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

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.

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.

Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial.

However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, the process usually looks similar to this:

1. File for custody.

You may file 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, and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:

• If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
• If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
• If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.

You can find links to the divorce and custody petition forms on our WV Download Court Forms page.

2. Prepare for the custody process

The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section. If you can hire an attorney, you can use this list of questions as your guide when deciding who to hire.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about which parent gets custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.

3. Prepare for trial

There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:

1. communications between the parents can only be in writing;
2. all communications can only be related to the child; and
3. a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.

You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child to avoid future conflicts.

4. Options if you lose the custody case

There could be a couple of options that are filed immediately after the judge makes the custody order:

• 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 the judge’s error.

A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.

To find out more about how the process works in your area, please contact a lawyer. Please visit our WV Finding a Lawyer page to find legal help in your area.​You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider; child support; and moving out of state with your child.

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.