# Rose v. Rose > West Virginia Supreme Court · February 7, 1986 · 176 W. Va. 18 URL: https://www.frixlaw.com/law-library/cases/9576359 ## Case - **Full name:** George A. ROSE v. Sharon A. ROSE - **Court:** West Virginia Supreme Court - **Decided:** February 7, 1986 - **Citations:** 176 W. Va. 18; 340 S.E.2d 176 - **Precedential status:** Published - **Opinion:** Dissent by McGRAW - **Judges:** Brotherton, McGraw - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9576359 ## Opinion text McGRAW, Justice, dissenting: The trial court, in my view, clearly abused its discretion in its determination that the primary caretaker presumption was rebutted in this proceeding by the expression of a ten-year-old’s preference based upon his professed dislike for the primary caretaker’s new social companion. In Syllabus Point 7 of Garska v. McCoy, 167 W.Va. 59 , 278 S.E.2d 357 (1981), this Court permitted consideration of the preference for one parent by a child under the age of fourteen only where the child is “sufficiently mature that he can intelligently express a voluntary preference for one parent.” The majority confuses intelligence with maturity and ignores substantial evidence that the preference expressed was not voluntary. As the majority notes, the child chose to reside with his mother when she departed the marital residence on March 13, 1984. A few weeks later, in early April, 1984, the father picked up the child at school and told him that he had seen the child’s mother and another man in a parked car .next to the highway. The record does not reflect the father’s characterization of their activities to the child. In any event, the child soon indicated to his mother that he now desired to live with his father. He reiterated this desire to the trial court at the in camera hearing. A review of the record of the in camera hearing reveals only the most perfunctory of examination: THE COURT: Now, have you thought about with which parent you would like to live? ANSWER: Yes. THE COURT: Have you made a decision with regard to which parent you would like to live with? ANSWER: Yes. THE COURT: Without telling me why, which parent would yoii rather live with? ANSWER: With my dad. THE COURT: Now tell me why? ANSWER: I don’t like Denver [the new social companion] and I don’t like what went on. THE COURT: Have you spent any time with Denver? ANSWER: No, but I have been with him at fireworks and I didn’t like him. I stayed away from him. *23 THE COURT: Is there anything else you’d like to tell me? ANSWER: No. THE COURT: That is all the questions I want to ask you, Brian. Obviously, information concerning what the child thought “went on” between his mother and her new boyfriend would have been helpful in determining the reason for the child’s dislike of him. It is impossible to ascertain from the record what the child had been told by his father concerning the new boyfriend. There is absolutely no indication in the record of the basis for the child’s animosity toward the new boyfriend. Moreover, even if the child did genuinely dislike this gentleman, no effort was made to explore the character of the relationship between the child’s mother and the boyfriend. It is unimaginable that a child’s dislike of his or her primary caretaker’s casual acquaintances could alone form a rational basis for rebuttal of the primary caretaker presumption. With respect to the child’s maturity, both the majority and the trial court rely upon his apparent intelligence and his performance in school as if maturity and intellect were one and the same. Although superior intellect may enhance the process of maturation, as any experience with intellectually gifted children will quickly confirm, the two do not always operate in tandem. The swift reversal of the child’s initial choice to reside with his mother is indicative of at least his inconstancy, if not his immaturity. Curiously, the very reasons this case should have been reversed and remanded are buried in footnote number four of the majority opinion. They involve the volun-tariness aspect of this Court’s holding in Garska v. McCoy. The majority states, obviously ignoring the woefully inadequate colloquy in the instant case, that “the trial court should try to explore several aspects of the child’s decision.” First, the majority notes that the child’s choice should be expressed with “strength, clearness, or with great sincerity.” Responses such as “yes” or “with my dad” are hardly elaborate expressions of sincere personal choice. Second, the majority observes that preference based on “a desire for less rigid discipline” should be given less weight. Absolutely no inquiry was made of the child in this proceeding regarding this factor. Third, the majority states that a child’s preference “induced by the party in whose favor the preference was expressed” should be accorded little weight. Clearly, not only did the child’s preference change after the father’s interjection of the relationship between the mother and her boyfriend, the mother alleged that the father “buttered Brian up” before the divorce proceeding by buying him lavish gifts and by catering to his every whim. Finally, the majority notes that an “illogical decision based on unimportant factors” by a child with respect to preference may be disregarded. Without further exploration of the actual relationship between the mother and her new boyfriend, the child’s lack of affection for him is relatively of little importance. The majority’s candid admission that “a deeper inquiry into some of the[se] areas ... may have been helpful in this case” is a paradigm of understatement. The unfortunate message of the majority’s opinion is unavoidably clear. In a custody battle, all’s fair in the war over the love of a child. Surreptitious surveillance in order to gain some advantage with the child is encouraged. Psychological ploys designed to destroy the child’s affection for the other parent are promoted. Even outright bribery is rewarded. In the end, the parent who has been most successful in destroying the child is declared the winner. Abraham Lincoln once said, “Love is the chain whereby to bind a child to his parents.” F. Carpenter, Six Months at the White House with Abraham Lincoln (1866). The majority’s opinion permits the award of a priceless gift not to a parent motivated by the love of a child, but rather by the hatred of another parent. Because I am of the view that, as between the two, love should prevail, I am compelled to voice my dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9576359. Public record. Not legal advice.