1

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

JASON C.,

Petitioner Below, Petitioner

v.) No. 23-ICA-577 (Fam. Ct. Ritchie Cnty. No. FC-43-2016-D-27) 

KAITLIN H.,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Jason C.1appeals the Family Court of Ritchie County’s November 20, 

2023, interim order denying his petition for modification and allocation of custodial 

responsibility regarding custody of the parties’ two minor children. Respondent Kaitlin H. 

filed a response in support of the family court’s decision.2 The guardian ad litem (“GAL”)3

filed a summary response. Jason C. filed a reply. The issue on appeal is whether the family 

court erred in granting Jason C. less than 50-50 custody of both children. 

This is an expedited interlocutory appeal filed in the Intermediate Court of Appeals 

pursuant to West Virginia Code § 48-9-203(f) (2022).4 We conclude that the family court’s 

interim order lacks sufficient findings of fact and conclusions of law. For the reasons stated 

below, this case is remanded to the family court with directions to enter a new order with 

sufficient findings of fact and conclusions of law to facilitate a meaningful appellate 

review. 

1 To protect the confidentiality of the juveniles involved in this case, we refer to the 

parties’ last names 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

Jason C. is represented by Jessica E. Myers, Esq. Kaitlin H. is represented by 

Katharine L. Davitian, Esq. 

3 The guardian ad litem is Leslie L. Maze, Esq. 

4 West Virginia Code § 48-9-203(f) provides, in part, that “[a] parent who has sought 

and been denied equal (50-50) physical custody . . . may file an interlocutory appeal with 

the West Virginia Intermediate Court of Appeals as to the temporary custodial allocation 

of the child or children, and the Intermediate Court of Appeals shall provide an expedited 

review of the order[.]”

FILED

August 14, 2024

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
2

Jason C. (“Father”) and Kaitlin H. (“Mother”) were never married, but share two 

children, born in 2013 and 2020. This case began in 2016 when Father filed a petition to 

recognize paternity and to establish a parenting plan for the oldest child. The final hearing 

on Father’s petition was held on June 16, 2016. At that hearing, the parties reached an 

agreement on all issues. On August 16, 2016, the family court entered a final order 

memorializing the terms of the parties’ agreement, which held the following: 

• Mother was designated as the primary residential parent. 

• The parties were granted shared decision-making. 

• The child had parenting time with Father every third weekend from 6:00 p.m.

on Friday until Sunday at 8:00 p.m., one additional weekend of Father’s 

choice each month at the same times; and every Tuesday from 3:30 p.m. until 

7:45 p.m. 

• The child spent nine uninterrupted days of vacation with each party during 

the summer for vacation. 

In addition to the above provisions, the 2016 order also stated, “in accordance with 

the Skidmore decision of the West Virginia Supreme Court of Appeals, the mere passage of 

time and the concomitant increase in the age of the child shall not be sufficient to form the 

basis for a modification of this Parenting Plan.”5

On June 23, 2021, Father filed a petition for modification of the oldest child’s 

parenting plan and a petition for allocation for the youngest child. In his petition, he stated 

that the parties had resumed their relationship, cohabited, and had their second child since 

the entry of the 2016 order. Father further alleged in his petition that Mother refused to 

allow him to spend time with the youngest child for approximately one month prior to 

filing his petition. Father requested 50-50 custody for both children.6

On November 4, 2021, a temporary hearing was held on Father’s petition for 

modification and allocation. The parties reached a temporary agreement by which the 

youngest child would have the same parenting time with Father as the oldest child, as was 

reflected in the parties’ 2016 agreed parenting order. 

5 The Skidmore case provides guidance regarding how courts should analyze 

whether a change in circumstances occurred when parties seek a modification of custody. 

Skidmore v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011). 

6 Relevant to this case, the youngest child suffered a traumatic brain injury when 

she was eight months old, takes daily seizure medication, was diagnosed with cerebral 

palsy, has severe nut and egg allergies, and has speech and vision delays. 
3

On January 27, 2022, the children were appointed a GAL. The GAL submitted her 

report to the family court on May 5, 2022, recommending that Father not be granted 50-50 

parenting for the youngest child due to the severity of her health conditions and Father’s 

inability to provide proper care. Instead, she recommended that the youngest child continue 

to follow the same parenting schedule as the oldest, which was two weekends per month 

and several hours each Tuesday evening. 

Multiple hearings were scheduled and continued. Due to the delay, Father filed a 

renewed motion for temporary relief on May 31, 2023. A hearing was held on July 26, 

2023, on Father’s motion. In that hearing, Mother moved to dismiss Father’s petition for 

modification regarding the oldest child, citing the Skidmore language that was included in 

the parties’ 2016 agreed order. The family court entered an interim order on November 20, 

2023, granting Mother’s motion to dismiss and denying Father 50-50 custody of the oldest 

child because he failed to prove that a substantial change in circumstances had occurred. 

The youngest child’s parenting schedule also remained unchanged from the parties’ 

November 2021 agreement due to a lack of time to complete the hearing. The hearing was 

continued to September 29, 2023, and continued multiple times after that.7It is from the 

November 20, 2023, interim order that Father now appeals, requesting that we assert 

interlocutory jurisdiction pursuant to West Virginia Code § 48-9-203(f).

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., __ W. Va. __, 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).

Father raises two assignments of error on appeal, which will be addressed out of 

order. First, he contends that the family court erred by granting Mother’s motion to dismiss

his petition to modify the parenting plan regarding the oldest child. He argues that he 

proved there was a substantial change in circumstances to warrant a modification. 

7 Another hearing was held on March 22, 2024, during which the parties reached a 

temporary agreement for both children, wherein Father would have parenting time with 

both children on certain days and with only the youngest child on other days. The 

agreement extended through the first week of August 2024. 
4

However, this assignment of error is outside the scope of our interlocutory review and 

cannot be addressed on appeal. “[O]ur interlocutory jurisdiction, granted by West Virginia 

Code § 48-9-203(f), is limited to orders creating temporary parenting plans and does not 

include an interim order crafting modifications to a permanent parenting plan.” See e.g. 

Christina F. v. Jason C., No. 23-ICA-507, 2024 WL 3252292, at *2 (W. Va. Ct. App. July 

1, 2024) (memorandum decision). Thus, because the family court’s temporary order 

regarding the oldest child stems from a modification of a permanent parenting plan, it is 

not subject to expedited interlocutory appeal.8

As his second and final assignment of error, Father asserts that the family court erred 

by refusing to allocate 50-50 custody of the youngest child for which no permanent 

parenting plan order has ever been issued. In support of his argument, Father states that 

Mother failed to rebut the presumption referenced in West Virginia Code § 48-9-102a 

(2022)9and that the family court failed to include sufficient findings of fact and conclusions 

of law. We agree with Father that the family court’s November 20, 2023, order is 

inadequate. 

West Virginia Code § 48-9-204 (2022) states, “the court shall make a temporary 

parenting plan [. . .] which shall be in writing and contain specific findings of fact upon 

which the court bases its determinations.” West Virginia Code § 48-9-209 (2022) provides 

further guidance with a non-exclusive list of factors to be considered when making custody 

allocation findings. Here, an analysis of those factors was not provided in the family court’s 

interim order. The family court’s temporary parenting plan order must include a thorough 

analysis regarding whether Mother rebutted the presumption to justify the deviation from 

50-50, and such analysis must include specific findings of fact surrounding any limiting 

factors that may be present. See e.g., Jesse C. v. Veronica C., No. 23-ICA-169, 2024 WL 

1590468, at *4 (W. Va. Ct. App. Feb. 8, 2024) (memorandum decision) (stating that “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”); see also Collisi v. 

8 Additionally, the parties reached an agreement which extends through August of 

2024, thereby arguably eliminating the dispute for appeal purposes.

9 West Virginia Code § 48-9-102a states, 

[t]here 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.
5

Collisi, 231 W. Va. 359, 363-64, 745 S.E.2d 250, 254-55 (2013) (requiring family court 

orders to set out specific findings of facts and conclusions of law to facilitate a meaningful 

appellate review). 

For the foregoing reasons, we remand to the family court with directions to issue an 

order with specific findings of fact and conclusions of law to facilitate meaningful appellate 

review.

10 The Clerk of this Court is hereby directed to issue the mandate 

contemporaneously herewith. 

Accordingly, we remand this matter to the family court for entry of a new order 

consistent with this decision. 

Remanded.

ISSUED: August 14, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr

Judge Charles O. Lorensen

Judge Daniel W. Greear

10 Due to the multiple delays in this matter, we encourage the family court to issue 

its final parenting plan order on remand in a timely and efficient manner.