But I Want Full Custody: 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.”
When parents separate in West Virginia, one of the most difficult issues is deciding where the children will live and how they will continue to have contact with both of their parents after the separation. When I first started practicing law in 1987 in West Virginia, the parent who had been providing most of the care-taking responsibilities (“primary caretaker presumption”) during the marriage typically took “custody” and the child would live with him or her. The other parent was provided with “visitation” according to a schedule, usually every other weekend.
Time passed and the problems with this scheme became 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. In the late 1990s, the legislature responded to the importance of active parenting by both parents after a divorce and enacted the current law.
There Is No "Full Custody" In West Virginia
There is no “primary caretaker presumption” in West Virginia. Neither parent gets “full custody” or “legal custody.” Rather, the parties share in providing homes for the children, in two separate homes, and thereby “allocate custodial responsibility.” Every situation is different. Parents work hard to maximize time with both parents by customizing their unique “parenting plan.” The parenting plan includes a schedule as to where the child sleeps, how the child celebrates holidays and how the restructured family will enjoy summer vacations.
The parenting plan also includes how the parents are going to share in making important decisions about their child. These include decisions about medical care, religion and education. After divorce or separation, most parents share in making these important decisions, but permit flexibility when a quick decision must be made.
West Virginia Child Custody Laws Are Tailored to the Best Interests of The Child
You won’t find terms such as “full custody” or “Schedule A visitation” in West Virginia's statutes. Rather, you’ll find provisions that allow for parents to work hard to create decision making processes and schedules that are tailored to meet the best interests of their child. The laws are different in Maryland and the District of Columbia, and we’ll address those laws in a future post. In the meantime, all parents who are separating should consider the options provided by mediation and collaborative law in deciding what is best for their children. Our West Virginia family law practice provides mediation services and accepts custody matters when the parents are committed to collaborative processes to develop the parenting plan that is best for their child.
Contact Brenda Waugh
To work with an experienced family law attorney in West Virginia, contact Brenda Waugh today.