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John W. v. Rechelle H.

Supreme Court of Appeals of West Virginia

January 13, 2020

John W., Respondent Below, Petitioner
Rechelle H., Petitioner Below, Respondent

          Kanawha County 17-D-56


         Petitioner John W. ("Father"), pro se, appeals the Circuit Court of Kanawha County's February 20, 2019, order denying his appeal of the family court's order with regard to the modification of his parenting time. Respondent Rechelle H. ("Mother"), by counsel Lyne Ranson and Brittany Ranson Stonestreet, filed a response in support of the circuit court's order. Father submitted a reply.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court and remanding with directions is appropriate under Rule 21 of the Rules of Appellate Procedure.

         The parties were married on January 2, 2016, and separated on December 21, 2016. A child was conceived during the marriage and was born in July of 2017. A Final Divorce Order, Interim Parenting Plan and Notice of Modification Hearing was entered in the Family Court of Kanawha County on December 19, 2017. In that order, Mother was designated as the primary residential and custodial parent of the child, N.A.H. The interim parenting schedule provided that Father would exercise parenting time with the child every other Saturday, generally synchronized to Father's parenting schedule with the child's two half-siblings (from Father's prior marriage), and that Father's parenting time would occur in or around the Lewisburg/White Sulphur Springs, West Virginia, area where Mother relocated before the child was born and where she and the child now reside with Mother's mother.[1] A hearing was scheduled for March 22, 2018, "to address any modifications or necessary changes to the parenting schedule." [2]

         Hearings were thereafter conducted on March 22, 2018, September 5, 2018, and November 14, 2018, on Father's Notice of Live Birth of Child of Marriage, and Notice of Intention to Amend Birth Certificate of [N.A.H.] and Fourth Motion for Temporary Relief and Injunctive Relief, and also on Father's Motion to Reduce Child Support.

         On October 24, 2018, following the September 5, 2018, hearing, the family court entered a revised interim order that modified Father's parenting schedule, awarding Father parenting time every other weekend, both Saturday and Sunday, in the Lewisburg/White Sulphur Springs area, and every other Wednesday afternoon in Kanawha County (where Father resides). The revised order provided that Mother would transport the minor child to and from Kanawha County for the Wednesday visits. The interim parenting schedule did not provide for overnight visits.[3]

         The parties submitted reports from their respective expert psychologists, who also testified during the course of the hearings regarding whether overnight visits with Father were appropriate in light of the child's age and development. Mother's expert psychologist, Dr. Timothy Saar, testified, to a reasonable degree of psychological certainty, that, given Mother's role as the child's primary caretaker, overnight parenting time should not occur during the attachment stage in the child's development and that time away from her (as the primary caretaker) could potentially cause the child significant long-lasting harm. He further testified that the interim parenting schedule was working well and helping to establish a bond between the child and Father. Dr. Saar recommended that overnights should not be considered until the child was three years old.

         Father's expert, Dr. Cliff Hudson, initially testified at the March 22, 2018, hearing, and generally agreed with Mother's expert, Dr. Saar, that overnights away from the primary attachment figure during such a young age could potentially be disruptive to the child's emotional and psychological well-being. Dr. Hudson testified that he firmly believed in "attachment theory" and in respecting the "primary attachment relationship." According to Dr. Hudson, overnights should begin closer to the age that a child's language is better developed (around twenty-four months) so that the child can understand when he would be leaving and then returning to his primary caretaker. Dr. Hudson opined that it was his "best recommendation" that Father have two overnights per week every other weekend to establish a healthy bond with the child.

         During the next hearing, on September 5, 2018, Dr. Hudson expressed a modified opinion based upon several studies of which he had recently become aware ("the Warshak and Fabricius studies").[4] Dr. Hudson testified that, based upon these studies, he now believes that overnights for infants do not cause harm and that he no longer believes in the primary attachment figure theory. Dr. Hudson testified that a child may safely have multiple attachment figures. However, when asked on direct examination whether he recommended a 50/50 shared parenting schedule, Dr. Hudson testified that he did not recommend that it "be initiated with any sort of immediacy" but he was "prepared to recommend that it be a goal that is proceeded toward with some speed." Dr. Hudson opined that overnight visits should begin with a single overnight if the visits are going well and then increase the overnights from there. For his part, based upon the updated research, Dr. Saar subsequently modified his recommendation and opined that overnight visits with Father may be considered between the ages of eighteen and twenty-four months, but no sooner than eighteen months.

         Mother and Father also testified before the family court. Mother testified that the child sleeps in a crib in her bedroom. She further testified that, after visits with Father, the child is very needy and anxious. Though she initially stated that she believed that overnight visits should not begin until the child is thirty-six months old, she later testified that overnights could begin when the child is twenty-four months old. Father testified that he and the half-siblings enjoy a loving relationship with the child and introduced videotape showing the interaction between them. He further testified that he wishes to exercise a 50/50 shared parenting schedule with the child and requested that the schedule be synchronized with the 50/50 schedule he enjoys with the child's half-siblings.

         In its final order, the family court determined that it is in the child's best interest to have parenting time with Father as follows: at approximately twenty-two months old, "when the child's verbal language is better developed," Father would be given overnight visits (i.e., from Saturday at 10:00 a.m. to Sunday at 5:00 p.m.) on alternating weekends in Lewisburg for two months "to ensure that if the child suffers difficulties with the transition and separation anxiety, it will allow Mother to be involved and assist to facilitate parenting"[;] at twenty-four months old, the overnight parenting time will no longer be required to occur in Lewisburg; and at thirty-six months old, the child's parenting time with Father will be from Friday at 6:00 p.m. until Sunday at 6:00 p.m., on alternating weekends. The every other Wednesday visits remained unchanged. The parenting schedule further provided a holiday schedule and, relevant to this appeal, ordered that the child spend Easter with Mother on odd years and with Father on even years.[5] Father appealed this order to the circuit court.

         In its Order Denying Petition for Appeal, entered on February 20, 2019, the circuit court affirmed the family court's order. This appeal followed.

         This Court reviews the circuit court's order under the following standard:

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, 607 S.E.2d 803 (2004). Furthermore, "[q]uestions relating to . . . custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused." Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).

         In his first assignment of error, Father argues that the family court erred in failing to order a 50/50 shared parenting plan. Father argues that the consensus scientific view, as demonstrated by the studies referenced above, is that a young child's best interest is met by such a plan and ...

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