Parenting/Child Custody

Parenting/Child Custody: parents will have the rights and duties of care and control of their children, whether or not the parents were married. Legal custody is the right and duty to make vital decisions about the child's education, medical care, religious training, and similar issues.

Historically, the time when a child was in the care of each parent was referred to as "custody" of the child. This is no longer the case in West Virginia. Effective April 14, 2001, the West Virginia Legislature amended and recodified the portions of the West Virginia Code which relate to the care of children after a divorce or separation and substituted "Shared parenting" for "Shared physical custody" when it speaks of children. For that reason the Family Courts of West Virginia now refer to Shared parenting of children rather than custody of a child or children. Many times parties become confused regarding the meaning of "Shared parenting" ascribing to it the same meaning as joint custody under the old law.

In reality, there are two types of Shared parenting. "Basic shared parenting" means an arrangement under which one parent keeps a child or children overnight for less than thirty-five percent of the year and under which both parents contribute to the expenses of the child or children in addition to the payment of child support.

"Extended shared parenting" means an arrangement under which each parent keeps a child or children overnight for more than thirty-five percent of the year and under which both parents contribute to the expenses of the child or children in addition to the payment of child support. (§ 48-1-239. Shared parenting defined)

According to the West Virginia Code, at or near the time of the filing of the divorce or parenting related proceeding the parent seeking a temporary order relating to parenting is required to file and serve a proposed temporary parenting plan by motion. The other parent, if contesting the proposed temporary parenting plan, is required to file and serve a responsive proposed parenting plan. Either parent may move to have a proposed temporary parenting plan entered as part of a temporary order. The parents may enter an agreed temporary parenting plan at any time as part of a temporary order. The Code sets out certain minimum requirements of a proposed temporary parenting. A form for the proposed parenting plan is available online. (§ 48-9-203 Proposed temporary parenting plan)

After considering the proposed temporary parenting plan(s) filed and other relevant evidence presented, the court will make a temporary parenting plan that it deems to be in the best interest of the child. The Code requires that the court give particular consideration to which parent has taken greater responsibility during the last twelve months for performing caretaking functions relating to the daily needs of the child and which arrangement will cause the least disruption to the child's emotional stability. (§ 48-9-204. Criteria for temporary parenting plan)

Upon credible evidence that one of the parents or parties has abused, neglected or abandoned a child, has sexually assaulted or sexually abused a child, has committed domestic violence, has interfered persistently with the other parent's access to the child, except in the case of actions taken for the purpose of protecting the safety of the child or has repeatedly made fraudulent reports of domestic violence or child abuse, the court may impose limits that are reasonably calculated to protect the child or child's parent from harm. (§ 48-9-209. Parenting plan; limiting factors)

A temporary parenting plan is in effect until the conclusion of the case at which time a permanent parenting plan is adopted by the court. The court will always encourage the parties to agree on a parenting plan and if agreement is reached, the parties may file a joint plan. In the event there is no agreement any party seeking to have the court allocate custodial responsibility or decision-making responsibility is required to file a proposed parenting plan with the court. A proposed parenting plan must be verified and must contain substantial material such as the identity of adults with whom the child has lived for one year or more, or in the case of a child less than one year old, any adults with whom the child has lived since the child's birth, the child's parents and other individuals who may be able to participate in the action, a description of the allocation of caretaking and other parenting responsibilities performed by each person named, a description of the work and child-care schedules of any person seeking an allocation of custodial responsibility, the child's school and extracurricular activities and a description of any factors as a result of which the court might impose limits reasonably calculated to protect the child or child's parent from harm. (§ 48-9-205. Permanent parenting plan)

The court shall allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation or, if the parents never lived together, before the filing of the action.

As part of making this allocation the court will attempt meet a number of competing goals including to permit the child to have a relationship with each parent who has performed a reasonable share of parenting functions, accommodate the firm and reasonable preferences of a child who is fourteen years of age or older, keep siblings together, take into account relevant prior agreement of the parents, avoid an allocation of custodial responsibility that would be extremely impractical or that would interfere substantially with the child's need for stability, consider the stage of a child's development.

Additional difficulties will arise in cases where allocation using these factors would be manifestly harmful to the child, or where there is no history of past performance of caretaking functions, as in the case of a newborn. In these cases the court will allocate custodial responsibility based on the child's best interest taking into account the factors required by the West Virginia Code, while preserving to the extent possible the share of past caretaking functions each parent performed. (§ 48-9-206. Allocation of custodial responsibility.)

Once a permanent parenting plan is in place the court may still modify a parenting plan order if it finds, on the basis of facts that were not known or have arisen since the entry of the prior order and were not anticipated therein, that a substantial change has occurred in the circumstances of the child or of one or both parents and a modification is necessary to serve the best interests of the child. In exceptional circumstances, a court may modify a parenting plan if it finds that the plan is not working as contemplated and in some specific way is manifestly harmful to the child, even if a substantial change of circumstances has not occurred. ( § 48-9-401. Modification upon showing of changed circumstances or harm. )

The Court may also modify a permanent parenting plan order without a showing of change circumstances if the modification is in the child's best interests, and the modification reflects the de facto arrangements under which the child has been receiving care, without objection, in substantial deviation from the parenting plan, for the preceding six months unless the deviation results from the other parent's domestic abuse. The court may also modify a parenting plan without a showing of change circumstances if the modification is a minor modification in the plan or is necessary to accommodate the reasonable and firm preferences of a child who has attained the age of fourteen. (§ 48-9-402. Modification without showing of changed circumstances.)

The relocation of a parent constitutes a substantial change in the circumstances if it significantly impairs either parent's ability to exercise responsibilities that the parent has been exercising. A parent who has responsibility under a parenting plan who changes, or intends to change, residences for more than ninety days must give a minimum of sixty days' advance notice, or the most notice practicable under the circumstances, to any other parent with responsibility under the same parenting plan. The West Virginia Code includes specific requirements regarding the contents of this notice. (§ 48-9-403. Relocation of a parent.)

Parenting/Child Custody

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