Frankel v. Frankel

¶1dissenting.

¶2(Filed July 24, 2001)

¶3I dissent to a decision that wrests a young child, against his will, away from a fit and loving primary caretaker parent — on the unbelievable grounds that the West Virginia public school system is incapable as a matter of law of providing sufficient remedial schooling for the child’s learning disability.

¶4The majority opinion concludes that William can “only reach his full potential” if he is in the custody of the parent — a Texas resident — who has enough money to pay for him to reach that “potential.” This is the first time that I have heard of a “full potential” rule as the legal test for child custody.

¶5The appellant asserts that the appellee father has never offered a cent to help pay for remedial schooling for his son William in West Virginia. The appellee does not point to any facts to dispute this assertion. I do not understand why the majority ignores this issue.

¶6It is sad that these parents could not resolve their dispute without litigation. But the rule of law is not that the parent who has the money to buy the “best care” for a child *591gets custody — yet that is the rule that the majority is defacto applying.

¶7I strongly disagree with a child custody decision that is premised on the purported inability of our state’s school system to provide acceptable schooling for a handicapped child. The solution to that condition, if it exists (I doubt it), is to fix the schooling — not to ship our children away.

¶8Accordingly, I would reverse the circuit court and remand with directions that custody be returned to the child’s mother; that she be required to arrange for special tutoring; and that the father be required to pay his share of the cost of the tutoring.

¶9dissenting.

¶10(Filed July 25, 2001)

¶11I find it perplexing that this Court can uphold a finding that there are no resources in Cabell County sufficient to permit William Frankel to overcome his learning disabilities, given the glaring fact that such county is home to Marshall University and its College of Education and Human Services. In effect, the Court has determined that West Virginia cannot provide an adequate education for William, but that Texas can. I find nothing in the record dictating such a drastic conclusion.

¶12The public school system is legally obligated to provide the necessary special education services that William requires,1 and it is patently obvious that such services are available in Cabell County. The proper remedy, if necessary, would be to mandate that the board of education provide William with an adequate education in light of his disabilities. Instead of adopting such a sensible approach to ensuring that the child’s needs are met, the Court in this case has taken the simplistic path of awarding custody to the parent with the greater financial resources. I do not think that the Court fully realizes the mischief that such a result will work in the future, and I respectfully dissent.