Oct. 31, 2007
West Virginia Supreme Court Reverses Cabell Custody Case; Reminds Courts to be Vigilant in Protecting Parental Rights
By Tony Rutherford
Huntington News Network Writer
The West Virginia Supreme Court has reversed the ruling of Cabell County Circuit Judge Alfred Ferguson and Family Law Master Patricia Keller. The order was filed October 25, 2007.
The custody case had allowed Joshua, the father of “Senturi,” to visit the child on Wednesday’s. The mother , Misty, had no objection.
After this ruling in April 2005, the family court found Joshua capable of paying child support.
In Februrary 2006, Misty notified the court that she planned to move to Corpus Christi, Texas, in March to live closer to her extended family, return to school and pursue employment opportunities. However, Joshua and two individuals (Christopher and Tanya) objected to the mother’s move. Christopher and Tanya alleged they had been taking care of Senturi for fourteen months and asserted that the child’s “best interests” required transferring custody to the so-called baby-sitters. No inquiry was made into the fitness of Misty nor did the family court grant the mother visitation.
The final order of the family court designated Misty as the child’s “primary residential parent,” but determined that Christopher and Tanya had a “shared parenting arrangement with Misty” and thus qualified as Senturi’s “psychological co-parents. The family court’s “knee jerk” response did not attempt to “minimize impairment to a parent/child relationship” by temporarily severing Misty’s custodial relationship with her child.
The justice wrote that Misty did not intend to transfer either temporary or permanent custody to Christopher and Tanya. “Were we to allow the lower court’s ruling to stand, it goes without saying that the potential ramifications would be crippling to parents of children in this State.
Virtually any parent who must rely upon child care, whether to allow the parent to work, attend school, care for elderly parents, visit the doctor, or for any other reason could face a challenge from the child’s care giver asserting the existence of a shared parenting arrangement despite the absence of any writing evincing such an intent.”
Calling such a decision as “pervasive interference with parents’ custodial rights,” the court reversed the circuit court upholding of the family court decision, particularly since the court
The West Virginia Supreme Court stressed that Christopher and Tanya did not meet the court’s definition of a “psychological parent, who on a continuing day-to-day basis through interaction, companionship, interplay and mutuality , fulfills a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support.”
While a “psychological parent” may be biological, adoptive, a foster parent or another person, “the relationship between the psychological parent and the child must be substantial , not temporary.”
The court found that while Christopher and Tanya provided care for Senturi since Christmas 2004, they did not reside in the same household as Misty and the child nor had the mother consented to a relationship “so pervasive” as to accord them psychological co-parent status.
Finally, the Supreme Court described as a string of “convoluted conflagration of events” that led to the appeal. “From our first review of this case, we have been deeply troubled by the utter disregard for Misty’s rights to the custody of the child… In light of the facts and circumstances presently before us and the lower courts’ complete and utter disregard of
Misty’s parental rights we are compelled to reiterate the preeminent importance of a parent’s right to the custody of his/her child.”
The opinion concludes: “A parent has a natural right to the custody of his or her infant child, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction of duty or has waived such right by agreement… therefore we urge family and circuit courts to be ever vigilant when issuing rulings to protect the best interests of children to ensure that the rights of those children’s parents are not unnecessarily trammeled in the process of administering justice.”

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