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Dempsey v. Dempsey
Citations: 306 S.E.2d 230; 172 W. Va. 419Docket: 15696
Court: West Virginia Supreme Court; July 27, 1983; West Virginia; State Supreme Court
Betty Ann Dempsey appeals a December 23, 1981 order from the Circuit Court of Taylor County, which awarded custody of their son, Jay Dempsey, to John Curtis Dempsey. Betty claims she is entitled to custody as the child's primary caretaker, referencing the precedent set in Garska v. McCoy. The court concluded that neither parent qualified as the primary caretaker due to shared responsibilities. John had custody since October 1980, following a request from Betty due to her financial struggles, although it is disputed whether this was meant to be temporary. The trial court found that both parents had contributed to the child's care, thus negating any presumption favoring Betty. The court noted that although Betty had been the primary caregiver longer, this was not determinative. Ultimately, the court ruled that neither party was entitled to the primary caretaker presumption and proceeded to evaluate which parent was better suited for custody, affirming the decision to award custody to John. The court's primary consideration in custody decisions is the best interests of the child, as established by W.Va. Code, 48-2-15 [1980]. Evidence showed that upon moving to West Virginia, Jay exhibited disobedience and poor academic performance, but improved significantly in both areas while living with the appellee, whose neighbors also noted Jay's enhanced happiness. The trial judge determined that awarding custody to the appellee was in Jay's best interests and did not abuse his discretion. Regarding visitation, an agreement was reached requiring the appellant to cover travel expenses for visitation. Issues arose when the appellant failed to pay for Jay's return, forcing the appellee to incur expenses and causing Jay to miss school. The appellee then sought an order for contempt, and the trial court found the appellant in contempt, terminating her visitation rights. While the court's frustration was understandable, complete revocation of visitation was deemed excessive. Citing Ledsome v. Ledsome, 301 S.E.2d 475 (W.Va.1983), the court emphasized that visitation rights should not be denied lightly and must prioritize the child's best interests. The court reversed the termination of visitation, instructing the trial court to reconsider this decision. Justice Miller dissented, arguing that the trial court erred in designating both parents as primary caretakers. He contended that the mother was the primary caretaker until forced to relinquish temporary custody due to the father's abandonment and lack of support. Miller criticized the ruling as inequitable, suggesting that the mother's humane decision to place the child with the father led to her losing custody, which contradicts the principles established in Garska v. McCoy, W.Va. 278 S.E.2d 357 (1981).