How Much a Child's Preference Counts in West Virginia Custody

Attorney Answer

What you want does matter, and once you are 14 a court has to weigh it — but it does not by itself decide where you live. And if the person you want to live with is not one of your parents, an entirely different law applies.

Since the 2022 amendments, W. Va. Code § 48-9-102a creates a rebuttable presumption in favor of equal, 50-50 allocation of custodial responsibility between parents. W. Va. Code § 48-9-209, "Parenting plan; considerations," supplies the grounds for departing from that presumption. The child-preference provision is § 48-9-209(f)(5)(E), which allows an allocation to depart from equal where it would be "contrary to the firm and reasonable preferences of a child who is 14 years of age or older; and to accommodate, if the court determines it is in the best interests of the child, the firm and reasonable preferences of a child under 14 years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent."

So the answer depends partly on age. At 14 or older, a firm and reasonable preference is a stated statutory ground for departing from equal time. Under 14, it counts if the court finds you mature enough to express a voluntary preference and that following it serves your best interests. Either way, it is one consideration among several — not the deciding vote, and not something that overrides everything else a judge is weighing. W. Va. Code § 48-9-303 governs how a court may interview a child about these matters.

Here is the part that most likely applies to you. That whole framework divides responsibility between parents. If the person you want to live with is a grandparent, an aunt or uncle, an older sibling, or a family friend, § 48-9-209 does not reach that situation at all. That is a minor guardianship question under W. Va. Code § 44-10-3, and the request has to be filed by the adult who wants to take you in — it is not something you can file yourself.

One more thing, and it matters more than any of the above. If "my home life isn't good" means someone is hurting you, or you do not have food, supervision, or a safe place to sleep, that is not a custody question and it should not wait for a court schedule. Tell a school counselor, a teacher, or another adult you trust, or call West Virginia's child abuse and neglect hotline. If you are in danger right now, call 911.

What you can do

1. Write down who you want to live with, and whether that person is one of your parents. That single fact decides which law applies. 2. If it is a parent, tell that parent to ask their attorney about W. Va. Code § 48-9-209(f)(5)(E) and about whether the court will interview you under W. Va. Code § 48-9-303. 3. If it is not a parent, that adult needs to file for minor guardianship under W. Va. Code § 44-10-3. Ask them to talk to a family lawyer or legal aid about how to start it. 4. If there is already a family court case, ask whether a guardian ad litem has been appointed for you. That person's job is to bring your position to the judge. 5. Keep a private, dated note of what is happening at home — specific things that happened and when, not how you felt about them. Specifics are what a court can act on. 6. Talk to your school counselor. They can connect you to help and they are used to this exact conversation. 7. If you are unsafe, tell an adult at school today rather than waiting for any legal process.