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Navigating West Virginia’s New Custody Law

Child Custody & Parenting Plans
Written by Legal Aid WV


West Virginia Legislators have made a few changes to custody law that started on June 10, 2022.  In cases dealing with custody, the Family Court now has a presumption, or belief, that there should be 50/50 shared equal custody between parents.  This means Judges will equally split custody 50/50 between parents.  This new law does not create a substantial change in circumstances.  This means it cannot be used as the only reason to change an existing parenting plan.

This belief of 50/50 custody is “rebuttable” or challengeable.  To challenge it, a parent must prove “by a preponderance of the evidence” that the other parent should not have 50/50 custody.  This means there is over a 50% chance that what you are saying is true.  At your first hearing if you have not already reached an agreement on custody with the other parent, you can bring in evidence to help your case.  This includes photographs, text messages, witnesses, etc.    

At the first hearing, the Family Court is going to decide on temporary custody for the child.  If the parents have already agreed on a parenting plan, then the Family Court will likely use that agreement. If a parent disagrees with the temporary custody plan they can file an appeal with the West Virginia Intermediate Court of Appeals.  This is a new court will conduct a quick review of the Family Court’s decision.

If a person chooses to appeal that does not stop the Family Court decision from being followed for the time being.  The Family Court also will not pause future hearings in your custody case. This applies even if the Intermediate Court has not yet heard your appeal.  Since the Intermediate Court of Appeals is a brand-new court system, it is not clear how fast a review will be done.

The Family Court will consider many factors when deciding custody.  The Court can consider the actions of significant others, friends, and family that often spend time at your home. This is to see if any of those people will do something harmful or if there are concerns with their past behavior.  The Court also looks at the travel distance between parents’ homes. Also, the amount of time each child spends with the parent or a third party, and if the child has siblings. The Court can also consider whether a child, or parent, has a serious medical condition that can make care difficult.  The Court can also consider if a parent has a past history of domestic violence or any current domestic violence cases.  The Court will want to know if a parent has any felonies on their criminal record. In addition, the Court may also want to know where the children want to live if they are over 14 years old. If the child is not yet 14 years old, the Court will evaluate if they seem mature enough to have a preference.

If a parent wants to challenge 50/50 shared custody they should bring evidence to their hearings. The evidence should show any of these kinds of behavior.  At the hearing, the judge will hear both sides and consider all the evidence and factors. Then the judge will make a decision on what custody arrangement is best for the child. 

There is an option to “modify” or change, the parenting plan in the future.  To modify, a parent must show a “substantial change in circumstances” since the current plan was entered. The parent must also show that the change is in the best interest of the child.  Examples of a substantial change include things like unstable housing conditions, not giving the child medical care, or a disruption in the child’s education. If you cannot show a substantial change, you can still modify it for a few reasons.  Please see our custody modification article for more information.

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