Any time a couple is considering divorce or separation, the question of child custody arises. There are a number of factors that can determine the outcome of visitation rights, parent custodial determination, and financial obligations. No two cases are ever the same because so many different issues are brought up during the phases of a child custody case that it is impossible to offer a blanket answer.
It certainly does not help that emotions tend to get high during a child custody case. Everyone involved wants a quick resolution, but there are tough questions that need to be asked and resolved in the eyes of the court, and almost always, these revolve around the best interests of the child.
What is Child Custody?
Every state, including West Virginia, has a different set of rules and dominations around child custody. That is part of the reason you should hire a child custody lawyer to help navigate these situations so you do not end up agreeing to a condition that can end poorly in the near future.
Child custody is the legal determination over who has rights and responsibilities over a child between parents. There can be other parties like close related family members or adoptive parents that come into play, but the most common is between a mother and father.
There are also numerous types of child custody designations. Most courts will do their best to seek out an arrangement with as little disruption to a child’s life as possible that still allows both parents who wish to play an active role in the raising of the child to have that ability granted. While it does not always work out to be a 50/50 split, that would be the desired goal. Other types of child custody include:
In this case, the parent with physical custody has the child living with them. If parents share joint-physical custody, the parent that has the child the most is often awarded custodial care, meaning they have sole or primary care while the other parent has visitation or parenting time allocated as part of the agreement.
This is the designation awarded to the parent who can make decisions about how the child will be raised. This situation often ends up in news cases because one parent may want a vaccine, and the other may not, or religious teachings occur in one household but not in the other. It can get sticky quickly when deciding on shared legal custody of a child. If you make a decision without your ex, but you were both supposed to have that right, your case could end up back in front of a judge.
This is full legal or physical custody of a child. This is becoming more and more rare and usually is awarded if a parent is deemed unfit to be a parent due to extreme circumstances like the possibility of causing harm to the child.
This is when parents share the responsibilities of raising the child together, usually in some percentage-based agreement. Most courts lean towards this type of outcome whenever they hear a child custody case.
What Does a Family Court Judge Want to Hear?
Almost every state, including West Virginia, has what is known as the “best interests of the child” factor in determining who gets custody. That means a judge will want to hear evidence as to which parent will offer the best living situation with the least disruption for the child.
That means you want to hire a child custody attorney to help you make your case that you can offer these reassurances with backed-up evidence of your assertions. For example, if you say you can provide the most financial resources to your child as they grow, then you need to show evidence of your income and money management skills. This will be done through the previous year’s IRS filings, copies of pay stubs, listings of accounts in your name, and other assets that can prove income.
Money is not the only determining factor. A parent can make an argument that if the child goes to live with their ex, that will remove them from a situation where they are currently thriving. In this case, a child custody lawyer would need to show evidence of things like a highly successful school career at the child’s current school location, proof of valuable friendships, and being a member of a community that offers ample opportunities to a child’s future.
The point is every child custody case will be different, and the ability of a qualified and experienced child custody attorney will play a significant role in the outcome of a court’s decision.
How do Courts Decide Who Gets Custody of a Child?
Everything in child custody law comes back to the “best interest” factors. These are a set of attributes that determine the best possible custodial environment for a child to be raised within. This is a long list of factors like:
- What is the current age of the child?
- What are the wishes of the parents involved?
- Do the parents have a positive or negative history with the children?
- Are the parents mentally/physically able to care for the child?
- Are the parents able to meet the physical/mental needs of the child?
- How willing are the parents to allow the other parent to be a part of the child’s upbringing?
- Which parent has evidence they have provided the majority of care for a child’s recent upbringing?
- Who participates more in the day-to-day activities of the child (school events, medical appointments, etc.)?
- What is the physical distance between the residences of both parents to the child’s key environment?
- What is the work-life balance and schedule of the parents?
- What are the living accommodations at each of the parent’s homes?
- Who can provide the child with the most financial, physical, emotional, and medical care?
- What are the wishes of the children involved in the dispute?
- Does either parent have access to a community (grandparents, aunts, uncles, etc.)?
- Does either parent have a history of domestic violence, abuse, neglect, substance abuse, criminal activity, mental health issues, or similar situations?
This list can be substantially longer, but it gives you an idea of what a court looks at to determine final child custody. As you can imagine, there is a lot of leeway for a judge because one parent could fulfill 8 of these factors, and the other could meet 7. That leaves little wiggle room for making a decision when both parents are requesting sole custody. Without some form of experienced child customary attorney present to advocate for your side of the argument, you could be easily overlooked.
How Does the Court Determine Child Support?
Child support is a lot easier to anticipate and determine because it is far more quantifiable. Every state has some type of formula for judges to use to determine how much each parent should pay. In general, the more you make, the more you can expect to pay in child support because the court will want to maintain the quality of life for the child they have been used to already. Your custody agreement will also determine the amount you pay. If you have only 20% of the time spent with the child, you probably will not be expected to pay as much as someone with 50% or more time.
Other factors you will have to consider in child custody law for child support include:
- Do the parents have previous children from other marriages they are paying alimony or child support?
- Who has been paying the required items before (healthcare, daycare, school expenses, etc.)?
- Ages of the children and anticipated lifestyle?
- What type of income do the parents have (bonuses, freelance work, incentive pay, regular paychecks, etc.), and how will that affect cash flow?
- Does either parent live with a new partner or spouse that contributes to household expenses?
The unique formula for the state of West Virginia starts by determining the total child support obligation for raising this human being and then splitting that obligation between the parents based on their income. Your adjusted gross income is used to determine this amount. This amount can then be argued based on some of the factors listed above or extraordinary credits agreed upon or ordered by the court.
The final determination will almost always be up to the judge, but it is good to know there is enough precedence available and legal worksheets to use that a reasonable child custody attorney can provide you with to determine an estimation of what you can expect to payout. This is actually an excellent way to determine if you are working with an experienced child custody legal team. If they cannot at least give you a ballpark figure, minus any unknown factors that may come into play during your hearing, then you may want to seek out a different lawyer.
What are the Most Important Factors in Child Custody?
The key factors a court will look at first in a child custody law case are:
- Finances of each parent
- Living accommodations
- Parental relationships with the child
- Special needs or requirements of the child
- Medical expenses
- Educational opportunities
- Previous negative factors of a parent
Once those determinations are made, other subtle and nuanced arguments can be made in the best interests of the child. There are some common-sense assumptions that can be made from this list. If you are a parent who has a history of drug abuse that affects the child, you may have more of an uphill battle in a child custody case.
However, if you are the primary breadwinner for a family, which does not mean you immediately receive sole custody. This is why a child custody attorney is so essential to the outcome of a case. They need to paint a picture for the judge using verifiable evidence as to the fitness of their client compared to the ex-spouse or partner.
There are also the non-quantifiable factors to consider. For example, a court may weigh the opinion of a teenager more than a younger child. An 8-year-old who wants to live with Mommy may not be given that consideration as much as a 14-year-old who prefers Daddy.
Gender does not play such a large role in child custody law as it once did in the past. For a long time, courts preferred to keep children with their mothers because the traditional role of caregiver fell on women. Luckily, times have changed, and now gender is not really a factor compared to the quality of life and best interest of the child.
The final thing to keep in mind is a Guardian Ad Litem. This is someone the court assigns to the child that acts in the child’s best interest and advocates on their behalf. These experts will often evaluate the condition of both parents, living situation of the child, and conduct evaluations to determine any relevant information the court wishes to hear. As long as you share the best interest of the child, then these experts will only help your case.
Where to Get Started
Navigating child custody law is incredibly challenging, especially when coupled with divorce or other legal proceedings that can escalate the emotional factor of a case. The best option for anyone going through these challenges is to hire an expert child custody attorney like those at Hilliard & Swartz Law Offices.
Our professional legal team has worked in family law and child custody cases for years, strongly advocating for the rights of our clients, so the child is left in the care of the best-suited parent. We are here to help you find a pathway forward so you can put your separation in the rearview and refocus your efforts, and strengthen your relationship with your child as you move into a new phase of life.
To learn more about our team or schedule a consult, please feel free to reach out to us online. You can also call our Charleston, West Virginia office at (304) 729-9000. We look forward to hearing from you and helping you reach a quick and amicable arrangement for your loved one.