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Custody
Basic info and definitions
What is custodial responsibility?
Custodial responsibility, also known as physical or residential custody, means the right and responsibility to have your child in your physical custody and to provide supervision for your child. It usually includes having the child stay in your home and stay with you overnight.1
1 W. Va. Code § 48-1-219
What is decision-making responsibility?
Decision-making responsibility, or legal custody, means the right and responsibility to make significant life decisions for your child. This includes decisions about your child’s education, spiritual guidance, and health care.1
Note: Regardless of the custody arrangement in your parenting plan, you and the other parent each have the right to make emergency or other non-elective healthcare decisions that are necessary for your child’s health or welfare during your parenting time.1
1 W. Va. Code § 48-1-220
What is a parenting plan?
A parenting plan describes the custody and physical care arrangement and spells out when each parent will have time with the child. Parents can come to an agreement on their own and submit a joint parenting plan to the judge. However, if the parents cannot agree, each parent can submit his/her own proposed plan. Then, the judge will decide and make the order.1
The court has parenting plan forms you can use if you don’t have a lawyer. Find links to get the divorce and custody forms on our WV Download Court Forms page.
If you are a domestic violence survivor, the parenting plan needs to be safe for you and your child. The best way to get help making a safe plan is to speak with a lawyer who knows about custody and domestic violence. Go to our WV Finding a Lawyer page for legal referrals. However, if you’re on your own without a lawyer, you may find it helpful to read 10 Things to Know About Parenting Plans in Cases Involving Domestic Violence.2
1 W. Va. Code §§ 48-9-203; 48-9-205
2 See 10 Things to Know About Parenting Plans in Cases Involving Domestic Violence by Melissa Mangiaracina, JD, National Council of Juvenile and Family Court Judges (2019)
What are some pros and cons of getting a custody order?
There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for more custody or visitation rights than they are comfortable with.
If the other parent is now uninvolved with the child, he or she may become involved just because a case was started. Also, if the other parent fights for custody, the case may drag on for a long time, which can be emotionally and financially draining. The court will look into many aspects of your personal life that you may prefer keeping private such as past mental health issues, your criminal record, substance abuse issues, and details of your relationships.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- the right to make decisions about your child; and
- the right to have your child live with you.
Without a custody order, both parents may share these legal rights, even if one parent takes care of the child every day. However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.
We strongly recommend talking to a lawyer who can help you think through whether filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the WV Finding a Lawyer page.
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request, although this may depend on your situation.
However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to WV Finding a Lawyer to seek out legal advice.
Where can I find additional information about custody in West Virginia?
Legal Aid of West Virginia has a lot of information concerning custody, visitation, parenting plans, paternity, child support and more.
The West Virginia Judiciary has parenting plan, child support, and other family law court forms.
Steps to file for custodial responsibility (custody)
Considerations before filing
Before you file for a custody order, which West Virginia calls an “allocation of custodial responsibility,” you may consider making an out-of-court agreement with the other parent.1 Parents often have to be flexible about custody for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of shared or joint custody order after a settlement or trial.
However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.
Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.
You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page.
In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.
1 See the Instructions for Petition for Support and Allocation of Custodial Responsibility (SCA-FC-260), available on the West Virginia Courts website
Step 1: Prepare for the case
Learn about parenting plans, the types of custodial and decision-making responsibility available, and how domestic violence might affect who can get custody and visitation in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.
You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child.
Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.
Step 2: File and serve the custody petition
The legal paperwork that starts a custody case is called a petition for allocation of custodial responsibility. You may file your petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.
The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.
| If you and the other parent are… | Then you can usually file for custody in… |
|---|---|
| married and getting divorced | the divorce case. |
| married but not divorcing | a separate custody petition. |
| not married | a separate custody petition, but legal fatherhood (paternity) may need to be established first or during the custody case. |
Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, talk to a lawyer.
The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our West Virginia Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.
Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order, also called a protective order for domestic violence and get temporary custody as part of the protective order.
After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.
Step 3: Preliminary court dates
The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:
- problems with service of process;
- referrals to mediation;
- temporary custody and visitation orders; and
- pretrial motions.
During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.
For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section.
Step 4: Reach an agreement or go to trial
There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.
Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.
Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.
Step 5: Options if you disagree with the order
If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.
Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.
You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:
- The other parent gets sent to jail or charged with child abuse or neglect;
- The other parent is not following the custody and visitation order; or
- Your child’s needs change in a big way.
After an order is in place
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.
If the judge makes a custody and visitation order I don’t agree with, what can I do?
There are a couple of legal steps that can be taken immediately after the judge makes the order if your situation fits the circumstances explained below:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.
There could also be an option that you may take in the future, but not immediately after the judge makes the order. A motion or petition to change (modify) the order is a legal request that could be filed if, later on, a “substantial change of circumstances” happens. A few examples of substantial changes of circumstances could be if the other parent gets sent to jail, gets charged with child abuse or neglect, moves to another state, or if your child’s needs significantly change.
Learn more about these options in our After a Decision is Issued section. To find out how the process works in your area and to get advice for your specific situation, contact a local lawyer. Go to our WV Finding a Lawyer page for legal referrals.
