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No. 18-0780, Michael N. v. Brandy M. and Allen M.

ARMSTEAD, Chief Justice, dissenting:

The West Virginia Legislature has clearly recognized that a child born during 

the course of a marriage is presumed to be a child of such marriage. In West Virginia Code 

§ 48-24-101 (2012), the Legislature explicitly outlined when a party has standing to 

determine paternity of a child contrary to such presumption. Because the majority opinion 

has extended a right to Petitioner that is not contemplated by this statute, I am compelled 

to dissent. Instead of striking down the statute as unconstitutional and requiring the 

Legislature to correct its infirmities, this Court has simply written its solution into the 

statute. While I acknowledge that in 1996 this Court determined such statute arguably did 

not protect a putative biological father’s constitutional rights to establish paternity,1 the 

Court exceeded its authority by essentially rewriting the statute.

The issue in this matter is whether this Court should allow a man to assert 

paternity to children born of a woman married to another man. This issue must be viewed 

in its historical context. “At common law a child born or conceived during marriage was 

conclusively presumed to be legitimate. Ray v. Ray, 219 N.C. 217, 13 S.E.2d 224 (1941). 

The rule was recognized and applied in State v. Reed, 107 W.Va. 563, 149 S.E. 669 

1 The entirety of Chapter 48A of the West Virginia Code was repealed and 

reenacted by the Legislature in 2001. Previously, this statute was codified in West Virginia 

Code § 48A-6-1 (1993). Stone references the prior version of the statute, which remains 

unchanged after its reenactment and 2002 amendments. 

FILED

June 17, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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(1929).” State ex rel. J. L. K. v. R. A. I., 170 W. Va. 339, 341, 294 S.E.2d 142, 144 (1982). 

“The common law ‘presumption was so absolute that the doctrine of filiato non potest 

probaris applied, and no proofs would be received to dispute the legitimacy of the 

child.’ Powell v. State, 84 Ohio St. 165, 95 N.E. 660, 661 (1911), overruled on other 

grounds, State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944).” Id., 170 

W. Va. at 342, 294 S.E.2d at 145 (internal footnote omitted). In J. L. K., the Court found 

that:

The common law rule can thus be viewed as a protective 

device for both the child and mother so that the label “bastard” 

would not stigmatize the child, nor would the mother's 

reputation be tarnished. Moreover, the common law rule 

upheld the integrity of the family because it was the family 

which was the basic social and economic fabric which bound 

society together.

Id.

Over time, the common law has been modified by the Legislature. See id., 

170 W. Va. at 341 n.2, 294 S.E.2d at 144 n.2. The present statute at issue provides standing 

for specific individuals by which a paternity action may be prosecuted:

(1) An unmarried woman with physical or legal custody of a 

child to whom she gave birth;

(2) A married woman with physical or legal custody of a child 

to whom she gave birth, if the complaint alleges that:

(A) The married woman lived separate and apart from her 

husband preceding the birth of the child;

(B) The married woman did not cohabit with her husband at 

any time during such separation and that such separation has 

continued without interruption; and

(C) The respondent, rather than her husband, is the father of 

the child;
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(3) The state of West Virginia, including the bureau for child 

support enforcement;

(4) Any person who is not the mother of the child but who has 

physical or legal custody of the child;

(5) The guardian or committee of the child;

(6) The next friend of the child when the child is a minor;

(7) By the child in his or her own right at any time after the 

child’s eighteenth birthday but prior to the child’s twenty-first 

birthday; or

(8) A man who believes he is the father of a child born out of 

wedlock when there has been no prior judicial determination 

of paternity.

W. Va. Code § 48-24-101(e) (2012). This statute was declared unconstitutional, in part, in 

State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 474 S.E.2d 554 (1996), but was allowed 

to stand because this Court:

recognize[d] the importance of this statute. Therefore, rather 

than rendering the entire statute unenforceable, we apply the 

doctrine of the least intrusive remedy and hold that the Due 

Process Clause of the West Virginia Constitution requires 

courts to hear and decide, under the guidelines we set out 

below, paternity actions brought by a putative biological father 

of a child born to a married woman who is not his wife. 

Stone, 196 W. Va. at 637, 474 S.E.2d at 567. Like this Court twenty-four years ago, I 

believe this statute remains important to the well-being of children involved in such cases. 

The traditional reasons for limiting who may establish paternity still apply today, as do the 

reasons for the paternity presumption. That importance is not outweighed by a putative 

biological father’s assertion of a right to establish paternity to children who are born to a 

woman who is married to another. See id., 196 W. Va. at 635, 474 S.E.2d at 565. The 

majority opinion has again strayed from the bedrock constitutional principle that enacting 

laws is the province of the Legislature, and that we should apply the clear language of 
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statutes, unless such statutes are unconstitutional. See Syllabus Point 2, State v. Epperly, 

135 W. Va. 877, 65 S.E.2d 488 (1951); Syllabus Point 1, Dunlap v. State Compensation 

Director, 149 W. Va. 266, 140 S.E.2d 448 (1965); Syllabus Point 1, State v. Elder, 152 W. 

Va. 571, 165 S.E.2d 108 (1968); Syllabus Point 2, Crockett v. Andrews, 153 W. Va. 714, 

172 S.E.2d 384 (1970); See also Appalachian Power Co. v. State Tax Dep’t of West 

Virginia, 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995) (“We look first to the statute’s 

language. If the text, given its plain meaning, answers the interpretive question, the 

language must prevail and further inquiry is foreclosed.”).

This Court does not sit as a superlegislature, 

commissioned to pass upon the political, social, economic or 

scientific merits of statutes pertaining to proper subjects of 

legislation. It is the duty of the legislature to consider facts, 

establish policy, and embody that policy in legislation. It is the 

duty of this court to enforce legislation unless it runs afoul of 

the State or Federal Constitutions.

Boyd v. Merritt, 177 W.Va. 472, 474, 354 S.E.2d 106, 108 (1986).

In Stone, this Court asserted the constitutional right of a putative biological 

father to bring a paternity action. However, instead of declaring the enabling statute 

unconstitutional and permitting the Legislature to modify it to cure such deficiency, this 

Court encroached upon the Legislature’s authority and rewrote the statute. The Court did 

so by adding its own language that allow a putative biological father to bring a paternity 

action:

Although an unwed father’s biological link to his child 

does not, in and of itself, guarantee him a constitutional stake 

in his relationship with that child, such a link combined with a 

substantial parent-child relationship will do so. When an 

unwed father demonstrates a full commitment to the 
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responsibilities of parenthood by coming forward to participate 

in the rearing of his child, his interest in personal contact with 

his child acquires substantial protection under the Due Process 

Clause in Section 10 of Article III of the West Virginia 

Constitution.

Syllabus Point 2, Stone. This Court added its own legal framework and essentially 

“legislated” how a putative biological father could proceed in a paternity suit:

A putative biological father must prove by clear and 

convincing evidence the following factors before he will have 

standing to raise the issue of paternity of a child born to a 

married woman who is not his wife: (1) that he has developed 

a parent-child relationship with the child in question, and (2) 

that the child will not be harmed by allowing the paternity 

action to proceed.

Syllabus Point 6, Stone.

The Court started down a slippery slope by diverging from the express text 

and the well-established purpose behind the statute. That slope has lead us to the further 

departure from the statutory language that the majority has now embraced. The majority 

opinion adds additional language to the statute by finding that special circumstances exist 

allowing an expansion of Stone and holding:

[A] petition by a putative biological father seeking to establish 

his paternity over a child who was born while the mother was 

married to another man satisfies the “special circumstances” 

exception in Syllabus point 3 of State ex rel. Roy Allen S. v. 

Stone, 196 W. Va. 624, 474 S.E.2d 554, if he is able to clearly 

and convincingly prove as a threshold matter that a paternal 

relationship had been initiated and he would have obtained a 

substantial paternal relationship with the child but was 

prevented from further development of the relationship due to 

the conduct of others. To achieve such standing, the putative

biological father must allege and prove that he would share in 
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the care of, responsibility for, and support of the child but for 

the conduct of others that prevented him from doing so. 

Additionally, the putative biological father must prove by clear 

and convincing evidence, and in accordance with Stone, that 

the child will not be harmed by allowing the paternity action to 

proceed. Furthermore, the putative biological father must not 

be dilatory in bringing the paternity establishment action; he 

must bring such action within a reasonable time after he knows 

or should know that there is a basis to believe he is the child’s 

biological father. Finally, we reiterate that these types of 

matters must always be examined on a case-by-case basis with 

respect to the specific facts of each case.

Michael N. v. Brandy M. and Allen M., No. 18-0780, slip op. at 25-6, ___ W. Va. ___, ___, 

___ S.E.2d ___, ___ (W. Va., June 17, 2020) (internal footnote omitted). None of these 

newly “legislated” requirements are found in the statute. I firmly believe the statutory 

issues raised in this matter must be addressed by the Legislature, rather than this Court. 

Further, the majority opinion does not adequately address concerns raised by 

the circuit court regarding the best interests of the children. This Court previously stated 

in a paternity context that “[o]n numerous previous occasions, this Court has voiced its 

opinion that the best interests of the child is the polar star by which decisions must be made 

which affect children.” Michael K.T. v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 

872 (1989). The circuit court correctly heeded caution in Stone that “[i]f the putative 

father’s intrusion into the family, or into an established parent-child relationship, would 

cause undue disruption and, thus, jeopardize the child’s proper development, the court 

could consider that as a basis for denying relief.” Stone, 196 W. Va. at 636-37, 474 S.E.2d 

at 566-67. Accordingly, the circuit court recognized:
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Notwithstanding the contention that other children in 

the [Respondent’s] home, from the [Respondent’s] prior 

partners, exist, and that these children and their parents 

experience the related complexities of those prior 

relationships, the two children affected by this case do not 

currently face those obstacles. Nor have they been exposed to 

questions of whether the only Dad they have known is indeed 

their biological father.

 Based upon this serious concern, the circuit court concluded that Petitioner

does not come to this court with clean hands. Evidence 

presented in the lower court plainly indicates [Petitioner] was 

aware that [Brandy M.] was married to another man at the time 

he engaged in the intimate relationship. He continued with this 

extra-marital relationship on separate occasions, across an 

expanse of time. Although he argues he believed [Brandy M.] 

intended to divorce [Allen M.], when it became obvious that 

was not her intention, he still chose to participate once again. 

Clearly, Petitioner lacked due respect for the relationship 

between the [Respondents], as well as the [Respondents’] 

family unit. He now disregards any risk of emotional or 

psychological harm to these children by asserting a claim of 

paternity and seeking a parental role following a significant 

period of absence.

While I believe the majority opinion has attempted to provide safeguards 

regarding the best interest of the children, its expansion of the Stone exceptions actually

undermines the long-established protections for children contained in the statute. These 

reasons are precisely why it is the Legislature’s duty, rather than the Court’s responsibility,

to balance all of these interests and reform the statute.

Accordingly, I dissent from the majority’s holding that special circumstances 

exist for this Court to expand upon Stone, because I believe such expansion is an improper, 
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Court-ordered, modification of West Virginia Code § 48-24-101(e) and because I believe 

it undermines the safeguards imbedded in that statute to protect the best interests of the 

children.