Getting a Custody Order in Place During a Pending Divorce

Attorney Answer

A letter between the two of you will not do what you need. What you want is a temporary parenting plan filed as a motion in the divorce case — a court order the judge can enforce, not a private agreement he can ignore.

The difference matters enormously. A notarized letter is a piece of paper; if he keeps your daughter anyway, you have nothing to take to a judge and no penalty to ask for. A temporary parenting order is a court order, and violating it has consequences.

West Virginia gives you a specific route. Under W. Va. Code § 48-9-203, "[a] parent seeking a temporary order relating to parenting shall file and serve a proposed temporary parenting plan by motion." The court then enters a temporary order applying the criteria in W. Va. Code § 48-9-204. Because a divorce is already pending, W. Va. Code § 48-5-501 separately authorizes relief that may be included in a temporary order of divorce, governing the parties' rights while the case is going on.

Once a plan is entered, it is enforceable. W. Va. Code § 48-9-501 applies where the court finds a parent "intentionally and without good cause violated a provision of the court-ordered parenting plan," and it lets the court order substitute time to make up what was missed, costs recognizing lost opportunities and child care costs, modification of the plan where the criteria are met, counseling for the violating parent, civil penalties of up to $100 for a first violation, $500 for a second and $1,000 or more for later ones, and court costs and reasonable attorney's fees for enforcing the plan. That is the protection you are asking for, and it only exists once there is an order.

One practical note: since he filed, there is a deadline for your response somewhere in the papers you were served. Missing it can let the case proceed on his terms alone, including on custody.

What you can do

1. Find the divorce papers you were served and check the deadline to respond. Calendar it today. 2. Write out the schedule you actually want — which days and times, exchange locations, holidays, school breaks, and how communication works. That draft becomes your proposed temporary parenting plan. 3. File and serve a motion with your proposed temporary parenting plan under W. Va. Code § 48-9-203. Do not wait for the divorce to progress; the temporary order is what governs in the meantime. 4. Write down every time he has withheld your daughter, with dates, and keep the messages. That record supports both the temporary order and any later enforcement. 5. Ask the circuit clerk about the self-help or family court forms available in your county, and about legal aid if you cannot afford a lawyer. 6. Keep exchanges in writing and keep them civil. Everything you send can end up in front of the judge.