Establishing Paternity and West Virginia Custody Jurisdiction

Attorney Answer

Until paternity is legally established, you have no enforceable custody rights to enforce — so the paternity case comes first, and where you file it decides which state controls your son's custody for years.

Parentage. W. Va. Code § 48-24-101 et seq. governs establishing paternity in West Virginia. A paternity proceeding is a summary, equitable proceeding within the family court's domestic relations jurisdiction, brought to determine and protect the rights of a child for whom paternity has not been lawfully established. It can be commenced by, among others, a man who believes he is the biological father where no prior judicial determination exists. That is you. Before you file, ask the family court clerk whether an acknowledgment already on file has established paternity — if one has, your case is a custody case, not a paternity case, and you should not spend months on the wrong petition.

Jurisdiction. Under West Virginia's version of the UCCJEA, W. Va. Code § 48-20-201, a West Virginia court has jurisdiction to make an initial custody determination if West Virginia is the child's home state on the date the proceeding commences, or was the child's home state within six months before it commenced and a parent or person acting as a parent still lives here. "Home state," defined at W. Va. Code § 48-20-102, means the state where the child lived with a parent for at least six consecutive months immediately before the proceeding began — or since birth, for a child under six months old. If no state qualifies as home state, or the home state declines, § 48-20-201 supplies alternative bases, including significant-connection jurisdiction and a default provision.

Read that against your facts honestly. Your son was with you for over six months, but you then moved to a two-week rotation with his mother. What the court looks at is the six months immediately before you file — not the earlier stretch. If the rotation has broken up any six-month block, neither state may be a home state, and you may be arguing significant connection instead. That is winnable, but it is a different argument, and it is a reason to file sooner rather than later.

What you can do

1. Write out a residence timeline with dates — where your son slept, in which state, from when to when, for the last two years. This document decides the jurisdiction question. 2. File a paternity petition in family court under W. Va. Code § 48-24-101 et seq., and ask for genetic testing in the petition if parentage is disputed. 3. In the same case, ask for an order allocating custodial responsibility. Establishing paternity alone gives you a legal father-child relationship, not a parenting schedule. If you do not ask, you will not get one. 4. Plead the jurisdictional facts expressly — the home-state dates, and where each parent lives now. Do not leave the court to guess. 5. Do not withhold your son to manufacture a home state. Self-help before an order exists is remembered by judges and can cost you far more than it gains. 6. If his mother files first in another state, respond immediately and do not ignore the papers. Jurisdiction is measured from the date a proceeding commences, so a default in her state can end the fight before it starts.