West Virginia law encourages parents themselves to develop custody arrangements for their child or children during dissolution of their marriage before bringing the issue to court. Only if the parents cannot agree to a parenting plan do the courts make custody decisions. A court’s decision is based on what is in the “best interest” of the child.
Generally, courts strive to keep siblings together in one residence, and to allow both parents to have a relationship with their child or children. They also consider a child’s emotional attachments and relationships with both parents, as well as a child’s need for stability in the home. The age and developmental stage of the child is also considered.
It is important to keep in mind that there are two forms of custody, physical custody and legal custody. Also called “custodial responsibility” in child custody law in West Virginia, physical custody is a situation in which a child lives with a parent after their parents’ divorce. If one parent has sole physical custody, that parent then makes the basic, day-to-day decisions about their care for the reason that the child lives with them.
Generally, physical custody can be divided between the two parents, or shared. Shared custody may or may not be a completely even split. It can be quite different from a 50/50 division in many cases, especially if the parents live far apart and truly shared custody would be impractical. Another alternative is for one parent to have sole physical custody and the other to have visitation rights.
Legal custody is the right of the parent or parents to make major life decisions for their child. West Virginia law defines it as “allocation of significant decision-making responsibilities.” When assigning legal custody, a court examines where a child’s physical custody is, the wishes of each parent, the level of cooperation between parents, and the level of decision making each parent had before they separated.
Again, one parent can be given sole legal custody, and this parent would then have the sole authority to make these major decisions. Or, joint legal custody is an option. In a joint legal custody situation, both parents must work together to make important life decisions concerning their child. Because of this, in cases in which parents have been able to work out a parenting plan that reflects a legal custody arrangement acceptable to them both, a court is very likely to give joint legal custody to the parents.
So, courts in West Virginia have a number of options when it comes to how they award custody to parents during dissolution of a marriage. One option is to award joint physical custody to both parents. In a joint physical custody situation, a child splits their time in living with each parent. This is considered to be an option only when both parents show that they are able to provide for the child’s physical, mental, and emotional needs. Legal custody can also be sole or joint or shared.
Another option is to award sole physical custody to one parent and the other parent child visitation rights. This visitation schedule is also set by the judge, unless the parents can themselves agree on a schedule. A visitation schedule describes when the non-custodial parent can visit with the child and how that happens, e.g. whether the child spends time living with the non-custodial parent or whether the parent truly visits with the child in some manner.
In cases when the judge suspects that one parent is unfit, because they are using or abusing alcohol or drugs or for some other comparable reason, and that the child is not safe with the parent, a court may order limited visitation only that might involve supervised visitation time between the parent and the child. Also, a judge does have the right to deny a parent visitation in the event that the parent is a threat to the child.