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Child Custody & Visitation
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Upwardly spiraling divorce rates among two-income families coupled with the relocation expectation, or even demands, of regional, national and
international corporate employers, have fomented a narrow but incipiently
prolific area of post-decree litigation in matrimonial cases in virtually
every state jurisdiction across the United States.
The Articles of Confederation, the form of government
adopted by the United States after the Revolution, but before the
Constitution of 1787, provided that the citizens of each State of the then
United States would have the "...free ingress and regress to and from any
other State,".
For more than a decade the State of West Virginia has subscribed to the rule that in contested custody matters, there is a presumption that the best interests of a child are served by placing custody in his or her
primary caretaker, if such primary caretaker meets minimum objective standards for fitness.
Relocation issues treating a parent’s right to travel, as discussed herein above, have been restricted thus far to interstate migrations, which is the primary focus of this paper. A less refined and seldom visited
aspect of the right to travel is the extension of that prerogative beyond the political borders of the country.
If the primary caretaker presumption stands for the proposition that it
is in the best interests of a child to be placed in the sole custody of the
fit parent who so qualifies, then that presumption must accompany that
parent and that child throughout any intrastate or interstate resettlements.
Post Divorce Relocation Rights of the Custodial Parent
The custodial parent shall take the necessary action with school authorities of the schools in which the children are enrolled to: (1) list the non-custodial parent as a parent of the children, (2) to authorize
the school to release to the non-custodial parent any and all information concerning the children, (3) to
insure that the non-custodial parent receives copies of any notices regarding the children.
For seven weeks during the summer vacation from school,
beginning on the first Sunday after school lets out to the Sunday seven
weeks later, subject to the custodial parent’s right to visit with
the children for one weekend during the extended visitation with the
non-custodial parent.
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In order to get a divorce in West Virginia based on no-fault grounds, the spouses must be living separate and apart in separate places without cohabitation and without interruption for one year, or there must be irreconcilable differences between them.
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