Background
Michael H. and Leah H. divorced after marrying in 2016 and having three children. Following their February 2025 separation, Father obtained a temporary domestic-violence protective order, but the family court later found he was not a domestic-violence victim and dismissed that order.
A guardian ad litem recommended equal custodial time and continuation of homeschooling for the eldest child. In its final divorce order, however, the Family Court of Hampshire County gave the parents joint decision-making authority but awarded Father a substantially unequal custodial schedule. It also ordered the eldest child enrolled in Hampshire County public school and vaccinated as legally required for attendance.
The Court’s Holding
The Intermediate Court of Appeals vacated only the custodial-allocation portions of the divorce order and remanded. West Virginia law presumptively requires equal 50-50 custodial time unless the parents agree otherwise, equal time would harm the child, or a statutory exception applies.
The family court awarded Father less than equal time without making findings of fact or conclusions of law explaining the deviation or addressing whether Mother had rebutted the equal-allocation presumption. Those omissions made the order inadequate for appellate review. The appellate court did not require a particular result on remand; the family court may again order unequal time if it supplies the required analysis and findings.
Key Takeaways
- A final parenting plan that departs from 50-50 custodial time must include specific factual findings and legal conclusions.
- The party opposing equal custodial allocation bears the burden to rebut the statutory presumption.
- The existing custody provisions remain effective as a temporary order until the family court enters a new final custody ruling.
Why It Matters
The decision reinforces that West Virginia family courts must explain a departure from equal parenting time, even where the record may support an unequal schedule. Appellate review requires an order that identifies the basis for rebutting the statutory presumption and shows why the resulting arrangement serves the children’s welfare.
On remand, the family court must also address Mother’s and the guardian ad litem’s requests for appellate attorney’s fees.