In this article we cover the legal and practical things parents need to know about child custody in West Virginia
We answer questions like:
- What does custody actually consist of?
- What goes into a court’s ruling in a child custody case?
- How do parents create and change parenting plans?
- What happens if one parent moves?
At the end there’s an FAQ with helpful tips ranging from what to do if one parent is in the military to how to deal with parenting plan violations.
What does child custody actually consist of?
Long gone are the days of “sole” or “joint” custody in West Virginia.
With rare exceptions, West Virginia no longer grants full custody to one parent and “visitation” time to the other parent. As West Virginia family law attorney and mediator Brenda Waugh writes “the problems with this scheme [were] obvious. Both parents often perform many care-taking responsibilities. Most children need involvement with both parents, involving more contact than a few days a month.”
Instead, when parents get divorced in West Virginia, custody of their children is organized into two sets of parental responsibilities.
One is the responsibility of caring for children day-to-day, called “custodial responsibility” in West Virginia state law (WV §48-9-206). You might also see it called “physical custody”. Custodial responsibility can be shared by parents according to a “parenting time” schedule described in a court-approved “parenting plan” (more details on parenting plans below).
The other is the responsibility to make significant decisions (WV §48-9-207) for the child, including about education, religion, and health.
An additional minor detail to be aware of is that for the sake of federal laws and other WV laws that assume a single custodian, the parent the child lives with the most will be designated the child’s custodian. West Virginia law is clear that “this designation shall not affect either parent’s rights and responsibilities under a parenting plan” (WV §48-9-602).
How does West Virginia make custody decisions?
When parents get divorced, the court will allocate custodial responsibility significant decision-making responsibilities according to a court-ordered parenting plan.
The courts prefer to have parents agree on a parenting plan rather than have judges make decisions.
If the parents can agree on a parenting plan, then the court will usually approve it (WV §48-9-201). There are exceptions, such as when one parent has coerced the other into consenting to their plan.
Parents who can’t come to an agreement will usually be ordered by the court to work with a mediator (WV §48-9-202). This mediator, often but not always a neutral family law attorney, will work with the parents to create a parenting plan that puts the child’s interests first.
Mediators help parents focus on acting constructively and finding creative solutions to problems. Mediators are not allowed to share details from the mediation sessions with the court. Check out our article on mediators for more information.
Parents will need to pay for the mediator unless they have been granted a fee waiver by the court — court clerks will have more information.
If parents work with a mediator and still can’t come up with a parenting plan they’re both satisfied with, each parent will need to submit a parenting plan to the court. The judge will review them and is free to modify – or even throw out – either plan before issuing the final parenting plan.
Best interest of the child
When making custody decisions, the courts focus on what is in the “best interest” of the child.
It’s important for parents to appreciate that their own interests or any notion of fairness between them will matter less than what’s in the child’s best interest.
The law tells courts what to prioritize when considering child’s best interests (WV §48-9-102):
- Stability of the child;
- 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;
- Security 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; and
- Meaningful contact between a child and his or her siblings, including half-siblings.
Notably absent from this list is what the child wants. In general, it’s best to keep kids out of divorce proceedings as much as possible. Nonetheless, a major part of growing up is making more independent decisions and at a certain age kids will want to have a say in what happens to them when their parents get divorced.
In 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” (WV §48-9-206).
If the court feels like it needs more information than the parents are willing or able to provide, it may opt to order an investigation and appoint a professional (e.g. a lawyer, social worker, counselor, etc.) to gather more information about the child’s interests (WV §48-9-301). Additionally, the court may speak with the child directly or have someone else speak with them to learn more about their interests and current situation (WV §48-9-303).
Sometimes the court might appoint a representative for the child, called a guardian ad litem. This is a lawyer whose job is to represent the child in the divorce proceedings.
What is a parenting plan?
A single divorce proceeding may see various parenting plans:
- When one parent files for divorce the court may issue a temporary parenting plan that lasts until the divorce is granted.
- During the proceeding, the parents must jointly or separately submit parenting plans to the court.
- Finally, the court will issue a permanent parenting plan.
Temporary parenting plan
When a parent files for divorce they may seek a temporary order from the court establishing a temporary parenting plan (WV §48-9-203). Either parent may move to have this temporary parenting plan modified after it is granted.
When a parent seeks a temporary parenting plan they must include this information, at a minimum, in order for the court to grant it:
- Where the child has lived in the past twelve months and with whom
- What each parent has done to care for the daily needs of the child over the past twelve months
- The parents’ work and child-care schedules for the preceding twelve 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
For a temporary parenting plan, the court is going to focus on which parent has taken more responsibility during the last twelve months for caring for the child day-to-day, and which arrangement will cause the least disruption for the child while the custody case is under way.
Parenting plan proposals & the final parenting plan
Whether jointly or separately, parents much submit a proposed parenting plan to the court. They must provide additional details so that the court has some context for each proposal.
Proposed parenting plans and the final parenting plan must include the following (WV §4-9-205):
- Where the child will live and with whom. This needs to be specified by either:
- A schedule that says which parent the child will live with on which days of the year
- A formula or method for determining a schedule. There need to be enough details so that the court can enforce this arrangement.
- Who has responsibility for making significant decisions for the child
- A section that describes how parents will resolve disputes and deal with violations of the parenting plan
- A plan for what to do if either parent is part of the military and is mobilized, put on active duty, or deployed
Optionally, the parenting plan can include other provisions, such as what to do if one parent moves away.
In addition, proposed parenting plans need to include more information to help the court in its decision:
- The name and address of any adults the child has lived with for a year or more, plus how long the child has lived with them. If the child is less than one, then include anyone the child has lived with since birth.
- The name and address of the child’s parents and anyone else with standing in the divorce proceeding.
- A description of how caretaking and other parenting responsibilities have been allocated by person the child has lived with.
- A description of each parent’s work and child-care schedule and any expected changes in the near future.
- Information about the child’s school and extracurricular activities.
- Any “limiting factors” (WV §49-9-209) including a parent’s committing domestic violence, child abuse, preventing the other parent from seeing or caring for the child, or fraudulent accusations of domestic violence or child abuse
- All required financial information (usually required in a divorce proceeding anyway)
- Known areas of agreement and disagreement with any other parenting plan submitted to the court
Other resources about parenting plans
For helpful thoughts on how to think about custodial responsibilities from an experienced West Virginia family lawyer, read Brenda Waugh’s post “But I want 50/50: The truth about child custody in West Virginia”.
The organization Legal Aid of West Virginia has published forms and templates for parents who need to draft parenting plans (scroll to the bottom of the page).
Can a parenting plan be changed later?
The short answer is yes, though there needs to be a good reason for it. If both parents agree on the change, then it’s an easier process.
There are four broad reasons why a court would agree to order a change to a parenting plan:
- The reality of caring for the child strayed significantly from what’s spelled out in the parenting plan, both parents are fine with this change, and this has been happening for at least six months
- There’s been a significant change in circumstances
- One parent wants to move far enough away that it would interfere with the current parenting plan
- A child reaches the age of 14, wants to change the parenting plan, and is seen by the court as mature enough to have their preferences considered
Day-to-day reality has changed
If the parents, with each other’s agreement, have been taking care of the child in ways that represent a “substantial deviation” from the parenting plan, then the court will approve a change provided that this deviation has been going on for at least six months (WV §48-9-402).
Parents can’t officially change the plan ahead of time in anticipation wanting to do things differently. They need to work that out between themselves.
Significant change to circumstances
If there’s been a “significant change in circumstances” then a parent may petition the court to change the parenting plan (WV §48-9-401).
West Virginia law rules out some circumstances as justifying a change. Unless a parent can demonstrate that a child is at risk, these reasons are not valid ones:
- A parent lost income involuntarily, either by losing their job or some other reason
- A parent got remarried or moved in with a significant other
- A parent makes reasonable caretaking arrangements for the child (e.g. day care) that the other parent doesn’t like
For more examples of reasons that will and will not be accepted by the court, see this blog post from West Virginia law firm Adams Legal Group (scroll to “Reasons That Will Not Be Accepted by the Court”).
A parent wants to move
If a parent wants to move, the parenting plan might need to be modified (WV §48-9-403).
Moving one town over might not get in the way of the schedule and custodial responsibilities defined in the parenting plan, but moving across the state or out of state probably does.
A move that would impede either parent fulfilling their custodial responsibilities, or make it harder to adhere to the parenting time schedule, will need the court’s involvement.
The parent who is moving must file a petition with the court at least 90 days ahead of the move. They need to serve summons to the other parent at least 60 days before moving. A hearing will be held at least 30 days before moving.
If there are good reasons, a parent may ask for an expedited hearing.
If a parent is going to move, they will need to demonstrate that the reason for the move is “legitimate and made in good faith”. Legitimate reasons include:
- To be close to immediate family members
- Substantial health reasons
- Protecting the safety of the child or another member of the child’s household
- Pursuing significant employment or educational opportunity
- To be with one’s spouse or significant they have lived with for at least a year and who is lives, works, or is pursuing a significant employment or educational opportunity elsewhere
Child’s best interest
Like with the original parenting plan, changes must be in the child’s best interest.
If the existing parenting time schedule doesn’t make sense in light of the move, the court will approve changes that are “in accordance with the child’s best interest”.
The process is easiest when both parents agree on the changes needed.
Courts may consider changing child support obligations to take into account 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 obligation.
A child turns 14
If a child turns 14 and has “reasonable and firm preferences” that can’t be accommodated by the current parenting plan, then the court will approve a change (WV §48-9-402).
What is a guardian ad litem?
A guardian ad litem is someone, usually a lawyer, who represents the child in the divorce process, child custody and child support. The court may choose to appoint a guardian ad litem if it feels it’s necessary (WV §48-9-302).
The court can appoint a guardian ad litem for anyone who is unable to advocate for themselves, but in the context of child custody cases they’re almost always appointed on behalf of children.
What if one parent doesn’t stick to the parenting plan?
Sometimes parents violate the parenting time schedule by accident or carelessness – for example if they were running late to drop the child off at the other parent’s.
This can be incredibly aggravating because it demonstrates a lack of respect for the other parent and the importance of having them be a part of the child’s life.
Or, sometimes parents intentionally violate the parenting time schedule, which is even worse.
A parent’s first recourse should be to the parenting plan, which should include a provision about resolving disputes and violations of the parenting plan. Maybe that looks like discussing the problem with the other parent, or maybe it looks like hiring a mediator, or maybe there was some other resolution process in the plan.
If that doesn’t work, a parent can file a complaint with the court (WV §48-9-501). Then, the if the court finds that a parent “intentionally and without good cause violated” the parenting plan, it will order the whatever action is required by the parenting plan. In case that’s missing or inadequate, the court may order any “appropriate remedy”.
Examples of appropriate remedies in WV law are:
- Substitute time with the parent who missed time with the child
- Costs, including child care and lost opportunities, incurred by the parent who had to take care of the child longer than scheduled (e.g. if one parent is a no-show when they are supposed to pick up the child)
- Changing the parenting plan
- A fine up to $1,000 for the third offense
- Court costs, attorneys fees, and other expenses that one parent paid to enforce the plan
That said, going to court takes time and often leaves hard feelings in its wake. If it’s possible to address the issue without resorting to court, parents will probably get what they want faster and with less hassle.
It’s important to note that one parent can’t point to the other parent’s violations of the plan as justification of their own violations. Even if one parent isn’t fulfilling their responsibilities, that’s no reason for the other parent to shirk theirs.
Can I access my child’s school records even if I don’t have any custodial responsibilities?
Yes. Each parent, unless the court-ordered parenting plan explicitly says otherwise, have “full and equal access to a child’s educational records” (WV §48-9-601).
Parents also have the right to schedule parent-teacher conferences, and they are not required to attend conferences with the other parent.
Additionally, parents have the right to participate in parent-teacher organizations and other such school groups.
Can I access my child’s medical records even if I don’t have any custodial responsibilities?
Yes. Medical records access works the same way as school records – both parents have access unless the parenting plan specifies otherwise. Parents can’t veto the other’s access to medical records.
Additionally, parents must “promptly” tell each other when their child needs medical attention.
Elective surgery requires one parent to consult with the other.
What if one parent is in jail?
If one parent goes to jail, that would be a substantial change in circumstances. The other parent would be able to 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 (WV §48-31), which provides ways to deal with child custody when one parent is required to move or is deployed as part of the military.
Military parents should get familiar with the provisions in that law, which cover topics including temporary changes to custodial responsibilities, granting power of attorney to others to make decisions about the child, and child support. For example, the law prohibits permanent changes to custodial responsibilities while one parent is deployed without that parent’s consent (WV §48-31-301).
Ideally, parents should address potential future moves and deployments ahead of time when crafting the permanent parenting plan during their divorce proceedings.
What if one parent is recovering from being addicted to drugs or alcohol?
In short, it’s definitely possible to get the courts to approve changes to the parenting plan to regain custodial responsibility – but it won’t be an easy path for most people.
Legal Aid of West Virginia has an excellent Q&A page about child custody and parents in recovery from addiction.
There are some great resources available to West Virginia parents with questions about child custody.
Legal Aid of West Virginia helps and represents low-income people in civil cases. It also has published helpful articles about many civil topics.
Their child support resources include Q&A-formatted articles such as:
The West Virginia Judiciary website publishes forms and instruction sheets that parents can use when getting a divorce. This guide to parenting apart is also helpful and goes beyond the purely legal aspects, covering communication, dealing with the stress of being a divorced parent, and tips for making day-to-day parenting smoother.
Finally, the West Virginia state laws are public and quite readable even for someone with no prior law experience. The part about child custody is Chapter 48: Domestic Relations, Article 9. Allocation of Custodial Responsibility and Decision-Making Responsibility of Children.
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