdiction as a result of the parentage action filed there and that best interests of child required Ohio court decide custody issue. Ohio court found child was not abused or neglected but was integrated in father's home and entered final order granting father permanent custody, and W.Va. court gave full faith and credit to the order, dismissing mother's petition.

After a very thorough discussion of the UCCJA and the PKPA, the Supreme Court found that under the PKPA, W.Va. was the home state, the W.Va. court retained jurisdiction, and the parentage action was not a custody determination that would give Ohio continuing jurisdiction. "Unsubstantiated statements of a parent that a child is being subjected to or threatened with mistreatment or abuse, by themselves, cannot serve as a basis to invoke jurisdiction of a court to enter or modify a permanent custody award under the Parental Kidnaping Prevention Act...." If emergency jurisdiction is asserted based on these statements, additional evidence should be gathered immediately and "temporary jurisdiction should last only so long as the emergency exists...." The Court held the Ohio order not entitled to full faith and credit under PKPA because its order was not consistent with PKPA; W.Va. had priority as the "home state"; Ohio did not have continuing jurisdiction and Ohio did not have subject matter jurisdiction to enter permanent order under emergency provisions of PKPA. This was "an outrageous example of how one parent who did not participate in child rearing until the time of emergency custody manipulated the legal system to obtain permanent legal custody."

10. Sandra M. v. Jeremy M., 476 S.E.2d 213 (1996) - The child of the parties was born in California in 1993 and resided there a year, then moved with the family to Florida and lived there for 5 weeks until the wife separated from the husband and moved with the child to W.Va. The husband filed for divorce and custody in Florida and a month later the wife filed for custody in W.Va. The Florida court entered a final divorce order granting the father temporary custody which the wife timely appealed, and upon wife's motion Judge Lyne Ranson spoke by phone with the Florida judge and apparently ceded jurisdiction to Florida. Ultimately, Florida court awarded permanent custody to husband and W.Va. court gave full faith and credit to that order which wife appealed. Finding that under the UCCJA neither Florida nor W.Va. was child's home state, Supreme Court upheld jurisdiction in Florida based on lower court's decision to decline jurisdiction, but ruled that "the passage of time now makes West Virginia an appropriate forum for a modification proceeding should the Appellant choose to bring it," because this state now has "significant evidence" regarding child's welfare.

11. Rock v. Rock (Workman, J.) 475 S.E.2d 540 (1996) - This UCCJA case stems from a divorce filed by the wife in Maryland after she alleged her husband had sexually abused their daughter, who was then 5 years old. After appointing an attorney to represent the child and taking substantial evidence, the Maryland court ordered supervised visitation which the wife defied. When the wife, without notice, moved to W.Va. with the child, the Maryland court gave custody to the husband. Following a phone conference with the Maryland court, the W.Va. judge declined to hear the wife's custody petition, ruling that Maryland had continuing jurisdiction, and the wife appealed. The Supreme Court ruled that once a W.Va. court confirms that a custody proceeding is pending in another state which wishes to retain jurisdiction obtained in conformity with the UCCJA, the W.Va. court must defer jurisdiction. The Court however voiced concern over Maryland closing the case of alleged sexual abuse and failure to provide transitional reunification of the child with her father, and opined that the wife's only "avenue of relief...is to initiate modification proceedings" here if W.Va. has 'substantial evidence concerning the child's present or future care, protection, training and personal relationships.'

12. State ex rel. Conforti v. Wilson (Per Curiam) No. 25044, July 6, 1998 The parties were divorced in Jefferson County, Ohio, and wife was granted custody of the child with supervised visitation for the husband who was a native of India and considered a risk to flee with the child. The wife and child moved to Hancock County, W.Va. and the husband filed there for change of custody. The family law master declined jurisdiction finding that Ohio was the more appropriate forum, but the circuit judge remanded case for findings regarding need for W.Va. residents to testify concerning custody issues. The wife and child moved back to Ohio. The FLM then issued second order finding W.Va. was appropriate jurisdiction which was adopted by the circuit court and accepted by Ohio judge who vacated his order regarding same case. The Supreme Court held that while W.Va. had jurisdiction under the PKPA and UCCJA when case was filed, the fact that both parties and the child now resided in Ohio dictated that the best interests of the child would be served by the State of Ohio making the decision regarding custody modification.

a. Goetz v. Carpenter, 367 S.E.2d 782 (1988) - Mother appealed order which found her to be the primary caretaker but awarded custody of two infant daughters to the father. Supreme Court reversed because the trial court based the award on a finding that the mother had "neglected" and "abused" the children, allegations which were neither alleged by the father nor supported by the evidence.

b. T.S.K. v. K.B.K., 371 S.E.2d 362 (1988) - Mother appealed divorce order which found her husband to be the primary caretaker and a fit and proper person to have custody of their two sons. Supreme Court reviewed evidence that father cared for many of children's day-to-day needs as well as religious training and Little League activities. The Court concluded that the mother was equally involved in the physical care of the children but was "more flexible in addressing children's needs", and noted that one child stated a preference to live with her. Court awarded custody of both children to the mother.

c. David M. v. Margaret M. (Neely, J.) 385 S.E.2d 912 (1989) - Mother who was found to be the primary caretaker appealed ruling that she was not a fit and suitable custodian of the parties' 5 year-old son. The finding of unfitness was based on evidence of adultery on 3 occasions over 2-year period. Supreme Court presented extensive discussion of the arguments in favor of primary caretaker presumption in effort to halt its erosion through the litigation of exceptions to the rule. Court stated that testimony regarding which parent is the primary caretaker should be given by lay, not expert, witnesses. Only in exceptional cases should children of appropriate age and discretion be allowed to testify as to parental preference. Joint custody cannot be ordered over the objections of a primary caretaker. Court reversed trial court and awarded custody to primary caretaker.

d. Moses v. Moses, 421 S.E.2d 506 (1992) - In this divorce action, the master recommended custody of the 3 children be given to the wife, but the circuit court found the husband to be the primary caretaker and granted him custody of the children. On appeal, the wife asserted that she was the primary caretaker and that she was not an unfit parent. Substantial and conflicting evidence was presented on the question of who was the primary caretaker. The evidence while conflicting indicated that the wife was in the home during the first 4 years, that the husband did care taking tasks for the children, and that the wife became active in an actor's guild and many evenings left the children in the husband's care. While the judge ruled the wife unfit based on finding her a poor housekeeper, that she abused alcohol and marijuana and had been in an extramarital relationship, the Court held that the evidence failed to show that the wife was unfit to have custody of her children. Custody in the husband was affirmed, but case remanded for hearings to define visitation with the wife to insure that the wife will have "actual and meaningful visitation with the children. Such rulings might include the directive that Michael S. Moses pay all reasonable travel costs necessary to insure liberal visitation."

e. Lewis v. Lewis, 433 S.E.2d 536 (1993) - Both parties in the divorce claimed to be the primary caretaker of their 4-year-old daughter. The mother had been employed since the child's birth and the father remained in the home and cared for the child, except for a 6 month period when he as employed in North Carolina. The family law master found the father was the primary caretaker and awarded him custody. The circuit court reversed stating "this Court cannot escape the conclusion that a small child, especially a female child, should be in the custody of that child's mother." The Supreme Court reversed and remanded the case with instructions that the court determine which parent is the primary caretaker without relying on "personal convictions regarding the proper placement of a female child."

f. Rhodes v. Rhodes, 449 S.E.2d 75 (1994) - Each party to the divorce sought custody of their two small children. The wife had been the main custodian except for a period when the husband was unemployed. The family law master recommended custody to the wife, but the circuit judge awarded custody to the husband based on the fact that the wife taught in Germany during the school year and that it would be not be in the children's best interest to be raised by one parent in a foreign land. The Supreme Court reversed finding that the evidence supported the family law master's conclusion that the wife had been the primary caretaker for a majority of the children's lives, and that under the facts in this case, the trial court's "concern for the children's well-being in Germany" was not a proper basis for the custody determination.

I. Spear v. Spear (Per Curiam) No. 24754, July 14, 1998 - Both the family law master and circuit judge ruled the husband was the primary caretaker and granted him custody of 2 young daughters with liberal visitation to the mother. Supreme Court found that wife's sister provided only firsthand information, and husband admitted he was busy running two funeral homes, free-lancing for a funeral home in another county, and serving as the sole paramedic for the local volunteer fire department, as well as hunting and pursuing other hobbies. Court held that the family law master was clearly wrong in finding that the appellee was the primary caretaker of the children, and that care of children by husband's family does not satisfy the Garska's requirements. Order reversed and custody granted to the mother.

Workman, J. concurring: This case involved two excellent, loving parents, both of whom want continued close relationships with their children. Mediation programs are needed especially when children are involved. Children have right to a close relationship with both parents, and visitation plans need to facilitate this relationship.

a. Allen v. Allen (McGraw, J.) 320 S.E.2d 112 (1984) - Trial court without ruling on whether either parent was primary caretaker, awarded custody to father to punish the mother. The judge refused to find custody award to be in the child's best interest, refused to acknowledge the reformation of mother existing at time of decree and failed to rule specifically on her fitness. The Supreme Court reversed and remanded. Neely, J. dissented.

b. Rozas v. Rozas (Neely, J.) 342 S.E.2d 201 (1986) - Father obtained temporary custody of infant daughter while child was hospitalized. Judge made no finding on fitness of mother yet returned child to her custody on the condition that they both live in her parents' home. Judge also refused to admit into evidence or allow father to examine mental health report on mother. Supreme Court remanded case for finding on mother's fitness with caveat that the maternal grandparents cannot supplant fit parent's right to custody. After a discussion of the admissibility of such reports, the trial court's exclusion of report was upheld, but father was granted right to inspect it.

c. Channell v. Channell, 432 S.E.2d 203 (1993) - In the divorce, the circuit court granted the father custody of the parties' 6 & 1/2-year-old daughter. Each parent was found to be equally responsible for the care and nurturing of the child. Applying the best interests standard, the family law master and judge granted custody to the father even though he was about to start a job involving 12 hour work days and travel. The father's parents who lived next door to the father had been an integral part of the girl's life and the court noted they would be available to offer the child support and guidance. Finding no abuse of discretion, the Supreme Court affirmed custody award and denied the mother's claim for alimony.

d. Patricia Ann S. v. James Daniel S., 435 S.E.2d 6 (1993) - In the temporary order of November, 1990, the family law master granted the father custody of the parties' 2 sons then aged 12 and 9-years, and the mother custody of the daughter, then aged 5-years. The master finally recommended the father be awarded custody of all 3 children, which was affirmed by the circuit court on February 14, 1992, but stayed on March 18th for 90 days on the mother's motion, leaving the daughter with the mother. Thereafter, the mother was granted an extension in which to file a Supreme Court appeal, but a further stay was denied leaving the daughter in the father's custody since July 16, 1992. On appeal the mother cited as error: a) failure to find that she was the primary caretaker; b) use of psychological experts prior to determining the primary caretaker; and c) failure to grant her custody of the children. The court found both parties fit and that because child care duties were shared neither party was the primary caretaker. The Supreme Court affirmed this ruling despite the fact that the mother was a homemaker and the father was the wage earner, finding that "the length of time a parent has alone with a child" does not determine whether a parent is entitled to the primary caretaker presumption. The Court approved the reliance on the evidence from the psychologists and affirmed custody of the boys with the father. But finding the record regarding placement of the daughter was "inadequately developed," the case was remanded for a determination the custody arrangement that is in the best interests of the daughter, with the child to remain with the father during this investigation. The Court noted that both parents would benefit from parental counseling and that the father had manipulated the children against the mother.

Workman, C.J. dissent: The majority was clearly wrong in not holding the mother to be the primary caretaker because she definitely played the larger caretaking role. The majority's ruling "places a higher value on a father's time and contribution." The majority 'avoided' the primary caretaker issue by prematurely introducing expert evidence regarding the parties' relative fitness. The master refused to permit the wife to testify about the abuse she sustained, apparently concluding that it had nothing to do with the children. The record of the father's manipulation and control of the children and his behavior of demeaning and discrediting the mother was ignored. Judges and masters must understand the significance of emotional and physical abuse and recognize that domestic violence is a very important consideration in determining child custody. The failure to acknowledge this is evidence of the gender bias in the court system, pointing up the need for gender bias education and more women in the judiciary.

e. Shearer v. Shearer, 448 S.E.2d 165 (1994) - A child was born to the parties 6 months prior to their marriage and when the child was 3, the wife filed for divorce and both parties sought custody. After taking substantial evidence on the care of the child, the family law master ruled that neither party was entitled to the primary caretaker presumption and after finding that the husband was a life long resident of Morgantown, had completed his graduate education and was employed, both sets of grandparents lived nearby and he was more financially able to support the child, awarded custody to the husband. The circuit court adopted the master's recommendation. After a detailed review of the evidence on each of the parties' care of the child in light of the factors listed in David M. v. Margaret M., 385 S.E.2d 912 (1989), the Supreme Court held that the wife "was the one most closely involved with the primary functioning of the parties' infant child prior to the initiation of the divorce...," and was thereafter "deeply involved with the general care of the child, as well as his medical care." The Court held that the wife was the primary caretaker entitled to custody of the child.

Neely, J., dissent: The majority goes through "elaborate contortions" to reverse the master and circuit court order and award custody to the wife. "The simple truth is that there is a rampant gender bias that has clouded the majority's ability to render impartial decisions in the area of family law."

f. Hackworth v. Hackworth (Per Curiam) No. 24133, May 8, 1998 - The family law master concluded that neither parent was entitled to the primary caretaker presumption and that it was in the child's best interest for the husband to have custody, which the circuit court adopted. Finding no abuse of discretion, the Supreme Court affirmed.

1. S.L.M. v. J.M., 321 S.E.2d 697 (1984) - Mother lost custody of 4-year-old girl in modification proceeding based upon: (1) evidence that she concealed child from visitation, and (2) tape recorded conversation between the child and mother pertinent to the charge that the child was sexually abused while in the mother's care. Supreme Court made recommendation that courts should rely upon a psychiatrist's evaluation of the child or an in camera interview with child, but still affirmed this case.

3. Thomas v. Thomas, 327 S.E.2d 149 (1985) - Modification order which transferred custody to father was affirmed by Supreme Court based on evidence that the mother's boyfriend was involved in child abuse and drugs. Four of the older children testified that they wanted to live with the father.

4. Rowsey v. Rowsey, 329 S.E.2d 57 (1985) - Based on evidence that the mother violated court's restrictions barring her from seeing reputed lesbian and from taking children out of state, trial court transferred custody of two infant children to the father. Supreme Court reversed upon finding that the violations did not adversely affect the children and no showing made that change in custody would materially benefit the children. Court held that the decision whether to limit parents' right to travel with their children must be based on the welfare of the children.

5. Tucker v. Tucker, 341 S.E.2d 700 (1986) - In a modification proceeding father sought custody of his daughter based upon allegation that the mother's boyfriend had sexually abused the child. The boyfriend took a polygraph test and the report, which supported his contention that he did not harm the child, was sent to the judge. The judge immediately dismissed modification petition and canceled hearing. Supreme Court held that father's due process rights and protection of child's welfare required that hearing be held on the petition.

6. Weece v. Cottle, 352 S.E.2d 131 (1986) - A mother lost custody of daughter to the father on the grounds that she had interfered with the father's visitation rights. The mother panicked and fled the state with the child. The child was eventually located by the father and returned to W.Va. to his custody. The mother filed a petition to modify which was denied. Supreme Court reversed and remanded case for determination of what is now in best interests of the child noting that neither order addressed the child's interest and no finding made in earlier order that changing custody to the father would materially promote the child's welfare.

7. Walls v. Walls (Neely, J) 363 S.E.2d 521 (1987) - A mother who had been granted custody in a previous modification proceeding appealed decision to change custody back to the father. Supreme Court ruled that disjointed, 4-year-old record did not provide basis for making a custody decision. Case remanded for determination of child's best interest, without regard to previous orders, or issue of whom was the primary caretaker either initially or as a result of court orders.

8. Crone v. Crone, 375 S.E.2d 816 (1988) - Mother appealed modification order which granted the father certain exclusive visitation privileges. The trial court issued order based only upon a letter of complaint from the father's attorney and a responsive letter from the mother's attorney. No hearing was held. Supreme Court ruled that failure to grant mother notice and opportunity to be heard violated her due process rights and therefore visitation order was void.

9. Judith R. v. Hey (Workman, J.) 405 S.E.2d 447 (1990) - Circuit judge ordered that custody of 14-year-old daughter be transferred from the mother to the father unless within 30 days of the hearing the mother either: (1) married the man with whom she was cohabiting, or (2) moved to separate living quarters. The court relieved the father of his alimony and child support obligation for the 30 day period. Finding no evidence of unfitness or that mother's conduct adversely affected the child, and upon consideration of child's preference for her mother, Supreme Court granted mother's petition for a writ of prohibition. Suspension of child support was clear abuse of discretion, and "an ex-wife's cohabitation with an adult male not her husband does not constitute grounds for termination or reduction of alimony award absent showing of change in financial condition of ex-wife by reason of contribution by the person with whom she cohabits." Upon remand case to be assigned to another judge in the circuit, after Court found that trial judge exceeded acceptable realm of public comment in regards to the merits of the case and the character of the mother.

10. Jenkins v. Jenkins, 447 S.E.2d 554 (1994) - By written agreement incorporated into their divorce order, the parties agreed to joint custody of their two children with the wife having primary custody. 2 & 1/2 years later, the husband petitioned for sole custody charging that the living conditions were harmful to the children and that the wife failed to adequately supervise or care for the children. The family law master reviewed investigations by the Child Advocate mediator and a home study by the Maryland Department of Social Services which found the children were properly cared for by the wife and recommended the wife retain custody. The master found the wife's frequent moves were compelled by financial pressures and not her instability. The judge found the husband's household would provide the children more stability and granted him custody. The Supreme Court reversed finding that the changes in residence caused by the wife's financial problems did not adversely affect the children and the evidence failed to show that a custody change would materially promote the welfare of the children.

11. Dancy v. Dancy, 447 S.E.2d 883 (1994) - The parties were divorced in 1986, and the wife was awarded custody of their daughter with liberal visitation with the husband. In 1991, the wife entered an alcoholism treatment program and later that year after suffering a relapse the Department of Health and Human Resources (DHHR) petitioned for custody of the child citing her mother's drinking and failure to provide supervision. The husband's petition for temporary custody was granted by the family law master through the school year. A custody evaluation determined that the child was well-adjusted and did not have a preference for which parent would have custody. After finding that the wife complied with the Department's service plan and hearing the wife's substance abuse counselor testify in support of custody for the wife, the family law master recommended that the child be returned to the wife and the circuit court after one remand affirmed. The Supreme Court affirmed custody in the wife based on the evidence that her alcoholism is under control and it is in the child's best interest to be returned to her custody. However, if the wife is not able to abstain from alcohol, that would constitute a change of circumstances that would warrant permanent custody with the husband.

12. Mesecher v. Dudding (Per Curiam) No. 24963, July 2, 1998 - After paternity was established by blood-testing and the parties lived together for 2 years, they separated and the child lived with the mother. Then the parties executed an agreement transferring custody of the child to the father for one school year because the mother felt she could not properly care for the child. The father then obtained temporary custody and a year later the mother filed to regain custody. Finding that the parties' agreement was for a temporary change in custody, the family law master and circuit court returned custody to the mother. Finding no abuse of discretion from the very limited record, the Supreme Court affirmed but advised the trial court to devise a gradual plan for changing custody if the child still remained with the father.

1. Stacy v. Stacy, 332 S.E.2d 260 (1985) - Trial court cited evidence of mother's adultery as reason to deny her custody, without making a finding that such conduct had an adverse effect on the children and after failing to rule on the issue of primary caretaker. Reversed and remanded.

2. Bickler v. Bickler, 344 S.E.2d 630 (1986) - Trial court found mother to be the primary caretaker but ruled that evidence of her adulterous relationship rendered her unfit to have custody of her daughter. Supreme Court, after finding the mother was not guilty of gross immorality sufficient to overcome the primary caretaker presumption, and her relationship had not been harmful to the child, granted her custody.

Brotherton, J. dissent: Court has adopted a new morality which may not be beneficial to the child. The judge's discretion should have been upheld. McHugh, J. joins in the dissent.

3. M.S.P. v. P.E.P., 358 S.E.2d 442 (1987) - Mother appealed divorce order which granted the parties joint custody of their two minor children with physical custody in the father. After finding the mother to be primary caretaker and not unfit, the trial court denied her sole custody based on the "moral atmosphere" in her home. The Supreme Court reversed and ordered custody be awarded to the mother.

4. Isaacs v. Isaacs, 358 S.E.2d 833 (1987) - Based on evidence of the mother's adultery, trial court awarded custody of 4-year-old daughter to the father, "the innocent spouse." Supreme Court ruled that the mother was primary caretaker of the child and was a fit person to have custody notwithstanding her sexual misconduct. Evidence of the mother's conduct was not egregious and no deleterious effect upon the child was shown.

1. Bowens v. Maynard (Neely, J.) 324 S.E.2d 145 (1984) - Parents gave physical custody of their young children to third party. Father was granted legal custody of children in divorce decree but while he was trying to regain possession of children, an abuse petition was filed against him. Judge in abuse proceeding refused to allow custodian or the children to intervene. Supreme Court held that custodian of children has the following rights: (1) service of petition and notice of hearings; (2) right to representation; (3) meaningful opportunity to be heard.

2. West Virginia Department of Human Services v. La Rea Ann C.L. (McHugh, J.) 332 S.E.2d 632 (1985) - After giving W.Va. Department of Human Services permanent consent to adopt her child, the 16-year-old mother's parents tried to revoke the consent. The trial court heard evidence on whether to approve the relinquishment and then did not render a decision until almost 4 years later after the natural mother filed a habeas corpus petition. Supreme Court ruled that even though the consent was revocable, when an infant spends a substantial period of time in a foster home, "extraordinary circumstances exist which demand that the best interests of the child not only be considered but be given primary importance." Remanded for a placement decision based on the best interest of the child.

3. In re Custody of Cottrill, 346 S.E.2d 47 (1986) - In a custody battle between a natural mother and paternal grandparents the trial court granted custody of 9-year-old girl to the mother upon finding her fit and that she had not abandoned the child. Supreme Court reversed, holding that the mother in fact had relinquished custody to the grandparents for several years and therefore must now show that a change in custody would promote the welfare and best interests of the child. The Court found that mother failed to meet this standard and granted custody to the grandparents.

4. State ex rel. West Virginia Department of Human Services v. Cheryl M. (Miller, J.) 356 S.E.2d 181 (1987) - Mother appealed order terminating her parental rights to her infant daughter. Supreme Court reversed because the mother was denied a meaningful improvement period, no family case plan was prepared and the evidence did not reach the clear and convincing standard. Neely, J. and Brotherton, J. dissented.

5. Viola v. Randolph (McHugh, J.) 356 S.E.2d 464 (1987) - Trial court was asked to determine custody of 5-year-old child whose father was convicted of first degree murder for killing the child's mother. The father had appointed his own brother as guardian for the child. When the maternal aunt refused to relinquish actual custody of the child to the uncle, the father and uncle filed a writ of habeas corpus and in response, the aunt filed a petition for custody. The trial court ruled that the father was a fit parent and upheld his appointment of the uncle as guardian for the child. Supreme Court held that the first degree murder conviction of the father for killing the child's mother warranted termination of his parental rights. Permanent guardianship of the child was given to the Department of Human Services and temporary custody to the aunt.

6. In re Livesay, 364 S.E.2d 267 (1987) - Mother appealed order granting temporary custody of her son to the child's paternal aunt and uncle with liberal visitation for the mother. The trial court order retained jurisdiction for possible modification later. Based on evidence of the mother's long voluntary absences from her son and previous attempts to relinquish permanent custody, Supreme Court found no abuse of discretion and affirmed.

7. Holland v. Nose and Holland, 364 S.E.2d 37 (1987) - Father appealed final order awarding custody of his minor son to the maternal grandmother, individually and in her capacity as committee for the child's natural mother. The mother had been granted custody of the child in the divorce order, and then ten months later became totally disabled after a fall. After finding that the child resided primarily with grandmother since the accident, and father owed back child support and had no medical insurance to provide for the child's seizure condition, Supreme Court held that a change in custody would not "materially promote the moral and physical welfare of the child," and affirmed.

8. Honaker v. Burnside et al. (Workman, J.) 388 S.E.2d 322 (1989) - Custodial mother died in auto accident leaving will placing 6-year-old daughter from first marriage in custody of her husband, the child's step-father since child was 1 year of age. Trial court ordered full restoration of custody to natural father after a 6 month transition period. There being no evidence of abandonment or unfitness, Supreme Court affirmed natural father's right to custody but remanded case for trial court to formulate a 6 month transition plan that would progressively increase natural father's visitation until full custody is completed. Once the transition is complete, both the stepfather and his son, the child's half-brother, are entitled to liberal reasonable visitation with the child in order to maintain a close relationship between them.

10. Snyder v. Scheerer, 436 S.E.2d 299 (1993) - The mother of a boy now 5 years of age sought to regain custody by filing a petition for habeas corpus. The mother had a long history of mental illness diagnosed as bi-polar disorder, or manic-depressive disorder which was treated with therapy and lithium medication. She became pregnant while residing in a board and care facility in California, and fearing she would lose custody of the child, moved to W.Va. to reside with her sister and brother-in-law. After the birth, the mother experienced episodes of mental illness requiring hospitalization. She signed a custody agreement giving her sister and her husband temporary custody of her son. Upon release from the hospital her sister did not permit her to live with them and the boy. The mother obtained a job and then began efforts to regain custody of her son when he was a year-old. Restricted visitation continued for a year during which time the mother suffered 2 orthopedic injuries. When she recovered she began her legal battle to regain custody. The mother has had no recurrence of mental illness, continues her lithium treatment and was given a strong recommendation by her treating psychiatrist. She was accepted into a nursing program in 1991. The circuit court found that the mother was an excellent parent when healthy, but because of her repeated relapses concluded that the boy should remain with his aunt and uncle who were his "psychological parents," with reasonable visitation rights for the mother. The Supreme Court reviewed right of natural parents to custody and held that "a parent who transfers temporary custody of a child to a third person,... may reclaim custody without showing that the change of custody will materially promote the moral and physical welfare of the child," if relinquishment is for a compelling reason. The Court reversed and granted custody to the mother concluding that the order infringed "too profoundly upon the rights of this natural parent to her child and is based upon mere speculation as to the future course of the Appellant's disorder." Neely, J. dissented.

11. Simmons v. Comer (Miller, J.) 438 S.E.2d 530 (1993) - This case involves a custody dispute over Nicole, a 3-year-old girl, between the mother and a man who is not her biological father. After the child was born, the mother told the man that he was the father. The man moved the mother, Nicole and her older sister into his home and proceeded to share parental care of Nicole. After 6 months, the mother and girls moved out to a nearby trailer. In the evenings, custody of Nicole was divided between the mother's and the man's homes. The man contributed support and transported the mother and Nicole to appointments and shopping. At the end of a year, fearing that the mother would move back to Ohio and while Nicole was in his custody, the man filed suit to obtain permanent custody of Nicole. At the first hearing in front of the family law master, the mother asserted that the man was not Nicole's father. The master ordered blood testing but in the meantime granted the man custody during the week and the mother visitation on weekends. The blood test proved that the man was not Nicole's father. The master then transferred custody to the mother and ordered her not to move Nicole out of W.Va. When she violated the order, the case was set before the judge who altered the custody and visitation schedule so both parties spent time with the child. After an evidentiary hearing, the court found that both parties were fit parents, both homes were adequate and that as a result of the mother's assertion that he was the father, the man had formed a "strong parent-child bond with the child." Concluding that the man had the better parenting skills, the judge gave custody to the man with liberal visitation to the mother.

The Supreme Court reviewed custody law and the rights of non-biological fathers. The "... traditional rule in regard to third parties is that the biological parent has a right to custody unless unfit or guilty of neglect or abandonment." However, when a putative father marries the mother and assumes a caring role toward a child, the mother may be equitably estopped from challenging the husband's right to custody. But if no marriage occurs, "we conclude that the non-biological father has no right to assert a claim for custody." The Court stated that "because consent of the mother is required by the statute as to a natural father, we decline to grant a non-biological father who is not married to the natural mother standing to seek custody by way of an estoppel theory when the mother does not consent." The Court finally stated, "we decline to extend the primary caretaker rule to a non-biological father where the biological mother is a fit person and he has not married her."

12. State ex rel. Treadway v. McCoy (Neely, J.) 429 S.E.2d 492 (1993) - In a custody dispute between foster parents and the child's half-sister, the trial court granted custody to the half-sister. The foster parents had cared for the 4-year-old girl since she was less than a year old and the half-sister had virtually no contact with her since her birth. The parental rights of the girl's father had been terminated after he had been convicted of murder for killing the girl's mother. The girl's mother had been a niece of the father and a victim of incest. Shortly after the girl was taken into custody by the Department of Health and Human Resources (DHHR) in April, 1990, the half-sister sought to adopt the girl. But before this placement could be reviewed, the court ordered a home study be conducted in the half-sister's state of Rhode Island and that the paternity of the child be determined. Thereafter, numerous bureaucratic delays occurred in the processing of the case. During this time, the girl who suffers from cystic fibrosis lived with the foster parents as their daughter. The foster parents also sought to adopt the girl. The circuit court finally gave custody to the half-sister. The Supreme Court held that "in a contest involving the custody of an infant where there is no biological parent involved, the best interests of the child are the polar star by which discretion of the court will be guided." While the circuit court's award would have been appropriate if the delays had not occurred, the Court held that custody should be awarded to the foster parents. Holding that the "best interests of a child are served by preserving important relationships in that child's life," the Court found that the only stable relationship in the girl's life was with the foster family.

The Court fashioned the following rules:

PERMANENT CUSTODY - when natural parent transfers permanent custody to third party and then seeks to regain custody, the burden of proof shall rest exclusively upon the parent...by proving with clear and convincing evidence (1) that he or she is fit; and (2) that a transfer of custody so as to disturb the child's existing environment would constitute a significant benefit to the child. This reformulation is based on a recognition that the best interests of the child must be regarded as superior to the right of parental custody and that any custodial change will concentrate on whether the change will enure to the benefit of the child. To avoid uncertainty, the document effecting a transfer of custody must expressly state whether the transfer is permanent or temporary. If there is any question regarding the intent, it shall be presumed that the transfer is temporary, and the burden of proof shall be upon the third person to prove by clear and convincing evidence, either intrinsic or extrinsic, that it was the intention of the parent to transfer permanent custody of the child to the third person. A qualified guardian ad litem must be appointed to represent the children.

14. Baugh v. Merritt, No. 23783, July 3, 1997 - Because of financial difficulties, the mother gave temporary custody of her 2 year old son to his paternal uncle and sought work in Missouri. When the mother's handwritten note was not sufficient to obtain a medical card, two more authorizations were signed by her, one of which listed the end time as 'unknown at present time.' 5 months later the mother picked up her son and returned to Missouri. The uncle threatened to prosecute her for kidnaping and took the child back to W.Va. and filed action for permanent custody. The trial court concluded that the mother intended to grant uncle permanent custody, that she had abused and neglected the child and had abandoned child to the uncle. The mother appealed claiming no clear, cogent and convincing evidence that she permanently transferred custody to uncle, relinquished her parental rights or abused or neglected her son. The Supreme Court held the documents did not expressly state whether the mother intended a permanent or temporary transfer of custody. Under Overfield, supra, the uncle did not prove by clear and convincing evidence that mother intended transfer of custody to him. Case remanded to give uncle opportunity to show by clear and convincing evidence that the mother intended to permanently transfer custody of her son. The trial court should appoint a guardian ad litem and fashion a visitation plan for the non-custodial parent, and in the final order decide whether the non-prevailing party should have continued contact with the child.

1. Busch v. Busch, 304 S.E.2d 683 (1984) - Trial court refused father's petition seeking custody of his 14-year-old son, who also joined in the request. Several months earlier the son had been placed in his mother's custody at his request. The trial court refused to change custody again based on the boy's change of preference. Supreme Court held that the boy's preference for his father should result in a custody change where the father was fit and the mother did not oppose the change of custody.

2. Graham v. Graham, 326 S.E.2d 189 (1984) - Trial court, after finding neither parent to be primary caretaker, ruled both parents had equally cared for the child and split custody of two siblings between the parents. The court considered an in camera, unreported conversation with the parties' 6-year-old daughter ("Anne is a daddy's girl."). Supreme Court upheld the ruling.

Miller, J. dissent: The court should have determined who was primary caretaker before domestic action began. No finding was made on maturity of girl and no opportunity was provided to rebut her testimony.

3. Rose v. Rose (Brotherton, J.) 340 S.E.2d 176 (1985) - Supreme Court held that mother's status as primary caretaker was rebutted by 10-year-old boy's preference for the father as expressed and recorded, during an in camera interview with the judge, over the mother's objection. Guidelines for evaluating the weight to be given to a child's opinion are set forth in Footnote 4.

McGraw, J. dissent: Court did not evaluate the child's maturity or the basis for his opinion when the boy appeared to be influenced by the father's pressure. Opens up warfare using child as weapon.

4. Shimp v. Shimp, 366 S.E.2d 663 (1988) - Trial court transferred custody of

9-year-old boy to the father based solely on child's testimony. Supreme Court held that the child was competent to testify, but that a child's preference can only be considered in an initial custody determination. Finding no material change of circumstances, the Court returned custody to the mother.

5. Reynolds v. Reynolds, 433 S.E.2d 277 (1993) - The family law master found the mother to be the primary caretaker of the parties' 8-year-old son and awarded her custody without complying with the father's request that he interview the boy in camera. The circuit judge directed that a psychologist determine whether the boy could discuss his parental preference and his rationale. The psychologist interviewed him and stated that he was capable of expressing a preference. The boy told the judge that he wanted to live with his father because the Greenbrier County schools did not compare to Braxton County schools and that he "was not too happy" with his mother's boyfriend. The judge then awarded custody to the father. The Supreme Court explained that a child's preference may be accorded weight in overcoming the primary caretaker presumption if the preference is based on good reason. Finding that the boy "based his preference on what this Court considers to be relatively unimportant factors," the Court reinstated the master's findings and awarded custody to the mother with liberal visitation by the father.

1. First National Bank in Fairmont v. Phillips (McHugh, J.) 344 S.E.2d 201 (1985) - Certified question: Can an equitably adopted child inherit from the natural child of the adoptive parent? The Majority ruled that if an equitable adoption is proven by clear and convincing evidence, the equitably adopted child can inherit from another child of the adoptive parent.

Brotherton, J. dissent: No other jurisdiction has supported so broad a ruling and therefore the decision should be limited to the facts in this case.

2. Lemley v. Barr (Neely, J.) 343 S.E.2d 101 (1986), (November 13, 1985) - Supreme Court initially ruled that full faith and credit must be accorded the Ohio Supreme Court decision holding that custody of Ryan Barr, then almost 5 years old, should be returned by his adoptive parents in W.Va. to his natural mother in Ohio. The appearance by the Barr's attorney in the Ohio Court for the sole purpose of refusing to reveal the names of the adoptive parents was a general appearance, thereby submitting the Barrs to the Ohio Court's jurisdiction. (March 11, 1986) - Supreme Court, acting upon a petition for rehearing, reviewed the case in light of the child's rights and interests and remanded the case to the Cabell Circuit Court for development of a record and ruling on what "physical custody arrangement is in the child's best interest", placing the child's equitable interest above the natural mother's legal rights.

3. In re Petition of Nearhoof (McHugh, J.) 359 S.E.2d 587 (1987) - Supreme Court held that a grandparent shall have reasonable and seasonable visitation rights with a grandchild who is the child of a grandparent's deceased child, even in cases where the grandchild has been adopted by a step-parent, provided such visitation is in the child's best interest.

4. In the Matter of the Adoption of: Michael Charles Schoffstall (Neely, J.) 368 S.E.2d 720 (1988) - The trial court, finding that the natural father had abandoned his 4-year-old son, approved the boy's adoption by his stepfather. The court gave substantial weight to the natural father's admission that he had paid no child support for the previous 3 years. Supreme Court reversed and held that while it is a factor, "failure to pay child support alone does not constitute abandonment of the natural parents' rights in an adoption proceeding."

5. Rich v. Rich (Neely, J.) 364 S.E.2d 804 (1987) - A father adopted his wife's two children from a previous marriage and a year later sued wife for divorce. Wife was granted custody of the children and on the day he was ordered to pay child support, father filed petition to revoke the adoption based on fraud. Trial court set aside the adoption. Supreme Court reversed upon holding that "party guilty of fraud in a transaction on which he relies for recovery can have no relief in equity against another person, even though that person may be equally guilty." An adopting parent cannot move to set aside adoption based on his or her own fraud, and W.Va. Rules of Civil Procedure, Rule 60(b) motion not timely filed.

8. In Re: Petition for the Adoption of Ashley Nicole Mullins by Robert Farley and Vivian June Farley, 421 S.E.2d 680 (1992) - The parties' petition to adopt their granddaughter was denied after the judge found that the natural father did not intend to abandon his parental rights. Consent was given by their daughter, the child's mother. Shortly after her birth, the father acknowledged his paternity of the child and brought her formula and clothing. Thereafter, he had almost no contact with the child who lived in the home of the grandparents. He testified that his efforts to visit or support the child were rejected by the grandparents. The Supreme Court held that the record contained no "clear, cogent and convincing proof" that the father intended to abandon his daughter", and affirmed custody with the grandparents and visitation and the payment of child support by the father.

10. Kessel v. Leavitt, et al. (Davis, CJ.) No. 23557, July 22, 1998 - This case involves an appeal of a jury verdict returned in favor of the biological father for tortious interference with his parental rights in his son and against the mother, her parents, her brother and the attorney who placed the child with the adoptive parents. The jury awarded the father $2 million in compensatory damages and punitive damages of $5.85 million. The mother arranged with California attorney to place her child for adoption and went there to have the baby. The father obtained an ex parte injunction in W.Va. to stop her from placing the child for adoption and served it by publication. The mother proceeded to place the child with a Canadian couple without notice to the father. In a very lengthy opinion, the Supreme Court upheld the verdict. The instant a child is born, both unwed biological parents have a right to establish a parent-child relationship with the child. The Court recognized an action for tortious interference with a parental or custodial relationship with one's child, and held that anyone who assists with concealing information regarding a newborn child from the child's parent may be held liable for his/her or their participation in such civil conspiracy.

2. Kathy L.B. v. Patrick J.B., Jr. (Miller, J.) 371 S.E.2d 583 (1988) - The Supreme Court held, as a matter of statutory construction, that in a paternity action the mother may recover the child's birth expenses and may also seek "reimbursement support" from the date of the child's birth. The right to receive reimbursement support however, is subject to the doctrine of laches. Hartley v. Ungvari, 318 S.E.2d 634 (1984). In a paternity action the father may also be required to procure and maintain hospitalization and health care insurance and may also be ordered to pay reasonable attorney's fees and costs.

4. Shelby J.S. v. George L.H. (Miller, J.) 381 S.E.2d 269 (1989) - After filing a paternity action in 1976, and then dismissing it in 1977, mother filed a second action against the same defendant in 1985. The defendant moved to dismiss based on the voluntary dismissal of the first case and the 10-year statute of limitations, which the trial court granted. Supreme Court enunciated rule that paternity statutes should be favorably construed toward mother and child with respect to res judicata claims where there has been no judgment on the merits. The Court struck down the 10-year statute of limitation for violating the equal protection clause of both the United States and W.Va. Constitutions.

5. Michael K.T. v. Tina L.T. (Workman, J.) 387 S.E.2d 866 (1989) - During a divorce action father contested paternity of child born during the marriage. Blood tests confirmed that he was not the biological father, but trial court declared him the father and ordered payment of child support. Supreme Court held that when a putative father seeks to disprove paternity of child born of a valid marriage, the court should hold an in camera hearing to determine whether the equities in the particular case warrant admission of blood test results. If the putative father has held himself out to be the father for a sufficient period of time that disproof of paternity would undeniably harm the child blood test results should not be admitted. Absent fraud, only a "relatively brief passage of time" should pass before a paternity challenge should be permitted. Court listed factors for trial courts to consider during in camera hearing.

6. State ex rel. Division of Human Services v. Benjamin P.B. (McHugh, J.) 395 S.E.2d 220 (1990) - This case presents a res judicata issue in a paternity case similar to the facts in Shelby J.S., supra, with the exception that the dismissal of the first paternity action was "with prejudice." The alleged father appealed order allowing second paternity suit on grounds that a dismissal "with prejudice" is an adjudication on the merits. Supreme Court held that "parent-child relationship does not establish privity, and, therefore, a child who is not a party to a paternity action is not bound in a later paternity action by the prior judgment against the parent." Court found from the record that child was neither a party to original action nor represented by counsel or guardian ad litem, and therefore remanded case for substitution of the child as the party and an adjudication of paternity.

7. State ex rel. W.Va. Department of Health and Human Resources v. Cline, 406 S.E.2d 749 (1991) - The mother brought a bastardy suit against the putative father which went to jury trial in 1983. The defendant requested blood testing but none were taken prior to the trial. He was found to be the father of the child and ordered to pay $75 per month. In 1986, the Child Advocate Office (CAO) instituted wage withholding against the father and obtained a judgment for $1,317. In 1989, the CAO filed a petition to increase the amount of child support and in response the father moved that the parties submit to DNA fingerprinting and blood testing to determine paternity. Both the family law master and judge granted the motion and the CAO appealed. The Supreme Court held that the 1983 jury verdict conclusively established him as the father of the child and the doctrine of res judicata bars any further adjudication.

9. Cleo A.E. v. Rickie Gene E. (Workman, J.) 438 S.E.2d 886 (1993) - The Child Advocate Office (CAO) appealed an order that approved a voluntary stipulation by the parties that a child born during their marriage was not the child of the husband's, thus bastardizing the child. The parties were married in 1981, the child was born in 1983, and the parties were divorced in 1986, by an order which named the child and awarded her custody to the mother. In 1992, after being brought into court in Florida for non-payment of child support, the husband asserted that he was not the child's father and then in W.Va. filed to modify the divorce order based on the stipulation by he and the former wife that he was not the child's father. The Supreme Court agreed with the CAO's position that the guidelines in Michael K.T. v. Tina L.T., 387 S.E.2d 866 (1989), regarding admission of blood test results should be used in any case where an order would effectively bastardize a child. The Court held that "parties to a domestic proceeding cannot by stipulation agree to bastardize children born during the marriage" and that in any proceeding in which the issue of disproving paternity is involved, a guardian ad litem should be appointed for the child.

10. State ex rel. Division of Human Services v. Benjamin P.B. (Brotherton, J.) 436 S.E.2d 627 (1993) - This is the second appeal to the Supreme Court in this case. In the first case (395 S.E.2d 220 (1990), the Court held the dismissal of the first paternity action against the putative father with prejudice, did not preclude the filing of a second paternity action when there was no privity between the mother and child in the first action, and the child was not a party and was not represented by counsel or a guardian ad litem. Upon remand, the Child Advocate Office (CAO) filed a second paternity action against the putative father and blood testing was ordered. When the test results excluded the defendant as the father, the defendant filed a motion to dismiss the action with prejudice and for attorney fees and expenses. The family law master recommended and the circuit court ordered the case dismissed and that the mother and the State of W.Va. must pay $3,500 for the defendant's attorney fees and costs. The Supreme Court found no statute or case law which would permit recovery of attorney fees in a paternity case. The CAO has a duty to assist in the establishment of paternity, but it "is not an investigative body and requires only a good faith belief that the petition for paternity or support is based on accurate information."

11. Hunter v. Christian, 446 S.E.2d 177 (1994) - The mother of the decedent, who was killed in an auto accident at age 19 & 1/2 years, had been unable to establish the paternity of the man whom she believed to be the father. The man refused to sign an acknowledgment and in 1980, he again denied paternity at a Department of Human Services Office. A 3-year statute of limitations on paternity actions then in effect, barred further action. The man had no contact with the girl during her minority, provided no financial or emotional support and his attempts to establish a relationship when she was 18 years old were rebuffed. However, once the mother as administratrix of her daughter's estate filed a wrongful death action, the man moved to intervene alleging that as her father he was entitled to 1/2 of the net proceeds from the suit. The mother moved to dismiss his claim because paternity had not been established before daughter reached 18, and later argued he should be equitably estopped from asserting paternity, or that his wrongful death share should be offset by reimbursement of child support. When DNA testing confirmed his paternity, the judge awarded him 1/2 of the proceeds. The Supreme Court ruled the father "is equitably estopped from reaping the financial benefits of the death of his daughter,... when during her life, he disavowed paternity in order to escape legal and financial responsibility to her."

12. State ex rel. David Allen B. v. Sommerville (Recht, J.) 459 S.E.2d 363 (1995) Following the death of the child's mother, the man who had cohabited with her filed a petition to declare legitimacy of an infant and to establish paternity and named the child and the maternal grandparents as parties. During a hearing at which the child was represented by a guardian ad litem and the child was interviewed by the judge, the court found that the man and the mother had each separately filed affidavits acknowledging him as the child's father. The judge ruled that he was the father, he was not unfit and the grandparents were entitled to visitation. Despite these findings, the judge ordered DNA blood testing to determine whether he was the child's "biological father." The father petitioned the Supreme Court to prohibit any blood testing because the written acknowledgments established him as the father for all purposes. The Court granted the writ and held that once the parents have properly acknowledged the man's paternity, then absent a proper challenge of the acknowledgment, no blood testing can be ordered to disestablish paternity. Biological parents have standing to challenge paternity established by written acknowledgment, but grandparents do not. Finding no record on father's fitness, despite grandparent's allegations of abuse, case was remanded for resolution of fitness issue.

13. Nancy Darlene M. v. James Lee M., Jr. (McHugh, C.J.) 464 S.E.2d 795 (1995) - The mother appeals circuit court order which set aside an August 23, 1982 order including paternity and child support based on finding that under Rule 60(b)(5) of the W.Va. Rules of Civil Procedure the order was "no longer equitable." In the previous appeal, Nancy Darlene M. v. James Lee M., 184 W.Va. 447, 400 S.E.2d 882 (1990), the Supreme Court found the father failed to appeal 1982 divorce order which named the son as the child of the parties and ruled that this adjudication of paternity "is res judicata as to the husband and wife in any subsequent proceeding." In this case, the Court held that because the Rule 60(b)(5) challenges could have been included in the appeal and no new matters were raised, the circuit court "erroneously permitted the appellee to substitute a Rule 60(b) motion 'for his failure to take a timely appeal of the August 23, 1982, divorce order.'" Motion which was filed 10 years after the divorce was final was not within a reasonable time, particularly since "challenges to paternity, beyond 'a relatively brief passage of time' should not be permitted." Child support and arrearages were reinstated.

14. State ex rel. Roy Allen S. v. Stone (Cleckley, J.) 474 S.E.2d 554 (1996) - Following the couple's divorce and a modification action in which both children were awarded to the father, a putative father filed a paternity action against both parents claiming he was the father of one daughter. The family law master dismissed his paternity petition for lack of standing, and the circuit judge reversed and remanded the case to the master. The husband petitioned the Supreme Court for a writ of prohibition to prevent paternity testing. Based upon their review of the Due Process Clause in Section 10 of Article III of the W.Va. Constitution, the Court held that before a putative biological father has standing to seek to establish paternity over a child born to a married woman he must clearly and convincingly prove that 1) he has developed a parent-child relationship with the child, and 2) the child will not be harmed in the paternity action. Attorney's fees may be imposed against vexatious and groundless suits. Whether the putative father was dilatory in asserting his rights must be considered, and the child must be joined in the suit and a guardian ad litem appointed. Case remanded for consideration of any preexisting child-parent relationship between the presumed father and Jennifer, with ultimate decision to be based on the best interests of the child.

15. State ex rel. W.Va. DHHR, CAO on Behalf of Jason Gavin S. v. Carl Lee H. (McHugh, C.J.) 472 S.E.2d 815 (1996) - The family law master ordered the man who, based on blood test results, was determined to be the father of a 15 year-old child to pay the mother $79,687.52, plus interest, for reimbursement child support. The circuit judge reversed holding that the doctrine of laches barred the mother from collecting any support. The Supreme Court found from the record that the reason for the 14 year delay in establishing the respondent's paternity was fact that the father had misrepresented crucial facts to the mother which led her to believe that he could not be the father. Finding substantial evidence to support the master's conclusion that the mother was without negligence in delaying her prosecution of the respondent, the circuit court's order was reversed and the support was reinstated.

16. State ex rel. Department of Health and Human Resources, Child Support Division, on behalf of Laura F.M. and Joseph Charles C. v. Cline (Workman, J.) 475 S.E.2d 79 (1996) - The CSED petitioned the Supreme Court to prohibit a paternity test ordered by Judge Danny O. Cline in a case where the putative father and the mother had previously signed an affidavit of paternity at the time of the child's birth. The Court noted that under W.Va. Code 48A-6-6, "absent a judicial determination that an acknowledgment of paternity was entered into under fraud or duress" such acknowledgment irrevocably establishes the man as the father of the child "for all purposes" including payment of child support. The judge did not alter the family law master's finding that no fraud or duress was shown. The Court issued the writ of prohibition and remanded case for the circuit court to ascertain whether complete disclosure of assets has occurred for the purpose of setting child support.

1. Lowe v. Lowe (McGraw, J.) 370 S.E.2d 731 (1988) - Answering a certified question, Supreme Court held that a circuit court may approve an award of joint custody when parties agree, and in the court's judgment such agreement promotes the welfare of the child. The parties must demonstrate "their mutual ability to co-operate in reaching shared decisions in matters affecting the child's welfare," by submitting "a joint parenting agreement specifying each parent's powers, rights, and responsibilities and proposing procedures for making changes to the agreement or for mediating or otherwise resolving disputes and alleged breaches."

2. Michael R. v. Sandra E., 378 S.E.2d 840 (1989) - A father who sought sole custody in a modification proceeding appealed trial court order granting the parties joint custody of their 9-year-old daughter. Supreme Court reversed based on Lowe, supra, ruling that joint custody is an inappropriate result in contested case wherein parties each seek sole custody. Based on evidence of mother's history of erratic behavior and child's preference for the father, Court reinstated family law master decision that custody in the father would materially promote child's welfare.

3. Loudermilk v. Loudermilk (Neely, C.J.) 394 S.E.2d 905 (1990) - CUSTODY ISSUES ONLY - "When a trial court finds that: (1) there is no primary caretaker parent before divorce; (2) both parents are fit parents; and (3) both parents live geographically close to one another, it is not error to award custody to one parent but to allow visitation to the other parent during each alternate week of the year." Syl. Pt. 1. "...[T]his is a narrow exception to our strong precedent disallowing involuntary joint custody, See David M. v. Margaret M., supra, and Lowe v. Lowe," supra.