Justia Family Law Opinion Summaries

When appellant Tevya W. (mother) and appellee Elias V. (father) divorced in 2003, an approved shared parenting plan provided that their son Elias was to reside primarily with his mother. In 2005, the family court transferred full custody of Elias to the father due to the mother's drug usage. In 2006, the mother filed a petition to regain primary custody of Elias. The family court found insufficient evidence to support a change of the custody arrangements. The mother subsequently filed two more petitions to alter custody arrangements, the second of which resulted in an order altering weekend custody, and the third of which resulted in no change to the custody arrangement. The mother appealed the third order, and the circuit court affirmed. On appeal, the Supreme Court affirmed, concluding that the record supported a finding that Elias's current residential placement was in Elias's best interests and holding that there was no abuse of discretion in the conclusions of the family court and circuit court.

In 2010, the circuit court terminated the custodial and visitation rights of a mother to her four children but did not terminate her parental rights to the children. The Department of Health and Human Resources and the children's guardian ad litem appealed, arguing that the circuit court erred when it failed to terminate all parental rights of the mother. The Supreme Court concluded that the facts as developed demonstrated no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in the near future and that the circuit court's order deprived the children of the permanency they need. In light of the children's best interests, the Court reversed the judgment of the circuit court.

When he was less than two years old, Hunter H. was placed with foster parents after the Department of Health and Human Resources (DHHR) discovered his parents were using crack cocaine. After residing with the foster parents for three years, the DHHR sought to permanently place Hunter with his grandmother. The circuit court placed Hunter with his grandmother. The foster parents and guardian ad litem appealed. The Supreme Court reversed, holding that the circuit court's order placing Hunter with his grandmother was clearly erroneous because it elevated the statutory preference for grandparent adoption over the best interests of the child. The Court concluded that because the foster family had created a stable, loving environment for Hunter in which he was growing and thriving for three years, it was in Hunter's best interests to be permanently placed with his foster parents.

Janet Hornbeck appealed an order of the circuit court, arguing that the court erred by affirming the family court's ruling that the Bureau of Child Support Enforcement (BCSE) method of distributing child support arrearage payments between principal and interest is appropriate even though it deviates from the way those allocations are generally made for court-ordered money judgments not involving support. At issue was the validity of a procedure established and followed by an administrative agency. After concluding the procedure to be an interpretive rule under the APA, the Supreme Court held that the BCSE rule is within the authority granted the agency in W. Va. Code 48-11-105. Affirmed.

In 2009, a petition for abuse and neglect was filed in circuit court regarding N.A, I.A, C.P. and M.P. The petition was filed against the children's biological mother and their maternal grandparents, all of whom were alleged to have care and custody of the children as they all resided at the grandparents' home. The petition was based on allegations of domestic abuse between the mother and grandfather in the presence of the children. At an adjudicatory hearing, the circuit court found that the children's mother had neglected her children. The circuit court ordered that the Department of Health and Human Resources retain legal custody of the children while physical custody remained with the grandparents so long as the mother had no contact with them. DHHR found that the grandparents consistently violated the "no-contact" order of the court. The children were eventually placed in foster care. "Joshua G." was listed on the petition, but was not accused of any abuse. Joshua was the biological father of M.P. He petitioned the court for sole custody of M.P. The court denied his request. Among the issues all parents brought on appeal were whether the circuit court erred by (1) denying Joshua custody of M.P.; and, (2) denying the grandparents' request for physical custody of all the children. The Supreme Court declined to rule on the issues presented on appeal. Rather, the Court remanded the case for additional hearings at the circuit court. The Court considered that though the record reflects the extent to which the children were abused, it acknowledged that the children still have strong bonds with their grandparents. "It is imperative . . . that the circuit court focus on whether such continued contact [with the grandparents] is in the best interest of the children." The Court advised DHHR to develop a permanency plan for the children so that the siblings remain together. "The lower court faces a Herculean task of requiring wisdom, compassion and the strength to protect the children to the greatest degree possible from physical and emotional harm, and to create stability and safety."

Appellant Mickey Justice and Appellee Dawn Palmer (now Lacy) had a child out of wedlock. The baby was born prematurely, and as a result, suffered from neurological and other health problems that were characterized as âspecial needs.â Appellant was served with a paternity suit in 2005. He counter-petitioned admitting paternity, and sought custodial rights as the childâs biological father. Specifically, Appellant wanted regular and enforceable parenting time with the child. Following a hearing, the parties agreed that Appellant would take training classes on the proper care of a special needs child, and that on successful completion of the training, Appellant would be awarded regular visitation on the weekends. The training was held inside the childâs home, meaning, Appelleeâs home. Appellant filed a motion of contempt with the court citing difficulty he had in completing the training, since it was effectively at Appelleeâs discretion as it took place at her home. Appellee refused on multiple occasions to allow additional visitation. Appellant sought to modify his parenting time with the child in light of the training difficulties, but the family court denied his motion. On appeal, the circuit court did not reverse the family courtâs rulings, but did not grant Appellant the additional parenting time he sought. The Supreme Court held that certain orders of the family court were too vague for Appellant to follow so that he would be in compliance. The vague orders were a violation of Appellantâs constitutional right of due process. Accordingly, the Court reversed the orders of the lower courts, and remanded the case with instructions for further proceedings.