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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 parentís right to visit with the children for one weekend during the extended visitation with the non-custodial parent.
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The primary consideration in child custody is the best interests of the child, according to the West Virginia Code. The judge in a custody case looks at several factors including who historically served as the primary caretaker of the child, the physical and mental health of the parents and the child, age of the child, and the type of residences maintained by each parent.
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