Fabiano D. v. Dylan Y.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
October 28, 2024
FABIANO D.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 24-ICA-77 (Fam. Ct. Greenbrier Cnty. Case No. FC-13-2019-D-143)

DYLAN Y.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Fabiano D.1 (“Father”) appeals the Family Court of Greenbrier County’s
January 31, 2024, final order that awarded Respondent Dylan Y. (“Mother”) primary
custody of the parties’ seven-year-old child. Mother filed a response in support of the
family court’s order.2 Father did not file a reply. The issues on appeal are whether the
family court erroneously failed to apply the rebuttable presumption of equal 50-50
custodial allocation in its determination and whether it erroneously ignored the limiting
factors set forth in West Virginia Code § 48-9-209 (2024).

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 that there is error in the family court’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure for resolution in a memorandum decision.
For the reasons set forth below, the family court’s decision is vacated, and this case is
remanded for further proceedings consistent with this decision.

The parties never married and are the parents of one child, who was born in 2017
while the parties were living together in North Carolina. Shortly after the child’s birth, the
parties moved to Colorado. Around August 2018, Father relocated to Norfolk, Virginia, for

1
To protect the confidentiality of the juvenile 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).
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Father is represented by Brandon L. Gray, Esq., and Matthew A. Bradford, Esq.
Mother is represented by Emily S. Isaacs, Esq., and Leah M. Smith, Esq. The child’s
guardian ad litem, Amber Hinkle, Esq., did not participate in this appeal.

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work, and in September 2018, Mother and child moved to Lewisburg, West Virginia, to be
closer to Mother’s family.

On July 18, 2019, Mother filed a Petition for Support and Allocation of Custodial
Responsibility in the Family Court of Greenbrier County asking the court to adopt her
proposed parenting plan and award her primary custody of the child. Mother alleged that
Father failed to regularly exercise parenting time over the previous year and that Father
used FaceTime communication with the child as an opportunity to degrade Mother. She
proposed that Father’s parenting time be supervised by her stepfather. At some point after
the filing of this petition, the family court appointed a guardian ad litem (“GAL”) for the
child.

At the end of 2019, Father was exercising unsupervised parenting time with the
child at his home in Virginia. The child returned home from the visit and indicated to
Mother that Father had been touching him in a sexually inappropriate manner. In response,
on January 2, 2020, Mother made a referral to West Virginia Child Protective Services
(“CPS”), who conducted a brief investigation that failed to substantiate the allegations.

On February 5, 2020, Father filed an answer to Mother’s Petition for Support and
Allocation of Custodial Responsibility. In his answer, he denied the allegations of abuse
and countered that Mother had a history of drug abuse, mental illness, and had withheld
the child from him. Father requested primary custody of the child.

The GAL conducted an interview with Father on April 17, 2020. Father stated that
he lived in Virginia, about four hours away from the child, but hoped to move closer.
Shortly thereafter, Father moved to Kitty Hawk, North Carolina, which was approximately
seven hours away from where the child resided in West Virginia. On July 1, 2020, the GAL
recommended increasing Father’s parenting time but further recommended that such
visitation occur in West Virginia. Over the next several months, those visits occurred at a
hotel Father booked in the Lewisburg area.

In early July of 2021, Mother was contacted by the Dare County, North Carolina
Department of Social Services (“DSS”) informing her that an anonymous report had been
made to them and they requested a forensic interview of the child. That interview also
disclosed additional inappropriate touching of the child by Father. After consulting with
the GAL, Mother’s counsel filed a Motion for Ex Parte Order for Temporary Custody on
July 13, 2021. Following a comprehensive investigation and examination of the forensic
interview DVD, the GAL issued a report on September 30, 2021. The report indicated that
while the child’s allegations were significant, some of them were fantastical and
unrealistic.

Due to the CPS and DSS investigations, the family court made a written referral to
the circuit court based upon its reasonable suspicion that the child had been abused or

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neglected. See W. Va. R. Prac. & Proc. For Fam. Ct. 48. Thereafter, on October 14, 2022,
the case was removed to the Circuit Court of Greenbrier County. The case was dismissed
by the circuit court on March 20, 2023, based upon its finding that there was not clear and
convincing evidence of sexual contact between Father and child. As a result of the
dismissal, jurisdiction was returned to the family court.

On August 9, 2023, the family court entered a temporary parenting order. This
temporary order adopted the GAL’s recommendation and allocated parenting time as
follows: Beginning in August, Father would exercise parenting time with the child every
second and third weekend in West Virginia from 12:00 p.m. to 4:00 p.m. on Saturday and
Sunday, but these visits would not be overnight. Beginning in October, visitation would be
overnight in West Virginia from 12:00 p.m. Saturday to 4:00 p.m. Sunday. Any party who
did not have parenting time with the child was allowed telephone contact with the child
every night between 7:00 p.m. and 8:00 p.m.

The GAL sent a final recommendation letter to the family court on January 17, 2024.
The GAL recommended the current visitation remain in effect for the rest of the school
year. The GAL recommended that the parties alternate spring and Thanksgiving breaks
each year, and split Christmas break. Regarding summer visitation, the GAL recommended
that the parties alternate custody during the summer weeks—Mother having the child for
two consecutive weeks in a row and Father having one week—and when school resumed,
that Father should have one extended weekend with the child in North Carolina and two
other weekends in West Virginia each month.

At the final hearing on January 25, 2024, Father contended that Mother had failed
to rebut the presumption of 50-50 custody and asserted his entitlement to primary custody
because of the CPS referrals he deemed to be fraudulent. Father’s counsel proffered the
following argument for the assertion that the referrals were fraudulent:

[M]y client had asked for primary custody due to the unsubstantiated
referrals that were made by [M]other. . . And, of course, under the code[,]
that would be grounds for a change in custody. . . He still is requesting
primary [custody] as a result of those fraudulent reports of child sex abuse
that were never substantiated.

The GAL, however, opined that West Virginia Code § 48-9-102a applies only to
initial cases that are filed after the effective date of the statute, thus the presumption of 50-
50 custody did not apply. The GAL expressed the view that even if the 50-50 presumption
were applicable, the child’s best interests should take precedence, and considering the
significant distance between the parties and the fact that Mother had traditionally been the
primary caregiver for the child, a 50-50 custody arrangement would not serve the child’s
best interests.

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The family court issued its final order on January 31, 2024. Acknowledging the
recommendations provided by the GAL, the court endorsed the GAL’s recommendations,
deeming them to serve the child’s best interest. Considering the geographical distance
between the parties as a significant factor, the court’s order opted for a parenting plan
mirroring the one described in detail in the GAL’s letter. It is from this order that Father
now appeals.

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).

On appeal, Father argues that the family court erroneously failed to apply West
Virginia Code § 48-9-102a (2022) and failed to analyze the factors presented in West
Virginia Code § 48-9-209 when determining custodial allocation. We agree.

This Court has previously stated that,

West Virginia Code § 48-9-603(a) (2022) controls the effectiveness of the
50-50 presumption in this matter, providing that “[the presumption] shall
become applicable upon the effective date of [the] amendment.”
Accordingly, any best interest analysis conducted after June 10, 2022, the
effective date of West Virginia Code § 48-9-102a, is required to consider the
50-50 presumption. As to the burden of proof, the presumption points toward
equal parenting time; therefore, any party seeking to deviate from a 50-50
allocation must overcome the presumption.

Jesse C. v. Veronica C., No. 23-ICA-169, 2024 WL 1590468, at *3 (W. Va. Ct. App. Feb.
8, 2024) (memorandum decision). Thus, the family court was required to consider equal
50-50 custody in its determination.

West Virginia Code § 48-9-102a provides that it is rebuttably presumed “that equal
(50-50) custodial allocation is in the best interest of the child.” Additionally, it is essential
that family courts adhere to West Virginia Code § 48-9-206(a) (2022) when hearing
custody matters. Regarding the statute, this Court has previously held:

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This statute presumes equal (50-50) parenting time for both parents unless
the parties agree otherwise. This presumption may be rebutted if the family
court finds by a preponderance of the evidence that the arrangement would
be harmful to the child, or a provision of West Virginia Code § 48-9-
209(f) (2022) requires a different custodial allocation. West Virginia Code §
48-9-206(d) requires that a determination of custodial allocation in a final
permanent parenting plan order be based on the presentation of evidence and
include specific findings of fact and conclusions of law supporting the
determination.

Jonathon F. v. Rebekah L., 247 W. Va. 562, 563, 883 S.E.2d 290, 291 (Ct. App. 2023).

Here, the family court’s order failed to properly apply the law governing the
allocation of custodial responsibility. Specifically, the court failed to explain how Mother
rebutted the presumption of equal 50-50 custody by a preponderance of the evidence and
failed to provide sufficient findings of fact and conclusions of law to support its deviation
from the presumption when it awarded her primary custody of the child. As we have
previously held, it is essential for family courts to articulate their findings and to 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).

Here, the family court failed to analyze whether Mother rebutted the presumption
of equal 50-50 custody as required by law and, thus, the family court’s order must be
vacated with the matter remanded to the family court for a proper legal analysis. Upon
remand, the family court may reach the same conclusion.3 However, any party seeking
more than 50-50 custodial allocation has the burden of rebutting the presumption and a
proper analysis must be performed by the court which is set forth through sufficient
findings of facts and conclusions of law in a corresponding written order.

For the foregoing reasons, we vacate the family court’s January 31, 2024, final order
and remand this case to the family court with directions to issue an order with specific
findings of fact and conclusions of law in accordance with West Virginia Code §§ 48-9-
206 and 48-9-209 by adhering to West Virginia Code § 48-9-102a. The final order is hereby
converted to a temporary custodial allocation order until the entry of a new final order
consistent with this decision is issued by the family court.

Vacated and Remanded.

3
On remand, child support should be modified if the family court reaches a different
conclusion regarding custodial allocation after performing the required analysis.

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ISSUED: October 28, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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