When a married couple decides to end their relationship, they enter into the emotionally frustrating and sometimes long process of divorcing. During this process, they need to make decisions regarding their shared property and assets, both sides attempting to make it out of the relationship with their fair share and set themselves up for a new life on their own. In those divorces where the couple shares children, they also have to make important and often emotional decisions about West Virginia child custody and how they as parents will share the rights and responsibilities of raising them.
How is Child Custody Determined in West Virginia?
The primary objective of West Virginia family law court systems during child custody cases is to ensure that the custody order put in place is within the “best interests of the child” standard. This standard outlines that judges need to look at all of the circumstances related to the child and each parent before making a final custody decision. The court also wants to ensure the child’s life remains as stable as possible after the parents have separated.
Additionally, the best interests of the child standard outlines that the court should do everything possible to ensure the child maintains a positive and loving relationship with both parents. When making a custody decision, West Virginia judges consider:
- Current relationship between the child and both parents
- Emotional stability provided by each parent to the child
- Each parent’s willingness and ability to care for the child
- Child’s mental and physical health
- Each parent’s mental and physical health
Custody Options in West Virginia
West Virginia judges have some options when it comes to how they award custody to parents during a divorce. One option is to award joint custody to both parents where they share time when the child resides with them – this is only an option when both parents exhibit that they are able to provide for the child’s physical, mental, and emotional needs. Another option is to award one parent sole custody and the other parent child visitation rights. This visitation schedule is also set by the judge and outlines when visitation is allowed on weekends, holidays, and school breaks.
In cases when the judge suspects that one parent is unfit, such as using/abusing alcohol or drugs, and that the child is not safe with the parent, he or she may order limited visitation that potentially only includes supervised visitation time between the parent and the child. Also, the judge does have the right to deny a parent visitation should that parent be a threat to the child.
Parenting Plans in West Virginia
Before the judge makes a final West Virginia child custody order, he or she encourages the parents to come up with their own parenting plan that works for both of them as well as for the child. When creating this plan, parents need to outline a number of details including who the child will reside with during what times, how vacations, weekend, holidays, and school breaks will be shared, how decisions will be reached regarding the child’s health, education, and religious upbringing and how the parents plan to settle any disputes regarding the West Virginia child custody agreement.
The court very likely accepts a parenting plan that allows the child to have frequent and positive contact with both parents and if the parents have a sound plan in place for solving any disagreements they may have without exposing the child to their conflict. The more detail the parenting plan has, the easier it is for the court to approve it and make it enforceable by law. Parents should include details such as who has the child during the week and on weekends, whether they plan to alternate weeks or months, and how transportation will work.
Including details on a holiday visitation schedule is also important when making a parenting plan as holidays are an important part of the child’s stability after the parents have divorced – having a detailed schedule helps the child know what to expect in the coming weeks and months. An example of how parents can share holidays is one parent having the child on Christmas and Halloween every odd year and the other parent having the child on every even year. Regardless of how parents choose to share holidays, the arrangement should always be in the child’s best interests.
Child Custody Modification in West Virginia
Once a West Virginia child custody order has been made, whether the parents created it or the judge ordered it, it becomes legally binding and both parents must follow what is outlined or be criminally charged. Generally, changes to a custody order cannot be made without the court’s approval, but in some cases changes do need to be made. Should a situation arise when modifications need to be made to an existing agreement and the parents agree on the changes, they can submit to the court to have the modification made. Should it be in the child’s best interests, it is likely approved.
In cases where changes need to be made but the parents cannot agree on the modifications, it is left up to the family court judge to decide. The parent proposing the modifications carries the burden of proving why the changes are needed and what benefits they provide for the child. The judge considers a number of different factors before making a final decision and also compares the proposed changes against the best interests of the child standard. In general, courts try to minimize the number of modifications to a custody agreement as to not disrupt the child’s life.
Custody and Relocation in West Virginia
When parents are in a sole custody agreement – where one parent has primary custody and the other has visitation – the subject of relocation becomes a very touchy and often heated one. This is most often the case when the parent who has custody wishes to move a distance away from the other parent and the relocation has a direct impact on the visitation schedule. These types of disputes are rarely agreed upon outside of court and often the case appears in front of a judge.
When making a decision on relocation, the judge places the burden of proof on the parent wishing to move. This parent needs to explain the reason for the relocation as well as the benefits the child receives from moving. The other parent has an opportunity to air any grievances about the move as well. The judge is then tasked with evaluating the case, reviewing the child’s best interests, and making a decision to approve or deny the relocation. Additionally, the judge needs to consider how the relocation affects the current visitation schedule and what modifications need to be made to the current child custody order in West Virginia.