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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2015 Term 

No. 14-0363 

IN RE K.H. 

FILED
 

April 10, 2015
 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Appeal from the Circuit Court of Kanawha County
 

The Honorable Carrie Webster, Judge
 

Civil Action No. 07-FIG-142
 

AFFIRMED IN PART; REVERSED IN PART; AND
 

REMANDED WITH DIRECTIONS
 

Submitted: January 28, 2015
 

Filed: April 10, 2015
 

Lyne Ranson, Esq. Allyson E. Hilliard, Esq.
 

Lyne Ranson Law Offices, LC Swartz Law Offices, PLLC
 

Charleston, West Virginia St. Albans, West Virginia
 

Attorney for the Petitioner Attorney for the Respondent
 

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
 

Justice BENJAMIN, deeming himself disqualified, did not participate in the decision of this
 

case. Judge NIBERT, sitting by temporary assignment.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “‘“The exercise of discretion by a trial court in awarding custody of a 

minor child will not be disturbed on appeal unless that discretion has been abused; however, 

where the trial court’s ruling does not reflect a discretionary decision but is based upon an 

erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal.” 

Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), 

superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 

385 S.E.2d 912 (1989).’ Syl. Pt. 1, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 

(2008).” Syl. Pt. 2, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011). 

2. “In reviewing a final order entered by a circuit court judge upon a 

review of, or upon a refusal to review, a final order of a family court judge, we review the 

findings of fact made by the family court judge under the clearly erroneous standard, and the 

application of law to the facts under an abuse of discretion standard. We review questions 

of law de novo.” Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). 

3. “In a contest involving the custody of an infant the welfare of the child is 

the polar star by which the discretion of the court will be guided.” Syl. Pt. 1, State ex rel. 

Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972). 

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4. “A psychological parent is a person who, on a continuing day-to-day basis, 

through interaction, companionship, interplay, and mutuality, fulfills a child’s psychological 

and physical needs for a parent and provides for the child’s emotional and financial support. 

The psychological parent may be a biological, adoptive, or foster parent, or any other person. 

The resulting relationship between the psychological parent and the child must be of 

substantial, not temporary, duration and must have begun with the consent and 

encouragement of the child’s legal parent or guardian. To the extent that this holding is 

inconsistent with our prior decision of In the Interest of Brandon L.E., 183 W.Va. 113, 394 

S.E.2d 515 (1990), that case is expressly modified.” Syl. Pt. 3, In re Clifford K., 217 W.Va. 

625, 619 S.E.2d 138 (2005). 

5. “In the law concerning custody of minor children, no rule is more firmly 

established than that the right of a natural parent to the custody of his or her infant child is 

paramount to that of any other person; it is a fundamental personal liberty protected and 

guaranteed by the Due Process Clauses of the West Virginia and United States 

Constitutions.” Syl. Pt. 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973). 

6. “A parent has the natural right to the custody of his or her infant child, 

unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment 

ii 
 

 

 

 

or other dereliction of duty, or has waived such right, or by agreement or otherwise has 

transferred, relinquished or surrendered such custody, the right of the parent to the custody 

of his or her infant child will be recognized and enforced by the courts.” Syllabus, Whiteman 

v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960). 

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Workman, Chief Justice: 

This is an appeal by Glenna. H. (hereinafter “grandmother”)1 from an order of 

the Circuit Court of Kanawha County affirming an order of the family court terminating the 

grandmother’s eight-year guardianship of her granddaughter, K.H. The family court granted 

full custodyto AnthonyB., the child’s father (hereinafter “father”) with no ongoing visitation 

granted to the grandmother. On appeal, the grandmother contends that the family court erred 

in failing to recognize her as the psychological parent of the child; failing to properly 

consider the child’s best interests or material changes in circumstances; and failing to grant 

any ongoing visitation to the grandmother. 

Subsequent to a thorough review of the appendix record, the parties’ briefs, and 

oral arguments of counsel, this Court affirms the family court and circuit court orders 

terminating the grandmother’s guardianship of the child, but we remand this matter with 

directions to the circuit court to remand to the family court for a hearing on the issue of 

visitation and the entry of an order granting liberal visitation rights to the grandmother, the 

specific contours of which are to be fashioned by the family court. 

1

Because this case involves sensitive facts, we protect the identities of those involved 

by using the parties’ first names and last initials, and we identify the child by using her 

initials only. See State ex rel. W.Va. Dept. of Human Servs. v. Cheryl M., 177 W.Va. 688, 

689 n.1, 356 S.E.2d 181, 182 n.1 (1987). 

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I. Factual and Procedural History 

K.H. was born in June of 2006. The father had no contact with the child during 

the first year of her life and requested multiple paternity tests. He first saw the child on 

August 1, 2007. The child’s mother and brother died in an automobile accident on 

September 15, 2007, and the maternal grandmother, petitioner Glenna H., thereafter filed for 

guardianship of the child on September 27, 2007. By order dated October 30, 2007, the 

family court appointed the grandmother as guardian of the child. The father appeared at the 

guardianship hearing and did not object to the grandmother’s appointment. 

On November 6, 2008, the father filed a petition to establish custodial 

responsibility for the child. This action resulted in an April 2009 agreed order granting 

primary custody to the grandmother with parenting time to the father every other weekend 

and one night per week. The father also began paying child support. On November 18, 

2010, the father filed a petition to revoke or terminate the grandmother’s guardianship. This 

action resulted in a 2011 agreed order granting the father additional parenting time. The 

father and grandmother also agreed to refrain from seeking further modification of the 

custody arrangements until December 31, 2012. 

On January 16, 2013, the father filed another petition to terminate the 

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grandmother’s guardianship of the child.2 By order dated April 11, 2013, Attorney Woody 

Hill was appointed as the guardian ad litem for the child. Subsequent to his investigation, 

Mr. Hill opined that the child should be placed in the custody of the father.3 Mr. Hill 

reported that he considered the child’s best interests and determined that the father was 

capable of providing a stable environment for the child, with no further need for 

guardianship. 

On July 16, 2013, the grandmother filed a motion with the family court seeking 

to be designated as the child’s “psychological parent” and also objected to the termination 

of her guardianship of the child. The family court held hearings in July, October, and 

November, 2013. In addition to the parties and the guardian ad litem, Dr. Timothy Saar, a 

psychologist retained by the grandmother, testified that the grandmother and the child have 

2

The appendix record indicates that the father is employed by the State of West 

Virginia and pays his daughter’s health insurance and private school tuition, fees, books, etc. 

He is also on active status in the National Guard and has ample room in his residence for the 

child. 

3

The guardian ad litem also reported that the grandmother had permitted the child to 

remain in the custody of her friend, Franklin Newsom, a few days a week. Mr. Newsom is 

a seventy-six-year-old man who had served a sentence for marijuana distribution and had 

been convicted for making threats to murder an Assistant United States Attorney who had 

prosecuted him. Mr. Newsom was also charged with battery in 1999 and DUI in 2011. The 

DUI charges were later dismissed. According to the father, the grandmother placed Mr. 

Newsom’s name on school records as the contact individual and was reluctant to give the 

father access to the daughter’s school records. After the issues regarding Mr. Newsom’s 

background were brought to the attention of the family court, the court entered an order 

prohibiting overnight visitation with Mr. Newsom and also prohibited Mr. Newsom from 

being alone with the child. 

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a significant bond and that the child honestly views the grandmother as “mom.” Dr. Saar did 

not meet with the father.4 

By order dated December 18, 2013, the family court terminated the 

grandmother’s guardianship and denied her motion to be considered a psychological parent. 

The grandmother appealed to the Circuit Court of Kanawha County on January 17, 2014. 

The circuit court refused the appeal, and the grandmother thereafter appealed to this Court. 

II. Standard of Review 

This Court has held that the standard of review in custody decisions, including 

guardianships, is as follows: 

“‘The exercise of discretion by a trial court in awarding 

custody of a minor child will not be disturbed on appeal unless 

that discretion has been abused; however, where the trial court’s 

ruling does not reflect a discretionary decision but is based upon 

an erroneous application of the law and is clearly wrong, the 

ruling will be reversed on appeal.’ Syllabus point 2, Funkhouser 

v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), 

superseded by statute on other grounds as stated in David M. v. 

Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989).” Syl. Pt. 

1, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 

(2008). 

Syl. Pt. 2, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011). We have also 

4

The family court order states that Dr. Saar did not draft or produce a report for the 

court. 

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explained as follows: 

In reviewing a final order entered by a circuit court judge 

upon a review of, or upon a refusal to review, a final order of a 

family court judge, we review the findings of fact made by the 

family court judge under the clearly erroneous standard, and the 

application of law to the facts under an abuse of discretion 

standard. We review questions of law de novo. 

Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). Guided by these 

standards, we now consider the parties’ arguments. 

III. Discussion 

A. West Virginia Code § 44-10-3, Best Interests, and Changed Circumstances 

The grandmother asserts that the family court and lower court erred in the 

consideration of the father’s petition to terminate the guardianship by failing to properly 

evaluate the best interests of the child and the existence of changed circumstances. In so 

arguing, the grandmother raises the issue of the legislative amendments to the requirements 

articulated in West Virginia Code § 44-10-3 that became effective between the father’s filing 

of the petition for termination of the guardianship and the court’s hearings on the matter.5 

5

The pre-July 9, 2013, version, the relevant portion of which was articulated in § 44­

10-3(c)(4), provided as follows: 

(c) The court, the guardian or the minor may revoke or terminate 

the guardianship appointment when: 

(4) A petition is filed by the guardian, the minor, 

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The grandmother contends that the family court erred by applying the version of the statute 

in effect at the time of the filing, rather than the amended version. The primary distinction 

between the prior and amended versions is the addition of the requirement for consideration 

of the best interests of the child and a material change in circumstances supporting the need 

to terminate the guardianship. 

an interested person or upon the motion of the 

court stating that the minor is no longer in need of 

assistance or protection of a guardian. 

The requirements of that guardianship statute were amended, effective July 9, 2013, 

approximately six months after the father’s petition but before the hearings on the petition. 

That amended statute, in relevant portion, provides as follows: 

(i) The court, the guardian or the minor may revoke or terminate 

the guardianship appointment when: 

(4) A petition is filed by the guardian, the minor, 

a parent or an interested person or upon the 

motion of the court stating that the minor is no 

longer in need of the assistance or protection of a 

guardian due to changed circumstances and the 

termination of the guardianship would be in the 

minor’s best interest. 

(j) For a petition to revoke or terminate a guardianship filed by 

a parent, the burden of proof is on the moving party to show by 

a preponderance of the evidence that there has been a material 

change of circumstances and that a revocation or termination 

is in the child’s best interest. 

W.Va. Code § 44-10-3(i)(4) and 44-10-3(j) (emphasis supplied). 

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This Court’s review of the record reveals that the family court recognized the 

existence of the statutory amendment in its order, but it did not specifically identify the 

statutory underpinnings for its conclusion that the grandmother’s guardianship should be 

terminated. It simply stated that the father had filed his petition for termination under West 

Virginia Code § 44-10-3(c)(4), and it thereafter proceeded to articulate its findings. The 

family court did, however, address the issue of the best interests of the child and the change 

in circumstances that had gradually occurred in the father’s level of participation in his 

daughter’s life. The family court observed that “striking a balance between a biological 

parent’s constitutional rights and the child’s best interests can be difficult.” The court also 

recognized the immeasurable importance of the child’s best interests, as discussed by this 

Court in In re Antonio. 228 W.Va. at 388, 719 S.E.2d at 858. The court explained that the 

“record clearly reflects that throughout the years Father has continually stepped up to care 

for his child and has willingly assumed additional and substantial parental responsibilities 

as well as all caretaking functions for his minor daughter.” 

This Court finds the parties’ arguments regarding deficiencies in the 

application of the statute to be unavailing. Beyond any statutory requirement for 

consideration of best interests and changed circumstances, this Court has emphatically 

declared the requirement for a thorough consideration of the best interests of the child and 

changed circumstances in all matters relating to altering custody of children. The substantive 

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law in effect at both the time of filing of the petition and the time of hearings on the matter 

required such consideration. This Court addressed these requirements in the specific context 

of a termination of guardianship in In re Haylea G., 231 W. Va. 494, 745 S.E.2d 532 (2013), 

and has consistently required analysis of best interests and changed circumstances in matters 

involving custody of children. Id. at 498, 745 S.E.2d at 536. A child’s best interests have 

been heralded as the paramount consideration by which all custody determinations should 

be made. We have repeatedly held that “[i]n a contest involving the custody of an infant the 

welfare of the child is the polar star by which the discretion of the court will be guided.” Syl. 

Pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972) (internal citation 

omitted); see also Syl. Pt. 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) 

(“Although parents have substantial rights that must be protected, the primary goal . . . in all 

family law matters . . . must be the health and welfare of the children.”); Syl. Pt. 5, Carter 

v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996) (“In visitation as well as custody matters, 

we have traditionally held paramount the best interests of the child.”). 

We find that the family court, while not clearly specifying the statutory basis 

for its conclusions regarding termination of the guardianship, satisfactorily considered both 

K.H.’s best interests and the change in circumstances that had occurred over the several years 

in which the father’s level of participation had increased. Moreover, the family court also 

considered the advice and conclusions of the guardian ad litem, formulated subsequent to a 

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thorough investigation. In his January 2015 update on the current status of the child, the 

guardian ad litem specifically informed this Court that the child reported a preference to live 

with her father and also expressed a desire to spend additional time with her grandmother. 

This Court finds neither clear error nor abuse of discretion in the family court’s conclusion 

that the guardianship should be terminated and custody granted to the father.6 

B. Psychological Parent 

The grandmother also contends that the family court and circuit court erred by 

failing to recognize her as the psychological parent of the child based upon her eight-year 

guardianship and the relational bonds created during that time. The “psychological parent” 

concept, as employed in this state, was originally associated with an individual’s right to 

intervene in child custody matters pursuant to West Virginia Code § 48-9-103 (2014).7 As 

6

The father contends that the grandmother raised this issue of erroneous application 

of the statute for the first time on appeal. The appendix record reveals, however, that the 

grandmother repeatedly argued that there had not been a change of circumstances and that 

termination of the guardianship was not in the child’s best interest. This Court also notes the 

exception to the general rule of prospective statutory application, as addressed in Shanholtz 

v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980). “[W]here an amended 

statute incorporates common law that had existed before the amendment to the statute, the 

statute may be applied retroactively.” Myers v. Morgantown Health Care Corp., 189 W. Va. 

647, 650, 434 S.E.2d 7, 10 (1993). 

7

The general legal principles associated with the psychological parent concept were 

addressed in a 1995 Wisconsin case, and the criteria enumerated in that four-element test 

have now become incorporated within the definitions of the psychological parent doctrine 

utilized by most reviewing courts. See In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis.), 

cert. denied sub nom. Knott v. Holtzman, 516 U.S. 975 (1995). These four elements include 

the following: 

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enunciated in syllabus point three of In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138 

(2005), 

A psychological parent is a person who, on a continuing 

day-to-daybasis, through interaction, companionship, interplay, 

and mutuality, fulfills a child’s psychological and physical needs 

for a parent and provides for the child’s emotional and financial 

support. The psychological parent may be a biological, 

adoptive, or foster parent, or any other person. The resulting 

relationship between the psychological parent and the child must 

be of substantial, not temporary, duration and must have begun 

with the consent and encouragement of the child’s legal parent 

or guardian. To the extent that this holding is inconsistent with 

our prior decision of In the Interest of Brandon L.E., 183 W.Va. 

113, 394 S.E.2d 515 (1990), that case is expressly modified. 

In establishing those parameters for the psychological parent concept in Clifford K., this 

Court specifically warned: 

With the announcement of this holding we also wish to make it 

abundantly clear that the mere existence of a psychological 

parent relationship, in and of itself, does not automatically 

permit the psychological parent to intervene in a proceeding to 

(1) that the biological or adoptive parent consented to, and 

fostered, the [third party’s] formation and establishment of a 

parent-like relationship with the child; (2) that the [third party] 

and the child lived together in the same household; (3) that the 

[third party] assumed obligations of parenthood by taking 

significant responsibility for the child’s care, education and 

development, including contributing towards the child’s support, 

without expectation of financial compensation; and (4) that the 

[third party] has been in a parental role for a length of time 

sufficient to have established with the child a bonded, dependent 

relationship parental in nature. 

Id. at 421. 

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determine a child’s custody pursuant to W. Va. Code § 48-9­

103(b). Nothing is more sacred or scrupulously safeguarded as 

a parent’s right to the custody of his/her child. 

217 W. Va. at 644, 619 S.E.2d at 157; see also Syl. Pt. 1, In re Willis, 157 W.Va. 225, 207 

S.E.2d 129 (1973) (“In the law concerning custody of minor children, no rule is more firmly 

established than that the right of a natural parent to the custody of his or her infant child is 

paramount to that of any other person; it is a fundamental personal liberty protected and 

guaranteed by the Due Process Clauses of the West Virginia and United States 

Constitutions.”); Syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960) 

(“A parent has the natural right to the custody of his or her infant child, unless the parent is 

an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction 

of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished 

or surrendered such custody, the right of the parent to the custody of his or her infant child 

will be recognized and enforced by the courts.”). Recognizing the inherent rights of a 

biological parent to his or her child, this Court observed in Clifford K. that “the limited rights 

of a psychological parent cannot ordinarily trump those of a biological or adoptive parent to 

the care, control, and custody of his/her child.” 217 W. Va. at 644, 619 S.E.2d at 157; see 

also Honaker v. Burnside,182 W.Va. 448, 452, 388 S.E.2d 322, 325 (1989) (stating that 

“[a]lthough we recognize the attachment and secure relationship” between a child and a 

psychological parent, “such bond cannot alter the otherwise secure natural rights of a 

parent[.]”). 

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This Court also addressed the concept of psychological parent in In re 

Visitation & Custody of Senturi N.S.V., 221 W. Va. 159, 652 S.E.2d 490 (2007), and 

observed: 

In the cases in which this Court has determined a person to be 

a psychological parent to a child, that person typically has 

resided in the child’s household and interacted with the child on 

a daily basis. See, e.g., In re Clifford K., id.; In re Jonathan G., 

198 W.Va. 716, 482 S.E.2d 893 (1996); Simmons v. Comer, 190 

W.Va. 350, 438 S.E.2d 530 (1993); Honaker v. Burnside, 182 

W.Va. 448, 388 S.E.2d 322 (1989). Moreover, a psychological 

parent is one who essentially serves as a second parent to a child 

and is a relationship to which the child’s parent has consented. 

See generally In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138; 

Simmons, 190 W.Va. 350, 438 S.E.2d 530; Honaker, 182 W.Va. 

448, 388 S.E.2d 322.” 

221 W.Va. at 167, 652 S.E.2d at 498. In Senturi, the Court was also deliberate in its 

recognition of the potential for the concept of psychological parent to be inappropriately 

extended. 

Obviously, a child will hold in high esteem any person who 

looks after him/her, attends to his/her needs, and lavishes 

him/her with love, attention, and affection. However, simply 

caring for a child is not enough to bestow upon a care giver 

psychological parent status. Were this the law of the State, any 

person, from day care providers and babysitters to school 

teachers and family friends, who cares for a child on a regular 

basis and with whom the child has developed a relationship of 

trust could claim to be the child’s psychological parent and seek 

an award of the child’s custody to the exclusion of the child’s 

parent. Clearly, this is not the result contemplated by this 

Court’s prior holding [in Clifford K.] . . . . 

Id. at 168, 652 S.E.2d at 499. 

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This Court also exhibited reluctance to apply the psychological parent concept 

in a manner that would unnecessarily detract from the rights of the natural parents in In re 

N.A., 227 W. Va. 458, 711 S.E.2d 280 (2011): 

Simply because a person is found to be a child’s psychological 

parent, however, does not translate into the psychological parent 

getting custody of the child. Rather, this Court has only gone so 

far as to hold that the status of “psychological parent” entitles 

the individual to intervene in a custody proceeding, “when such 

intervention is likely to serve the best interests of the child(ren) 

whose custody is under adjudication.” . . . Thus, custody 

determinations regarding a child or children are still controlled 

by what is in the best interests of the child(ren). 

227 W.Va. at 469, 711 S.E.2d at 291 (quoting Clifford K., 217 W.Va. at 640, 619 S.E.2d at 

153). 

This Court had occasion to speak to the psychological parent issue again in In 

re Antonio. In that case, the child’s maternal grandmother had filed a petition for 

guardianship, and the child’s biological mother had objected. In appealing the denial of her 

petition, the grandmother argued that she had been the psychological parent to the child for 

ten years. 228 W.Va. at 384, 719 S.E.2d at 854. This Court held that the statutory scheme 

granting a trial court discretion to appoint a nominee selected by a minor over the age of 

fourteen did not obligate the trial court to appoint the grandmother as guardian, over the 

mother’s objection and absent a showing of the mother’s unfitness. Id. at 388, 719 S.E.2d 

at 858. The grandmother in Antonio argued that she should be appointed as Antonio’s 

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guardian. However, Antonio had been living with his mother for the three years preceding 

the filing of the guardianship petition. “While [the grandmother] might have been able to 

succeed under this theory during the approximately ten years that Antonio lived with her, at 

this point in time, this Court cannot find that [the mother] has voluntarily transferred or 

relinquished custody of Antonio.” Id. at 392, 719 S.E.2d at 862. 

The Court recognized Antonio’s desire to have a continued relationship with 

his grandmother, and found that while the guardianship should be terminated, Antonio would 

be entitled to have visitation with his grandmother. In so ruling, this Court relied upon 

Honaker for the proposition that the best interests of the child may, in certain cases, 

necessitate visitation with other parties: “[a]lthough custody of minor child should be with 

the natural parent absent proof of abandonment or some form of misconduct or neglect, the 

child may have a right to continued visitation rights with the stepparent or half-sibling.” 182 

W.Va. at 451, 388 S.E.2d at 325, syl. pt. 2. 

In In re A.C., No. 13-1120, 2014 WL 2782131, at *1 (W. Va. Supreme Court, 

June 19, 2014) (memorandum decision), this Court affirmed the lower court’s determination 

that a non-parent had served the role of a psychological parent and observed that the family 

court had 

made detailed findings regarding the child’s living situation with 

Brooke B. in Kanawha County, detailing how, for example, 

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Brooke B. maintained A.C.’s school papers, how A.C. 

celebrated holidays in the Kanawha County home, how friends 

of A.C. dropped her off at the home, how Brooke B.’s address 

was A.C.’s official school address, and how Brooke B.’s 

authority to give consent for medical treatment of A.C. was 

never challenged. 

2014 WL 2782131, at *1. This Court affirmed the order appointing the psychological parent 

as the guardian and granted custody to the psychological parent while the biological father 

was incarcerated. Id. 

In the case sub judice, the family court found that the grandmother was not the 

psychological parent of K.H. because she failed to satisfy the second two elements of the 

“psychological parent” test. Specifically, it found that her guardianship was only temporary 

and was not begun with the consent of the father. Upon review of the record, this Court finds 

that the family court clearly erred. The grandmother had custody of this child for eight years, 

albeit increasingly a shared-custody arrangement as the father became gradually more 

involved in the life of his daughter and sought additional custodial responsibilities. The 

child’s mother, prior to her death, had sought assistance from her mother and had encouraged 

the relationship between grandmother and grandchild. The father, while not involved in the 

child’s life for over a year, consented to the guardianship arrangement and entered into 

agreed orders resolving custody issues in favor of joint custody arrangements with the 

grandmother. From the child’s birth and over the course of the next eight years, the 

grandmother has served as a parent to K.H. in every conceivable capacity. Such relationship 

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is not properly characterized as temporary. This was a significant relationship that 

unquestionably qualifies as a psychological parenting situation under this Court’s definition 

in Clifford K., as well as the subsequent cases chronicled above. We consequently find that 

the familycourt erred in finding that the grandmother’s relationship with K.H. was temporary 

and that it was begun without the consent of her parents. We find that the grandmother is a 

psychological parent to K.H. 

C. Right of Psychological Parent to Continued Association 

The psychological parent doctrine is an equitable theory and judge-made 

construct which permits courts, under appropriate circumstances, to recognize an individual 

who has maintained a parent-like relationship with a child and consequently has a right to 

continued visitation with that child. See Nicole M. Onorato, Note, The Right to Be Heard: 

Incorporating the Needs and Interests of Children of Nonmarital Families into the Visitation 

Rights Dialogue, 4 Whittier J. Child & Fam. Advoc. 491, 519-20 (2005) (explaining the 

psychological-parent doctrine).8 In such instances, a court will evaluate the issue of whether 

8

Prior to recent attempts to articulate a legal standard for this theory, proponents of 

the concept analyzed it from a psychological perspective and explained that “[i]t is this 

psychological parenthood, rather than the biological events which may precipitate such a 

relationship, which many psychologists identify as the sine qua non of successful personality 

development.” Note, Alternatives to “Parental Right” in Child Custody Disputes Involving 

Third Parties, 73 Yale L.J. 151, 158 (1963). Child psychoanalyst and Yale professor, Anna 

Freud, opined that the term “psychological parent” denotes “one who, on a continuing, 

day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the 

child’s psychological needs for a parent.” Joseph Goldstein, Anna Freud, and Albert J. 

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an adult has formed a bonded relationship with a child and whether the continuation of such 

relationship is in the best interests of the child.9 

These principles are consistent with this Court’s approach to the right of a child 

to continued association, as expressed quite concisely in Honaker. In that case, this Court 

determined that the natural father had a right to custody of his child, but also considered 

whether it was in the child’s best interests to maintain a continued relationship with her 

stepfather and half-brother. 182 W.Va. at 452, 388 S.E.2d at 325. This Court stated: 

[u]ndoubtedly, . . . [the child’s] best interests must be the 

primary standard by which we determine her rights to continued 

contact with other significant figures in her life. Clearly, “these 

interests are interests of the child and not of the parent. 

Visitation is, to be sure, a benefit to the adult who is granted 

Solnit, Beyond the Best Interests of the Child, 17, 98 (1973); see also Joseph Goldstein, 

Anna Freud, and Albert J. Solnit, Before the Best Interest of the Child, 39, 46-48 (1979) 

(advocating the use of the psychological parent doctrine where child was separated from 

biological or adoptive parents for a long period of time and proposing “maximum intervals 

beyond which it would be unreasonable to presume that a child’s . . . ties with his absent 

[natural] parents are more significant than those that have developed between him and his 

longtime caretakers”). 

9

In some states utilizing the psychological parent concept, a court finding the existence 

of such a relationship will generally “treat the third party as equal to the natural parent and 

will apply the ‘best interests of the child’ standard to decide visitation, much the same as if 

two biological parents were vying for visitation or custody in a divorce proceeding.” Lindsy 

J. Rohlf, Note, The Psychological-Parent and DeFacto-Parent Doctrines: How Should the 

Uniform Parentage Act Define “Parent”?, 94 Iowa L. Rev. 691, 700 (2009); see also V.C. 

v. M.J.B., 748 A.2d 539, 554 (N.J. 2000) (“Once a third party has been determined to be a 

psychological parent to a child, . . . he or she stands in parity with the legal parent. Custody 

and visitation issues between them are to be determined on a best interests standard . . . .” 

(citation omitted)). 

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visitation rights with a child. But it is not the adult’s benefit 

about which the courts are concerned. It is the benefit of the 

child that is vital.” “Visitation is not solely for the benefit of 

the adult visitor but is aimed at fulfilling what many conceive to 

be a vital, or at least a wholesome contribution to the child’s 

emotional well being by permitting partial continuation of an 

earlier established close relationship.” Looper v. McManus, 581 

P.2d 487, 488 (Okla. Ct. App.1978). 

Honaker, 182 W.Va. at 452, 388 S.E.2d at 325 (footnotes omitted). In Honaker, this Court 

also explained: 

The best interests of the child concept with regard to 

visitation emerges from the reality that “[t]he modern child is 

considered a person, not a sub-person over whom the parent has 

an absolute and irrevocable possessory right. The child has 

rights. . . .” Another concern is “the need for stability in the 

child’s life. . . . [T]ermination of visitation with individuals to 

whom the child was close would contribute to instability rather 

than provide stability.[”] 

Id., 388 S.E.2d at 326 (footnotes omitted). “[C]ontinuity and stability in a child’s life most 

certainly count for something . . . . Children are not dogwood trees, to be uprooted, 

replanted, then replanted again for expediency’s sake.” Guardianship of Kassandra H., 64 

Cal.App.4th 1228, 1238 (Cal. App. 1998). 

As apparent from the extensive line of cases decided by this Court, the rights 

of K.H. to continued association with her grandmother must be a vital part of this equation. 

The father emphasizes the United States Supreme Court’s decision in Troxel v. Granville, 

530 U.S. 57 (2000), and the fundamental right of a parent to make decisions concerning the 

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care, custody, and control of his or her children. In Troxel, the United States Supreme Court 

held that awarding visitation to a non-parent, over the objections of a parent, is subject to 

constitutional limitations. The Court in Troxel invalidated a Washington statute authorizing 

“any person” to petition for visitation rights “at any time[,]” and described the statute as 

“breathtakingly broad.” Id. at 67.10 This Court has examined the Troxel case, noting that 

it “instructs that a judicial determination regarding whether grandparent visitation rights are 

10A legal commentator analyzed the effect of Troxel on children’s constitutional rights 

and concluded as follows: 

Before Troxel, it was abundantly clear that under the U.S. 

Constitution children possessed rights to equal protection, to due 

process, and to privacy in a wide variety of settings. After 

Troxel, it appears that at least six of the justices would weigh 

children’s interest in protection of intimate relationships in the 

balance of constitutional rights. 

As the least powerful of groups and most vulnerable of 

persons, children are arguably most in need of rights. In a 

conceptual scheme in which adults have rights and children have 

mere interests, children’s interests too often are trumped by the 

more powerful notion of rights. Judges and legislatures are 

increasingly unwilling to view the rights of parents as 

paramount . . . . The Supreme Court has recognized children’s 

rights in many different settings, from juvenile justice to 

education. After Troxel, it seems clear that in a properly 

presented custody case, the Court can be expected to recognize 

children’s rights to due process, equal protection, and privacy in 

the context of custody as well. The challenge for scholars (and 

for judges) is to acknowledge children’s rights in custody cases 

in a manner that does not treat them like small adults, that takes 

account of their essential difference, and that respects their 

complex needs for nurture, protection, identity, and connection. 

Barbara Bennett Woodhouse, Talking About Children’s Rights in Judicial Custody and 

Visitation Decision Making, 36 Fam. L.Q. 105, 113-14 (2002) (footnotes omitted). 

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appropriate may not be premised solely on the best interests of the child analysis.” Cathy 

L.M. v. Mark Brent R., 217 W.Va. 319, 327-28, 617 S.E.2d 866, 874-75 (2005) (emphasis 

supplied). Instead, this Court emphasized in Cathy L.M. that the evaluating court “must also 

consider and give significant weight to the parents’ preference, thus precluding a court from 

intervening in a fit parent’s decision making on a best interests basis.” Id. That is the 

gravamen of the Troxel decision; the true failing of the Washington statute in Troxel was 

“not that the [trial court] intervened, but that when it did so, it gave no special weight at all 

to [the parent’s] determination of her daughters’ best interests.” 50 U.S. at 69. 

As this Court explained in footnote seven of In re Visitation of A.P., 231 W. 

Va. 38, 743 S.E.2d 346 (2013): 

Although Troxel does not define “special weight,” state 

courts attempting to interpret and apply Troxel have reasoned 

that “special weight” indicates considerable deference. In In re 

M.W., 292 P.3d 1158 (Colo. App. 2012), for instance, the 

Colorado Court of Appeals explained that “[g]iving special 

weight means that the presumption favoring the parent’s 

decision can be rebutted only by clear and convincing evidence 

that granting parental responsibilities to the nonparent is in the 

child’s best interests.” Id. at 1161. 

231 W.Va. at 42 n.7, 743 S.E.2d at 350 n.7. In State ex rel. Brandon L. v. Moats, 209 W.Va. 

752, 551 S.E.2d 674 (2001), this Court held that the West Virginia grandparent visitation 

statute was constitutional because it is much narrower than the Washington statute evaluated 

in Troxel. Id. at 760, 551 S.E.2d at 682. This Court, in Brandon L, did not identify “the 

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amount of weight that should attach to the factor of parental preference . . . .” Id. at 763, 551 

S.E.2d at 685. We noted, however, that “in light of the Troxel decision it is clear that ‘the 

court must accord at least some special weight to the parent’s own determination’ provided 

that the parent has not been shown to be unfit.” Id. (quoting Troxel, 530 U.S. at 70).11 

An enlightening discussion regarding Troxel was included a dissenting opinion 

in In re Marriage of Winczewski, 72 P.3d 1012 (Or. Ct. App. 2003) (Brewer, J., dissenting), 

as follows: 

When the competing rights of child and parent are pitted 

against each other, a balancing of interests is appropriate. That 

notion finds support in the Troxel test. As discussed, Troxel 

teaches that a court cannot award parenting time to a nonparent 

over the objection of a fit parent based solely on best interest 

considerations. Troxel, 530 U.S. at 69, 120 S.Ct. 2054 

(O’Connor, J., plurality opinion). However, the presumption 

11Even states adhering to a strict scrutiny methodology in evaluating nonparent child 

access statutes recognize the child’s interest in the preservation a relationship with a 

nonparent. In Rideout v. Riendeau, 761 A.2d 291 (Me. 2000), for instance, the Maine 

Supreme Court, based upon the theory that a compelling state interest is required to justify 

intervention in the context of Maine’s nonparent parenting time statute, observed that the 

interest in continued access “springs not from any common law right of the grandparent to 

visitation with the child, but from the child’s significant need to be assured that he or she will 

not unnecessarily lose contact with a grandparent who has been a parent to that child.” Id. 

at 301-02; see also Troxel, 530 U.S. at 86 (Stevens, J., dissenting) (“There is at a minimum 

a third individual, whose interests are implicated in every case to which the statute 

applies-the child.”). It is therefore imperative to acknowledge that “the understanding of 

visitation as a parental right, which marginalizes the nurture and care of children and 

disregards their relational interests, is incompatible with a relational understating of 

visitation.” Ayelet Blecher-Prigat, Rethinking Visitation: From A Parental to A Relational 

Right, 16 Duke J. Gender L. & Pol’y 1, 2 (2009). 

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that must be applied before best interests are considered focuses 

solely on the parent’s ability to act in the child’s best interests. 

In other words, the presumption relates to the very factual 

determination that must be made if it is rebutted. Because, in a 

real sense, the Troxel presumption blends with the best interests 

test, there is a certain circularity to the Court’s analysis. That 

circularity leaves one to wonder whether there is less to the 

presumption than initially meets the eye. As one commentator 

has observed: 

The significance of Troxel lies in its subtlety, not 

in anyrigid analysis of recognized and established 

constitutional law doctrine. The opinion marks an 

evolution in parental autonomy protection by 

what it pronounces as well as by what it avoids. 

By balancing the State’s interest in protecting the 

child with the parent’s interest in making 

child-rearing decisions free from unnecessary 

State interference, the Court no longer accords 

blind, unquestioning deference to the decisions of 

presumptively fit parents. Ideally, when courts 

decide to balance the competing interests equally, 

the child’s needs will be served and will prevail. 

Sandra Martinez, The Misinterpretation of Troxel v. Granville: 

Construing the New Standard for Third Party Visitation, 36 

Fam. L.Q. 487, 499 (2002). In sum, Troxel neither requires nor 

presages a strict scrutiny analysis of rights in nonparent custody 

and parenting time cases; instead, the deference to parental 

prerogative that it requires entails a balancing of distinct family 

interests. 

72 P.3d at 1057-58 (Brewer, dissenting). 

A fundamental principle, properly gleaned from the scholarly writings and 

legal opinions reviewed by this Court, is that the pronouncements of Troxel do not predispose 

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every case to an ultimate determination favoring the natural parent in a complete and 

conclusive manner.12 An assessment of the specific circumstances of each case is still 

required, and while the reviewing court must accord special weight to the preferences of the 

parent, the best interests of the child are not to be ignored and must be included as a critical 

component of the dialogue regarding visitation or custody. 

As the New Jersey Supreme Court in Moriarty v. Bradt, 827 A.2d 203 (N. J. 

2003), concisely stated, “[t]he possibilities are as varied as the factual scenarios presented.” 

827 A.2d at 224. These possibilities should be deliberated in a manner conducive to the 

protection of the child. The Supreme Court of Pennsylvania summarized the process aptly 

in Hiller v. Fausey, 904 A.2d 875 (Pa. 2006): “[W]e refuse to close our minds to the 

possibility that in some instances a court may overturn even the decision of a fit parent to 

12It has been noted that “[b]ecause the various opinions in Troxel prevented the Court 

from speaking with a clear and unified voice, its decision is subject to misinterpretation.” 

Winczewski, 72 P.3d 1012, 1056 (Brewer, dissenting). As insightfully explained by the New 

Jersey Supreme Court in Moriarty v. Bradt, 827 A.2d 203 (N. J. 2003): 

The [Troxel] Court avoided the basic issue of the appropriate 

level of scrutiny and the standard to be applied. It also stopped 

short of invalidating nonparental visitation statutes per se and 

declined to define “the precise scope of the parental due process 

right in the visitation context” because “the constitutionality of 

any standard for awarding visitation turns on the specific 

manner in which that standard is applied” as “much state-court 

adjudication in this context occurs on a case-by-case basis.” 

827 A.2d at 216-17 (quoting Troxel, 530 U.S. at 73-74). 

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exclude a grandparent from a grandchild’s life, especially where the grandparent’s child is 

deceased and the grandparent relationship is longstanding and significant to the grandchild.” 

Id. at 886-87.13 

The father in the present case contends that the family court allowed for a 

gradual transition and that nothing further is necessary. In reality, the family court order only 

provided for a limited period of gradual transition, the terms of which have now expired.14 

13In a concurrence in Hiller, the writer addressed the issue of according proper 

deference to the requirements of Troxel and noted as follows: 

[T]he due process right that the Supreme Court affirmed in 

Troxel is important but limited: a court may not override a 

parent’s decision about the care or custody of a child simply 

because the court determines that the decision is not in the 

child’s best interest, as the trial court did in Troxel regarding a 

grandparent’s interest in visitation. Instead, the court must 

presume that a fit parent’s decision is in the best interest of the 

child, and the court may reach a decision contrary to the wishes 

of the parent only if there is evidence sufficient to overcome that 

presumption. Troxel goes no further. 

904 A.2d at 902 (Newman, J., concurring). 

14The family court order stated as follows: 

Th[e] following schedule or gradual transitional period shall be 

followed: 

a. Commencing November 21, 2013 through January 31, 2014 

the minor child shall be with Grandmother every other weekend 

(Friday after school or at 3pm until Sunday evenings at 5). The 

minor child shall also be with Grandmother every Wednesday 

after school or 3pm through Thursday morning at 8am or drop 

(continued...) 

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No further visitation is delineated in the family court order. While the grandmother has 

apparently continued to exercise visitation during the pendency of this appeal, the family 

court order did not actually require any ongoing visitation. 

Based upon a thorough evaluation of the appendix record, this Court finds that 

K.H. and her psychological parent/grandmother are entitled to continued visitation. This 

Court is confident that such visitation can be structured in a manner which will not 

substantially interfere with the parent-child relationship or adversely affect the father’s 

fundamental rights to custody of K.H. 

IV. Conclusion 

For the foregoing reasons, this Court finds that the family court did not abuse 

its discretion by terminating the grandmother’s guardianship of K.H., and the decision 

terminating the guardianship is consequently affirmed. However, due to the grandmother’s 

status as psychological parent to the child, the grandmother and the child are entitled to 

continued association with one another. Thus, we remand this matter for the entry of an 

order, consistent with this opinion, specifying a liberal visitation schedule to permit 

14(...continued)
 

off at school or any other night that the parties may agree.
 

b. Commencing February 1, 2014 through the last day of the 

minor child’s school the minor child shall be with Grandmother 

every other weekend (Friday after school or at 3pm until Sunday 

evenings at 5). 

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significant and meaningful opportunity for the grandmother to interact with K.H. In 

formulating such arrangement, the family court must also be cognizant of the grandmother’s 

recent filing of a petition for grandparent visitation rights under West Virginia Code §§ 48­

10-101 to-1201 (2014), and the two separate and distinct methods of seeking relief initiated 

by the grandmother should be merged for consideration by the family court.15 

The court must also be cognizant of the need to formulate a visitation schedule 

“as expeditiously as possible[,]” as this Court explained in Honaker. 182 W.Va. at 453, 388 

S.E.2d 326. Transitions in the life of a child should be fashioned in a manner which 

minimizes the trauma to the child. The plan “should give due consideration to both parties’ 

work and home schedules and to the parameters of the child’s daily school and home life, and 

should be developed in a manner intended to foster the emotional adjustment” of the child 

“while not unduly disrupting the lives of the parties or the child[].” Id. As this Court in 

Honaker advised: 

No matter how artfully or deliberately the trial court judge draws 

the plan for these coming months, however, its success and 

indeed the chances for [the child’s] future happiness and 

emotional security will rely heavily on the efforts of these two 

[caretakers]. The work that lies ahead for both of them is not 

without inconvenience and sacrifice on both sides. Their 

energies should not be directed even partially at any continued 

rancor at one another, but must be fully directed at developing 

15As of the date of oral argument in this case, the family court had not yet issued a 

written order on the grandmother’s petition for grandparent visitation rights. 

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compassion and understanding for one another, as well as 

showing love and sensitivity to the [child’s] feelings at a 

difficult time in all their lives. 

Id. at 453, 388 S.E.2d at 326-27.16 

Affirmed in part; reversed in part; and remanded. 

16As in other child custody matters, the visitation schedule will be subject to modification 

as circumstances warrant. 

27