State Laws and Legislation

West Virginia Custody and Visitation Law

Courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.

Custody and Visitation for Gay, Lesbian and Bisexual Parents
West Virginia law states: “The primary objective of this article is to serve the child’s best interests, by facilitating: (1) Stability of the child; (2) Parental planning and agreement about the child’s custodial arrangements and upbringing; (3) Continuity of existing parent-child attachments; (4) Meaningful contact between a child and each parent; (5) Caretaking relationships by adults who love the child, know how to provide for the child’s needs and who place a high priority on doing so; (6) Security from exposure to physical or emotional harm; and (7) Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child’s care and control.

“A secondary objective … is to achieve fairness between the parents. …
“A court shall modify a parenting plan order if it finds, on the basis of facts that were not known or have arisen since the entry of the prior order and were not anticipated therein, that a substantial change has occurred in the circumstances of the child or of one or both parents and a modification is necessary to serve the best interests of the child. …

“Unless the parents have agreed otherwise, the following circumstances do not justify a significant modification of a parenting plan except where harm to the child is shown: (1) Circumstances resulting in an involuntary loss of income, by loss of employment or otherwise, affecting the parent’s economic status; (2) A parent’s remarriage or cohabitation; and (3) Choice of reasonable caretaking arrangements for the child by a legal parent, including the child’s placement in day care.”

In two cases, 1987’s M.S.P. v. P.E.P. and 1985’s Rowsey v. Rowsey, parents’ custody and visitation rights had been restricted because of their relationships with people reputed to be gay. The state Supreme Court ruled that to justify a change in child custody, there must be a substantial change in circumstances and the change must materially promote the welfare of the child. The court found in both cases that the fact that a custodial parent maintained a relationship with a known gay, lesbian or bisexual person did not amount to a “substantial change” to justify a change in custody.

Custody and Visitation for Same-Sex Co-Parents

Courts will allow a former same-sex partner with no legal or biological relationship to the child to petition for custody and visitation.
In a 2005 case, the West Virginia Supreme Court held that the surviving lesbian partner of a deceased woman qualified as a “psychological parent” and as such had the right to participate in custodial proceedings regarding the child. The state Supreme Court agreed with the family court finding that the best interests of the child would be served by awarding Tina B. custody of the child.

Citations: W. VA. CODE § 48-9-102; W. VA. CODE § 48-9-401; M.S.P. v. P.E.P., 358 S.E. 2d 442 (W. Va.1987); Rowsey v. Rowsey, 174 W. Va. 692 (W. Va. 1985); Clifford K. and Tina B., 619 S.E.2d 138 (W.Va. 2005).

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Updated: Fri, January 06, 2006 - 12:00:54