The opinion
NEELY, Justice,
dissenting:
(Filed July 22, 1994)
There is a disturbing lack of honesty about this Court’s treatment of custody issues. The playing field is simply not level, but is banked against fathers. The family law master, after listening to all the evidence first hand, found that Dan Shearer, IV, should be given custody. The Circuit court reviewed the evidence presented and concluded that there had not been an abuse of discretion by the family law master, and accordingly affirmed the custody ruling in Mr. Shearer’s favor.
Then this Court steps in and goes through elaborate contortions to reverse the lower court’s ruling and grant custody to the mother. Yet, in a case argued before this court on the same day, Dancy v. Dancy, 191 W.Va. 682 , 447 S.E.2d 883 (1994), the majority essentially deferred to the decision of the Circuit court in adopting another family law master’s recommendation giving custody to Mrs. Dancy — a recovering alcoholic. In Dancy , although the Court acknowledged that the record showed that Mrs. Dancy’s alcoholism had interfered with her ability to supervise the child, we nonetheless upheld custody in Mrs. Dancy’s favor, concluding that no abuse of discretion by the lower court occurred.
How is it that this Court in Dancy, supra at 682 , 447 S.E.2d 883 , can justify awarding custody to a recovering alcoholic by citing to Syl. pt. 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 969 , 216 S.E.2d 570, 573 (1975):
The exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused: however, where the trial court’s ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal.
then, turn around and reverses a lower court ruling despite an admission that “[tjhere was no evidence introduced in this ease that indicates either of the parties was an unfit parent”! Shearer, at 169. If there was no evidence that Mr. Shearer was unfit, then the lower court’s ruling in his favor surely couldn’t be “clearly wrong”.
Mrs. Shearer admitted that Mr. Shearer did the grocery shopping, laundry, and cooking, as well as being actively involved in his son’s toilet training, discipline, educational, and social activities. 1 Mr. Shearer did all these things while completing a master’s degree. He was able to list his son’s preference for certain foods, showed awareness of special dietary requirements, used special detergents for his son’s clothing because of skin sensitivity, and knew his son’s favorite books. 2
Furthermore, Mr. Shearer’s extended family lives in Morgantown including his father, grandparents, siblings, and cousins, and routinely interacted with Mr. Shearer and his son. Father and son participated in family gatherings on holidays, summers at the lake, sporting events, and other informal activities. This provided his son with playmates, role models, and an extended support network providing enhanced stability and security.
There was no similar evidence of the child’s participation in family gatherings with Mrs. Shearer’s parents or siblings. In fact, Mrs. Shearer’s sister lived in Morgantown but never even attended a dinner at the Shearer home. 3 The majority decision removes a five year old child from the familiar surroundings of his family and grandparents, with whom he has lived exclusively for the past two years, and places him with his mother. A mother who now resides out of state and only visited on weekends. Sending *740 this child out of state, to live with Mrs. Shearer away from his father and extended family with whom he spent almost two thirds of his life, cannot be in his best interests. 4
The simple truth is that there is a rampant gender bias that has clouded the majority’s ability to render impartial decisions in the area of family law. 5 This case, and the majority decision in Dancy , are indicative of a disturbing trend that needs to be investigated by the newly formed West Virginia Task Force on Gender Bias. For further discussion of how gender bias hurts society as a whole and does a grave disservice to all people, see my dissent in Metzner v. Metzner, 191 W.Va. 378 , 446 S.E.2d 165 (1994).
In the children’s book by Dr. Seuss, Horton Hatches the Egg, Horton the elephant devotedly sat on a bird’s nest while Mayzie, a lazy bird, went on an extended vacation returning months later, when the egg was hatching and demanded custody. The elephant prevailed, and in the words of Dr. Suess:
“And it should be, it should be, it SHOULD be like that!
Because Horton was faithful! He sat and he sat!
... And they sent him home Happy,
One hundred per cent!
(emphasis in original)
Mr. Shearer sat on the “nest” alone for the past two years, and this court sent him home empty handed. I have no doubt that “but for” Mr. Shearer’s gender, the outcome in this case would have been different, and for this reason I dissent.
. Response brief of respondent, Dan L. Shearer, IV, in opposition to the petition for appeal, p. 13, March 26, 1993.
. Brief of Appellee, Dan L. Shearer, IV, p. 23-24 (April 1, 1994).
. Id. at 23.
. Id. at 39.
. This would appear to be the outraged rantings of an irate male but when the prevailing gender bias in America went the other way and favored men, it was I who wrote The Primary Caretaker Parent Rule, 111 YALE L. & POL'Y REV. 168 (Fall 1994), which summarizes the technique men employ to terrorize .women with threats of custody cases to exact economic concessions in divorce cases. See also, J.B. v. A.B., 161 W.Va. 332 , 242 S.E.2d 248 (1978), Garska v. McCoy, 167 W.Va. 59 , 278 S.E.2d 357 (1981) (describing the primary care taker rule).