Background
After the parties divorced, the Family Court of Berkeley County addressed permanent custodial responsibility for their child, born in 2021. The parties had followed a temporary equal, 50-50 custodial arrangement, but could not agree on a permanent schedule.
Following a final hearing that included party testimony, videos, and texts, the family court found that Mother had rebutted the statutory presumption favoring equal custodial time. It awarded Father weekly Tuesday and Wednesday overnights and alternating Saturday and Sunday overnights, with Mother receiving the remaining time. Father appealed.
The Court’s Holding
The Intermediate Court of Appeals affirmed. It held that West Virginia Code § 48-9-209(f) requires courts deciding whether the 50-50 presumption has been rebutted to consider all relevant factors; the factors listed in § 48-9-209(a) are not the only grounds for a less-than-equal allocation.
The family court acted within its discretion by relying on findings about Father’s demeaning and controlling conduct, threats concerning Mother’s immigration status, and behavior discouraging a positive parent-child relationship with Mother. Those findings supported its conclusions that the parents could not cooperate in the child’s best interests and that Father was less likely to encourage the child’s relationship with Mother. The appellate court also rejected Father’s challenge to the evidentiary support for the written findings, concluding that the videos, texts, and testimony supported them.
Key Takeaways
- The statutory presumption of equal custodial time is rebuttable.
- Section 48-9-209(f) permits family courts to consider all relevant evidence, not only the conduct listed in § 48-9-209(a).
- Appellate courts give substantial deference to family courts’ custody and credibility determinations when supported by the record.
Why It Matters
The decision confirms that a parent seeking to preserve a 50-50 schedule cannot limit the custody analysis to the specific misconduct listed in § 48-9-209(a). Family courts may reduce custodial time when the broader factors in § 48-9-209(f), evaluated on the record, show that equal time is not appropriate.
It also underscores that appellate review is confined to the record before the family court and that a written family-court order controls over conflicting oral statements.