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West Virginia Child Custody
Child Custody in West Virginia

According to West Virginia Code, Section 48-9-101 and 48-9-102, public policy of West Virginia, the court's primary concern in allocating custodial and decision-making responsibilities between parents is the best interest of the children.

West Virginia uses the best interests of the child standard to determine which parent shall have legal and physical custody of the child. To ascertain the best interests of a child, the West Virginia court looks at the history of primary care for the child, and considers the physical and mental health of both parents and the child. The court examines the home most appropriate to serve as the residence of the child. They also determine which parent will encourage a meaningful relationship between the child and the visiting parent.

West Virginia law directs parties in any domestic relations case to develop a parenting plan. The parenting plan addresses the allocation of custodial responsibilities between the parties, how decision-making is allocated between the parents, and provisions defining the process for resolving future disputes.

When parents cooperate, courts believe they demonstrate their willingness and ability to take care of their child after divorce. In the event a dispute occurs, the court shall step in to resolve issues concerning child support, custody, and visitation rights. As governed by child custody laws, the courts shall not make custody arrangements based on the child's gender. The court shall evaluate the nature of the relationship between the parents and the child. The court can either award sole or joint custody depending on the circumstances surrounding the custody petition.

West Virginia Child Custody Laws

The court's primary concern is to allocate rights and responsibilities to the parent who is capable of taking care of the child. Visitation rights may be granted to the non-custodial parent. The court shall take into consideration the following factors:

  • the child's wishes or preferences as to custody, provided that he or she is mature enough to make such claims;
  • the child's adjustment and stability;
  • the emotional and physical well-being of the child;
  • the parents' wishes or preferences as to custody;
  • any parenting plan agreed upon by parents prior to filing the custody case;
  • the involvement of the parents in childrearing in the past;
  • the nature of the parent-child relationship; and
  • any history of domestic violence, child abuse, negligence, or substance abuse.

A standing child custody order may be modified if one parent demonstrates that a material change of circumstances occurred. A material change of circumstances is an alteration in the situation of the custodial parent that is so significant that he or she can no longer provide for the best interests of the child. An example of such a material alteration in circumstances is a custodial parent who is discovered to suffer from drug addiction.

Provided they focus on the best interests of the child, parents can modify custodial arrangement between themselves. The court will only modify a custody order upon a demonstration of a material change of circumstances.

Joint Custody Preference

West Virginia law expresses a preference for parents to share as equally as practically possible in the custody of a child in a divorce case.

In most instances, joint custody is desirable and preferred. However, this is not awarded if the child's welfare is at risk with the other parent. In addition, parents are required to submit a parenting agreement in court for review. The court has the discretion to either approve or reject the agreement. If a parent wishes to modify the custody arrangement, he/she needs to provide sufficient evidence showing that the arrangement is not working or the child's welfare is at risk.

The laws of West Virginia establish a preference for joint legal custody whenever possible. Legal custody designates a parent who is granted authority to make major decisions for a child. Unless there is a compelling reason to eliminate one parent from the decision-making process, a West Virginia court establishes joint legal custody; thus both parents share equally in making important decisions.

Parental Conduct

In addition to finding a parent unfit because of substance abuse or abuse or neglect towards a child, the courts also consider the conduct of both parents during the course of the marriage, and the impact of parental behavior on the child.

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