Summary
holding that "[t]o justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child."
Summary of this case from In re A.R.Opinion
No. 13999
Decided December 20, 1977.
The mother sought reversal of an order of the Circuit Court, Berkeley County, Pierre E. Dostert, Judge, transferring custody of three-year-old daughter to the child's father.
Reversed and remanded.
Rice, Hannis Douglas, Charles F. Printz, Jr., for appellant.
William Richard McCune, Jr., for appellee.
In this appeal appellant, Mamie Selbe Cloud, seeks reversal of a Berkeley County Circuit Court order transferring custody of appellant's three-year-old daughter, Kathleen, to the child's father, Terry Martin Cloud.
This Court has firmly subscribed to two propositions with reference to the custody of very young children: (1) the law favors the mother if she is a fit person, other things being equal, Funkhouser v. Funkhouser, W. Va., 216 S.E.2d 570 (1975); Settle v. Settle, 117 W. Va. 476, 185 S.E. 859 (1936); and (2) where a change of custody is sought, a change in circumstances of the parties alone is not enough. It must be shown that such change would materially promote the welfare of the child. Holstein v. Holstein, 152 W. Va. 119, 160 S.E.2d 177 (1968); Pugh v. Pugh, 133 W. Va. 501, 56 S.E.2d 901 (1949).
The evidence adduced in the instant case demonstrated that, except for appellant's poverty, the parties were substantially equally fit and in equal posture to provide for the welfare of the three-year-old Kathleen. There was no evidence showing that change of custody would materially promote the welfare of the child. By ignoring the foregoing two principles and transferring custody of the child to the father, the Circuit Court of Berkeley County erred.
We, therefore, reverse and remand this case to the Circuit Court of Berkeley County with instructions that custody of Kathleen be vested in the mother.
Reversed and remanded.