SUPREME COURT OF APPEALS OF WEST VIRGINIA 190 W. Va. 34; 438 S.E. 2nd 521; 1992 W. Va. LEXIS 76
January 14, 1992, Submitted
May 29, 1992, Filed
SUBSEQUENT HISTORY: As Corrected. Dissenting Opinion Dated June 1, 1992. Workman, J. withdrew concur.
DISPOSITION: [***] WRIT GRANTED AS MOULDED
SYLLABUS BY THE COURT
1. Because an allegation of sexual abuse of a child involved in a divorce proceeding is extraordinary, such allegation would constitute "good cause" or grounds for a more expeditious resolution by the circuit court as contemplated by W. Va. Code, 48A-4-1(i) 1991, and accordingly, custody and visitation matters relating thereto may be retained by the circuit court, or, if already referred to a family law master, such referral may be revoked.
2. Prior to ordering supervised visitation pursuant to W. Va. Code 48-2-15(b)(1) 1991, if there is an allegation involving whether one of the parents sexually abused the child involved, a family law master or circuit court must make a finding with respect to whether that parent sexually abused the child. A finding that sexual abuse has occurred must be supported by credible evidence. The family law master or circuit court may condition such supervised visitation upon the offending parent seeking treatment. Prior to ordering supervised visitation, the family law master or circuit court should weigh the risk of harm or deprivation of any visitation to the parent who [***2] allegedly committed the sexual abuse against the risk of harm of such visitation to the child. Furthermore, the family law master or circuit court should ascertain that the allegation of sexual abuse under these circumstances is meritorious and if made in the context of the family law proceeding, that such allegation is reported to the appropriate law enforcement agency or prosecutor for the county in which the alleged sexual abuse took place. Finally, if the sexual abuse allegations were previously tried in a criminal case, then the transcript of the criminal case may be utilized to determine that credible evidence does or does not exist, the transcript must be made part of the record in the civil proceeding so that this Court, where appropriate, may adequately review the civil record to conclude whether the lower court abused its discretion.
3. Where supervise visitation is ordered pursuant to W. Va. Code 48-2-15(b)(1) 1991, the best interests of a child include determining that the child is safe from the fear of emotional and psychological trauma which he or she [***3] may experience. The person(s) appointed to supervise the visitation should have had some prior contact with the child so that the child is sufficiently familiar with and trusting of that person in order for the child to have secure feelings and so that the visitation is not harmful to his or her emotional well being. Such a determination should be incorporated as a finding of the family law master or circuit court.
COUNSEL: Maureen Conley, Legal Aid Society of Charleston, West Virginia, Attorney for the PetitionerJ. Stephen Max, Charleston, West Virginia, Attorney for the Respondent, George D.
JUDGES: McHUGH, Neely, Workman OPINION BY: McHUGH
West Virginia Supreme Court of Appeals in the case of Mary D. v. Circuit Court, 438 S.E.2d 521 (W. va. 1992)(Neely, J., dissent at 529):
In this case, the majority opinion makes a simple process into a complicated one in hopes that no one will see what is what's really going on. Syllabus Points 2 and 3 set up numerous hoops for the circuit court to jump through when the case is remanded to him. The majority opinion atales:
If there is an allegation involving whether one of the parents sexually abused the child involved, a family law master or circuit court must make a finding with respect to whether that parent sexually abused the child.......if the sexual abuse allegations were previously tried in a criminal case, then the transcript of the criminal case may be utilized to determine whether credible evidence exists to support the allegation. If the transcript is utilized to determine that credible evidence does or does not exist, the transcript must be made a part of the record in the civil proceedings so that this Court may adequately review the civil record to conclude whether the lower court abused its [***28] discretion.
If this case had taken place in the New York Supreme Court where hundreds of judges decide thousands of cases each month, the majority's opinion would have been warranted. However, this case and the related criminal case both took place in the Circuit Court of Putnam County with Judge Watt presiding. Judge Watt has been involved from start to finish and he heard all the evidence in the criminal trial in which George D. was acquitted. Only after hearing all of this evidence did Judge Watt allow Mr. D. supervised visitation. The majority sets more hurdles in front of George D. after he has been acquitted of all sexual abuse charges and after he has passed a lie detector administered by the state police.
It is a mindless exercise in teaching one's grandmother to suck eggs to point out to an experienced trial judge that the civil standard of proof is lower than the criminal standard of proof.** This Court has no reasonable grounds from which to infer that the respondent is such a simpleton that where there be least doubt in his mind concerning the children's safety he would allow any visitation, supervised or unsupervised.
We now have a system in which a female parent need only scream child abuse in a loud voice to keep the male parent from seeing a child. Indeed, sexual abuse these days seems to arouse all the hysteria that was associated with witchcraft in yesteryear.
In fact, it has even spawned a witch-huntingesque cottage industry, to-wit badly trained, ideological rape trauma experts, rape counselors, bachelor level pseudo-psychologists, social activists, and other assorted species of Jacklegs.
I am a firm believer that the best interests of the child are paramount, but that does not mean never allowing a father to see his children when the evidence preponderates on his behalf even though, like an accused witch, he cannot clear himself beyond any shadow of a doubt. Continuous yelling and screaming of an accusation does not make that accusation any more true.