Background
The parties married on July 18, 2016, and have three minor children: one daughter born in 2020 and twin sons born in 2017. Mother filed for divorce on April 19, 2023. Throughout the divorce proceedings, temporary custody orders issued in August 2023, October 2023, and January 2024 consistently allocated approximately 50-50 parenting time between the parties, structured around Father’s work schedule. Neither party moved to modify this arrangement during the prolonged litigation.
In June 2025, Mother filed an updated proposed parenting plan requesting a majority share of parenting time and sought to move the children to Ohio. The family court scheduled a final custody hearing for July 8, 2025, which was continued when Father did not appear. At the rescheduled hearing on July 31, 2025, Father appeared without counsel and orally moved to continue the proceeding to retain counsel, but the court denied his request. Mother, now represented by counsel, urged the court to proceed immediately because the school year was beginning and she wanted to enroll the children in an Ohio school district.
The final hearing was conducted primarily through proffer of counsel rather than full evidentiary testimony. The family court then issued a final order designating Mother as primary residential parent for school purposes and awarding Father parenting time on the 1st, 3rd, and 5th weekends, with alternating weeks in summer. Father appealed, arguing the court erred in denying him 50-50 custody.
The Court’s Holding
West Virginia Code § 48-9-206(a) creates a rebuttable presumption that custody should be allocated equally (50-50) between parents unless the parties agree otherwise or the allocation would be harmful to the child. The burden of proof rests on the party opposing equal custody to rebut this presumption by presenting competent evidence that the arrangement would harm the child. The appellate court found that the family court failed to meet its statutory obligation to make specific findings of fact and conclusions of law supporting any deviation from this presumption.
The court emphasized that West Virginia Code § 48-9-206(d) requires a determination of custodial allocation to be based on the presentation of evidence and to include specific findings of fact and conclusions of law. Despite the presumption favoring equal custody and the parties’ unmodified 50-50 arrangement throughout the litigation, the family court provided no articulated reasoning for the departure. Additionally, the court found error in the family court’s reliance primarily on evidence offered by proffer of counsel rather than conducting a proper evidentiary hearing on the record, as required by statute.
The Intermediate Court vacated the custody order and remanded the case with directions that the family court conduct a proper evidentiary hearing and provide specific findings of fact and conclusions of law explaining why the 50-50 presumption was rebutted. The court noted that upon remand, the family court could reach the same conclusion, but only if supported by proper legal analysis and findings. Until the new final order is issued, the temporary 50-50 custodial allocation order remains in effect.
Key Takeaways
- West Virginia law creates a presumption of equal (50-50) custody unless the court finds by preponderance of the evidence that such allocation would be harmful to the child.
- Family courts must provide specific, detailed findings of fact and conclusions of law when deviating from the statutory 50-50 presumption; conclusory orders are reversible.
- Custodial allocation determinations must be based on evidence presented in a proper evidentiary hearing on the record, not on proffer of counsel, regardless of whether either party objects.
- A party’s failure to request modification of a temporary custodial arrangement during divorce proceedings weighs toward maintaining equal custody in the final order.
Why It Matters
This decision reinforces West Virginia’s strong statutory preference for equal parental custody and establishes clear procedural guardrails for family courts. Practitioners should note that courts cannot simply award primary custody to one parent without articulating specific factual findings rooted in the statutory factors enumerated in West Virginia Code § 48-9-209. The holding requires family courts to engage in reasoned analysis addressing the presumption explicitly, providing appellate courts the foundation necessary for meaningful review.
The decision also clarifies that procedural shortcuts—particularly relying on counsel’s representations rather than live evidence—do not satisfy statutory evidentiary requirements in custody cases. This may significantly impact how family law practitioners present custody disputes, particularly in high-conflict cases where one party lacks counsel, as courts cannot rush hearings based on scheduling convenience or school calendar concerns without compromising the statutory framework.