Overfield v. Collins
In Overfield v. Collins, 199 W.Va. 27, 483 S.E.2d 27 (1996), the Court outlined the issues, standards, and burdens of proof when relating to the custody of children who have been placed in the care of a third party by a parent.
In order for a third party to seek custody of a child from a fit natural or adopted parent, a "transfer" of custody must first have occurred. When there is no written instrument transferring custody, this Court suggested in Overfield that "[a] critical element of proof demarcating temporary custody and permanent custody is the length of time of the custodial change.
The amount of time which passes after a transfer of custody, together with all the other circumstances, shall be an important factor in determining whether such transfer was intended to be temporary or permanent." Overfield, 199 W.Va. at 38, fn. 9, 483 S.E.2d at 38, fn. 9.
The appellant was awarded custody of her two children as part of a domestic violence protective order on January 16, 1998, only to have a family law master to change custody from the appellant mother in favor of the paternal grandparents a few days later.
The Court stated:
"When a natural parent transfers temporary custody of their child to a third person and thereafter seeks to regain custody of that child, the burden of proof shall be upon that parent to prove by clear and convincing evidence that he or she is fit; thereafter the burden of proof shall shift to the third party to prove by clear and convincing evidence that the child's environment should not be disturbed because to do so would constitute a significant detriment to the child notwithstanding the natural parent's assertion of a legal right to the child."