CHARLESTON –- Jeffrey Skidmore can spend more time with 13-year-old son Joshua than his divorce order allowed, the Supreme Court of Appeals has decided.
The Justices on April 4 directed Braxton County family court to modify a parenting order due to substantial changes in circumstance that the original order didn't anticipate.
"While limiting Skidmore's parenting time with Joshua to four to six days a month may have been appropriate when Joshua was a young child, such arrangement no longer serves Joshua's best interest," Chief Justice Margaret Workman wrote. "The guardian ad litem in this case concluded that modifying the parenting plan order to increase Skidmore's parenting time with Joshua is in the child's best interest.
"Moreover, Joshua himself has expressed a clear preference to spend more time with his father."
Skidmore and former wife Crystal divorced in 2002.
"Under the plan, Joshua spends two consecutive overnights with his father, two times one month and three times the next," Workman wrote.
She wrote that as a police officer, Skidmore's schedule was subject to change. At oral argument, Skidmore's counsel stated that he was recently promoted and works weekdays, nine to five. He remarried, and he and his wife have two children together.
Skidmore petitioned to modify the parenting plan in 2008. His former wife, now Crystal Rogers, objected.
The family court appointed a guardian ad litem, who found that Joshua has good relations with both parents and both step-parents.
The guardian found he especially bonded with his half sister. The guardian found Joshua "bright, articulate and unusually personable."
Joshua told the guardian he would prefer equal time with each parent.
The guardian recommended that Rogers keep primary custody, but that Joshua would alternate between the two homes each week of the school year.
Family court judge Robert Sowa, ruled that Joshua's preference didn't bind the court because he hadn't turned 14.
Sowa found no substantial change in circumstance that wasn't anticipated in the original plan. Sowa found the plan wasn't manifestly harmful to Joshua.
In 2009, Circuit Judge Jack Alsop affirmed the family court judge's decision.
Skidmore appealed, and Rogers answered that Joshua's advance in age, Skidmore's remarriage, and the births of siblings weren't unexpected.
Her arguments failed.
The Justices ruled that a court can modify a parenting plan if it didn't provide for substantial change in circumstance and if the child's interest requires modification.
"Contrary to the finding of the lower courts, the plain language of this statute does not prohibit modifications of a parenting plan simply because the change in circumstance could not have been anticipated generally, but rather that the parenting plan order does not make provisions for such a change," Workman wrote. "Whether such a change in circumstance could have been anticipated when the original parenting plan order was entered is of no consequence.
"This court has previously recognized that a child's preferences with regard to custody matters should be considered when that child's age and maturity level so warrants, even if the child has not yet reached the age of 14."
A family court judge must not only modify the plan but also resolve disputes over child support and health insurance.
"While the parties clearly have a long and contentious history, each must set aside his or her personal dislike for the other, to act in accordance with their child's best interests and in compliance with the relevant statutory objectives," Workman wrote.
Daniel Grindo of Gassaway represented Skidmore. James Douglas of Sutton represented Rogers.