An experienced family law attorney explains what you need to know.
Last month, the "Best Interests of Child Protection Act of 2022" went into effect in West Virginia, changing how child custody cases work in family court. West Virginia courts have long used the "best interest of the child" standard when determining custody, and that hasn't changed. Still, the new law instructs judges to presume that a 50-50 split in physical custody is in the child's best interest.
According to the Herald-Dispatch, supporters of the new law argue that it will ensure both parents are involved in caring for the children after divorce and protect people who are treated unfairly by the family court system. The goal is to promote healthier outcomes for children with involvement from both parents.
Opponents, including some family court judges, have raised concerns that the new law may have a chilling effect on reports of domestic violence since victims may be afraid that their children will spend 50% of their time with an abusive parent without the other parent to protect them. They have also raised concerns that higher-earning parents may use the new presumption to reduce their child support obligations.
The new presumption doesn't guarantee a 50-50 custody split in all cases.
Again, while this new law is a significant change, the overall goal of child custody proceedings hasn't changed. The judge is still tasked with determining what is in the best interest of the child. The law instructs the judge to presume a 50-50 split is in the child's best interest, but that presumption can be rebutted (overcome) with sufficient evidence. Some of the factors that may affect such a custody determination include but are not limited to:
- Logistical issues: the distance between the parents' homes or the cost of transportation would make a 50-50 split impractical, or the parents' schedules are incompatible with a 50-50 split.
- Disruption: a 50-50 split would be disruptive to the child's education (for instance, causing them to change schools), medical care, or other interests.
- Siblings: a 50-50 split would separate the child from siblings, including half-siblings and possibly step-siblings.
- Safety & stability: one parent does not have a stable housing situation, or one parent's home includes someone who has committed domestic violence, child abuse, a violent felony, or is addicted to controlled substances.
- Child's preference: the child is at least 14 years old or under 14 but sufficiently mature and intelligent to express a preference and has expressed a firm and reasonable preference for something other than a 50-50 split.
In addition, if you and the other parent submit a parenting plan to the judge that includes something other than a 50-50 split, the judge is likely to accept it as long as the plan complies with state law and serves the best interest of the child.
An experienced attorney can help you navigate the changing family court dynamics.
While West Virginia's new law has changed the rules judges use to determine custody, one thing that hasn't changed is the value of good legal representation. Whether you are seeking a 50-50 split or a different custody arrangement, a family law attorney who knows the system can advocate for your and your child's interests in negotiations and, if necessary, litigation.
If you're considering divorce or separation and concerned about how the new law will affect child custody, we can help. Contact Klie Law Offices today for a confidential, no-obligation consultation with an attorney.