         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                               September 2019 Term
                                _______________
                                                                     FILED
                                   No. 18-1077                  November 20, 2019
                                 _______________                       released at 3:00 p.m.
                                                                   EDYTHE NASH GAISER, CLERK
                                                                   SUPREME COURT OF APPEALS
                                                                        OF WEST VIRGINIA

                                  HEATHER M.,
                             Plaintiff Below, Petitioner

                                         v.

                                  RICHARD R.,
                           Defendant Below, Respondent

      ____________________________________________________________

                 Appeal from the Circuit Court of Kanawha County
                        The Honorable Charles E. King, Jr.
                               Case No. 18-D-563

            REVERSED AND REMANDED WITH INSTRUCTIONS
      ____________________________________________________________

                           Submitted: November 6, 2019
                            Filed: November 20, 2019

     Maureen Conley, Esq.                        Respondent Richard R.
     Legal Aid of West Virginia                  Pro se
     Charleston, West Virginia
     Counsel for Petitioner Heather M.



CHIEF JUSTICE WALKER delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT

              1.     “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).




                                             i
WALKER, Chief Justice:

              Heather M.1 and Richard R. lived together with their two shared biological

children, A.R. and E.R. Eventually, Heather accused Richard of verbally and physically

abusing her and the children, the two separated, and she petitioned the Family Court of

Kanawha County for allocation of custodial responsibility. During two different hearings,

the family court refused Heather’s efforts — first on a pro se basis and later by counsel —

to present evidence of Richard’s alleged abuse. The family court rejected Heather’s request

for Richard’s custodial time to be supervised and also allocated the income tax exemptions

for the dependent children solely to Richard, with the option for Heather to claim one

exemption in future years if she first obtained employment. After the circuit court denied

her appeal, Heather sought relief in this Court. Richard did not file a response.



              Because we find that the family court abused its discretion by refusing to

permit Heather to present evidence relating to alleged abuse by Richard, we reverse the

family court’s order and remand with instructions to hear such evidence and determine

whether, under Rule 48 of the Rules of Practice and Procedure for Family Court, this case

should be referred to circuit court for abuse and neglect proceedings. And, we reverse the

family court’s order regarding the income tax exemption and remand with instructions that




       1
         Consistent with our practice in cases involving sensitive facts, we identify the
parties by initials only. See In re Jeffrey R.L., 190 W. Va. 24, 26 n.1, 435 S.E.2d 162, 164
n.1 (1993).

                                             1
the family court award the exemption for both children to Heather unless any of the

exceptions in West Virginia Code § 48-13-801 are satisfied.




                I. FACTUAL AND PROCEDURAL BACKGROUND

              Heather and Richard lived together with two shared biological children, A.R.

and E.R, but were never married. In May 2018, before the parties ended their relationship,

Heather petitioned the Family Court of Kanawha County for allocation of custody of the

two children. In the proposed parenting plan, Heather sought to limit Richard’s custodial

time with the children, stating, “I do not want my girls to be left alone with Richard because

he has been verbal [sic] and physically abusive. He has screamed and hit both girls. My

oldest is scared of him and my youngest is sometimes.” In this first petition, Heather failed

to indicate whether she requested supervised visitation of Richard’s time with the children.2



              At the time Heather filed her petition for custody allocation, she and Richard

still resided in the same home. By the time of the temporary custody hearing on June 25,

2018, Richard had been out of the home for three weeks. As the parties, who appeared pro

se, explained during the hearing,3 Heather initially asked Richard to return to their joint



       2
        Heather later filed an amended petition in which she properly indicated that she
sought supervised visitation.
       3
        The transcripts submitted to this Court on appeal are unofficial transcripts prepared
by a transcriptionist from audio recordings of the underlying proceedings. Neither party
has challenged the accuracy of these transcripts, and our review of the audio recordings of
the underlying proceedings revealed them to be accurate. See Rule 9(c) of the W. Va.
                                              2
home so that the two could attend therapy sessions because Richard has “a lot of anger

issues” toward her and the children. Richard declined to do so, resulting in Heather’s

request for supervised visitation. Richard explained that he declined to return to their home

because: (1) it was not financially feasible due to his long working hours, commuting time,

household chores, and a pre-existing child support obligation;4 and (2) he and Heather were

“at each other’s throats” and that was unlikely to change in the foreseeable future.



              During the hearing, the family court judge asked if Heather agreed that the

two were “at each other’s throats[.]” Heather explained that the two argued, but not in

front of the children, except that A.R. would occasionally eavesdrop on the stairs while the

parents argued. The family court judge responded, “[b]ut you’ve allowed it to happen. [. .

.] Yeah. You’ve both done it together [. . .] but you want him punished for it.” Heather

attempted to explain that her concern was not about the arguments but about “the way he’s

treated my girls.” The following exchange then occurred:

              JUDGE:          Okay. So, when did he supposedly – when did
              he start treating the girls bad?

              HEATHER: I don’t know. I don’t know.

              JUDGE:        No, no – tell me.

              HEATHER: It’s been years.


Rules of App. Proc. (giving the Court discretion if procedural requirements for transcript
requests are not followed).
       4
         The referenced child support obligation was in relation to a child from a previous
relationship.

                                             3
              JUDGE:        Okay. You know what? Then you allowed it.

              [. . .]

              JUDGE:        So, now you want me to punish him and not let
              him see his kids because you let it be like that for nine years
              and it sounds to me like you’ve caused a lot of the problems as
              well. So, if he was such a horrible person, maybe I should put
              them in State custody? Because if you’ve allowed it, if you’ve
              allowed such a horrible situation to exist for nine years, the
              State can take your children for that. So, if you’ve allowed it
              to exist and he’s such a horrible person, and such a horrible
              dad, then you’ve let it exist for nine years. And you just told
              me you wanted him to come home.



              The family court judge then stated that because Heather had invited Richard

to return home, then “he’s clearly not that . . . bad of a guy. So, I’m not going to, I’m not

going to grant him, I’m not going to grant him supervised time.” The judge precluded any

further testimony on the supervised visitation matter at the temporary hearing and the

parties agreed that Richard would have visitation with the children every Saturday from

9:00 a.m. to 6:00 p.m. The family court judge then made the following statement:

              I can make [the custody allocation] final today unless you all
              would like to come back and put on, you know, all of your
              evidence of why he shouldn’t have any time, or whether you
              should have more time, or whatever.

Heather indicated that she wished to come back with a lawyer at the final hearing to further

discuss the custodial allocation and the judge agreed.



              Before the final hearing, Heather, now by counsel, filed an Amended

Parenting Plan in which she stated, “[Richard] has been physically and mentally abusive


                                             4
to my girls and I [sic].”5 Also in the interim, Heather filed a motion to present testimony

from the children’s pediatrician and A.R.’s counselor at the final hearing.



              At the final hearing on September 5, 2018, Heather was represented by

counsel and Richard again appeared pro se. Early in the proceeding, Richard requested

that the court move visitation from Saturdays to Sundays to accommodate his and the

children’s schedules. Heather did not object to this change, but her counsel reminded the

court that it still needed to address the matter of supervised visitation. Counsel also noted

that A.R. suffered from anxiety issues and that A.R.’s pediatrician had been subpoenaed to

testify by phone.



              Notably, before the court could address the supervised visitation issue,

Richard interjected to remind the court that Heather had invited him to return to their joint

home. Heather acknowledged that this was true and the following exchange occurred:

              JUDGE:        Okay, so you obviously don’t think he’s a danger
              to your kids.

              HEATHER: That is not true.

              JUDGE:        Well, yes it is. If you asked him to come home–

              HEATHER: May I explain?




       5
        Heather properly checked the box requesting supervised visitation in this Amended
Parenting Plan filing.

                                             5
              JUDGE:       No you cannot. Because if you asked him to
              come home and live in the home with you, then I don’t think
              you think one little bit that he’s a danger to your children.

              HEATHER: I do.

              JUDGE:      No, you don’t, or you wouldn’t have asked him
              to come home.



              Heather’s counsel also attempted to address this issue, but the judge

interrupted her, stating, “If she asked him to come home, she doesn’t get to sit here and say

how mean and abusive he is. Because if that’s true, then you’re not a very good mother

for asking him to come home.” Heather once again attempted to explain that she invited

Richard home in an effort to supervise his behavior around the children, stating that she

“was prepared to be miserable for the rest of [her] life [. . .] [a]s long as [she] knew where

[her] kids were.” The judge then foreclosed Heather from explaining any further and stated

that she was not going to order supervised visitation. Heather’s counsel reminded the court

that photographs of alleged abuse had been submitted, but the judge interrupted, stating:

              JUDGE:        Well, [counsel], I took a whole bunch of
              testimony at the last hearing from both of them. I’m not re –
              I’m not going to rehash it. They both testified at the last
              hearing and she said he was abusive, he said they fought a lot,
              so, I mean, we were here for a while and I did take some
              testimony from them. [. . .]



              The judge then admonished Heather, stating that if she was concerned about

the children’s well-being, they should be in counseling. Heather stated that A.R. had been

in counseling for about a year and her counsel again noted that she had subpoenaed the


                                              6
counselor. The judge replied, “[o]kay, hang on a sec – so the child’s had issues for an

entire year, not just because [Richard’s] been gone in this, and been getting parenting time

on just weekends.” Heather stated that A.R.’s anxiety-related symptoms had resurfaced

once visitation started. Richard interjected that all of A.R.’s anxiety is “blamed on [him]”

even though she also suffers from anxiety about other traumatic scenarios. The judge

prevented any further testimony on this point, reiterating that “[t]he child already had

anxiety issues. I’m not blaming that on [Richard].”



               Heather’s counsel then directed the court’s attention to the allocation of the

child tax credit exemption, noting that if Heather were to become employed, she should be

awarded the credit. The judge foreclosed evidence on the tax matter and stated she would

probably not allocate both tax credits to Heather “based on the fact of how much child

support [Richard] is paying.” The judge opined that if Heather were to obtain employment,

she would allocate the credit for one child to each parent. Counsel reminded the court that,

under West Virginia Code § 48-13-801, preference for allocation of the credit is given to

the custodial parent. The judge responded, “I understand. And I have discretion to do it

otherwise. And, based upon that, she’s not working. And she’s getting a thousand dollars

a month in child support.”



              At the end of the hearing, Heather’s counsel renewed her request that the

court hear testimony from the children’s pediatrician to discuss the abuse allegations. The

judge declined to take this testimony, stating:

                                              7
              JUDGE:         She’s a pediatrician. You know, she’s not the
              one who’s seeing the child for counseling. I don’t think the
              pediatrician can weigh in very much. The child, mom reports
              the child has anxiety. Pediatrician sees the child for five
              minutes. I don’t think a pediatrician can weigh much in [sic]
              on that. The person that should be, you know, that should
              weigh in the most would be the counselor. But the child’s had
              anxiety for a year. It’s not new because [Richard’s] seeing the
              child on Saturdays. [. . .] For eight hours. [Heather] if you think
              I believe that you are incorrect. Your child’s had anxiety for a
              year. This is not because of him, and again, and, then to sit
              there and be, you’re away from him, and then to say, I want
              him back, but yet he’s such an awful father. I don’t, I think
              that’s unfair. I think that’s absolutely unfair.



              The family court entered its Final Order on Custodial Responsibility, Etc. on

September 27, 2018. This order granted the parties shared decision-making for the two

children, granted Heather primary custodial responsibility, granted unsupervised visitation

to Richard every Sunday from 9:00 a.m. to 5:00 p.m., and awarded the income tax

dependency exemptions for both children to Richard. Heather appealed this order to the

Circuit Court of Kanawha County. The circuit court denied that appeal without addressing

any of the underlying assignments of error. The appeal to this Court followed.



              During the pendency of the appeal to this Court, Heather informed this Court

of new developments. On July 8, 2019, Heather filed a Petition for Protective Order

alleging that on or about June 6, 2019, A.R. disclosed potential sexual abuse by Richard.

Heather took A.R. to her pediatrician and therapist, and A.R. repeated the disclosure to

each of them. Heather met with a police officer, the Child Advocacy Center, and Child


                                              8
Protective Services (CPS), all of whom recommended she file the petition for protective

order. On August 7, 2019, the family court entered a 180-day protective order and referred

the matter to circuit court for further investigation.         It is unclear from the limited

information in the record whether an abuse and neglect petition was filed under Chapter 49

of the West Virginia Code. On September 5, 2019, the Circuit Court of Kanawha County

dismissed and remanded the matter to family court, noting “the investigation does warrant

further action by the DHHR and that the family court has taken appropriate measures to

ensure the Infants’ safety.”



                               II. STANDARD OF REVIEW

                In reviewing orders of a family court on appeal, we apply a multi-layered

standard of review:

                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.[6]

                With this standard in mind, we address the errors assigned by Heather.



                                      III. DISCUSSION

                Heather identifies three errors to this Court on appeal. First, she argues that

the family court abused its discretion by refusing to permit her to present witness testimony


       6
           Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).

                                                9
and other evidence that would have supported the placement of limitations on Richard’s

custodial time and decision-making responsibilities.       Second, she argues that her due

process rights to a fair hearing and a fair opportunity to present evidence were violated by

this refusal. Finally, she contends that the family court abused its discretion in refusing to

award the child tax credit exemption for both children to her. Richard filed no response

with this Court. As such, we address each of Heather’s arguments in turn.



A.       Refusal to Permit Presentation of Evidence

               At the outset, we note that in her initial family court filings, in her amended

filings, and in the transcripts of both hearings, Heather has consistently alleged that Richard

was abusive to both her and the children. In her original petition, Heather stated, “I do not

want my girls to be left alone with Richard because he has been verbal [sic] and physically

abusive. He has screamed and hit both girls.” Heather also proffered evidence and sought

to admit testimony to support the imposition of limitations on Richard’s custodial time. At

the final hearing, Heather’s counsel repeatedly brought this to the family court’s attention,

but at every turn, the family court declined to hear any evidence on the matter. Heather

argues that the family court’s refusal to take evidence was an abuse of discretion. We

agree.



               We have little trouble determining that the family court abused its discretion

in refusing Heather’s repeated attempts to introduce evidence relevant to the allegations of

abuse. West Virginia Code § 48-9-209 governs the placement of limitations upon a

                                              10
parent’s custodial time and sets forth the following mandate: “If either of the parents so

requests, or upon receipt of credible information thereof, the court shall determine whether

a parent who would otherwise be allocated responsibility under a parenting plan: (1) Has

abused, neglected or abandoned a child, as defined by state law[.]”7                 While we

acknowledge that some statutory provisions in Chapter 48 of the West Virginia Code give

a family court discretion in its decision to investigate matters of abuse and neglect, this is

not one of those provisions.8




       7
           Emphasis added.
       8
           Specifically, we note that West Virginia Code § 48-9-201(b) states:

                        The court, at its discretion and on any basis it deems
                sufficient, may conduct an evidentiary hearing to determine
                whether there is a factual basis for a finding under subdivision
                (1) or (2), subsection (a) of this section. When there is credible
                information that child abuse as defined by section 49-1-3 [§
                49-1-3] of this code or domestic violence as defined by section
                27-202 [§ 48-27-202] of this code has occurred, a hearing is
                mandatory and if the court determines that abuse has occurred,
                appropriate protective measures shall be ordered.

       W. Va. Code § 48-9-205(b) states:

                       The court shall develop a process to identify cases in
                which there is credible information that child abuse or neglect,
                as defined in section three [§ 49-1-3], article one chapter forty-
                nine of this code [. . .] has occurred. [. . .] The process shall
                also include a system for ensuring that jointly submitted
                parenting plans that are filed in cases in which there is credible
                information that child abuse or domestic abuse has occurred
                receive the court review that is mandated by subsection (b),
                section two hundred one [§ 48-9-201] of this article.

                                               11
              Clearly, Heather made a request to place limitations—in the form of

supervised visitation—on Richard’s custodial time with the children.               While we

acknowledge that Heather’s original petition did not explicitly seek this limitation, we note

that she immediately made the request at the temporary custody hearing. When the family

court asked if Heather knew what she wanted Richard’s custodial time to be, Heather

responded

              “I would like to see supervised visitation because I asked him
              to come home and do therapy with me. He has a lot of anger
              issues – [. . .] [t]owards me, towards the girls. And that was
              completely out of the question. He refused to do that, so I
              would love to see supervised visitation if that’s possible.”



              And, after the temporary custody hearing, Heather retained counsel and filed

an amended petition in which she appropriately requested that Richard’s custodial time be


       And West Virginia Code § 48-9-301a states:

                     If allegations of child abuse are made during a child
              custody proceeding and the court has concerns regarding the
              child’s safety, the court may take any reasonable, temporary
              steps as the court, in its discretion, deems appropriate under the
              circumstances to protect the child’s safety until an
              investigation can be completed.

        These code sections each involve some discretion on the part of the family court,
whether that is discretion to open an investigation, discretion to determine if credible
evidence justifies opening an investigation, or to discern that credible allegations of abuse
have been made. West Virginia Code § 48-9-209 does not involve discretion in choosing
to open an investigation. The language is explicit that upon request of a parent, the family
“court shall determine whether a parent who would otherwise be allocated responsibility
under a parenting plan [. . .] [h]as abused, neglected or abandoned a child, as defined by
state law[.]” (emphasis added). Therefore, the family court was required to open such an
investigation here for purposes of determining whether these children had been abused.

                                             12
supervised.    As such, under § 48-9-209, we conclude that Heather requested a

determination of whether Richard had abused or neglected the children under state law.

So, based on the plain language of the statute, the family court was required to undertake

such an investigation, and that investigation inherently required the taking of at least some

evidence. As explained further below, the family court refused to take any evidence. We

find that was an abuse of discretion.



              In addition to both her oral requests for limitations on Richard’s visits and

her amended petition, Heather proffered pertinent evidence and sought to introduce

testimony from medical professionals familiar with the abuse allegations. Yet, the family

court still refused to take evidence on this matter, offering several explanations for that

refusal. At the temporary custody hearing, the family court asked whether the parties

would like to return for a final hearing in order to “put on, you know, all of [their] evidence

of why [Richard] shouldn’t have any time, or whether [Heather] should have more time, or

whatever.” However, at that final hearing, the judge again refused to hear any evidence,

stating:

              “[. . .] I took a whole bunch of testimony at the last hearing
              from both of them. I’m not re – I’m not going to rehash it.
              They both testified at the last hearing and she said he was
              abusive, he said they fought a lot, so, I mean, we were here for
              a while and I did take some testimony from them.”

Our review of the record reveals that the family court did not take any substantial evidence

on the issue of abuse and neglect at the temporary custody hearing. Instead, while the

majority of the eighteen-minute hearing was devoted to custody allocation, a significant

                                              13
portion of that was dominated by the family court judge’s efforts to discount Heather’s

concerns about the children’s safety and to admonish her for failing to remove her children

from the home sooner if she believed it to be an abusive environment.



              At both the temporary and final hearings, the family court judge focused

heavily upon testimony from Richard that Heather had invited him to return home. This,

according to the family court, was evidence that Heather did not believe Richard to be a

danger to the children and negated any need to investigate the matter further. But the

hearing transcripts show that Heather had not only disclosed this issue to the family court

at the temporary custody hearing, but also that she attempted to explain her reasoning for

inviting Richard home. And while the family court foreclosed Heather from making any

explanation, the record reflects that Heather, in the absence of court-ordered supervised

visitation, sought to supervise Richard’s interactions with the children herself. The family

court’s focus on the single fact of Heather inviting Richard home, to the exclusion of any

other evidence or explanation, overlooked proffered evidence on the matter of abuse.

While we do not determine whether Heather’s explanation is truthful or sufficient, we can

say with certainty that the family court should have heard and weighed it with or against

other relevant evidence.



              And, when Heather attempted to present telephonic testimony from A.R.’s

pediatrician, the family court judge refused, determining that the pediatrician would not

have enough familiarity with the alleged abuse to testify with any authority. The family

                                            14
court judge also stated that if Heather believed A.R. to be suffering from anxiety, Heather

should have taken her to a counselor. But when Heather responded that A.R. had a

counselor who had also been subpoenaed to testify, the family court judge once again

refused testimony, concluding that, because A.R. had been seeing the counselor for more

than a year, visitation with Richard could not have been the source of A.R.’s anxiety.

Heather proffered a medical report from A.R.’s pediatrician noting that A.R. was suffering

from increased symptoms of anxiety as a result of her visitation with Richard and detailing

several disclosures A.R. made relating to potentially abusive experiences. That report

clearly contradicts the family court’s conclusion that A.R.’s visits with Richard were not

causing or exacerbating her anxiety.



              As noted above, the hearing of evidence is a necessary part of undertaking

an investigation under West Virginia Code § 48-9-209. So, parties must be permitted to

testify or present testimony of other witnesses to be considered in determining whether a

child had been abused or neglected for purposes of placing limiting factors on custodial

time. Here, the family court refused to permit Heather to testify or present testimony from

other witnesses on the abuse allegations. It is apparent, based on the record before us, that

the family court abused its discretion in refusing to take testimony on a matter of such

paramount importance as an allegation of abuse and neglect. These errors endangered

children whom our court system has a duty to protect. A court cannot presume to know

the facts of a case, the character of a party, or the authority of a potential witness without



                                             15
having heard any evidence. We cannot escape the conclusion that the family court failed

in its protective role with regard to the children in this case.



              It is not the province of this Court to investigate the veracity of Heather’s

allegations of abuse, and we do not do so here. That said, Rule 48(a) of the Rules of

Practice and Procedure for Family Court mandates that when the family court “has

reasonable cause to suspect any minor child involved in family court proceedings has been

abused or neglected, that family court shall immediately report the suspected abuse or

neglect to the state child protective services agency . . . and the circuit court.” Based on

the failure to comply with the investigatory provisions of West Virginia Code § 48-9-209,

we have a limited record before us on appeal, and, for that reason, are unable to determine

whether the original abuse allegations in Heather’s initial filings warranted referral to the

circuit court and the requisite child protective services agency.9 As such, we reverse the

family court’s custodial order and remand this matter to the family court to allow

presentation of all relevant and permissible evidence related to those original allegations

so that the family court may determine whether referral to the circuit court is appropriate.

And, because of the apparent danger present to the children in this matter, we remand with


       9
         The allegations of abuse that arose after the filing of this appeal were noticed to
this Court in an updated filing. As a result, our knowledge with regard to those subsequent
allegations is also extremely limited, and we are without sufficient information to
determine whether an abuse and neglect petition has been filed. So, we remand this matter
to family court in the manner directed, but also remind the family court and circuit court
of the jurisdictional parameters of Rule 48(d) of the Rules of Practice and Procedure for
Family Court.

                                               16
instructions that the family court order, upon expiration of the domestic violence protection

order,10 that any visitation Richard has with the children be supervised pending the

resolution of any ensuing abuse and neglect proceedings.11



B.     The Dependent Child Tax Exemption

                Heather also argues that the family court erred in failing to allocate to her the

dependent child tax exemption for both A.R. and E.R. The family court reasoned that

because Heather was unemployed, the tax exemption would be of no benefit to her, and

therefore awarded the exemptions for both children to Richard for the 2018 tax year. The

family court also ordered that, upon Heather’s future employment, each parent could claim

one child tax exemption from 2019 forward. We find that the family court erred in so

ordering because our law presumes that the exemption be awarded to the custodial parent.

While that presumption may be rebutted, it was not rebutted at the hearings below.



                West Virginia Code § 48-13-801 governs the allocation of the dependent

child tax exemption. It states:

                Unless otherwise agreed to by the parties, the court shall
                allocate the right to claim dependent children for income tax
                purposes to the payee parent except in cases of extended shared
                parenting. In extended shared parenting cases, these rights
                shall be allocated between the parties in proportion to their

       10
            That order was entered on August 7, 2019. It is set to expire on February 3, 2020.
       11
          Because we find a clear abuse of discretion in the family court’s failure to take
evidence, we need not address Heather’s due process claims, which depend on the same
factual basis.

                                               17
                  adjusted gross incomes for child support calculations. In a
                  situation where allocation would be of no tax benefit to a party,
                  the court need make no allocation to that party. However, the
                  tax exemptions for the minor child or children should be
                  granted to the payor parent only if the total of the payee
                  parent’s income and child support is greater when the
                  exemption is awarded to the payor parent.

In Eric M. v. Laura M.,12 we explained, that as to the final sentence of the statute, that the

court must examine the net financial effect on the child of the exemption’s allocation to

either party. Specifically, we focused on determining which allocation would yield a

greater post-tax spendable income for the family as a whole.13



                  Here, we begin with the presumption under § 48-13-801 that the custodial

parent be awarded the ability to claim the child as a dependent. Heather is the custodial

parent, and is entitled to claim the tax credits for both children unless Richard can rebut

that presumption in one of three ways: (1) by showing that an extended shared parenting

situation exists; (2) by showing that the tax credits would be of no benefit to Heather; or

(3) by showing that Heather’s income and child support would be greater if Richard were

awarded the credits.



                  Two of the three statutory exceptions to the statutory presumption are

inapplicable here. First, this is not a case of extended shared parenting. West Virginia


       12
        237 W. Va. 709, 712, 790 S.E.2d 929, 932 (2016) (citing Spence v. Spence, 199
W. Va. 609, 486 S.E.2d 778 (1997)).
       13
            Id.

                                                 18
Code § 48-13-501 defines that term to mean that “each parent has the child for more than

one hundred twenty-seven days per year (thirty-five percent).” Under the family court’s

custody allocation, Richard would have the children for far less time than that.



                  Turning to the second exception, we determine that Heather would benefit

from the exemption for both children. At the final hearing, the family court operated under

an erroneous assumption that the exemption would only benefit Heather if she were

employed, presumably operating under the guidance of a 2016 memorandum decision,

Gladys J. v. Ronnie J.14 In that case, an unemployed mother invoked § 48-13-801 and

asserted that she had a right to claim the exemption.15 The father disagreed, arguing that it

would be of no benefit to the mother due to her unemployment.16 We remanded that matter

to the family court for further consideration on the ground that the family court performed

no analysis of the allocation of the tax benefits to either party, but stated that we “[did] not

disagree with the family court’s decision to allow the husband to claim the children as

dependents for tax purposes because the wife was not employed.” 17 But, amendments to




       14
            No. 15-0191, 2016 WL 3165981 (W. Va. June 3, 2016).
       15
            Id. at *6.
       16
            Id.
       17
            Id.

                                              19
the Internal Revenue Code the year following our decision in Gladys J. materially alter the

analysis of West Virginia Code § 48-13-801.



                In 2017, the United States Congress passed the Tax Cuts and Jobs Act of

2017 (TCJA) which amended the United States Internal Revenue Code.18 The TCJA

eliminated personal exemptions, including dependent exemptions for the 2018 through

2025 tax years, meaning that the exemptions still exist as a matter of law, but they are

without value as deductions.19 But, the TCJA retained the definition of “dependent” for

purposes of the child tax credit.20 Specifically, these changes modified the child tax credit

to make it partially refundable.21 The dependent child tax exemption and the child tax

credit work in tandem, meaning that the parent who wishes to claim the credit must also

claim the child as a dependent.22 Therefore, award of the right to claim the dependent child

tax exemption directly controls who receives the additional child tax credit. And, the




       18
            26 U.S.C. §§ 1 through -9834 (2017).
       19
        26 U.S.C. § 151(d)(5) (2017) (setting the exemption amount for each personal
exemption to zero dollars for the tax years 2018 to 2025).
       20
            26 U.S.C. § 152 (2017).
       21
           26 U.S.C. § 24(d) (2017) (the credit has a maximum value of $2,000, but $1,400
of that is refundable).
       22
         26 U.S.C. § 24(a) (2017) (“There shall be allowed as a credit against the tax
imposed by this chapter for the taxable year with respect to each qualifying child of the
taxpayer for which the taxpayer is allowed a deduction . . .”) (emphasis added).

                                             20
additional child tax credit is refundable even when the claimant has no tax burden.23 So,

employment no longer is a prerequisite to obtaining some benefit from the allocation of the

child tax credit, and therefore, the dependent child tax exemption. In this case, even though

Heather is unemployed and has no tax burden, allocation of the credits would benefit her

in that claiming the children as dependents would permit her to recoup the full refundable

amount of the additional child tax credit per child.



              The third statutory exception provides that the court may award the tax credit

to the noncustodial parent “if the total of the [custodial] parent’s income and child support

is greater when the exemption is awarded to the [noncustodial parent].” As noted above,

Eric M. requires that a court examine the net financial effect allocation to either parent

would have upon the children. We cannot accurately perform this analysis because the

parties in this case failed to submit updated financial records that would allow us to do so.

Therefore, we do not decide whether the third exception in § 48-13-801 would permit

allocation of either of the child tax benefits to Richard, but leave that determination to the

family court on remand.



              So, we reverse the family court’s order with regard to the dependent child

tax exemption allocation and remand this issue to the family court for a proper analysis

under Eric M. of the financial impact allocation of the tax benefits to either parent would


        26 U.S.C. § 24(d)(1)(A) (2017). See also, U.S. Dep’t of the Treasury, Internal
       23

Revenue Service, Pub. 972, Child Tax Credit (2018).

                                             21
have on the children. We further instruct that the family court award the dependency

allocation for both children to the custodial parent unless any of the exceptions in West

Virginia Code § 48-13-801 are satisfied.



                                  IV. CONCLUSION

              We conclude that the Circuit Court of Kanawha County erred in denying the

underlying appeal, and therefore, reverse the circuit court’s order dated October 29, 2018.

We reverse the September 27, 2018, order of the Family Court of Kanawha County with

respect to both the custodial allocation and the allocation of the dependent child tax

exemption and remand this matter to the family court with the following instructions: (1)

that the family court order, upon expiration of the August 7, 2019, domestic violence

protection order, that any visitation Richard has with the children be supervised pending

resolution of any abuse and neglect proceeding which results from this remand; and (2)

that, unless Richard successfully rebuts the presumption that the tax exemptions be

awarded to the custodial parent under West Virginia Code § 48-13-801 by showing that

Heather’s income and child support would be greater if Richard were awarded the

exemptions, the exemptions for both children be awarded to Heather.



                                                 Reversed and remanded with instructions.




                                            22
