Dempsey v. Dempsey , 172 W. Va. 419 ( 1983 )

MILLER, Justice,

dissenting:

I dissent from the majority opinion because it confirms the trial court’s award of custody of an eight-year-old child to the appellee-father, John Dempsey. I believe the trial court was in error when it found both parents to be primary caretakers and then applied the best interest of the child test. The evidence to my mind clearly shows that the mother was the primary caretaker until she had to relinquish temporary custody of the child to the father. The reason for the relinquishment was that Mr. Dempsey abandoned her and the child in Delaware and failed to send her any support money when he returned to this State. In order to alleviate her destitute situation, she arranged to have the child temporarily taken by him, and his parents seem to have been the ones who actually had the daily care of the child. Once the father obtained the child, he instituted the divorce action in this State. These facts can be gleaned even from the majority’s opinion except they are presented in more dulcet tones.

Certainly, we pervert the principle of Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981), if we permit a primary caretaker to lose her favored role simply because her husband abandons her and his child without any meaningful support, thereby, forcing her to give up physical custody of the child. This, by the way, was what happened in Garska, but the mother was able to move in with her parents. Presumably, if Mrs. Dempsey had delivered temporary custody of the child to the Delaware Department of Welfare, she could have avoided the problem. Because she chose a more humane approach, she has now lost her child, a singularly inequitable result.