Chandra T. v. Robert M.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

Spring 2026 Term FILED

_____________________________

February 9, 2026

No. 25-ICA-271 released at 3:00 p.m.

_____________________________ ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA

CHANDRA T.,

Respondent Below, Petitioner,

v.

ROBERT M.,

Petitioner Below, Respondent.

________________________________________________________________________

Appeal from the Family Court of Kanawha County

Honorable Kelly C. Pritt, Judge

Civil Action No. FC-20-2021-D-56

AFFIRMED, in part, and REMANDED with instructions

________________________________________________________________________

Submitted: January 14, 2026

Filed: February 9, 2026

Rosalee Juba-Plumley, Esq. Tim C. Carrico, Esq.

Eleanor, West Virginia Joshua M. Fix, Esq.

Counsel for Petitioner Carrico Law Offices, LC

Charleston, West Virginia

Counsel for Respondent

CHIEF JUDGE GREEAR delivered the Opinion of the Court.

GREEAR, Chief Judge:

Petitioner Chandra T. (“Mother”) appeals an order of the Family Court of

Kanawha County, entered on June 10, 2025, modifying and removing the supervision and

non-overnight restrictions on Respondent Robert M.’s (“Father”) parenting time. On

appeal, Mother raises three assignments of error. First, Mother argues that the family court

abused its discretion by disregarding the testimony of a witness certified to offer expert

opinion regarding the mental health and welfare of the parties’ children. Second, Mother

contends that the family court abused its discretion by modifying the parenting plan based

on an erroneous finding that a substantial change in circumstances occurred that was not

anticipated in the prior custody order and a flawed application of the best interests of the

child analysis. Finally, Mother asserts that the family court’s modification of the parenting

plan based on a finding that Father’s limiting factor had been alleviated undermines the

legislative purpose and intent of the West Virginia Domestic Violence Act (“WVDA”),

West Virginia Code §§ 48-26-101-1101.

Based upon our review of the record, applicable law, and the oral and written

arguments of counsel, we find that the family court did not abuse its discretion in

discrediting the subject expert testimony. The family court has discretion to assess the

reliability and weight of expert evidence and, in this instance, made specific findings as to

why it found a portion of the expert’s testimony unreliable. Additionally, based on a finding

that a limiting factor that previously mandated restrictions to Father’s parenting time was

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alleviated, we find that the family court did not abuse its discretion in concluding that a

substantial change in circumstances occurred that justified modifications to the parenting

plan that serves the best interests of the children. Finally, while we find that the family

court’s findings are not at odds with the WVDA, we find error with the family court’s

failure to address specifically in its order whether the modified parenting plan can

adequately protect the children and Mother from harm, as required by West Virginia Code

§ 48-9-209(c). Accordingly, for these reasons, explained in more detail below, we affirm,

in part, and remand with instructions for the Kanawha County Family Court to make

special written findings regarding the applicable statutory provision.

I. FACTUAL AND PROCEDURAL BACKGROUND

The parties are the biological parents of two minor twins, born in 2013. On

January 20, 2021, Father filed a petition for divorce against Mother, alleging irreconcilable

differences. Mother filed a counter petition for divorce, alleging, among other things, that

Father committed domestic violence against her in the presence of their children, resulting

in the issuance of a domestic violence protective order (“DVPO”) against Father on

December 11, 2020.

As set forth in the DVPO, the domestic incident occurred on November 25,

2020, when Father made threats to “blow his brains out” if Mother left with the children.

Recordings submitted to the family court also capture the children screaming “get off my

mommy” and Father telling the children to “hug me because you will probably never see

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me again.” The DVPO awarded Father supervised visitation with the children every

Saturday from noon until 4:00 p.m. and on Christmas Eve from noon until 4:00 p.m. The

DVPO remained in place for 180 days, until June 9, 2021. Father was convicted of domestic

battery in magistrate court thereafter, on December 8, 2021.

The divorce proceeding was bifurcated from the custody proceeding, and a

final divorce order was entered on June 24, 2021. The parents operated under a temporary

parenting plan, wherein Mother was designated as the primary residential custodian and

Father was granted supervised visitation each weekend, alternating between Saturday and

Sunday from 10:00 a.m. to 3:30 p.m.1 The family court imposed these restrictions on

Father’s parenting time due to emotional and psychological harm caused to the children as

a result of his domestic violence against Mother.

Dr. Timothy Saar, Ph.D., conducted a parental fitness evaluation of Father

and recommended that Father participate in counseling with an individual qualified in

dealing with personality disorders. Father successfully participated in the recommended

therapy. On July 23, 2021, Dr. Saar sent a letter to the family court noting, in his

professional opinion, the visitation schedule should remain unchanged as he had significant

concern for Father’s emotional instability and lack of insight into his behavior.

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At some point, Father’s parenting time increased to every other weekend on

Saturday from 9:00 a.m. to 7:00 p.m. and Sunday from 9:00 a.m. to 5:00 p.m., as well as

Thursday from 4:30 p.m. to 8:00 p.m. on weeks that Mother had the children on the

weekend. All of Father’s parenting time was supervised by his parents.

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The family court held a hearing on February 16, 2022, at which time Dr. Saar

recommended that Father’s parenting time increase but remain supervised. He further

recommended that the children and Father participate in therapy together and that the

children remain in individual therapy with their current provider so that Father’s supervised

visitation could be monitored. Pursuant to Dr. Saar’s recommendation, the children

commenced therapy with Jody Hensley, MA LPC, in July of 2022.

On November 22, 2022, Ms. Hensley filed a letter with the family court

stating that both children adamantly expressed not wanting to be alone with Father or

participate in therapy with him. On April 10, 2023, Ashley Cavender, MA, a licensed

psychologist who conducted family therapy with Father and the children, filed a letter with

the family court stating that one of the children expressed that she was not comfortable in

Father’s home and was adamant that she did not want unsupervised or overnight visits to

occur. The other child stated that he did not want any visits with his Father. Ms. Cavender

noted that family therapy was unsuccessful because both children were not mentally or

emotionally prepared to confront Father. Ms. Cavender recommended that family therapy

end and that both children continue with individual therapy with Ms. Hensley until they

are ready to confront Father.

On April 21, 2023, the family court ordered in-camera interviews with the

children to occur on June 6, 2023. Following the interviews, the family court entered an

order stating, based on the interviews, that the court was not inclined to allow Father to

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have unsupervised parenting time with the children without additional evidence. The

family court then granted Father leave to submit videos and pictures from his visits with

the children that he claimed contradicted the need for continued supervised visitation. The

family court reviewed the pictures and videos and held that they appeared inconsistent with

the representations of the children during their in-camera interviews. Accordingly, the

family court scheduled an evidentiary hearing for August 22, 2023.

Following the evidentiary hearing, the family court entered its October 13,

2023, Final Order-Custody. The order first recounted prior, relevant testimony and

submissions of Dr. Saar, Ms. Hensley, and Ms. Cavender and then went on to provide an

overview of the testimony that was elicited during the August 22, 2023, hearing. According

to the family court’s order, Ms. Hensley testified that the children did not fundamentally

fear their father or fear harm from their father, but rather, explained that the children’s fear

was based on their belief that if their father hurt their mother, they would have to live with

their father. Ms. Hensley further testified that if the family court were to allow Father to

have unsupervised visitation with the children, then his unsupervised parenting time should

be integrated over time. She also acknowledged that the pictures and videos submitted by

Father called into question the veracity of the information that the children provided

directly to the family court and their providers regarding their desire to not be alone with

their father. In response to Mother’s allegation that the pictures and videos were staged,

Ms. Hensley testified that she could not state with any certainty whether that was the case.

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Mother testified that she believed that the pictures and videos presented by

Father to the Court were staged. She testified that the children were not ready to be left

alone with their father. She further testified that one child experiences anxiety and acid

reflux, which Mother directly attributed to alleged PTSD associated with Father’s domestic

violence.2 Mother also asserted that the same child is a “people pleaser” and suggested that

such behavior was reflected in the pictures and videos submitted by Father. Father testified

and requested an expansion of his parenting time and unsupervised visitation with his

children. He further testified that he was agreeable to a schedule that would phase in his

unsupervised parenting time.

Based on this evidence, the family court found that the children were not

fundamentally afraid of being left alone with Father; that the pictures and videos presented

by Father were not staged or contrived; that Father had fully exercised his supervised

parenting time and complied with all court orders regarding his participation in counseling,

therapy, and a psychological evaluation; that it was not in the children’s best interests to

expand Father’s actual parenting time; and that it was in furtherance of their best interests

to commence unsupervised visitation with Father in an integrated manner. To that end, the

family court adopted a modified parenting plan that maintained the parties’ parenting

2

Despite Mother’s testimony, the family court noted that no evidence was presented

establishing, by a preponderance of evidence, that either child suffers from PTSD as a result

of the domestic violence incident. The court further found that no evidence established that

either child experiences anxiety, emotional distress, acid reflux, or any other adverse effect

when left alone with Father.

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schedule but integrated unsupervised parenting time for Father. Specifically, the court

granted Father three hours of unsupervised parenting time on his Saturdays with the

children from August 22, 2023, to October 22, 2023, and fully unsupervised parenting time

on his Saturdays with the children beginning October 22, 2023. The family court further

granted either parent leave to seek modification of the parenting plan without the

requirement of showing a substantial change in circumstances. Neither the October 13,

2023, Final Order-Custody nor the February 13, 2024, Addendum thereto were appealed.3

On August 1, 2024, Father filed a petition for modification of the parenting

plan claiming that the parenting schedule had transpired with no issues and seeking a

modification to allow him unsupervised, overnight visits with the children. The family

court conducted a final hearing on March 19, 2025, during which Mother argued that the

family court did not have authority to circumvent the modification statute by excusing

Father from demonstrating a substantial change in circumstances. In light of Mother’s

argument, Father moved orally to amend his petition to request a modification of the

parenting plan based on a change in circumstances, namely, that the parenting plan had

transpired with “no reported incidents or issues” and that Father had exercised

unsupervised parenting time with the children since October 2023 without issue. Mother

did not object, and the family court granted Father’s motion to amend.

3

The February 13, 2024, Addendum to Final Order-Custody adopted the parties’

agreed-to holiday schedule.

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Following the hearing, the family court entered a Final Order Granting

Modification of Custody on June 10, 2025. In that order, the family court noted that Ms.

Hensley testified, in her opinion, that the Court should not grant Father’s petition for

modification and that more unsupervised and/or overnight parenting time would not be in

the children’s best interests because they fundamentally fear their father. The family court’s

order went on to find that

the testimony of [Ms.] Hensley should be discredited in part.

… In previous testimony, Jody Hensley, clearly stated the

children did not fundamentally fear their father but feared that

their Father would harm their Mother and they would be forced

to live with their Father. When questioned about the change in

her testimony, Ms. Hensley simply stated that she did not

remember her original testimony. Jody Hensley is the

children’s treating therapist. Her opinion is very limited

because of her lack of contact with the children’s Father. The

basis of her opinion is strictly based off the minor children and

their expressed preferences.

The family court further found that Father having overnight visitation with the children

was in furtherance of their best interests; that the previously found limiting factors had

been alleviated as no further allegations of domestic violence had occurred since fall of

2020 and Father had exercised limited, unsupervised parenting time since October of 2023

without any limiting factors occurring; that both the supervision and non-overnight

restrictions on Father’s parenting time should be removed; that “the expansion of Father’s

parenting time should remain incremental rather than moving immediately to a (50-50)

allocation schedule” because the children were not accustomed to having overnight visits

with Father; and that the presumption that a 50-50 custodial allocation in furtherance of the

children’s best interests had been rebutted.

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Based on these findings, the family court held that Father had proven a

change in circumstances not contemplated by the family court’s prior order and that

modification of the parenting plan was in the best interests of the children. Accordingly,

the family court removed Father’s supervised restriction, allowing for immediate

unsupervised parenting time. Additionally, the family court granted Father, beginning in

July 2025, overnight visitation with the children every other weekend from Friday at 5:00

p.m. to Sunday at 5:00 p.m. as well as on Thursday after school (or 3:00 p.m.) until Friday

at 5:00 p.m. on weeks that Mother had the children on the weekend. It is from this order

that Mother appeals.

II. STANDARD OF REVIEW

In appeals from family court proceedings, our standard of review is as

follows:

When a final order of a family court is appealed to the

Intermediate Court of Appeals of West Virginia, the

Intermediate Court of Appeals shall review the findings of fact

made by the family court for clear error, and the family court’s

application of law to the facts for an abuse of discretion. The

Intermediate Court of Appeals shall review questions of law de

novo.

Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.

Va. Code § 51-2A-14(c) (specifying standards for appellate court review of family court

orders). “Questions relating to . . . the maintenance and custody of the children are within

the sound discretion of the court and its action with respect to such matters will not be

disturbed on appeal unless it clearly appears that such discretion has been abused.” Syl. Pt.,

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Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). An appellate court may reverse

for abuse of discretion if “a material factor deserving significant weight is ignored, when

an improper factor is relied upon, or when all proper and no improper factors are assessed

but the [lower] court makes a serious mistake in weighing them.” Gentry v. Mangum, 195

W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995). With these standards in mind, we turn

to the issues raised on appeal.

III. DISCUSSION

The first issue on appeal is whether the family court abused its discretion by

discrediting the expert testimony of Ms. Hensley, the children’s court-appointed therapist.

In arguing that the family court should have accepted Ms. Hensley’s testimony in full,

Mother contends that Ms. Hensley based her opinion on information provided to both her

and the family court, that the final order did not accurately reflect Ms. Hensley’s testimony,

and that Father offered no rebuttal expert testimony contradicting Ms. Hensley’s opinion.

We disagree and find that Mother’s argument misconstrues the family court’s role in

weighing expert testimony.

The Supreme Court of Appeals of West Virginia (“SCAWV”) has

consistently held that courts are not required to accept expert testimony simply because it

is uncontroverted. Rather, courts retain discretion to assess the credibility, weight, and

reliability of expert opinions and may accept or reject such testimony, in whole or in part,

provided it articulates a reasoned basis for doing so. See In re M.M., 251 W. Va. 74, 87, 909

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S.E.2d 109, 122 (2024) (recognizing that credibility determinations of expert testimony are

within the sound discretion of the trial court). However, in Jonpaul C. v. Heather C., 248

W. Va. 687, 696, 889 S.E.2d 769, 778 (Ct. App. 2023), this Court found that it was, based

on the facts and circumstances present in that case, an abuse of discretion for the family

court to entirely disregard expert testimony without articulating a basis for why it is being

discredited.

In the underlying case, unlike Jonpaul C., the family court did not summarily

disregard Ms. Hensley’s testimony. Instead, the court provided specific findings explaining

why it declined to credit a portion of Ms. Hensley’s testimony. Specifically, Ms. Hensley

testified that more unsupervised and overnight parenting time with Father was not in the

children’s best interests because the children feared Father. However, the family court

observed that this testimony was inconsistent with Ms. Hensley’s prior testimony, in which

she stated that the children did not harbor a fundamental fear of Father but instead feared

that he might harm their mother and they would be required to live with him. Ms. Hensley’s

prior characterization of the children’s fear was expressly set forth in the family court’s

prior October 13, 2023, order which was not appealed and, therefore, became final and

binding on both the parties and court.4 When questioned about this perceived inconsistency

4

Any argument that the family court’s October 13, 2023, order contained inaccurate

findings regarding the substance of Ms. Hensley’s testimony is unavailing. The October

13, 2023, order was not appealed, and thus, the family court was entitled to rely on its

findings in that order when assessing subsequent testimony. In other words, it was not an

abuse of discretion for the family court to credit its prior, unchallenged findings and

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between her prior and current testimony, Ms. Hensley stated that she did not recall

testifying that the children did not fundamentally fear Father. We find the family court was

entitled, and well within its discretion, to rely on Ms. Hensley’s lack of recall in assessing

the reliability of her changed opinion.

The family court’s assessment of Ms. Hensley’s testimony did not end there.

The court went on to find that Ms. Hensley’s opinion was based almost exclusively on the

children’s expressed preferences, given she did not have contact with Father and had not

independently observed his interactions with the children. Notably, Ms. Hensley’s role was

confined to counseling the children and did not include determining appropriate custodial

responsibilities or assessing whether Father was fit to exercise parenting time. Based on

such circumstances, we find that the family court acted within its discretion in assigning

limited weight to Ms. Hensley’s testimony.5 See In re D.S., 251 W. Va. 466, 472, 914 S.E.2d

701, 707 (2025) (explaining, appellate courts “review the [lower] court’s decision under

determine that Ms. Hensley’s subsequent testimony was inconsistent with those findings

and less persuasive as a result.

5

We find Mother’s reliance on Nathan H. v. Ashlee R., No. 21-1019, 2023 WL

245344 (W. Va. Jan. 18, 2023) (memorandum decision) misplaced. In Nathan H., a motion

for modification of the parenting plan was made to accommodate the preferences of the

child, who was over fourteen years of age, pursuant to West Virginia Code § 48-9-

402(b)(3). As such, the SCAWV determined that it was improper for the family court to

wholly disregard the expert testimony of the child’s therapist, who advocated for the child’s

preferences regarding custodial allocation. In the instant case, unlike Nathan H., the

children are not yet fourteen years of age, and the motion for modification was based on a

substantial change in circumstances, pursuant to West Virginia Code § 48-9-401, and not §

48-9-402(b)(3).

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the deferential standards . . . and do not reweigh the evidence or make credibility

determinations.”).

Next, we consider whether the family court abused its discretion by

modifying the parties’ parenting plan based on a purportedly erroneous finding that a

substantial change in circumstances occurred and a flawed analysis of the children’s best

interest standard. West Virginia Code § 48-9-401 establishes three criteria for modification

of a parenting plan based on a change in circumstances:

[A] court shall modify a parenting plan order if it finds, on the

basis of facts that were not known or have arisen since the entry

of the prior order and were not anticipated in the prior order,

that a substantial change has occurred in the circumstances of

the child or of one or both parents and a modification is

necessary to serve the best interests of the child.

W. Va. Code § 48-9-401(a). As the party seeking modification, Father bore the burden of

establishing a change in circumstances that meets this standard. See Goff v. Goff, 177 W.

Va. 742, 356 S.E.2d 496 (1987) (holding that the burden of proof is on the parent seeking

to modify the parenting plan).

Here, Father identified the fact that he had exercised unsupervised parenting

time for an 18-month duration with “no reported incidents or issues” as a changed

circumstance to support modification of the parenting plan. On appeal, Mother argues that

Father’s alleged change in circumstance was anticipated by the October 13, 2023, order. In

support of her argument, Mother contends that the family court would not have ordered

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gradual increases in Father’s unsupervised parenting time had it anticipated that issues

would have transpired with Father during that time. While the family court may have

assumed that Father would exercise his contemplated parenting time without incident, the

parenting plan did not identify that assumption as a basis to support a future modification.

The SCAWV recently explained what is meant by the phrase “not

anticipated” as used in West Virginia Code § 48-9-401(a):

“[U]nder the plain meaning of the statute, the relevant question

is not whether a particular change in circumstance could have

been anticipated, but whether the parenting plan actually did

anticipate, and provide accommodation for, the particular

change.” Skidmore v. Rogers, 229 W. Va. 13, 21, 725 S.E.2d

182, 190 (2011). “The phrase ‘not anticipated therein’ does not

mean that the change in circumstance could not have been

anticipated generally, but rather that the parenting plan order

does not make provisions for such a change.” Ibid.

Jared M. v. Molly A., 246 W. Va. 556, 562, 874 S.E.2d 358, 364 (2022) (emphasis in

original). In the instant case, the parenting plan sought to be modified makes no provision

for the change in circumstances identified by Father. By virtue of awarding Father gradual

increases in unsupervised parenting time, the family court surely anticipated that Father

would engage in that time without occurrences or worsening of limiting factors, including

reports of domestic violence. Yet, the parenting plan does not incentivize Father to maintain

this progress by stating that adjustments will occur if Father engages in parenting time

without such occurrences. The parenting plan does not state, for example, what would

happen were Father to fully exercise his contemplated, unsupervised parenting time

without the occurrence or worsening of a limiting factor. Nor does the parenting plan state

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that adjustments will occur if Father engages in such parenting time without further reports

of domestic violence. As the parenting plan did not provide for adjustments in the event

Father fully exercised his unsupervised parenting time without an occurrence or worsening

of a limiting factor, such change was not “anticipated” in the parenting plan within the

meaning of West Virginia Code § 48-9-401(a). See id. at 562, 874 S.E.2d at 364 (finding,

identified changes in circumstances were not “anticipated” where the parenting plan was

silent on those matters).

As we find that Father’s alleged change was not anticipated under the

parenting plan, the next inquiry is whether the change was “substantial.” For purposes of a

modification based on a change in circumstances, West Virginia Code § 48-9-401(d)

provides that “the occurrence or worsening of a limiting factor, as defined in [West Virginia

Code] § 48-9-209(a) . . . , after a parenting plan has been ordered by the court constitutes

a substantial change of circumstances . . . .” Although the statute expressly contemplates a

substantial change in circumstances based upon the occurrence or worsening of a limiting

factor, it is silent as to whether the improvement or alleviation of a previously found

limiting factor may also constitute a substantial change in circumstances. When faced with

this silence, we must ascertain and give effect to the intent of the Legislature in enacting

the statute in question. See Syl. Pt. 1, Smith v. State Workmen’s Comp. Com’r, 159 W. Va.

108, 219 S.E.2d 361 (1975) (“The primary object in construing a statute is to ascertain and

give effect to the intent of the Legislature.”). “In ascertaining legislative intent, effect must

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be given to each part of the statute and to the statute as a whole so as to accomplish the

general purpose of the legislation.” Id. at 109, 219 S.E.2d at 362, Syl. Pt. 2.

The Legislature was careful to identify three circumstances that do not justify

a modification of a parenting plan pursuant to West Virginia Code § 48-9-401:

(c) Unless the parents have agreed otherwise, the following

circumstances do not justify a significant modification of a

parenting plan except where harm to the child is shown:

(1) Circumstances resulting in an involuntary loss of

income, by loss of employment or otherwise, affecting the

parent’s economic status;

(2) A parent’s remarriage or cohabitation, except under the

circumstances set forth in § 48-9-209(f) of this code; and

(3) Choice of reasonable caretaking arrangements for the

child by a legal parent, including the child’s placement in

day care.

W. Va. Code § 48-9-401(c). By expressly enumerating circumstances that do not constitute

a substantial change, the Legislature demonstrated its intent to exclude only those specific

circumstances. Significantly, the statute contains no language that forecloses the lessening,

improvement, or alleviation of a limiting factor as a change in circumstances warranting

modification of a parenting plan. Accordingly, when read as a whole, we conclude that

West Virginia Code § 48-9-401 cannot reasonably be interpreted to restrict substantial

changes in circumstances to solely the occurrence or worsening of a limiting factor, and

we decline to construe this statute so narrowly.

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To hold that only the occurrence or worsening of a limiting factor may

support a finding of a changed circumstance, while its lessening, improvement, or

alleviation may not, would produce an irrational and untenable result. Under such an

interpretation, a parent who has remediated a circumstance that previously restricted

parenting time would have no means to seek reunification with a child. Such an

interpretation would be inconsistent with the statutory scheme and with its underlying

purpose, which contemplates both the protection of children and meaningful contact

between a child and each parent. See W. Va. Code § 48-9-102(a).

This Court has previously recognized, albeit in the context of a Section 209(f)

limiting factor, that “[w]hen a parent is determined to be addicted to a substance or is

dealing with tendencies of substance abuse, the sobriety and abstinence from such

substance provides a basis for modification” under Section 401(a). Kane M. v. Miranda M.,

250 W. Va. 701, 705, 908 S.E.2d 198, 202 (Ct. App. 2024) (citing Dancy v. Dancy, 191 W.

Va. 682, 685, 447 S.E.2d 883, 886 (1994)). See also Tevya W. v. Elias Trad V., 227 W. Va.

618, 626, 712 S.E.2d 786, 794 (2011) (Workman, J., concurring) (“Because the duration of

time that a person achieves sobriety is a significant factor in recovery, I believe that

continued sobriety should be considered as an additional change in circumstances. A parent

who has remained sober for nearly five years has a far more powerful claim to a change in

circumstances than a parent who has been drug-free for merely a month. Such long-lasting

transformations reveal a level of stability and personal advancement that is more deserving

of consideration by the family court”). We now hold that the lessening, improvement, or

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alleviation of a previously found limiting factor, as defined under West Virginia Code § 48-

9-209[(a)], may constitute a substantial change in circumstances warranting modification

of a parenting plan under Section 401(a).

In this regard, the family court found that Father alleviated the previously

found limiting factor that restricted his parenting time. In so finding, the family court

determined that no party has alleged a single incident of domestic violence committed by

Father since the fall of 2020 and that Father has had unsupervised parenting time without

any limiting factors occurring. The family court also found previously in its 2023 Final

Order-Custody that Father complied with all orders regarding his participation and

completion of counseling, therapy, and a psychological evaluation. We do not disturb the

family court’s conclusion that the totality of this evidence is probative of alleviation of the

circumstance that originally justified the restrictions to Father’s parenting time and we,

accordingly, find no error in this regard. Mother’s simple disagreement with the family

court’s weighing of this evidence does not establish error.

While a change in circumstance is one factor, modification of a parenting

plan is also subject to the children’s best interests, taking us to the final inquiry under the

applicable criteria. See W. Va. Code § 48-9-401(a); see also Syl. Pt. 3, Andrea H. v. Jason

R.C., 231 W. Va. 313, 745 S.E.2d 204 (2013) (“To justify a change of child custody, in

addition to a change in circumstances . . . it must be shown that such change would

materially promote the welfare of the child.”). Mother claims that the family court failed

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to consider each factor set forth in West Virginia Code § 48-9-102 in determining the best

interests of the children. We disagree.

Throughout West Virginia history, the best interests of the child has been “the

polar star” that steers all child custody issues. Brooke B. v. Donald Ray C., 230 W. Va. 355,

738 S.E.2d 21 (2013); accord W. Va. Code § 48-9-101(b) (stating, child custody decisions

should revolve around the best interests of the children). The Legislature has instructed that

the best interests of the child may be facilitated by ensuring the following:

(1) Stability of the child;

(2) Collaborative parental planning and agreement about the

child’s custodial arrangements and upbringing;

(3) Continuity of existing parent-child attachments;

(4) Meaningful contact between a child and each parent, and

which is rebuttably presumed to be equal (50-50) custodial

allocation of the child;

(5) Caretaking and parenting relationships by adults who love

the child, know how to provide for the child’s needs, and who

place a high priority on doing so;

(6) Security from exposure to physical or emotional harm;

(7) Expeditious, predictable decisionmaking and avoidance of

prolonged uncertainty respecting arrangements for the child’s

care and control; and

(8) Meaningful contact between a child and his or her siblings,

including half-siblings.

W. Va. Code § 48-9-102(a). With respect to the rebuttable presumption of equal 50-50

custody, West Virginia Code § 48-9-102a provides:

There shall be a presumption, rebuttable by a preponderance of

the evidence, that equal (50-50) custodial allocation is in the

best interest of the child. If the presumption is rebutted, the

court shall, absent an agreement between the parents as to all

matters related to custodial allocation, construct a parenting

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time schedule which maximizes the time each parent has with

the child and is consistent with ensuring the child’s welfare.

When determining the best interests of a child, “all relevant factors must be considered,

and the family court must make adequate findings of fact and conclusions of law to support

its decision and [] allow for meaningful appellate review.” Stacey J. v. Henry A., 243 W.

Va. 150, 158-59, 842 S.E.2d 703, 711-12 (2020).

While the family court’s order on appeal did not conduct a factor-by-factor

analysis of the best interest statute, it adequately reflects consideration of the applicable

factors for meaningful appellate review. With respect to the first and third factors—stability

of the children and continuity of existing parent-child attachments—the family court

recognized that the children were not accustomed to having overnight visitations with their

father, and thus, a gradual increase in Father’s unsupervised parenting time was appropriate

as opposed to an immediate expansion to a 50-50 allocation. The second factor—

collaborative parental planning and agreement about the child’s custodial arrangement and

upbringing—is neutral. The parents previously mediated an agreement on holiday time. No

evidence was presented from which this Court can glean that the parents have been unable

to collaborate in this regard, as further demonstrated by the family court’s directive for the

parents to continue mutually determining holiday time. The fourth factor—meaningful

contact between a child and each parent, which is rebuttably presumed to be equal custodial

allocation—disfavors removing Father’s restrictions or, at best, is neutral. The family court

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found that the statutory presumption favoring a 50-50 allocation was rebutted due to

Father’s prior domestic violence toward Mother in 2020.

The fifth factor—caretaking and parenting relationships by adults who love

the child, know how to provide for the child’s needs, and who place high priority on doing

so—weighs in favor of the modification. As the family court observed, Father fully

exercised his parenting time with his children without reports of domestic violence or the

occurrence of any limiting factors. No evidence was presented that suggests Father does

not prioritize his children’s needs. The sixth factor—security from exposure to physical or

emotional harm—is neutral. The family court recognized the emotional and psychological

harm that Father’s prior domestic violence towards Mother in 2020 had on the children.

Yet, the family court also considered that no further allegations of domestic violence had

occurred since that incident; that Father has had limited, unsupervised parenting time with

his children since October of 2023 without a limiting factor occurring; and that Father

alleviated his previous limiting factor. In addition, the court previously found, in its

unappealed October 13, 2023, Final Order-Custody, that father successfully participated in

and completed all court-ordered therapy, counseling, and a psychological evaluation. The

seventh factor—expeditious, predictable decisionmaking and avoidance of prolonged

uncertainty respecting arrangements for the child’s care and control—is neutral as there is

no evidence in the record that suggests the modifications at issue impact the children’s

routines or the parties’ parenting roles. The eighth factor—meaningful contact between a

child and his or her siblings—is not applicable since the children have not been separated

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for custodial purposes. Upon our review of the record, we cannot find that the family court

failed to consider these factors. Viewed as a whole, the family court’s June 10, 2025, order

evinces careful consideration of the statutory framework, the evidence presented, and the

children’s needs. Accordingly, we find that the family court acted within its discretion in

modifying the parenting plan based on its determination that removing supervised and non-

overnight restriction from Father’s parenting time would serve the best interests of the

children.

As to her final issue on appeal, Mother argues that the family court’s removal

of Father’s supervision and non-overnight restrictions disregarded the legislative intent of

the WVDA and relieved Father of his burden of proving that this modification would not

endanger the children in accordance with West Virginia Code § 48-9-209(c). Although we

disagree that the WVDA precludes the family court’s modification of the parenting plan,

we are unable to determine whether removal of Father’s supervision and non-overnight

restrictions was appropriate because the final order erroneously failed to make specific,

written findings addressing whether this modification could adequately protect the children

from harm.

West Virginia Code § 48-9-209[(a)] identifies a non-exhaustive list of

limiting factors that a family court must consider when implementing a parenting plan. One

of those factors is whether a parent has committed domestic violence. See W. Va. Code §

48-9-209[(a)](3). Upon a court’s finding that a parent has committed domestic violence,

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Section 209(b) states, “the court shall impose limits that are reasonably calculated to

protect the child . . . from harm.” This section further provides several restrictions or

measures to protect children, such as supervised parenting time, denial of overnight

custodial responsibility, an adjustment to the parents’ custodial responsibilities, and any

other conditions that the court determines to be necessary to provide for the safety of the

child. See W. Va. Code § 48-9-209(b). Further, Section 209(c) provides that if a parent has

committed domestic violence, “the court may not allocate custodial responsibility . . . to

that parent without making special written findings that the child and other parent can be

adequately protected from harm by such limits as it may impose under subsection (b) of

this section.” W. Va. Code § 48-9-209(c) (emphasis added). A parent found to have

committed domestic violence bears the burden of proving that “an allocation of custodial

responsibility . . . to that parent will not endanger the child . . . .” Id.

The foregoing principles must be read in conjunction with the WVDA when,

as here, a perpetrator of domestic violence seeks modification of custodial responsibilities.

The WVDA provides that “[a] court may award visitation of a child by a parent who has

committed domestic violence only if the court finds that adequate provision for the safety

of the child and the petitioner can be made.” W. Va. Code § 48-27-509(a). The Legislature

stated that the WVDA must be liberally construed to, among other things, “recognize that

domestic violence constitutes serious criminal behavior with potentially tragic results” and

“that the existence of a former or on-going familial . . . relationship should not serve to

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excuse, explain or mitigate acts of domestic violence which are otherwise punishable as

crimes under the laws of this state.” W. Va. Code § 48-27-101(b).

Contrary to Mother’s assertion, the family court did not minimize or ignore

the long-term emotional impact that domestic violence may have on children. To the

contrary, the court expressly considered Father’s prior domestic violence toward Mother

and relied on that history to conclude that the statutory presumption favoring an equal

allocation of custodial responsibility had been rebutted. The court’s refusal to award 50-50

custody reflects its recognition of the seriousness of Father’s prior domestic violence and

its impact on the children, consistent with the WVDA.

Even more, the statutory framework does not categorically bar a perpetrator

of domestic violence from obtaining a modification to a parenting plan. Rather, West

Virginia Code § 48-9-209(c) places the burden on the offending parent to establish that a

further allocation of custodial responsibility will not endanger the children. While the

family court expressly recognized this standard, its order failed to include sufficient

analysis or special written findings addressing whether the children can be adequately

protected from harm by removing the supervision and non-overnight restrictions from

Father’s parenting time. Based on this omission, we find that the family court’s order does

not satisfy the plain requirements of the applicable code provision. Accordingly, this Court

converts the June 10, 2025, final order into a temporary order and remands this matter to

the family court with instructions to issue a new order that contains additional findings

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analyzing whether the children and Mother can be adequately protected from harm based

on the restrictions set forth in the parenting plan. The family court may hold an evidentiary

hearing if further factual development is necessary to comply with these instructions.

IV. CONCLUSION

For the foregoing reasons, we affirm, in part, the June 10, 2025, Final Order

Granting Modification of Custody insofar as it discredited a portion of Ms. Hensley’s

testimony and found that the alleviation of Father’s limiting factor constituted a substantial

change in circumstances that warranted modification of the parenting plan in furtherance

of the children’s best interests. We convert the June 10, 2025, order to a temporary order

and remand to the Kanawha County Family Court with instructions to make special written

findings addressing whether the children and Mother can be adequately protected from

harm based on the restrictions set forth in the parenting plan, in accordance with West

Virginia Code § 48-9-209(c).

Affirmed, in part, and Remanded with instructions.

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