Delegate Geoff Foster, R-Putnam, has been pushing for a bill that would require courts to make 50/50 custody the standard. Photo courtesy Perry Bennett/WV Legislature.

State lawmakers have revived a years-long push to rethink child custody divisions after divorces in West Virginia. They passed a stripped-down version of the bill last year, but this year are poised to pass a version of the law that directs courts to push for 50/50 custody, a move which concerns advocates for survivors of domestic and child abuse.

Similar legislation has for years been championed by Delegate Geoff Foster, R-Putnam. It made it through the House last year, but before passage the Senate stripped back the provision most concerning for domestic abuse victim advocates — a presumption that 50/50 parenting for divorcing couples should be pushed for by family courts.

Ultimately, the bill that passed directed courts to favor “shared” legal custody, but with more leeway given to judges to deviate from an even split. This year, a more sweeping measure is likely to pass, with a bill having come out of and passed the Senate, and worked its way through House committees with the 50/50 clause intact.

“Abusers often use children as a tactic to control and abuse their partners,” said Joyce Yedlosky, the co-director of the West Virginia Coalition Against Domestic Violence. And creating a legal precedent that gives them more standing in custody cases, she said, will make the battle that much harder for their victims.

Foster says his support of the legislation is personal. When Foster was young, his brother was denied time with him and their father following a custody fight.

In the years since, Foster’s father also became an advocate for what was then known as men’s rights — pushing to get men a larger share of child custody following divorces. Such groups claimed that, because of the traditional familial roles, men usually wound up with their children less often than women after divorces.

“The number one thing we can do for West Virginia is this bill to get kids to have both of their parents involved in their life so that they can have the best chance for success,” Foster said. “Our court system isn’t built that way right now.”

But advocates for domestic abuse victims say that the reality is complicated, and the law may impede judges’ abilities to take a nuanced approach to custody decisions, especially when one of the parents has been abusive.

Yedlosky said the system can already work against the victims of abuse in many ways, even without judges being mandated to push for 50/50 custody. “[Abusers] often have greater means to financial resources, and in family court, people are not provided attorneys,” she said.

And proving abuse, even with a lawyer, can already be difficult or even traumatic. 

Previously, the system was already set up to punish a parent that stated repeated fraudulent allegations against a partner during a custody claim. In 2016, Foster sponsored a bill, which passed, that lowered the bar: “one or more” fraudulent allegations, as determined by a judge, could derail a parent’s claim for custody.

Yedlosky said the 2016 bill “didn’t have as much of a chilling effect” as her group feared. And ultimately, she’s found that abusers are as, if not more, likely to make false allegations than victims are to be accused of them.

Still, a presumption of 50/50 custody may raise the bar for what victims have to prove. If split custody is the standard, then anyone asking for something different, without an amicable agreement in place, will have to prove why that is best.

And recent reporting by ProPublica has shown the damages that making such claims against abusers can have on women seeking custody, and how judges frequently dismiss them.

Foster contends that the new bill already lists abuse as a factor that a judge can point to to deny equally shared custody in such cases. And, he said, in the majority of cases, equal custody is what’s best for kids.

Dave McMahon, a lawyer who used to work with low-income clients going through divorces and domestic abuse, said that the new standard doesn’t take into account past behavior and parents’ ability to take care of a child, which a judge should be able to factor into a decision.

“The best way to predict human behavior is past behavior,” McMahon said. And in his experience, “a lot of people that got 50/50 didn’t exercise it. The result being I had clients call me saying, you know, ‘the father didn’t show up and my child’s crying.’”

Last year, lawmakers on the Senate Judiciary Committee took the 50/50 provision out of the bill. Committee Chairman Charles Trump, R-Morgan, was unable to answer questions about this year’s bill before publication. But committee member Mike Woelfel, D-Cabell, said part of the measure’s newfound support in the Senate came down to the removal of a provision in last year’s bill that would have allowed old custody battles to be reopened with the new presumption in law. Woelfel did not ultimately vote for either version.

The bill has been sent to the full House floor for a vote. After that, any amendments would have to be confirmed by the Senate.

Ian Karbal is a Report for America corps member, and the state government watchdog reporter for Mountain State Spotlight.