A Parenting Plan does two things:

• It is a schedule of when each parent will spend time with the children; and
• It will describe which decisions about the kids will be shared, or given to just one parent or the other.

You must fill out a Parenting Plan form in any case involving custody of children. For more information about filing a custody case, read the article on Custody and Visitation.

The Parenting Plan is a comprehensive parenting document that will govern:

• the parenting time schedule,
• each parent’s decision-making responsibilities,
• communication between parents,
• and more.

The Parenting Plan allows parents to propose a custody schedule that divides the responsibilities of caring for the children. The Court will consider each parent’s proposed parenting arrangements, and the share of caretaking functions each parent previously performed, when deciding the distribution of parenting time.

The court system uses a fill-in-the-blank form for Parenting Plans. There are several places and ways you can get the form.

• You can print a Parenting Plan form from the Supreme Court of West Virginia website. There is no charge to get the form this way.
• You can get a paper copy of the form at the Circuit Clerk’s office in your county. There is a small fee to get form packets from the Circuit Clerk (generally $15 or less). The fee can be waived if you are low income. You’ll need to fill out a “Fee Waiver Affidavit,” and verify each source of income using pay stubs, tax returns, or other official documents.

If the parents cannot agree on a parenting schedule, each parent needs file an Individual Parenting Plan outlining what they want the parenting time to be. The judge starts with fifty-fifty (50/50) time and consider each parent’s parenting plan to determine whether the judge should move away from fifty-fifty (50/50) time.

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. These factors are called “considerations” in the law, and can include things like:

• 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
• other considerations found in West Virginia law.

The Court can also consider the actions of significant others, friends, and family that would be around the child while in the care of a parent.

The Court will also consider the schedules of the parents and the children, the distance between parents’ homes, and making sure siblings have time together.

The judge will review the two different plans and take testimony about why each party believes their plan is better for the children. The judge will then decide what the parenting plan will be. The judge may adopt one or the other parent’s plan or create a very different plan than either party proposed.

A Joint Parenting Plan is one you and the other parent make together. If both parents can agree on how to divide parenting time, you can submit a Joint Parenting Plan. Coming to an agreement is your opportunity to control how each of you will spend time with your children.

It is best if the two parents can reach an agreement before the custody case is filed. The Joint Parenting Plan can be filed at the beginning of the case. When that happens, judges are very likely to approve the agreed Joint Parenting Plan.

Sometimes no agreement is reached until part way through the case. Both parents will submit an Individual Parenting Plan at the beginning. At any time after that, the two parents can submit a Joint Parenting Plan whenever they reach an agreement. Sometimes the Judge may order you and the other parent to attend “Mediation” to help the two parents reach an agreement on the parenting plan before a hearing.

No matter when it is submitted, the judge will review your agreed plan in the hearing. The judge can refuse to adopt the agreed plan if the judge thinks it would be harmful to the children. Also, if the judge thinks the agreed plan wasn’t really “voluntary” and was forced on one side by the other, the judge can refuse to adopt the plan.

Mediation is a process where a court-appointed person meets with the parents and tries to help them reach an agreement about parenting time. If you and the other parent don’t agree on a custody schedule, the Judge will likely require you go to Mediation. But Mediation will not be required if there is a history of domestic violence and Mediation would be unsafe or unproductive.

If Mediation is ordered, the Mediator will talk to each parent to understand their proposed individual parenting plan. The Mediator then will help each parent work toward finding something both can agree upon. The goal is to get each parent to compromise enough to come up with an agreed parenting plan. As always, the judge will review the agreed plan in a hearing to make sure the plan is workable and is in the children’s best interest.

Think of what’s best for your children. Consider what the children usually do day-to-day, and on holidays, and during vacations or other family events. Decide which parent they should be with during those times. The goal is to keep the children’s lives as similar as possible to the way it has been previously, to cause the least disruption for them. How the parents previously divided or shared daily caretaking functions is the root of determining parenting time. The parent who has typically provided more care will likely continue that pattern, and vice versa. The Court will ask at a hearing how the custody schedule you proposed reflects the previous caretaking functions provided by each parent.

Day-to-day decisions are relatively minor. Some examples are: what the children will eat for dinner, when they get up in the morning, whether they have to finish their homework before bed, when they go to bed, or what they should wear. Day-to-day decisions are the responsibility of whichever parent has the children when that kind of decision must be made.

In contrast, major decision-making responsibility involves things like medical care, education, or religious upbringing. These decisions have a much bigger impact on the children’s lives. These kinds of decisions can be shared by both parents, or given to only one parent. Here again, a lot will depend on who made this kind of decision in the past.

First, the Court will look at parenting functions performed by each parent for the last year before the separation. Once prior parenting functions are established, the court will also consider other factors like :

• Permit the child to have a relationship with each parent who has performed a reasonable share of the caretaking functions;
• Accommodate the firm and reasonable preferences of a child who is fourteen years old or older. If a child is under fourteen, but sufficiently mature that he or she can intelligently express a voluntary preference, the judge will give that preference “some” weight;
• Keep siblings together if that’s necessary for their welfare;
• Protect the children when there is a gross difference in the quality of the emotional attachments between each parent and child, or in each parent’s demonstrated ability or availability to meet the children’s’ emotional and basic needs;
• Any prior agreements of the parents about parenting;
• Whether the proposed plan would be extremely impractical or that would significantly interfere with the children’s need for stability. Here courts will consider things like the distance between the parents’ homes, the cost and difficulty of transporting the children, the daily schedules of the parents and the children’s, and the ability of the parents to cooperate in the arrangement;
• Whether one parent relocates (or proposes to relocate) at a distance that would make it hard for the other parent to have reasonable parenting time; or
• The stage of the children’s development.

The Court will also consider other factors that could restrict the other parent’s time:

• 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
• other considerations found in West Virginia law.

A judge can restrict a parent’s time, or limit a parent’s custody.  Factors that would justify limitations include:

• Alcoholism or illegal substance use by the parent;
• The parent has abused, neglected, or abandoned the children;
• The parent has sexually assaulted or sexually abused the children;
• The parent has committed domestic violence in the past or is currently;
• The parent has a felony criminal record;
• Special medical considerations related to the parent’s ability to care for the child;
• The parent has regularly prevented the other parent from seeing the child;
• The parent has unstable, inconsistent or unsafe housing for the child (living out of hotel rooms, lack of bedroom furniture, bad living conditions); or
• The parent has made one or more fraudulent reports claiming domestic violence or child abuse by the other parent.

You should be prepared to include in your initial filings with the Court and from your very first hearing any evidence that you have of these factors.

If a parent has engaged in any of these acts, the court will consider limiting that parent’s time with the kids. This could mean that the parent who did these things might no longer have any parenting time, or the terms of custody awarded could be reduced or restricted.  For example:

• Additional parenting time given to the other parent, to make up for any parenting time lost because of the bad conduct; or
• Additional parenting time to the other parent to repair any damage to the parent-child relationship because of the bad conduct; or
• The allocation of exclusive custodial responsibility to one parent and none to the other; or
• Third party supervision of the custodial time between the offending parent and the children; or
• Exchanges of the children between parents to take place through a third person instead of through a parent-to-parent meeting, or to take place in a protected setting; or
• Restrictions on the parent from communicating with or being near the other parent or the child; or
• A requirement that the parent abstain from alcohol or non-prescribed drugs during their parenting time, and/or in the 24-hour period before their parenting time; or
• Denial of overnight parenting time; or
• Restrictions on the presence of particular people while the children are with that parent; or
• A requirement that the parent post a bond to assure the return of the children following parenting time, or to assure some other action required by the court; or
• A requirement that the parent complete a program for perpetrators of domestic violence, for drug or alcohol abuse, or a program to correct another adverse factor; or
• Any other conditions that the court finds necessary to protect the safety of the child, a child’s parent, or any person whose safety immediately affects the child’s welfare.

If the children are least fourteen years old and can make an intelligent and voluntary suggestion, the court will consider their wishes in making a custody decision. That doesn’t mean they’ll get their way, but it does mean the court will hear them out. If the children are under fourteen, but sufficiently mature, their suggestion can be heard as well. However, a younger child’s suggestion does not carry the same weight as one who is fourteen.

Judges do not want to put young children (under age 10) in the position of saying what custody schedule the child wants. Too many young kids will feel like they’re being asked to “choose which parent they love the most.” The truth is children love both parents, and want to be with both of them. It’s unfair to the young child to be put in the middle. Judges won’t do it. Don’t hurt your own case with the judge by putting your young children in the middle.

Page seven of the Parenting Plan form has a long list of holidays. This is where you tell the court how you want to divide parenting time on holidays. There are lots of ways to do this. One parent can have the children one entire holiday this year, and then next year the other parent has that holiday. Or you can have an exchange at some point during the holiday, so that each parent gets part-time during that holiday. Like the rest of your parenting plan, the way the children will spend holidays should be similar to the way they spent those holidays in the past.

Every case can be different, and every Parenting Plan Custody Schedule should be suited to fit the individual situation. There is no “one plan fits all.” Figure out what works best for the parents and children involved. Feel free to be creative and different, if that is practical for both the parents and for the children.

Elsewhere on the Legal Aid web site we have a computer-based system to help people create their own Parenting Plan form just by answering questions on the screen. We’ve included some of the most common parenting time schedules, and you can adjust them to cover whichever days of a week you prefer. Your answers will be printed out on a form that you can then file with the Circuit Clerk.

There are a few schedule plans that many families find useful. Probably the most frequently used models are the following:

• The Every-Other-Weekend Schedule: On this schedule, one parent has the children during the week every week, while the two parents alternate the weekends. The Court may adopt this schedule if one parent actually performed “most” of the caretaking duties for the children “most” of the time. This way the amount of custody awarded is similar to the pattern the parents used before they separated. Although you are alternating weekends, it is best to label the weekends as the first, second, third, and fourth weekends in a month so that you always know from the calendar whose weekend it is. There are a few months in the year when there is actually a fifth weekend; you will need to determine which parent gets any “fifth weekend” that comes up. This model plan may also include a shorter visit between weekends if necessary, such as a Wednesday evening visit or Tuesday overnight visit.

• The Summer-and-Holidays-Only Schedule: Families may choose this schedule if one parent lives far away from the other, and the long-distance travel would disrupt the children’s life to visit more frequently. By having lengthy visitation during the summer months, and during other longer school holidays, the children can still maintain a relationship with the parent while keeping their lifestyle similar to the way it was before the separation.

• Fifty/Fifty Time: The 2-days/2-days/3-days Split Schedule: This schedule allows the children to spend the two days of the week with Parent A, then the next two days with Parent B, then the last three days with Parent A again. The schedule will continue in this pattern over time so that parenting time is divided evenly. This kind of schedule can be set so that one parent always has the weekend. Or it can be set so that the weekends are split up. Or the rotation can be changed from week to week so that the weekends alternate between the parents. Often, exchanges are on Wednesday (for 2 days), then Friday (for two days), the Sunday (for 3 days), to minimize disruptions during the school week. This schedule generally succeeds only if the parents live close enough together for the frequent transportation back and forth. The 2/2/3-Split schedule is a good option if prior caretaking was shared pretty evenly between parents because this plan gives both parents frequent and equal parenting time.

• Fifty/Fifty Time: The 4-day/3-day Split Schedule: This schedule includes the option for exchanges on Sundays and Wednesdays, permitting the children to spend four days with Parent A and three days with the Parent B. This schedule works best if the parents live close enough together for the frequent transportation back and forth. It also makes the most sense if prior caretaking was mostly equal in the past, with one parent providing slightly more care. It allows the children to settle into each home for a few days before a transition. It also allows the children to see each parent frequently. Weekends can be divided up so that each parent gets a part of every weekend; or the schedule can be “swapped” each week so that weekends alternate.

• Fifty/Fifty Time: The Rotating-Weeks Schedule: This schedule allows the children to spend one week with Parent A and the next week with Parent B. Sometimes this schedule can include a short mid-week visit (either an evening only, or an overnight) to break up the long separation each week. Similarly to the 2/2/3-Split Schedule, this schedule works best if parents live near each other so there isn’t a disruption in the children’s school life. Some families will choose this schedule because there is less transitioning and it allows the children to settle into each parent’s home for a full week. However, this schedule should reflect caretaking functions that were shared half-and-half prior to the case. If one parent did not contribute to the caretaking functions half the time in the past, this schedule may not be best.

If your situation is unique and one of these schedules would not work, you should contact an attorney for help. You can apply for help from Legal Aid or contact other legal resources.