Last updated on 11/22/2022 at 3:34 pm
The custody information provided in this Toolkit is broad and general. Each answer is very short and simple. This means we have left out many details and many possible complications. This information is intended to help you understand the kinds of issues that may come up in custody case. It is NOT intended to address every possible situation. As always, it is best to talk with a lawyer about particular problems.
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, they can either agree to how the children will spend their time with each parent or the judge can make the decision. Even if the parents agree on how to split the time, the judge still has to make sure the plan is in the children’s best interests. If the judge creates the plan, they are going to begin with equal custody or 50/50 as the starting point.
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.
A parent can challenge 50/50 shared custody by bringing evidence of many factors to Court, including a past history of domestic violence or current domestic violence cases, alcoholism or illegal substance use history, a felony criminal record, special medical needs a child may have, special medical diagnoses a parent may have, and many other factors 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.
What is parenting time?
“Parenting time” is the word used to describe time that a parent gets to spend with a child.
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
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, the judge starts from an equal or 50/50 custody of the children.
If either parent does not agree with equal time, they must submit an Individual Parenting Plan. In that parenting plan, that parent must include the reasons they do not believe equal time is not in the best interests of the children. Some of these reasons are listed above, and a complete list can be found in West Virginia Code 48-9-209.
When turning in an Individual Parenting Plan, the parent must also turn in an Individual Parenting Plan Worksheet and a Motion to Adopt Individual Proposed Parenting Plan. All of these forms can be found on the West Virginia Supreme Court website.
What is the Parenting Plan and why is it important?
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.
The Parenting Plan should explain 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 the parents cannot agree on a Joint Parenting Plan, the judge starts from an equal or 50/50 custody of the children. If either parent does not agree with equal time, they must submit an Individual Parenting Plan listing the factors that exist to challenge 50/50 shared custody and why equal shared custody is not in the best interests of the children. Those factors include things like:
- a past history of domestic violence or current domestic violence cases,
- alcoholism or illegal substance use history,
- a felony criminal record,
- special medical needs a child may have,
- special medical diagnoses a parent may have,
- and many other factors in West Virginia law.
The Court can also consider the actions of significant others, friends, and family that would be around the child.
When turning in an Individual Parenting Plan, the parent must also turn in an Individual Parenting Plan Worksheet and a Motion to Adopt Individual Proposed Parenting Plan. The judge can then adopt an Individual Parenting Plan or stay with equal custody.
The judge looks at how you and your spouse handled childcare when you were living together. The judge looks at what amount of time each parent has spent with the children. The judge usually looks at the pattern of parenting in the year or two before the separation. The judge will consider things like baths, meals, homework, babysitting, 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 practice after the separation. The court wants to keep the children’s lives as much the same as possible. The judge also tries to be fair.
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.
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, you and the other parent 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.