Reaffirming West Virginia’s 50-50 Custody Presumption: Appellate Deference and Mental-Health Evidence in Non-Offending Parent Cases

Commentary on In re D.S., Supreme Court of Appeals of West Virginia (Mar. 24, 2025)

Introduction

In re D.S. addresses a recurring, high-stakes question in West Virginia custody law: what it takes to rebut the Legislature’s rebuttable presumption in favor of equal (50-50) custodial allocation between parents who do not live together, and how appellate courts should review a circuit court’s decision on that issue. The case arises in the unique procedural posture of an abuse and neglect proceeding in which both parents were non-offending respondents, and yet the circuit court retained jurisdiction to determine custodial responsibilities for the minor child, D.S.

The father (C.S.) appealed from an order awarding equal custodial responsibility to both parents under West Virginia Code § 48-9-102a (2022). He contended that his status as D.S.’s primary caregiver, combined with the mother’s (A.F.-1’s) history of serious mental-health issues and prior erratic behavior, overcame the statutory presumption. The mother, the Department of Human Services (DHS), and the guardian ad litem opposed, emphasizing that the mother was in treatment, clinically stable, and able to safely parent and co-parent D.S.

Justice Walker, writing for a unanimous Court, affirmed. The opinion underscores three central themes:

• The statutory framework: a robust, rebuttable presumption of equal custodial allocation, anchored in the child’s best interests and implemented through § 48-9-102a and § 48-9-209.
• Appellate deference: circuit courts are owed considerable latitude, especially on factual and credibility matters; appellate courts will not reweigh evidence.
• Mental-health evidence: past instability, without current proof of parenting impairment, does not suffice to rebut equal custody where the record supports effective treatment and safe parenting.

Summary of the Opinion

The Supreme Court affirmed the Grant County Circuit Court’s order allocating equal custodial responsibility to both parents. The circuit court:

• Applied the rebuttable presumption of equal custodial allocation under § 48-9-102a.
• Found both parents employed and suitably housed (including that the mother, though behind on rent, had not been evicted).
• Found the mother medically stable, in ongoing therapy and psychiatric care, and capable of unsupervised parenting based on a clinical psychologist’s opinion and corroborating lay testimony.
• Noted that throughout the proceedings the mother exercised extensive, appropriate visitation, and that D.S. benefited from that contact.
• Identified the child’s right to continued contact with his half-sibling, A.F.-2, consistent with § 48-9-102(a)(8).
• Recognized a “toxic relationship” between the adults yet found both parents hold the child’s best interests at heart.
• Directed the multidisciplinary team (MDT) to implement a transition plan toward equal custody.

On appeal, the father argued the circuit court ignored the weight of evidence, including the mother’s past mental-health crises, alleged dishonesty, and isolated incidents (e.g., a threat to a girlfriend; alleged welfare fraud; alleged near-eviction). The Supreme Court rejected those arguments, reiterating that appellate review is deferential: the final order and ultimate disposition are reviewed for abuse of discretion; underlying findings are reviewed for clear error. Because the circuit court’s account of the evidence was plausible in light of the entire record, affirmance was required.

Analysis

Statutory Framework and Policy

The Court anchored its analysis in the Legislature’s policy statements and governing provisions:

• West Virginia Code § 48-9-102 (2022) sets the best-interests objectives, including stability, continuity of attachments, meaningful contact with each parent (rebuttably presumed to be equal), safety, timely decisionmaking, and meaningful sibling contact.
• West Virginia Code § 48-9-102a creates the rebuttable presumption: equal (50-50) custodial allocation is presumed to be in the child’s best interests. If rebutted, courts must craft a plan that maximizes each parent’s time while ensuring the child’s welfare.
• West Virginia Code § 48-9-209 (2024) instructs courts to consider all relevant factors when determining whether the presumption has been rebutted. The opinion highlights, among others, the parent’s prior involvement and primary-caregiving history and the presence or absence of safety concerns.

This statutory design materially shifts the starting point of custody analysis toward equal time—subject to a fact-intensive, best-interests review. The Court treats this presumption as meaningful: it must be rebutted by a preponderance of the evidence.

Procedural Posture and Jurisdiction

Although the underlying case originated as an abuse and neglect proceeding, both parents were non-offending respondents. Under Rule 6 of the Rules of Procedure for Child Abuse and Neglect Proceedings and the Court’s precedent in In re T.M., 242 W. Va. 268, 835 S.E.2d 132 (2019), the circuit court retained jurisdiction over custodial placement and any future custody/visitation/support matters. The Supreme Court also clarified its own appellate jurisdiction in this posture (citing W. Va. Code § 51-11-4(d)(3)).

Precedents Cited and Their Influence

• In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015) and McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996): Establish the two-pronged deferential review—abuse of discretion for the ultimate disposition, clear error for factual findings. This standard frames the entire appellate analysis and explains why the father’s evidence-heavy challenge fails.
• Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977): Reinforces the discretion vested in trial courts over child custody matters, disturbed on appeal only upon a clear abuse. The Court relies on Nichols to emphasize restraint on appellate interference.
• In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996): A reviewing court may not overturn a plausible finding merely because it might have decided differently. This directly rebuts the father’s plea to reweigh credibility and evidence.
• Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996): The best interests of the child remain paramount in visitation and custody. This principle shapes how the statutory presumption is applied and how competing adult narratives are subordinated to the child’s welfare.
• In re T.M., 242 W. Va. 268, 835 S.E.2d 132 (2019): Confirms circuit court’s continuing jurisdiction over custodial determinations arising from abuse and neglect proceedings and sets the jurisdictional framework for this case.

Together, these authorities steer the Court toward affirmance where the circuit court’s conclusions are supported by credible, record-based evidence—even if a different judge might have weighed the evidence differently.

Legal Reasoning

The Court’s reasoning proceeds in three steps: the presumption, the factors, and the standard of review.

1. Starting with the presumption. Section 48-9-102a mandates a rebuttable presumption that equal custodial allocation serves the child’s best interests. This is not a mere rhetorical preference; it reorients the analysis and places the burden on the rebutting parent to show, by a preponderance of the evidence, why equal time is not in the child’s best interest.
2. Evaluating the statutory factors. Section 48-9-209 requires the court to consider all relevant factors in deciding whether the presumption is overcome. Key points here:
   • Primary caregiving and historical involvement. The father’s role as D.S.’s day-to-day caregiver after the parents separated is relevant but not dispositive. The court credited evidence that the mother was significantly involved early on while cohabiting and thereafter maintained contact, subject to contested allegations that the father sometimes limited access.
   • Mental-health stability and safety. The father highlighted historic episodes: mood swings, depression, self-harm, and a threat to a girlfriend. The circuit court weighed those facts against current clinical evidence: a psychologist diagnosed bipolar disorder and PTSD but opined the mother could safely parent and co-parent, with ongoing treatment. Visitation providers described attentive, prepared, nurturing interactions. Lay witnesses (including the half-sibling’s father and paternal grandmother) corroborated safe parenting. The mother acknowledged her past struggles and presented her treatment compliance.
   • Sibling relationship. The court expressly noted D.S.’s right to maintain meaningful contact with his half-sibling, A.F.-2—an enumerated objective in § 48-9-102(a)(8).
   • Stability and resources. Concerns about rent arrears and alleged welfare fraud were unpersuasive: no eviction had occurred; there were no criminal charges; and the father’s most serious allegations were unsubstantiated or contested.
3. Deferential appellate review. Applying Nichols, In re S.W., and Tiffany Marie S., the Court refused to reweigh credibility or evidence. The circuit court’s account was “plausible in light of the record viewed in its entirety,” given multi-day evidentiary hearings, professional assessments, and observed, positive parenting during visitation. That ends the inquiry absent clear error or abuse of discretion—which the Court did not find.

Why the Father’s Rebuttal Failed

The father’s proffer failed to carry the preponderance burden for several reasons:

• Temporal mismatch and rehabilitation. The most troubling conduct attributed to the mother occurred before her current treatment regimen and clinical stabilization. The circuit court credited evidence that her present condition permitted safe parenting, supported by professional and lay observers.
• Unsubstantiated allegations. Claims of impending eviction, welfare fraud, and substance abuse (beyond marijuana) lacked evidentiary support. A CPS referral concerning a holiday visit was investigated and found unsubstantiated.
• Video and credibility issues. A year-old, surreptitious recording in which the mother expressed uncertainty about parenting carried limited weight against present-day functioning. The circuit court—not the Supreme Court—assesses credibility, including allegations of coercion surrounding statements and filings.
• Best-interests parity. With both parents fit and capable, and where the child benefits from both relationships and sibling contact, the presumption of equal time remains intact.

Impact and Guidance for Future Cases

In re D.S. adds practical clarity to the application of § 48-9-102a and appellate review:

• Robust 50-50 presumption. Courts will begin at equal time. Rebutting that presumption requires concrete, current, and credible evidence that equal allocation is not in the child’s best interests. Historic incidents, standing alone, may be insufficient where the present record shows effective treatment, stable behavior, and safe parenting.
• Clinical evidence matters. Professional evaluations (e.g., psychologist reports), treatment compliance, and observed visitations carry significant weight in assessing a parent’s current capacity. Parties should prepare objective evidence—beyond accusations—to meet their burdens.
• Sibling contact is substantive. Statutory policy favoring meaningful sibling relationships will be actively considered when allocating time, especially in blended families.
• Appellate deference is decisive. Appeals that invite reweighing credibility will likely fail unless the circuit court’s findings are clearly erroneous. The more robust the evidentiary hearing record and the more reasoned the findings, the more insulated the order will be on appeal.
• Non-offending parents in abuse/neglect cases. Circuit courts retain jurisdiction to set custody even when neither parent is adjudicated abusive or neglectful, and the Supreme Court (not the Intermediate Court of Appeals) exercises appellate jurisdiction in this procedural posture.

Complex Concepts Simplified

• Rebuttable presumption (equal custody). The law starts with the assumption that 50-50 time is best for the child. A parent who disagrees must prove, by more-likely-than-not evidence, that equal time would not serve the child’s best interests.
• Preponderance of the evidence. The standard used to rebut the presumption; it means the evidence shows something is more likely true than not (over 50%).
• Best interests of the child. The controlling principle in custody cases. Courts evaluate stability, safety, continuity of relationships, meaningful contact with each parent and siblings, and other factors to decide what arrangement is best for the child—not what feels “fair” to the adults.
• Abuse of discretion. A deferential appellate standard. The Supreme Court will not overturn the circuit court’s custody decision unless it was unreasonable or arbitrary.
• Clearly erroneous. Applies to factual findings. Even if the appellate court might have found the facts differently, it will not reverse unless the lower court’s findings lack evidentiary support or are clearly mistaken.
• Non-offending parent. A parent involved in an abuse/neglect case who is not alleged to have abused or neglected the child. Even so, the circuit court may resolve custody within that proceeding.
• Multidisciplinary Team (MDT). A team (often including DHS, GALs, service providers, and parties) that coordinates services and plans in abuse/neglect cases. Here, the MDT is tasked with developing a transition plan to implement equal custody.

Practice Pointers

• For parents seeking to rebut the presumption: Prior episodes of instability or misconduct should be linked to present-day risk or impairment, supported by expert testimony, documented noncompliance with treatment, or contemporaneous safety incidents. Unsubstantiated accusations or historical anecdotes rarely suffice.
• For parents facing mental-health allegations: Demonstrate treatment compliance, clinical stability, and observed safe parenting (e.g., visitation logs, provider testimony). Acknowledge past difficulties and show sustained improvement.
• For counsel and GALs: Build a fulsome record with professional evaluations, objective observations, and specific findings tied to § 48-9-209. Encourage MDT involvement in transition planning to minimize conflict.
• For circuit courts: Make explicit findings on the § 48-9-209 factors and how the presumption was applied. Explain credibility determinations and how current conditions affect best interests. Such findings will be pivotal on appeal.

Conclusion

In re D.S. is a careful reaffirmation of West Virginia’s child-centric custody regime. It enforces the Legislature’s strong presumption favoring equal custodial allocation between parents while preserving the circuit court’s discretion to assess evidence in the round. The decision clarifies that mental-health histories—without persuasive, current proof of parenting impairment—do not disqualify a parent from equal time. It also reinforces the structural deference appellate courts owe to trial judges who observe witnesses firsthand and craft detailed, best-interests determinations.

The key takeaways:

• The 50-50 presumption has real bite; rebuttal requires credible, present-tense proof that equal time is not in the child’s best interests.
• Circuit courts’ credibility and factual findings will be sustained on appeal if plausible in light of the whole record.
• Mental-health treatment and stability, supported by expert and lay testimony, can sustain equal custody even where there is a history of instability.
• Sibling contact remains a meaningful, codified objective in custodial planning.
• In abuse/neglect contexts with non-offending parents, circuit courts retain jurisdiction to resolve and manage custody and transitions going forward.

Ultimately, In re D.S. consolidates West Virginia’s evolving custody landscape into a consistent message: start at equal time, weigh the statutory factors with the child’s best interests foremost, and trust trial courts to resolve credibility and nuanced fact disputes—subject to a disciplined and deferential appellate review.