Brand New WV Custody and Alimony Law

Note to my readers: I apologize for the limited nature of this post, but it is the end of a long week, and I need time to digest these major revisions to West Virginia’s Child Custody and Alimony Laws. This is a first impression.

I am told that Senate Bill 51, which you can Google, has been signed into law. I don’t know when it goes into effect.

I reserve personal judgment on this law, which will impact the majority of my work days so long as it is in effect.

The revisions are to WV Code Article 46, Chapter 6, Section 301, and 48-9-205 and 48-9-206.

Things I notice immediately: I do not see “inequitable conduct” as a ground for increasing or decreasing the amount of alimony. There are 18 other factors which seem to be the old ones, length of marriage, incomes of the parties, health of the parties, age of the parties, etc. But, Para. 20 allows the court to consider, “..any other factors the court determines necessary or appropriate to consider in order to arrive at a fair and equitable grant of spousal support and separate maintenance.”

That seems to leave the door open to a court who deems infidelity or spouse beating to be “necessary or appropriate to consider”.

On the custody side, I consider this to be a big win for the “men’s rights movement”. The requirement that the court consider the apportionment of “caretaking functions” performed by the parents or third parties (grandparents, day care, etc.) prior to separation is gone, as is the provision that temporary arrangements entered into after separation but before suit is filed cannot be considered by the court. Now, apparently they can.

It does seem to elevate “best interests of the child”, which seems like a good thing, but my guess is, “the devil is in the details”.

This law evaded my radar even though I am on the WV State Bar Board of Governors, the Family Law Committee, the Family Court Mediation Subcommittee, the Future of the Law: Technology Committee and The WV Association for Justice Board of Governors.

I did track two prior bills; one I labeled the “One Size Fits All and the C hildren Can Go to Hell” bill; the other was the one that favored, “the parent best able to involve the other parent in the life of the child”.

I tried to paste the urls of those articles here, but the full preview of the site appeared. So, just go to hit the tab to search my blog and enter “custody”; you will find 67 articles including the two  listed above, plus “The Maze of Child Custody in WV”, which will now have to be revised. (Drats!), and my “Winning Your Child Custody Case” and “Winning Your Custody Case II”. The last two define “winning” as involving the other parent and learning to co-parent as the definition of “winning”.

This new law has that language about involving the other parent, so something has been in the works for at least the last 2-3 legislative-sessions.

Any lawyer who has paraded family, friends, teachers, doctors, neighbors, and hired shills (no I never hired any), to lie (I mean testify) to the incredible, sensitive, attentive, and competent parenting skills of their client, won’t miss day-long hearings on the percentage of caretaking functions testimony.

But, since the history of parenting still has relevance, it may be wishful thinking that we can avoid those days.

I think that the ability of parents, primarily mothers, to move to another state with the children will be impaired because I did not see the former provision granting a “presumption” to a parent who already was awarded “the substantial majority of caretaking”, which was defined as 70% or more of the child’s overnight time. This could have a huge adverse impact on women.

It seems like an artificial standard, as are the rules of baseball. But, giving that parent the presumption, and denying it to parents with less than 70% provided some predictability which may soon be lost.

I am going to post this quickly and copy it to one of the co-sponsors and authors of the bill and see what he has to say. I have removed his name from above and will attribute only if he says it is ok. I believe he worked hard to moderate the bill which might have had “Draconian” impact on WV child custody.

But, as a guy who represents mothers and fathers, my simple preliminary conclusion is that the old law was not perfect, but it did tend to favor the nurturing “hands-on parent”, and value those hands-on moments better than “bringing home the bacon”, protecting the house from intruders, and playing with the kids when it was convenient.

So,  over the last 40 years, we went from ther “presumption” in favor of mothers, to the “primary caretaker rule”, which also favored mothers more often than not, to a consideration of “caretaking functions” during the two years prior to separation, which also tended to favor mothers, to this new version which I believe will be used by its proponents to say that the default should be co-equal, 50% – 50% caretaking. If that’s the law, so be it.

I will play that card for my male clients if they truly believe 50% – 50% is best for their child and are committed to being a caretaker.  (Caveat: remember, “Be careful what you ask for.; you just might get it!”)And I will fight like the dickens for what we used to call “the 90% mother”, staying at home, loving, conscientious, and devoted.

Most of all, I hope that the best interests of the children will be the top priority. My biggest worry is that this will become known as the, “Girlfriends and Paternal Grandmother Custody Law.”

They say, “If it ain’t broke, don’t fix it.” I wonder if that maxim will apply to this new law. I suspect it will have ramifications way beyond what I can tell from three quick readings of this law.

I am also told a formula of sorts, like the one used for child support, will be used in the future to calculate alimony. That’s is something that has long been needed.

I will update this as information becomes available.

This post was written by Burton Hunter

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