50/50 CUSTODY

in West Virginia

There are 29+ ways to rebut the new 50/50 custody presumption!

Here is a copy of the 2022 legislation that creates the 50/50 custody presumption and also creates the ways to get around that presumption. This copy does not include Code sections that were not changed and may also be relevant. Also, here is a long and deep analysis of the new custody presumption law. Most non-lawyers should probably continue reading this web page, and most need to at least consult a lawyer.

This webpage is for you if, the other parent is asking for (or threatening to ask for)

50/50 physical custody, and  . . . 

• If the other parent is trying to trade time with the child(ren)

in exchange for concessions on other aspects of a divorce order,

or 

•If you think the other parent will not actually take the child(ren) 50% of the time

(and maybe just wants to pay less child support by getting a 50/50 order),

or

•If the other parent is trying to manipulate you into staying in a relationship

by threatening to go for 50/50 custody if you leave or make the other parent leave,

or

•If the other parent is going for 50/50 split of physical time with the child just to upset you;

or

•If the other parent in your relationship is abusive to you (and maybe even the children)

and threatening you with  50/50 custody time split if you leave;

or 

•Even if the other parent is saying they will go for 50/50 custody

and you just think that it is not best for the child(ren). 

This web page on overcoming 50/50 custody presumption in West Virginia was drafted by David McMahon, J.D.  Mr. McMahon did child custody court cases for more than 30 years.  He also lobbied the West Virginia Legislature heavily against the adoption of a "presumption" of 50/50 custody for many years, but it was finally adopted in a somewhat diluted form by the Legislature effective in June of 2022.  He opposed the presumption because he believed that continuity is best for the child and no sociological study supports such a presumption.  He also opposed it because he was certain that the presumption will be abused and used as bargaining leverage on other issues in the divorce/separation/custody dispute -- even be used to keep a women in an abusive relationship.  Here is a history of custody law before the adoption of the rebuttable 50/50 presumption showing why the presumption is a bad idea Mr. McMahon is retired from representing parents in  these cases now.  And what is said here is public education and should NOT be taken as advice for you in your individual case.  There are so many emotions and moving parts involved in a custody dispute, particularly when tied to a divorce, a separation or a potential separation, that anyone in that situation should at least discuss their full situation with a lawyer, if not be represented by a lawyer -- for the sake of the child(ren).

A law in effect June 10, 2022, requires the judge to start at (a "presumption" of)

a 50/50 division of time with the child between the parents. 

It was mis-named the "2022 Best Interest of the Child Act."

As stated above and explained below, it is possible to get around ("rebut")

 the 50/50 custody presumption!

But figuring out the best way to do it and how to prove it can be VERY tricky!

And you should at least talk with, if not be represented by, a lawyer.

It is best to at least talk with a lawyer, and to  do this before you file papers or get served with papers -- or even before you separate from the other parent.  If you are low income, you can try to go through Legal Aid of West Virginia who will not charge you -- start by calling 866-255-4370.  If you are a victim of domestic violence, start with the West Virginia Coalition Against Domestic Violence who will not charge you -- start there by calling 304-925-3552.  (These two organizations may also have explanations of 50/50 custody laws etc that may be helpful for your situation.)  Or you can call the West Virginia State Bar "lawyer referral service" at https://wvlawyerreferral.org/ for a referral to a private lawyer who specializes in this area -- the initial charge is $25 for the first 30 minutes.  

Reading some of the information below  may help you prepare for contacting a lawyer, and it will certainly help you if you are going to try to go it alone.

Who is this webpage for?

This webpage is designed to inform/answer questions for those parents who are considering separating from the other parent of their child(ren), or who are already not living with the other parent,  and particularly for those parents who are threatened with or who may become involved in (or are already involved in), a court case that could result in a judge's order that divides time with a child 50/50 between the parents.  The judge may apply a 50/50 physical custody split to your situation unless you are prepared to show the judge that the judge should not do that.  It is best, usually, to have both parents involved in raising a child.  However, continuity of caretaking and parental attachments may be more important, along with many other practical or safety factors, than having an exact 50/50 split.

This website is designed for those parents who believe they should have more than 50% of the physical time with the child, or conversely that the other parent should have less than 50%  of the physical time with the child.  This may either be because they did most of the caretaking before the separation, or for other reasons/factors.  Some of the reasons that the other parent may be asking for more than 50/50 may just be in order to pay lower child support, or just in order to get a better deal on alimony, property distribution etc., or because the other parent wants to keep a parent in a relationship (possibly an abusive relationship) or even just to be nasty.

Terms:

   •For simplicity, the rest of these web pages will use the singular term "child" instead of saying "child or children" or even "child(ren)".  If there is more than one child with the same parents involved, the judge can deal with them all in one court order.  However, the judge does not have to treat all the children the same in what the judge orders.  

•The division of physical time with a child is technically in the Code called an "allocation of custodial responsibility".  The allocation of custodial responsibility is included in a "parenting plan," and the courts have form "proposed parenting plans" for the parents to fill out.  A parenting plan or a proposed parenting plan is included in a "court order" made by a judge.  And the court order may deal with more than what is in a parenting plan.  In an attempt at simplicity this complicated subject, these web pages will refer to "physical time with a child" or just "custody" in a "judge's order".  

•These web pages are about physical time with the child (allocation of custodial responsibility).  The judge also allocates "decision-making responsibility".  The judge will almost always allocate decision making for the child on things like education equally between the parents.  If you do not want the other parent to be involved in decision making, please consult a lawyer about that, because this web pages is not about that.

Does physical time with the child ordered by the judge have to be 50/50?

No, custody time does not have to be 50/50.  If the parents agree otherwise -- an agreed parenting plan (on the court's form) can be submitted to the court.  Also physical time with the child will not be divided 50/50 by the judge if a 14-year-old or a younger, mature child requests something different.

If those two exceptions (parental agreement or a child's preference) do not apply, then the short answer is that the judge's decision will be based on State Code the Legislature passed taking effect June 10, 2022, and the judge will start out with a 50/50 split of physical time with the child at the permanent  hearing (not at the temporary unless the other parent asks for it). However, the new Code provides 29+  ways for a parent to oppose the presumption of 50/50 physical custody time split so the judge will not have to use it.  If you can overcome the 50/50 presumption ("rebut the presumption") the judge can decide differently than 50/50!

Here is a longer explanation of the issue with references to specific new Code sections: {ANALYSIS DOC}. It is for extra and deeper reading and for use by attorneys.  And here is a copy of the legislation: {LANGUAGE DOC} showing changes from previous Code.  However, you might find it easier to get information for your situation by starting with the links below. 

Each link below leads to a longer explanation.

• Do I have to agree to 50/50 custody even if I don't want it?  Will the judge order 50/50 custody if the other parent asks for it (or even if the other parent does not as for it)?  If I do not want 50/50 custody is there something I can do to get around ("rebut") the 50/50 custody presumption?

• How will 50/50 custody affect child support payments?  

• I already have a custody order that gives me more than 50% of the time with my child.  The other parent is filing in court to get a modification to try to get 50/50  time with the child.  Can the other parent come back and change the existing court order and ask for 50/50 custody now using the new presumption?

• If the judge grants the other parent 50% of the physical time with the child, can I appeal?

• If the 50/50 custody presumption was applied in my case, can I come back later and modify the judge's order to get more time than that with my child?

• Would changing the judge's order determining my time with the child to what is really happening affect child support? 
  
  

Do I have to agree to 50/50 custody even if I don't want it?  Will the judge order 50/50 custody if the other parent asks for it (or even if the other parent does not as for it)?  If I do not want 50/50 custody is there something I can do to get around ("rebut") the 50/50 custody presumption?

At a temporary hearing, the presumption of a 50/50 custody time split does not apply unless one parent asks for it.  At a final  hearing, even if no parent asks for the presumption to apply, the judge will usually start from 50/50.   However, there are lots of ways to get around the presumption and have the judge's order giving you more than 50% of the physical time with the child.  Judges might see one of these exceptions themselves during a hearing and give you more than 50% of the custody.  But if you want to use one of the exceptions to avoid the 50/50 custody presumption that the judge will otherwise use, it is best if you bring it up either in the papers you file before the hearing or first thing in the hearing.

Below  are the exceptions, what the Code usually calls "relevant factors", for the judge to "consider" when deciding not to order  50/50 physical custody time.   Some of them are explicitly stated in the new Code.  Some are based on language elsewhere in the Code.  But the Code allows for other factors not specifically stated in the Code  to rebut the presumption.  (If you want to understand that better go here: ANALYSIS DOC.)

The first two FACTORS apply only to temporary orders the judge makes.  The judge can consider these when overcoming/rebutting the 50/50 custody presumption in a temporary hearing.

1.  For temporary physical custody orders the judge can consider which parent has taken greater responsibility during the last 12 months for performing parenting functions including caretaking functions.  (This is not technically listed as a "relevant factor" but is in W.Va. Code § 48-9-204(a)(1).) 

2.  For temporary custody orders the judge can consider which parenting arrangement will cause the least disruption to the child's emotional stability while the action is pending.  (This is not listed as a "relevant factor" but is in W.Va. Code § 48-9-204(a)(2).)

These remaining factors (in approximate order of likelihood to occur and be expected by the judge) can be used  to overcome/rebut  the 50/50 presumption that would otherwise apply to temporary and final orders the judge makes.

3.  A 50/50 split is impractical due to each parent's and their child's daily work, school and maybe even extracurricular schedules.

4. A 50/50 split would disrupt the education of the child.  (An example might be having the child change schools.)

5.  A 50-/50 split is impractical because of the distance between the parents' homes.

6.  A 50/50 split is impractical because of the cost and difficulty of transportation back and forth.

7.  If you and the other parent agree to something other than 50/50.  This can be done by submitting a joint parenting plan or by submitting similar separate plans on forms provided by the judge.  (But don't let the other parent persuade you to agree to the other parent having more than 50/50 of the time with the child in a trade for something else in the divorce (or other) order!  More on that below.)

8.  If a child expresses a "firm and reasonable" preference for something other than 50/50 and if the child is either 1) 14 years of age or older, or 2) the child is under 14 years of age but sufficiently matured to have and intelligently express such a preference and the judge determines the child's preference is in the best interests of the child.

9.  If the parents had a previous division of physical time with the child made by the parents, but only if the agreement was consensual.  Also the judge can consider prior temporary allocations of physical time with the child ordered by a judge if both parties agreed.

10.  A parent  is using or threatening  to use a request to the judge for 50/50 custody not because that parent really wants that much time with the child, but merely as a bargaining leverage in exchange for something else in the divorce.  (Although this exception is not listed in any way in the Code we believe that the Code allows a judge to use factors that are not explicitly listed, and  a judge would likely not follow the 50/50 presumption if it could be proven that the request for 50/50 was not sincere and about the child, but was instead in bad faith for reasons not involving the child.  Proving this in court is very tricky and we very strongly suggest talking with a lawyer if not hiring a lawyer to represent you.)

11.  A parent is using or threatening to use a request to the judge for 50/50 physical custody to deter a parent from separating, or to intimidate the other parent into staying in an abusive relationship.  (Although this exception is not listed in any way in the Code we believe that the Code allows a judge to use factors that are not explicitly listed, and that a judge would likely not follow the 50/50 presumption if it could be proven that the request for 50/50 was not sincere and about the child, but was instead was in bad faith for reasons not involving the child. Proving this is in court is very tricky and we very strongly suggest talking with a lawyer if not hiring a lawyer to represent you.)

12.  One parent does not have a stable housing situation (but a domestic violence shelter is all right).

13.  For the first year of a nursing infant's life.  

14.  A parent does not know how to provide for the child's needs or does not place a high priority on doing so  (This is not listed as a "relevant factor" but is in W.Va. Code § 48-9-102(a)(5)), or a parent is unwilling or unable to perform caretaking functions.

15.  A parent has ghosted the child, disappeared from the child's life, for a significant period if time or otherwise has not been significantly involved in a child's life prior to the hearing (unless prevented from being involved).

16.  A parent causes the child to be in the care of a third party when the other parent is available.

17.  A 50/50 split will cause the child to be separated from the child’s siblings (probably including half siblings) or 50/50 would otherwise disrupt the child’s opportunities to bond* with the child’s siblings (or maybe even step-siblings?)

18.  A parent or another person living or regularly in the home of a parent is denigrating the child in the child's hearing or in other communications received by the child, or saying in a significant or repeated way denigrating things about the other parent.  (Although this exception is not listed in any way in the Code, the Code allows a judge to use factors that are not explicitly listed, and it violates things that parents are told in the parenting classes required in divorces, and such behavior will most likely be considered by the judge. Proving this is in court is tricky and we strongly suggest consulting a lawyer if not hiring a lawyer to represent you.)

19.  A parent or other person living or regularly in the home of a parent is addicted to a controlled substance or alcohol.

20.  A parent or other person living or regularly in the home of a parent has committed domestic violence or has a pending case alleging domestic violence.

21.  A parent cannot work cooperatively and collaboratively in the best interest of the child (though it may not be clear what this language in the Code means, and whether there is good cause for problems etc.).  If this is an issue, talk with a lawyer to get it right.

22.  A parent, partner, or other person living or regularly in that parent’s household has threatened or has actually detained a child with the intent to retain or conceal the child from the other parent or someone else with legal custody.

23.  A parent has made one or more fraudulent reports of domestic violence -- providing that a parent's  withdrawal or failure to pursue such a report does not mean it was fraudulent.

24.  Whether the child has special needs, a chronic illness or other serious medical condition and would receive more appropriate care under an allocation other than 50/50.

25.  A parent is willfully noncompliant with a previous order of the judge regarding support for a child of the parties.

26.  A parent is unwilling to seek necessary medical intervention for a child regarding a serious medical condition.

27.  A parent has a chronic illness or other condition that renders the parent unable to provide proper care of the child.

28.  A  parent, partner or other person living or regularly in that parent's household has been involuntarily committed to a mental health facility or suffers from a serious mental illness.

29.  A partner or another person regularly in the home of parent has sexually assaulted or abused a child.

30.  A parent, partner or other person living or regularly in that parent's household has a felony criminal record.

31.  A parent, partner or other person living or regularly in that parent's household has been adjudicated as abusing or neglecting a child or has a pending case.

32.  The child was conceived as a result of sexual assault or sexual abuse by a parent.

How will 50/50 custody affect child support payments?  

The amount of time the child spends with each parent can affect how much child support will be required to be paid from one parent to the other.  If both parents have the child for 128 or more overnights, then one calculation of the amount of the child support payment is used.  If one parent has the child for less than 128 overnights and the other parent has the child the rest of the time (for more than 237 overnights), then a different calculation of the amount of child support will be made.  In most all cases a parent with the child less than 128 overnights will end up paying substantially more child support to the parent who has the child most of the overnights.  

So in many cases the other parent may ask for the 50/50 custody presumption in order to avoid paying you the higher child support.  The other parent may do that by trying to get the judge to order the 50/50 presumption.  Or the other parent may try to use the 50/50 presumption in negotiations with  you as a threat to get you to make an agreement in which the other parent gets the child more than 128 overnights.  

If you expect the other parent, even if given 50% of the time with the child by the judge,  will really not take the child for 50% of the time (or will not even actually take the child for a number of overnights between 128 and 50%), then you will get less money to support the child for the extra time you have the child that the other parent does not actually use.  So you should try to rebut the presumption for the sake of you and the child.

If the judge orders the other parent to have more than 128 overnights, then see another section of this web page about how in the future to get a modification of the judge's order, and read that section as soon as the judge makes that order.  Do so in order that you can begin preparing to file for a modification in six moths or so when the other parent does not take the child as much as the other parent is allowed in the judge's order --  so you can have the child support modified to give you the child support the child needs when the child is with you.

I already have a custody order that gives me more than 50% of the time with my child.  The other parent is filing in court to get a modification to try to get 50/50  time with the child.  Can the other parent come back and change the existing court order and ask for 50/50 custody now using the new presumption?

The 50/50 custody presumption that took effect June 10, 2022 does not automatically allow for the modification of a previous, existing custody order that divided physical time with the child between the parents. 

The custody order can, however,  be modified for all of the reasons it could be modified in the past.  Those reasons that applied in the past and still apply will be set out below.

Note first that a custody order specifically cannot be modified solely because of:

•an involuntary loss of income or a change of employment or other economic status,

or

•a parent's remarriage or cohabitation  (unless other considerations/problems are involved),

or

•a choice or change of reasonable caretaking arrangements such as placing in day care.

So if those are the only reasons that the other parent wants to go to court to modify a court order to get 50/50 custody, the judge will not make the change on those grounds alone if yo do not agree..

The judge can modify the custody order for minor changes.

The judge can modify the custody order if the parents agree (and there is no coercion against one parent to agree to the change).

The judge can modify the custody order if the child expresses a "firm and reasonable" preference for something other than 50/50 and if the child is either 1) 14 years of age or older, or 2) the child is under 14 years of age but sufficiently matured to have and intelligently express such a preference and the judge determines the child's preference is in the best interests of the child.

The judge can modify the custody order if the judge finds that the original plan is not working as contemplated and in some specific way is manifestly harmful to the child.  Problems with school grades or a child getting into trouble come to mind as examples.

Similarly, if there was in fact a deviation from the parenting plan for six months (such as the other parent not taking the child for the number of overnights given to the other parent in the judge's previous order), then a petition for modification can be filed and the judge can change the physical time to what was actually occurring (as long as the new arrangement was not the result of some kind of coercion or hiding of the child).  

If those circumstances do not apply there may still be a modification.  If the above do not apply, then the test of whether a custody order can be modified is whether "a substantial change has occurred in the circumstances of the child or of one or both parents and a modification is necessary to serve the best interests of the child."  That is a very broad/flexible/vague set of circumstances the judge can consider, but note that the change must serve the best interests of the child.  And if the child was doing well in school and behaviors etc. before the changed circumstances, and the child does not ask for the change, it is not easy to prove the change is "necessary".  However, many of the numbered factors/circumstances listed above as considerations to rebut the 50/50 presumption may also be grounds to modify the custody order, and if a change is made, then the 50/50 presumption kicks in and the judge will start with 50/50 (unless you overcome (rebut) the 50/50 presumption by another of those circumstances as explained earlier on this web page).

If the judge grants the other parent 50% of the physical time with the child, can I appeal?

Yes you can appeal to the new Intermediate Court of Appeals.  Just how to do that is beyond the scope of this web page.  As this web page is being written the new intermediate court has not even gotten started yet.  We expect it will be relatively user friendly without having a lawyer.  But again it is wise to at least talk with a lawyer to decide whether to appeal -- and how to appeal.  And maybe you will be wiser to wait a little bit and file for a modification instead.  

You (or the other parent) can even appeal a judge's temporary order if any physical custody you (or the other parent) wanted is denied.  Note that there are unlikely to be any continuances or stopping of the case in front of the family court judge while the appeal of the temporary order is occurring.

If the 50/50 custody presumption was applied in my case, can I come back later and modify the judge's order to get more time than that with my child?

Note first that a custody order specifically cannot be modified solely because of:

•an involuntary loss of income or a change of employment or other economic status,

or

•a parent's remarriage or cohabitation  (unless other considerations/problems are involved), 

or

•a choice or change of reasonable caretaking arrangements such as placing in day care.

So if those are the only reasons you want a change from 50/50 custody, the judge will not make the change on those grounds alone.

If in fact the other parent was given 50% of the physical custody time with the child in the previous order, and if in fact the other parent did not take the child 50% of the time -- if there was in fact a deviation from the parenting plan for six months, then a petition for modification can be filed and the judge can change the physical custody time (as long as the new arrangement was not the result of some kind of coercion or as a result of hiding of the child or otherwise keeping the child from the other parent).

Also the judge can modify the custody order if the parents agree (and there is no coercion against one parent to agree to the change).

Also the judge can modify the custody order if a child expresses a "firm and reasonable" preference for something other than 50/50 and if the child is either 1) 14 years of age or older, or 2) the child is under 14 years of age but sufficiently matured to have and intelligently express such a preference and the judge determines the child's preference is in the best interests of the child.

Also the judge can modify the custody order if the judge finds that the plan is not working as contemplated and in some specific way is manifestly harmful to the child.  Problems with school grades or a child getting into trouble come to mind as examples.

If those circumstances do not apply there may still be a modification.  If the above to not apply, then the test of whether a custody order can be modified is whether "a substantial change has occurred in the circumstances of the child or of one or both parents and a modification is necessary to serve the best interests of the child."  That is a very broad/flexible/vague set of circumstances the judge can consider, but note  the change must serve the best interests of the child.  And if the child was doing well in school and behaviors etc. before the changed circumstances, and the child does not ask for the change, it is not easy to prove it is "necessary".  However, many of the circumstances listed as grounds to rebut the 50/50 presumption may also be grounds to modify the custody order and if a change is made, then the 50/50 presumption kicks in and the judge will start with 50/50 (unless you overcome (rebut) the 50/50 presumption by another of those circumstances as explained earlier on this web page).

Would changing the judge's order determining my time with the child to what is really happening affect child support? 

If the judge's current order gives the other parent the child more than 128 overnights, and if the other parent is not using those 128 overnights, then a change in the judge's order to reflect what is really happening can be done.  See another section of the web page on modifications.  And yes it would substantially increase the child support you receive (unless you make substantially more than the other parent).  The judge would again as a technical matter start with the 50/50 custody presumption, but as explained in the other section of this web page, a modification on this basis will get around the presumption.

The amount of time the child spends with each parent can affect how much child support will be required to be paid from one parent to the other.  If both parents have the child for 128 or more overnights, then one calculation of the amount of the child support payment is used.  If one parent has the child for less than 128 overnights and the other parent has the child the rest of the time (for more than 237 overnights), then a different calculation of the amount of child support will be made.  In most all cases a parent with the child less than 128 overnights will end up paying substantially more child support to the parent who has the child most of the overnights.