You should know the following if you’re engaged in a child custody action in West Virginia.
- What are the Types of Child Custody in West Virginia?
- Determining Child Custody in West Virginia
- What is West Virginia’s Best Interests of the Child Standard?
- What to Know About Parenting Plans
- How Do I Modify a West Virginia Custody or Visitation Order?
- West Virginia Child Custody FAQs
What are the Types of Child Custody in West Virginia?
West Virginia has a family court system where judges decide child custody, support, paternity and other related legal family issues.
Because cases can often take months to decide, family court judges will also issue temporary custody orders at the beginning of a case. Temporary orders are in force while the case is being decided but often change when a final divorce is granted.
Before temporary plans are put in place, the parent seeking custody must include the following information as part of their request:
- Where the child has lived in the past 12 months and with whom
- What each parent has done to care for the daily needs of the child over the past 12 months
- The parents’ work and child-care schedules for the preceding 12 months
- The parents’ current work and child-care schedules
- If there’s any reason why the child would be in danger if they’re allowed to be around one of the parents
When final custody orders are granted, they will include decisions on legal custody and physical custody.
In West Virginia, physical custody is called custodial responsibility, which specifies the parent who will take care of the children daily. Custodial responsibility can be shared by parents according to a parenting time schedule described in a court-approved parenting plan.
The other is the responsibility to make significant decisions for the child, including about education, religion, and health, commonly known as legal custody.
In most cases, parents share legal custody in what is known as joint legal custody. Sometimes, the parenting plan spelled out specific decisions in certain areas. For example, one parent may decide where the child will go to school or their religious upbringing.
Judges often prefer that parents reach decisions related to custody on their own and then present a plan to the court for approval. Often that is not the case, despite using mediators or family law attorneys to help resolve differences. When parents can’t agree, a judge will set the case for trial.
In all cases, the overriding concern is to make decisions that are in the child’s best interests. Judges will weigh several factors and create orders that address this primary need.
In some cases, shared parenting time and decision-making rights may not be appropriate. For example, if parents live hundreds of miles apart or have a history of domestic violence or criminal activity, a judge may grant sole rights to one parent. Courts do favor regular and ongoing contact with both parents so evidence may need to be introduced to support a sole custody argument.
When one parent has a history of substance abuse or physical violence, that parent may still be entitled to visits, although a judge may order all visits to be supervised.
Read More: How to File for Divorce in West Virginia
Determining Child Custody in West Virginia
West Virginia judges want parents to agree on a Joint Parenting Plan because it’s better for the children. When parents tell the court they have not been able to agree, the law requires the court to refer both parents to a Premediation Screener.
The Premediation Screener will interview both parents and decide if a mediator can help reach an agreement on a Joint Parenting Plan. If so, the court will refer parents to mediation.
The mediator will meet with both parents, listen to their concerns and explore ways to agree on a Joint Parenting Plan. If mediation results in agreement on a Joint Parenting Plan, the Mediator will send that plan to the court, and the case will continue as if you and the other parent had agreed on a Joint Parenting Plan in the beginning. The court will still need to review and approve the plan.
The court will decide on custody issues when parents can’t develop a Joint Parenting Plan, the court will decide on custody issues. A judge will evaluate a family’s overall circumstances to create an order best suited to the child’s needs. The judge will use these factors to help decide custody:
- The child’s relationship with each parent
- The child’s age, physical and emotional health, and educational needs
- The child’s relationship with siblings and extended family members
- How will the child adjust to home, school, and the community
- Each parent’s physical and mental health
- Each parent’s history of caretaking responsibilities for the child
- The parent’s relationship with each other and willingness to foster a relationship between the child and the other parent
- If there is a history of domestic violence with either parent
- The parents’ geographical proximity
- Any other factor relevant to a child’s best interests
While neither parent starts with an advantage in a custody case, there is a presumption against awarding primary parental responsibility to a parent with a history of domestic abuse. In fact, an abusive parent could have limited visitation until a judge ensures that the child is safe in that parent’s care.
Under normal circumstances, both parents have equal rights to physical possession of a child, even if they are not married and after paternity has been established.
What is West Virginia’s Best Interests of the Child Standard?
The primary consideration in all West Virginia custody decisions is based on the “best interest” of the child. Under the law, parents’ own interests or any notion of fairness between them will matter less than what’s in the child’s best interest.
State statutes tell courts what to prioritize when considering a child’s best interests. Those factors include:
- The child’s stability
- Parental planning and agreement about the child’s custodial arrangements and upbringing
- Continuity of existing parent-child attachments
- Meaningful contact between a child and each parent
- Caretaking and parenting relationships by adults who love the child, know how to provide for the child’s needs, and who place a high priority on doing so
- Safety from exposure to physical or emotional harm
- Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child’s care and control
- Meaningful contact between a child and their siblings, including half-siblings
In addition, West Virginia courts are allowed to consider “the firm and reasonable preferences of a child who is 14 years of age or older; and to accommodate…the firm and reasonable preferences of a child under 14 years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent.”
Read More: Divorce Laws in West Virginia
What to Know About Parenting Plans
Parenting plans are critical and essential in West Virginia custody issues. They are detailed instructions about each child’s physical and legal custody and other important issues about how the child is raised.
Courts prefer that parents develop their own plan, but this is often not the case. Often, the court will weigh input and evidence and then draw up a parenting plan that meets the best interests standard.
At a minimum, parenting plans should include:
- Physical custody details, including the number of overnight visits for each parent.
- Legal custody and how those responsibilities are allocated between parents.
- Holiday and school break schedules
- Vacation and travel approval and advance notifications
- How will a child communicate with both parents
- How is communication between parents handled?
- Child support payment amounts and recourse if a parent falls behind.
- The manner of exchanging children, including when, where, and time of day
- Transporting children for visitation and other necessary movements
- Access to records and information
- Contact with other family members and friends
- How are tuition, medical costs, school activities, hobbies, and recreational activities expenses handled?
- Child support payment amounts and recourse if a parent falls behind.
- The manner of exchanging children, including when, where, and time of day
- Transporting children for visitation and other necessary movements
- Access to records and information
- Children’s use of technology and online activities
- How to address child discipline and mental health issues
- Guidelines when a new partner is involved
- Grooming and dress guidelines (extreme haircuts, make-up, etc.)
- Drinking or drug use in the presence of the children
How Do I Modify a West Virginia Custody or Visitation Order?
Needs and circumstances change over time, and a custody order may no longer meet the child’s best interests at a later date. The law allows modifications of an existing agreement when there are significant changes that impact how the current agreement is administered.
Once a custody order is entered, it stays in place until a child turns 18, is emancipated, or the order is modified. With this in mind, until custody is changed and approved by the courts, parents must continue to follow the instructions in the current order, or they will face fines and penalties.
Significant and legitimate changes may include a parent moving to far away, if one parent takes a job requiring constant travel or moving internationally, or if health or domestic violence or criminal activities are evidenced.
When a child reaches the age of 14 and wants to change the parenting plan, the court will view the child as mature enough to have their preferences considered.
Also, if both parents agree that they have been taking care of the child in ways that represent a “substantial deviation” from the parenting plan, the court will approve a change if the deviation has been going on for at least six months.
Parents can also request an expedited modification hearing when a child is in harm’s way.
If a parent wants to move far enough away that it will impact the current custody agreement, the parent who is moving must file a petition with the court at least 90 days ahead of the move. They must serve summons to the other parent at least 60 days before moving. A hearing will be held at least 30 days before moving.
Courts may consider changing child support obligations to consider travel costs imposed by the move. For example, if one parent has to pay more for the child to travel to them, the court might reduce their child support or alimony obligation.
Read More: How to Prepare for a Divorce Trial
West Virginia Child Custody FAQs
Can the court order an investigation to get more information before making a custody decision?
If the court needs more information than the parents are willing or able to provide, it may opt to order an investigation and appoint a lawyer, social worker, or counselor to gather more information about the child’s best interests. The court may also speak with the child directly or have someone else speak with them to learn more about their interests and current situation.
Sometimes the court might appoint a guardian ad litem. This lawyer’s job is to represent the child in the divorce proceedings.
What is the mandatory divorce education course?
If a child custody case is part of a divorce, parents must take a course about parenting during and after the divorce. The course is online and costs $25.
What if one parent doesn’t follow the parenting plan?
When parents intentionally violate the parenting time schedule, they can face penalties imposed by the court.
A parent’s first recourse should be to the parenting plan, which should include a provision about resolving disputes and violations. If that doesn’t work, a parent can file a complaint with the court. When the court finds that a parent “intentionally and without good cause violated” the parenting plan, it will order whatever action is required by the parenting plan.
When specific remedies are missing or inadequate, the court may order any “appropriate remedy.” This may include adding time with the child, paying associated costs, or changing the parenting plan. Parents can also be fined up to $1,000 for the third offense.
What if one parent goes to jail?
When one parent goes to jail, that would substantially change circumstances. The other parent can petition the court to change the parenting plan. If the parent in jail didn’t already have a lawyer, they would be appointed one to act as their guardian ad litem and represent them in the court hearing.
The court may choose to make the changes either temporary or permanent. When the jailed parent regains their freedom, they could seek to get their custodial responsibilities restored.
What if one parent is in the military?
West Virginia has adopted the Uniform Deployed Parents Custody and Visitation Act to deal with child custody when one parent is required to move or is deployed as part of the military.
Ideally, parents should address potential future moves and deployments ahead of time when crafting the permanent parenting plan during their divorce proceedings.
Do grandparents have visitation rights with their grandchildren?
Grandparents do not automatically have a legal right to visit their grandchildren. However, they may go to court to get an order allowing them to visit their grandchildren as long as that does not substantially interfere with the parent-child relationship.
Helpful Resources
- West Virginia Divorce Guide
- The Definitive Guide to Divorce and Military Benefits (Retirement Pay, Spousal Benefits, and More)
- A Guide to Social Security Benefits After Divorce
- Life Insurance and Divorce: A Complete Guide
- What does a Certified Divorce Financial Analyst do? (and how to know if you need one)
