When children are involved in a WV divorce, custody decisions are often the most emotionally charged part of the process. Understanding the law can help you prepare and advocate effectively for your children.
The 50/50 Starting Point
West Virginia presumes that equal parenting time (50/50) is in the child’s best interests when parents cannot agree. This is a starting point — not a guarantee — and either parent can present evidence that a different arrangement better serves the child.
The Best Interests of the Child Standard
Every custody decision in WV turns on this question: What arrangement is in this child’s best interests? Courts consider:
- The child’s relationship with each parent
- Each parent’s ability to provide a stable, loving home
- The child’s adjustment to home, school, and community
- Each parent’s mental and physical health
- Each parent’s willingness to support the child’s relationship with the other parent
- Any history of domestic violence, abuse, or neglect
- The child’s own preferences (for children mature enough to have a reasoned opinion)
Types of Custody
Legal Custody
The right to make major decisions — education, healthcare, religion. Courts almost always award joint legal custody so both parents share decision-making.
Physical Custody (Parenting Time)
- Basic parenting: One parent has fewer than 127 overnight visits per year (less than ~35%)
- Extended parenting: Both parents have 127+ overnight visits per year (~35% or more each)
Parenting Plans
Both parents must submit a Parenting Plan addressing: regular weekly schedule, holidays and school breaks, summer vacations, transportation arrangements, dispute resolution process, and communication protocols.
If parents agree, the court approves it. If they disagree, each submits an Individual Parenting Plan and the judge decides.
Can My Child Choose Where to Live?
There is no set age in WV. A judge may consider the preference of a child mature enough to have a reasoned opinion — generally given more weight in the early teenage years. The child’s best interests always control.
Relocation
If a custodial parent wants to move — especially out of state — WV law requires advance notice to the other parent and often court approval. Courts balance the parent’s right to move against the other parent’s right to a meaningful relationship with the child.
Modifying a Custody Order
To change an existing custody order, you must show a substantial change in circumstances affecting the child’s welfare — such as a parent’s relocation, a significant schedule change, or a new safety concern.
Child Support
Child support is calculated by a state formula based on both parents’ incomes and parenting time. It continues until the child turns 18 or graduates high school, whichever is later.
Resources
- WV Code § 48-9 — Child Custody
- Legal Aid WV — What You Can Ask the Court to Decide
- WV Family Court System
This page is for informational purposes only and does not constitute legal advice.