Garska v. McCoy
278 S.E.2d 357 (W. Va. 1981)


  • In February, 1978 the McCoy moved from her grandparents’ house in Logan County, where she had been raised, to Charlotte, North Carolina to live with her mother.
  • At that time appellant was 15 years old and her mother shared a trailer with appellee, Michael Garska.
  • In March, McCoy became pregnant by Garska and in June, she returned to her grandparents’ home in West Virginia.
  • The baby developed a chronic respiratory infection which required hospitalization and considerable medical attention.
    • McCoy’s grandfather attempted to have his great-grandson’s hospitalization and medical care paid by the United Mine Workers’ medical insurance but he was informed that the baby was ineligible unless legally adopted by the Altizers.
    • In October, 1979 Gwendolyn McCoy signed a consent in which she agreed to the adoption of Jonathan by her grandparents.
  • Upon learning of the adoption plan, the Garska visited the baby for the first time and began sending weekly money orders for $15.
  • When the Altizers filed a petition for adoption, the appellee filed a petition for a writ of habeas corpus to secure custody of his son.

The circuit court awarded custody to Garska based upon the following findings of fact:

  1. Garska is the natural father;
  2. Garska is better educated than McCoy;
  3. Garska, is more intelligent;
  4. Garska is better able to provide financially;
  5. Garska can provide a better social and economic environment;
  6. Garska has a somewhat better command of the English language;
  7. Garska has a better appearance and demeanor; and
  8. Garska is very highly motivated in his desire to have custody, and the McCoy had previously executed an adoption consent.

Applying the best interests of the child standard, who should be awarded custody?

Mother. Case reversed.


  • The court held that the best interests of children are with the primary caretaker, regardless of sex. This serves three important interests:
    • First, preventing the issue of custody from being used in an abusive way as a coercive weapon;
    • Second, determination of relative degrees of fitness requires a precision of measurement which is not possible given the tools available to judges; and
    • Third, there is an urgent need in contemporary divorce law for a legal structure upon which a divorcing couple may rely in reaching a settlement.
  • In establishing the primary caretaker, examine which parent has taken primary responsibility for the caring and nurturing duties. Considerations:
    1. Preparing and planning of meals;
    2. Bathing, grooming and dressing;
    3. Purchasing, cleaning, and care of clothes;
    4. Medical care, including nursing and trips to physicians;
    5. Arranging for social interaction, i.e. transportation;
    6. Arranging alternative care, i.e. babysitting, day-care, etc.;
    7. Putting child to bed, attending in the middle of the night, waking;
    8. Disciplining, i. e. teaching general manners and toilet training;
    9. Educating, i. e. religious, cultural, social, etc.; and,
    10. Teaching elementary skills, i. e., reading, writing and arithmetic.
  • In those custody disputes where the facts demonstrate that child care and custody were shared in an entirely equal way, then indeed no presumption arises and the court must proceed to inquire further into relative degrees of parental competence.
  • Here, it is obvious that the petitioner was the primary caretaker parent before the proceedings under consideration in this case arose, and there is no finding on the part of the trial court judge that she is an unfit parent.

Rule: With reference to custody of children of tender years, the law presumes that it is in best interests of the children to be placed in the custody of their primary caretaker, regardless of sex, if he or she is fit.