Express Findings and Maximization Required to Deviate from West Virginia’s Statutory 50/50 Custody Presumption

Express Findings and Maximization Required to Deviate from West Virginia’s Statutory 50/50 Custody Presumption

Introduction

In In re R.L., No. 24-395 (W. Va. Sept. 30, 2025), the Supreme Court of Appeals of West Virginia vacated a Tyler County circuit court’s order that awarded the mother primary custodial responsibility and left the father’s parenting time to the child’s discretion, with an accompanying child support award. The high court held that the circuit court failed to apply or even discuss the governing statutory framework—most notably West Virginia Code § 48-9-102a’s rebuttable presumption favoring equal (50/50) custodial allocation—and failed to make the statutorily required specific findings and conclusions supporting any deviation from equal time. The Court remanded with directions to undertake the proper statutory analysis and to enter a new order containing the required findings.

The case arises out of a 2019 abuse and neglect action (the specifics of which were not included in the appellate appendix), followed by a 2020 order awarding equal shared custody. In 2023, the mother petitioned to modify both parenting time and child support, asserting the father had largely ceased exercising custodial time for approximately a year and was minimally involved. After a 2023 hearing, the circuit court granted the mother primary custody and ordered the father to pay support, limiting the father’s parenting time to occasions when the child, then 13 and “almost 14,” wished to see him. The father appealed, arguing that the refusal to preserve equal custodial time disregarded mandated statutory factors.

The Supreme Court concluded that the circuit court’s order could not stand because it omitted any analysis of, or findings under, the controlling statutes: § 48-9-102a (50/50 presumption and maximization requirement); § 48-9-206(d) (specific written findings requirement); and § 48-9-209(f) (relevant factors for rebutting the presumption). Two members of the Court dissented from the form of disposition, stating that the case merited oral argument and a formal written opinion rather than a memorandum decision under Rule 21(d).

Summary of the Opinion

The Supreme Court vacated the circuit court’s “Final Order Modifying Parental Time,” holding:

  • The circuit court did not engage with West Virginia Code § 48-9-102a, which establishes a rebuttable presumption that equal (50/50) custodial allocation is in a child’s best interests and requires courts to start from that presumption.
  • The circuit court failed to make written, specific findings of fact and conclusions of law explaining why a deviation from equal allocation was justified, as required by § 48-9-206(d).
  • The court did not evaluate the relevant statutory factors under § 48-9-209(f) to determine whether, and why, the 50/50 presumption was rebutted. Although the circuit court alluded to the father’s limited involvement, it made no comprehensive factor-based findings and never tied its conclusions to the statutory scheme.
  • Even if the presumption is rebutted, § 48-9-102a obliges the court to “construct a parenting time schedule which maximizes the time each parent has with the child” consistent with the child’s welfare. By delegating the father’s parenting time entirely to the child’s wishes, the circuit court did not satisfy this maximization mandate and failed to explain how such an arrangement met the statutory standard.

Because the order lacked the necessary analysis and findings, meaningful appellate review was impossible. The Supreme Court therefore vacated and remanded with directions to enter a new order applying the statutes, considering all relevant § 48-9-209(f) factors, and supplying specific written findings and conclusions.

Analysis

Precedents and Authorities Cited

  • Syl. Pt. 1, In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015) (quoting Syl., McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996)):
    Establishes the standard of review: abuse of discretion for the ultimate disposition; clearly erroneous for factual findings. This underscores why the absence of findings is fatal—without them, the appellate court cannot assess whether there was an abuse of discretion or clear error.
  • In re D.S., 251 W. Va. 466, —, 914 S.E.2d 701, 707 (2025):
    Recently emphasized that § 48-9-102a’s equal custodial allocation presumption is the “starting point” in custody allocation decisions. Also clarified that courts must consider “all relevant factors” listed in § 48-9-209(f) when deciding whether the presumption has been rebutted. In re R.L. relies on and applies In re D.S. to insist on adherence to the statutory framework.
  • Province v. Province, 196 W. Va. 473, 473 S.E.2d 894 (1996):
    Requires orders to contain sufficient findings and legal reasoning to permit meaningful appellate review. In re R.L. invokes Province to justify vacating where the lower court’s order lacks the necessary factual and legal predicate.
  • Kane M. v. Miranda M., 250 W. Va. 701, 908 S.E.2d 198 (Ct. App. 2024):
    The Intermediate Court of Appeals similarly remanded where the lower court deviated from the 50/50 presumption without adequate explanation. This demonstrates consistency across West Virginia’s appellate courts: deviations must be justified with specific findings.
  • Fabiano D. v. Dylan Y., No. 24-ICA-77, 2024 WL 4590062 (W. Va. Ct. App. Oct. 28, 2024) (memorandum decision):
    Vacated a custodial allocation due to insufficient findings supporting deviation from equal custody, stressing the essential need to articulate findings and reasoning. In re R.L. draws on this line of cases to emphasize the same.
  • Sylvia L. v. Gerald P., No. 24-ICA-332, 2025 WL 1249409 (W. Va. Ct. App. Apr. 29, 2025) (memorandum decision):
    Vacated an order awarding no parenting time where the court failed to expressly consider whether the plan maximized the parent’s time under § 48-9-102a. In re R.L. parallels this point: tying parenting time to a child’s unilateral choice without a maximization analysis is error.
  • West Virginia Code § 48-9-102a:
    Establishes a rebuttable presumption that equal (50/50) custodial allocation is in the child’s best interests. If rebutted, absent full parental agreement, the court must create a schedule that maximizes each parent’s time consistent with the child’s welfare. In re R.L. enforces both components: presumption as starting point and maximization after any rebuttal.
  • West Virginia Code § 48-9-206(d):
    Requires written orders with specific findings of fact and conclusions of law supporting custodial allocation determinations. The omission of such findings required vacatur.
  • West Virginia Code § 48-9-209(f):
    Enumerates the “relevant factors” to consider when determining whether the presumption is rebutted. In re R.L. notes the circuit court failed to make findings under these factors and specifically references § 48-9-209(f)(3)(D) (intentional avoidance or refusal of involvement) as one potential consideration that, standing alone, is insufficient without analyzing the other required factors.

Statutory Framework and the Court’s Legal Reasoning

1) The 50/50 presumption is the starting point. Section 48-9-102a codifies a default baseline: courts begin with the assumption that equal custodial allocation serves the child’s best interests. In re D.S. emphasized this “starting point,” and In re R.L. applies it. A court cannot leap to primary custody without first acknowledging and analyzing the presumption.

2) Rebuttal requires a factor-based analysis under § 48-9-209(f). When a court contemplates deviating from 50/50, it must evaluate all relevant statutory factors. The opinion highlights that while the circuit court noted the father’s reduced involvement, it did not ground that observation in the statutory framework (e.g., § 48-9-209(f)(3)(D)) or explain how other factors weighed. The statute mandates a holistic assessment; reliance on a single fact—particularly one disputed in context—does not suffice.

3) Written, specific findings are indispensable. Section 48-9-206(d) requires the court to produce an order with specific findings of fact and conclusions of law supporting the custodial allocation. Here, the circuit court made no findings on the record at the final hearing and did not include the required written findings in its order. This deficiency triggered the Province v. Province rule: absent findings, meaningful appellate review is impossible, necessitating vacatur.

4) If the presumption is rebutted, the court still must maximize each parent’s time. The “maximization” clause in § 48-9-102a is not optional. A court that deviates from 50/50 must construct a schedule maximizing each parent’s time consistent with the child’s welfare. The circuit court’s delegation of the father’s time to the child’s unilateral discretion is the antithesis of a court-crafted, maximized schedule. The Supreme Court flags this as a critical omission: even accepting that equal time is not feasible, the court must still structure a schedule designed to maximize parental time, not abdicate scheduling to the child’s choice.

5) The child’s preference is a relevant consideration—but cannot replace the statutory analysis. The circuit court’s reasoning hinged on honoring the older child’s wishes previously and extending a similar “choice” to R.L., then nearly 14. The opinion makes clear that a child’s preference, while relevant, cannot supplant the statutory presumption, the factor-based analysis, or the maximization requirement. A child’s activities, “busyness,” or generalized reluctance does not obviate the court’s duty to apply the statutes and craft a reasoned plan.

6) Appellate record completeness matters. The opinion notes the parties failed to include the original 2019 petition and other documents. While this did not prevent reversal—because the error was facial in the order’s lack of findings—it signals to practitioners the importance of a complete appendix for appellate review.

Impact and Practical Consequences

In re R.L. consolidates and clarifies the practical application of West Virginia’s relatively recent codification of a 50/50 custody presumption:

  • Trial courts must explicitly acknowledge the § 48-9-102a presumption and treat it as the starting point. Silent deviation invites reversal.
  • Required findings are not formalities. Written, specific findings tied to each relevant § 48-9-209(f) factor are mandatory. A single-factor rationale—such as reduced involvement—without consideration of the others is insufficient.
  • “Maximization” is an independent duty. Even when deviation is justified, courts must demonstrate how the schedule maximizes each parent’s time while safeguarding the child’s welfare. Schedules that effectively give a child veto power over a parent’s contact, without a maximization analysis, will not withstand appellate scrutiny.
  • Child support awards may be affected. Because child support is commonly linked to custodial allocation, a vacatur of the custodial plan often requires reevaluating support on remand, consistent with the eventual allocation and the parents’ incomes. While In re R.L. centers on the custodial plan, the vacated order included support; recalculation may follow the new custodial determination.
  • Counsel must build the record. Given the insistence on factor-by-factor findings, litigants should present evidence tailored to § 48-9-209(f), including the child’s needs, parental availability, facilitation of the other parent’s relationship, any safety concerns, and the history of caregiving and involvement. Where lack of involvement is alleged, parties should address whether it was “intentional” and whether the other parent’s conduct contributed, as contemplated by § 48-9-209(f)(3)(D).
  • Judicial economy and appellate efficiency. Failure to adhere to these statutory requirements invites vacatur and remand, delaying finality and increasing litigation costs. In re R.L. thus functions as a strong reminder to trial courts to produce statutorily compliant, reviewable orders in the first instance.

Complex Concepts Simplified

  • Rebuttable presumption of 50/50 custody: The law starts by assuming equal time with each parent is in the child’s best interests. “Rebuttable” means a party can overcome that presumption by proving, through evidence and statutory factors, that equal time is not appropriate in a particular case.
  • Maximization of each parent’s time: If equal time is not ordered, the court must still structure a schedule that gives each parent as much time as is consistent with the child’s welfare. This is a distinct requirement; it does not disappear once deviation is justified.
  • Specific findings and conclusions: Courts must explain, in writing, the facts they found and the legal reasons for their decision. These findings allow the appellate court to review whether the decision was reasonable and lawful.
  • Abuse of discretion vs. clearly erroneous: “Abuse of discretion” is a deferential standard reviewing the court’s ultimate decision; “clearly erroneous” reviews whether the court’s factual findings are plainly wrong based on the record. Without specific findings, neither standard can be meaningfully applied on appeal.
  • Child’s preference: A child’s wishes can be relevant to custodial decisions, especially as the child matures, but the preference is one factor among many. It cannot alone displace the statutory analysis or the court’s obligation to craft a schedule that maximizes parental time consistent with the child’s welfare.
  • Delegation of parenting time to the child: Allowing the child to decide whether a parent will have time, without more, amounts to a de facto denial of a court-ordered schedule. West Virginia law requires the court to set the schedule through the statutory framework, not to hand that role over to the child.

Conclusion

In re R.L. is a clear and practical reinforcement of West Virginia’s statutory regime governing custodial allocations. The Supreme Court’s decision underscores four central points: (1) courts must start with the § 48-9-102a presumption of equal (50/50) time; (2) deviations require express, written, factor-by-factor findings under § 48-9-206(d) and § 48-9-209(f); (3) even after rebuttal, courts have an independent duty to maximize the time each parent has with the child consistent with the child’s welfare; and (4) a child’s preferences or activities cannot substitute for the court’s statutory analysis and cannot justify delegating parenting-time decisions to the child.

The decision serves both as a compliance roadmap for trial courts and as a litigation guide for practitioners: build a record tailored to the statutory factors, insist on comprehensive findings, and ensure any deviation from equal time is accompanied by a robust, welfare-consistent plan that maximizes each parent’s involvement. The dissent’s view that the case warranted argument and a formal opinion reflects the importance of these issues. Nonetheless, even in memorandum form, In re R.L. firmly advances the Court’s recent jurisprudence—anchored by In re D.S.—and sends an unambiguous message: custodial decisions must begin with the 50/50 presumption and end with a reasoned, findings-based order that either honors that presumption or carefully explains why not, while maximizing each parent’s role in the child’s life.

Bench and Bar Checklist (Practical Application)

  • Start from § 48-9-102a’s 50/50 presumption; acknowledge it explicitly.
  • Take evidence and make findings on all relevant § 48-9-209(f) factors.
  • Enter a written order with specific findings and conclusions per § 48-9-206(d).
  • If deviating, craft a schedule that maximizes each parent’s time consistent with the child’s welfare; avoid delegating time to the child’s unilateral choice.
  • Address whether any diminished involvement was intentional and whether the other parent contributed to lack of contact (§ 48-9-209(f)(3)(D)).
  • Recalculate child support consistently with the final custodial allocation.
  • Ensure the appellate appendix includes all materials necessary for review.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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