The West Virginia (WV) Legislature passed a bill during the 2022 session that establishes a new presumption regarding child custody in WV divorces. While the new WV child custody law will offer each parent a better chance of having shared custody, it does not eliminate the need for the legal custody process. The courts can deviate from the presumption when there is evidence that shared custody is not the best interest of the child.
When fighting to determine who gets custody in a WV divorce, parents must prove they provide a situation that is in the best interest of the child. If you live in Logan County or the surrounding areas, a southern WV divorce lawyer at Harwood Legal can help you understand how the changes in WV law apply to your situation.
The New Presumption in WV Child Custody Law
In West Virginia, child custody refers to both physical custody (where the child is physically) and legal custody (the parent’s right to make decisions regarding the child’s upbringing. The Best Interests of Child Protection Act of 2022 amends WV Code to include a presumption that equal child custody should be the starting point in WV custody cases. The objective of the bill, which takes effect June 10, 2022, is serving the best interest of the child by facilitating the following:
- Providing stability for the child;
- Providing collaborative agreement between the parents regarding custody and decisions about raising the child;
- Maintaining current and meaningful parent-child relationships and attachments;
- Enabling caretaking by loving adults who know how to provide for and prioritize the needs of the child;
- Securing safety from physical or emotional harm;
- Allowing quick and consistent decision-making by the parents; and
- Allowing meaningful contact between the child and their siblings.
A secondary goal of the new WV child custody law is to achieve fairness between the parents. However, parents need to note that this is only a presumption and not a guarantee of equally shared custody. Parents should contact a southern WV divorce lawyer to help fight for custody and protect their legal rights.
The Judge’s Role under the New WV Child Custody Law
Under the new law, judges must approach a custody dispute with the presumption of 50-50 custody. However, they are not required to award shared custody and may allow the circumstances of the situation to dictate who gets custody in a WV divorce. As such, if either side presents sufficient evidence to rebut the presumption, the judge may enter a different custody that is in the best interest of the child.
Should the judge find the presumption is rebutted, a parenting schedule will be created to maximize the time each parent has with the child as the court finds appropriate. This schedule must ensure the child’s welfare.
Who Gets Custody in A WV Divorce?
The court may award a parent physical custodial rights and legal custody or decision-making responsibility. Under the new WV custody law, both types of custodial rights shall be shared equally between the parents unless the parents agree otherwise or the court finds such shared custody is not in the best interests of the child.
While one parent may have physical custodial rights if the court deviates from the presumption of equal custody, the court may award decision-making responsibilities for the child solely to the other parent. These include decisions about the child’s education, health care, religious upbringing, and more. The court awards decision-making responsibilities based on the following:
- The level of each parent’s participation in past decision-making;
- The wishes of each parent; and
- The ability of the parents to cooperate in making child-rearing decisions.
The law presumes that parents should equally share custodial and decision-making responsibility unless there is evidence proving otherwise. A southern WV divorce lawyer can help rebut the presumption of shared custodial and decision-making responsibilities if your case involves disagreement about the custodial presumption.
Temporary Parenting Plans in WV Divorces
WV custody law allows for the judge to award a temporary parenting plan during the custody negotiations and divorce process. The judge may decide which parent should have custody or whether it should be shared. However, the parents can also come to an agreed temporary plan to submit to the court for approval.
Should the court have to decide on a temporary plan, it considers the following factors:
- Which parent has shouldered more responsibility in the last 12 months relating to parenting functions; and
- Which parenting arrangements would cause the least emotional disruption for the child.
The new WV child custody law provides each parent a better opportunity for shared custody, but a parent seeking a different custody order must establish that the desired order is in the best interest of the child. If you and your former partner disagree on whether equal custody or another plan is appropriate in their case, a southern WV divorce lawyer represents your best chance of receiving custody. For help understanding how the new presumption regarding child custody in WV divorces applies to your case, contact Jason Harwood at Harwood Legal, PLLC at 304-752-5015 or complete this online contact form.