parent’s assertion of a legal right to the child.” Id. Because the circuit court’s decision in this case was based upon a misapplication of the burden-of proof, which stemmed from the court’s incorrect finding that a temporary transfer of custody did not occur in this case, we must reverse the decision in this ease and remand for further proceedings. We also find that the circuit court erred in determining that incidents of domestic violence between the Respondent father and the child’s deceased mother were not relevant to its determination of the Respondent father’s parental fitness. We have corn sistently found that evidence of domestic violence is relevant to the determination of whether a parent is fit. See Syl. Pt. 1, Henry v. Johnson, 192 W.Va. 82, 86, 450 S.E.2d 779, 783 (1994) (<HOLDING>); Nancy Viola R. v. Randolph W., 177 W.Va. 710,
holding that children are often physically assaulted or witness violence against one of their parents and may suffer deep and lasting emotional harm from victimization and from exposure to family violence consequently a family law judge should take domestic violence into account when making an award of temporary eustodyt based upon a recognition that it is clear that where domestic violence is present it should be considered when determining parental fitness holding as relevant in a murder case a history of domestic violence involving defendant and his victim holding south carolina crime of criminal domestic violence of a high and aggravated nature was categorically a crime of violence under ussg  4b121 because its lesserincluded offense criminal domestic violence fell entirely within  4b12ls force clause holding that previous domestic violence finding did not have res judicata effect in proceeding to modify visitation because domestic violence and visitation modification proceedings are different causes of action holding that theft from the person is not a crime of violence