Family Law

How do Judges Decide Child Custody in West Virginia

By Kristina Otterstrom, Attorney
Learn more about the basics of child custody orders in West Virginia.

West Virginia Custody Basics

A judge will issue a custody order when parents separate or divorce. Custody orders set forth legal and physical custody. Legal custody involves a parent’s right to make religious, educational, medical or other decisions for the child. Physical custody is sometimes called parent-time or visitation. The parent with primary physical custody lives with the child.

A judge can award both parents joint legal and physical custody, or one parent sole physical and/or legal custody. If both parents have been exercising a reasonable amount of care and responsibility for the child, it’s presumed that joint legal custody is in the child’s best interests. However, that presumption can be overcome in cases where one parent has a history of domestic violence or there are other reasons that joint legal custody isn’t in the child’s best interests.

How Will a Judge Decide My Custody Case?

Judges consider several factors to determine the custody arrangement that best serves a child’s needs. Although a judge may evaluate any factor that affects a child’s best interests, generally a judge will consider at least the following factors:

  • the child’s stability in his or her current home environment and school
  • the parents’ reasons for seeking custody
  • the child’s bond to each parent
  • the parents’ geographical proximity to one another
  • the parents’ agreements on custody
  • each parent’s ability to protect the child from emotional or physical harm
  • the child’s physical and emotional needs
  • each parent’s mental and physical health
  • the child’s preference if of sufficient age and maturity
  • either parent’s history of domestic violence, if any
  • each parent’s willingness to foster a relationship between the child and the other parent, and
  • any other factor that affects the child’s best interests.

When deciding custody, a judge will also determine an appropriate visitation schedule for holidays, birthdays, and school vacations. In addition to the factors above, a judge may also consider transportation between visits, including costs and associated travel time. For example, a noncustodial parent may be granted additional visitation with a younger child, while visitation may be reduced once a child reaches school age.

West Virginia law encourages physical custody arrangements that maximize each parent’s time with the children. In some cases, equal time isn’t possible when parents live far away or one parent has a history of domestic violence. In certain situations, where a child’s safety is at issue, a judge may limit a parent’s visitation by ordering supervised visits. A mutually-agreed upon third party will supervise visits as long as the custody order prescribes. A judge may allow unsupervised visits when it’s clear it would serve the child’s best interests.

Will a Court Consider Parents’ Custody Agreements?

One of the factors a judge must consider when deciding custody is any previous custody agreements between the parents. So almost always a judge will consider your custody agreement, but that doesn’t mean the judge must follow it, because a child’s best interests are central to any custody proceeding.

Parents can reach custody agreements on their own or through child custody mediation. It doesn’t matter how you reach a custody agreement. Instead, it just matters that your agreement is reasonable, complete, and serves your child’s best interests. Your agreement needs to resolve all custody-related issues, not just the few you and your spouse can agree upon. For example, if your agreement resolves legal custody, but doesn’t address visitation or physical custody, a judge may throw it out. Generally, a complete custody settlement will decide the following:

  • where the child will live and attend school
  • location of parent-time exchanges
  • each parent’s responsibility for travel expenses between visits
  • child support
  • medical insurance coverage and each parent’s responsibility for insurance premiums and co-pays
  • summer and holiday visitation
  • each parent’s right and responsibility to make medical, educational, religious or other legal decisions on the child’s behalf, and
  • parent-child communication when the child is in the other parent’s care.

Before submitting their agreement to a judge, parents should put their custody settlement in writing and sign it. If your agreement is reasonably fair and meets your child’s emotional and physical needs, the judge may approve it and turn it into a court order.

Can I Modify My Custody Order?

Parents can modify custody orders when a certain amount of time has passed or there has been a material and substantial change in circumstances that justifies a custody change. Certain life changes such as one parent’s new marriage or new job won’t automatically warrant a change to custody. But a debilitating illness, cross-country move, or a new job with extensive travel might all be justifications for changing custody arrangements.

A judge will consider many of the same factors in a modification proceeding that are relevant in an initial custody case. Ultimately, a child’s best interests are central to any custody modification. A judge won’t modify custody unless the modification is necessary to serve the child’s best interests.

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