Important Things to Know About West Virginia’s 50/50 Custody Law

/by

On June 10th, 2022, the “Best Interests of Child Protection Act of 2022,” also known as the 50/50 custody law went into effect in West Virginia. The law has changed how child custody cases are treated in family courts.

The “best interest of the child” standard has long been in use by WV courts while determining custody. While this hasn’t changed, the new law instructs judges to presume that a 50/50 custody split is in the child’s best interests.

You should speak with a seasoned family law attorney in WV to understand the implications and the potential changes in your legal position and achieve your child custody goals.

Overview of West Virginia’s New 50/50 Custody Law

Under the new standard, the child’s physical custody is automatically shared between the two spouses. Supporters of the law argue that the law intends to allow both parents to have a fair chance at caring for their children following a divorce. It also helps in protecting parents that have been unfairly treated by the family court system.

There have been concerns raised by a few family court judges and opponents about the chilling impact of the new law on victims of domestic abuse, who may feel compelled to stay in the marriage or risk having their children spend 50% of the time with the abusive parent. There are also concerns that a higher earning parent may try and reduce their child support obligations by using the new presumption.

50/50 Custody Split is Not Always Guaranteed

While this new law brings a significant change to the manner in which child custody issues used to be handled, the outcome of a proceeding is not guaranteed. Courts are still tasked with determining the best interests of the child.

The judge is instructed by this law to presume a 50/50 split. However, this presumption can be overcome or rebutted if there is significant evidence pointing in the other direction.

In order to successfully challenge the 50/50 custody standard, one parent needs to prove through a preponderance of the evidence that the other parent should not receive 50% of the share in physical custody. This evidence can come in the form of photographs, witnesses, text messages, and other items and facts that corroborate your argument.

Factors Affecting Child Custody in WV

These are a few factors that may affect the custody determination:

  • Logistical issues: This involves physical distances between the two parent’s homes and the cost of transportation that makes the 50/50 split impractical.
  • Disruption: 50/50 split can be disruptive to the child’s education, medical care, and other interests.
  • Siblings: The split may separate the child from their other siblings, including step and half-siblings.
  • Stability and safety: A parent may have a history of child abuse, domestic violence, substance addiction, or a violent felony rendering them unstable.
  • Preference: If the child is at least 14 years of age and expresses sufficient intelligence and maturity, they may be allowed a say as to which parent they want to live with.

The court may accept a parenting plan even if it does not include a 50/50 split as long as the plan serves the best interests of the child and complies with state law.

Process of Child Custody Determination Under the New 50/50 Custody Law

The court will determine temporary custody for the child at the first hearing. If you and the other parent have already agreed to a parenting plan, the court will likely use the agreement. If you or the other parent disagree with the temporary custody plan, you will need to file an appeal with the Intermediate Court of Appeals. This is a new court that is tasked with reviewing the lower court’s decision.

You should know that just because you appeal, it does not stop the lower court’s decision from being followed. Further, any future hearings in your custody case will not be paused. This is true even if your appeal has not yet been heard by the Intermediate Court. Several factors are determined by the family court when deciding on child custody. You should speak with a qualified divorce attorney to get help with your child custody concerns.

Navigate the Changing Family Court Dynamics with Help from an Experienced Divorce Attorney

The client-focused family law attorneys at the law firm of Pence Law Firm PLLC have extensive experience representing clients with child custody issues in WV. Whether you are looking for a 50/50 split or any other custody arrangement, our attorneys know the intricacies of the legal system and can advocate for you and your child’s best interests at every step.

To schedule your free consultation, call us at (304) 345-7250 or fill out this online contact form.

 

Divorce And Special Needs Children in West Virginia

/by

Going through a divorce is never easy, but it can be particularly difficult if you have a child with special needs. Having a special needs child can impact every aspect of your divorce – from marital property division to child custody, spousal support, and child support.

If you are the parent of a special needs child who is planning to file for divorce, you need a divorce lawyer who can provide you with the personalized legal representation you need. At Pence Law Firm PLLC, we have handled several divorce cases involving special needs children over the years and have a deep understanding of the issues that are unique to these types of divorces.

Contact us today to discuss your case with one of our experienced West Virginia divorce lawyers.

Divorce and Special Needs Children – Key Issues to be Considered

Child Custody and Visitation

Caring for a child with special needs is completely different from caring for a normal child. Depending on whether your child has a physical, cognitive, behavioral, developmental, or sensory-related impairment, they might have unique needs that other children might not have. This is something you and your spouse need to keep in mind during child custody and visitation negotiations.

Moreover, as your child grows, their needs might change drastically. You – or your spouse – need to decide whether you have the means (financial and otherwise) to care for your child and make sure their needs are met.

It’s crucial to consult with doctors and mental health professionals to get a clear idea of your child’s current and future needs so that you can come up with an effective parenting plan that does not disrupt your child’s life too much.

It should also be noted that as your child grows, you might have to adjust your parenting plan to accommodate their changing needs. If the child custody and visitation order does not give you the leeway to adjust parental duties and visitation schedules, you have to request the court to modify the order.

Spousal Support

Most special needs children require special medical care, mental health care, medications, and supplements. As a result, the custodial parent might have to spend a substantial amount of money (depending on whether these expenses are covered under the child’s health insurance plan) on a monthly basis. The court might take this factor into consideration while ordering spousal support.

Child Support

Child support payments are meant to be paid only until the child in question turns 18. Once the child reaches the age of 18, the payments stop. This is not the case with special needs children. Depending on the severity of your child’s condition, the court might order you to pay child support even after your child turns 18.

Another important issue to be considered is that your child might qualify for public benefits like social security disability insurance and Medicaid. If you pay child support directly to your child, it might be considered an income and your child might lose their benefits as a result.

You need to consult with a skilled West Virginia divorce and special needs lawyer to figure out a way to support your child without affecting their right to receive state and federal benefits.

Guardianship 

Depending on the nature and severity of your child’s condition, they might need the support of an adult all through their life. Keeping this in mind, you and your spouse should discuss between yourselves and decide who will become the legal guardian of the child once they turn 18.

If you fail to do so, the court will designate a guardian for your child once they turn 18. It could be someone who might not have been your choice for the role of guardian. It is why naming a guardian for your special needs child is so important.

You should also designate a successor guardian so that if you (or your spouse, depending on who the guardian is) become incapacitated or die, the successor you named can become your child’s guardian without requiring the court’s intervention.

Remember – the legal guardian has the right to make medical and financial decisions on behalf of the child. So, make sure you choose someone you can trust to be your successor guardian.

Special Needs Trust

Setting up a special needs trust is one of the best ways to provide for your child’s needs in the future. A special needs trust is relatively easy to manage and can be a source of reliable long-term income for your child.

Two of the most common types of special needs trust that can be set up for the benefit of special needs children and adults are first-party special needs trust and third-party special needs trust.

As mentioned above, any financial assistance provided directly to your child will be considered an income and affect their eligibility for public benefits. So, you should set up the trust in such a way that the funds in it will not be considered an income while determining your child’s eligibility to receive public benefits.

Importance of a Cordial Relationship between the Parents

Special needs children need parental love. The more involved the parents are in their child’s life, the happier the child will be. It’s why you and your ex-spouse should try to maintain a cordial relationship even after divorce.

You should consult with each other while making important decisions on your child’s behalf and find a way to be actively involved in your child’s life – regardless of the differences and disagreements you might have with each other.

Legal Help is Here from Compassionate West Virginia Family Law Attorneys

At Pence Law Firm PLLC, we know that navigating a divorce when you have a special needs child can be extremely stressful. Our legal team has over 100 years of combined experience in handling divorce, child custody, alimony, child support, and guardianship-related cases.

We can handle your case with compassion and sensitivity, negotiate with your spouse’s attorney on your behalf, and go the extra mile to achieve an outcome that is in keeping with your child’s best interests.

Call us today at 304-345-7250 or use our online contact form to schedule a consultation with a West Virginia family law attorney from our firm.

 

What Can and Cannot Be Included in A Prenuptial Agreement?

/by

You are not alone if you are thinking of getting a prenuptial agreement or prenup before getting married. According to a report published by the American Academy of Matrimonial Lawyers, there has been a significant rise in prenuptial agreements since 2016.

While divorce is not something one wants to think of when getting married – having a prenuptial agreement is a wise thing to do. Speak with a qualified divorce attorney in West Virginia about protecting your assets, interests, and legal rights if you are considering a prenup or postnup agreement.

Things that Can be Included in West Virginia Prenuptial Agreements

Distribution of Marital Property

West Virginia has its own separate laws governing the distinction between separate and marital property. Marital property or community property is usually distributed equitably. Any property that is acquired or earned during the course of the marriage is considered marital property. You can prevent having the court dictate the terms of distribution of your property by using a prenuptial agreement.

Debts of a Spouse

Creditors may come after the marital property without a prenuptial agreement. This is even when you did not have a say in your spouse taking on the debt. You can limit your debt liability exposure using a prenup.

Providing for Children from a Previous Marriage

You may want to have a prenuptial agreement in place if you have children from a previous relationship. There have been instances where the subsequent spouse has failed in being fair to children from previous relationships. Prenuptial agreements can ensure that your children inherit the property you intended for them to have.

Protecting Family Property

Family businesses, family heirlooms, and future inheritance can be specified in a prenuptial agreement. You can make sure they don’t end up being contested during a divorce. Prenups allow the property to be kept in the birth family if that is your intent.

Estate Plans

Prenuptial agreements play a major role in ensuring that the estate plan you create is fulfilled as you want it to be.

Property Distribution During a Divorce

You can bypass most of West Virginia’s laws regarding the distribution of property during a divorce by agreeing between yourselves about who gets what through a prenuptial agreement. In fact, you can even decide which spouse pays alimony and by how much through a prenup in West Virginia. You should consult with a family law attorney to clarify this issue when creating your prenuptial agreement.

Things that Cannot be Included in Prenuptial Agreements

West Virginia laws restrict the things that cannot be included in a prenuptial agreement. These are a few of them:

Illegal Considerations

West Virginia Law prohibits soon-to-be-married couples from including anything illegal in the provisions of a prenuptial agreement. In fact, you may place the entire prenup document at risk of being set aside if you do this.

Child Custody or Child Support

West Virginia doesn’t allow child custody issues or child support matters to be included in a prenuptial agreement. This is because the court needs to keep the best interests of the child at the forefront when deciding child custody and support matters.

There are several factors that come into play when determining child support. The court will never uphold a provision dealing with child support, child custody, or visitation. In effect, the court retains the power to decide the best interests of the child.

Waiving Off Rights to Alimony

This is one of the most common provisions that get struck down by courts in WV. While you can decide which spouse needs to pay alimony during a divorce, no spouse can entirely give up their alimony rights. You should talk to a golden and committed divorce attorney to understand your legal rights.

Financial Incentives for Divorce

The court will scrutinize your prenuptial agreement looking for anything that offers a financial incentive to divorce your partner. In case any provision is thought to be encouraging divorce, the prenuptial agreement will be set aside by the court.

For instance, any provision detailing the manner in which property is divided can be seen as encouraging divorce. This makes it important to work with an attorney that can word the document in a manner that doesn’t go against the interests of society.

Provisions of a Personal Nature

Unfortunately, prenups cannot be used for including personal preferences. You cannot state who does the chores, names to use for children, where to spend the holidays, or the relationship to maintain with certain relatives. You and your spouse can always draft another document that specifies such things. This way the court will not have the power to intervene.

Legal Help is Here from Highly-Rated Divorce Attorneys in West Virginia

The law office of Pence Law Firm has experienced family law attorneys that can ensure your prenuptial agreements and any other documents are carefully worded and your best interests are fully protected. By hiring us, you get more than a century’s worth of trusted legal advocacy on your side. To schedule your free consultation, call us at (304) 345-7250 or fill out this online contact form.

Do Grandparents Have Guardianship Rights?

/by

Despite what you may have heard, grandparents can obtain legal guardianship of their grandchildren. Legal guardianship grants grandparents a limited set of rights and responsibilities for their grandkids. Sometimes, the parents will voluntarily create a grandparent guardianship agreement, other times a family court will determine the guardianship agreement for the grandchildren. Essentially, guardianship entails that the grandparents act in the best interest of their grandchildren and care for their daily needs.

What Does it Mean to Have Guardianship of Grandchildren?

Grandparents who are legal guardians are entitled to make decisions about their grandchildren’s medical care, schooling, and finances. This means that a grandparent guardian can apply for things like Social Security on behalf of their grandchildren. Although grandparent guardians have many rights, they cannot change their grandchild’s name if the child’s parents are still alive. In this case, a grandparent who is guardian would need the living parents’ consent in order to change the name.

What Are the Responsibilities of Grandparents with Guardianship?

When a grandparent becomes a legal guardian, they become responsible for the everyday care of their grandkids. If the grandchild has an estate, the grandparents will be legally entrusted with managing the minor’s finances. Usually, grandparents are financially liable for their grandchildren if the court has terminated parental rights. However, parents are sometimes required to pay child support to the guardians.

Guardianship of Grandchildren and Parental Rights

A grandparent guardianship arrangement does not eliminate the parents’ rights to visit their children unless the court has terminated parental rights. Although the court or guardian can restrict the visitations and interactions between parents and their children, parents usually retain their rights throughout the duration of the guardianship arrangement. A guardianship arrangement can be terminated by the court at any time. However, when a guardianship arrangement is made voluntarily, the parents can choose to end the agreement.

Do you have more questions about guardianship rights? Contact our Charleston family law attorney at (304) 345-7250 to find out how we can assist you today.