West Virginia’s New Child Custody Law: Rebutting the 50/50 Presumption

West Virginia’s 50/50 custody law creates a rebuttable presumption that splitting parenting time equally between both parents is in a child’s best interests. It was enacted in 2022 as part of the Best Interest of the Child Act and is codified at West Virginia Code 48-9-102a.¹ Either parent can defeat that presumption, but only by putting evidence in front of the court. The standard is preponderance of the evidence: the challenging parent has to show it is more likely than not that equal time would not serve the child.

That is the whole rule in one paragraph, but the consequences run in several directions. What counts as evidence strong enough to rebut it. What the court orders when the presumption fails. Whether the law lets you reopen an old custody order. How equal parenting time changes child support. What happens when one parent wants to move. Each of these has a specific answer under the statute, and some of them cut against what parents commonly assume.

What It Takes To Rebut the Presumption

The court does not weigh 50/50 against some open-ended list of concerns. West Virginia Code 48-9-209 identifies specific limiting factors, and when any of them applies to a parent or to someone regularly living in that parent’s household, the court must impose protective limits on that parent’s custodial time.² The factors are:

Abuse, neglect, or abandonment of the child, as defined by state law
Domestic violence against a family member
Sexual abuse or assault of a child
Interference with the other parent’s rights, meaning repeated blocking of visitation, undermining custodial time, or sabotage of the parent-child relationship
Filing fraudulent reports of domestic violence or child abuse, though withdrawing or not pursuing a report does not by itself make the report fraudulent

Once the court finds one of these factors, its response is not fixed. It can require supervised exchanges, restrict overnight stays, order drug or alcohol testing, mandate counseling, require a bond guaranteeing the child’s return after visits, or reallocate custody entirely to the other parent.² The measure has to fit the risk.

General disagreement about parenting styles, work schedules that make an even split awkward, or a preference on the child’s part are not on this list. That does not mean they never matter, because the court still builds a schedule that fits the child’s life. But if you are trying to defeat 50/50 outright, you are working from this set of concerns.

What the Court Orders When 50/50 Is Rebutted

Rebutting the presumption does not hand full custody to the other parent. When the court decides equal time is not appropriate, it is directed to build a schedule that gives each parent as much time as possible while protecting the child’s welfare.¹ In practice, that pushes courts toward the closest workable split rather than a traditional primary-parent-with-weekend-visits arrangement.

The court considers the child’s age, emotional needs, bonds with each parent, work schedules, school locations, and the distance between the parents’ homes. When parents live far apart, the arrangement may lean on extended blocks during summers and school breaks rather than a weekly rotation. Video calls can supplement in-person time but do not replace it.

Decision-making authority is a separate question from parenting time. Under West Virginia Code 48-9-206, the court looks at each parent’s history of involvement in major decisions and whether either has tried to exclude the other, and it can assign sole authority in specific areas if the record supports it.³ A parent can lose disproportionate parenting time and still share major decisions, or hold equal parenting time and lose decision-making authority on a specific issue like education or medical care.

Does the New Law Let You Reopen an Existing Custody Order?

No, not on its own. The 2022 amendments explicitly state that their enactment does not constitute a change in circumstances for modification purposes.⁴ If your custody order was entered before the 50/50 presumption took effect, you cannot walk into court, point at the new statute, and ask for a fresh allocation. You still need an independent substantial change in circumstances under the modification rules.

This is the single most common misunderstanding about the 2022 law. It changed how new cases start; it did not open the door to relitigation of existing orders.

How Equal Parenting Time Affects Child Support

Equal parenting time does not eliminate child support. West Virginia Code 48-13-502 provides a specific extended shared parenting worksheet for cases where both parents have significant overnight time.⁵ The calculation counts each parent’s overnights per year, divides by 365 to produce a percentage, and uses those percentages to adjust the basic support obligation.

The formula also applies a 1.6 multiplier to the basic obligation before dividing it. That reflects the reality that maintaining two homes that can each house the child costs more than maintaining one. When the parents earn different incomes, the higher earner usually still pays support, though less than they would in a primary-custodian arrangement. A 50/50 schedule shrinks the check; it does not zero it out.

Relocation: The Biggest Practical Threat to a 50/50 Order

Equal parenting time depends on the parents living close enough to make an even split workable. Relocation is where those arrangements come apart, and West Virginia regulates it tightly. A parent who wants to move must file a verified petition with the court at least 90 days before the planned move, and the other parent must be served at least 60 days in advance.⁶ The petition must state the moving date, the new address, the specific reasons, and a proposed revised parenting schedule.

The court holds a hearing at least 30 days before the proposed move and tries to revise the plan in a way that preserves the proportion of time each parent had before. It can also allocate the added transportation and communication costs between the parents.⁶

A relocation qualifies as a substantial change in circumstances whenever it impairs either parent’s ability to exercise custodial responsibilities. Skipping the 90-day notice can itself be treated as evidence of bad faith. A parent who bypasses the process risks losing primary custody, paying the other side’s attorney fees, and having the relocation denied outright.⁶

Modifying a 50/50 Order Later

Once a 50/50 order is in place, changing it works the same way as modifying any other parenting plan. Under West Virginia Code 48-9-401, the parent seeking modification must show a substantial change in circumstances since the last order and that the modification serves the child’s best interests.⁷ The change must involve facts that did not exist or were not anticipated when the order was entered.

The statute is explicit that several common life events do not qualify unless the child is being harmed:

Involuntary job loss or a drop in income does not, by itself, justify changing custody.
Remarriage or moving in with a new partner is not grounds for modification unless the new household creates a specific risk to the child.
Enrolling the child in daycare or hiring a babysitter is not a basis for reopening custody.

These exclusions exist to prevent every life transition from becoming a fresh custody fight. On the other side, the appearance or worsening of a limiting factor under 48-9-209, such as abuse, neglect, domestic violence, or interference with parental rights, automatically qualifies as a substantial change and triggers protective measures.⁷

There is one shortcut around the changed-circumstances requirement. Under West Virginia Code 48-9-402, if the child has actually been living in the petitioning parent’s care in a way that substantially deviates from the existing plan for at least six months, and the other parent did not object during that time, the court can formalize the arrangement without a separate showing of changed circumstances.⁸ The exception does not apply when the other parent’s acquiescence resulted from domestic abuse. In effect, a 50/50 order that has quietly become something else on the ground can be brought into line with reality.

Emergency Situations

When a child present in West Virginia faces abandonment, mistreatment, or abuse, a court can exercise temporary emergency jurisdiction and enter a protective order immediately, even if another state technically has jurisdiction over the underlying custody case.⁹ Emergency orders are temporary by design and stay in effect only until the court with primary jurisdiction issues its own order. The 50/50 presumption does not override this authority; child safety comes first.

Enforcement Cuts Both Ways

A 50/50 order is a court order. A parent who repeatedly denies the other their scheduled time or refuses to follow the plan can be brought back to court on a motion to enforce. Courts have broad remedies, including make-up parenting time, fines, adjustments to the custody allocation, and contempt findings. Repeated violations can result in supervised exchanges or supervised visitation for the noncompliant parent.²

Your own compliance record also matters when you ask the court for anything later, whether that is a modification, a relocation approval, or additional parenting time. A history of following the plan builds credibility. A history of ignoring it undermines every future request.

1
West Virginia Legislature. West Virginia Code 48-9-102a – Presumption in Favor of Equal (50-50) Custodial Allocation
2
West Virginia Legislature. West Virginia Code 48-9-209 – Parenting Plan; Considerations
3
West Virginia Legislature. West Virginia Code 48-9-206 – Allocation of Custodial Responsibility at Final Hearing
4
West Virginia Legislature. West Virginia Code 48-9-603 – Effect of Enactment; Operative Dates
5
West Virginia Legislature. West Virginia Code 48-13-502 – Extended Shared Parenting Worksheet
6
West Virginia Legislature. West Virginia Code 48-9-403 – Relocation of a Parent
7
West Virginia Legislature. West Virginia Code 48-9-401 – Modification Upon Showing of Changed Circumstances or Harm
8
West Virginia Legislature. West Virginia Code 48-9-402
9
West Virginia Legislature. West Virginia Code 48-20-204 – Temporary Emergency Jurisdiction