West Virginia Record

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Supreme Court restores full custody to mother from babysitters

By Steve Korris | Nov 1, 2007

Maynard

Albright

CHARLESTON – Swiftly and sternly, the West Virginia Supreme Court of Appeals restored to a mother full custody of her 4-year-old daughter.

The Justices reversed Cabell Circuit Judge Alfred Ferguson and Family Court Judge Patricia Keller, who had ordered the mother to share custody with babysitters.

In an unsigned Oct. 25 opinion, the Justices wrote that they were "deeply troubled by the utter disregard" for the mother's rights.

They delivered the opinion 16 days after oral arguments, making it one of their quickest decisions this year.

They didn't send it back to Ferguson for a new custody order. They restored full custody as soon as their clerk could send out the opinion.

By informal agreement, the mother had kept her daughter from Monday evenings to Wednesday mornings and from Wednesday evenings to Friday mornings.

The sitters, distant cousins of the child's father, did not allege that the mother was unfit. They did not seek custody of her sons, ages seven and 11.

Keller and Ferguson did not declare the mother unfit as parent of the daughter. They divided custody by declaring the sitters "psychological coparents" and finding a "shared parenting agreement" between them and the mother.

The Supreme Court of Appeals held that the sitters did not meet the definition of coparents and that the mother did not agree in writing to share custody.

The Justices rejected the notion that the sitters even deserved a day in court.

They expressed grave concern over "the dangerous precedent set by awarding relief to persons who did not have standing to intervene in these proceedings in the first instance."

The sitters intervened in Cabell County Family Court in March 2006, after the mother told the court she planned to move to Texas.

Keller immediately awarded the sitters complete custody. 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.

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 case to the Supreme Court of Appeals.

At oral arguments, Justice Joseph Albright asked Glazer if the mother had a duty to assert fitness.

"It is not my client's burden to show fitness," Glazer replied.

Chief Justice Robin Davis said, "Why does a natural parent have to prove fitness when she has never been found unfit?"

Steve Bragg of Huntington, representing the sitters, brought up drug use.

"You don't have to pass a drug test to be a parent," Justice Spike Maynard said.

Bragg said his clients and the child formed a bond.

Justice Larry Starcher said a 3-year-old would bond with anyone in the room.

Maynard said, "Take them to Chuck E. Cheese twice and they'll want to stay with you forever."

Albright said, "We don't just step in and on the basis of nothing cut off the constitutional right or split it out."

Maynard said, "It's the paramount right in the world."

The Court's opinion stated that in the law concerning custody of minor children, no rule is more firmly established than the right of a natural parent.

The Justices wrote that if they let Ferguson's order stand, any care giver could assert the existence of a shared parenting agreement.

"We simply cannot condone a ruling that would permit such pervasive interference with parents' custodial rights," they wrote. "In the cases in which this Court has determined a person to be a psychological parent to a child, that person typically has resided in the child's household and interacted with the child on a daily basis.

"Moreover, a psychological parent is one who essentially serves as a second parent to a child and is a relationship to which the child's parent has consented."

They wrote that a parent has the natural right to custody unless the parent is unfit because of misconduct, neglect, immorality, abandonment or other dereliction of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished or surrendered such custody.

"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," they wrote.

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