On June 10th, 2022, the “Best Interests of Child Protection Act of 2022,” also known as the 50/50 custody law went into effect in West Virginia. The law has changed how child custody cases are treated in family courts.
The “best interest of the child” standard has long been in use by WV courts while determining custody. While this hasn’t changed, the new law instructs judges to presume that a 50/50 custody split is in the child’s best interests.
You should speak with a seasoned family law attorney in WV to understand the implications and the potential changes in your legal position and achieve your child custody goals.
Overview of West Virginia’s New 50/50 Custody Law
Under the new standard, the child’s physical custody is automatically shared between the two spouses. Supporters of the law argue that the law intends to allow both parents to have a fair chance at caring for their children following a divorce. It also helps in protecting parents that have been unfairly treated by the family court system.
There have been concerns raised by a few family court judges and opponents about the chilling impact of the new law on victims of domestic abuse, who may feel compelled to stay in the marriage or risk having their children spend 50% of the time with the abusive parent. There are also concerns that a higher earning parent may try and reduce their child support obligations by using the new presumption.
50/50 Custody Split is Not Always Guaranteed
While this new law brings a significant change to the manner in which child custody issues used to be handled, the outcome of a proceeding is not guaranteed. Courts are still tasked with determining the best interests of the child.
The judge is instructed by this law to presume a 50/50 split. However, this presumption can be overcome or rebutted if there is significant evidence pointing in the other direction.
In order to successfully challenge the 50/50 custody standard, one parent needs to prove through a preponderance of the evidence that the other parent should not receive 50% of the share in physical custody. This evidence can come in the form of photographs, witnesses, text messages, and other items and facts that corroborate your argument.
Factors Affecting Child Custody in WV
These are a few factors that may affect the custody determination:
- Logistical issues: This involves physical distances between the two parent’s homes and the cost of transportation that makes the 50/50 split impractical.
- Disruption: 50/50 split can be disruptive to the child’s education, medical care, and other interests.
- Siblings: The split may separate the child from their other siblings, including step and half-siblings.
- Stability and safety: A parent may have a history of child abuse, domestic violence, substance addiction, or a violent felony rendering them unstable.
- Preference: If the child is at least 14 years of age and expresses sufficient intelligence and maturity, they may be allowed a say as to which parent they want to live with.
The court may accept a parenting plan even if it does not include a 50/50 split as long as the plan serves the best interests of the child and complies with state law.
Process of Child Custody Determination Under the New 50/50 Custody Law
The court will determine temporary custody for the child at the first hearing. If you and the other parent have already agreed to a parenting plan, the court will likely use the agreement. If you or the other parent disagree with the temporary custody plan, you will need to file an appeal with the Intermediate Court of Appeals. This is a new court that is tasked with reviewing the lower court’s decision.
You should know that just because you appeal, it does not stop the lower court’s decision from being followed. Further, any future hearings in your custody case will not be paused. This is true even if your appeal has not yet been heard by the Intermediate Court. Several factors are determined by the family court when deciding on child custody. You should speak with a qualified divorce attorney to get help with your child custody concerns.
Navigate the Changing Family Court Dynamics with Help from an Experienced Divorce Attorney
The client-focused family law attorneys at the law firm of Hardy Pence PLLC have extensive experience representing clients with child custody issues in WV. Whether you are looking for a 50/50 split or any other custody arrangement, our attorneys know the intricacies of the legal system and can advocate for you and your child’s best interests at every step.
To schedule your free consultation, call us at (304) 345-7250 or fill out this online contact form.