How Domestic Violence Affects Child Custody in West Virginia

Understanding the implications of domestic violence on child custody rights.

Domestic violence takes an unseen toll on its victims and their families. Whether it involves invisible, cutting words or obvious broken bones, abuse can be devastating to a family, especially when children are involved.

Although the abuse may occur behind closed doors, parents who cannot agree on custody of their children will have to attend a custody hearing and any past abuse will be brought out into the open. Physical violence or emotional abuse by a family or household member, also called “domestic violence,” may affect the outcome of a custody case. In cases of chronic or severe abuse, the abusive parent may have limitations placed on his or her visitation rights or, in the most extreme circumstances, may lose parental rights altogether.

This article provides a general overview of the effects of domestic violence on child custody orders in West Virginia. If after reading this article you have questions, contact a local family law attorney for advice.

Understanding Domestic Violence

Domestic violence extends beyond physical violence and includes sexual abuse and threats to cause harm. In West Virginia, domestic violence is defined as intentional harm caused by a family or household member through stalking, assault, harassment, sexual abuse, physical violence, abduction, or threats to harm.

Resources for victims of domestic violence

If you or your child is a victim of abuse, you can seek help through the West Virginia Coalition Against Domestic Violence. Additional resources and support are available through the Women’s Resource Center, which serves West Virginia domestic violence victims and through the Women’s Resource Center’s 24-hour hotline: (304) 255-2559. If you are in immediate danger, call 911 for help.

Protective orders

If you or your child is a victim on ongoing abuse or you fear future abuse, you may need a protective order to ensure the safety of you and your child. West Virginia’s lower court website explains the protective order processand walks victims through the steps to file a protective order petition.

Protective order forms are available on the West Virginia Judiciary site. Once you have filed the correct paperwork, a judge will hold a hearing on your case, and if he or she determines that abuse has occurred and there is a likelihood of future abuse, your protective order will be granted.

Overview of Child Custody Orders

The best interests of the child are central to any custody decision. A court must consider a child’s safety from physical and emotional harm when it determines the best living and visitation situation for the child. Thus, a history of domestic violence may impact the outcome of a custody hearing depending on the length and severity of abuse. To learn more about child custody, see Child Custody in West Virginia.

Impact of Domestic Violence on Custody Orders in West Virginia

While West Virginia does not automatically prevent an abusive parent from having any visitation with his or her child, judges will limit an abusive parent’s visitation if such contact could be harmful to the child. Limits may include supervised visitation or, in the most extreme cases, a termination of parental rights.

Supervised visitation

Supervised visitation is often a temporary requirement that visitation between the abusive parent and his or her child take place at an authorized agency or in the presence of a designated third-party adult. A protective order may temporarily require that supervised visitation take place until the protective order is lifted or supervised visitation may be a requirement included in a divorce decree or custody order. However, before a supervised visitation requirement can be modified or lifted, the abusive parent must demonstrate that there is no need for continued supervised visits, future abuse is unlikely, and normal visitation would best serve the child’s emotional and physical needs.

Termination of parental rights

Unlike supervised visitation, a termination of parental rights is permanent and cannot be undone. A West Virginia court will terminate a parent’s rights in only the clearest cases of abandonment or the most extreme cases of chronic abuse or neglect. Before ordering a termination of parental rights, a judge must decide that ending the abusive parent’s relationship would serve the best interests of the child. Some situations where a judge may terminate the rights of an abusive parent include:

  • murder or attempted murder of a sibling of the child
  • murder or attempted murder of the child’s other parent
  • sexual assault of the child or any other child residing in the same household
  • sexual assault of the child’s other parent
  • felony assault resulting in serious bodily harm to the child or any other child residing in the same household
  • felony assault resulting in serious bodily harm to the child’s other parent, and
  • abusive parent has been required by State or Federal law to register with a sex offender registry.

If a court terminates parental rights, the decision is final and that parent cannot have his or her rights reinstated on grounds of good behavior.

If you have additional questions about the effect of domestic violence on custody rights in West Virginia, contact a local family law attorney for advice.

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