Mary Ann P. v William R.P. Jr., Case Questions

Chapter Five . Child Custody 246 Getrides inMARY ANN P. v. WILLIAM R.P., JR. 197 W. Va. 1, 475 S.E.2d 1 (1996) s I. FACTS ta The parties were married in March of 1985 and two sons were born of the hi marriage. William Raphael P. III (Billy) was born in May of 1985 and Mark ru Patrick P. was born in July of 1986. The record reflects that from the begin- Th ning the couple had a troubled marriage. The defendant was physically H and mentally abusive to the plaintiff throughout their marriage. ... bu The plaintiff received custody of the children as she was determined do to be the primary caretaker. The numerous proceedings held before the family law master focused primarily on the defendant's visitation rights visi which are at issue in this appeal. At the March 3, 1992, hearing before the the family law master, the plaintiff detailed the physical and mental abuse that visi occurred during the marriage. She testified the defendant did not want her stat to have either of the boys and he urged her to have abortions both times tend she became pregnant. He showed little interest in the children when they child were infants and openly expressed his disappointment that he had boys held instead of girls. ... The plaintiff also testified the defendant had a violent temper and heari would yell and curse at her in front of the children. .. . During arguments, for th the defendant punched and kicked the plaintiff. He threatened her with a high knife. He choked her around the neck so hard she had to wear a scarf to he wi hide the bruises. He drug [sic] her across the floor by her hair in front of the anym children. The plaintiff testified that when the children would witness this cause abuse they would scream and cry and try to hide. The defendant would hit dren h and kick the children's toys and broke toys in front of the children in fits of anger rage. The plaintiff testified that "the trauma and crying that these children plainti have seen in their life is unreal." A During one argument, the defendant locked the plaintiff out of the recomm house and kept the children inside. She testified she was afraid for the children's safety and put her fist through a window to w to enter the house . " It damage. She severed three nerves in her arm and underwent surgery to correct the bed can Billy and Mark have severe allergy problems and needed frequer rigl medical treatments for ear infections, allergies, and colds when they Were infants. The plaintiff testified the defendant was not sympathetic to the children's medical needs and, on certain occasions, blocked her attempt violence to get medical attention for the boys because he believed the plained would be was overreacting to the children's symptoms. The defendant continue The mended problems. to smoke in front of the boys even though it caused I them respiratory whether CirMary Ann P. v. William R.P., Jr. 247 Despite the foregoing, the plaintiff maintains she encouraged the chil- dren's visitation with their father following the separation. However, she stated he exercised his visitation rights sporadically. .. . The plaintiff testified Billy and Mark no longer want to have any con- fact with their father. It upsets them greatly when they have to visit with him. When the defendant comes to the house to visit, the boys frequently fun and hide and have to be coaxed to come out to speak with their father. The plaintiff testified the visitations have had a profound effect on Billy. He has nightmares and acts out aggressively toward other children. Billy builds traps and barricades and frequently checks to see the doors and win- dows are locked because he is afraid the defendant will enter the house. Several witnesses who accompanied the defendant on supervised visits testified regarding the boys' and the defendant's behavior. While the evidence is somewhat conflicting, it appears the boys do not want to visit their father and behave poorly in his presence. . .. The defendant ... stated his visitations with the children are not as bad as the plaintiff con- tends. He testified that the plaintiff interferes with his relationship with his children. ... Christina Marie Arco, Ph.D., a psychologist . . ., testified at a hearing held in October of 1994 that she provided therapy for the children. At a hearing held in January of 1995, Dr. Arco testified she was still seeing Billy for therapy. She stated that Billy's anger and aggressiveness are at very high levels. He has fears and anxieties about his father. Billy told Dr. Arco he wished his father were dead so he would not have to worry about him anymore. Dr. Arco testified that any forced visitation with his father would cause serious regression in Billy. She also stated that the negativity the chil- dren have about their father is much more motivated by fear, anxiety, and anger than by any negative comments that may have been made by the plaintiff. ... After hearing the . . . evidence, the family law master rendered his recommended order. He found: "It is clear that . . . plaintiff does not like the defendant, and justifiably so because of the history of physical violence in their marriage, but that there can be no further justi her justification whatsoever of any restriction of defendant's right of visitation with ... The family law master stated that, due to the history of domestic wolence in the case, for six months the defendant's visitation with the boys would be restricted to the presence of a third person. ... intiff exceptions to the family law master's recom- winded decision . . . . After hearing additional evidence on the issue of circuit court ora whether resumption of visitation would be harmful to the children, the ordered supervised visitation with the defendant until theChapter Five . Child Custody 248 boys attain an age where enforced visitation would be "meaningless." The circuit court . . . found the record "only partially supports a concly; vised sion that resumed visitation will result in serious psychiatric regression" forced and that no "high risk of suicide or withdrawal" should occur if visitation on the Watt, resumes. . . . . . . Our decision to affirm this portion of the circuit court's order, how- master ever, is not determinative of the final disposition of this case. ... offend . . The family law master found the plaintiff suffered from physical addres and emotional abuse during the marriage, but failed to address the neg. be ben ative consequences such abuse now has on the children's relation sions to and visitation with their father. To be clear, we are not speaking of a child's In general reluctance to visit with his or her noncustodial parent. What we childre are dealing with in this case is Mark's and Billy's documented intense fears exercise and anxieties in visiting with their father. ... followi A fair reading of the record reveals that the boys' feelings of animos- in this ity toward their father are in large part due to their father's treatment of father, their mother. During counseling sessions, the boys stated their father was one's in "mean" because he did "awful things" to their mother. The plaintiff testi- In Syllal fied that during the marriage the boys would scream and cry when she and In the defendant would fight. The defendant's physical abuse of the plaintiff quoted was witnessed by the boys, and they were terrified of their father because See Tha of this abuse. The evidence of the negative impact the physical abuse that occurred "C during the marriage had in regard to the children's well-being was not par rebutted. . thei This Court joins with the majority of jurisdictions in finding that is a domestic violence evidence should be considered when determining que parental fitness and child custody. In Syllabus Point 1, in part, of Henry force of c v. Johnson, 192 W. Va. 82, 450 S.E.2d 779 (1994), we stated: bein effe "Children are often physically assaulted or witness violence against one of expe their parents and may suffer deep and lasting emotional harm from victim- ization and from exposure to family violence; consequently, a family law tatio master should take domestic violence into account[.]" prob occu See W. Va. Code, 48-2A-1(a)(2) (1992) (domestic violence statute states that resu children "may suffer deep and lasting emotional harm from victimization dren onal harm from in fu and from exposure to family violence"). Similarly, in the dissenting ion in Patricia Ann S. v. James Daniel S., 190 W. Va. 6, 18, 435 S.E.2d 0 2-15 18 (1993), Justice Workman recognized that "spousal abuse has a tremen- child dous impact on children" regardless of whether the children were directly or sh abused. While custody was not at issue in this case, evidence of domestic shoul violence is still relevant in deciding the visitation issue because it appears ficier have to be the root cause for why visitation has not been successful. . .. emoti findinam R.P., Jr. 249 .. . Based on the foregoing, we agree with the plaintiff that super- vised visitation should not immediately resume. . . . The record is clear that forced visitation at this time would be detrimental to the children and futile on the defendant's behalf without professional intervention. In Mary D. V. Watt, 190 W. Va. at 348, 438 5.E.2d at 528, this Court held that a "family law master or circuit court may condition . . . supervised visitation upon the offending parent seeking treatment." On remand, the circuit court should address this issue. The circuit court should also consider whether it would be beneficial for the defendant and the children to attend counseling ses- sions together to help build a more positive relationship.... In Mary D., Chief Justice McHugh set forth guidelines to help provide children with a safe and secure atmosphere when supervised visitation is exercised. Although Mary D. dealt specifically with supervised visitation following a finding that sexual abuse occurred, we find it just as applicable in this case where the children harbor such strong feelings against their father, whatever the source of such emotional estrangement. It is in every- one's interest to see that supervised visitation goes as smoothly as possible. In Syllabus Point 3 of Mary D., we held: In Patricia Ann S., 190 W. Va. at 18, 435 S.E.2d at 18, Justice Workman se quoted the following excerpt from L. Crites & D. Coker, What Therapists See That Judges May Miss, The Judges' Journal 9, 11-12 (Spring 1988): ed "Children learn several lessons in witnessing the abuse of one of their ot parents. First, they learn that such behavior appears to be approved by their most important role models and that the violence toward a loved one at is acceptable. Children also fail to grasp the full range of negative conse- ng quences for the violent behavior and observe, instead, the short term rein- ry forcements, namely compliance by the victim. Thus, they learn the use of coercive power and violence as a way to influence loved ones without being exposed to other more constructive alternatives.'" In addition to the effect of the destructive modeling, children who grow up in violent homes experience damaging psychological effects. There is substantial document tation that the spouse abuser's violence causes a variety of psychological problems for children. Children raised in a home in which spouse abuse occurs experience the same fear as do battered children. . . ." Spouse abuse Its not only in direct physical and psychological injuries to the chil- at dren, but, of greatest long-term importance, it breeds a culture of violence ion in future generations." in- "Where supervised visitation is ordered pursuant to W. Va. Code, 48- 2-15(6 ) (1 ) [1991] , the best interests of a child include determining that the 6, child is safe from the fear of emotional and psychological trauma which he en- or she may experience. The person(s) appointed to supervise the visitation tly should have had some prior contact with the child so that the child is suf- stic tly familiar with and trusting of that person in order for the child to have secure feelings and so the o that the visitation is not harmful to his or her Lars emotional well being . being. Such a determination should be incorporated as a finding of the family law master or circuit court."