Changing Which Parent a Child Lives With in West Virginia

Attorney Answer

A child cannot move from one parent's home to the other's on their own. Only a court can change a custody order, and only a parent can ask it to.

If a court order already sets out where you live, W. Va. Code § 48-9-401(a) is the rule that governs changing it. A court shall modify a parenting plan only if it finds, on facts not known or that have arisen since the last order and were not anticipated in it, that a substantial change has occurred in the circumstances of the child or of one or both parents, and that the change is necessary to serve the child's best interests. There is a narrower path in § 48-9-401(b), which allows modification in exceptional circumstances where the existing plan is manifestly harmful to the child even without a substantial change.

If both of your parents agree, it is simpler — but it still has to go through the court. W. Va. Code § 48-9-402 provides that a court shall modify a parenting plan in accordance with a parenting agreement unless it finds the agreement is not knowing and voluntary or that it would be harmful to the child. In plain terms: an agreement between your parents becomes enforceable when a judge signs it. Until then, the old order is still the order, and an informal side arrangement does not replace it if either parent later objects.

How much weight a judge gives what you want depends on your age and maturity and is decided case by case. Your preference is something the court can hear. It does not decide the case by itself.

What you can do

1. Tell both parents, plainly and calmly, what you want and why. Give reasons a judge would recognize — school, who is home after school, how you get to activities, how you are doing. 2. If they agree, ask your mom to have a written parenting agreement filed with the family court that issued the current order, and to get the judge to sign it. Do not treat a verbal "okay" as the end of it. 3. If they do not agree, your mom is the one who files a petition to modify, and she will have to show a substantial change in circumstances since the last order. 4. Do not just move. Staying at your mom's without a court order can be treated as a violation of the existing order and can create legal trouble for her, which hurts your case rather than helping it. 5. Write down concrete facts with dates rather than general feelings — missed school, who handles medical appointments, who is home at night. 6. If you are being hurt, threatened, or are not safe, do not wait for any of this. Tell a school counselor, a teacher, or another trusted adult immediately, or call the West Virginia child abuse and neglect hotline at 1-[phone withheld].