In re Jade E. G.

575 S.E.2d 325, 212 W. Va. 715, 2002 W. Va. LEXIS 238
CourtWest Virginia Supreme Court
DecidedDecember 4, 2002
DocketNo. 30619
StatusPublished
Cited by4 cases

This text of 575 S.E.2d 325 (In re Jade E. G.) 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
In re Jade E. G., 575 S.E.2d 325, 212 W. Va. 715, 2002 W. Va. LEXIS 238 (W. Va. 2002).

Opinion

PER CURIAM.

This is an appeal from an order of the Circuit Court of Mason County that adopted a family law master’s recommendation to award custody of the appellant’s minor children to the appellees, Reginald G. and Patricia G., the children’s paternal grandparents. We reverse the decision of the trial court and restore custody of Jade E. G. and James A. G. to the appellant, Kimberly H.

I.

The appellant Kimberly H. and Aaron G. are the parents of the two children, Jade E. G., born November 20, 1990, and James A. G., born October 1, 1993. Before Jade’s birth, the appellant Kimberly H. and Aaron G. resided at the home of the appellees, Reginald G. and Patricia G., Aaron G.’s parents. The appellant and her newborn, Jade, returned to the appellees’ home following Jade’s birth. The appellant and Jade lived with the appellees for an extended period time after Jade’s birth; however, exactly how long is unclear. Estimates range from a couple of months to more than a year. James A. G., the appellant’s second child, has also resided with the appellees since he was approximately one month old.1

At some point after Jade’s birth, the appellant and Aaron G. moved out of the appellees’ home. Because the appellant worked evenings, both the appellant and the appellees agreed that it was in Jade’s best interest for Jade to stay overnight with the appellees, as opposed to waking her up in the middle of the night. This was the beginning of a pattern where Jade E. G., and later James A. G., spent most nights at the appellees’ home while spending significant time with the appellant and Aaron G. during the day. Later, the appellant worked in the construction industry and had to leave for work at 4:00 a.m. Often, she would not return from work until after 5:00 p.m. At another point, the appellant worked as a school bus driver, leaving for work before 5:00 a.m., and worked a second job as a waitress in the evenings. Additionally, only a wood stove heated the home of the appellant and Aaron G., and the home had no drinkable water. The lack of heat and a lack of drinkable water in the [718]*718appellant’s home, along with her work schedule, reinforced the pattern of the children staying with the appellees. Also, during much of this time, Aaron G. physically abused the appellant.

On January 16,1998, the appellant filed for a family violence protective order against Aaron G. The appellant was awarded temporary possession of their home and temporary custody of them two children. On February 4, 1998, the appellant took Jade E. G. and James A. G. home to live with her.2

On February 5, 1998, the paternal grandparent-appellees filed an ex parte petition for custody of the appellant’s children.3 The appellees claimed that they could not serve the appellant with a copy of the petition because they feared that she would flee the jurisdiction with her children. On February 26,1998, the family law master (“FLM”) held a temporary hearing on the ex parte relief requested, and on February 27, 1998, the FLM recommended awarding custody to the grandparent-appellees.

The appellant promptly filed a petition for review of the FLM’s recommendation in circuit court on April 8, 1998. The circuit court postponed scheduling a hearing on the appellant’s petition to allow the parties time to negotiate. Ultimately, the parties entered into an agreed order on August 26, 1998, remanding the case to the FLM. The agreed order directed the FLM to appoint a guardian ad litem for the children. The order also directed Dr. Stephen O’Keefe, a psychologist, to evaluate the parties and the children.

In December of 1998, Dr. O’Keefe conducted psychological evaluations of the parties and the children. In his reports to the court, he recommended giving the appellees physical and legal custody of the children and giving the appellant liberal visitation rights. The guardian ad litem, attorney David Ni-bert, also conducted an investigation, and in February 1999 issued a report recommending that the appellant should have custody of her children.

On June 17, 1999, the FLM recommended awarding custody of the two children to the appellees. In the order, the FLM found that the appellees were the children’s psychological parents and were the children’s primary caretakers.

The appellant again promptly filed a second petition for review of the FLM’s recommendation in circuit court on July 30, 1999. On December 3, 1999, the circuit court .held oral arguments on the appellant’s petition for review. At the conclusion of the hearing, Judge Clarence Watt informed the parties that he had been the presiding judge in Aaron G.’s criminal case, and asked whether any of the parties had a problem with his remaining on the case. The record is silent as to any responses.

Thereafter, for several months, the parties engaged in negotiations. Them efforts failed, and by letter dated September 18, 2000, appellant’s counsel requested that Judge Watt4 rule on the appellant’s petition for review that was filed over one year earlier. On March 26, 2001, newly-elected Judge Thomas Evans held a hearing on the appellant’s petition for review. Some four months later, on August 1, 2001, the circuit court affirmed the FLM’s recommended decision awarding permanent custody of James A. G. and Jade E. G. to the grandparent-appellees. It is from this order that the appellant appeals.

II.

This Court has previously stated a three-pronged standard for reviewing the findings of family law masters that circuit courts adopt.5

[719]*719In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

Syllabus Point 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).

The appellant argues that the FLM and the circuit court applied incorrect legal standards. Our leading case addressing the transfer of custody of children from a natural parent to a third party is Overfield v. Collins, 199 W.Va. 27, 483 S.E.2d 27 (1996). In Overfield, this Court outlined the issues, standards, and burdens of proof when relating to the custody of children who have been placed in the care of a third party by a parent.

In order for a third party to seek custody of a child from a fit natural or adopted parent, a “transfer” of custody must first have occurred. When there is no written instrument transferring custody, this Court suggested in Overfield that “[a] critical element of proof demarcating temporary custody and permanent custody is the length of time of the custodial change. The amount of time which passes after a transfer of custody, together with all the other circumstances, shall be an important factor in determining whether such transfer was intended to be temporary or permanent.” Overfield, 199 W.Va. at 38, fn. 9, 483 S.E.2d at 38, fn. 9.

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Bluebook (online)
575 S.E.2d 325, 212 W. Va. 715, 2002 W. Va. LEXIS 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jade-e-g-wva-2002.