Filing for Child Custody (With or Without Divorce) in West Virginia
To formally divide or share custodial responsibilities after separation, you must get a custody order.
Getting a custody order is important because it keeps both parents involved in the child's life — so long as that's safe. Plus, it prevents the other parent from taking your child during your parenting time without consequence.
The parent who starts the case is the petitioner. The other parent is the respondent.
What case type do I have?
Child custody is most commonly decided as part of a divorce case or on its own.
Divorce cases are for married couples who want to end their marriage.
Custody-only cases are for parents who've never married. Paternity will be part of your custody case if your child does not have a legal father. You can establish the child's paternity by agreement or request DNA testing through the court. A man who believes he fathered a child must get a court order naming him as the child's legal father before filing for custody.
Where to get your forms
You can find family forms on the West Virginia courts website or get them from the court clerk at your local family court.
Which forms to fill out
Both divorcing and unmarried parents need to fill out the following:
- Petition (See your case type below to learn which version.)
- Financial Statement
- Petitioner's Civil Case Information Statement — Domestic Relations Cases
- Motion for Temporary Relief (requests temporary orders)
- Parenting plan with custody schedule
For your plan, use the West Virginia parenting plan template or another format like the Custody X Change parenting plan template. Read the parenting plan instructions for guidance; your situation might require additional forms.
If you agree on all custody terms, you'll prepare a joint parenting plan. If not, each parent completes an individual parenting plan showing the custody arrangement they feel is best for the child.
If you're divorcing
Fill out a Petition for Divorce.
If you agree on all elements of your divorce, prepare a divorce settlement agreement as well. If you don't reach an agreement until later in the process, you can prepare your settlement agreement then.
If you're unmarried
Fill out a Petition for Support and/or Allocation of Custodial Responsibilities. Read the accompanying information document as well.
Create a joint parenting plan if you agree on all custody terms.
Where to take your completed forms
Take your forms to the family court serving the county where your spouse lives (married parents) or where your child lives (unmarried parents).
The clerk will collect your forms and give you a summons for a court hearing, which you'll need to serve (formally give) to the other parent (more below).
There's a filing fee around $150 for divorce and around $200 for custody without divorce. You may qualify for a fee waiver based on the information provided in your financial statement.
How to give notice to the other parent (service)
You can skip service if you filed an agreement (in other words, a joint parenting plan in custody cases, plus a settlement agreement in divorce cases).
Otherwise, within 20 days of you filing your petition, an adult other than you must serve the other parent with a copy of the petition, summons and financial statement along with a parent education notice.
Whether you're divorcing or seeking child custody on its own, the rules for serving papers are the same. Follow the process for serving divorce papers.
The respondent has 20 days to respond with an Answer.
Preparing for what comes next
The next step in your case will be a court hearing.
If you filed an agreement, the judge will review your joint plan at the hearing to make sure it is in the child's best interests. If it is, the judge will sign off to make it the permanent parenting plan.
If you did not file an agreement, your hearing will involve the judge making a temporary order based on each parent's proposed parenting plan. They will then refer you to a premediation scanner to determine whether mediation is appropriate.
Technology can help you prepare for your hearing and the rest of your case.
The Custody X Change online app offers a parenting plan template, custom custody calendars, parent-to-parent messaging, an expense tracker and more. You can use it to put together proposals for the other parent, negotiate, prepare settlement paperwork or organize evidence.
You can customize this to fit your situation with Custody X Change.
Be prepared for your hearing and every step of your case with Custody X Change.
Our professional sources
The following professionals helped us better understand child custody in West Virginia and could help you, too.
Robert Kuenzel
Chapmanville, WV
Shawn Trimble
Fairmont, WV
Susan Hill
Cross Lanes, WV
Additional resources
For more guidance, look to: