Custody and Visitation
Last updated on 11/22/2022 at 3:36 pm
What is child custody and who decides it?
West Virginia law says that in most families, parents who are separated or divorced will have “shared parenting time.” That means each parent will have scheduled time with their children. The schedule usually has details like times, dates, places of child exchange, holiday rotation, and summer vacation. The goal for the judge is that the schedule will be in the children’s best interests.
When parents separate, a Family Court Judge decides how the children spend their time with each parent. The judge starts from an equal or fifty-fifty (50/50) custody schedule of the children. However, this starting point of equal custody can be “rebutted,” or challenged, by a parent who does not believe they should equally share custody with the other parent.
If either parent believes that fifty-fifty (50/50) is not in the best interest of the children, then that parent must file an Individual Parenting Plan. This Individual Parenting Plan should include the reasons the parents should not share custody equally. Some of those reasons include:
- a past history of domestic violence or current domestic violence cases,
- alcoholism or illegal substance use,
- a felony criminal record,
- abuse or neglect of a child,
- special medical needs a child may have,
- special medical diagnoses a parent may have, and
- many other factors that can be found in West Virginia law.
The Court can also consider the actions of significant others, friends, and family that would be around the child.
The Court will also take into account the schedules of the parents and the children, the distance between parents’ homes, and making sure siblings have time together.
The judge considers the Individual Parenting Plans of each parent or if the parents agree on custody, the Joint Parenting Plan, and sets the custody schedule. Even if the parents have a schedule in which each parent spends 50 percent of the time with the children, one parent still needs to be designated as the primary residential parent to comply with the law.
What is the Family Court?
West Virginia has a family court system. Family court judges decide:
- child support,
- child medical support,
- decision-making authority for the children’s major life decisions, and
- parenting plans.
Family court judges also make decisions about paternity. Paternity involves finding out who is the biological father of the children. This is usually determined by paternity testing.
What is parenting time and how is it decided?
“Parenting time” is the word used to describe time that a parent gets to spend with a child.
The judge decides parenting time.
If the parents agree how they would like parenting time to be divided, they must submit a Joint Parenting Plan.
If the parents cannot agree, the judge starts with a fifty-fifty (50/50) schedule. If either parent has a reason the other should not have equal time with the children, that parent must submit an Individual Parenting Plan explaining why.
Who has the right to custody of a child?
Unless there is a court custody order, both parents of a child have equal rights to physical possession of a child. This is true even if the parties are not married to each other.
Can a West Virginia family court judge decide my child custody dispute? If not, what should I do?
There are rules that say what the Family Court judge can decide. In general, if the children have lived in West Virginia for the last six months, then the family court can decide where the children will live. The rules about this are complicated and you should talk to a lawyer to find out what you should do.
If you have lived in West Virginia for less than six months, the custody of your children will probably be decided by a judge in the state where you used to live. The rules about this are complicated and you should talk to a lawyer to find out what you should do.
If you already have a ruling from a judge in another state about child custody, you will probably need to go back to that court if you are trying to get the custody changed. The rules about this are complicated and you should talk to a lawyer to find out what you should do.
What will the judge do about child custody?
First, the court will try to get the parents to agree on custody.
The court may send you to “mediation” to work out a plan. When you go to “mediation,” a family law attorney trained to help parents in reaching an agreement on custody will meet with both parents. This person is called a “mediator.” The parents may share the price for the mediator’s time and effort.
If a parent cannot pay their share of the mediation fees, the parent may complete a Fee Waiver. If the form is approved by the circuit clerk’s office, then the parent may not have to pay their share of the mediator’s fees. For more information about asking for a Fee Waiver, go here.
What is the Parenting Plan and why is it important?
The Parenting Plan is basically a schedule, that explains where the children are going to be at all times. The whole schedule should include holidays, school, and summer vacation. The judge will attach your Parenting Plan to your final order. The judge can change the Parenting Plan if he or she believes another plan will be better for your children.
If you and your child’s parent can reach an agreement, then you can sign a Parenting Plan together. This Parenting Plan is called a “Joint Parenting Plan.” The judge will review the plan to make sure it is fair, workable, and in the best interest of the children.
If you and the other parent cannot agree on how to share time with the children, the judge has to make a decision. Each parent should make their own proposed Individual Parenting Plan. The judge might approve one parent’s plan and reject the other parent’s plan. The judge might decide on a different plan from what either parent submitted.
When the judge decides, they start from a fifty-fifty (50/50) schedule. The judge also looks at things like how you and the other parent handled childcare and the type of activities each parent engaged in with the children in the past.
The judge considers things like meals, homework, school activities, sports, babysitting, doctor’s appointments, and shopping. Whoever has been doing those things should keep doing them. If the children’s dad took them to soccer practice before the separation, the judge would probably want dad to continue to take the children to soccer practice after the separation. The judge wants to keep the children’s lives as much the same as possible.
The judge tries to be fair. If there are no reasons why a parent’s time with the children should be restricted (examples: one parent travels a lot, one parent lives out of state, history of domestic violence, child abuse or neglect, etc.) the judge sets a schedule that is as close to co-equal parenting as possible.
After your final hearing, the parents will usually share the “decision-making responsibility.” This means that big decisions like education, medical care, and after school activities for the children should be shared. Sometimes the parents cannot agree on how to make these decisions together. In that case, the judge will decide which parent makes which types of decisions.
While we're waiting for the Final Hearing, what do we do about child custody?
At the first hearing, the judge will issue a “Temporary Order.” A Temporary Order tells you what to do “for the time being.” The Temporary Order is NOT the final decision. Temporary Orders tell you what’s going to happen BEFORE the judge decides the final outcome.
What forms does the Court require for custody and visitation?
The Family Court requires a Parenting Plan in all cases with children under age 18.
If the parents can agree on a Parenting Plan, they can submit a Joint Proposed Parenting Plan to the court.
If the parents cannot agree on a Joint Parenting Plan, either parent can submit an Individual Proposed Parenting Plan, and ask the court to enter a temporary order on parenting based on that Individual Plan.
If one parent wants to disagree with the other parent’s Individual Plan, that parent must submit an Individual Parenting Plan. When you file an individual plan, you must also file a Worksheet for Individual Proposed Parenting Plan form. The Worksheet is used by the parent to explain to the court what percentage of the children’s activities the parent has participated in. All of these forms can be found on the West Virginia Supreme Court website here.
Why is the Proposed Parenting Plan important?
The Proposed Parenting Plan is probably the most important document you will give the judge in your case. The Family Court will rely on the Proposed Parenting Plan to decide custody and parenting time. Your children’s well-being depends on you doing a good job in making your Proposed Parenting Plan.
What happens after we submit a Joint Proposed Parenting Plan?
If you and the other parent agree and submit a Joint Plan, the court will hold a hearing. The Court will look at the plan to see if it could be harmful to the children in any way. The Court will make certain both parents agreed to the plan without being pressured and understood what they were signing. The court may approve the plan or make changes to it to create a plan that is best for the children
What happens after we submit Individual Proposed Parenting Plans?
The judge wants parents to agree on a Joint Parenting Plan because it’s better for the children. So, if you and the other parent tell the court you have not tried to agree on a Joint Plan, or have tried and failed, the law requires the court to refer the two of you to a person called a Premediation Screener.
What does a Premediation Screener do?
The Premediation Screener will interview you and the other parent separately. The Screener will decide if a Mediator can help the two of you come to an agreement on a Joint Parenting Plan. If the screener determines a Mediator may be able to help you agree, the court will refer the two of you to mediation. A Mediator is a neutral attorney trained to help people settle disagreements.
What happens at mediation?
The Mediator will meet with you and the other parent together, listen to everything both of you have to say, and help you explore ways to agree on a Joint Parenting Plan. Mediation often helps the parents reach an agreement, and there is a good possibility the two of you can come out of mediation with a Joint Parenting Plan.
If mediation results in agreement on a Joint Parenting Plan, the Mediator will send that plan to the court, and the case will continue as if you and the other parent had agreed on a Joint Parenting Plan in the beginning.
What if we can't agree at mediation?
If you don’t agree on a Joint Parenting Plan agreement at mediation, you and the other parent will return to court for one or more hearings. During those hearings, both of the parents will have a chance to prove to the court why your Individual Plan should be accepted by the court. It is the court’s job to decide what’s best for your children. After hearing all of the evidence, the court will reach a decision.
What can I do if I don't like the decision the Family Court makes about custody and visitation?
You can appeal both temporary custody orders and final custody orders to the new West Virginia Intermediate Court of Appeals. If you disagree with the Intermediate Court of Appeals decision, you can then appeal again to the West Virginia Supreme Court. At each of these steps you cannot present any new evidence or testimony. Your arguments must be why the lower court was wrong based on the evidence that was already provided.
How do I appeal the Family Court's decision to the Intermediate Court of Appeals?
To Appeal to the Intermediate Court of Appeals you must first file a Petition for Appeal. The Petition must be filed within thirty days of the day the family court judge signs the final order. The Petition for Appeal must be typewritten or handwritten clearly enough that it can be easily read. You must file the original and two copies of the petition with the Clerk’s office for the Intermediate Court of Appeals. You must sign the petition and mail a copy of the petition to the other parent.
How do I appeal the Family Court's decision to the Supreme Court?
To Appeal Directly to the Supreme Court, both parties must agree to do so in writing. Both parties must file a Notice and Waiver within 14 days of entry of the family court signing the order. Also, you must complete a petition for appeal and file the original and two copies of the petition in the circuit clerk’s office where the final order was entered. The petition for appeal must be typewritten or handwritten so it can be easily read. You must sign the petition mail a copy of the petition to the other parent.
What if I can't afford to pay for the appeal?
If you do not have the money for fees, transcripts, and other costs, you may request permission to have these costs waived by asking for a Fee Waiver. What that means is that you are letting the court know that you cannot pay the costs. You must file this form in the circuit clerk’s office. Click here for more information about asking for a Fee Waiver.
What can I do if my child's parent doesn't follow the Court's visitation plan?
If the child’s parent doesn’t follow the visitation plan, you can file a Contempt Petition to ask the court to force that person to obey the order.
How do I file a Contempt Petition?
First, you will need a copy of the court order you believe the parent isn’t following, because you must attach a copy of it to your Contempt Petition. If you do not have a copy of the order, you can get one from the Circuit Clerk’s office. You must provide all requested information on the Petition form. If you don’t, you may not get a hearing before the court.
What happens after I file the Contempt Petition?
The Family Court Judge will review your Petition and any documents you file with it and decide whether to hold a hearing. The judge may make a decision without having a hearing. If the judge decides to have a hearing, you will need to have evidence to prove that the child’s parent is not following the Parenting Plan.
Do grandparents have the right to visit their grandchildren?
Grandparents do not automatically have a legal right to visit their grandchildren. However, they may go to court to try to get an order allowing them to visit their grandchildren. This is true even if the parents of the grandchildren are not married.
Under West Virginia law, the court should grant visitation to a grandparent if it is in the best interest of the child and would not substantially interfere with the parent-child relationship. You can find out a lot more about Grandparent Visitation in a separate article on our web site. Go to the Grandparent Visitation article.
Helpful Links for Additional Information
Forms for Custody, Parenting Plans and Contempt Petitions may be found on the West Virginia Supreme Court of Appeals website.