Serving Southern West Virginia for over 20 years
Child custody, decision-making and shared-parenting.
Parents who are not living together, whether married or not, can file a "Petition for Support and Allocation of Custodial Responsibilities" using "do-it-yourself forms" that are available at the Circuit Clerk's office. It is asking the Court to enter an order that deals with three things:
1. Who makes decisions about the child (normally it is shared by both parents)?
2. Which parent will be designated as the primary residential parent?
3. When will each parent have "shared-parenting" time with the child (shared-parenting schedule)?
The primary goal of the law is to do what is in "the best interests of the child". I believe that it is also the child's right to know and have a relationship with both parents.
It is usually better if parents can agree on a parenting plan, but it still must be approved by the Court. Also, the Court often gives both parents "joint-custody". This recognizes that when the child is with the father or mother, that parent is responsible for the safety and care of the child.
In some cases, the Judge will require the parents to meet with a trained family law mediator to try to come up with an agreement.
The Court might also appoint a guardian ad litem for the child to investigate whatever the Court wants to know about the parents and children.
There are many other things that may be considered by the Court under the law in making orders about children. The decision to file a Petition to go to Court is an important step in getting an enforceable parenting plan and getting conflicts between parents resolved. I strongly recommend that you talk to an attorney if you are separated and have children, even if you are getting along with the other parent now.
The word "visitation" is no longer used. Parents are not "visitors" in their child's life.
There are several forms to file in addition to the Petition. This will show you what it looks like. You can get a custody packet with all of the forms at the Circuit Clerk.
YOU MAY QUALIFY FOR A FEE WAIVER. ASK THE CLERK FOR THE FORM
Can a child decide where he/she wants to live? It depends. The law allows a child who is over 14 years old to decide which parent he wants to live with, but the final decision is up to the Court and is based on the "best interests of the child".
Here is the Law: Unless otherwise resolved by agreement of the parents under section 9-201 or unless manifestly harmful to the child, the court shall allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation or, if the parents never lived together, before the filing of the action, except to the extent required under section 9-209 or necessary to achieve any of the following objectives:
(1) To permit the child to have a relationship with each parent who has performed a reasonable share of parenting functions;
(2) To accommodate the firm and reasonable preferences of a child who is fourteen years of age or older, and with regard to a child under fourteen years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent, to give that preference such weight as circumstances warrant... http://www.legis.state.wv.us/wvcode/Code.cfm?chap=48&art=9#09
The Court can modify and enforce shared-parenting and child support orders. This usually requires a "substantial change in circumstances". If a person's income has changed more than 15% (up or down), child support can be recalculated by the Court.
And there can be other reasons to go back to Court. For example: A parent wants to move to another State, or gets incarcerated or the child wants to live with the other parent.
A lawyer can explain your rights and your options so that you can make the best possible decision for the best interests of the children. Legal advice is never a guarantee or a crystal ball.
But good advice in family law is always worth it.