Child Custody Decisions in West Virginia

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 How Do Courts in West Virginia Make Child Custody Decisions?

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.

What Is a Parenting Plan?

A parenting plan is a detailed, written agreement that sets out how divorcing parents intend to share legal and physical custody of their child or children. In West Virginia, parents must submit a parenting plan to the court before their divorce is made final. If parents cannot agree on a plan, mediation, an alternative dispute resolution process, is ordered. If mediation is unsuccessful, then each parent must submit a separate, proposed parenting plan.

Typically, parents must also attend a parent education course before their divorce is finalized. A parent education course focuses on how divorce and custody disputes impact a child’s mental and emotional health. A modest fee is charged for parent education, unless the parents can show financial hardship to justify not paying the fee.

What Does the Court Consider in Assigning Custody?

West Virginia courts weigh a number of different factors when deciding on what is in the best interest of a child. These factors include:

  • The child’s need for stability;
  • The child’s health, safety, and welfare,
  • Who has been the child’s primary caregiver up to the time of the dissolution,
  • The physical and mental health of the parents,
  • Evidence that one or both parents have engaged in child abuse or spousal abuse,
  • The child’s reasonable preference (if age appropriate), and
  • The parents’ wishes.

A parent’s gender is not considered as a factor. In a custody dispute. A guardian ad litem may be assigned to advocate for the child and help assess his or her best interests in cases in which this appears necessary.

Is a Child’s Preference Taken Into Account?

The law in West Virginia directs judges to take into account the strong preference of any child over the age of 14 as to which parent should be given physical custody of the child. A judge should also take into consideration the preference of any child under 14 who has a strong stated preference for one parent or the other and can state their preference intelligently and voluntarily.

However, a child’s expressed preference will only be given “such weight as circumstances warrant.” In other words, the judge can take the expressed preferences of children themselves into consideration, but does not have to rule as the child prefers.

In fact, no matter how strong a child’s preference is, or how old they are, until they reach the age of 18, a child’s wishes may be overridden by a judge.

What Happens When a Divorce Is Made Final?

Once the judge has ruled on a parenting plan and approved a final order of divorce, the final order is filed with the clerk of the court. Both parents are then obligated to comply with the approved custody order. If either parent wishes to modify the plan, they must go back to court to seek the court’s approval of any modification.

Should I Contact a West Virginia Lawyer for Help with Child Custody?

Child custody disputes can be emotionally stressful. Successfully navigating a dispute can also require a detailed understanding of the law. If you have concerns about custody and a parenting plan for your situation, it is important that you speak with an experienced family law attorney.

A West Virginia child custody lawyer will help advocate for you and your child and work to secure the best possible parenting arrangement for your situation.

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