The West Virginia House of Delegates has passed a bill that, if it becomes law, would give family court judges one highest priority in child custody cases: courts would have to assume, at the beginning of the case, that custody arrangements that allocate 50% of time with each parent are best.
Then, it would be up to the parents to show that other factors, including domestic violence or child abuse, should be considered.
Supporters of the bill say it’s meant to encourage good relationships with both parents — which would ultimately benefit kids. But advocates for children and for victims of domestic violence say it would institute a one-size-fits-all approach that puts parents’ desires over children’s needs.
If the bill becomes law, it could also reopen old cases, allowing thousands of non-custodial parents to go back to court and fight for custody. That could disrupt the lives of children used to their current custody agreements. Things they’ve taken for granted, like seeing a parent most days or seeing certain friends at school, could change, creating feelings of helplessness and instability.
Carol Smith, a counseling professor at Marshall University with expertise in childhood trauma, said the uncertainty could cause more confusion in children’s lives during an already chaotic time.
Young children may not have the words to express how confusing and traumatic divorce proceedings can be, Smith said.
“If you did interview a child, you would end up hearing things like, ‘well, this is really painful,’” she said. “‘And I just wish that my parents could get along, and it feels like it’s my fault.’”
Supporters say parents aren’t getting enough time with their kids
When deciding child custody arrangements, current state law directs family court judges to think about various parts of a child’s life that influence health and happiness, including who the child wants to live with, the need for meaningful contact with each parent, maintenance of close relationships with siblings and the child’s safety.
House Bill 2363 would remove the provision of state law that requires courts to consider who took care of the child over the previous 12 months when determining parenting plans. Instead, courts would have to assume 50/50 child custody agreements are best, unless parents could show other factors, like family violence, should be given higher priority. Proponents of the bill have argued this is fair, because if a parent is working outside the home and not directly caring for the child, providing income is still a form of care-taking.
The bill’s supporters, including lead sponsor Delegate Geoff Foster, R-Putnam, say that giving more parents 50/50 custodial time arrangements would benefit children, because it’s good for kids to have strong relationships with two loving parents.
Foster introduced a similar bill last year; the House passed it, but the Senate passed a drastically limited version and lawmakers ran out of time before they could reconcile the two different versions.
At the time, Foster said he sponsored the bill because of his personal experience. He said he was unable to see a sibling because of an unfair parenting arrangement between his father and stepmother.
“It’s really not about me,” Foster said of this year’s bill in an interview earlier this month. “[The bill] wouldn’t affect me at all. The real story is about the people that are right now being put out of their kid’s life to the detriment of the child.”
Foster said last year that the National Parents Organization, an organization that originally focused on fathers’ complaints about custody agreements and promotes “shared parenting,” had contacted him with interest in the bill, but he’d already started working on it before that.
“I’ve got people texting me, men — men and women alike — saying how the current law is really hurting their families and that’s why I’m trying to fix the situation,” he said.
Groups including Prevent Child Abuse WV, the West Virginia Coalition Against Domestic Violence, and the West Virginia Child Advocacy Network oppose the bill.
Foster said he was surprised to see the West Virginia Federation of Democratic Women come out in opposition as well.
“I don’t know where that came from,” he said. “I don’t know why this has become a partisan issue of trying to do what’s best for the child.”
A tool of abuse
The bill’s opponents argue at best, the bill is unnecessary: current law already allows courts to establish 50/50 custody arrangements if that’s what a judge thinks is best. They say a child’s needs should be put before parental preferences.
But at worst, they say the measure could be used by abusive parents and partners as a tool within the family court system.
Joyce Yedlosky, team coordinator for the West Virginia Coalition Against Domestic Violence, said domestic violence perpetrators don’t only target their victims. They also target systems like family courts, she said.
“Many victims of domestic violence don’t have evidence of the domestic violence, or they believe that they can navigate the custody arrangements in a way that keeps them and the children safe without having to raise the domestic violence [in court],” Yedlosky said. “When you raise the domestic violence in a court setting, you are challenging somebody that you are afraid of, and often that’s without an attorney.”
She said many instances of abuse go unreported, whether because of safety concerns, attorney advice, lack of resources, or unwillingness to embarrass the children or the abuser.
Similarly, Jim McKay of Prevent Child Abuse WV said often these issues aren’t reported to authorities.
“Setting such a high evidentiary standard to adjust child custody arrangements increases risks of harm for children,” he said.
These advocates worry that victims of domestic violence will stay in abusive relationships rather than try to show a judge that abuse occurred.
The bill ties judges’ hands, and every situation is different, Yedlosky said. Sometimes, alleging abuse can lead to more severe violence. Some families may be best served not bringing up abuse at that time. Some people who commit domestic violence may be able to learn not to be violent.
Another worry if the bill passes: perpetrators of domestic violence will use it as a way to bring their former spouses back to court as yet another form of abuse.
Looking to Kentucky
Foster brushed those concerns off as speculation.
“That’s a really large stretch of a hypothetical for one because, in Kentucky, when they passed this bill, domestic abuse cases actually dropped somewhere around 10%, so it would actually improve the situation.”
Kentucky’s law passed in 2018, and state government data shows that requests for protective orders requiring abusers to stay away from victims dropped by about 13% by 2020. But family court cases related to divorce, annulment or separation dropped by 10%, too.
Foster pointed out that judges may still consider domestic violence in these cases if the bill passes, and the legislation doesn’t change state domestic violence law.
But a key difference between Kentucky’s law and the one being considered in West Virginia is the ability to reopen old cases.
Foster supports this provision. He said he didn’t want to see children whose parents divorced in 2019 end up with less time with their parents whose divorce was in 2021.
“According to studies that I’ve looked at, when you look at it, it’s in the best interest of the child for them to have both parents involved in their life,” he said.
Last year, Foster and proponents of similar legislation cited a 2014 study in calling for 50/50 custody arrangements. While the study, conducted by research psychologist Richard Warshak, found that meaningful and balanced time was ideal, the study specifically stated that policymakers should avoid setting defaults that apply to everyone, like a 50/50 custody arrangement.
Advocates for children worry that reopening cases could unintentionally create more chaos in children’s lives.
Smith, the Marshall professor and counselor, said a divorce is traumatic and confusing as is. She compared it to a fire in the life of a child.
“The difference between a bad thing happening to a child and an adult is the child does not have the resources or the cognitive map to put the event in perspective. They don’t have the resources they need for coping,” she said. “It ends up having an outsized effect on how they think about the world and their place in the world.”
An adult might say, “OK, I have a driver’s license. I’ve got a car. I’ve got a credit card. I know how to go and make a hotel reservation. We can go stay in a hotel,’” she said.
“A child is just looking to the adults to provide protection and love to them. And if their house burns down, the child is like, ‘oh my gosh, the house burned down. There’s nothing worse in the world because my entire world was in that house.’”
David McMahon, a lawyer and a lobbyist who worked on divorce cases from 1975 to 2008, remembers when custody battles were even more overwhelming and upsetting for children.
Before changes to state law, McMahon wrote in a letter to lawmakers, he often saw parents use child custody requests as bargaining chips, leading to long and unpredictable custody battles.
McMahon worries parents who don’t even want custody will fight for it for “bargaining leverage,” when they’re really concerned about property distribution or money allocated for child support or alimony.
“The best predictor of future behavior,” he wrote in the letter, “is past behavior.”
Smith added that while courts may try to establish some order among the chaos, they can’t solve the root problems that put stress on families.
She noted that many children in West Virginia are already dealing with multiple stressors and traumatic experiences, including prejudice, poverty, housing hunger, lack of transportation, income loss and isolation due to the pandemic, and widespread addiction.
“Trauma begets trauma, and we see that in West Virginia, just generations of people who really, truly did not get what they needed growing up and then they turn around and parent, and they’re not really ready to be parents and their children don’t get what they need when they’re growing up and they turn around and parent,” and the cycle continues, she said.
One way to address the root causes, Smith said, would be to increase access to mental health care.
“The fact of the matter is, in the United States, there is no system for addiction or mental health care. There’s no system. It’s patchwork. It’s ad hoc. And if you’re lucky, you know someone who knows someone who might be able to get you a therapist, and then if you’re really lucky, you have all the things that you need in order to go get therapy, money, transportation, time.”
The consequences of this ad hoc system, she says, are showing up in family court.