           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                   January 2015 Term
                                                                    FILED

                                                                  May 22, 2015

                                       No. 14-0403                released at 3:00 p.m.
                                                                  RORY L. PERRY II, CLERK
                                                                SUPREME COURT OF APPEALS
                                                                    OF WEST VIRGINIA



                                          D.B.

                                         D.B.,

                                       Petitioners


                                            v.


                                          J.R.,

                                       Respondent




                     Appeal from the Circuit Court of Mingo County

                       The Honorable John L.Cummings, Judge

                               Civil Action No. 12-CIG-2


                              REVERSED AND REMANDED



                               Submitted: February 25, 2005
                                  Filed: May 22, 2015

Jane Moran, Esq.                                       Timothy P. Lupardus, Esq.
Jane Moran Law Office                                  Pineville, West Virginia
Williamson, West Virginia                              Counsel for the Respondent
Counsel for the Petitioners

Diana C. Wiedel, Esq.
Williamson, West Virginia
Guardian Ad Litem

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
                              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superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W. Va.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 Antonia R.A., 228 W. Va. 380, 719 S.E.2d 850 (2011).



              2.     “‘Where the issue on an appeal from the circuit court is clearly a

question of law or involving an interpretation of a statute, we apply a de novo standard of

review.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415

(1995).” Syl. Pt. 2, In re Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d 300 (2008).



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

and, 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

                                              i
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).



              3.      “When a natural parent transfers temporary custody of . . . [his or her]

child to a third person and thereafter seeks to regain custody of that child, the burden of proof

shall be upon that parent to prove by clear and convincing evidence that he or she is fit;

thereafter the burden of proof shall shift to the third party to prove by clear and convincing

evidence that the child’s environment should not be disturbed because to do so would

constitute a significant detriment to the child notwithstanding the natural parent’s assertion

of a legal right to the child.” Syl. Pt. 2, in part, Overfield v. Collins, 199 W. Va. 27, 483

S.E.2d 27 (1996).




                                               ii
Workman, Chief Justice:



              This case is before the Court upon the appeal of the Petitioners D.B.1

(hereinafter “the Petitioner grandfather”) and D.B.2(hereinafter “the Petitioner grandmother”)

from the February 27, 2014, final order of the Circuit Court of Mingo County, West Virginia,

denying their3 petition for guardianship of their granddaughter, F.R.4 The Petitioners contend

that the circuit court erred: 1) in finding that the Temporary Agreed Order granting the

Petitioners temporary custody of the child terminated at the commencement of the

guardianship hearing; 2) in ordering transfer of the custody of the child to the Respondent



       1
        Because this case involves a child and sensitive matters, we follow our practice of
using initials to refer to the parties. See 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
        The Petitioner grandmother is not the child’s biological maternal grandmother. She
had been in a long-term relationship with the Petitioner grandfather and married him after
he filed a petition for guardianship. While the initial petition was filed by the Petitioner
grandfather, it was later amended to also include the Petitioner grandmother. Consequently,
we refer to the grandparents collectively as the Petitioners throughout the opinion.
       3
        The petition for guardianship did not expressly indicate whether temporary or
permanent guardianship was being sought. The initial petition, prior to adding the Petitioner
grandmother, simply sought to have the Petitioner grandfather be granted legal guardianship
of the infant child.
       4
        The child remains in the legal and physical custody of the Petitioners. By order
entered March 12, 2014, the final ordered entered February 27, 2014, was stayed pending
appeal, and the parties were instructed to follow the Agreed Temporary Order regarding
custody and visitation.

                                              1

father, J.R. (hereinafter also referred to as “the Respondent father”), the child’s biological

father, without requiring clear and convincing evidence of the Respondent father’s fitness

as a parent; 3) by ignoring the opinions of the Petitioners’ expert witness, Dr. Amelia

Santiago, the child’s treating physician; and 4) by ignoring the Petitioners’ clear and

convincing evidence that a change of custody of the child would constitute a significant

detriment to the child.5 Upon review of the parties’ briefs6 and oral arguments, the appendix

record and all other matters submitted before this Court, we find that the circuit court erred

in failing to apply the standard enunciated by this Court in Overfield v. Collins, 199 W. Va.

27, 483 S.E.2d 27 (1996). We therefore reverse the circuit court’s decision and remand the

case for further proceedings consistent with this opinion.



                                        I. FACTS

              B.B. and the Respondent father were in a relationship. They had a child, F.R.,


       5
        Despite the assigned errors, the Petitioners’ main argument centers upon the circuit
court returning the child to the Respondent father’s custody without requiring the Respondent
father to prove that he was a fit parent. It is this error that we find warrants reversal and
remand by this Court.
       6
         The summary response filed by the guardian ad litem indicates that “upon
information and belief, the [Respondent] father . . . has obtained employment in the northern
part of the state and only comes home on the weekends.” There were also concerns about
the lack of child-proofing in the home, the instability of people living in the home, the
number of animals the father has and the fact that the father only has a motorcycle for
transportation. He also has made no concrete arrangements for child care and, according to
status updates, there is a continued concern about his smoking around his daughter because
of her asthma.

                                              2

who is now three years old. B.B. died in a single vehicle accident on July 12, 2012.



According to the undisputed testimony of the Petitioner grandfather at the guardianship

hearing, B.B. and F.R. resided with the Petitioners from the time F.R. was three months old

until about a month before B.B.’s death,7 when she and F.R. moved in with B.B.’s mother.8



                Following B.B.’s death, the Petitioner grandfather filed a petition for

guardianship on July 24, 2012, which the Respondent father answered.9 On October 1,

2012, the parties entered into an Agreed Temporary Order, wherein they agreed that the

Petitioner grandfather was the “Temporary Guardian of the infant,” F.R. The Respondent

father also agreed to temporary weekend visitation and a guardian ad litem was appointed

for the child. The language of the order provides that “the parties had reached a temporary

parenting agreement until a Final Evidentiary Hearing could be held by the Court.”




       7
        The circuit court found in its February 27, 2014, order that B.B. and the Respondent
father shared custodial responsibility over F.R. until B.B. died; however, the evidence in the
appendix record fails to support this finding.
       8
       B.B. lived with her mother while she was looking for employment and the Petitioner
grandfather stated that during the month, she and F.R. went back and forth between B.B.’s
mother’s home and his home.
       9
           See supra note two.

                                              3
              The evidentiary hearing10 referred to in the Agreed Temporary Order did not

occur until over a year later on December 18, 2013.11 According to Rebecca Marcum with

Child Protective Services (“CPS”), who testified at the hearing, as a result of the

guardianship petition being filed, CPS received an order from the court12 “to open up a case

and do a family function assessment” on the Respondent father. Ms. Marcum testified that

they were able to substantiate domestic violence between the Respondent father and B.B.



              The first instance of domestic violence occurred on February 24, 2011, five

months before F.R.’s birth. Ms. Marcum testified that the Respondent father admitted that

he stopped B.B.’s car and “took her keys and her cell phone and was hitting her and she filed

an EPO [or Emergency Protective Order] and stated that she feared for her life and F[.R.]’s

life.”



              About a month later, in March of 2011, there was another domestic violence

incident. Ms. Marcum testified that the Respondent father admitted to hitting B.B. after the


         10
        The Honorable John L. Cummings, a senior status judge, was appointed by the West
Virginia Supreme Court to hear cases in Mingo County at the time of the evidentiary hearing.
         11
        There is no explanation in the record for why the evidentiary hearing referenced in
the Agreed Temporary Order did not occur until over a year after the order was entered.
         12
         It is unclear from the appendix record why then-Judge Michael Thornsbury ordered
CPS to open a case in this matter. It may have been due to the allegation in the petition for
guardianship that the Respondent “was arrested for Domestic Battery and Child Neglect
creating risk of injury . . . .”

                                             4

Respondent father became mad when B.B. laughed at him after he accused her of stealing

items from him. The Respondent father told Ms. Marcum that he did not know that B.B. was

pregnant at the time he hit her.



               Ms. Marcum was also prepared to testify regarding an August 31, 2011,

incident of domestic violence between the Respondent father and B.B. It was during Ms.

Marcum’s testimony, however, that the circuit court, sua sponte, questioned the relevancy

of the testimony, stating that the court didn’t “think it [wa]s relevant to the issue . . . [of] the

guardianship between” the Respondent father and the Petitioners.                The circuit court

questioned “the relevance of what occurred in regard to any form of domestic violence after

the death of B[.B.] on . . . July 12, 2012.” The circuit court again stated: “If B[.B.] was still

alive and if this were a domestic case, this would be very relevant; however, after her death

that cause, in effect, ceases with her death. I’m going to sustain the objection as to

relevance.”



               Despite the circuit court instructing the Petitioners’ counsel not to go any

further into the domestic violence incidents because “they do not count as far as the

relevance,” the circuit court did allow a proffer of what the testimony would be concerning

the August 31, 2011, incident. The Petitioners’ counsel then proffered that the evidence

would establish that the Respondent father admitted to shooting a BB into a car when B.B.



                                                 5

and the child were inside the car. The circuit court also allowed the Petitioner grandfather

to testify about the incident involving the BB gun. The Petitioner grandfather testified that

he observed his daughter’s car after the incident and took photographs of the car. The

Petitioner grandfather also testified that his grandchild was inside the vehicle at the time of

the incident. The Respondent father testified and admitted that he told Ms. Marcum that he

shot at B.B.’s car. He, however, denied knowing that the child was in car. The Respondent

father testified that the child was not in the car at the time he shot the BB gun at the vehicle.



                  There was also evidence of an incident involving domestic violence that

occurred on April 5, 2012.13 Deputy Barry Moore with the Mingo County Sheriff’s

Department testified that he investigated an incident in which the Respondent father struck

B.B. with a flashlight and then followed her car in a threatening and erratic fashion while

F.R., who was then nine months old, was in the car. The Respondent father was charged

with domestic battery and child neglect creating a risk of injury. The Respondent father

served time for domestic battery, but the child neglect charge was dismissed as part of a plea

deal.



                  In addition to the domestic violence incidents, Ms. Marcum also testified

regarding a home visit to the Respondent father’s house in which she found the Respondent


        13
             There was no objection raised regarding relevancy concerning this event.

                                                6

father’s mother, a caregiver of the child on occasion,14under the influence of oxycodone. Ms.

Marcum testified that when she went to the Respondent father’s mother’s job to interview

her, his mother also appeared to be under the influence while at work. Drug testing was

conducted on the Respondent father’s mother and she tested positive for oxycodone. She

subsequently quit participating in random drug testing. Additionally, Ms. Marcum testified

that the Respondent father’s mother’s husband was uncooperative and was aggressive at

times. He refused to undergo any random drug testing. The Respondent father agreed that

neither of these individuals would be appropriate care givers for the child.15



                    Ms. Marcum testified to the following report made as a result of her

investigation:

                    “There is history of severe domestic violence between J[.R.] and
                    B[.B.] However, B[.B.] is now deceased and J[.R.] is not in
                    another relationship for worker to be able to evaluate him
                    presently. J[.R.] was exposed to domestic violence from an
                    early age. Worker substantiated emotional abuse due to
                    domestic violence in the presence of the child. Worker feels
                    that J[.R.] lacks impulse control and does not think before he
                    acts. J[.R.] has a history of not protecting his child and placing


          14
               The Respondent father’s mother did not live in the same home with the Respondent
father.
          15
         There was also testimony that the Respondent father shared his home with an ailing
grandmother and a brother, who was affected by a severe traumatic brain injury. During oral
argument it was disclosed that the Respondent father’s grandmother had passed away.
Moreover, Ms. Marcum testified that the ailing brother would not be an appropriate caregiver
for the child.


                                                    7

                    her in dangerous situations by exposing her to domestic violence
                    when his anger becomes out of control.”

                    Despite this report, Ms. Marcum also testified on cross-examination when

asked if the Respondent father was an appropriate caregiver: “He was very compliant. He

cooperated, he completed parenting, he completed adult life skills, he completed anger

management. We can’t say that he’s not an appropriate care giver.” She further testified

that “[h]ypothetically, if a parent cooperates and they complete their services and they show

a change, then, yes, we recommend reunification.”16



                    Finally, Ms. Marcum testified that she found that the Petitioners were

appropriate guardians for F.R. She further testified that the child had bonded with the

Petitioner grandmother and calls her “mommy.”



                    The Respondent father testified and admitted to engaging in domestic violence

with B.B. and that it continued after F.R.’s birth. The Respondent father also testified that

on August 9, 2013, during a scheduled visitation, he was arrested for driving a motorcycle

sixty miles an hour in a forty-five mile an hour zone. During this episode, his daughter was

in the care and custody of his mother. He testified that he did not know that his mother was

taking oxycodone, but also acknowledged that his mother was not a “primary caregiver for


          16
               Ms. Marcum testified that she had become Facebook friends with the Respondent
father.

                                                   8

my daughter.” Further, the Respondent father agreed that his stepfather, grandmother and

brother were not appropriate caregivers for the child. The Respondent father acknowledged

that F.R. was very close to the Petitioners. He also testified that if he had custody of his

daughter he would not eliminate the relationship F.R. had with the Petitioners.



              Lastly, there was significant testimony from F.R.’s board certified pediatrician,

Amelia J. Santiago, concerning the child’s asthma. Dr. Santiago testified that F.R. was

diagnosed with asthma on December 19, 2012. The doctor stated that she had seen the child

several times before and after the diagnosis. Dr. Santiago stated that the child’s asthma could

be exacerbated by secondhand smoke from cigarettes. This testimony was relevant because

both the Respondent father and his grandmother were cigarette smokers. Dr. Santiago

testified that she believed that the child had reoccurring exacerbation of asthma due to

exposure to smoke. Specifically, Dr. Santiago testified:

              It has been accepted for quite awhile now that second hand
              smoke or passive smoking is bad for children because it impairs
              their ability to fight and move the mucous in their lungs, so we
              have always for more than twenty years we have recommended
              that children with their small lung capacity not be exposed to
              any cigarette smoke . . . . This has been accepted in the medical
              community . . . .

Dr. Santiago was challenged on cross-examination concerning her lack of “any actual

physical, scientific or first hand knowledge that th[e] child was ever exposed to second hand

smoke[.]” The doctor acknowledged that she had not witnessed the child being exposed to



                                              9

secondhand smoke; however, the Petitioners had informed her that the child was being

exposed to cigarette smoke during the child’s visits with the Respondent father.

              Regarding F.R.’s asthma and her doctor’s testimony that she should not be

around secondhand smoke, the Respondent father admitted to smoking, but said he did so

only on the front porch. He said he typically smokes about a half-pack of cigarettes when

his daughter is with him. He also testified that on at least one occasion he took the child

outside with him when he smoked, stating “[i]t’s an open porch. The wind blows thr[ough].”



              On February 27, 2014, almost three months after the evidentiary hearing

concluded, the circuit court entered its final order denying the petition for guardianship.

Specifically, the circuit court, in reaching its decision, found the following standard

enunciated in the syllabus of Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960),

to be applicable and controlling:

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

The circuit court then found that the Agreed Temporary Order, which named the Petitioner

grandfather as F.R.’s guardian “dissolved by its own language on December 18, 2013, at the

commencement of the First Evidentiary Hearing[]” and that there was “no grant of temporary



                                              10

custody . . . in place at the time of the Final Evidentiary Hearing.” The circuit court again,

“[a]pplying Whiteman” found that “the [R]espondent [father] has not ‘waived such right [to

custody of his child], or by agreement or otherwise has transferred, relinquished or

surrendered such custody . . . ,’ of his child to anyone.”



              The circuit court further found, regarding the child’s asthma, that “Dr. Santiago

opined that the asthma was caused and exacerbated by the inhalation of second-hand smoke.”

The circuit court, however, also found that because the doctor “did not have the foundational

knowledge to know what either caused the asthma or exacerbated it[,]”and that because the

child also suffered “asthma exacerbation” when in the care of the Petitioners, who did not

smoke, these facts “tended to show how attenuated the connection between the second-hand

smoke and the asthma exacerbation is.”17 The circuit court also made a specific finding that

“the Respondent father, when smoking, does so in an open area where the child could only

have minimal exposure.”



              The circuit court additionally found it had heard testimony from three witnesses


       17
         According to the appendix record, Dr. Santiago is a licensed, board certified
pediatrician, who practiced in the Mingo County area for more than thirty years. She was
certainly qualified to give her medical opinion concerning the child’s asthma being
aggravated by secondhand smoke. Moreover, contrary to the circuit court’s finding that the
doctor testified that the child’s asthma was caused by secondhand smoking, the record shows
that Dr. Santiago never testified to that and, accordingly, this factual finding by the circuit
court is erroneous.

                                              11

about

              three18 instances of domestic violence between the Respondent
              father and his former wife.19 The first incident resulted in an
              Emergency Protective Order being entered against the
              Respondent [father] in Wyoming County, West Virginia[,] on
              February 24, 2011 (Case Number 11-D-49). The next incident
              resulted in an Emergency Protective Order being entered against
              the Respondent [father] in Wyoming County, West Virginia[,]
              on September 3, 2011 (Case Number 11-D-263). The last
              incident resulted in the Respondent [father] pleading guilty to a
              Domestic Battery charge in Mingo County, West Virginia[,]
              with dismissal of the felony child neglect creating a risk of
              injury (Case Number 12-M-484 and 12-F-151).

(Footnote added). Regarding the foregoing finding, the circuit court, however, failed to

include its determination during the evidentiary hearing that it found the evidence irrelevant.

As the circuit court ruled during the hearing, “if B[.B.]was still alive and if this were a

domestic case, this would be very relevant; however, after her death that cause, in effect,

ceases with her death.” Notwithstanding its determination that the evidence of domestic

violence was irrelevant, the circuit court found that “[h]owever applying the Whiteman

standard,” that “the Respondent [father] is not ‘an unfit person because of misconduct,

neglect, immorality, abandonment, or other dereliction of duty,’ despite the three incidents

[of domestic violence].”



        18
         Notwithstanding evidence of four instances of domestic violence, the circuit court
only referenced and discussed three having determined that the incident involving a BB gun
was not relevant.
        19
        The circuit court erroneously found that the Respondent father and B.B. had been
married. There was no evidence to support this finding.

                                              12

                The circuit court then found that the Petitioners had “failed to prove by clear

and convincing evidence” that their appointment as guardians was in the child’s best interest.

The court also based its decision on its determination that none of the five circumstances

listed in West Virginia Code § 44-10-3(f)(1-5) (2014) (providing for appointment and

termination of guardian for minor) to establish guardianship had been met and, therefore,

the Petitioners failed to meet their burden under the statute and case law.



                                   II. Standard of Review

                In syllabus point two of In re Antonia R.A., 228 W. Va. 380, 719 S.E.2d 850

(2011), this Court applied the following standard of review to a case involving a petition for

guardianship:

                        “‘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).

Further, “‘[w]here the issue on an appeal from the circuit court is clearly a question of law

or involving an interpretation of a statute, we apply a de novo standard of review.’ Syllabus



                                               13

point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).” In re

Abbigail Faye B., 222 W. Va. at 469, 665 S.E.2d at 303, Syl. Pt. 2.



              Applying the above-mentioned standards, we examine the issues before us.



                                   III. Discussion of Law

              The issue upon which this case turns is whether the circuit court erred in

ordering transfer of the custody of the child to the Respondent father, the child’s biological

father, without requiring clear and convincing evidence of his fitness as a parent. The

Petitioners argue that the circuit court incorrectly placed the burden of proof upon the

Petitioners to prove that the Respondent father was unfit to parent the child. Instead, the

Petitioners assert that because the Respondent father had transferred custody of the child to

the Petitioners, the law requires him to prove by clear and convincing evidence that he is a

fit parent. See Overfield, 199 W. Va. at 29, 483 S.E.2d at 29, Syl. Pt. 2. Further, the

Petitioners contend that due to the instances of domestic violence, as well as other evidence

introduced during the evidentiary hearing, the Respondent father failed to establish his fitness

as a parent by clear and convincing evidence. In contrast, the Respondent father asserts that

the circuit court correctly determined that he was a fit parent.



              Generally, one seeking the appointment as a guardian for a minor child carries



                                              14

the burden of proof as set forth in West Virginia Code § 44-10-3:

                      (f) The court may appoint a guardian for a minor if the
              court finds by clear and convincing evidence that the
              appointment is in the minor’s best interest and:
              (1) The parents consent;
              (2) The parents’ rights have been previously terminated;
              (3) The parents are unwilling or unable to exercise their parental
              rights;
              (4) The parents have abandoned their rights by a material failure
              to exercise them for a period of more than six months; or
              (5) There are extraordinary circumstances that would, in all
              reasonable likelihood, result in serious detriment to the child if
              the petition is denied.
                      (g) Whether or not one or more of the conditions of
              subsection (f) have been established, the court may appoint a
              temporary guardian for a minor upon a showing that an
              immediate need exists or that a period of transition into the
              custody of a parent is needed so long as the appointment is in
              the best interest of the minor. . . .

                     ....

                     (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.

Id. (emphasis added).



              In Whiteman, a biological father filed a petition for habeas corpus in the circuit

court to regain custody of his three-and-one-half year old daughter from the child’s maternal




                                              15

uncle and his wife.20 145 W. Va. at 686, 116 S.E.2d at 692. The child’s mother, who was

married to the father, suffered from a mental disability. The mother and father were from

West Virginia, but were residing in Seattle, Washington. The child’s mother disappeared and

was subsequently found dead. During the interval between the mother’s disappearance and

the discovery of her body some twenty days later, the father communicated with members

of their family in West Virginia concerning his wife’s absence and his situation of caring for

four young children. His wife’s brother, the children’s uncle, went to Seattle to assist the

father with bringing the children to West Virginia. Each child was placed with members of

the father’s family on a temporary basis. The youngest was placed with the maternal uncle.

Id. at 687, 116 S.E.2d at 692. There was no written agreement between the parties

transferring custody of the child from the father to the uncle. Instead, it was understood by

both the father and the uncle that the placement of the youngest child with the uncle was of

a temporary nature, not to exceed six months after the father’s remarriage,21 but could end

sooner if the father wanted custody back. Id. at 687-88, 116 S.E.2d at 693. When the father

sought to regain custody of his child, the uncle refused. The uncle believed that it was in the

child’s best interest to remain with him and his wife permanently. Id. at 689-90, 116 S.E.2d

at 694.



          20
               The couple had four children, but only the youngest was the subject of the habeas
petition.
          21
        The father did remarry within a short period of time after the mother’s death. 145
W. Va. at 688, 116 S.E.2d at 693.

                                                  16

              Despite finding that both the father and the uncle were suitable persons to have

care and custody of the child, the circuit court refused to award custody of the child to the

child’s father, because the father had failed to prove that “a change of custody from the

defendants [the uncle and his wife] to the petitioner [the father] would promote the welfare

of the child.” Id. at 686, 112 S.E.2d at 692.



              On appeal, this Court reversed the circuit court’s decision and ordered that the

custody of the child be returned to the father. Id. at 696, 116 S.E.2d at 697. The Court found

that the father

              has never, by agreement or otherwise, transferred, relinquished
              or surrendered the custody of his child to the defendants but
              instead has in effect merely permitted them to have the
              temporary possession of the child subject to the right of the
              petitioner [the father] to terminate such possession at any time
              or, in any event, at the expiration of six months after the
              petitioner should remarry.

Id. at 695, 116 S.E.2d at 697. Thus, the father had “the natural right to the custody” of his

child as there were no allegations that he was an unfit person and he had not transferred

custody of the child to the uncle. 145 W. Va. at 685, 116 S.E.2d at 691-92, Syllabus.



              Years later in Overfield, this Court was presented with a biological mother

suing her parents to regain custody of her two children. 199 W. Va. at 31, 483 S.E.2d at 31.

The mother, by affidavit, granted custody of the children to their maternal grandparents, after



                                                17

the mother had suffered a traumatic injury. The mother maintained that she had only given

her parents temporary custody of the children, while the grandparents argued that the

intention was to permanently transfer custody of the two children to them. Id.



                Seven days after the affidavit was executed by the parties, the grandparents

filed an action seeking an order granting them permanent custody of the children. The circuit

court entered the requested order granting the grandparents permanent custody. Id. at 32, 483

S.E.2d at 32.



                Over a year later, when the mother’s health had improved, she filed a petition

to regain custody of her children. The circuit court denied the petition, finding that because

the mother had transferred permanent custody of the children to the grandparents it was

incumbent upon her to show that a return of custody would be in the children’s best interests.

The circuit court found that the mother failed to meet her burden. Id.



                On appeal, this Court reversed the lower court’s decision and remanded the

case for further proceedings. Relevant to the instant matter, the Court held in syllabus point

two of Overfield that when either temporary or permanent custody is transferred by a parent

to a third party, the burden of proof to regain custody of the child is on the parent as follows:

                       When a natural parent transfers temporary custody of
                their child to a third person and thereafter seeks to regain

                                               18

               custody of that child, the burden of proof shall be upon that
               parent to prove by clear and convincing evidence that he or she
               is fit; thereafter the burden of proof shall shift to the third party
               to prove by clear and convincing evidence that the child’s
               environment should not be disturbed because to do so would
               constitute a significant detriment to the child notwithstanding
               the natural parent’s assertion of a legal right to the child.

Id. at 30, 483 S.E.2d at 30, Syl. Pt. 2, in part.



               In the instant case, the Agreed Temporary Order named the Petitioner

grandfather “Temporary Guardian” of F.R. and allowed the Respondent father to have

“temporary weekend visitation” with the child “until a Final Evidentiary Hearing could be

held by the Court.” The circuit court found that the temporary order “dissolved by its own

language on December 18, 2013, at the commencement of the Final Evidentiary Hearing.”

The circuit court then found that the standard set forth in Whitefield was the applicable

standard to be used in the case and “the Overfield v. Collins standard . . . [was] inapplicable

in the case at bar because no grant of temporary custody was in place at the time of the Final

Evidentiary Hearing.” Consequently, the circuit court placed the burden of proof upon the

Petitioners to establish by clear and convincing evidence that the Respondent father was an

unfit parent. The court, based upon its assessment of the evidence, found that the Petitioners

failed to satisfy their burden.



               In examining the instant matter, we find that the circuit court erred in its



                                                19

application of Whiteman, rather than Overfield, to reach its decision. Essentially, the circuit

court ignored the transfer of custody of the minor child from the Respondent father to the

Petitioners, which is unequivocally evinced in the Agreed Temporary Order entered into

between the parties. Consequently, the facts do not support the circuit court’s finding that

no temporary transfer of custody was in place at the time of the final evidentiary hearing.

Moreover, it is simply illogical and ill-advised for the circuit court to have found that the

temporary order “dissolved by its own language on December 18, 2013, at the

commencement of the Final Evidentiary Hearing.” To make such a determination effectively

meant that the child went without any guardian in place from December 18, 2013, until the

final order was entered on February 27, 2014. Moreover, the purpose of having a final

evidentiary hearing was to determine whether the Petitioners should be made the permanent

guardians of the child or whether the temporary guardianship should be terminated. That

determination could not be made until the hearing was complete and the circuit court entered

an order. “A court of record speaks only through its orders. . . .” State ex rel. Erlewine v.

Thompson, 156 W. Va. 714, 718, 207 S.E.2d 105, 107 (1973). Thus, the circuit court’s

imposition of the wrong burden of proof necessarily was predicated upon an erroneous ruling

that no temporary transfer of custody had occurred.



              Consequently, pursuant to the law enunciated by the Court in Overfield,

because there was a temporary transfer of custody, the Respondent father carried the burden



                                              20

of proving by clear and convincing evidence that he was a fit parent. 199 W. Va. at 30, 483

S.E.2d at 30, Syl. Pt. 2. After that burden was met, then the burden of proof would shift to

the Petitioners “to prove by clear and convincing evidence that the child’s environment

should not be disturbed because to do so would constitute a significant detriment to the child

notwithstanding the natural parent’s assertion of a legal right to the child.” Id. Because the

circuit court’s decision in this case was based upon a misapplication of the burden of proof,

which stemmed from the court’s incorrect finding that a temporary transfer of custody did

not occur in this case, we must reverse the decision in this case and remand for further

proceedings.



               We also find that the circuit court erred in determining that incidents of

domestic violence between the Respondent father and the child’s deceased mother were not

relevant to its determination of the Respondent father’s parental fitness.           We have

consistently found that evidence of domestic violence is relevant to the determination of

whether a parent is fit. See Syl. Pt. 1, Henry v. Johnson, 192 W. Va. 82, 86, 450 S.E.2d 779,

783 (1994) (holding that “[c]hildren are often physically assaulted or witness violence against

one of their parents and may suffer deep and lasting emotional harm from victimization and

from exposure to family violence; consequently, a family law [judge] should take domestic

violence into account when making an award of temporary custody[,]” based upon a

recognition that “[i]t is clear that where domestic violence is present it should be considered



                                              21

when determining parental fitness.”); Nancy Viola R. v. Randolph W., 177 W. Va. 710, 714,

356 S.E.2d 464, 468 (1987) (“We have recognized that spousal abuse is a factor to be

considered in determining parental fitness for child custody.”); Collins v. Collins, 171 W. Va.

126, 127, 297 S.E.2d 901, 902 (1982) (upholding trial court’s decision to grant permanent

custody of child to paternal grandparents based, in part, on the trial court’s finding that the

child’s mother had “demonstrated [a] tendency to be violent as evidenced by her willingness

to threaten with and to actually shoot a deadly weapon at human beings when she was upset,

but not in any way threatened.”).



               In Nancy Viola R., a maternal aunt sought custody of her nephew after her

nephew’s father was indicted for first degree murder of the child’s mother. Throughout the

marriage of the child’s parents, the mother had been a victim of repeated acts of violence and

abuse by her husband. Prior to the mother’s death, she and the child had been separated from

the father for four months. 177 W. Va. at 712, 356 S.E.2d at 466. After the mother’s death,

the child resided with his maternal aunt. During the custody proceeding, the trial court found

the father of the child to be fit and that the father, as a fit parent, could designate the child’s

guardian. The father designated the child’s paternal uncle. Id. at 711-12, 356 S.E.2d at 465­

66. The father thereafter plead guilty to first degree murder of his wife. The maternal aunt

sought reconsideration of the order granting guardianship to the child’s paternal uncle. Id.

at 712, 356 S.E.2d at 466. When the trial court denied the maternal aunt’s motion, she



                                                22

appealed.



                 The issue before the Court on appeal in Nancy Viola R. was whether the father

was a fit parent. Id. In resolving that issue, we noted that the father’s abuse of his wife was

“an important consideration” in the case and similarly “[o]ther courts also regard spousal

abuse as an important consideration in child custody cases.” Id. at 714, 356 S.E.2d at 468

(citing In re Marriage of Cline, 433 N.E.2d 51, 54 (Ind.Ct.App.1982); In re Marriage of

Ballinger, 222 N.W.2d 738, 739 (Iowa 1974); Hosey v. Myers, 240 So.2d 252, 253

(Miss.1970); Schiele v. Sager, 571 P.2d 1142, 1146 (Mont. 1977)). We followed the

reasoning of the Supreme Court of Iowa in In re Marriage of Snyder, 241 N.W.2d 733 (Iowa

1976), that “assaults of a spouse reveal violent tendencies which may render a parent unfit

for custody of his or her child.” 177 W. Va. at 714, 356 S.E.2d at 468. We further noted

from the Snyder case that even though there was no evidence that the father had ever abused

his child, “the father’s ‘meanness, aggressiveness, and tendency to[ward] violence expose[d]

[the child] to more danger’” than any of the mother’s transgressions. Id. at 714, 356 S.E.2d

at 468 (quoting, in part, Snyder, 241 N.W.2d at 474). We then found, in Nancy Viola R., that

the circuit court erred in finding that the father was a fit parent based not only on the father’s

first degree murder conviction of the child’s mother, but also on “other acts of violence

toward . . . [the mother] and threats of violence to the child . . . .”22 Id. at 716, 356 S.E.2d


       22
            The child was committed to the “permanent guardianship of the West Virginia
                                                                          (continued...)

                                               23

at 470; see generally Guardianship of Simpson, 79 Cal.Rptr.2d 389, 404 (Cal. Ct. App. 1998)

(“Domestic violence is always a serious concern, and any propensity to it is highly relevant

as regards children’s welfare.”).



              In the instant case, the burden was on the father to show by clear and

convincing evidence that he was a fit parent. Overfield, 199 W. Va. at 30, 483 S.E.2d at 30,

Syl. Pt. 2, in part. As previously stated, we have been unwavering in emphasizing the

importance that evidence of domestic violence plays in determinations of whether a parent

is fit. See Nancy Viola R, 177 W. Va. at 714, 356 S.E.2d at 468. Whether the individual

who was the victim of domestic violence is deceased is not the focus of the inquiry, rather

the focus is on the individual who demonstrated the violent tendencies in the first instance.



              Because the circuit court applied the holding in Whiteman, rather than

Overfield, and because the circuit court found the evidence of domestic violence not relevant

at the evidentiary hearing that was conducted, we find it is necessary to remand this case.

Upon remand, the trial court should consider the petition for guardianship under the

applicable law set forth in Overfield. Further, the evidence of domestic violence is relevant

to the determination of whether the Respondent father is a fit parent.



       22
        (...continued)
Department of Human Services” with temporary custody given to Nancy R. 177 W. Va. at
716, 356 S.E.2d at 470.

                                             24

                                      IV. Conclusion

              Based upon the foregoing, the decision of the circuit court is reversed and this

case is remanded for further consideration consistent with this opinion.



                                                                    Reversed and remanded.




                                             25

