(a) The court has discretion, in appropriate cases, to direct that a portion of child support be placed in trust & invested for future educational or other needs of the child. The court may order such investment when all of the child's day-to-day needs are being met such that, with due consideration of the age of the child, the child is living as well as his or her parents.

 

(b) If the amount of child support ordered per child exceeds $2,000 per month, the court is required to make written findings as to whether investments shall be made as provided for in subsection (a) of this section.

 

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Until 1999, West Virginia relied upon an old guardian statute, W.Va. Code §44-10-4, to resolve domestic relations disputes revolving about the custody of a child who had reached the age of fourteen.  In short, the cited legislative law permitted a fourteen year old to nominate his/her guardian.  After a major revision of the divorce acts in 1999, the relevant statute in West Virginia states that family courts shall allocate primary responsibility and decision making to a parent in correlation to the parenting percentages each parent discharged with the applicable offspring in the two (2) years prior to separation.  W.Va. Code §§ 48-9-205 and 206.  Section 206 of the statute under scrutiny elaborates in a sub-section that the family court should try to temper the rigors of the percentages custody formula with a number of factors which includes, but is not limited to, accommodating "the firm and reasonable preferences of a child who is fourteen years of age or older."  Id.  The supplemental caveat is that such voiced preferences must not be "manifestly harmful to the child".  With respect to a child under fourteen years of age, but sufficiently mature that he or she can intelligently express a voluntary predilection for one parent, a preference should be accorded "such weight as circumstances warrant." Id.

  

The weight given to the preference cited in the statute above was further clarified in two (2) 2010 companion cases decided by the West Virginia Supreme Court of Appeals.  In Storrie v. Simmons, a relocation case, two children, ages 12 and 9, were interviewed in camera by the family court.  Their preference to spend equal time with both parents was noted by the Court.  Upon review, however, when the issue of the children's preference was mentioned, the Court stated:  "citing the children's anxiety and hesitation to testify, the family court sealed the in camera testimony, and did not disclose whether either child had expressed a preference for living with one parent over the other.  Because, at the time of the family court hearing, K.K. and H.K. were twelve and nine years old, respectively, they were not yet of the age at which the family court would have been required to accommodate their 'firm and reasonable preferences'".  (Emphasis supplied).  Storrie v. Simmons, 35289, 35445 (2010).

 

 

Syl. Pt. 3. W.Va. Code 48-9-401(a) permits a court to modify a parenting plan order on the basis of a substantial change in circumstances that arise after the parenting plan order is entered if such change was not provided for in the parenting plan & modification is necessary to serve the best interests of the child.

Syl. Pt. 6: The term "manifestly harmful" as used in W.Va. Code 48-9-401(b) (2009) means obviously harmful or plainly harmful.

  

The lower court found that the birth of a half-sibling with whom the child has a significant bond does not rise to the level of change in circumstances.  The lower court also found that the parties' current parenting plan was not manifestly harmful to the minor child, contrary to Father's argument that Mother's refusal to allow the 11-year-old minor child to spend more time with Father and his half-sibling was negatively affecting the child's well being.

  

The relevant question under W.Va. Code 48-9-401(a) is not whether a particular change in circumstances could have been anticipated, but whether the parenting plan actually did anticipate, and provide accommodation for, a particular change. Accordingly, the Court found that 2 substantial changes in circumstances had occurred - the minor child's "significant advance in age" (he was seven years older than when the parenting plan was first entered) and the birth of the minor child's half siblings and subsequent bond with them.

  

Modification based on "Manifestly Harmful"

The term manifestly harmful does not require any specific level of harm, but merely means that the harm is readily apparent.

  

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