CHARLESTON – Becoming defenders of motherhood, the West Virginia Supreme Court of Appeals protested a Cabell County court order forcing a mother to share custody of her three-year-old daughter with babysitters.
"We don't just step in and on the basis of nothing cut off the constitutional right or split it out," Justice Joseph Albright said during Oct. 9 oral arguments.
Justice Spike Maynard said, "List all the other rights you want to list. It's the paramount right in the world."
Justice Larry Starcher said, "I've often said Jay Rockefeller could step in and give a child a better life, but that doesn't mean he should."
He said a three-year-old could bond with anyone in the room.
Maynard said, "Take them to Chuck E. Cheese twice and they'll want to stay with you forever."
Chief Justice Robin Davis said that if the court upheld the cousins, her babysitter could seek custody of her child.
The Justices did not announce a decision on the spot, though they acted as if for once they might.
The sitters intervened in Cabell County Family Court in March 2006, after the mother told the court she planned to move to Texas.
The sitters were distant cousins of the child's father, who did not live with the mother and the child.
Family Court Judge Patricia Keller immediately awarded complete custody to the sitters.
A week later, Keller granted the mother four visits a week at McDonald's.
In May 2006, the mother and the sitters informally agreed that the mother would keep her daughter from Monday evening to Wednesday morning and from Wednesday evening to Friday morning.
A month later, Keller awarded primary custody to the mother but ordered her to share custody with the sitters as "psychological co-parents."
Keller held that it was not in the child's best interest to deprive her of the love and stability of the sitters.
The mother's attorney, Hoyt Glazer of Legal Aid of West Virginia, asked the Supreme Court of Appeals to block enforcement of the order.
The Justices advised the mother to take the case to circuit court.
She did, and in October 2006 Circuit Judge Alfred Ferguson affirmed Keller's order.
Glazer again took the mother's case to the Supreme Court of Appeals, and in March the Justices granted an appeal.
At oral arguments Glazer said, "This was a baby sitting arrangement."
He said the state paid the cousins $850 as baby sitters.
He said there was no exceptional reason for the orders. He said, "This is an aberrant result. There is simply no precedent for what is happening here."
Justice Brent Benjamin asked if the orders included any findings on the mother's fitness.
Glazer said they did not. He said no one disputed her fitness as mother of the child or of her sons, ages seven and eleven.
Benjamin asked if the cousins provided medical benefits. Glazer said they had no authorization to provide her medical care.
Chief Justice Robin Davis asked if a custody transfer had to be in writing. Glazer said, "There was no court order that allowed them standing."
Albright asked if the mother had a duty to assert fitness. Glazer said, "It is not my client's burden to show fitness."
Davis said, "Why does a natural parent have to prove fitness when she has never been found unfit?"
Representing the sitters, Steve Bragg of Huntington said, "This is indeed an exceptional case."
He said that around Christmas his clients asked to keep the child. He said that seven days later the mother left the child for seven days.
He said, "That was the pattern that continued throughout."
Davis said it was not uncommon for grandparents to keep a child like that in a very loving way.
She said, "That doesn't mean you're giving up custody of the child."
Bragg said, "We never argued that custody was transferred."
He said his clients met the standard as psychological co-parents. He said the mother was entitled to some visitation.
Benjamin said Bragg raised constitutional issues on fitness and due process.
Bragg said he never argued unfitness. He said he brought up drug use.
Maynard said, "You don't have to pass a drug test to be a parent." He said if parents had to pass drug tests a lot of them would lose custody.
Bragg said his clients and the child formed a bond, but Starcher knocked that down and Maynard lampooned it with his Chuck E. Cheese comment.
At that point Glazer didn't need to stand in rebuttal, but he stood anyway.
He said, "I'll be brief. This is not an exceptional case."
Davis said, "That's brief." Glazer took the hint and gathered his papers.