West VirginiaChild Custody Law
West Virginia Child Custody Guide :: Table of Contents
Child custody is defined as the guardianship over a child, which covers both physical custody and legal custody. In a child custody dispute the court may award joint custody to both parents or sole custody to a single parent.
Child custody cases in West Virginia can be either contested and resolved by court order, or noncontested and defined in a child custody agreement between the parents. A custody agreement or order will legally determine, at minimum, the following things:
- Where the child lives (physical custody)
- Who is involved in making parenting decisions (legal custody)
- How the visitation schedule with non-custodial parents or relatives is arranged
This page describes how a contested child custody case is handled in the West Virginia court system, and what factors are used to determine which parent gets custody.
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After a breakup or divorce in West Virginia, couples with children must come to a child custody agreement that describes which parent the children will live with, how visitation will be scheduled, and how the non-custodial parent will pay child support.
Some of the factors considered by West Virginia in child custody cases include the child's wishes, willingness of the parent to cooperate with their partner and any history of domestic violence.
Unless otherwise resolved by agreement or unless it is against the welfare of the child, the court can allocate custody so that the proportion of time the child spends with each parents matches the amount of time each parent spent performing caretaking functions for the child before the parents' separation to the extent required to achieve any of the following objectives:
- To allow the child to have a relationship with each parent who has done a fair share of parenting
- To consider the preferences of a child who is 14 years of age or older, or regarding a child under fourteen years of age to give that preference weight according to the circumstances of the case
- To keep siblings together as necessary to their welfare
- To protect the child's welfare when the child would be harmed because of a difference in the quality of the emotional attachments or in each parent's ability to meet the child's needs
- To take any prior agreement into account of the parents that may be appropriate to consider
- To avoid an allocation of custody that would be impractical or would interfere with the child's need for stability
- the distance between the parents' residences
- the cost and difficulty of transporting the child
- the parents' and child's daily schedules
- the ability of the parents to cooperate in the arrangement
- if one parent relocates, or plans to relocate at a distance that will impair the ability to exercise the responsibility that would be ordered to them
- To consider the stage of a child's development.
The limitations that the court are the following:
- An adjustment of the custodial responsibility of the parents (increased, or allocation of parenting time, or allocation of custody responsibility
- Supervision of the custodial time between a parent and the child
- Exchange of the child between parents through an intermediary, or in a protected setting
- Restraints on the parent from communication with or proximity to the other parent or the child
- A requirement that the parent abstain from possession or consumption of alcohol or nonprescribed drugs while exercising custodial responsibility and in the twenty-four hour period immediately preceding such exercise
- Denial of overnight custodial responsibility
- Restrictions on the presence of specific persons while the parent is with the child
- A requirement that the parent post a bond to secure return of the child following a period in which the parent is exercising custodial responsibility or to secure other performance required by the court
- A requirement that the parent complete a program of intervention for perpetrators of domestic violence, for drug or alcohol abuse, or a program designed to correct another factor
- Any other constraints or conditions that the court deems necessary to provide for the safety of the child, a child's parent or any person whose safety immediately affects the child's welfare.
If either of the parents so requests, or upon receipt of credible information thereof, the court shall determine whether a parent who would otherwise be allocated responsibility under a parenting plan:
- Has abused, neglected or abandoned a child
- Has sexually assaulted or sexually abused a child
- Has committed domestic violence
- Has interfered persistently with the other parent's access to the child, except in the case of actions taken for the purpose of protecting the safety of the child
- Has made one or more fraudulent reports of domestic violence or child abuse
If the parents are on amicable terms they may agree to custody terms in a parenting agreement between themselves, or via a mediator. If child custody is disputed, however, they will have to receive a child custody order from a West Virginia judge, who will attempt to make a custody decision that is in the "best interests of the child".
In the state of West Virginia, a number of factors are taken into account by the courts when determining who gets child custody. This section describes West Virginia's custody factors, considerations, and presumptions when evaluating a custody order.
Is there a set list of statutory factors for calculating child custody in the state of West Virginia?
West Virginia has a list of statutory factors that are considered by the court when determining a custody order. This list may include factors such as the child's age, the living situation of each parent, any history of abuse or neglect from either parent, etc. Although there is a statutory list of factors, consider other factors at its discretion depending on the particular circumstances of the case.
Do judges in the state of West Virginia favor joint custody?
Judges in West Virginia are authorized to order either joint or single-parent custody of a child subject to a custody dispute.
Courts in West Virginia do not have a presumption in favor joint custody orders when evaluating child custody. The judge will evaluate the specifics of the custody dispute to determine what custody arrangement is in the best interests of the child.
Do West Virginia courts encourage parents to cooperate together to raise the child?
West Virginia courts favor awarding custody to a cooperative parent who is willing to work together with the other parent regarding child visitation, scheduling, child support, and other co-parenting matters. West Virginia law favors co-parenting as being in the best interests of the child, and the courts will favor a parent willing to cooperate over a parent who attempts to alienate their child from the other parent.
Are the child's wishes considered when determining custody in the state of West Virginia?
In West Virginia, the court does consider the child's reasonable wishes when determining which parent wins custody. The judge may take the child's age, maturity, and judgement into consideration when considering the child's custody preference.
Do West Virginia courts consider domestic violence when determining custody?
West Virginia has laws that explicitly permit the consideration of domestic violence in conjunction with child custody. This may mean that domestic violence is a statutory factor in custody determinations, that the court has a presumption against custody for abusers, or that special procedural considerations are imposed in cases involving domestic violence.
Do the courts in the state of West Virginia have the right to hire an attorney or Guardian Ad Litem to represent the child?
West Virginia has statutory authority for appointment of a guardian ad litem or attorney specifically to represent the child in a custody case. This person advocates for the best interest of the child, and is tasked with investigating the family situation and advising the court what custody situation would be in the best interests of the child.