## Facts

- David M. and Margaret M. married in 1979 and separated in 1988; they had one child, Timothy (about six years old).
- David filed for divorce alleging cruel and inhuman treatment or adultery and sought custody; Margaret denied the alleged grounds, counterclaimed for divorce on irreconcilable differences, and sought custody.
- By agreement, proceedings were bifurcated to address only the divorce and custody issues.
- The family law master found irreconcilable differences, found Margaret was Timothy’s primary caretaker, found Margaret committed adultery twice over two years, and concluded she was not fit for custody.
- The circuit court adopted those findings, granted the divorce, and awarded custody to David with visitation to Margaret.
- The record did not show Margaret’s adultery occurred in Timothy’s presence or otherwise harmed him.

## Issues

1. Whether a parent who is the primary caretaker may be denied custody for adultery absent evidence the conduct adversely affected the child.
2. Whether the trial court applied an overly broad “unfitness” exception that undermined the primary-caretaker presumption in custody determinations.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the custody award to David.
- The court held that adultery does not render a primary-caretaker parent unfit per se.
- The court concluded the lower courts misapplied the fitness inquiry by treating marital misconduct as dispositive without a demonstrated connection to the child’s welfare.
- The court directed that custody be awarded to Margaret, with appropriate visitation/conditions consistent with the child’s best interests.

## Legal Principles

- When a young child has an established primary caretaker who is otherwise fit, there is a strong presumption favoring custody with that parent.
- The “unfitness” exception to the primary-caretaker presumption must be construed narrowly; it cannot be used to defeat the rule through generalized moral judgments.
- Parental fitness is assessed by child-centered factors, including the ability to provide basic care, supervision and protection, habitable housing, and freedom from abusive or dangerously harmful conduct.
- Sexual or “immoral” behavior is relevant to fitness only when it occurs under circumstances that would affect the child; restrained, private sexual conduct does not by itself establish unfitness.
- Appellate reversal is warranted when a custody ruling rests on an erroneous application of governing custody law.

## Conclusion

The court restored custody to the primary-caretaker mother, holding that adultery alone—without proof of an adverse effect on the child—does not establish parental unfitness sufficient to overcome the primary-caretaker presumption.


David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 (W. Va. 1989)