WV Code § 48-9-206 (2021)
2021 West Virginia Code|Chapter 48. Domestic Relations|Article 9. Allocation of Custodial Responsibility and Decision-Making Responsibility of Children|§48-9-206. Allocation of Custodial Responsibility

(a) Unless otherwise resolved by agreement of the parents under 48-9-201 of this code or unless harmful to the child, the court shall allocate custodial responsibility so that, except to the extent required under 48-9-209 of this code, the custodial time the child spends with each parent may be expected to achieve any of the following objectives:(1) To permit the child to have a meaningful relationship with each parent who has performed a reasonable share of parenting functions;(2) To accommodate, if the court determines it is in the best interests of the child, the firm and reasonable preferences of a child who is 14 years of age or older; and to accommodate, if the court determines it is in the best interests of the child, the firm and reasonable preferences of a child under 14 years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent;(3) To keep siblings together when the court finds that doing so is necessary to their welfare;(4) To protect the childs welfare when, under an otherwise appropriate allocation, the child would be harmed because of a gross disparity in the quality of the emotional attachments between each parent and the child, or in each parents demonstrated ability or availability to meet a childs needs;(5) To take into account any prior agreement of the parents that, under the circumstances as a whole, including the reasonable expectations of the parents in the interest of the child, would be appropriate to consider;(6) To avoid an allocation of custodial responsibility that would be extremely impractical or that would interfere substantially with the childs need for stability in light of economic, physical, or other circumstances, including the distance between the parents residences, the cost and difficulty of transporting the child, the parents and childs daily schedules, and the ability of the parents to cooperate in the arrangement;(7) To apply the principles set forth in 48-9-403(d) of this code if one parent relocates or proposes to relocate at a distance that will impair the ability of a parent to exercise the amount of custodial responsibility that would otherwise be ordered under this section; (8) To consider the stage of a childs development; (9) To consider which parent will encourage and accept a positive relationship between the child and the other parent, including which parent is more likely to keep the other parent involved in the childs life and activities; (10) To take into account the preference that time allocated to the parent resulting in the child being under the care and custody of that parent is preferred to time allocated to the parent resulting in the child being under the care or custody of a family member of that parent or a third party; and(11) To allow reasonable access to the child by telephone or other electronic contact, which shall be defined in the parenting plan. (b) The court may consider the allocation of custodial responsibility arising from temporary agreements made by the parties after separation if the court finds, by a preponderance of the evidence, that such agreements were consensual. The court shall afford those temporary consensual agreements the weight the court believes the agreements are entitled to receive, based upon the evidence. The court may not consider the temporary allocation of custodial responsibility imposed by a court order on the parties.(c) If the court is unable to allocate custodial responsibility under 48-9-206(a) of this code because the allocation under 48-9-206(a) of this code would be harmful to the child, or because there is no history of past performance of caretaking functions, as in the case of a newborn, or because the history does not establish a pattern of caretaking sufficiently dispositive of the issues of the case, the court shall allocate custodial responsibility based on the childs best interest, taking into account the factors in considerations that are set forth in this section and in 48-9-209 and 48-9-403(d) of this code and preserving to the extent possible this sections priority on the share of past caretaking functions each parent performed: Provided, That if either parent or both has demonstrated reasonable participation in parenting functions as defined in 48-1-235.2 of this code, the court cannot rely solely on caretaking functions, and shall consider the parents participation in parenting functions.(d) In determining how to schedule the custodial time allocated to each parent, the court shall take account of the economic, physical, and other practical circumstances such as those listed in 48-9-206(a)(6) of this code.(e) In the absence of an agreement of the parents, the courts determination of allocation of custodial responsibility under this section shall be made pursuant to a hearing, which shall not be conducted exclusively by the presentation of evidence by proffer. The courts order determining allocation of custodial responsibility shall be in writing, and include specific findings of fact supporting the determination.