West Virginia
Child Custody Law

West Virginia Child Custody Guide :: Table of Contents

What Is Child Custody?
Child Custody Factors Table
West Virginia Child Custody Law Summary
How Child Custody Is Decided In West Virginia
West Virginia Child Custody Law Text

Child Custody General Information - What Is Child Custody?

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.

West Virginia Custody Court Considerations Table

Statutory Factors
Childs Wishes
Joint Custody Authorized
Favor Joint Custody
Cooperative Parent
Domestic Violence
Attorney or Guardian Ad Litem For Child

West Virginia Child Custody Law Summary

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

West Virginia Child Custody Factors - How Is Child Custody Decided In West Virginia?

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.

| State Law Official Text

Section(s):
W.VA. CODE § 48-9-206 W.VA. CODE § 48-9-209 W.VA. CODE § 48-9-302

§48-9-206. Allocation of custodial responsibility.

(a) Unless otherwise resolved by agreement of the parents under section 9-201 or unless manifestly harmful to the child, the court shall allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation or, if the parents never lived together, before the filing of the action, except to the extent required under section 9-209 or necessary to achieve any of the following objectives:

(1) To permit the child to have a relationship with each parent who has performed a reasonable share of parenting functions;

(2) To accommodate the firm and reasonable preferences of a child who is fourteen years of age or older, and with regard to a child under fourteen years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent, to give that preference such weight as circumstances warrant;

(3) To keep siblings together when the court finds that doing so is necessary to their welfare;

(4) To protect the child's welfare when, under an otherwise appropriate allocation, the child would be harmed because of a gross disparity in the quality of the emotional attachments between each parent and the child or in each parent's demonstrated ability or availability to meet a child's needs;

(5) To take into account any prior agreement of the parents that, under the circumstances as a whole including the reasonable expectations of the parents in the interest of the child, would be appropriate to consider;

(6) To avoid an allocation of custodial responsibility that would be extremely impractical or that would interfere substantially with the child's need for stability in light of economic, physical or other circumstances, including the distance between the parents' residences, the cost and difficulty of transporting the child, the parents' and child's daily schedules, and the ability of the parents to cooperate in the arrangement;

(7) To apply the principles set forth in 9-403(d) of this article if one parent relocates or proposes to relocate at a distance that will impair the ability of a parent to exercise the amount of custodial responsibility that would otherwise be ordered under this section; and

(8) To consider the stage of a child's development.

(b) In determining the proportion of caretaking functions each parent previously performed for the child under subsection (a) of this section, the court shall not consider the divisions of functions arising from temporary arrangements after separation, whether those arrangements are consensual or by court order. The court may take into account information relating to the temporary arrangements in determining other issues under this section.

(c) If the court is unable to allocate custodial responsibility under subsection (a) of this section because the allocation under that subsection would be manifestly harmful to the child, or because there is no history of past performance of caretaking functions, as in the case of a newborn, or because the history does not establish a pattern of caretaking sufficiently dispositive of the issues of the case, the court shall allocate custodial responsibility based on the child's best interest, taking into account the factors in considerations that are set forth in this section and in section two hundred nine and 9-403(d) of this article and preserving to the extent possible this section's priority on the share of past caretaking functions each parent performed.

(d) In determining how to schedule the custodial time allocated to each parent, the court shall take account of the economic, physical and other practical circumstances such as those listed in subdivision (6), subsection (a) of this section.

§48-9-209. Parenting plan; limiting factors.

(a) 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:

(1) Has abused, neglected or abandoned a child, as defined by state law;

(2) Has sexually assaulted or sexually abused a child as those terms are defined in articles eight-b and eight-d, chapter sixty-one of this code;

(3) Has committed domestic violence, as defined in section 27-202;

(4) 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 or the interfering parent or another family member, pending adjudication of the facts underlying that belief; or

(5) Has made one or more fraudulent reports of domestic violence or child abuse: Provided, That a person’s withdrawal of or failure to pursue a report of domestic violence or child support shall not alone be sufficient to consider that report fraudulent.

(b) If a parent is found to have engaged in any activity specified by subsection (a) of this section, the court shall impose limits that are reasonably calculated to protect the child or child's parent from harm. The limitations that the court shall consider include, but are not limited to:

(1) An adjustment of the custodial responsibility of the parents, including but not limited to:

(A) Increased parenting time with the child to make up for any parenting time the other parent lost as a result of the proscribed activity;

(B) An additional allocation of parenting time in order to repair any adverse effect upon the relationship between the child and the other parent resulting from the proscribed activity; or

(C) The allocation of exclusive custodial responsibility to one of them;

(2) Supervision of the custodial time between a parent and the child;

(3) Exchange of the child between parents through an intermediary, or in a protected setting;

(4) Restraints on the parent from communication with or proximity to the other parent or the child;

(5) 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;

(6) Denial of overnight custodial responsibility;

(7) Restrictions on the presence of specific persons while the parent is with the child;

(8) 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;

(9) 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; or

(10) 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.

(c) If a parent is found to have engaged in any activity specified in subsection (a) of this section, the court may not allocate custodial responsibility or decision-making responsibility to that parent without making special written findings that the child and other parent can be adequately protected from harm by such limits as it may impose under subsection (b) of this section. The parent found to have engaged in the behavior specified in subsection (a) of this section has the burden of proving that an allocation of custodial responsibility or decision-making responsibility to that parent will not endanger the child or the other parent.

(d) If the court determines, based on the investigation described in part three of this article or other evidence presented to it, that an accusation of child abuse or neglect, or domestic violence made during a child custody proceeding is false and the parent making the accusation knew it to be false at the time the accusation was made, the court may order reimbursement to be paid by the person making the accusations of costs resulting from defending against the accusations. Such reimbursement may not exceed the actual reasonable costs incurred by the accused party as a result of defending against the accusation and reasonable attorney's fees incurred.

(e) (1) A parent who believes he or she is the subject of activities by the other parent described in subdivision (5) of subsection (a), may move the court pursuant to subdivision (4), subsection (b), section one hundred and one, article five, chapter forty-nine of this code for the Department of Health and Human Resources to disclose whether the other parent was the source of the allegation and, if so, whether the department found the report to be:

(A) Substantiated;

(B) Unsubstantiated;

(C) Inconclusive; or

(D) Still under investigation.

(2) If the court grants a motion pursuant to this subsection, disclosure by the Department of Health and Human Resources shall be in camera. The court may disclose to the parties information received from the department only if it has reason to believe a parent knowingly made a false report.

§48-9-302. Appointment of guardian.

(a) In its discretion, the court may appoint a guardian ad litem to represent the child's best interests. The court shall specify the terms of the appointment, including the guardian's role, duties and scope of authority.

(b) In its discretion, the court may appoint a lawyer to represent the child, if the child is competent to direct the terms of the representation and court has a reasonable basis for finding that the appointment would be helpful in resolving the issues of the case. The court shall specify the terms of the appointment, including the lawyer's role, duties and scope of authority.

(c) When substantial allegations of domestic abuse have been made, the court shall order an investigation under section 9-301 or make an appointment under subsection (a) or (b) of this section, unless the court is satisfied that the information necessary to evaluate the allegations will be adequately presented to the court without such order or appointment.

(d) Subject to whatever restrictions the court may impose or that may be imposed by the attorney-client privilege or by subsection 9-202(d), the court may require the child or parent to provide information to an individual or agency appointed by the court under section 9-301 or subsection (a) or (b) of this section, and it may require any person having information about the child or parent to provide that information, even in the absence of consent by a parent or by the child, except if the information is otherwise protected by law.

(e) The investigator who submits a report or evidence to the court that has been requested under section 9-301 and a guardian ad litem appointed under subsection (a) of this section who submits information or recommendations to the court are subject to cross-examination by the parties. A lawyer appointed under subsection (b) of this section may not be a witness in the proceedings, except as allowed under standards applicable in other civil proceedings.

(f) Services and tests ordered under this section shall be ordered only if at no cost to the individuals involved, or at a cost that is reasonable in light of the available financial resources.