Child custody and parenting time

Child custody in West Virginia

Custody is mostly decided by state law. This page covers what West Virginia sets: the words it uses, how judges decide, how to ask the court, moving with your child, relatives and free help.

Move-away notice tool Parenting plan worksheet

What West Virginia calls custody

West Virginia calls it: allocation of custodial responsibility (parenting time) and decision-making responsibility, set out in a parenting plan
Time with each parent: custodial responsibility / parenting time

custodial responsibility: The time your child spends in each parent's care (physical custody). West Virginia law starts from an equal (50-50) split.
significant decision-making responsibility: Who makes major life decisions for the child, such as education and health care. It can go to one parent or both jointly.
day-to-day decisions: The parent who has the child at the time makes daily and emergency decisions, unless the order says otherwise.
parenting plan: A written plan (temporary or permanent) for custodial time and decision-making. The court enters it as an order.

Law: W. Va. Code §§ 48-9-102a, 48-9-203, 48-9-205, 48-9-206, 48-9-207

How the judge decides in West Virginia

What the law tells the judge to look at

In the order the law lists them.

Whether a parent abused, neglected, or abandoned a child; sexually assaulted or abused a child; committed domestic violence; persistently interfered with the other parent's or child's rights to time or contact (except to protect safety); or made fraudulent reports of domestic violence or child abuse.W. Va. Code § 48-9-209(f)(1) (referring to § 48-9-209(a))
Whether the child was conceived through sexual assault or sexual abuse by a parent.W. Va. Code § 48-9-209(f)(2)(A)
Whether the child has special needs, a chronic illness, or another serious medical condition and would get better care under a different arrangement.W. Va. Code § 48-9-209(f)(2)(B)
Whether the child is nursing and under 6 months old (or under 1 year if nursing is a main source of food). Reaching age 1 counts as a substantial change.W. Va. Code § 48-9-209(f)(2)(C)
Whether the arrangement would separate the child from brothers and sisters or disrupt the chance to bond with them.W. Va. Code § 48-9-209(f)(2)(D)
Whether a parent willfully fails to follow an earlier child support order for the parties' children.W. Va. Code § 48-9-209(f)(3)(A)
Whether a parent is unwilling to get needed medical care for a child with a serious medical condition.W. Va. Code § 48-9-209(f)(3)(B)
Whether a parent has a chronic illness or condition that makes the parent unable to properly care for the child.W. Va. Code § 48-9-209(f)(3)(C)
Whether a parent has avoided or refused involvement, or has not been significantly involved, in the child's life (unless the other parent kept that parent away without good cause).W. Va. Code § 48-9-209(f)(3)(D)
Whether a parent often leaves the child with a third party instead of the other parent when the other parent is available.W. Va. Code § 48-9-209(f)(3)(E)
Whether a parent lacks stable housing. Staying with the child in a domestic violence shelter does not count as unsafe housing.W. Va. Code § 48-9-209(f)(3)(F)
Whether a parent is unwilling or unable to do the day-to-day caretaking the child needs.W. Va. Code § 48-9-209(f)(3)(G)
Whether a parent, partner, or other person living or regularly in the parent's home has been found to have abused or neglected a child, or has a pending abuse and neglect case.W. Va. Code § 48-9-209(f)(4)(A)
Whether that person has been found by a court to have committed domestic violence, or has a pending domestic violence case.W. Va. Code § 48-9-209(f)(4)(B)
Whether that person has a felony criminal record.W. Va. Code § 48-9-209(f)(4)(C)
Whether that person is addicted to a controlled substance or alcohol.W. Va. Code § 48-9-209(f)(4)(D)
Whether that person has threatened to or actually kept or hidden the child from the other parent or a legal custodian. Staying in a domestic violence shelter is not evidence of this.W. Va. Code § 48-9-209(f)(4)(E)
Whether that person has been involuntarily committed to a mental health facility or has a serious mental illness.W. Va. Code § 48-9-209(f)(4)(F)
Whether 50-50 time is impractical because of the distance between the parents' homes.W. Va. Code § 48-9-209(f)(5)(A)
Whether 50-50 time is impractical because of the cost and difficulty of transporting the child.W. Va. Code § 48-9-209(f)(5)(B)
Whether 50-50 time is impractical because of the parents' and child's daily schedules.W. Va. Code § 48-9-209(f)(5)(C)
Whether 50-50 time would disrupt the child's education.W. Va. Code § 48-9-209(f)(5)(D)
Whether 50-50 time goes against the firm and reasonable preferences of a child 14 or older, and, if the judge finds it is in the child's best interest, of a younger child mature enough to state a preference.W. Va. Code § 48-9-209(f)(5)(E)
Whether the parents cannot work together in the child's best interest.W. Va. Code § 48-9-209(f)(6)
Whether a parent will encourage and accept a positive relationship between the child and the other parent, including which parent is more likely to keep the other parent involved.W. Va. Code § 48-9-209(f)(7)

Other things the judge considers

The law's main goal is the child's best interest, by supporting:
- Stability
- Parental planning and agreement
- Continuity of existing attachments
- Meaningful contact with each parent
- Caretaking by adults who love the child and put the child's needs first
- Security from physical or emotional harm
- Quick, predictable decisions
- Meaningful contact with brothers and sisters (including half- and step-siblings in some cases).
A second goal is fairness between the parents.
W. Va. Code § 48-9-102
For major decisions, the judge looks at each parent's past part in decisions, the parents' wishes, and how well they have cooperated. If both parents have done a reasonable share of parenting, the law presumes joint decision-making is best.W. Va. Code § 48-9-207
For a temporary plan, the judge gives particular weight to which parent did more of the daily parenting in the last 12 months and which arrangement will least disrupt the child while the case is pending.W. Va. Code § 48-9-204(a)
If a parent or someone regularly in that parent's home did one of the harmful acts listed in § 48-9-209(a), the judge must set limits to protect the child and the other parent (such as supervised time, safe exchanges, no overnights, or treatment programs). That parent must prove that custodial or decision-making time will not endanger the child or the other parent.W. Va. Code § 48-9-209(b), (c)

What the judge may not consider

A parent's temporary stay with the child in a domestic violence shelter cannot be treated as unstable housing or as hiding the child (W. Va. Code § 48-9-209(f)(3)(F), (4)(E)). A judge cannot rely on a court-imposed temporary custody split unless both parents agreed to it (§ 48-9-206(c)).

Joint custody

Yes, a rebuttable presumption that equal (50-50) custodial time is in the child's best interest, unless the parents agree otherwise or it would harm the child. It can be overcome by a preponderance of the evidence. If it is overcome, the judge must make a schedule that gives each parent as much time as possible while keeping the child safe. There is also a rebuttable presumption of joint decision-making when both parents have done a reasonable share of parenting.

The child's wishes

The judge considers whether 50-50 time goes against the firm and reasonable preferences of a child 14 or older. The judge may also follow the preferences of a younger child who is mature enough to state a voluntary preference, if that is in the child's best interest. The judge may interview the child in chambers.

Domestic violence

No automatic bar, but if a parent (or someone regularly in that parent's home) committed domestic violence or child abuse, the judge must impose limits that protect the child and the other parent, and cannot give that parent custodial or decision-making responsibility without special written findings that the child and other parent can be adequately protected. That parent has the burden of proving the arrangement will not endanger the child or the other parent. Domestic violence is also a reason to depart from 50-50 time.

Law: W. Va. Code §§ 48-9-102, 48-9-102a, 48-9-206, 48-9-207, 48-9-209, 48-9-303

If the parents are not married in West Virginia

To ask for custody, you must first be a legal parent of the child.

Establishing paternity

How: Unmarried parents can sign a Declaration of Paternity Affidavit. Both signatures must be notarized (they can sign at different times). Once the Division of Vital Statistics accepts it, the father is added to the birth certificate, and paternity is set for all legal purposes. If you do not sign one, either parent can ask the Bureau for Child Support Enforcement (BCSE) or the circuit clerk in the child's county for help establishing paternity, including genetic testing.
Form: Declaration of Paternity Affidavit
Cancelling it: A parent can cancel by filing a verified complaint with the circuit clerk in the child's county. If filed within 60 days of signing, the family court must cancel it without proof of fraud. After 60 days (or after a court or agency case about the child), it can be set aside only for fraud, duress, or a material mistake of fact, shown by clear and convincing evidence.
Agency: West Virginia Bureau for Child Support Enforcement (BCSE); Division of Vital Statistics
https://bcse.wv.gov/bcse-paternity-faq

Law: W. Va. Code § 16-5-10; BCSE Paternity FAQ

How to ask the court in West Virginia

Court: Family Court of the county (file at the Circuit Clerk's Office)
Court self-help center: https://www.courtswv.gov/lower-courts/family-courts
Court forms: https://www.courtswv.gov/public-resources/court-forms
Self-help center in Spanish: https://www.courtswv.gov/public-resources/court-forms-spanish

Key forms

What it costs

Filing a Petition for Support and/or Allocation of Custodial Responsibility (not part of a divorce). Ask the circuit clerk for the current fee.

Other fees

$85 — Petition to modify an order about custody, visitation, child support, or spousal support (not refundable)W. Va. Code § 59-1-11(a)(4); SCA-FC-200 (rev. 05/29/2024)
$135 — Petition for divorce (custody can be decided in the divorce)W. Va. Code § 59-1-11(a)(3); SCA-FC-100
$25 — Parent education class fee, per parent (waived if you cannot afford it)W. Va. Code § 48-9-104(c)
$30 — Service of the petition by the sheriffSCA-FC-260 (rev. 10/29/2025)
$20 — Service by certified mail, restricted delivery, through the circuit clerkSCA-FC-260 (rev. 10/29/2025)

Fee waiver: Ask a deputy circuit clerk for the affidavit to waive fees and costs; the clerk can review it while you wait, and the court reviews it later

After you file

Time to respond: The other parent has 30 days from the date the papers were delivered to serve you with an Answer.
Mediation: If the parents cannot agree on a parenting plan, the court must order mediation, unless screening under Supreme Court rules shows it is inappropriate (for example, because of domestic violence, child abuse, or coercion). The mediator cannot make a recommendation to the court. Mediation is charged by the hour on a sliding scale based on each parent's finances, and the court can order one parent to pay more.
Parenting class: Required. The court must order parents to attend parent education classes. Each parent may be charged a fee of up to $25, which is waived if you cannot afford it.
Emergency orders: You can file a Motion for Temporary Relief and a proposed temporary parenting plan. The law presumes equal (50-50) temporary custody, unless the evidence shows otherwise. If there is credible evidence of abuse, domestic violence, or the other harms listed in § 48-9-209(a), the judge must issue a temporary order limiting or denying access to protect the child or the other parent. A domestic violence protective order can also award temporary custody.

Which state's court decides: West Virginia has adopted the UCCJEA, the uniform law on this (W. Va. Code §§ 48-20-101 et seq. (Chapter 48, Article 20)). How the home-state rule works →

Law: W. Va. Code §§ 48-9-104, 48-9-202, 48-9-203, 48-9-204, 48-27-503, 59-1-11; SCA-FC-260

Changing or enforcing an order in West Virginia

Changing an order

The court must change a parenting plan if facts that were not known, or arose after the last order and were not expected, show a substantial change in the child's or a parent's circumstances, and the change is needed for the child's best interest. In exceptional cases, the court can change a plan that is not working and is clearly harmful to the child even without a substantial change. Loss of a job, a parent's remarriage or new partner, or reasonable child care choices usually are not enough unless harm is shown. A new or worse limiting factor (such as abuse or domestic violence) counts as a substantial change.

Law: W. Va. Code § 48-9-401

If the other parent does not follow the order

If a parent persistently violates or interferes with the other parent's time or contact with the child, the judge must set limits, which can include extra parenting time to make up lost time, more time to repair the relationship, or even giving one parent exclusive custodial responsibility. Repeated interference is also a factor against 50-50 time.

Law: W. Va. Code § 48-9-209(a)(4), (b)(1), (f)(1)

Moving with your child from West Virginia

If you have responsibility under a parenting plan and plan to change residences, you must file a verified Petition and Notice of Relocation with the court at least 90 days before the move, and the other parent must be served at least 60 days before the move (unless that was impracticable). The petition must give the date, new address, reasons, a proposed new schedule, and ask for a hearing. The hearing should be held at least 30 days before the move. The moving parent must prove the move is for a legitimate purpose and in good faith, is in the child's best interest, and that there is no less disruptive reasonable alternative. Legitimate purposes include being near family, health, safety, a significant job or school opportunity, or being with a spouse or long-term partner.

Notice required by: State law
Days of notice: 90

Law: W. Va. Code §§ 48-9-206(b), 48-9-403; SCA-FC-130

Move-away notice tool

Grandparents and other relatives in West Virginia

Grandparent visitation

Yes. A grandparent can ask the family court for visitation, either by motion in a pending divorce, custody, separation, annulment, or paternity case, or by a separate petition when no case is pending (whether or not the parents are married). The judge must grant reasonable visitation if it is in the child's best interest and would not substantially interfere with the parent-child relationship, after looking at 13 factors (such as the child's age, the bond with the grandparent, the parents' preferences, and any history of abuse). In a pending case, the grandparent gets visits on a preponderance of the evidence if the parent through whom the grandparent is related did not answer the case or cannot be found. In a separate petition, if that parent has or shares custody or has visits that could include the grandparent, the law presumes grandparent visits are not needed, unless clear and convincing evidence shows they are in the child's best interest; if that parent does not have custody or visits, the grandparent gets visits on a preponderance of the evidence.

Law: W. Va. Code §§ 48-10-301, 48-10-401, 48-10-402, 48-10-501, 48-10-502, 48-10-701, 48-10-702

Protective orders in West Virginia

What West Virginia calls it: Domestic violence protective order

Custody and visitation in the order

Yes. A protective order can award temporary custody of, or set temporary visitation with, the children named in the order, and can require supervised visits to protect the petitioner and the children.

Law: W. Va. Code § 48-27-503(3), (4)

Safety, hotline and protective orders in every state →

If you are in danger

If you are in danger, call 911. The National Domestic Violence Hotline is free, confidential and open 24/7, in English and Spanish: call 1-800-799-7233, text START to 88788, or chat at thehotline.org.

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Free help in West Virginia

Court self-help

West Virginia Judiciary: Family Courts (parent education, mediation, forms)

https://www.courtswv.gov/lower-courts/family-courts

Legal aid directory

Legal Services Corporation: find LSC-funded legal aid

https://www.lsc.gov/about-lsc/what-legal-aid/i-need-legal-help

Legal aid

Legal Aid of West Virginia (child custody and parenting plans, for eligible people)

866-255-4370

https://legalaidwv.org/

Domestic violence help

West Virginia Coalition Against Domestic Violence: find your local licensed domestic violence program

https://wvcadv.org/partners

Links you to local programs

More free help across the country →

Good to know in West Virginia

West Virginia law presumes equal (50-50) custodial time is best for the child, in both temporary and final orders, unless the evidence shows otherwise (W. Va. Code §§ 48-9-102a, 48-9-204(e), 48-9-206).
To move, a parent must file a Petition and Notice of Relocation at least 90 days before the move (W. Va. Code § 48-9-403; form SCA-FC-131).
Parent education classes are required in custody cases, with a fee of up to $25 per parent that is waived if you cannot pay (W. Va. Code §§ 48-9-104, 48-9-202).

Recent changes

In effect January 22, 2024Updated the agency name: references to the Department of Health and Human Resources now say Department of Human Services. The custody rules did not change.HB 4274 (2024 Regular Session) · W. Va. Code § 48-9-209 (and many other sections)
In effect June 11, 2026The goals of custody decisions now include meaningful contact with step-siblings, when the child has an established bond with the step-sibling and the step-sibling lives at least part-time with the parent.SB 459 (2026 Regular Session, Acts ch. 62) · W. Va. Code § 48-9-102(a)(8)

More RobinClaim guides for West Virginia → · All states

Sources

Last checked: November 2026