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Garska v. McCoy - 167 W. Va. 59, 278 S.E.2d 357 (1981)


There is a custody presumption in favor of the primary caretaker parent, if he or she meets the minimum, objective standard for being a fit parent. In establishing which natural or adoptive parent is the primary caretaker, the trial court shall determine which parent has taken primary responsibility for, inter alia, the performance of the following caring and nurturing duties of a parent: (1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, for example, transporting to friends' houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, for example, babysitting, day-care, et cetera; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, for example, teaching general manners and toilet training; (9) educating, for example, religious, cultural, social, et cetera; and, (10) teaching elementary skills, for example, reading, writing and arithmetic. 


The appellant, Gwendolyn McCoy, and the appellee, Michael Garska, had a child together but were never married. A custody dispute arose after McCoy sought to have her son adopted by her grandparents. Garska, who was not the child's primary caretaker, refused to consent to the adoption. The Circuit Court of Logan County (West Virginia) gave custody of her son to Garska. McCoy appealed.


Did the lower court err in granting custody to the father?




The court reversed the lower court's judgment, which granted custody of a minor child to his father. It held that although W. Va. Code § 48-2-15 established the best interests of the child standard for custody disputes, the child's best interests were served by a presumption in favor of the primary caretaker parent, if he or she met the minimum, objective standard for being a fit parent. The lower court improperly removed the minor child from the custody of the mother, who was the primary caretaker, because there was no evidence that she was an unfit parent. Nor was there an explicit finding that the mother intended to abandon the minor child, instead of intending to manipulate the welfare system to maximize her child's eligibility for benefits. Moreover, the father had little or no emotional contact with the minor child. Based on the foregoing, the court granted custody of the son to the mother.

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