Fabiano D. v. Dylan Y.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
August 29, 2025
FABIANO D.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 25-ICA-11 (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
December 9, 2024, remand order that awarded Respondent Dylan Y. (“Mother”) primary
custody of the parties’ child after finding that 50-50 custodial allocation was impractical
due to the distance between the parties’ residences, the parties’ daily schedules, the child’s
daily schedule, and because it would disrupt the child’s education. Mother and the child’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 that there is error in the family court’s decision but no
substantial question of law. For the reasons set forth below, a memorandum decision
vacating, in part, affirming, in part, and remanding to the family court for further
proceedings is appropriate under Rule 21 of the Rules of Appellate Procedure.

This custody matter was previously appealed and remanded to the family court by
a memorandum decision entered on October 28, 2024, with directions to issue an order
with specific findings of fact and conclusions of law in accordance with West Virginia
Code §§ 48-9-206 (2022) and 48-9-209 (2024) by adhering to West Virginia Code § 48-9-

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).
2
Father is represented by Matthew A. Bradford, Esq. and Brandon L. Gray, Esq.,
Bradford & Gray, PLLC. Mother is represented by Leah M. Smith, Esq., Legal Aid of West
Virginia. The GAL for the child is Amber Hinkle, Esq., Taylor, Hinkle & Taylor, Inc.

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102a (2022).3 Thus, because that decision contains a detailed factual recitation, we will
only briefly discuss the background facts of the case in this decision.

The parties never married and are the parents of one child, born in 2017. Mother
resides in Lewisburg with the child and Father resides in Kitty Hawk, North Carolina. 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 during 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. Sometime thereafter,
the family court appointed a GAL for the child.

In late 2019, the child returned home after an unsupervised visit with Father and
disclosed to Mother that Father touched 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 and failed to substantiate the
allegations.

On February 5, 2020, Father filed an answer to Mother’s Petition for Support and
Allocation of Custodial Responsibility denying the allegations of abuse and alleged 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 interviewed Father on April 17, 2020. The GAL recommended increasing
Father’s parenting time but recommended that such visitation occur in West Virginia. Over
the next several months, Father’s visits with the child 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
filed against Father and requesting a forensic interview of the child. During that interview,
the child again disclosed that Father had touched him in a sexually inappropriate manner.
On July 13, 2021, after consulting with the GAL, Mother’s counsel filed a Motion for Ex
Parte Order for Temporary Custody. Following a comprehensive investigation and
examination of the forensic interview DVD, the GAL issued a report on September 30,

3
See Fabiano D. v. Dylan Y., No. 24-ICA-77, 2024 WL 4590062 (W. Va. Ct. App.
Oct. 28, 2024) (memorandum decision).

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2021. The report indicated that while the child’s allegations were significant, some of his
statements 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
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. Therefore, jurisdiction
was returned to the family court.

At the family court’s final hearing on January 25, 2024, Father contended that
Mother had failed to rebut the presumption of 50-50 custodial allocation 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 his 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 the presumption of 50-50 custody did not apply
because the case was initiated before the effective date of West Virginia Code § 48-9-102a.
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.

The family court issued its final order on January 31, 2024. The court endorsed the
GAL’s recommendations, deeming them to serve the child’s best interest. The court’s order
opted for a parenting plan mirroring the one described in detail in the GAL’s letter.

Father appealed the family court’s January 31, 2024, order to this Court and on
October 28, 2024, we issued a memorandum decision vacating and remanding to the family
court. This Court stated that although the family court may reach the same conclusion on
remand, a proper application of the law and analysis must be articulated to explain the
reasoning for its determination.

On December 9, 2024, the family court entered a remand order. The order stated
that, pursuant to West Virginia Code § 48-9-102a, there was a rebuttable presumption that
50-50 custody was in the child’s best interest. The court found that the parties lived

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approximately seven hours apart, both parties were employed full-time, and Mother has
exercised primary custody of the child since the parties’ separation. The court also found
that pursuant to West Virginia Code § 48-9-209(f)(5), 50-50 custodial allocation was
impractical due to the physical distance between the parents’ residences, each parent’s and
the child’s daily schedules, and because it would disrupt the child’s education. Father was
given parenting time for two weekends every month, one to be exercised in North Carolina
and one to be exercised in West Virginia. Thanksgiving breaks, spring breaks, and holidays
were divided equally between the parties. For summer breaks, the court awarded Father
one week of parenting time every two weeks on a rotating schedule, such that the child
would be with Mother during the final two weeks of summer break. It is from this
December 9, 2024, 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).

“Questions relating to . . . the maintenance and custody of the children are within
the sound discretion of the 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.,
Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). With these standards in mind,
we consider the issues raised on appeal.

Father raises two assignments of error on appeal. He first asserts that the family
court failed to properly apply West Virginia Code § 48-9-209(b) by ignoring the limiting
factors and failing to impose limits that are reasonably calculated to protect the child or
child’s parent from harm. In support of his argument, Father contends that Mother made
fraudulent reports of child abuse and, as such, the family court was mandated to limit her
parenting time. We disagree.

West Virginia Code § 48-9-209(a)-(b) states, in pertinent part, the following:

When entering an order approving or implementing a temporary or
permanent parenting plan order, including custodial allocation, the court
shall consider whether a parent . . . Has made one or more fraudulent reports

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of domestic violence or child abuse . . . If a parent or another person regularly
in the household of the 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.

Father asserts that the family court abused its discretion by failing to address the three
unsubstantiated CPS referrals in its written order, which it was statutorily mandated to
discuss therein. The Supreme Court of Appeals of West Virginia (“SCAWV”) has long
held that “[i]n general, an abuse of discretion occurs when a material factor deserving
significant weight is ignored, when an improper factor is relied upon, or when all proper
and no improper factors are assessed but the . . . court makes a serious mistake in weighing
them.” Shafer v. Kings Tire Serv., Inc., 215 W. Va. 169, 177, 597 S.E.2d 302, 310
(2004) (citation omitted).

Here, the record indicates that the reports of child abuse were “unsubstantiated” but
there is no finding by the family court that the reports were “fraudulent.” While Mother
admittedly made one report to CPS because the child disclosed disturbing events to her that
allegedly occurred during Father’s parenting time, Father cites to nothing in the record that
suggests Mother’s report was fraudulent, or that Mother was responsible for the remaining
two CPS referrals. In fact, Mother’s sole report appears reasonable given the circumstances
that gave rise to the matter.4 As the SCAWV has explained, the law protects child abuse
reports made “in good faith[.]” See Mark V.H. v. Delores J.M., No. 18-0230, 2019 WL
4257183, at *17 (W. Va. Sept. 9, 2019) (quoting W. Va. Code § 49-2-810 (2020)). Because
the family court made no finding that Mother’s CPS report was fraudulent, it was
unnecessary for the family court to limit her parenting time. See W. Va. Code § 48-9-209(b)
(stating that the court shall impose limits if a parent is found to have made one or more
fraudulent reports of child abuse) (emphasis added). Thus, we conclude that it is
unnecessary for a family court to make findings as to each limiting factor but only to those
specifically applicable and appropriate to the case. Accordingly, we find no error.

In his second assignment of error, Father argues that the family court erred by failing
to construct a parenting plan that maximized his parenting time pursuant to West Virginia
Code § 48-9-102a.5 Specifically, Father asserts that the court abused its discretion by not

4
Mother reported to the GAL that Father had flipped the child’s penis back and
forth since birth when changing the child’s diapers saying “ding-ding,” and refused to stop.
Thus, Mother’s report that the child revealed to her that Father was touching him
inappropriately during his parenting time, when Mother was not present, does not indicate
that she knowingly made a false report of child abuse.
5
West Virginia Code § 48-9-102a provides that,

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awarding him equal custody during the summer break since the child’s education would
not be disrupted during that time. We find merit in this argument.

The SCAWV has consistently found 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). “A custodial
allocation could potentially be upheld as equal (50-50) parenting time or as a justified
deviation if the family court had provided reasons for its determination with specific
findings of fact and conclusions of law[.]” Kane M. v. Miranda M., 250 W. Va. 701, 705,
908 S.E.2d 198, 202 (Ct. App. 2024).

Here, Father was given two weekends of parenting time every month during the
child’s school year and one week every two weeks during the summer. While the court
explained that a 50-50 parenting plan was impractical because the parties lived seven hours
apart, and because it would disrupt the child’s education as well as the parties’ and the
child’s daily schedules, Father argues that the family court failed to explain why 50-50
custody was not allocated during the summer.

We find no error with the family court’s determination that 50-50 parenting time
during the school year is not practical due to the distance between the parties. However,
we recognize Father’s legitimate concern that the distance between the parties and the
disruption of the child’s education and daily schedule is less of an issue during summer
break. The family court’s order does not identify an additional limiting factor applied
which would rebut the 50-50 presumption during summer break. While the family court is
afforded deference on these matters, we vacate and remand the parenting plan order as it
relates to the summer break to enable the family court to address whether it would be
infeasible to maximize Father’s parenting time during the summer break so that at a
minimum Father’s parenting time would at least be equal to Mother’s parenting time during
the summer break.

Accordingly, the December 9, 2024, order of the Family Court of Greenbrier
County, as it pertains to summer breaks in the parenting plan only, is hereby converted into

There shall be a presumption, rebuttable by a preponderance of the evidence,
that equal (50-50) custodial allocation is in the best interest of the child. If
the presumption is rebutted, the court shall, absent an agreement between the
parents as to all matters related to custodial allocation, construct a parenting
time schedule which maximizes the time each parent has with the child and
is consistent with ensuring the child's welfare.

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a temporary order, and the matter is remanded for the court to enter an order with sufficient
findings of fact and conclusions of law to support its ruling consistent with this decision.

Affirmed, in part, Vacated, in part, and Remanded.

ISSUED: August 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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