How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask RobertJDFL Your Own Question
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 13153
Experience:  Experienced in multiple areas of the law.
Type Your Family Law Question Here...
RobertJDFL is online now
A new question is answered every 9 seconds

daughter is living in west virginia and filing for divorce

This answer was rated:

daughter is living in west virginia and filing for divorce ; they have one son, age 18 months, and both of them want custody of the child. due to financial constraints, our daughter agreed to let her husband take their son to virginia because of the terminal illness of his mother.....the husband and son stayed in virginia for about 6-7 months, with sporatic travels back to west virginia for visits to our daughter. my daughter makes about 800.00 a month at her job....her husband however is not working but going to school for medical assisting and will graduate in January 2011. my daughter is worried that she will lose custody of her son because over the past year, she has shared the care of her son with her husband. can you give us some hope in this situation? My daughter does not do drugs, and is planning to attend nursing school January 2011 to become a registered nurse. She is also an Iraqi War veteran. Thank You.
Good afternoon, thank you for your question.

Although a court looks at a number of factors when deciding child custody cases, ultimately it comes down to what they believe is in the "best interest" of the child. West Virginia Code Sections 48-9-101 and 48-9-102 specifically provide:

he Legislature finds and declares that it is the public policy of this state to assure that the best interest of children is the court's primary concern in allocating custodial and decision-making responsibilities between parents who do not live together. The primary objective of this article is to serve the child's best interests, by facilitating:
  • Stability of the child
  • Parental planning and agreement about the child's custodial arrangements and upbringing.
  • Continuity of existing parent-child attachments.
  • Meaningful contact between a child and each parent.
  • Care-taking relationships by adults who love the child, know how to provide for the child's needs, and who place a high priority on doing so.
  • Security from exposure to physical or emotional harm.
  • To achieve fairness between the parents (this is a secondary objective).
The court will review the following factors to determine a child's best interests -note that this is not an exclusive list:
  • The child's wishes (not applicable here because the child is too young)
  • The parents' wishes
  • The parents' prior agreement
  • Each parent's involvement in past child-rearing responsibilities

In West Virginia, the court's objectives in determining child custody based on a child's best interests are:

  • The stability of the child
  • Regular contact between the child and each parent
  • The emotional and physical well being of the child
Here, it is not as if your daughter simply abandoned the child, she allowed her husband to take the child to see his grandmother while she was dying, and remained in contact with the child. The court also looks to see who is the primary caregiver for the child. Who handled the daily care and support for the child overall during the marriage? If this was your daughter, it puts her in a very strong position to argue that this should be allowed to continue. Furthermore, the husband isn't working, while your daughter is, so she is able to meet the needs of the child now, while the husband must still finish schooling and then find work in his field. Presumably, the child already has a room with clothing, toys, etc. and an established environment with the mother where he has lived the majority of his life. To put it another way, what location will provide the best environment for the child's physical, mental and emotional well being?

Is the father abusive in any way to the child? Does he abuse alcohol or drugs? Has he ever been violent? All of these can be used as factors to demonstrate why the child should be with the mother.

Lastly, the court wants to ensure that the child live with the parent who will encourage and foster an open and ongoing relationship with the non-custodial parent. If the father is so stubborn as to not even try to negotiate a parenting plan, it seems obvious that his true intention is to try to avoid paying child support. And judges aren't stupid -his animosity and his motives will be obvious to the judge who has surely seen this before.

The botXXXXX XXXXXne is just because your daughter allowed her husband to take the child to another state does not mean the court will not give her custody.

I hope this information is helpful. If you have follow-up questions or need additional clarification, please click reply and I will be happy to assist you further.

PLEASE HONOR THE HONOR CODE. Please click on the ACCEPT BUTTON for my answer. This is necessary for me to be paid for my work and so that I can get credit for assisting you-no payment for my time and effort is made until you click accept (even if you put down a deposit or have a subscription). A BONUS TIP is also appreciated. Your question will not close, and you will still have the opportunity to follow-up if needed. Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated!

Remember that the correct answer is not necessarily always the one you may want to read, but it is important that I give you the most legally correct answer for your situation based on the facts you have provided, so please be courteous when deciding whether to accept an answer and when leaving feedback.

DISCLAIMER: This response is limited by the information that you have provided to this lawyer. Based on the information you have provided, I have responded based on my knowledge and interpretation of existing laws. It is possible that if the same question was asked to another lawyer, the response could be different. This response is for "Legal Informational" purposes only and should not be confused with "Legal Advice" and nothing in this response should be construed as legal advice for any individual case. Under no circumstances does this response directly or indirectly, establish or intend to establish an Attorney-Client relationship. This response is not and shall not be construed as a solicitation for the legal services of any attorney. If you have already retained a lawyer in connection with this inquiry and this fact is unknown to this lawyer, this response should not be construed as impending and/or interfering with your attorney-client relationship with such attorney.

This information is limited in scope and is confined to the question asked and should not be relied upon to provide a comprehensive picture of any particular situation and you are strongly encouraged to seek counsel for further course of action, if applicable. In other words, this response is not intended nor shall it be construed as providing you with all the information that your legal questions/issues may require. If you do require legal advice and retention/hiring of an attorney, I encourage you to consult an attorney who is actively engaged in the practice of law in the area of law relevant to your legal questions/issues and who is admitted to the bar or lawyer licensing agency in your jurisdiction(s) or the jurisdiction(s) that has jurisdiction over your legal questions/issues. This attorney is not responsible for any loss, injury, claim, liability, or damage related to your use of this response, whether from errors or omissions in the content of the response or any other sites that I may provide to you for reference.
RobertJDFL and 8 other Family Law Specialists are ready to help you