Garska v. McCoy

Supreme Court of Appeals of West Virginia · Family Law

Family LawChild CustodyPrimary Caretaker PresumptionTender Yearscustodyprimary caretakertender yearsfit parent

Facts

The unmarried mother became pregnant by the father, returned to West Virginia, and received no support during pregnancy; after the child was born, the father sent only a package of baby supplies. The child developed a chronic respiratory infection requiring hospitalization and medical care, and the mother's grandfather sought insurance coverage but was told the child would be eligible only if adopted by the grandparents. The mother signed a consent to adoption by her grandparents, after which the father visited the child for the first time and began sending weekly $15 money orders. The trial court dismissed the adoption petition, then awarded custody to the father based on findings that he was more educated, intelligent, financially able, socially advantaged, and motivated than the mother.

Issue

In a custody dispute between natural parents of a child of tender years, after the 1980 amendment eliminating gender-based presumptions, should custody be determined by comparing the parents' relative advantages, or is there a presumption in favor of the fit primary caretaker parent regardless of sex? Also, did the trial court err by taking custody from the mother where she had been the child's primary caretaker and was not found unfit?

Rule

In any custody dispute involving children of tender years, the circuit court must first determine which parent was the primary caretaker before the domestic strife began. If one parent is clearly the primary caretaker and meets the minimum objective standard of fitness, that parent is entitled to custody regardless of sex; only when care was shared equally does no presumption arise and the court may inquire further into relative parental competence. In identifying the primary caretaker, the court looks to which parent took primary responsibility for caregiving functions such as meals, bathing and dressing, clothing care, medical care, arranging social interaction and alternative care, bedtime and nighttime care, discipline, education, and teaching elementary skills.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Lena Ortiz and Caleb Wynn, unmarried parents in Columbus, Ohio, are litigating custody of their two-year-old daughter. Before they split, Lena handled nearly all meals, bathing, clothing, doctor visits, bedtime, and day-care arrangements, while Caleb worked long hours and saw the child mainly on weekends; both parents are otherwise fit, but Caleb has a graduate degree, a larger home, and higher income.

Which result best follows from the governing rule?

Explanation. For a child of tender years, the court must first determine which parent was the primary caretaker before the domestic strife began. If one parent was clearly the primary caretaker and meets the minimum objective standard of fitness, that parent is entitled to custody regardless of sex. The majority rejected using relative wealth, education, demeanor, or similar comparative advantages to displace a fit primary caretaker.