The opinion
NEELY, Justice,
dissenting:
[Filed Dec. 13, 1993.]
As the majority points out, the traditional rule in West Virginia is that a biological parent has a right to custody as against a third party unless unfit or guilty of neglect or abandonment. Syllabus point 1, In Re Custody of Cottrill, 176 W.Va. 529 , 346 S.E.2d 47 (1986). Where, however, a biological mother represents to the putative father that he is the biological father of the child and the putative father responds to his detriment by marrying the biological mother and assuming a caring role toward the child, the putative father may have standing to assert a right to custody of the child; he may also have the benefit of the primary caretaker presumption if the facts so warrant. See majority opinion at 539.
In Syllabus point 3 of Garska v. McCoy, 167 W.Va. 59 , 278 S.E.2d 357 (1981), we held that if the trial court is unable to establish that one parent has clearly taken primary responsibility for the caring and nurturing duties, neither party shall have the benefit of the primary caretaker presumption. In other words, in the absence of a definite determination of a primary caretaker, the analysis shifts to an ascertainment of the best interests of the child and the court must proceed to inquire further into relative degrees of parental competence. As the trial court order stated: “although the law favors the rights of the biological parent, the same is not so strong as to supersede the rights of the child.”
In concluding that this custody case must be resolved on the basis of the best interests of the child, I reject the majority’s contention that the rule favoring a mother in a custody dispute with a nonbiological father to whom she is not married is a device to “foster marriage as a means of creating a stable family for the child” and to encourage the child’s natural father to legitimize the child. Rather the rule fosters both the parent’s rights and the well-being of the child by *362 recognizing that they ordinarily converge. Conversely, where extraordinary circumstances exist, other jurisdictions have recognized that those interests may not necessarily converge, and further inquiry into the child’s best interests is then required before a custody dispute between a parent and non-parent may be resolved. See e.g., Matter of Bennett v. Jeffreys, 40 N.Y.2d 543 , 387 N.Y.S.2d 821 , 356 N.E.2d 277 (1976). As the court in Bennett said,
[Intervention by the State in the right and responsibility of a natural parent to custody of her or his child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstances which could drastically affect the welfare of the child. It is only on such a premise that the courts may then proceed to inquire into the best interests of the child and to order a custodial disposition on that ground.
40 N.Y.2d 543, 549 , 387 N.Y.S.2d 821 , 356 N.E.2d 277 , supra. [Emphasis added].
The majority properly found that the trial court was correct in concluding that Ms. Comer had not abandoned the child and that she was not unfit; but, abandonment, neglect and unfitness are not the exclusive circumstances that can trigger an inquiry into the child’s best interests. In this case, in the first year and one half of the child’s life, Ms. Comer’s conduct had the effect of authorizing and encouraging the development of a father-daughter relationship between Mr. Simmons and the child. During that time, Mr. Simmons, as Ms. Comer admits, had in all respects acted as the father of the child. As the trial court recognized, termination of that relationship would likely have a traumatic effect on the child. Accordingly, we believe that Ms. Comer, through her involvement in the creation and development of the father-daughter relationship between Mr. Simmons and the child, has put the child in a situation where her welfare will be affected drastically, and, thus, an extraordinary circumstance exists requiring inquiry into the child’s best interests.
The best interests issue is separate and distinct from the extraordinary circumstances issue and must be decided on the basis of evidence relevant to whether the child’s best interests will be served by granting custody to Ms. Comer or to Mr. Simmons. Under the “individualized” approach to the ‘best interests of the child’ standard, custody, when contested, goes to the parent who the court believes will do a better job of child rearing. David M. v. Margaret M., 182 W.Va. 57, 63 , 385 S.E.2d 912, 918-19 (1989).
In this case, the circuit court determined that the best interests of the child would be served by awarding custody to Mr. Simmons. The child’s babysitter, Karen Casto, testified that when Mr. Simmons brought the child to her, the child would be dressed with diapers changed from the night before; she would have clean bottles and if she were on medication, Mr. Simmons would have given her the proper dosage before dropping her off with Ms. Casto. When Ms. Comer brought the child to Ms. Casto, in contrast, the baby frequently was in wet diapers; her diaper bag contained sour bottles of milk from the night before and she would forget to bring the child’s medication. Indeed, on the limited number of nights when Loretta Comer kept the child when she had moved from the Simmons home, Mr. Simmons took the child to his home after work, fed her, bathed her, got her ready for bed and then took her to Ms. Comer’s mobile home to spend the night.
At the same time, Ms. Comer, when asked with whom she had lived after she left the Simmons residence, was unable to recall the names of the men who had resided with her. When asked the number of men with whom she had lived since moving out of the Simmons’ home, she stated: “I can’t say. I mean ... I don’t keep a log.” In August 1991, she gave birth to her third illegitimate child. The evidence before us establishes that Mr. Simmons would provide the child a more stable and emotionally safer family environment and emphatically confirms the trial court’s finding that Mr. Simmons possesses parenting skills better than those of the child’s mother.
Furthermore, for public policy reasons, Ms. Comer, having held her child out as the *363 legitimate daughter of Mr. Simmons for a substantial period, should be precluded from thereafter bastardizing the child for the sole purpose of furthering her own self-interest in obtaining exclusive custody of the child. If indeed the child is born during coverture, it is an exercise in extraordinary irony to say that while the father cannot bastardize the child, the mother can. The law must, at the very least, give an appearance of neutrality.
For the foregoing reasons, I would affirm the trial court’s judgment, and respectfully dissent. I am authorized to say that Justice Brotherton joins in this dissent.