Family Court in West Virginia: What Survivors Need to Know (Custodial Allocation & Protective Orders)

West Virginia Family Courts operate under a unique set of statutes (Chapter 48) that use very specific terminology. You will rarely hear the word "custody" in the courtroom. Instead, the court focuses on the "Allocation of Custodial Responsibility."

The most critical law for survivors is W. Va. Code § 48-9-209, which mandates that the court limit a parent's rights if there is evidence of domestic violence.¹

1. New Terminology: "Allocation" vs. Custody

West Virginia replaced traditional custody terms to focus on practical responsibilities:

• Custodial Responsibility: The time a parent spends with the child (formerly physical custody).

• Decision-Making Responsibility: The right to decide on education, health, and religion (formerly legal custody).

• Parenting Plan: The mandatory document that outlines the schedule and decision-making rules.²

• Primary Residential Parent: The parent with whom the child resides the majority of the time.

2. The "Section 209" Safety Limitations

This is the most powerful statute for survivors in West Virginia.

• The Law (W. Va. Code § 48-9-209): If the court finds that a parent has abused, neglected, or committed domestic violence, the judge must impose limits that are reasonably calculated to protect the child and the abused parent.³

• Mandatory Limits: If domestic violence is proven, the court cannot allocate joint decision-making responsibility or allow shared custodial responsibility without written findings that the child is safe.⁴

• Specific Restrictions: The court can order:

  • Supervised visitation (at a center or with a third party).⁵

  • Exchange of the child in a protected setting (like a police station).⁶

  • Restraints on communication (e.g., communication only through a parenting app).⁷

  • Abstinence from alcohol/drugs during parenting time.

3. Domestic Violence Protective Orders (DVP)

You can file for a DVP in Magistrate Court (for emergency hours) or Family Court.

• Emergency Protective Order (EPO): Issued immediately (ex parte) without the abuser present if you are in immediate danger.⁸ It usually lasts 10 days until a final hearing.

• Final Protective Order: Issued after a hearing where the abuser can defend themselves.⁹ It typically lasts 90 days, 180 days, or 1 year, and can be extended.

• Relief Available: It can grant you temporary custodial responsibility of children, exclusive possession of the home (removing the abuser), and temporary support (spousal and child).¹⁰

4. Mediation & The Safety Exemption

West Virginia generally requires parents to attend mediation to develop a Parenting Plan.¹¹

• The Risk: Mediation requires negotiating with the other parent.

• The Exemption: Under W. Va. Code § 48-9-202, the court should not order mediation if it determines that it is inappropriate due to domestic violence.

• Pre-Mediation Screening: Mediators are required to screen for domestic violence. You must disclose the abuse during this screening to be exempted ("screened out").

5. Child Support & "Good Cause"

• The Formula: West Virginia uses an "Income Shares" model based on the combined adjusted gross income of both parents.¹²

• BCSE & Safety: The Bureau for Child Support Enforcement (BCSE) handles collections.¹³ If you receive TANF/WV Works, you are required to cooperate with them.

• Good Cause Waiver: If pursuing child support would endanger you or the child, you can file a "Good Cause" claim to stop the BCSE from contacting the abuser while still receiving your benefits.¹⁴

6. Relocation

• The Rule: If you want to relocate the child, you generally must provide 60 days' notice to the other parent.

• The Exception: If you are relocating to escape domestic violence, the court can waive the notice requirement or allow you to keep your new address confidential. You should file a petition explaining the safety risk immediately upon moving.

Frequently Asked Questions (FAQ)

Q1: Do I need a lawyer for a DVP hearing?

It is recommended. While Magistrate Court is designed for people without lawyers (pro se), the abuser may bring one. Legal Aid of West Virginia prioritizes representation for domestic violence protective order hearings.

Q2: Can I keep my address secret?

Yes. West Virginia has an Address Confidentiality Program (ACP) run by the Secretary of State.15 It provides a substitute mailing address to use on court documents, driver's licenses, and school records.16 Call 1-866-767-8683 to apply.

Q3: Does "emotional abuse" count for Section 209 limitations?

Yes. W. Va. Code § 48-27-202 defines domestic violence to include placing a family member in "reasonable apprehension of physical harm" or "harassment."17 A pattern of threats and intimidation can trigger the safety limitations in custody cases.

Q4: Will I get "50/50" time?

Not automatically. While the court generally favors shared parenting, Section 209 overrides this if there is abuse. If you prove domestic violence, the presumption shifts against 50/50 allocation to ensure safety.18

Q5: What if he violates the Protective Order?

Call 911. Violation of a Protective Order is a crime in West Virginia.19 Law enforcement must arrest the violator if they have probable cause to believe the order was violated (e.g., he showed up at your house or texted you).

Q6: Can I record my spouse to prove abuse?

Yes. West Virginia is a "One-Party Consent" state. You can legally record a conversation you are participating in without the other person's knowledge. These recordings can be critical evidence in Family Court.

References & Resources

• Legal Aid of West Virginia: 1-866-255-4370 (Apply for help).²⁰

• West Virginia Coalition Against Domestic Violence: wvcadv.org.²¹

• Address Confidentiality Program (ACP): 1-866-767-8683.²²

• Bureau for Child Support Enforcement (BCSE): dhhr.wv.gov/bcse.

• Legislation: W. Va. Code § 48-9-209 (Safety Limitations), § 48-27-1 et seq. (Prevention of Domestic Violence Act).