West Virginia Custody And Visitation Guidelines
West Virginia uses several factors to determine child custody laws. Primarily, a West Virginia court determines child custody based on the best interests of the child and prefers a joint custody arrangement which allows the child access to both parents.
Types of Custody
In a sole custody decision, one parent is given both physical and legal custody of the child. The other parent may be given visitation rights and obligated to pay child support, but that parent is not able to make legally binding decisions about the child’s upbringing. In the case of unmarried parents, sole custody is often given to the mother unless the father can prove that he would be a better parent.
Joint legal custody is perhaps the most common arrangement. One parent receives primary physical custody of the child, although the other parent normally receives liberal visitation. Both parents are expected to work together to make decisions about the child’s education, medical care and other important parts of the child’s life. In order for joint legal custody to be given, the court must be satisfied that the parents are capable of working together.
Joint physical custody is a less attractive option to most courts, although it may be permitted if the parents settle on an agreement that works. In this case, the child lives with the two parents, perhaps alternating weeks. Some families place the child with one parent during the school year and the other during summer vacations. This type of agreement prevents the child from losing continuity with either parent, but may make the child feel constantly shuffled around.
Split custody is when the children are divided, some living with one parent and some with the other. Courts are reluctant to divide siblings, however, and look for alternatives where possible.
Determination of Custody
Best Interests of Child
A court in West Virginia will determine child custody based on the best interests of the child. The court will review the following factors to determine a child’s best interests:
- The child’s wishes
- The parents’ wishes
- The parents’ prior agreement
- Each parent’s involvement in past child-rearing responsibilities
In West Virginia, the court’s objectives in determining child custody based on a child’s best interests are:
- The stability of the child
- Regular contact between the child and each parent
- The emotional and physical well-being of the child
When making decisions about child custody and visitation orders in a divorce or separation, the primary goal of the West Virginia courts is to ensure the orders benefit the child’s best interests. The court will look at all the circumstances related to the child and each parent before making a custody decision. The judge may decide to award joint custody to both parents or sole custody to one parent, depending on whether both parents can provide for the child’s mental, physical, and emotional needs. If the judge orders sole custody to one parent, the other parent will likely have visitation on the weekends, holidays, and during school breaks. However, if the court suspects that one parent is abusing drugs or alcohol, or that the child will not be in a safe environment, the court may order limited, supervised, or no visitation for that parent.
Paternity in West Virginia
Paternity in West Virginia is established either when the parents agree that the father is the biological parent of the child and sign documents that say so, or when a court enters an order stating that the father is the biological parent of the child.
When the father and mother of a child are married, paternity is automatically established when the child is born.
When the parents of a child aren’t married, paternity has to be established before the father’s rights and obligations take effect. If a child is born to parents who are not married, the father must be legally identified before child support can be obtained. Both parents may sign a document stating they are the child’s mother and father to legally establish paternity. This legal document, called a Declaration of Paternity Affidavit, may be obtained and completed at any of the birthing hospitals or birthing centers in West Virginia at the time of the child’s birth. However, court action will still be necessary to establish an order for child support.
West Virginia allows parents to establish paternity when the mother and father sign a “Notarized Affidavit of Paternity.” The notarized affidavit should list both parents’ social security numbers, addresses, and should state that both parents acknowledge paternity. The affidavit should also state that both parents understand the rights and obligations of paternity as well as the alternatives to acknowledging paternity. Once the original notarized affidavit of paternity is filed with the State Registrar, paternity has been established.
West Virginia paternity laws can be used by either a mother or a father to obtain court-ordered paternity DNA testing. In most instances, a mother seeking such an order needs the test results to provide a basis for obtaining a child support order against the father. If the child was born out of wedlock, a man who believes he is the father can also seek such an order to determine paternity.
If one parent won’t acknowledge paternity, you will need to file a “Petition to Establish Paternity” in your county circuit court asking the court establish paternity. You’ll also need to serve the other parent with a copy of your petition; the circuit court clerk can give you options to serve the other parent.
If the other parent still doesn’t agree on paternity, the court will order the child and parents to undergo genetic tests to determine paternity. Once paternity has been established, each parent has to complete a parent education class and file their certificate of completion with the county circuit court clerk.
Any of the following people can file a petition to establish paternity:
- an unmarried woman who has a child
- a married woman with a child, if someone besides her husband is the father
- The West Virginia bureau for child support enforcement
- any person with physical or legal custody of the child
- the guardian of the child
- a guardian ad litem, usually a lawyer appointed on behalf of the child, or
- a man claiming to be the father of a child born out of wedlock.
To establish paternity in court, the petition has to be filed before the child’s 18th birthday, unless the child files the petition, in which case it can be filed at any time. The judge can also decide other issues like child support, custody and visitation.
In West Virginia, if parents agree on child custody, the court will ask the parents to complete a written parenting agreement. The court will agree to the provisions in the parenting plan unless:
- The agreement is not reached voluntarily
- The parenting plan is harmful to the child
West Virginia courts encourage parents to work together to agree on a custody and visitation schedule before asking the judge to make an order. The court is more likely to accept a proposed parenting plan if it shows that the child will have significant contact with both parents, if it provides a method for resolving parenting disputes, and if it accounts for the child’s school, religious, and extracurricular activities. Parents should decide which parent the child will be with during the school week, on weekends, and holidays. If the parents want to change the parenting schedule, they can do so by mutual agreement or if circumstances have changed significantly.
If a parenting agreement is not accepted, a court in West Virginia will give the parents the opportunity to negotiate a new agreement or the court will order the parties to enter into a custody agreement or parenting plan. If the parties cannot agree, they will be required to attend mediation. If they still cannot agree, the court will resolve the disputes.
If the non-custodial parent poses a danger to the child, the custodial parent can ask the court to order supervised visitation. The statutes specifically allow for this when the non-custodial parent has been convicted of some form of domestic abuse or violence. Supervised visitation means that an approved adult must be present during the non-custodial spouse’s visit with the child.
West Virginia Has Monitored Parenting and Exchange Centers
Several regions of West Virginia have ‘monitored visitation centers.’ Monitored Parenting and Exchange centers are safe, neutral places that allow separated parents to exchange children for visitation without having to meet each other directly. The centers help to reduce the chance of a confrontational meeting in front of children.
Relocation and Child Custody in West Virginia
In West Virginia, if a parent is interested in relocating, he/she must supply their co-parent with at least 60 days advance notice, or as much notice as possible. The notice shall include:
- The date of relocation
- The address of the intended relocation
- Reasons for the relocation
- Provisions for how custody will be modified due to the move
A West Virginia court will determine whether the parent is able to relocate with a child, and whether custody should be modified because of the change in child custody.
Modification of Child Custody in West Virginia
A West Virginia court will consider a modification of child custody if it determines that the custody plan is not working and is somehow harmful to a child. The following circumstances do not constitute a change of circumstances:
- Loss of employment or income
- Either parent’s remarriage or cohabitation
- Choices regarding reasonable care-taking arrangements for the child, including the choice of day care and schools
Registration of Out of State Child Custody Determination
A child custody determination issued by a court of another state may be registered in
WV, with or without a simultaneous request for enforcement, by sending a letter or other document requesting registration along with copies of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified.
Enforcement of Parenting Plans.
If, upon a parental complaint, the court finds a parent intentionally and without good cause violated a provision of the court-ordered parenting plan, it shall enforce the remedy specified in the plan or, if no remedies are specified or they are clearly inadequate, it shall find the plan has been violated and order an appropriate remedy, which may include:
(1) In the case of interference with the exercise of custodial responsibility for a child by the other parent, substitute time for that parent to make up for time missed with the child;
(2) In the case of missed time by a parent, costs in recognition of lost opportunities by the other parent, in child care costs and other reasonable expenses in connection with the missed time;
(3) A modification of the plan, if the requirements for a modification are met under section two hundred nine, four hundred one, four hundred two or four hundred three of this article, including an adjustment of the custodial responsibility of the parents or an allocation of exclusive custodial responsibility to one of them;
(4) An order that the parent who violated the plan obtain appropriate counseling;
(5) A civil penalty, in an amount of not more than one hundred dollars for a first offense, not more than five hundred dollars for a second offense, or not more than one thousand dollars for a third or subsequent offense, to be paid to the parent education fund as established under section one hundred four of this article;
(6) Court costs, reasonable attorney’s fees and any other reasonable expenses in enforcing the plan; and
(7) Any other appropriate remedy.
West Virginia – Military Service Guidelines to modify a Parenting Plan.
West Virginia law provides that if a military parent is required to be separated from a child due to military service, a court shall not enter a final order modifying the terms of an existing parenting plan until ninety days after the military parent is released from military service. A military parent’s absence or relocation because of military service must not be the sole factor supporting a change in circumstance or grounds sufficient to support a permanent modification of an existing parenting plan.
A parenting plan establishing the terms of custody or visitation in place at the time a military parent is called to military service may be temporarily modified to make reasonable accommodation for the parties because of the military parent’s service.
A temporary parenting plan pursuant may provide that the military parent has at least substantial custodial responsibility of the child during a period of leave granted to the military parent during their military service, unless the court determines that it is not in the best interest of the child. If a temporary parenting plan is not issued, the nonmilitary custodial parent shall make the child or children reasonably available to the military parent when the military parent has leave to ensure that the military parent has reasonable custodial responsibility and is able to exercise custodial responsibility of the child or children.
If there is no existing parenting plan or order establishing the terms of custody or visitation and it appears that military service is imminent, upon motion by either parent, the court shall expedite a temporary hearing to establish a temporary parenting plan to ensure the military parent has access to the child, to establish support, and provide other appropriate relief.
West Virginia Customer Service
Note: The foregoing information is provided as general family law guidelines in West Virginia and should not be considered as legal advice specific to your case. After reviewing the above material, you will be presented with the opportunity to submit
more details specific to your case directly to About The Children.org
Submitted by Linda O’Marie, Paralegal
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