English
EspañolWhat 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 WV ST §§ 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.
