West Virginia Allocation of Primary Custodial Responsibility to One Parent

AGREEMENT FOR ALLOCATION OF PRIMARY CUSTODIAL RESPONSIBILITY AND SOLE DECISION-MAKING RESPONSIBILITY

STATE OF WEST VIRGINIA

IN THE FAMILY COURT OF [________________________________] COUNTY

Case No.: [____]-FC-[________]

[________________________________], Petitioner

v.

[________________________________], Respondent

IMPORTANT NOTICE REGARDING WEST VIRGINIA LAW

West Virginia law (W. Va. Code § 48-9-206, as amended by SB 463, effective June 10, 2022) establishes a rebuttable presumption of equal (50/50) custodial allocation. The Family Court shall allocate custodial time equally between parents unless:

1. The parents agree to a different allocation; or
2. A parent proves by a preponderance of the evidence that equal allocation would be harmful to the child.

This Agreement allocates primary custodial responsibility to one parent. If this Agreement is stipulated (agreed), the Court may approve it as a parental agreement to deviate from the 50/50 presumption. If contested, the Court must make specific findings rebutting the presumption.

West Virginia does not use the term "sole custody" in its statutes. Instead, the statutory framework under W. Va. Code Art. 48-9 uses "custodial responsibility" (physical time with the child) and "decision-making responsibility" (authority over major decisions). This Agreement allocates a majority of custodial responsibility and sole decision-making responsibility to one parent.

RECITALS

A. The parties are the legal parents of the following minor child(ren):

B. This Agreement is submitted to the Family Court of [________________________________] County, West Virginia, which has jurisdiction under W. Va. Code Art. 48-9 and the UCCJEA (W. Va. Code Art. 48-20).

C. The Parents agree, or the Court has determined, that the 50/50 presumption of W. Va. Code § 48-9-206 is rebutted for the following reason(s):

☐ Stipulated by agreement of both Parents — the Parents agree that the allocation below, while not equal, serves the child(ren)'s best interests for the following reasons: [________________________________]

☐ Limiting factors exist under W. Va. Code § 48-9-209:
☐ Domestic violence by the non-custodial parent (W. Va. Code § 48-27-101 et seq.)
☐ Child abuse or neglect
☐ Substance abuse interfering with parenting capacity
☐ Abandonment of the child
☐ Felony conviction involving violence or children
☐ Other limiting factor: [________________________________]

☐ Other factors rebutting the presumption:
☐ Geographic distance between parents' residences makes equal time impracticable
☐ One parent's work schedule makes equal time impracticable
☐ Child's age and developmental needs (e.g., breastfeeding infant)
☐ History of one parent not exercising a reasonable share of caretaking functions
☐ Child aged 14+ has expressed a strong preference (W. Va. Code § 48-9-206)
☐ Other: [________________________________]

D. Both Parents have completed the parent education course required by W. Va. Code § 48-9-104, or such requirement has been waived.

Date of Execution: [__/__/____]

ARTICLE I: ALLOCATION OF CUSTODIAL RESPONSIBILITY

1.1 Primary Custodial Parent

[________________________________] ("Primary Parent") shall have the majority of custodial responsibility for the child(ren). The child(ren) shall reside primarily with the Primary Parent at:

Address: [________________________________]
County: [________________________________]
School District: [________________________________]

1.2 Non-Primary Parent's Custodial Time

[________________________________] ("Non-Primary Parent") shall have custodial time with the child(ren) as follows:

Select one:

☐ Standard Schedule:

• Alternating weekends: Friday at [____] through Sunday at [____]
• One midweek period: [________________________________] from [____] to [____]
• [____] weeks during summer recess (with [____] days' advance written notice)

☐ Expanded Schedule:

• Alternating weekends: Friday after school through Monday morning (school drop-off)
• Two midweek overnights: [________________________________]
• [____] weeks during summer recess

☐ Restricted / Supervised Custodial Time (when limiting factors under § 48-9-209 apply):

• Frequency: [________________________________]
• Duration: [________________________________]
• Location: ☐ Professional supervised visitation center ☐ In presence of: [________________________________]
• Supervisor: [________________________________]
• Cost of supervision: ☐ Non-Primary Parent ☐ Shared ☐ Other: [________________________________]
• Conditions for transition to unsupervised time: [________________________________]
• Review hearing date: [__/__/____]

☐ Graduated / Step-Up Schedule (for transitional situations):

• Phase 1 ([__/__/____] to [__/__/____]): [________________________________]
• Phase 2 ([__/__/____] to [__/__/____]): [________________________________]
• Phase 3 ([__/__/____] forward): [________________________________]
• Conditions for advancement between phases: [________________________________]

☐ Custom Schedule:
[________________________________]

1.3 Holiday Schedule

1.4 Exchanges

Location: ☐ Child(ren)'s school ☐ Primary Parent's residence ☐ Neutral location: [________________________________] ☐ Supervised exchange site: [________________________________]

Transportation: ☐ Non-Primary Parent picks up and returns ☐ Primary Parent transports ☐ Shared ☐ Other: [________________________________]

1.5 Virtual / Remote Communication

The Primary Parent shall facilitate regular phone, video, or electronic communication between the child(ren) and the Non-Primary Parent at the following times:

[________________________________]

Neither Parent shall monitor, record, or interfere with these communications. The Primary Parent shall ensure the child(ren) have access to a working phone or device for this purpose.

ARTICLE II: ALLOCATION OF DECISION-MAKING RESPONSIBILITY

2.1 Sole Decision-Making Responsibility

Pursuant to W. Va. Code § 48-9-207, [________________________________] ("Decision-Making Parent") shall have sole decision-making responsibility for all major decisions regarding the child(ren), including:

• Education: School enrollment, transfers, special education (IEP/504), tutoring, homeschooling
• Healthcare: Selection of providers, non-emergency medical and dental care, surgical procedures, medications, vaccinations
• Mental Health: Counseling, therapy, psychiatric treatment, medications
• Religious Upbringing: Religious instruction, observance, and practice
• Extracurricular Activities: Enrollment in organized sports, arts, and other activities
• Travel: Out-of-state and international travel
• Legal Matters: Any legal proceedings involving the child(ren)

2.2 Basis for Sole Allocation

Sole decision-making responsibility is allocated based on:

☐ The Parents' inability to cooperate in decision-making due to: [________________________________]
☐ Limiting factors under W. Va. Code § 48-9-209: [________________________________]
☐ One parent's historically minimal participation in decision-making
☐ Agreement of the Parents
☐ Other: [________________________________]

2.3 Consultation Right

☐ The Decision-Making Parent is not required to consult with the Non-Primary Parent before making major decisions.

☐ The Decision-Making Parent shall consult with the Non-Primary Parent before making major decisions (but the Decision-Making Parent retains final authority). The Non-Primary Parent shall have [____] business days to provide input after receiving written notice.

2.4 Day-to-Day Decisions

Each Parent shall have sole authority for day-to-day decisions during that Parent's custodial time, including daily routine, meals, homework, and emergency medical decisions (with prompt notification to the other Parent).

2.5 Information Access

The Non-Primary Parent shall have the right to access:

• School records, report cards, and progress reports (directly from school)
• Medical, dental, and mental health records (directly from providers)
• Notification of school events and activities

The Decision-Making Parent shall provide copies of report cards, significant medical information, and school calendars to the Non-Primary Parent within [____] days of receipt.

Both Parents shall be listed as emergency contacts at the child(ren)'s school and medical providers.

ARTICLE III: LIMITING FACTORS AND PROTECTIVE PROVISIONS (W. VA. CODE § 48-9-209)

☐ This Article does not apply — no limiting factors exist.

☐ The following limiting factors exist and the following protections are imposed:

3.1 Domestic Violence

☐ A Domestic Violence Protective Order (DVPO) was entered on [__/__/____] in Case No. [________________________________] in the ☐ Magistrate Court ☐ Family Court of [________________________________] County.
☐ The DVPO is: ☐ currently in effect ☐ expired ☐ dissolved

☐ The following protections apply during custodial exchanges and custodial time:

• ☐ No direct contact between Parents — exchange through intermediary: [________________________________]
• ☐ Exchange at a supervised/protected location: [________________________________]
• ☐ Restraint on proximity: Non-Primary Parent shall not approach within [____] feet of Primary Parent's residence
• ☐ Communication restricted to: ☐ Written only (email/text) ☐ Through co-parenting app ☐ Through counsel
• ☐ Other: [________________________________]

3.2 Substance Abuse

☐ Non-Primary Parent shall complete substance abuse assessment and treatment: [________________________________]
☐ Non-Primary Parent shall submit to random drug/alcohol testing: [________________________________]
☐ Non-Primary Parent shall not consume alcohol within [____] hours of custodial time.
☐ If a test is positive, custodial time shall be: ☐ suspended ☐ converted to supervised ☐ other: [________________________________]

3.3 Domestic Violence Intervention Program

☐ Non-Primary Parent shall complete a WV-certified batterer's intervention program (BIP): [________________________________]
☐ Proof of completion required before: ☐ unsupervised custodial time ☐ overnight custodial time ☐ other: [________________________________]

3.4 Parenting Education (Advanced)

☐ Non-Primary Parent shall complete the Advanced Child-Focused Parent Education course (ACF-PE) offered through the WV Judiciary, in addition to the standard parent education course.

3.5 Guardian Ad Litem

☐ A Guardian Ad Litem has been appointed: [________________________________]
☐ The GAL's report has been filed and considered.
☐ The GAL recommends: [________________________________]

3.6 Burden of Proof

The Parents acknowledge that under W. Va. Code § 48-9-209, a parent found to have engaged in domestic violence or other limiting conduct bears the burden of proving that custodial allocation will not endanger the child or the other parent.

ARTICLE IV: RELOCATION

4.1 Primary Parent Relocation

The Primary Parent may relocate within the State of West Virginia upon [____] days' written notice to the Non-Primary Parent. If the relocation would require the child(ren) to change schools, the Primary Parent shall provide at least [____] days' notice.

For relocation outside West Virginia or any relocation materially impairing the Non-Primary Parent's custodial time, the Primary Parent must comply with W. Va. Code § 48-9-403:

• File a verified petition at least 90 days before relocation
• Serve the Non-Primary Parent at least 60 days before relocation
• The Court shall hold a hearing at least 30 days before the proposed date

4.2 Non-Primary Parent Relocation

The Non-Primary Parent shall notify the Primary Parent in writing at least [____] days before any change of residence.

ARTICLE V: COVENANTS

5.1 Non-Disparagement

Neither Parent shall make negative or disparaging remarks about the other Parent in the child(ren)'s presence or hearing. Neither Parent shall permit others to do so.

5.2 Facilitate Relationship

The Primary Parent shall actively support and facilitate the child(ren)'s relationship with the Non-Primary Parent. The Primary Parent shall not engage in conduct designed to alienate the child(ren) from the Non-Primary Parent.

5.3 Substance Use Restriction

Neither Parent shall use illegal controlled substances at any time. Neither Parent shall consume alcohol to impairment during custodial time or within [____] hours before a scheduled exchange.

5.4 Firearms Safety

All firearms shall be stored unloaded in a locked container with ammunition stored separately, inaccessible to the child(ren).

5.5 Timely Return

The Non-Primary Parent shall return the child(ren) to the Primary Parent's custody at the scheduled time and location. Persistent late returns (three or more within 60 days) shall constitute grounds for modification of custodial time.

5.6 Passport and Travel Documents

☐ The child(ren)'s passport shall be held by the Primary Parent.
☐ International travel by the Non-Primary Parent with the child(ren) is: ☐ prohibited ☐ permitted with written consent ☐ permitted with [____] days' notice and itinerary

ARTICLE VI: HEALTH INSURANCE AND EXPENSES

6.1 Health Insurance

☐ Primary Parent shall maintain health, dental, and vision insurance.
☐ Non-Primary Parent shall maintain health, dental, and vision insurance.
☐ Other: [________________________________]

6.2 Unreimbursed Medical Expenses

Shared as follows: ☐ Equally ☐ Primary Parent [____]% / Non-Primary Parent [____]% ☐ Other: [________________________________]

6.3 Child Support

☐ Child support is addressed in a separate order under W. Va. Code Art. 48-13.
☐ Child support provisions: [________________________________]

ARTICLE VII: ENFORCEMENT AND DEFAULT

7.1 Contempt

Violation of this Agreement, once incorporated into a Family Court order, may result in contempt proceedings under W. Va. Code § 48-9-501 and applicable court rules.

7.2 Make-Up Custodial Time

If the Non-Primary Parent is wrongfully denied custodial time, the Non-Primary Parent shall be entitled to make-up time of equivalent duration within [____] days.

7.3 Denial or Interference

If the Primary Parent denies custodial time without good cause on three or more occasions within a 12-month period, the Non-Primary Parent may petition the Family Court for modification.

7.4 Attorney's Fees

The prevailing party in any enforcement proceeding may be awarded reasonable attorney's fees at the Court's discretion.

ARTICLE VIII: DISPUTE RESOLUTION

8.1 Parents shall first attempt direct, respectful communication.

8.2 If unsuccessful, Parents shall engage a Family Court-approved mediator (unless domestic violence makes mediation inappropriate under W. Va. Code § 48-9-209).

8.3 If mediation fails, either Parent may file a motion with the Family Court of [________________________________] County.

8.4 Appeals proceed to the Circuit Court and thereafter to the WV Intermediate Court of Appeals.

ARTICLE IX: MODIFICATION

This Agreement may be modified upon a showing of substantial change in circumstances and that modification serves the child(ren)'s best interests (W. Va. Code § 48-9-401). The occurrence or worsening of a limiting factor under § 48-9-209 constitutes a substantial change.

ARTICLE X: GENERAL PROVISIONS

10.1 Severability. If any provision is unenforceable, the remainder continues in full force.

10.2 Integration. This Agreement constitutes the entire understanding regarding custodial allocation and decision-making responsibility.

10.3 Governing Law. This Agreement is governed by West Virginia law, W. Va. Code Art. 48-9.

10.4 Counterparts. This Agreement may be executed in counterparts, including electronically.

EXECUTION

PETITIONER (Primary Parent):

Signature: [________________________________]
Printed Name: [________________________________]
Date: [__/__/____]
Address: [________________________________]
County: [________________________________]
Telephone: [________________________________]

RESPONDENT (Non-Primary Parent):

Signature: [________________________________]
Printed Name: [________________________________]
Date: [__/__/____]
Address: [________________________________]
County: [________________________________]
Telephone: [________________________________]

VERIFICATION

STATE OF WEST VIRGINIA
COUNTY OF [________________________________]

I, [________________________________], being duly sworn, state that the foregoing is true and correct to the best of my knowledge and belief and that this Agreement was entered into voluntarily.

Signature: [________________________________]

Sworn to and subscribed before me this [____] day of [________________________________], 20[____].

Notary Public: [________________________________]
My Commission Expires: [__/__/____]

ORDER OF THE FAMILY COURT

STATE OF WEST VIRGINIA
FAMILY COURT OF [________________________________] COUNTY

Case No. [____]-FC-[________]

The Court, having reviewed the Agreement and the evidence, FINDS:

1. The Court has jurisdiction under W. Va. Code Art. 48-9 and the UCCJEA.
2. Both Parents have completed parent education (W. Va. Code § 48-9-104) or the requirement has been waived.

3. The rebuttable presumption of equal custodial allocation under W. Va. Code § 48-9-206 is overcome because:
   ☐ The Parents have agreed to a different allocation.
   ☐ [________________________________] has proven by a preponderance of the evidence that equal allocation would be harmful to the child(ren) because: [________________________________]

4. The allocation of sole decision-making responsibility is supported by the factors in W. Va. Code § 48-9-207, specifically: [________________________________]

5. ☐ Limiting factors under W. Va. Code § 48-9-209 have been identified and appropriate protections are included.
   ☐ No limiting factors are present.

6. The Agreement serves the best interests of the child(ren) under W. Va. Code § 48-9-102.

IT IS THEREFORE ORDERED that the Agreement is APPROVED, ADOPTED, and incorporated into this Order. The Parents shall comply with all provisions. Violation may result in contempt.

Date: [__/__/____]

[________________________________]
Family Court Judge
[________________________________] County, West Virginia

SOURCES AND REFERENCES

• W. Va. Code Art. 48-9: Allocation of Custodial Responsibility and Decision-Making Responsibility — WV Legislature
• W. Va. Code § 48-9-206: Allocation of Custodial Responsibility (50/50 Presumption, SB 463, eff. June 10, 2022)
• W. Va. Code § 48-9-207: Decision-Making Responsibility
• W. Va. Code § 48-9-209: Limiting Factors (Domestic Violence, Substance Abuse, Neglect)
• W. Va. Code § 48-9-401: Modification of Parenting Plan
• W. Va. Code § 48-9-403: Relocation of a Parent
• W. Va. Code § 48-27-101 et seq.: Prevention and Treatment of Domestic Violence Act
• W. Va. Code Art. 48-13: Child Support Guidelines
• Rules of Practice and Procedure for Family Court — WV Judiciary
• Family Court Forms — WV Judiciary
• Parent Education — WV Judiciary
• Advanced Child-Focused Parent Education — WV Judiciary
• Legal Aid WV, "Navigating West Virginia's New Custody Law" — Legal Aid WV