                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Heather B., Petitioner                                                           FILED
                                                                               November 26, 2013
                                                                            RORY L. PERRY II, CLERK
vs) No. 12-1540 (Randolph County 12-D-184)                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

Hon. Michele W. Good, Family Court Judge,
and Pamela B., Real Party in Interest,
Respondents


                                 MEMORANDUM DECISION

        Petitioner Heather B.’s appeal, by counsel James Wilson Douglas, arises from the Circuit
Court of Randolph County’s November 28, 2012 order denying her petition for writ of
prohibition.1 Respondent Pamela B., by counsel David H. Wilmoth, filed a response. On appeal,
petitioner alleges that the circuit court erred in denying her petition for writ of prohibition.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         In June of 2009, the Family Court of Randolph County issued a divorce decree in regard
to petitioner and her husband, Joshua S. that was entered in September of 2009. At the time of the
issuance of the divorce decree, petitioner was pregnant and later gave birth to A.B. on July 1,
2009. Following paternity testing, an order was entered naming Joshua S. as A.B.’s father. In
December of 2009, Joshua S. executed a “Parental Consent For Adoption” and expressly
permitted the termination of his parental rights to A.B. so that A.B.’s paternal grandmother,
Respondent Pamela B., could adopt the child. After appointing a guardian ad litem to represent
A.B. and reviewing the guardian’s opinion as to the potential adoption, the Circuit Court of
Randolph County granted the petition for adoption and awarded Pamela B. parental status to A.B.
in place of the biological father by order entered on March 28, 2011. Thereafter, petitioner and the
child resided with Respondent Pamela B.

       On July 6, 2012, Respondent Pamela B. filed a petition for temporary and permanent
parenting plans and an allocation of custodial responsibility in the Family Court of Randolph

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          In keeping with this Court’s policy of protecting the identity of minor children, the
parties to this action will be referred to by their last initial and the child by its initials only
throughout the memorandum decision.
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County. Petitioner thereafter filed a special appearance reply based upon her assertion that the
Family Court of Randolph County lacked jurisdiction over the matter because of her relocation to
Harrison County with the child. On September 25, 2012, the family court conducted a hearing
with respect to venue and the jurisdictional defenses raised in the reply, ultimately finding that the
Family Court of Randolph County had jurisdiction and that Randolph County was the proper
venue to hear the petition. This was based, in part, upon the family court’s finding that the prior
determination of paternity to A.B. in that court vested the Family Court of Randolph County with
continuing jurisdiction for all custody matters involving the child. The family court entered an
order memorializing these findings on October 29, 2012. On November 16, 2012, petitioner filed
a petition for writ of prohibition in the Circuit Court of Randolph County in an attempt to prevent
further proceedings in the family court. However, by order entered on November 28, 2012, the
circuit court denied the petition. It is from this order that petitioner appeals.

       “‘The standard of appellate review of a circuit court’s refusal to grant relief through an
extraordinary writ of prohibition is de novo.’ Syl. pt. 1, State ex rel. Callahan v. Santucci, 210
W.Va. 483, 557 S.E.2d 890 (2001).” Syl. Pt. 1, Phillips v. W.Va. Div. of Motor Vehicles, 226
W.Va. 645, 704 S.E.2d 645 (2010). Petitioner alleges error in the denial of her petition for writ of
prohibition because she argues that Randolph County was not the proper venue for respondent’s
family court petition seeking custodial allocation. Upon our review, we find no error in the denial
of the petition for writ of prohibition because Randolph County was an appropriate venue for
respondent’s petition, especially in light of the child’s best interests.

         Petitioner argues that West Virginia Code § 56-1-1(a)(1) requires venue be in Harrison
County, where she alleges that both she and the child now reside. However, as we recently noted
in Brook B. v. Ray C., 230 W.Va. 355, - -, 738 S.E.2d 21, 30 (2013), “circumstances [can] arise
where a minor [has] more than one residence.” Further, in discussing our minor guardianship
statute, we held that “the minor’s residency alone . . . controls, and not the residency of any other
person such as a parent, guardian, or other person with custody or control of the minor. A
determination of the minor’s residency is typically a question of fact.” Id. at - -, 738 S.E.2d at 31.
Respondent herein filed her “Petition For Temporary And Permanent Parenting Plan And
Allocation of Custodial Responsibility” after petitioner unilaterally removed the child, whom she
shared custody of, from the home wherein all the parties resided in Randolph County. As such, it
is clear that factual questions surrounded the child’s residency.

        Based upon these facts, the Court finds that the Family Court of Randolph County is an
appropriate venue for respondent’s petition, especially in light of the court’s familiarity with the
child’s convoluted history regarding custody. We have previously held that

       “[t]he controlling principle . . . is the welfare of the child and . . . in a contest
       involving the custody of an infant the welfare of the child is the polar stay by
       which the discretion of the court will be guided.” State ex rel. Kiger v. Hancock,
       153 W.Va. 404, 405, 168 S.E.2d 798, 799 (1969).

In re Antonio R.A., 228 W.Va. 380, 388, 719 S.E.2d 850, 858 (2011). As outlined above, the
Family Court of Randolph County has been intimately familiar with the child in question since

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before she was born, having made a paternity determination and handled the transfer of custody to
respondent when the child was an infant. For these reasons, we find that the Family Court of
Randolph County was in the best position to hear respondent’s petition, and we find no error in
the circuit court’s denial of petitioner’s petition for a writ of prohibition.

        For the foregoing reasons, the circuit court’s November 28, 2012 order denying
petitioner’s petition for writ of prohibition is hereby affirmed.


                                                                                       Affirmed.

ISSUED: November 26, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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