But I Want 50/50: The Truth About Child Custody in West Virginia

UPDATE: This post was initial run in July, 2014. In July, 2022 a new statute went into effect. The custody law in West Virginia continues to place the best interest of the children first and allocates custodial responsibility and decision making authority. However, the new statute creates a presumption that equal (or 50/50) allocation of custodial time is in the best interest of the children. W.Va. Code 48-9-102 (a) provides, “There shall be a presumption, rebuttable by a preponderance of the evidence, that equal (50-50) custodial allocation is in the best interest of the child. If the presumption is rebutted, the court shall, absent an agreement between the parents as to all matters related to custodial allocation, construct a parenting time schedule which maximizes the time each parent has with the child and is consistent with ensuring the child’s welfare.”

In my last blog post, I discussed the myth of “sole custody” in West Virginia.  (In other jurisdictions where I practice, such as Virginia, courts still address the issue of custody.) Today’s post only addresses custody law in West Virginia, where there is no such thing as sole custody. Parents develop a parenting plan, or allow the court to develop one, that schedules the time when the children reside with each parent, or “allocation of custodial responsibility."

Another term that does not appear in West Virginia family law is “50/50.”  In this post I will describe the problem that arises when parents focuses on a "50/50" split of time between households.

West Virginia Child Custody Law Puts the Well-Being of The Child First

To many “50/50” sounds fair—100% of the time the child’s time is split equally between the parents.  However, slashing the child’s time precisely in half may be “fair” to the parents, but harmful to the child.  In developing a parenting plan, parents may want to change the focus from the question, “What makes this look fair to me?” to the question, “What schedule can we develop to best meet the needs of our child?”   

Your Child Custody Schedule Should Depend On the Needs of Your Child

Determining the best schedule for your child requires a great deal of knowledge about your child and flexibility to meet the changing needs of the child.  Some children keep their rooms perfectly neat and expect to have a formal, even written, schedule when they get home from school.  These children may do best with predictable and rigid schedules that divide the time between the their parents’ households along a predictable schedule that can be posted on the refrigerator. 

Other children thrive with change and excitement.  These children may enjoy the variety that comes a more dynamic schedule that may have them going back and forth between households frequently or permit parents to share time with less formal schedules.  Both parents should sit down together, with or without a mediator, and begin by talking about the child.  Who is their child? What does he or she need?  Do those needs change during the school year?  During soccer season?  How can our work schedules be adapted to provide the most time with our child?  What makes our child happy?  What makes our child do well in school?  What will provide the child with security in being able to spend plenty of time with each parent?  These answers will provide far better guidance to parents developing a parenting plan than trying to divide minutes and hours in half.

Most children want to spend a lot of time with both parents, even when they live in different households.   Generally, they will be happiest when they have good relationships with both parents, built over a long period of time that includes frequent and sustained contact.   Allocation of custodial time, so that the child or children will be able to spend relatively similar amounts time with both parents is one way to create the time for these good relationships to develop.  However, parents don’t need to feel bound by the rigidity of a precise “50/50” schedule. 

Parenting Plans and Custody Can Be Flexible

When the parents develop a parenting plan, the possibilities for the allocation of time between them become endless.   Some families like to have the children alternate their time between houses on a weekly or daily basis.  Others create good parent-child relationships by having the children spend more time in one household during the school year balanced by extensive time in the other household during the summer, weekends, holidays and breaks.  Only by sitting down and concentrating on a personalized parenting plan based on your family and your child’s needs can you figure out what is best for your child.

Parenting Plans Can Create Consistent Rules for Your Child in Both Homes

With any schedule, many children will benefit from consistency between the households.  Parents who can find common ground and adopt similar policies regarding bedtime, discipline, television and video games, and homework schedules may find that their children adapt more easily moving between the two households.   Working with a mediator to tailor these rules to your family can help your children to develop good relationships with both parents and happiness in both households.

While dividing a candy bar, a stack of coins, or an acre of property equally between two people who claim to own it “50/50” may be a great idea, dividing the time a child will spend with his or her parents is not that simple.  All children deserve to have good relationships with both of their parents and they deserve to have the time to create those relationships.  Parents need to take that opportunity and focusing on the needs of the children, find the best plan for them.