West Virginia law finds and declares that it is the public policy of this state to ensure that the best interests of children are the major focus of the court when distributing custodial and decision-making responsibilities between parents who do not live in the same household.
The Legislature declares that a child’s best interest will be served by assuring that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children, to educate parents on their rights and responsibilities and the effect their separation may have on children, to encourage mediation of disputes, and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or divorced. (See WV Code § 48-9-101)
The primary goal is to promote the best interests of the child by facilitating the following: WV Code § 48-9-102
- Stability of the child;
- Parental planning and agreement about the child’s custodial arrangements and upbringing;
- Continuity of existing parent-child attachments;
- Meaningful contact between a child and each parent;
- Caretaking relationships by adults who love the child, know how to provide for the child’s needs, and who place a high priority on doing so;
- Security from exposure to physical or emotional harm; and
- Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child’s care and control.
Allocation of Significant Decision-Making Responsibility
When it comes to key life decisions on behalf of the child, such as the child’s education and health care, the court will assign duty to one parent or to two parents jointly, in line with the child’s best interests, taking into consideration the following factors: WV Code § 48-9-207
- The allocation of custodial responsibility;
- The level of each parent’s participation in past decision-making on behalf of the child;
- The wishes of the parents;
- The level of ability and cooperation the parents have demonstrated in decision-making on behalf of the child;
- Prior agreements of the parties; and
- The existence of any limiting factors.
If each of the child’s legal parents has been exercising a reasonable share of parenting responsibilities for the child, the court will presume that assigning decision-making authority to both parents jointly is in the child’s best interests.
However, if there is a history of domestic abuse, or if it is demonstrated that joint decision-making authority is not in the child’s best interest, the presumption is overcome.
Permanent Parenting Plan
A proposed parenting plan must be filed with the court by the party who is seeking a judicial allocation of custodial custody or decision-making responsibility under § 48-9-205 of the Code. A joint plan may be submitted by the parties.
The court shall impose a manner of settling conflicts that is in the child’s best interest, taking into account the following: WV Code § 48-9-208
- The parents’ wishes and the stability of the child;
- Circumstances, including, but not limited to, financial circumstances, that may affect the parents ability to participate in a prescribed dispute resolution process; and
- The existence of any limiting factor.
The court must enforce a decision made by nonjudicial means if the parents agreed to it in a parenting plan or later agreed to it, unless it is shown to be contrary to the child’s best interests, beyond the scope of the parents agreement, or the result of fraud, misconduct, corruption, or other serious wrongdoing.
Temporary Parenting Plan
The court will make a temporary parenting plan that is in the best interest of the child after taking into consideration the proposed temporary parenting plan and any other relevant evidence that has been given.
When making this determination, the court will take into account the following factors in particular: WV Code § 48-9-204
- 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 parenting arrangements will cause the least disruption to the child’s emotional stability while the action is pending.
The court will also take into account the factors that were used to decide the residential arrangements in the permanent parenting plan.
Grandparent Visitation
There are conditions in this state, according to the Legislature, in which it is acceptable for circuit courts or family courts to mandate that grandparents of minor children have visitation with their grandchildren.
Among the factors taken into consideration by the court in rendering a decision on a motion or petition are the following: WV Code § 48-10-502
- The age of the child;
- The relationship between the child and the grandparent;
- The relationship between each of the child’s parents or the person with whom the child is residing and the grandparent;
- The time which has elapsed since the child last had contact with the grandparent;
- The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
- If the parents are divorced or separated, the custody and visitation arrangement which exists between the parents with regard to the child;
- The time available to the child and his or her parents, giving consideration to such matters as each parent’s employment schedule, the child’s schedule for home, school and community activities, and the child’s and parents’ holiday and vacation schedule;
- The good faith of the grandparent in filing the motion or petition;
- Any history of physical, emotional or sexual abuse or neglect being performed, procured, assisted or condoned by the grandparent;
- Whether the child has, in the past, resided with the grandparent for a significant period or periods of time, with or without the child’s parent or parents;
- Whether the grandparent has, in the past, been a significant caretaker for the child, regardless of whether the child resided inside or outside of the grandparent’s residence;
- The preference of the parents with regard to the requested visitation; and
- Any other factor relevant to the best interests of the child.