Senators pass bill presuming equal custody in divorce cases

Irina Baranova

The state Senate has passed a bill establishing a presumption of equal custody in divorce cases.

The “Best Interests of Child Protection Act of 2022” passed by a 25-9 vote. The bill now goes to the House of Delegates, which has passed bills with the same concept over the past few years.

Charles Trump

Senate Judiciary Chairman Charles Trump, R-Morgan, acknowledged strong reservations about such a bill over the past several years. Speaking to senators today, Trump said that came from almost 40 years as an attorney dealing with family law, including divorce cases, and recognizing each situation is different.

But Trump spoke in support of Senate Bill 463 today, saying that although there would be a presumption of 50-50 custody at the outset, family law judges would have flexibility to deviate once they have considered specific circumstances.

“I’m willing to take a step this year that I had not previously been willing to do,” Trump said.

“This bill preserves to the court the right to say ‘Yes, the Legislature has created a presumption but based upon the evidence I’ve heard that is not what is best for the child in this case.’ I’ve moved a step from where I was last year or the year before.”

The bill would have deliberations in family courts begin with a presumption of fifty-fifty custody, analyze whether that is feasible and, if it’s not, lay out why not.

Balancing custody is an issue that has come up year-after-year in the Legislature. Last year, lawmakers on the Senate Judiciary Committee removed a presumption of 50-50 custody, giving judges more flexibility. And the House of Delegates passed a similarly-themed bill in 2020. 

The bill introduced to West Virginia’s Senate this year concludes, “It is the public policy of the state of West Virginia to recognize the presumption, overwhelmingly supported by social science research, that co-equal joint custody and equally divided parenting time is in the best interest of children.”

The bill notes that actions in the court system may reveal that equal joint custody is not actually in the best interest of the child. One exception would be cases where the mother and father have consensually reached an agreement on allocation of parenting time — or if one of the parties does not request sole, primary or joint custody.

Additional exceptions would occur if one of the parents has committed an act of domestic violence against the other or if one of the parties is a sex offender.

When the bill was considered this year in the House Judiciary Committee, two family law judges spoke against it. Much of what they said was that fighting couples could perceive an incentive to leverage those exceptions, potentially making toxic situations even worse.

Stephen Baldwin

Senator Stephen Baldwin, D-Greenbrier, spoke against the bill. He acknowledged custody cases are difficult and sad — and said he spoke from experience.

“I have been through family court as a child, and I cannot overemphasize how difficult that is,” he said. “What’s clear to me is, there are no easy answers. Unfortunately, when life goes wrong, it isn’t ideal. It gets messy. It gets really messy.”

Although he said shared custody would be ideal, Baldwin concluded life so rarely plays out under ideal circumstances. In situations with competing interests, he said, “I don’t know who is better to make that determination than the judge.”

Randy Smith

Senator Randy Smith, R-Tucker, said he’d become emotionally involved in the legislation through meeting citizens who have supported it. “These people love their children so much,” he said.

“I thank God every day I’ve never had to go through this process. I can’t imagine someone saying you can’t see your kids. In a perfect world, we’d go 50-50,” he said.

Smith, too, acknowledged that circumstances are so rarely perfect. But he advocated for a starting point that would presume equal treatment.

“Our judicial system is based on being fair and equal,” he said. “All this says is we’re going to start at that point and then go from there.”

Senators pass bill presuming equal custody in divorce cases

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