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Post Divorce Relocation Rights of the Custodial Parent - Part III
Prevalent Litigation Issues - the Procedural/Substantive Mix:

A. Constitutional Rights of the Primary Caretaker vs. "Best Interests of the Child"

For more than a decade the State of West Virginia has subscribed to the rule that in contested custody matters, there is a presumption that the best interests of a child are served by placing custody in his or her primary caretaker, if such primary caretaker meets minimum objective standards for fitness. (15)

This rule, established by Garska v. McCoy, is composed of many elemental considerations. Firstly, from a legal standpoint, West Virginia Code 48-2-15 provides a sex-neutral standard for the resolution of custody issues, consistent with the best interests of the child; i.e., if the father is the primary caretaker of a child, then he is entitled to support awards as a mother would be in opposite, but exact circumstances. (16)

Secondly, the Garska Court enumerated certain "obvious criteria" to aid trial courts in determining who was or is the primary caretaker in a custody dispute by looking to which Party, as a matter of fact, assumed primary responsibility for the following non-exclusive domestic activities:

  • preparing and planning meals;
  • bathing, grooming and dressing;
  • purchasing, cleaning, and care of clothes;
  • medical care, including nursing and trips to physicians;
  • arranging for social interaction among peers after school, i.e. transporting to friends' houses or, for example, to girl or boy scout meetings;
  • arranging alternative care, i.e. babysitting, day-care, etc.;
  • putting child to bed at night, attending to child in the middle of the night, waking child in the morning;
  • disciplining, i.e. teaching general manners and toilet training;
  • educating, i.e. religious, cultural, social, etc.; and,
  • teaching elementary skills, i.e., reading, writing and arithmetic.
  • (17)

A third consideration is the avoidance or prevention of the so-called "Solomon syndrome" that metaphorically depicts the parent, who is more emotionally attached to a child, foregoing or surrendering legitimate property, alimony or support interests in favor of averting protracted, expensive or traumatic (to the child and such parent) custody litigation. (18)

Obviously, the practical objectives in the judicial creation of the primary caretaker presumption of Garska is to remove children from the prospect of being utilized, or perhaps a better word may be, sacrificed, as human ammunition or "poker chips" in the embittered, cynical, exhaustive and often universally destructive leverage strategies of a contested divorce action.

Perhaps the primary caretaker parent presumption was placed in its best historical/judicial/philosophical perspective in David M. v. Margaret M.,(19) wherein Justice Neely tersely and eloquently authored the following words:

Although the primary caretaker parent presumption may appear cut-and- dried and insufficiently sensitive to the needs of individual children, it serves the welfare of the child by achieving stability of care in the child's life, reducing the uncertainty of custody decisions, limiting the invasiveness of the custody determination process and reducing the expense of domestic litigation. Because litigation per se can be the cause of serious emotional damage to children (and to adults), we consider the primary caretaker parent presumption to be in the best interests of children. Even more important, children cannot be used as pawns in fights that are actually about money because a lawyer can tell a primary caretaker parent that, if fit, that parent has absolutely no chance of losing custody of very young children. The result is that questions of alimony, property distributions, and child support are settled on their own merits. (20)

Thus, the state of law in West Virginia on this point is that if the primary caretaker, from the preponderance of evidence, achieves the David M. standard of behavior, which establishes or qualifies him or her as a fit parent, the trial court must award the child to the primary caretaker. (21)

Although Garska and its successively affirming decisions have manufactured the presumption that the best interests of a minor** are advanced by consignment to his or her primary caretaker; and despite said line of cases also having delineated what factual evidence will identify such primary caretaker, little guidance is given concerning two residual and prospective issues: (a) what are the parameters of custody once awarded,*** and, (b) what impact, if any does a grant of custody have upon the constitutional right of travel belonging to the custodial parent.

One must assume that constituent parts (22) of the primary caretaker determination in conjunction with the standards of fitness (23) most recently established in David M., marks the definitional and responsibility boundaries, respectively, of child custody; but the second posit does not admit of such easy extrapolation.

By dicta in David M., the Court has implied that site of residence is with the prerogative of the custodial parent when it remarked that "...the parent who receives custody is primarily responsible for making decisions concerning the child and for providing the child's permanent home." (15)

A few States (not West Virginia) across the nation have sought to address the custodial parent/relocation dilemma by statute. (25) If no legislative enactment is in force, the common law provides the only vehicle to resolve the base question: Does the continuing jurisdiction (26) of courts subsequent to the first custody determination, in tandem with the admittedly compelling state interest of child welfare, function successfully to infringe upon the custodial parent's right to travel?

Some jurisdictions have specifically held that the parent with sole custody has a nearly unqualified, if not absolute, option to re-establish, in good faith, his or her residence, with child, outside the territorial limits of the court pronouncing the original custody award, if no restrictive provision of a court order prevents the same. (27) Taylor v. Taylor, 563 So.2d 1049 (Ala. CA 1990). Other visionary jurists, constituting in fact and in law the predominant view, reduce the removal inquiries to an unadorned single question -- irrespective of the custodial parent's constitutional right to travel, is relocation in the best interests of the affected child? (28)

Being cognizant that the cause of action a parent employs to raise all major and incidental issues of child removal, may influence or control in and of itself the burden of proof, and ultimately the outcome of the litigation, the procedural and substantive approaches to resolve the child's best interests is hardly a settled matter. (29)

B. Presumptions and the All Important Burden of Proof

Notwithstanding the sentiment of a majority of those jurisdictions adhering to the best interests of the child test in relocation litigation, there is a great divergence of authority, internally, with respect to which parent, either custodial or non-custodial, enjoys any presumptions, and consequently, which opposite party must meet and carry the burden of proof regarding that interest.

New York subscribes to perhaps the strictest presumption, legally favoring the non-custodial parent. There, any relocation as a matter of law, will deny visitation to the parent left behind, and, a fortiori, produce a negative effect upon the child's welfare. (30) To overcome that very strong presumption, a relocating custodial parent must demonstrate "exceptional or compelling circumstances" to justify a geographical alteration of a child‚s domicile from that of the original divorce venue. (31)

California (32) , Florida (33) , Illinois (34) , Louisiana (35) , Maine (36) , Massachusetts (37) , Nebraska (38) , Nevada (39) , Ohio (40) , Oregon (41) , South Carolina (42) and Tennessee (43) are representative of those jurisdictions that also subscribe to a presumption against removal; and therefore, the custodial parent, in varying degrees and standards, must justify the relocation in terms of the child's best interests. On the other hand, a number of States, in adopting a presumption in favor of removal, require the non-custodial parent to make a threshold showing why the contemplated resettlement is materially contrary to the child's welfare and well-being; e.g., Alabama (44) , Mississippi (45) , Minnesota (46) , New Jersey (47) , Virginia (48) and Wisconsin (49) . Still other high courts have abrogated the procedural rigidity of presumptions and burdens of proof and faced the best interests monolith from a purely clinical standpoint; i.e., a neutral or substantively objective approach, with neither party having the burden of proof. (50) Keeping in mind that the primary caretaker presumption has no application to proceedings subsequent to the initial custody award, (51) the West Virginia analysis, should the Court decide the issue within a domestic law fact pattern, will follow, in all probability, the reasoning commenced in Pugh v. Pugh (52) and Sparks v. Sparks. (53)

In Pugh (54) , the mother and father of a four (4) year old were awarded equal (six months) or split custody by the Circuit Court of Preston County through a post divorce decree (habeas corpus) in September 1948. In addition, the mother was given, by a specific term in the September Order procured by her, permission to take the male child to California during her six month possession, until said minor attained school eligibility or approximately six years of age. The father appealed, citing as error, inter alia., the split award and the California removal provision. (55) Worthy of note is the absence of any constitutional claim regarding travel. (56)

Relying upon what it considered to be a plethora of similar sentiments in sister states, the West Virginia Court readily found:

...a court of competent jurisdiction has the inherent power, unless restricted by statute, to grant the custody of an infant to a person who does not reside in the jurisdiction and to permit the person to whom it awards the custody of the child to remove it to another state or foreign jurisdiction. (57)

Pointing to the annual east to west shift of the child, the deleterious effects of dissimilar environments and the absence of a "settled home", (58) the tribunal in reversing the lower court declared:

When the award of custody to a resident of another state, or the removal of the infant to another jurisdiction, will not serve, or is detrimental to, the welfare of the child, such award or such removal will not be permitted. (59)

More significantly, however, for the purposes enunciated herein, the Pugh court, while not creating any presumptions, clearly assigned the burden of proof to the party seeking removal, when it flatly stated:

To entitle [split custodian mother] to the custody of the child it was incumbent upon her, in this proceeding, to show that a change of the existing custody by the respondent would materially promote the welfare of the child. See State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 [1948]. The evidence indicates clearly that she has failed to satisfy the requirement;... (60)

The result in Pugh seems somewhat dated and unduly harsh, which may have been wrought, in part, by the peculiar nature of the remedy selected (habeas corpus); however, the Pugh decision cannot be said to be confined only to its unique set of facts, when it appears that the Court took recourse to the basic historical and statutory standard for what was essentially a change of custody action -- whether the benefit and welfare of the subject child would be materially promoted. (61)

The Sparks case sheds some small illumination upon West Virginia's legal evolution on the child removal question, which should be seen as a departure from the austere Pugh holding concerning the burden of proof.

Although the Sparks (62) court was limited to the fine point of whether the Kanawha County Circuit Court properly enjoined a divorced mother, a former British subject, from temporarily taking her two children to her traditional home in Scotland for the summer months, Pugh was recalled with approval for the proposition of permanent child removal, if consistent with its best interests. (63) The Court then reasoned that there was less justification for preventing a temporary child relocation "absent a showing that the health or welfare of the children would be substantially impaired" (64) ; nor was the transportation of the infants revealed to be a device of "...subterfuge to remove [permanently] the children from the jurisdiction of the court..." (65)

The upshot of Sparks is that the party attempting to arrest, through injunction, the relocation of his or her children to a foreign jurisdiction, had the responsibility to demonstrate artifice, deception or improper motivation on the part of the moving parent, or that the intended trip was detrimental to the children involved. (66)

As in Pugh, it is worthy of remark that Sparks did not entail a constitutional challenge grounded in organic entitlement to travel on the part of the custodial parent; and, as noted elsewhere herein, the West Virginia Court has manifested a clear disinclination to resolve custodial parent relocation against a constitutional backdrop. (67) Thus, one easily but cautiously may conclude that the West Virginia Court would be considered as being in the camp of those jurisdictions that subscribe to the tenet placing the burden of proof upon the non-custodial parent to make a prima facie case of detriment to a child's best interests, or malevolent and illegal designs on the part of the custodial parent in child relocation cases. (68)

C. Qualifications to the Travel Right of the Custodial Parent

Most child removal litigation only secondarily revolves about the subject infant's relationship with the non-custodial parent. Indeed, the judicial experience has been primarily motive identification; i.e., the main inquiry centers on verification of the circumstantial considerations or fact catalysts offered for the move in the first instance. As a result, a dearth of opinion has surfaced as to what or what are not legitimate reasons, relevant determinants or at least usable elements in the best interests equation, where the idea of a relocation originates with the custodial parent.

Case fact models would indicate that not inconsiderable weight is attached to the following factors or combinations thereof with respect to the custodial parent's interest only:

  • return to ancestral home and/or areas of consanguinial family; (69)
  • remarriage, when relocation is predicated on a second spouse's career advancement or some other business compulsion; (70)
  • spending more time with child due to a job change for parent or second spouse; (71)
  • Post-divorce trauma, unpleasant associations or psychological well-being; (72)
  • higher salaried employment, increased standard of living, economic advantage, inability to find suitable position in the immediate area, or involuntary transfer. (73)

The foregoing enumeration is not intended by any means to be comprehensive or exclusive, but the above criteria, among others, tend to recur in reported decisions, annotations, treatises and encyclopedic works on the subject. (74)

Loss or dilution of established or regular visitation privileges is the most common focal point of post-divorce, relocation actions by the non-custodial parent, with emphasis being placed on the alleged ongoing and close relationship between the child and the visitation parent as evidence of the projected move's invidious effects and the perfidious traits of its proponent. Understandably, relocation has been denied in certain instances on account of the strength of the bond between the child and the parent out of possession. (75)

Visitation deprivation, as a component standing alone, has proven to be insufficient to deter relocation on the theory that the child is a member of a transformed nuclear family after a divorce, to which public policy grants favor; and merely disrupted visitation will not transcend the custodial parent's right to free travel. (76)

Predicting what West Virginia would rule in an comparable factual situation would be nothing but an exercise in calculated speculation. On the one hand, there are the Pugh, Sparks and Rowsey chain of cases that can be asserted for the postulation that the best interests of that child standard will prevail, or at least play a major role, in any planned relocations of the custodial parent.

The counterpoint is that West Virginia, partially in deference to legislative intent (77) , also espouses the right of the non-custodial parent to a close relationship with his or her child. (78) One cannot conceive of a more nearly unambiguous, unequivocal and comprehensive pronouncement from the Supreme Court of Appeals than that entered in White v. Williamson (79) , on the subject of non-custodial visitation:

In considering visitation issues, the courts must be mindful of their obligation to facilitate the right of the non-custodial parent to a full and fair chance to continue to maintain a close relationship with his or her children. (80)

Succinctly stated, West Virginia has elevated visitation privilege to visitation right in custody cases.

In an effort to reconcile these two apparently conflicting principles within the closed environment of a relocation dispute, advocates on both sides of the issue could satisfy his or her competing interest by adopting the expanded summer accommodations furnished by the Schedule "B" visitation paradigm (81) presently utilized in a number of circuit courts in West Virginia, where either the child or the non-custodial parent does not reside in the state.

D. The Child's Expression of Preference

To this stage of the current essay, the scholastic examination of the facets of the custodial relocation issue has been confined to the clash of parental concern or advantages where only one parent enjoyed sole custody. (82) But, what if the child over whom the parents are contending, does or does not want to go?

At least one jurisdiction has advanced the notion that a child's rights are "as worthy of constitutional protection" as those of its parents. (83) Moreover, the United States Supreme Court has held unqualifiedly that "minors", as well as adults, are protected by the Constitution and possess constitutional rights. (84) However, notwithstanding intelligent articulation and despite being constitutionally laudable, the geographical preference of a young child may be accorded some but less than controlling weight in relocation controversies, (85) especially if a parent has exerted detectable or subtle influences. (86)

Drawing precedental sustenance and analogical direction from instances of initial custody awards only, West Virginia has identified and outlined three (3) distinct age groups in the counter-balance between primary caretaker and the custodial desires of children in original divorce proceedings, which are identified generally as follows:<

  • with respect to a child of tender years, the primary caretaker presumption controls;
  • in the circumstance of an adolescent fourteen (14) years of age, or greater, West Virginia Code 44-10-4 allows he or she to nominate the guardian, if that person is otherwise fit; however, there is
  • a melding of these two extremes in favor of a more flexible technique, where the child, neither fourteen (14) years of age nor an infant of tender years, may designate a custodian; and if a sage, good and mature reason can be explicated by the child in support of his or her parental selection, the presumption militating in behalf of the primary caretaker may be rebutted by such preference. (87)

Once the primary caretaker has been established, the sequential problem is whether or not a trial court, in its discretion, should consult a (as identified above) class (c) infant in the first place through an in camera interview. (88)

Specifically, Justice Brotherton suggested in the Rose v. Rose (previous footnote) case, with approval of the majority of the Court, certain guidelines for utilization by trial courts in evaluating a child's expression of preference, in terms of evidentiary weight, which could be adapted with equanimity and pragmatism to relocation cases:

  • The trial court should investigate whether the statement of preference by the child was induced by the party in whose favor the preference was expressed. If so, said statement of preference should be accorded little, if any, weight. (Citation omitted).
  • Where an otherwise intelligent child makes an illogical decision based on unimportant factors, the trial court may disregard the child's statement of preference. (Citation omitted). [child's reason for preferring her mother's home was accessibility of boating, fishing, and swimming facilities on the lake near which the mother's trailer home was located.] (89)

The West Virginia Court as a whole, has reaffirmed recently in text rather than subscript, that the basis for a child's vocalization against a particular residential or domiciliary location may be "relatively unimportant" and born of "temporary dissatisfaction with a recent move." (90) In a word, the Rose footnote has become law. (91)

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