Emily Allen Published

W.Va. House Will Again Consider 50-50 Child Custody Law

Capitol Dome, Capitol, Legislature

The West Virginia House of Delegates is slated to consider another bill this year to reform child custody laws.

House Bill 2363 creates a “Best Interests of the Child Protection Act,” requiring equal share of a child when parents first separate.

The legislation outlines the process for a hearing, during which a judge would help create an official plan for shared custody. The bill lists a child’s wishes, a parent’s motivation, proximity to school and relationships with siblings as determining factors.

No parent in this bill is allowed to have more than 65% of a child’s time, once a shared custody plan is created. The legislation makes exceptions for instances when a parent might be a danger to a child, with clear evidence of incompetence, abuse or neglect.

The legislation is heading to the full House of Delegates with a favorable recommendation from the House Judiciary committee, which spent more than an hour Monday questioning the bill’s lead sponsor, Del. Geoff Foster, R-Putnam.

Foster referred repeatedly to a 2014 study by American child custody psychologist Richard Warshak.

“Basically, it was saying that the prevailing need for these children is that the more time they have with each parent, the better it is for that child,” Foster told committee members.

Lawmakers like Del. Shawn Fluharty, D-Ohio, said Monday that Foster’s bill contradicts Warshak’s work and recommendations, especially by regulating how much time a child spends with their parents.

“It says we should have balanced and meaningful contact with each parent while avoiding a template that calls for a specific division of time imposed on all families,” Fluharty said. “So, by requiring the 50-50 [split], aren’t you, in fact, going against the Warshak study?”

Counsel for the House Judiciary Committee said that if the bill becomes law, it would reopen all shared custody cases in the state, allowing parents to re-file according to the new standards.

It was unclear Monday night how many of these cases exist in West Virginia. But Del. Lisa Zukoff, D-Marshall, asked if that would be in the best interest of children who have been living with one parent for most their lives.

“Let’s use a hypothetical situation that was discussed earlier,” Zukoff asked Foster at one point. “The dad hasn’t seen the children for 15 months. Even though he hasn’t seen those children for 15 months, no matter what the circumstances are or the age of a child — he’s not been abusive, he just hasn’t been around — we’re going to take those children and give him 50-50 custody?”

Foster sponsored similar legislation during the 2020 legislative session.

As the Beckley Register-Herald reported last year, advocates for victims of domestic violence and child abuse have opposed previous legislation reforming custody law.

Meanwhile, the neighboring state of Kentucky already has passed laws for “legal presumption” of joint custody, as WFPL reported in 2018.

Other House Judiciary members had questions about how schooling would work for parents in different districts, or relocation when one parent has to move far from the other.

Although the committee vote was not unanimous, a majority of the Judiciary Committee agreed to send the bill to the full House of Delegates with a “do pass” recommendation.

Emily Allen is a Report for America corps member.