Emily Allen Published

W.Va. House Sends 50-50 Custody Bill To Senate

The West Virginia House of Delegates voted on Monday, March 8, 2021, to pass a bill for 50-50 shared custody of children.

The West Virginia House of Delegates has agreed once more to send the Senate legislation amending state code for co-equal child custody, save for court-proven incidents of domestic violence or child abuse.

Current law calls for custody plans to be crafted based on care-taking functions — whoever spends the most time with a child gets the most time after a divorce or separation.

House Bill 2363, in creating a “Best Interests of the Child Protection Act of 2021,” swaps this for automatic presumption of 50-50 custody.

“These are loving parents that want to be involved in the child’s life,” said Del. Geoff Foster, R-Putnam. “They’re asking for it and the problem is our family court system, our judicial system, is preventing it.”

Foster, the bill’s lead sponsor, also authored legislation for co-equal custody in 2020. That bill failed last year on the Senate floor.

Foster referred repeatedly on Monday to research by American child custody psychologist Richard Warshak, which Foster said favored co-equal parenting. Before the bill passed the House Judiciary committee in February, some delegates questioned whether this was the right takeaway from Warshak’s work.

Foster also leaned heavily on data from Kentucky, which already passed a law for co-equal custody a few years ago.

“They have not rescinded it, so obviously they haven’t had problems,” Foster said.

Reports of domestic violence in Kentucky have dropped since the law’s passage about four years ago, according to data that Foster shared on the House floor.

Katie Spriggs, a member of the West Virginia Coalition Against Domestic Violence, said this isn’t a good thing. In fact, Spriggs said that it likely is evidence that victims are uncomfortable coming forward.

“Domestic violence is often underreported, or not reported at all, for various reasons — fear of the perpetrator, economic control, fear of community judgment,” Spriggs said.

Spriggs is executive director of the Eastern Panhandle Empowerment Center and has worked with survivors of domestic violence for nearly a decade.

“If anything, what this will do is deter survivors from leaving, because they would be faced — under 50-50 custody — with their children going unsupervised to someone who has harmed them,” Spriggs said.

The bill allows for “extenuating circumstances,” Foster said in the House, like domestic violence or child abuse. But the legislation also requires that parents prove these circumstances in a mandatory, on-the-record hearing before a judge, with attorneys, witnesses and cross-examinations.

The legislation also allows for deviation from co-equal parenting when a parent is actively using illegal drugs, frequently leaving a child in someone else’s care “while pursuing his or her own pleasure,” or whether they’ve been convicted in the last five years on charges of child abuse.

Parents can agree to deviate from perfect 50-50 custody, but the legislation says plans should be as close to 65-35 as possible.

In questioning Monday, Foster said he didn’t believe the bill would affect a child’s public benefits, like Medicaid or SNAP, nor would it affect a parent’s ability to claim a child as a “dependent” on taxes.

The bill does not address child support.

Del. Barbara Fleischauer, D-Monongalia, argued that a “cookie cutter” solution would do West Virginia children no good, and that instead the bill places parents’ rights over a child’s stability.

Del. Danielle Walker, D-Monongalia, opposed the bill Monday for similar reasons. Walker also told lawmakers that the bill, and the discourse around it, missed an important point: the child’s wellbeing.

“I listened to the discrimination and the prejudice that this was a ‘mad dad’s bill’,” Walker said. “Disgusting, to anyone who said that. I heard that this was a bill for women who were scorned, who were crazy, who didn’t know how to let go. That is even more disgusting, because all of those statements, all those calls that I received, had nothing about protecting the doggone child.”

Walker and Fleischauer were among 31 lawmakers who opposed the legislation, with 68 voting in its favor Monday afternoon.

The bill moves on to the Senate.

Emily Allen is a Report for America corps member.