Phillip R. v. Kelly R.

1
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
PHILLIP R.,
Respondent Below, Petitioner
v.) No. 25-ICA-123 (Fam. Ct. Wood Cnty. Case No. FC-54-2020-D-353)
KELLY R.,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Phillip R. (“Father”)1 appeals the Family Court of Wood County’s
February 21, 2025, order that denied his motion to modify custody of the parties’ children.
Respondent Kelly R. (“Mother”) and the children’s guardian ad litem (“GAL”) filed
responses in support of the family court’s order.2 Father did not file a reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.
The parties were married in 1997 and have five children, two of whom are now
adults and not subject to this appeal. The three minor children were born in 2011, 2012,
and 2014. In early August of 2020, the parties separated after Mother sought a domestic
violence protective order (“DVPO”) against Father on behalf of the children.
The family court granted Mother a 180-day DVPO on August 19, 2020. Under the
DVPO, Father was prohibited from having contact with the children and the DVPO was
set to expire on February 15, 2021. While the DVPO was in effect, Mother filed for divorce.
1 To protect the confidentiality of the juveniles involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2 Father is represented by William B. Summers, Esq. Mother is represented by
Katharine L. Davitian, Esq. The GAL is Erica M. Brannon, Esq.
FILED
September 30, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

2
In January of 2021, the family court held a preliminary hearing in the divorce
proceeding, awarding Mother primary custody of the children and awarding Father
supervised visitation with the minor children for two hours each week. The family court’s
temporary order noted that Father was currently in counseling and attending meetings at a
worship center. Father was ordered to undergo a psychological evaluation with SAAR
Psychological Group, PLLC (“SAAR”) and provide updates regarding his progression in
counseling with his counselor and in worship center meetings. On March 16, 2021, Father
completed the SAAR psychological evaluation and SAAR’s evaluating psychologist
prepared a report summarizing the results of the evaluations and setting forth their
recommendations. SAAR’s report concluded that, “[g]iven the high level of long-term
aggressive and impulsive anger outbursts [Father] has exhibited, the extent to which he
tried to justify his actions in this evaluation and the inherent difficulty in changing life-
long personality traits and characteristics, [Father’s] prognosis for improved parenting,
within a reasonable degree of psychological certainty, is very poor.”
At some point after the temporary order was entered, Father filed a motion for
increased visitation with the children. On October 4, 2022, the family court held a final
hearing in the divorce proceeding.3 The final divorce order held the issue of custodial
allocation in abeyance and ordered that the family court’s previous orders providing Father
with supervised visitation remain in full force and effect “given the substantial nature of
abuse of the children . . . by [Father] and results of the . . . [SAAR] evaluation[.]” On
November 2, 2022, the family court appointed a GAL for the children and ordered the GAL
to investigate the matter, and file a written report and recommendation with the court prior
to the final hearing on custodial allocation.
On February 10, 2023, the family court held the final hearing on custodial
allocation; specifically, to address Father’s motion for increased visitation and the GAL’s
investigation. During the hearing, the family court provided a copy of the GAL’s report to
counsel for the parties but prohibited the attorneys from disseminating the report directly
to the parties. The GAL’s report was subsequently filed under seal.
The GAL testified to the results of her investigation and her recommendations on
the record. She stated that she met with the parties, all five children, and Father’s counselor,
and that she reviewed the children’s school records and the SAAR report. Relevant to this
appeal, Father had been in therapy for over two years at the time of this hearing. Further,
the GAL’s report stated that she spoke with Father’s counselor, who reported that Father
3 While neither the transcript nor the recording from the October 4, 2022, final
divorce hearing was provided to this Court on appeal, the docket sheet indicates that
subpoenas were issued to witnesses in August of 2022 in anticipation of the final divorce
hearing. Relevant to this appeal, Father’s counselor was subpoenaed to testify at that
hearing.

3
was a “model client[,]” committed to being understanding, and was “honest about the
things that happened.” The GAL further explained that Father’s counselor had stated that
“trust building needs to occur and that could be done through family counseling.” The GAL
reported that Father stated that he had also been participating in parenting classes, and that
he denied that the children were afraid of him. Rather, Father believed that “most of the
problem was his yelling and screaming” and that he did not believe that his physical
punishment of the children was excessive. According to the GAL’s report, the adult
children stated that they have chosen to have “zero to do with their father.” Also, “all the
[minor] children report fear of their father[,]” are afraid to be alone with him, and that “they
would not be comfortable to seeing [him] without a supervisor there.”
The GAL acknowledged that Father was seeking a 50-50 parenting plan in his
motion for increased visitation but stated that she did not believe that to be in the children’s
best interest and recommended no additional visitation for Father. On March 8, 2023,
pursuant to the provisions of Rule 22(b) of the West Virginia Family Court Rules, the GAL
prepared and submitted the proposed order from the February 10, 2023, final hearing to the
family court and counsel for the parties.4
On April 6, 2023, prior to the family court’s entry of the final order from the
February 10, 2023, hearing, Father voluntarily had licensed psychologist, Dr. Edward
Baker, perform a psychological and parental fitness examination. Dr. Baker’s report dated
April 15, 2023, noted that Father had informed Dr. Baker of the family court’s February
10, 2023, hearing and the court’s rulings from the bench. Dr. Baker’s report acknowledged
that “[Father] stated he is appealing” the family court’s ruling.
4 Rule 22(b) of the Rules of Practice and Procedure for Family Court provides in
relevant part that
In proceedings in which one or both parties are represented by attorneys, the
court may assign one or more attorneys to prepare an order or proposed
findings of fact. An attorney assigned to prepare an order or proposed
findings shall deliver the order or findings to the court no later than ten days
after the conclusion of the hearing giving rise to the order or findings. Within
the same time period the attorney shall send all parties copies of the draft
order or findings together with a notice which informs the recipients to send
written objections within five days to the court and all parties. If no
objections are received, the court shall enter the order and findings no later
than three days following the conclusion of the objection period. If objections
are received, the court shall enter an order and findings no later than ten days
after the receipt of the objections.

4
On May 10, 2023, after receiving no written objections to the proposed order, the
family court entered a final order on custodial allocation, denying Father’s motion seeking
increased visitation. The family court specifically found that limiting factors existed
pursuant to West Virginia Code § 48-9-209(a) due to the serious physical and emotional
child abuse that Father inflicted upon the children as well as domestic violence.
The family court found that the parties’ minor children, as well as the adult children,
reported a lifelong history of physical and emotional abuse by Father and noted that “this
is one of the worst cases of abuse that has ever been presented to this [c]ourt. There has
been systematic lifelong abuse of the children and family starting from near birth – the
children reported that the babies were hit for crying.”
The family court explained that although Father had participated in counseling and
parenting services, and received glowing recommendations from his counselor, that it did
“not translate to additional contact with the children being in their best interest.” The family
court ordered “that the children SHALL NOT be forced to have visitation with [Father]”
and allowed “that the children shall have discretion whether or not they want to visit with
the Father.” The family court also determined that after finding that Father had engaged in
the limiting factors of child abuse and domestic violence pursuant to subsection (a) of West
Virginia Code § 48-9-209, that subsection (b) required the family court to impose limits to
protect the children or Mother from harm. The family court stated:
Pursuant to W.Va. Code 48-9-209(b) this Court FINDS that it should impose
limits on the Father’s parenting time that are reasonably calculated to prevent
the children from harm. The Court does ORDER that all contact with the
Father shall be supervised by . . . an independent third party provider, and
that the children shall have discretion whether or not they wish to attend
visitation.
The family court also denied Father’s motion for the children’s respective counselors to
make the decisions regarding increasing Father’s visitation. Father did not appeal this
decision.
On May 11, 2023, a day after the final parenting plan order was entered, Father filed
a petition for contempt, alleging that Mother had interfered with the parenting plan by
obstructing his supervised visits.5 The family court held a hearing on Father’s petition for
contempt on June 27, 2023. There, Father argued that Mother’s actions limited his court-
ordered visitation and that while he understood that it was in the children’s discretion, he
5 Father’s petition acknowledged that the court’s final order from the February 10,
2023, hearing had not been entered yet and based his contempt motion on the court’s oral
rulings.

5
“would like at least some explanation if they’re not going to have the visits.” The family
court explained that due to Father’s lifelong abuse and the order that visitation was in the
children’s discretion that “none of [the children] have to go . . . if they don’t want to go[.]”
The family court, however, noted that it would be reasonable for Mother to notify the third-
party provider if all three children did not want to visit with Father. By order entered
October 16, 2023, the family court found that Mother was not in contempt, reasoning that
some visits had occurred and that the children had the discretion to decline visits with
Father. The family court reaffirmed its May 10, 2023, order and instructed Mother to notify
the provider if all three children declined visitation.
On November 8, 2024, Father filed a motion to modify the May 10, 2023, final
order, alleging that Mother’s interference with his visitation, the third party provider
cancelling his visits, the family court’s failure to hear testimony at the February 10, 2023,
hearing from Father’s counselor regarding his compliance with therapy, and Dr. Baker’s
April 15, 2023, report of Father’s psychological and parental fitness examination were
substantial changes in circumstances that warranted a modification of the May 10, 2023,
parenting plan.6 Father alleged that he voluntarily completed a psychological evaluation on
April 6, 2023, by Dr. Baker, who opined that Father “has the parental capacity to care,
protect and change in order to provide adequately for his children[.]”
On February 6, 2025, the family court held a hearing on Father’s motion to modify
the May 10, 2023, parenting plan order. A review of the transcript indicates that after
discussing the length and contents of Father’s motion, counsel for Father argued that Dr.
Baker’s April 15, 2023, report justified a change in circumstances since the family court
did not consider the report at the February 10, 2023, hearing. Counsel also argued that
Father had been complying with therapy, that Mother had interfered with his visitation, and
that the third-party provider terminated his visits because the children no longer wanted to
visit with Father. Counsel for Mother argued that the GAL’s report, which was filed in
February of 2023 was not considered by Dr. Baker, and that the family court had heard all
of Father’s same arguments on February 10, 2023. Counsel for Mother asserted that
Father’s arguments did not support a change in circumstances since the entry of the May
10, 2023, final order. Specifically, counsel for Mother contended that Father “made the
same arguments about his completion of therapy and such . . . . That was your position in
February of 2023. It didn’t change . . . [y]ou’re just coming in two years later and trying it
again, same thing.”
The family court informed the parties that it would like to speak with the children
since Father was arguing that the substantial change in circumstances was that Father had
been rehabilitated since the May 10, 2023, order. The court stated that after it interviewed
6 The third-party provider supervising his visitation discharged his case because the
children stated they no longer wanted to continue visits with Father.

6
the children regarding Father’s change, it would like to schedule a supervised visit with
Father and reinterview the children. Specifically, the family court said it would ask them,
“Did your dad seem different? Because you’re claiming you’re different now, right?”
Father testified that, “I am no different than I was last summer except for I’m incrementally
improved. . . [Mother’s] whole argument is what happened four and a half years ago. Hold
on. I take full responsibility for that.” There were no objections regarding the family court’s
plan to interview the children regarding Father’s change.
On February 7, 2025, the family court interviewed the children and subsequently
held a brief hearing with counsel for the parties. Based on the court’s discussion with the
children, the court informed counsel that it would not require the children to visit with
Father. On February 12, 2025, Father filed a notice of intent to continue the case requesting
that the family court schedule another hearing on his motion to modify.7
By order entered February 21, 2025, the family court denied Father’s motion to
modify the May 10, 2023, final order. The family court recited four paragraphs of its
findings and conclusions from its May 10, 2023, final order that discussed the GAL’s report
and recommendations, the limiting factors of domestic violence and child abuse, Father’s
continued participation in therapy and counseling, the children’s best interest, the
systematic lifelong abuse that Father inflicted starting when the children were infants, the
children’s discretion to visit with Father, and limiting Father’s visitation to prevent the
children from harm. The family court’s order also discussed Father’s May 11, 2023,
petition for contempt that Mother was allegedly interfering with his visitation, the same
argument he was using to support his petition to modify. The family court again noted that
Father’s visitation was in the children’s sole discretion.
Additionally, the family court found that it was evident from Father’s February 12,
2025, filing that he continued to lack accountability for the abuse he committed on his
children as well as his continual blame of Mother for his lack of visitation. The court noted
that the children have been given discretion concerning visitation with Father for the past
three years and frequently chose not to visit. The order explained that after interviewing
the children to determine whether a substantial change in circumstances had occurred in
Father, the court would not “make the children visit with their [F]ather” and that visitation
would continue as previously ordered in the May 10, 2023, final order. In other words, the
family court’s denial of Father’s motion left the May 10, 2023, final order in full force and
effect. Father now appeals the family court’s February 21, 2025, order.
7 In support of his motion, Father cited to West Virginia Code § 49-4-606 (2015),
which governs the modification of dispositional orders in abuse and neglect proceedings
before the circuit court. However, this statutory provision is not applicable to family court
proceedings, which are governed by Chapter 48 of the Code.

7
When reviewing the order of a family court, we apply the following standard of
review:
When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review
the findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.
Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).
The Supreme Court of Appeals of West Virginia (“SCAWV”) has said “[q]uestions
relating to . . . custody of the children are within the sound discretion of the [family] court
and its action with respect to such matters will not be disturbed on appeal unless it clearly
appears that such discretion has been abused.” Syl. Pt., in part, Nichols v. Nichols, 160 W.
Va. 514, 236 S.E.2d 36 (1977). Further, in “custody matters, we have traditionally held
paramount the best interests of the child.” Syl. Pt. 5, in part, Carter v. Carter, 196 W. Va.
239, 470 S.E.2d 193 (1996). Mindful of these principles, we consider Father’s assignments
of error.
We must note at the outset that Father’s brief fails to comply with Rule 10(c)(7) of
the West Virginia Rules of Appellate Procedure because his arguments fail to “contain
appropriate and specific citations to the record on appeal, including citations that pinpoint
when and how the issues in the assignments of error were presented to the lower tribunal.”
As such, this Court has discretion to “disregard errors that are not adequately supported by
specific references to the record on appeal.” W. Va. R. App. 10(c)(7).
On appeal, Father asserts five assignments of error. Because some assignments of
error are similar, we will consolidate them and address them out of order for efficiency and
clarity of our review. See generally Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va.
396, 402, 729 S.E.2d 231, 237 (2012) (stating that “the assignments of error will be
consolidated and discussed accordingly”).
For his third assignment of error, Father argues that the family court failed to apply
the controlling statutory framework under West Virginia Code § 48-9-401(a) (2022) by
disregarding uncontroverted evidence of a substantial change in circumstances alleged in
his motion to modify. In support of his argument, Father contends that the family court
ignored Dr. Baker’s April 15, 2023, psychological evaluation that reflected a positive
prognosis for reunification, his full compliance with all therapeutic recommendations, and
his continued participation in supervised visitation until the third-party provider
unilaterally discharged his visits because the children declined to attend, which all exhibit

8
there has been a substantial change in circumstances since the May 10, 2023, order. We
disagree.
Modifications of child custody based upon a substantial change in circumstances
are governed by West Virginia Code § 48-9-401, which states that
Except as provided in § 48-9-402 or § 48-9-403 of this code, a court shall
modify a parenting plan order if it finds, on the basis of facts that were not
known or have arisen since the entry of the prior order and were not
anticipated in the prior order, that a substantial change has occurred in
the circumstances of the child or of one or both parents and a modification is
necessary to serve the best interests of the child.
(Emphasis added).
The burden is on the party seeking the modification to establish the required
substantial change of circumstances. See Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496
(1987) (holding that the burden of proof is on the parent seeking to modify the parenting
plan). Importantly, the substantial change in circumstances must be based on “facts that
were not known or have arisen since the entry of the prior order and were not anticipated
in the prior order.” W. Va. Code § 48-9-401(a). Thus, a petition for modification of
custodial allocation relying on a substantial change in circumstances must first be based on
facts that were either not known when the previous order was entered or facts that arose
after the order was entered and was not provided for in the order.
Here, a review of Father’s motion to modify illustrates that his motion was based
on “[Mother’s] discretion over visitation”, her “pattern of interference” with his visitation,
and how the children’s “discretion has become a tool for interference” by Mother.8 Other
facts Father relies on to justify a substantial change in circumstances are as follows: 1)
Father’s voluntary psychological evaluation; 2) the positive report of Father’s counselor,
which Father maintains would have been elicited through the counselor’s testimony had
the February 10, 2023, hearing not concluded without the opportunity to call the counselor
as a witness; 3) Father’s continued participation in therapy; 4) Mother’s repeated non-
compliance with the court’s May 10, 2023, order by willfully obstructing Father’s court-
ordered supervised visitation with the children; and 5) the third-party provider discharging
Father’s supervised visits due to the children’s refusal to attend.
Pursuant to the plain language of West Virginia Code § 48-9-401, the facts Father
relies on to illustrate a substantial change in circumstances must have either not been
8 Upon review, approximately twenty-two pages of Father’s thirty-two-page motion
to modify focuses on blaming Mother for his lack of visitation.

9
known at the time of the order’s entry or arose after its entry and were not anticipated in
the order. Based on the record, it is clear that the circumstances alleged in the Father’s
modification were known and anticipated by the family court. The family court verbally
informed the parties from the bench during the February 10, 2023, hearing that “[i]f any of
[the children] don’t want to participate they don’t have to. . . . any contact with this man is
a potential detriment and danger to these children.” Thus, as early as February 10, 2023,
Father was aware of the court’s directive that his visitation was subject to the desires and
discretion of his children. Further, the May 10, 2023, order gave the children complete
discretion over whether they wanted to participate in supervised visits with Father.
Father’s reliance on Dr. Baker’s April 15, 2023, report is equally misplaced. Again,
Dr. Baker’s evaluation and results thereof were known to Father before the May 10, 2023,
order was entered. Dr. Baker’s report even noted that Father stated that he was appealing
the family court’s decision, something which Father neglected to do. Thus, Father knew
the results of Dr. Baker’s report at the time the May 10, 2023, order was entered.
Father asserts that the fact that he has participated in counseling for more than a year
provides a basis for his requested modification. Interestingly, in support of his motion to
modify, Father argued that the family court did not get to hear his counselor’s favorable
testimony at the February 10, 2023, hearing because the hearing concluded and deprived
Father of the opportunity to call the counselor as a witness. Specifically, Father indicates
that his counselor “was prepared to testify regarding [Father’s] progress, affirming that he
has shown significant behavioral improvement, emotional regulation, and impulse control
throughout therapy. However, a review of the February 10, 2023, hearing indicates that
Father’s counsel did not attempt or request to call Father’s counselor as a witness after the
GAL’s testimony. Further, the record establishes that Father had been participating in
counseling with the same counselor for more than two years at the time of the February 10,
2023, hearing. Therefore, Father was aware of his counselor’s opinion and position
regarding Father’s treatment at the time the May 10, 2023, order was entered.
Here, every fact that Father relies on to support a substantial change in
circumstances was either known to him at the February 10, 2023, final hearing or when the
May 10, 2023, order was entered. While the family court may not have considered Dr.
Baker’s report or Father’s counselor’s testimony in its initial decision, this was of no fault
of the court. Father failed to call his counselor as a witness at the February 10, 2023,
hearing, did not file an objection to the GAL’s proposed order, failed to utilize West
Virginia Code § 51-2A-10 (2001) to ask the family court to reconsider its order based on
Dr. Baker’s report, and failed to appeal the May 10, 2023, order.9 The general principles
9 West Virginia Code § 51-2A-10 provides that
Any party may file a motion for reconsideration of a temporary or final order
of the family court for the following reasons: (1) Mistake, inadvertence,

10
of judicial economy prohibit granting relief to the party who, after creating the problem,
now seeks relief. See Young v. Young, 194 W. Va. 405, 409, 460 S.E.2d 651, 655
(1995). The party who caused the error should not be advantaged on appeal by that
same error. Id.; see also Comer v. Ritter Lumber Co., 59 W. Va. 688, 689, 53 S.E. 906, 907
(1906) (finding that one of the parties “has invited the error and must accept its results.”).
As such, we cannot conclude that the family court abused its discretion by not
finding that Father had proven a substantial change in circumstances due to his reliance on
facts that occurred on or before the May 10, 2023, order’s entry. See Amanda A. v. Kevin
T., 232 W. Va. 237, 245, 751 S.E.2d 757, 765 (2013) (“[A] family court’s decision is
entitled to significant deference. Absent an abuse of discretion, this Court must refrain from
substituting its judgment for that of the family court, even if this Court might have decided
a case differently.”). However, we note that this decision does not preclude Father from
filing a petition for modification in the future, particularly if his petition alleges a
substantial change of circumstances based on facts that occurred after the May 10, 2023,
order and were not anticipated in the order.10
Next, for his first and fourth assignments of error, Father argues that the family court
erred by relying solely on the GAL’s report and the in camera interviews of the children
without conducting an evidentiary hearing on his motion to modify. We disagree.
West Virginia Code § 48-9-303 (2001) states that “[t]he court, in its discretion, may
interview the child in chambers or direct another person to interview the child, in order to
obtain information relating to the issues of the case.” A review of the hearing illustrates
that the family court informed the parties that it would interview the children asking about
Father’s behavior since he testified that he had incrementally changed since the May 10,
2023, order was entered. No objections were made when the court informed the parties of
surprise, excusable neglect or unavoidable cause; (2) newly discovered
evidence which by due diligence could not have been available at the time
the matter was submitted to the court for decision; (3) fraud,
misrepresentation or other misconduct of an adverse party; (4) clerical or
other technical deficiencies contained in the order; or (5) any other reason
justifying relief from the operation of the order.
10 We recognize that the passage of time can be an important consideration when
dealing with a parent’s rehabilitation. See also In Tevya W. v. Elias Trad V., 227 W. Va.
618, 626, 712 S.E.2d 786, 794 (2011). However, to avoid any misunderstanding, we wish
to clarify that Father’s motion to modify based on substantial changes in circumstances
either reasserted the same grounds as those in his initial motion for increased visitation or
relied on facts that were known to Father prior to May 10, 2023, order, and as such, did not
comply with the prerequisite showing set forth by West Virginia Code § 48-9-401.

11
this procedure. Rather, Father testified to his opinion of which children would speak to the
court. “Generally[,] the failure to object constitutes a waiver of the right to raise the
matter on appeal.” State v. Asbury, 187 W. Va. 87, 91, 415 S.E.2d 891, 895 (1992). By
failing to object to the children’s interviews during the family court proceeding, Father
waived his right to raise this issue, and we decline to address it on appeal.
In support of Father’s argument regarding the GAL and her report, he avers that he
was neither provided a copy of the GAL’s report nor given the opportunity to cross-
examine the GAL prior to the family court’s ruling. This argument is unsupported by the
appendix record in this matter. The GAL submitted her written report to the family court
at the beginning of the February 10, 2023, final hearing. The family court provided copies
of the GAL report to counsel for the parties but directed counsel not to distribute the report
directly to the parties because of the sensitive information that the children disclosed about
Father. The GAL testified to her investigation, the contents of her report, and was subject
to cross-examination. A review of that hearing shows that counsel for Father neither
requested to cross-examine the GAL nor objected to her testimony. As the May 10, 2023,
order from that hearing is no longer appealable, and because Father failed to pinpoint when
and how this issue was presented to the family court in his brief, we decline to address it
on appeal. See W. Va. R. App. P. 10(c)(7).
Moving on to his next point, Father maintains that the family court committed
reversible error by denying his motion to modify without conducting an evidentiary hearing
in violation of his due process rights. He contends that the denial of an evidentiary hearing
resulted in “what is functionally a termination of visitation, which constitutes significant
infringement on [his] parental rights.” We are unpersuaded by this argument.
Father does not aver that he did not have notice or an opportunity to be heard at the
final hearing. Instead, he argues that the family court issued its decision without any final
hearing whatsoever, denying him the opportunity to call witnesses to testify in support of
his motion. The appendix record does not align with this contention.
On December 23, 2024, the family court entered an order scheduling a one-hour
final hearing for February 6, 2025, on Father’s motion to modify. While Father asserts that
he was denied the opportunity to call his counselor, the visitation supervisor, or any fact
witnesses to testify at a final hearing, a review of the February 6, 2025, transcript indicates
otherwise. Specifically, while discussing the length and contents of Father’s motion,
counsel for Father stated, “[this] is why I wanted to send [sic] it as a pretrial. I mean there’s
a lot in this and a lot of people I’m going to have to call as witnesses[.]” Additionally, a
review of the docket sheet indicates that Father had not subpoenaed any witnesses to testify
at the hearing. Thus, while the February 6, 2025, hearing was scheduled as a final hearing,
Father was not prepared to call any witnesses. The SCAWV has long held that “[t]he most
fundamental due process protections are notice and an opportunity to be heard.” State ex

12
rel. Bd. of Educ. of Cty. of Putnam v. Beane, 224 W. Va. 31, 35, 680 S.E.2d 46, 50 (2009).
Father was given adequate notice of the final hearing, was permitted to testify in support
of his motion, and his counsel argued vehemently against counsel for Mother’s arguments
that he was attempting to make the same arguments from the February 10, 2023, hearing.
Thus, we are unable to determine that the family court violated Father’s due process rights.
Additionally, as previously discussed above, Father asserted no facts to support his
contention that a substantial change in circumstances had occurred since the May 10, 2023,
order in support of his motion to modify. Rule 21(a) of the Rules of Practice and Procedure
for Family Courts gives family courts the discretion to grant a hearing on a petition for
modification.11 Given that the family court had already held a full hearing on Father’s
initial motion for increased visitation and had considered substantially indistinguishable
arguments, there was no need for a subsequent evidentiary hearing. See Brian H. v. Amanda
H., No. 13-0238, 2014 WL 620499, at *2 (W. Va. Feb. 18, 2014) (memorandum decision)
(upholding the family court’s denial of a father’s motion to modify custody without an
evidentiary hearing because the grounds stated in his most recent motion were substantially
similar and had already been addressed and adjudicated at a prior hearing).
Next, for his second assignment of error, Father argues that the family court abused
its discretion by delegating complete authority to the minor children to determine whether
Father’s visitation would occur. We disagree.
When entering a temporary or permanent parenting plan order, West Virginia Code
§ 48-9-209(a) contains limiting factors for a court to consider, which provides, in pertinent
part, that “the court shall consider whether a parent . . . [h]as abused, neglected, or
abandoned a child . . . or . . . [h]as committed domestic violence[.]” Additionally,
[i]f a parent . . . is found to have engaged in any activity specified by
subsection (a) of this section, the court shall impose limits that are reasonably
calculated to protect the child or child’s parent from harm. The limitations
that the court shall consider include . . . [t]he allocation of exclusive custodial
responsibility to one of the parents.
11 Rule 21(a) of the Rules of Practice and Procedure for Family Court states:
A party may file a petition for contempt/order to show cause or modification
of any order of the court. If grounds pled warrant a contempt/show cause and
modification hearing, the hearing shall take place within 45 days of the filing
of a petition for contempt/order to show cause or modification. If grounds
pled not warrant a hearing then the court shall enter a dismissal order within
20 days.

13
W. Va. Code § 48-9-209(b)(1)(C) (emphasis added).
In James M. v. Jennifer M., No. 22-ICA-165, 2023 WL 4029216 (W. Va. Ct. App.
June 15, 2023) (memorandum decision), this Court affirmed a family court order that found
it was not in the best interest of the children to be forced to have contact with their father
and placed his visitation in the children’s discretion. On appeal, the SCAWV affirmed this
Court’s ruling. See James M. v. Jennifer M., No. 23-450, 2025 WL 1513158, at *3 (W. Va.
May 28, 2025) (memorandum decision). In James M., the family court based its ruling on
its determination that the father had engaged in the limiting factor of domestic violence.
Id. at *2. To protect the children from harm, the family court allocated exclusive custodial
responsibility to the mother and gave the children discretion concerning the father’s
visitation. Id. at *3. The SCAWV agreed that the “family court acted within its authority
to allocate sole custody of the children to [the mother] and to define the nature and scope
of the noncustodial parent’s visitation pursuant to West Virginia Code § 48-9-209(a)(3)
and 48-9-209(b)(1)(c) (2021).” Id.
Likewise, in the case at bar, the family court found in its May 10, 2023, order that
Father inflicted upon the children the limiting factors of child abuse and domestic violence,
which required the court to then impose limits to protect the children from Father. The
court specifically found that all five children “reported a lifelong history of physical and
emotional abuse” by Father. The February 21, 2025, order on appeal reflects the family
court’s earlier findings that “[f]or the past three years, the children have been given
discretion concerning visitation with their [F]ather and often times chose not to visit . . .
the [c]ourt believes it is in the best interest of the children to continue to exercise their
discretion concerning visitations with their [F]ather.”
The February 21, 2025, order on appeal did not modify the existing May 10, 2023,
order by giving the children sole discretion over when they were to visit with Father.
Rather, by denying Father’s petition to modify custody, the May 10, 2023, order remained
undisturbed and continued in full force and effect. In this appeal, our review is confined to
the family court’s denial of Father’s motion to modify pursuant to West Virginia Code §
48-9-401. Thus, because Father’s argument centers on a ruling contained in the May 10,
2023, order, it is time barred. Accordingly, we find no error or abuse of discretion by the
family court on this issue.12
12 In other words, Father’s challenge to custodial allocation is nothing other than a
challenge to the original ruling entered by the family court on May 10, 2023. Notably, the
SCAWV has continuously recognized that a petition to modify child support cannot be
used to relitigate the findings made in a prior support order absent proof of a substantial
change in circumstances. See Allen v. Allen, 226 W. Va. 384, 389, 701 S.E.2d 106, 111
(2009) (citing Ray v. Ray, 216 W. Va. 11, 602 S.E.2d 454 (2004), overruled in part on
other grounds by Allen, 226 W. Va. at 386, 701 S.E.2d at 108, syl. pt. 4). We find that this

14
Lastly, Father argues that the family court’s final order denying his motion to
modify fails to include adequate findings of fact or conclusions of law, rendering appellate
review impossible and constituting reversible error. We disagree.
The SCAWV has said that to properly review an order of a family court:
“[t]he order must be sufficient to indicate the factual and legal basis for the
[family court]’s ultimate conclusion so as to facilitate a meaningful review
of the issues presented.” Province v. Province, 196 W. Va. 473, 483, 473
S.E.2d 894, 904 (1996); see also Nestor v. Bruce Hardwood Flooring, L.P.,
206 W. Va. 453, 456, 525 S.E.2d 334, 337 (1999) (“[O]ur task as an appellate
court is to determine whether the circuit court's reasons for its order are
supported by the record.”).
Collisi v. Collisi, 231 W. Va. 359, 363-64, 745 S.E.2d 250, 254-55 (2013).
Here, in consideration of Father’s motion to modify, the family court stated that its
ruling was based upon its review and reliance upon the domestic violence and child abuse
committed by Father, his SAAR evaluation, the February 21, 2023, final divorce order, the
May 10, 2023, final order, the GAL’s report, Father’s contempt proceeding, Father’s
motion to modify, the children’s interviews, and Father’s notice of intent to continue the
case filed on February 12, 2025. Thus, the foundation of the court’s ruling was based upon
a thorough consideration of the entire record.
The order on appeal recited language from the May 10, 2023, order. The family
court stated that the prior order denied Father’s motion for increased visitation after finding
that pursuant to West Virginia Code § 48-9-209, the limiting factors of child abuse and
domestic violence were applicable. As such, the court was required to limit Father’s
parenting time to prevent the children from harm. The family court stated that the prior
order found that the children “SHALL NOT be forced to have visitation” with Father and
that it emphasized that “the children shall have discretion” regarding whether or not they
wished to visit Father. The court went on to recite the prior order’s finding that the five
children had reported a lifelong history of physical and emotional abuse by Father starting
from near birth.
recognition applies with equal force to custodial allocation when a modification is sought
based on a substantial change in circumstances. Therefore, the process of modifying
custody under West Virginia Code § 48-9-401 cannot be used in lieu of an appeal from the
previous order without proof of a substantial change in circumstances that complies with
the code. See also id.

15
The family court found that pursuant to the February 6, 2025, hearing on Father’s
motion to modify, the court interviewed the children to determine whether a substantial
change in circumstances had occurred. After interviewing the children, the court
determined that it would not “make the children visit with their [F]ather” and “[F]ather’s
lack of accountability is evident by his repeated pleading attempts for increased visitations
as well as his continual blame of [Mother] for his lack of visitation with the children.” The
family court concluded its order by stating that
For the past three years, the children have been given discretion concerning
visitation with their [F]ather and often times chose not to visit. At this time,
the [c]ourt believes it is in the best interest of the children to continue to
exercise their discretion concerning visitations with their [F]ather.
Accordingly, [Father’s] Motion to Modify Final Order is hereby DENIED.
While we agree with Father’s argument that the family court’s order failed to
articulate with specificity whether a substantial change in circumstances had occurred,
under West Virginia Code § 48-9-401, that alone does not justify a modification of custody.
It must also be shown that a modification would materially promote the welfare of the
children. See W. Va. Code § 48-9-401. The SCAWV has continuously emphasized that a
modification of a parenting plan requires both, that “a substantial change has occurred in
the circumstances of the child or of one or both parents” and that the modification is
“necessary to serve the best interests of the child.” See Czaja v. Czaja, 208 W. Va. 62, 537
S.E.2d 908 (2000). Hence, if a family court properly analyzes and concludes that a
modification would not be in a child’s best interest, it would be irrelevant for the court to
analyze whether a substantial change occurred since both are required to warrant a
modification. In Andrea H. v. Jason R.C., 231 W. Va. 313, 319, 745 S.E.2d 204, 210
(2013), the SCAWV opined that “[b]ecause . . . the change in custody did not serve the
best interests of the children, we need not examine whether the [facts alleged] constituted
a change in circumstances.”13
13 This Court, in a previous decision, reviewed a family court order that we found
was “barely sufficient to facilitate a meaningful review” and held that
the order is sufficient because in these circumstances the factual and legal
basis for the family court’s ultimate conclusion is clear: it is not in the best
interest of the children for the parties to have an equal parenting plan because
[the father] does not peacefully co-parent with [the mother]. Such a
conclusion by the family court is supported by the record.
Ashton B. v. Megan E., No. 23-ICA-96, 2024 WL 794612, at *3 (W. Va. Ct. App. Feb. 27,
2024) (memorandum decision).

16
Here, after the family court reviewed the entire history of the case, discussed and
recited findings from prior orders, and found that the children had been given discretion
for the past three years, it then determined that Father continued to lack accountability for
his life-long abuse of the children, and ultimately concluded that maintaining the visitation
schedule in the prior May 10, 2023, order was in the best interests of the children.14
Accordingly, for the foregoing reasons, we cannot conclude that the family court
abused its discretion or clearly erred in its ruling and thus, affirm the family court’s
February 21, 2025, order.
Accordingly, we affirm.
Affirmed.
ISSUED: September 30, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White
14 In matters such as the one before us, “the welfare of the child is the polar star by
which the discretion of the court will be guided.” Syl. Pt. 1, in part, State ex rel. Cash v.
Lively, 155 W. Va. 801, 187 S.E.2d 601 (1972) (citation omitted). Of utmost importance
in a custody proceeding, it is necessary that a court must consider the needs of the innocent
minor child. See Syl. Pt. 1, in part, Allen v. Allen, 173 W. Va. 740, 320 S.E.2d 112 (1984)
(“In a contest involving the custody of infant children, their welfare is the guiding principle
by which the discretion of the trial court will be controlled[.]”) “[T]he paramount and
controlling factor must be the child’s welfare: ‘all parental rights in child custody matters
. . . are subordinate to the interests of the innocent child.’” Brittany S. v. Amos F., 232 W.
Va. 692, 699, 753 S.E.2d 745, 752 (2012) (quoting David M. v. Margaret M., 182 W. Va.
57, 60, 385 S.E.2d 912, 916 (1989)). Considering the record, we acknowledge that the
family court’s order, although minimal, visibly prioritized the children’s welfare. However,
we remind family courts that it is essential to articulate their findings and explain their
reasoning for making such findings. See Dusti A. v. Jonathan A., No. 23-ICA-125, 2024
WL 794624, at *5 (W. Va. Ct. App. Feb. 27, 2024) (memorandum decision).