Background
Rachel B. and Benjamin B. divorced in 2018 and share one child. Their divorce order adopted an equal-parenting plan. A 2023 modification order gave Mother unsupervised overnight parenting time on Wednesdays and Thursdays, while requiring supervision during holidays and vacations and imposing other conditions.
In 2024, Mother sought contempt and further modification of the parenting plan. She alleged, among other things, that Father used marijuana around the child, interfered with her parenting time, disparaged her, relied excessively on relatives for childcare, and failed to notify her about medical appointments. She requested equal or primary parenting time, removal of supervision requirements, sports decision-making authority, and a right of first refusal. After the family court initially denied relief, the Intermediate Court remanded for fuller findings. On remand, the family court again denied Mother’s petitions and awarded Father attorney fees.
The Court’s Holding
The Intermediate Court of Appeals affirmed. It held that the family court adequately complied with the prior remand and did not clearly err or abuse its discretion in finding that Mother failed to prove a substantial change in circumstances arising after the October 2023 parenting-plan order. Without that threshold showing under West Virginia Code § 48-9-401, the family court did not need to conduct a further best-interests analysis to modify the plan.
The court also upheld the exclusion of Mother’s documentary exhibits as unauthenticated hearsay, despite their having been attached to her petition. It found no abuse of discretion in the family court’s evidentiary rulings, upheld the attorney-fee award because the court analyzed the Banker factors, and found no abuse of discretion in declining to appoint a guardian ad litem.
The appellate court concluded that the family court erred in finding Mother had committed domestic violence because the record lacked substantiated evidence for that finding. But it deemed the error harmless and otherwise affirmed. It declined to consider Mother’s judicial-bias and recusal arguments because disqualification decisions are not within that court’s province.
Key Takeaways
- A parent seeking modification under § 48-9-401 must first establish a substantial, unanticipated change in circumstances.
- Documents attached to a family-court petition are not automatically admissible; they may require authentication and must overcome hearsay objections.
- An unsupported domestic-violence finding can be harmless error when it does not alter the outcome.
Why It Matters
The decision underscores that a remand for fuller reasoning does not require a different result when the family court supplies adequate findings and the moving parent still fails to meet the statutory threshold for modification. It also highlights the practical evidentiary burden on self-represented parties in custody proceedings.