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daughter is living in west virginia and filing for divorce

; they have one son...
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.
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Answered in 20 minutes by:
11/1/2010
RobertJDFL
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 14,037
Experience: Experienced in multiple areas of the law.
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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.

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RobertJDFL
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 14,037
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