Child Custody in West Virginia: The Best Interests of the Child

Learn how child custody is determined in West Virginia, how you can modify custody orders, and more.

By , Attorney · Brigham Young University J. Reuben Clark Law School
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When parents split or divorce, often the hardest part about separating is deciding how to split custody in West Virginia. West Virginia's custody laws don't favor mothers over fathers when awarding custody. Rather, a child's best interests will determine the outcome of your case.

A family court judge's goal is to ensure that the child's life remains as stable as possible while enabling both parents to have a continuing healthy, positive relationship with the child.

This article provides an overview of how a child's best interests affect West Virginia custody decisions. If you still have questions after reading this article, contact a local family law attorney for advice.

Types of Custody in West Virginia

In many cases, parents are able to reach their own parenting agreements and can avoid the cost and hassle of court. When parents can't resolve parenting time and decision-making responsibilities on their own or through mediation, a judge will set the case for trial. At trial, a judge will decide both parenting time (sometimes called "physical custody) and decision-making responsibility (sometimes called "legal custody").

Joint Parenting and Decision-Making Awards

When deciding parenting time and each parent's decision-making responsibilities, a judge will also have to decide if those roles should be split or shared. Sometimes this is called "joint custody" or "joint parenting time and decision-making responsibility."

In addition to considering a child's best interests, a judge may also examine the parents' relationship with each other, the parents' geographical proximity, and the parents' willingness to work together on co-parenting.

Sole Parenting and Decision-Making Awards

In some cases, shared parenting time and decision-making rights may not be appropriate. For example if parents live hundreds of miles apart, or there's been a history of domestic violence, a judge may grant sole rights to one parent.

Even where one parent has decision-making authority over a child and primary parenting time, the other parent is still entitled to regular visits with his or her kid. Almost always, it's in a child's best interests to have regular and ongoing contact with both parents.

In situations where one parent has a history of substance abuse or physical violence, that parent will still be entitled to visits, although a judge may order all visits to be supervised. See W. Va. Code § 48-9-206 (2020).

How Does Visitation Work in West Virginia?

West Virginia courts encourage parents to work together to agree on a custody and visitation schedule before asking the judge to make an order – sometimes called a West Virginia parenting plan. The court is more likely to accept a proposed parenting plan if it shows that the child will have significant contact with both parents, if it provides a method for resolving parenting disputes, and if it accounts for the child's school, religious, and extracurricular activities.

Parents should decide which parent the child will be with during the school week, on weekends, and holidays. Examples of visitation schedules include alternate weekends and midweek visits with the noncustodial parent (parent who doesn't have primary parenting time), alternating weeks with each parent, or spending the first part of the week with one parent and the second part with the other parent.

Setting out a holiday visitation schedule is also important for the child's stability so the child will know what to expect from week to week and month to month. For example, the child may be with one parent on Halloween and Christmas in odd years, and with the other parent on Halloween and Christmas in even years. Whatever the parents or judge decides, it should represent a schedule that's in the best interests of the child.

How Are Custody Decisions Made in West Virginia?

You may be wondering how to get full custody in West Virginia. The answer to that question will depend on your family's unique circumstances. A child's best interests are at the center of any custody decision. A judge will evaluate a family's overall circumstances to create an order best suited to the child's needs. Specifically a judge may examine:

  • the child's relationship with each parent
  • the child's age, physical, and emotional health
  • the child's physical, emotional, and educational needs
  • the child's relationship with siblings and extended family members
  • the child's adjustment to home, school, and the community
  • each parent's physical and mental health
  • each parent's history of caretaking responsibilities for the child
  • the parents' relationship with each other
  • each parents' willingness to foster a relationship between the child and the other parent
  • either parent's history of domestic violence, if any
  • the parents' geographical proximity, and
  • any other factor relevant to a child's best interests.

Neither parent starts with an advantage in a custody case. There's a presumption against awarding primary parental responsibility to a parent with a history of domestic abuse. In most cases, an abusive parent will have limits placed on his or her visitation until a judge can ensure that the child is safe in that parent's care.

How to Modify Custody in West Virginia

A parenting time schedule that works while your child is a toddler may no longer work by the time that child becomes a teen. Parents' circumstances and a child's needs naturally change over time. Once a custody order is entered, it stays in place until a child turns 18, is emancipated, or the order is modified.

Either parent can file a request to modify custody in West Virginia. A judge will grant a modification only if there's been a material change in circumstances that impacts the child's best interests.

Normal changes such as a parent moving nearby or the other parent's remarriage usually aren't enough to warrant a custody change. However, if one parent takes a job requiring constant travel or moves internationally, a custody change may be in order based on West Virginia custody laws. Ultimately, your child's best interests will determine whether the judge will grant a modification request.

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