West Virginia Child Custody/Visitation Lawyers

When you have a legal issue involving your children, it’s impossible to be too cautious. The agreements and concessions you make at this point of your life could affect some of the most important relationships you’ll ever have—and that’s why it’s so important to work with an attorney when you’re having child custody issues

Our team handles a wide range of custody cases. Maybe you and your child’s other parent were never married, and you just need help putting a custody plan into writing for the court. Perhaps you’re going through a divorce and you’re worried about losing your parenting rights to your ex. Regardless of what your situation is, we’re here to help. At Pence Law Firm, we understand that every family is different and you need a custody arrangement that suits your unique needs. Call us at 304-345-7250 to set up a consultation with our team of West Virginia custody lawyers.

Different Custody Arrangements in West Virginia

There are many different ways you can set up a custody agreement to accommodate your children’s needs. West Virginia is a shared parenting state, and the court generally prefers that children spend substantial time with both parents whenever possible. Of course, there are circumstances where that doesn’t work—if one parent isn’t interested in custody, one parent works irregular hours that cannot accommodate childcare, or one parent lives out of the state, to name a few. However, it marks a good starting point to begin negotiations.

Before you begin exploring your options, you should know the differences between physical and legal custody. Physical custody refers to where the child actually spends their time. The parents may share joint physical custody or the child may remain in one parent’s custody while the other parent has visitation. Legal custody, on the other hand, refers to the right to make decisions about your child’s upbringing. In many cases, the parents share joint legal custody even if one parent has physical custody.

Factors Affecting Custody Agreements

A number of factors may influence the court’s final decision. Remember that the court generally only steps in when the parents are unable to come to a suitable agreement on their own. In many cases, the parents eventually agree on a schedule and the court signs off on it. In these circumstances, the court will only override that agreement if the agreement is not in the children’s best interests. 

Factors that may affect the court’s decision include:

• The child’s current relationship with both parents
• The child’s physical, educational, and emotional needs
• Relationships the child has with extended family members and siblings
• Who has served as the child’s caretaker in the past
• The parents’ relationship with each other
• Both parents’ locations
• How strong the connection is between the child and their current school, community, and home
• Each parent’s physical and mental abilities to serve as a caretaker
• Any history of domestic violence or substance abuse

As you can tell, these decisions are complex and nuanced. If one parent does have a history of domestic violence or substance abuse that would threaten the child’s safety, they may not begin with unsupervised visitation. Depending on the evidence provided to the court, the court may choose to require supervised visitation for an extended period of time or otherwise limit their parenting time.

Developing a Schedule That Suits Your Family

If you have shared physical custody, there are many ways you may choose to structure it. In the past, the one-week on/one-week off schedule was the most popular. Many parents are now finding that one week is too long to go without their children on a regular basis. 

In light of that, the 2-2-3 schedule is gaining popularity. The child spends two days with Parent A, two days with Parent B, three days with Parent A, two days with Parent B, two days with Parent A, and three days with Parent B. This two-week schedule ensures that both parents get weekends with their children and plenty of weekday parenting time.

Of course, there’s no law that you have to go with a prearranged custody schedule. You can look at your and your co-parent’s other obligations, work schedules, and other needs to come up with an agreement that suits everyone.

If one parent has primary physical custody, it’s important to think about when the children will have time with their non-custodial parent. Many families choose to do every-other-weekend visitations, along with time at holiday breaks and summer break.

As you negotiate your custody agreement, don’t forget to think about holidays. This can be a sticking point for some parents, but it’s important to make these decisions and put them in your parenting plan. It’s common to swap major holidays and the child’s birthday every year. Many parents also agree that the child will spend Mother’s Day and Father’s Day with the respective parents.

How Pence Law Firm Can Help

The team at Pence Law Firm knows how stressful custody disagreements can be for West Virginia parents. Even if you and your co-parent have an amicable relationship, it’s frightening to know that it can change in a moment. A strong custody agreement can iron out any issues you may have and lay the groundwork for a productive co-parenting relationship.

We’re also here for you if your current custody agreement is no longer meeting your needs. Perhaps your children are older and want to have more of a say in where they spend their time. This may warrant a change in custody agreement and child support order. Maybe one parent has moved away and given up their visitation time, and you want to put that in writing. Change is the only constant in life, and when your custody needs change, we’re ready to bring your concerns to court.

Choose Our Firm for Your West Virginia Custody Needs

Wherever you are in negotiations and whatever your relationship with your co-parent is like, working with Pence Law Firm will bring you peace of mind and minimize your stress. Let’s talk about your custody options, develop a plan, and get started. Call us at 304-345-7250 or reach out online to set up a time to talk.

The West Virginia “Best Interests of the Child” Standard and How It Influences Child Custody in WV

In West Virginia, family courts determine child custody based on the “best interests of the child” standard. This approach ensures that decisions prioritize the child’s well-being, stability, and development. Several factors influence these judicial determinations, each contributing to a comprehensive understanding of what arrangement serves the child’s best interests.

WV family law operates under the “best interests of the child” standard, a guiding principle ensuring that all decisions regarding child custody and welfare prioritize the child’s well-being above all else. This standard is enshrined in the state’s legal framework and has been further refined by recent legislative changes.

Legal Foundation of the Best Interests Standard

The West Virginia Code §48-9-102 outlines the primary objectives of serving a child’s best interests by facilitating:

1. Stability of the child

2. Parental planning and agreement about the child’s custodial arrangements and upbringing

3. Continuity of existing parent-child attachments

4. Meaningful contact between a child and each parent, with a rebuttable presumption of equal (50-50) custodial allocation

5. Caretaking relationships by adults who love the child, know how to provide for the child’s needs, and place a high priority on doing so

6. Security from exposure to physical or emotional harm

7. Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child’s care and control

8. Meaningful contact between a child and his or her siblings, including half-siblings and any other person, including biological parents, when such contact is in the child’s best interests

9. Reasonable and firm parental guidance by adults who are adequately responsible to their commitment to the child’s upbringing

10. Accommodation of the individual needs of children, including children of different ages, as well as the differing capacity and inclination of parents to care for such children

Additionally, §48-9-102(b) states a secondary objective of achieving fairness between the parents consistent with the rebuttable presumption of equal (50-50) custodial allocation.

• 48-9-102a further reinforces that “There shall be a presumption, rebuttable by a preponderance of the evidence, that equal (50-50) custodial allocation is in the best interest of the child.”

These objectives collectively guide parents in making parenting plans and courts in their deliberations to ensure that the child’s welfare remains at the forefront of any custodial decisions.

The 2022 Legislative Shift: Presumption of Equal Custody

In June 2022, West Virginia enacted the “Best Interests of Child Protection Act of 2022,” introducing a significant shift in custody considerations. This law established a rebuttable presumption that equal (50-50) physical custody is in the child’s best interest. This means that courts now start with the assumption that a balanced custodial arrangement between both parents benefits the child, unless evidence suggests otherwise.

Rebutting the Presumption of Equal Custody

While the law favors equal custody, certain factors can rebut this presumption. According to West Virginia Code §48-9-209, the court considers various factors, including:

• Child’s Preferences: The firm and reasonable preferences of a child aged 14 or older are considered. For children under 14 but mature enough to express an intelligent preference, the court may accommodate their wishes if deemed in their best interests.
• Parental Conduct: Any history of abuse, neglect, or domestic violence by a parent can influence custody decisions.
• Parental Involvement: A parent’s willingness and ability to perform caretaking functions and maintain a relationship with the child are crucial.
• Child’s Needs: Special needs, chronic illnesses, or other serious medical conditions of the child that might require a particular custodial arrangement.
• Sibling Relationships: The potential impact of custody arrangements on the child’s relationship with siblings, including half-siblings.

These considerations ensure that the custody arrangement serves the child’s unique circumstances and needs.

Application in Family Courts

Family courts in West Virginia apply the best interests standard by evaluating the specific facts of each case. Judges assess factors such as the child’s age, physical and emotional health, relationships with each parent, adjustment to home and school environments, and each parent’s ability to meet the child’s needs. The overarching goal is to establish a custody arrangement that fosters the child’s development and well-being.

Impact on Families

The emphasis on the child’s best interests ensures that custody decisions are tailored to promote stability, continuity, and healthy relationships. By presuming equal custody, the law encourages both parents to remain actively involved in their child’s life, which research has shown to benefit children’s emotional and psychological development. However, the ability to rebut this presumption ensures that the child’s safety and specific needs remain paramount, allowing for flexibility in cases where equal custody may not be appropriate.

A Closer Look at the Factors That May Directly Impact the Decision of a Child Custody Case in West Virginia

The Child’s Relationship with Each Parent

A pivotal consideration is the existing bond between the child and each parent. Courts assess the depth and quality of these relationships to ensure that custody arrangements support the child’s emotional needs. A strong, positive relationship with both parents is often viewed favorably, as it promotes the child’s overall well-being.

Physical, Educational, and Emotional Needs

Courts evaluate each parent’s ability to meet the child’s comprehensive needs. This includes providing adequate shelter, nutrition, healthcare, education, and emotional support. A parent’s capacity to ensure a stable and nurturing environment is crucial in custody decisions.

Relationships with Extended Family and Siblings

The child’s interactions with extended family members and siblings are also considered. Maintaining these relationships can offer additional emotional support and stability, which are essential for the child’s development.

Past Caretaking Roles

The history of each parent’s involvement in caregiving tasks is scrutinized. Courts look at who has been responsible for daily activities such as feeding, bathing, and attending school events. A parent who has been actively engaged in these aspects may be favored in custody decisions.

Parental Relationship and Cooperation

The nature of the relationship between the parents themselves plays a role. Courts prefer arrangements where parents can communicate effectively and collaborate on parenting matters, as this cooperation benefits the child’s upbringing.

Geographical Considerations

The proximity of each parent’s residence to the child’s school, community, and social activities is assessed. Living close to these essential aspects of the child’s life can minimize disruptions and maintain consistency in their daily routine.

Stability of Environment

Courts examine the stability of each parent’s home environment. Factors such as the length of time the child has lived in a particular home, the presence of supportive family members, and the overall safety and suitability of the living conditions are considered.

Physical and Mental Health of Parents

When determining child custody arrangements in West Virginia, the court assesses each parent’s physical and mental health to ensure they can adequately care for the child. A parent with significant health issues that impact their ability to provide consistent care may face limitations in their custodial rights.

Physical health is evaluated in terms of a parent’s ability to meet the child’s daily needs, including feeding, bathing, transporting, and engaging in activities that contribute to the child’s well-being. Chronic illnesses, disabilities, or conditions that severely hinder a parent’s capacity to provide a stable and supportive environment may be taken into consideration.

Mental health is also a crucial factor. Parents suffering from untreated mental illnesses or disorders that impair judgment, emotional stability, or decision-making could face challenges in securing custody. However, a history of mental illness alone does not disqualify a parent from custody. Courts assess whether the parent is receiving proper treatment, managing their condition effectively, and maintaining a stable home environment. Evidence of therapy, medication compliance, and a support system can influence the court’s decision positively.

History of Abuse or Neglect

A parent’s history of abuse or neglect is one of the most critical factors in custody decisions. The court prioritizes the child’s safety and well-being above all else. If a parent has a documented history of domestic violence, child abuse, or neglect, the court may impose restrictions, such as supervised visitation, or deem them unfit for custody altogether.

West Virginia law ensures that any allegations of abuse are thoroughly investigated before custody is granted. Protective measures, including restraining orders or mandated counseling, may be required in cases where there is a history of violence. In instances where both parents have allegations against them, the court will determine which environment presents the least risk to the child. The ultimate goal is to protect the child from emotional and physical harm while preserving their ability to maintain healthy relationships with both parents whenever possible.

Substance Abuse Issues

Substance abuse is another critical factor in determining child custody in West Virginia. A parent struggling with drug or alcohol addiction may be deemed unfit to provide a safe and stable environment for the child. The court evaluates evidence of substance abuse, including DUI records, arrests, witness testimonies, and rehabilitation efforts.

If a parent is actively in recovery and can demonstrate a commitment to maintaining sobriety, they may still be considered for custody or visitation. In some cases, courts may order periodic drug testing, attendance at support groups, or other conditions to ensure the child’s safety. However, if a parent’s substance abuse creates an unsafe environment or poses a direct risk to the child’s well-being, the court may severely restrict or terminate their custody rights.

Child’s Preference

The child’s preference is considered in custody decisions, but it is not the sole determining factor. West Virginia courts generally take a child’s wishes into account, particularly if the child is of a sufficient age and maturity level to express a well-reasoned preference.

Children aged 14 and older have a greater influence on custody decisions, though the court still evaluates whether their preference aligns with their best interests. Younger children may also have their opinions heard, but their maturity and understanding of the situation are assessed before giving weight to their preference. The court ensures that the child’s choice is not influenced by manipulation or pressure from either parent.

Parental Alienation

Parental alienation occurs when one parent attempts to damage or sever the child’s relationship with the other parent without justifiable cause. Courts in West Virginia take a strong stance against such behavior, as it is not in the child’s best interest to be unfairly distanced from a loving and capable parent.

If a parent is found to be actively discouraging communication, making false accusations, or engaging in behaviors that create hostility between the child and the other parent, the court may intervene. Judges may modify custody arrangements, mandate co-parenting counseling, or impose other legal consequences to prevent ongoing alienation. The goal is to foster a positive relationship between the child and both parents whenever possible, barring circumstances that would endanger the child’s well-being.

Financial Stability

A parent’s financial status is considered in custody decisions, but it is not the primary factor. The ability to provide for the child’s basic needs, including food, clothing, shelter, education, and healthcare, is evaluated in determining what arrangement serves the child’s best interests.

However, financial stability alone does not dictate custody outcomes. A lower-earning parent will not be denied custody simply due to their income level. Instead, the court looks at overall parental involvement, stability, and the ability to create a nurturing environment. In cases where one parent has significantly more financial resources, the court may order child support payments to ensure the child’s needs are met without penalizing a lower-earning parent.

In cases where financial difficulties are extreme and impact the parent’s ability to provide a stable home, the court may consider alternative arrangements. For instance, if a parent is facing homelessness, severe debt, or financial instability that jeopardizes the child’s well-being, custody may be adjusted until the situation improves.

Cultural and Religious Considerations

Courts may take into account each parent’s ability to maintain the child’s cultural and religious upbringing, particularly when these aspects play a significant role in shaping the child’s identity and emotional well-being. If a child has been raised within a specific cultural or religious framework, maintaining continuity in this regard can be essential to their overall development. For example, a parent who actively participates in religious or cultural traditions, educates the child about their heritage, and ensures they remain connected to their community may be viewed favorably by the court. Additionally, if both parents come from different cultural or religious backgrounds, the court may assess how well each parent can support and respect the child’s exposure to both traditions.

Adjustment to Home, School, and Community

The child’s ability to adapt and thrive in their current living situation, school, and local community is an important factor in custody decisions. Courts generally strive to minimize significant disruptions to the child’s daily life, ensuring they can continue in familiar surroundings that provide a sense of stability. A sudden relocation or change in schools may negatively impact the child’s academic performance, social connections, and emotional well-being. Judges may also consider the child’s extracurricular activities, friendships, and involvement in local organizations when making custody determinations.

Parental Work Schedules

A parent’s work commitments and overall availability are carefully examined to ensure the custody arrangement aligns with the child’s needs. Courts assess each parent’s ability to provide adequate supervision, attend to daily care responsibilities, and maintain a supportive presence in the child’s life. A demanding work schedule that significantly limits a parent’s availability may be a concern, especially if it interferes with essential caregiving responsibilities. Flexible work arrangements, remote work opportunities, or family support systems that help care for the child can be viewed as positive factors.

Sibling Relationships

Maintaining strong bonds with siblings, including half-siblings and step-siblings, is considered beneficial for a child’s emotional stability. Courts recognize the importance of preserving these connections, as they provide comfort, continuity, and a sense of belonging. Sibling relationships often play a crucial role in helping children adjust to changes in their family structure.

Parental Involvement in Education

A parent’s active participation in the child’s education, including attending parent-teacher meetings, assisting with homework, and supporting academic endeavors, is an essential factor in custody decisions. Courts favor parents who demonstrate a commitment to fostering a positive learning environment and ensuring their child’s educational success.

Ability to Provide a Stable Routine

A consistent daily routine is vital for a child’s emotional and psychological well-being. Courts consider a parent’s ability to maintain structured schedules for meals, bedtime, homework, and extracurricular activities. Stability contributes to a child’s sense of security and normalcy, which is especially important during transitions.

Willingness to Foster Relationship with Other Parent

Courts favor parents who encourage and support the child’s relationship with the other parent. A willingness to facilitate visitations, communicate effectively, and cooperate in co-parenting efforts reflects a child-centered approach. Judges may view hostility or attempts to alienate the other parent negatively when making custody decisions.