Belinda Kay C. v. John David C.

455 S.E.2d 565, 193 W. Va. 196, 1995 W. Va. LEXIS 6
CourtWest Virginia Supreme Court
DecidedFebruary 17, 1995
Docket22334
StatusPublished
Cited by4 cases

This text of 455 S.E.2d 565 (Belinda Kay C. v. John David C.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belinda Kay C. v. John David C., 455 S.E.2d 565, 193 W. Va. 196, 1995 W. Va. LEXIS 6 (W. Va. 1995).

Opinion

PER CURIAM:

In this domestic case, the appellant, Brenda Kay C., claims that the Circuit Court of Raleigh County erred in granting the appel-lee, her former husband, John David C., unsupervised visitation with the parties’ two children. The appellant claims that the ap-pellee has exhibited violent behavior toward the children and that, under the circumstances, the trial court should have required that any visitation with the children be supervised. We agree and, therefore, remand this matter to the circuit court with directions that visitation be at least minimally supervised.

The marriage of the parties in this matter was turbulent, and during it each obtained violence-related warrants against the other. At length, they were divorced. At one time during the pendency of the divorce proceeding, over twenty warrants and cross-warrants were on file in the Magistrate Court of Raleigh County involving the parties or members of their respective families.

In the divorce decree entered on March 9, 1992, the appellant was awarded custody of the parties’ two infant sons, who were then seven and four years of age. The appellee was granted visitation, but, in accordance with an agreement between the parties, the court required the visitation to be limited and supervised, in that it was to be conducted at the home of the children’s maternal grandmother between 12:00 o’clock noon and 6:00 o’clock p.m. on Saturdays.

Only one supervised visitation was conducted at the children’s grandmother’s house. That session ended after the appellee became involved in a physical altercation with the appellant’s mother, the children’s maternal grandmother. As a result of the altercation, police were summoned to the scene.

After the incident, the appellee complained that he had been denied appropriate visitation with the children. A hearing was conducted on the question before a family law master, and the family law master directed that other arrangements be made to afford the appellee reasonable, controlled visitation.

Subsequently, visitations were scheduled at Pinecrest Hospital in Beckley, West Virginia, and the appellant hired an off-duty social worker, who was employed by the West Virginia Department of Human Resources as a member of its Child Protection Agency, to supervise. Two visitation sessions were conducted, but the Pinecrest Hospital administration refused to allow further sessions because during the second visitation, the police were called by the social worker, who apparently felt that the appellee was attempting to remove one, or both, of the children from the hospital premises.

The appellee complained about the denial of further visitation, and the question was addressed at a hearing conducted on December 22, 1992. At that hearing, the appellant testified that the appellee had behaved violently toward the parties’ two children and had spanked the older child so hard that he had “whelps” and bruises all over his back. She also said that the appellee would regularly “holler” and curse at the children. She indicated that the children were terrified of the appellee and that upon coming into contact with him, the older child would become physically ill.

In spite of the appellant’s testimony, the family law master, at the conclusion of the hearing, recommended that the appellee be afforded unsupervised visitation during specified periods. The circuit court subsequently adopted this recommendation.

West Virginia Code § 48-2-15 governs the circumstances under which a circuit court may in a divorce proceeding grant an noncustodial parent child visitation rights. West Virginia Code § 48-2-15(b)(l), the section specifically dealing with visitation, provides, in relevant part:

The court may provide for the custody of minor children of the parties, subject to such rights of visitation, both in and out of the residence of the custodial parent or other person or persons having custody, as *198 may be appropriate under the circumstances.

In Mary D. v. Watt, 190 W.Va. 341, 438 S.E.2d 521 (1992), this Court concluded that W.Va.Code § 48 — 2—15(b)(1) is sufficiently broad to allow, and in fact contemplates, that a trial court may order supervised visitation under appropriate circumstances. See also, Sherry L.H. v. Hey, 187 W.Va. 353, 419 S.E.2d 17 (1992).

In the Mary D. case, the Court stated:

[W]here supervised visitation is permitted, it is of paramount importance that the child’s best interests be served by not only what the court deems is in his or [sic] best interests, but also, that the child feels safe when such visitation is exercised by the noncustodial parent. Accordingly, the person who supervises such visitation must be one with whom the child is comfortable and feels safe. It is not enough that the person who is appointed to supervise visitation is in the best interests of the child from the court’s standpoint, which would merely assure that no further abuse will occur during such visitation. Rather, the fears of the child must be allayed as well so that the child may be protected not only from further physical harm, but also further psychological harm.

190 W.Va. at 349, 438 S.E.2d at 529.

Although the Mary D. case dealt with sexual abuse, implicit in a reading of it is this Court’s view that where the physical welfare of a child is involved, whether because of the sexual propensities of a parent or because of the parent’s propensity to violence, supervision is appropriate and may be necessary to safeguard and promote the welfare of the child. Further, there can be no doubt that W.Va.Code § 48-2-15(b)(l) is sufficiently broad to authorize a trial court to place supervisory restrictions on child visitation where there is substantial evidence that a party entitled to visitation might demonstrate violent behavior toward a child.

Of course, the Mary D. case indicates that the best interests of the child must be the determining factor in assessing how supervision should be conducted. This proposition is in accordance with this Court’s general rule that:

“In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.” Syllabus Point 1, Holstein v. Holstein, 152 W.Va. 119, 160 S.E.2d 177 (1968).

Syllabus, Taylor v. Taylor, 168 W.Va. 519, 285 S.E.2d 150 (1981).

In the case presently before the Court, there was substantial evidence indicating that the appellee had on occasion demonstrated violent propensities and some evidence that his violence, had, at least, disturbed his children. Although a portion of this evidence came from parties who might be considered to be biased in favor of the appellant, included in the record is the apparently disinterested testimony of Charles Lilly, a lieutenant with the Raleigh County Sheriff’s Department.

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Cite This Page — Counsel Stack

Bluebook (online)
455 S.E.2d 565, 193 W. Va. 196, 1995 W. Va. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belinda-kay-c-v-john-david-c-wva-1995.