Submitted: November 6, 2019
from the Circuit Court of Kanawha County The Honorable
Charles E. King, Jr. Case No. 18-D-563
Maureen Conley, Esq. Legal Aid of West Virginia Charleston,
West Virginia Counsel for Petitioner Heather M.
Respondent Richard R. Pro se
BY THE COURT
"In reviewing a final order entered by a circuit court
judge upon a review of, or upon a refusal to review, a final
order of a family court judge, we review the findings of fact
made by the family court judge under the clearly erroneous
standard, and the application of law to the facts under an
abuse of discretion standard. We review questions of law
de novo." Syllabus, Carr v. Hancock,
216 W.Va. 474');">216 W.Va. 474, 607 S.E.2d 803 (2004).
and Richard R. lived together with their two shared
biological children, A.R. and E.R. Eventually, Heather
accused Richard of verbally and physically abusing her and
the children, the two separated, and she petitioned the
Family Court of Kanawha County for allocation of custodial
responsibility. During two different hearings, the family
court refused Heather's efforts - first on a pro se basis
and later by counsel - to present evidence of Richard's
alleged abuse. The family court rejected Heather's
request for Richard's custodial time to be supervised and
also allocated the income tax exemptions for the dependent
children solely to Richard, with the option for Heather to
claim one exemption in future years if she first obtained
employment. After the circuit court denied her appeal,
Heather sought relief in this Court. Richard did not file a
we find that the family court abused its discretion by
refusing to permit Heather to present evidence relating to
alleged abuse by Richard, we reverse the family court's
order and remand with instructions to hear such evidence and
determine whether, under Rule 48 of the Rules of Practice and
Procedure for Family Court, this case should be referred to
circuit court for abuse and neglect proceedings. And, we
reverse the family court's order regarding the income tax
exemption and remand with instructions that the family court
award the exemption for both children to Heather unless any
of the exceptions in West Virginia Code § 48-13-801 are
FACTUAL AND PROCEDURAL BACKGROUND
and Richard lived together with two shared biological
children, A.R. and E.R, but were never married. In May 2018,
before the parties ended their relationship, Heather
petitioned the Family Court of Kanawha County for allocation
of custody of the two children. In the proposed parenting
plan, Heather sought to limit Richard's custodial time
with the children, stating, "I do not want my girls to
be left alone with Richard because he has been verbal [sic]
and physically abusive. He has screamed and hit both girls.
My oldest is scared of him and my youngest is
sometimes." In this first petition, Heather failed to
indicate whether she requested supervised visitation of
Richard's time with the children.
time Heather filed her petition for custody allocation, she
and Richard still resided in the same home. By the time of
the temporary custody hearing on June 25, 2018, Richard had
been out of the home for three weeks. As the parties, who
appeared pro se, explained during the hearing,  Heather initially
asked Richard to return to their joint home so that the two
could attend therapy sessions because Richard has "a lot
of anger issues" toward her and the children. Richard
declined to do so, resulting in Heather's request for
supervised visitation. Richard explained that he declined to
return to their home because: (1) it was not financially
feasible due to his long working hours, commuting time,
household chores, and a pre-existing child support
obligation; and (2) he and Heather were "at each
other's throats" and that was unlikely to change in
the foreseeable future.
the hearing, the family court judge asked if Heather agreed
that the two were "at each other's throats[.]"
Heather explained that the two argued, but not in front of
the children, except that A.R. would occasionally eavesdrop
on the stairs while the parents argued. The family court
judge responded, "[b]ut you've allowed it to happen.
[. . .] Yeah. You've both done it together [. . .] but
you want him punished for it." Heather attempted to
explain that her concern was not about the arguments but
about "the way he's treated my girls." The
following exchange then occurred:
JUDGE: Okay. So, when did he supposedly - when did he
start treating the girls bad?
HEATHER: I don't know. I don't know.
JUDGE: No, no - tell me.
HEATHER: It's been years.
JUDGE: Okay. You know what? Then you allowed it.
[. . .]
JUDGE: So, now you want me to punish him and not let him see
his kids because you let it be like that for nine years and
it sounds to me like you've caused a lot of the problems
as well. So, if he was such a horrible person, maybe I should
put them in State custody? Because if you've allowed it,
if you've allowed such a horrible situation to exist for
nine years, the State can take your children for that. So, if
you've allowed it to exist and he's such a horrible
person, and such a horrible dad, then you've let it exist
for nine years. And you just told me you wanted him to come
family court judge then stated that because Heather had
invited Richard to return home, then "he's clearly
not that . . . bad of a guy. So, I'm not going to,
I'm not going to grant him, I'm not going to grant
him supervised time." The judge precluded any further
testimony on the supervised visitation matter at the
temporary hearing and the parties agreed that Richard would
have visitation with the children every Saturday from 9:00
a.m. to 6:00 p.m. The family court judge then made the
I can make [the custody allocation] final today unless you
all would like to come back and put on, you know, all of your
evidence of why he shouldn't have any time, or whether
you should have more time, or whatever.
indicated that she wished to come back with a lawyer at the
final hearing to further discuss the custodial allocation and
the judge agreed.
the final hearing, Heather, now by counsel, filed an Amended
Parenting Plan in which she stated, "[Richard] has been
physically and mentally abusive to my girls and I
[sic]." Also in the interim, Heather filed a
motion to present testimony from the children's
pediatrician and A.R.'s counselor at the final hearing.
final hearing on September 5, 2018, Heather was represented
by counsel and Richard again appeared pro se. Early in the
proceeding, Richard requested that the court move visitation
from Saturdays to Sundays to accommodate his and the
children's schedules. Heather did not object to this
change, but her counsel reminded the court that it still
needed to address the matter of supervised visitation.
Counsel also noted that A.R. suffered from anxiety issues and
that A.R.'s pediatrician had been subpoenaed to testify
before the court could address the supervised visitation
issue, Richard interjected to remind the court that Heather
had invited him to return to their joint home. Heather
acknowledged that this was true and the following exchange
JUDGE: Okay, so you obviously don't think he's a
danger to your kids.
HEATHER: That is not true.
JUDGE: Well, yes it is. If you asked him to come home-
HEATHER: May I explain?
JUDGE: No you cannot. Because if you asked him to come home
and live in the home with you, then I don't think you
think one little bit that ...