Reaffirming West Virginia’s 50-50 Custody Presumption: Trial Courts Must Apply § 48-9-102a, Analyze § 48-9-209(f) Factors, Enter Written Findings, and Maximize Parenting Time

Introduction

In re R.L. is a child-custody modification appeal arising from a circuit court order that curtailed a father’s custodial time to only those occasions when his teenage daughter chose to see him, and imposed child support. The father (M.L.-1) challenged the order, arguing that the court erred by denying equal custody without applying statutorily mandated analyses. The Supreme Court of Appeals did not reach the merits of whether equal custody should have been granted. Instead, it vacated and remanded because the circuit court failed to:

• Begin with the statutory presumption that equal (50-50) custodial allocation is in a child’s best interests (West Virginia Code § 48-9-102a);
• Determine whether that presumption was rebutted by analyzing all relevant factors set out in § 48-9-209(f);
• Enter written findings of fact and conclusions of law supporting the custodial allocation, as required by § 48-9-206(d); and
• If deviating from 50-50, construct a schedule that “maximizes” each parent’s time consistent with the child’s welfare, as § 48-9-102a commands.

The decision fits within a growing post-statute body of West Virginia appellate authority emphasizing that the equal-custody presumption is the starting point and that any deviation must be reasoned, written, and child-centric—but not left entirely to a child’s unilateral discretion.

Summary of the Opinion

The case’s procedural posture is unusual: it originated as an abuse-and-neglect matter in 2019 (the original petition was not in the appellate appendix), later resulting in an August 2020 order awarding equal custody between the parents and no child support. In 2023 the mother (M.L.-2) filed to modify child support and the parenting plan, asserting the father had not exercised his parenting time for about a year. At the November 2023 hearing, she testified accordingly; the father testified his time tapered because the child was busy and he respected her wishes.

The circuit court granted the mother’s petition, awarded her primary custody, restricted the father’s parenting time to when the child was willing to see him, and ordered $813.13/month in child support, among other financial obligations. The court made no oral findings at the hearing and the written order lacked statutory analysis.

The Supreme Court vacated the order, holding that the circuit court did not perform the required statutory analysis or make the findings necessary to permit appellate review. Specifically, the circuit court:

• Did not acknowledge or apply the rebuttable presumption of equal custodial allocation under § 48-9-102a;
• Did not evaluate the statutory factors in § 48-9-209(f) to determine whether the presumption was rebutted;
• Did not provide written findings and conclusions as mandated by § 48-9-206(d); and
• Did not explain how the resulting schedule “maximized” the father’s time if deviating from 50-50; instead, it effectively ceded his time to the child’s unilateral discretion.

The Court relied on established authorities requiring adequate findings and analysis, vacated the order, and remanded for a new order that addresses the statutes and required factors. Two justices dissented, arguing the case warranted full argument and a formal opinion.

Analysis

Statutory Framework and Precedents Cited

The opinion enforces a specific statutory and precedential roadmap:

• West Virginia Code § 48-9-102a: Establishes a rebuttable presumption that equal (50-50) custodial allocation is in a child’s best interests. If rebutted, and absent a full parental agreement, the court “shall … construct a parenting time schedule which maximizes the time each parent has with the child and is consistent with ensuring the child’s welfare.”
• West Virginia Code § 48-9-209(f): Lists “all relevant factors” a court must consider when determining if the equal-custody presumption has been rebutted. The opinion highlights factor (f)(3)(D) concerning whether a parent “intentionally avoided or refused involvement or [has] not been significantly involved,” while recognizing the exception where another parent’s conduct wrongfully deprived the parent of contact.
• West Virginia Code § 48-9-206(d): Requires that any order determining the allocation of custodial responsibility must be in writing and contain specific findings of fact and conclusions of law supporting the determination.

Key case law informing the Court’s disposition includes:

• In re D.S., 251 W. Va. 466, 914 S.E.2d 701, 707 (2025): Clarifies that the 50-50 presumption is the “starting point,” and that trial courts must consider all relevant § 48-9-209(f) factors to decide whether the presumption is rebutted.
• Province v. Province, 196 W. Va. 473, 473 S.E.2d 894, 904 (1996): Orders must reveal the factual and legal basis for the decision to permit meaningful appellate review; inadequate findings require vacatur and remand.
• Kane M. v. Miranda M., 250 W. Va. 701, 908 S.E.2d 198 (Ct. App. 2024): Deviations from the 50-50 presumption must be “sufficiently explained and justified” in the order.
• Fabiano D. v. Dylan Y., No. 24-ICA-77, 2024 WL 4590062 (W. Va. Ct. App. Oct. 28, 2024): Vacated where the family court failed to provide sufficient findings to support deviation from equal custodial responsibility; emphasized the essentiality of articulated findings and reasoning.
• Sylvia L. v. Gerald P., No. 24-ICA-332, 2025 WL 1249409 (W. Va. Ct. App. Apr. 29, 2025): Vacated where a parent received no parenting time without express consideration of whether the plan maximized the parent’s time under § 48-9-102a.

The Court also recited the standard of review: abuse of discretion for the final order and ultimate disposition, and clearly erroneous for factual findings (Syl. Pt. 1, In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015), quoting McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996)).

Legal Reasoning

The Supreme Court’s reasoning proceeds in methodical steps:

• Threshold defect—no statutory framework applied: The circuit court’s order (and hearing record) did not identify § 48-9-102a’s equal-custody presumption, did not weigh the § 48-9-209(f) factors, and did not contain the written findings required by § 48-9-206(d). These omissions precluded meaningful appellate review and required vacatur under Province.
• Starting from the presumption: Echoing In re D.S., the equal-custody presumption is the mandatory starting point. Only after a reasoned, factor-based analysis can a court conclude the presumption is rebutted. The circuit court’s silence on this framework was dispositive.
• “Maximization” requirement if deviating: Even if the presumption is rebutted, § 48-9-102a compels the court to construct a schedule that maximizes both parents’ time consistent with the child’s welfare. The circuit court’s solution—limiting the father’s time to when the child felt like it—was not explained as a maximization of parenting time and, on its face, risks being the opposite.
• Child’s preferences versus child’s veto: The circuit court reasoned that since an older child had elected not to spend time with the father, it was “appropriate to allow [R.L.] … the same choice.” The Supreme Court did not say a mature child’s preferences are irrelevant; rather, it held that preferences cannot substitute for the statutorily required analysis and cannot justify an order that lacks findings and fails to maximize a parent’s time when deviating from 50-50.
• Isolated involvement finding insufficient: While the circuit court found the father’s involvement had waned, the Supreme Court emphasized that a single factor (e.g., § 48-9-209(f)(3)(D)) does not, standing alone and without analysis of countervailing factors or causation (e.g., scheduling, the other parent’s conduct), satisfy the statutory inquiry.

Impact and Practical Implications

In re R.L. strengthens, and operationalizes, the State’s statutory model for custody determinations post-enactment of § 48-9-102a:

• For trial courts: Orders must explicitly identify the 50-50 presumption, canvass the § 48-9-209(f) factors with case-specific findings, and explain any deviation in a way that shows how the court maximized each parent’s time consistent with the child’s welfare. Open-ended, child-controlled visitation provisions are disfavored where they functionally abdicate judicial responsibility and fail the “maximization” requirement.
• For litigants: Parties should present evidence tailored to § 48-9-209(f), including explanations for any past lapses in involvement (e.g., teen schedules, extracurricular conflicts, the other parent’s interference). Proposed parenting plans should demonstrate maximization strategies (e.g., detailed weekday/weekend splits, transportation sharing, right of first refusal, accommodations for extracurriculars).
• For appellate practice: Inadequate findings will often trigger vacatur and remand without merits review. Counsel must ensure a complete appendix record and press for on-the-record findings that map to the statute.
• Child support consequences: Because support typically hinges on custodial allocation, a remand that revisits custody may require recalculation of support. Although the Court did not decide support issues, trial courts should make consistent, contemporaneous findings on both custody and support.
• Jurisprudential trajectory: The decision reinforces a line of cases (In re D.S.; Kane M.; Fabiano D.; Sylvia L.) insisting on reasoned and written deviations from equal custody and on genuine maximization of each parent’s time.

Complex Concepts Simplified

• Rebuttable presumption (equal custody): The law starts by assuming 50-50 custody is best for the child. A party can overcome this presumption by convincing the court—using specific statutory factors—that equal time is not in the child’s best interests.
• § 48-9-209(f) “factors”: A list of considerations the court must evaluate to decide whether to deviate from 50-50, such as each parent’s past involvement, willingness to facilitate the child’s relationship with the other parent, scheduling feasibility, and any intentional avoidance or interference.
• Findings of fact and conclusions of law: The court must write down the key facts it finds to be true and the legal rules it applied. Without this, appellate courts cannot effectively review the decision.
• Maximization requirement: If the court decides not to award equal time, it must still create a schedule that gives each parent as much time as possible, consistent with the child’s welfare. This is an affirmative duty—merely defaulting to a child’s unfettered choice generally won’t satisfy it.
• Child’s preferences vs. child’s veto: Older or mature children’s wishes can be important, but they are part of the analysis—not the entirety. Preferences do not relieve courts of their duty to apply the statutes, make findings, and craft a maximized schedule consistent with the child’s welfare.
• Standard of review: Appellate courts defer to trial courts on facts (clearly erroneous standard) and review the overall decision for abuse of discretion. But where orders lack required findings or statutory analysis, the remedy is often vacatur and remand.

Key Takeaways for the Bench and Bar

• Always start custody analysis with § 48-9-102a’s 50-50 presumption.
• Expressly analyze all relevant § 48-9-209(f) factors with fact-specific findings.
• Comply with § 48-9-206(d): include written findings and legal conclusions supporting the allocation.
• If deviating from equal time, explain concretely how the schedule maximizes each parent’s time while serving the child’s welfare.
• A child’s preferences are a factor, but not a substitute for statutory analysis and judicially crafted scheduling; avoid ceding all parenting time to a child’s unilateral discretion.
• Ensure the appellate record is complete; omissions impede review and may influence outcomes.

What the Circuit Court Must Do on Remand

• Reopen the matter as needed to gather evidence relevant to § 48-9-209(f) (including any causal explanations for past non-involvement and the feasibility of schedules accommodating the child’s activities).
• Enter a new written order that:
  • Identifies § 48-9-102a’s equal-custody presumption;
  • Determines whether the presumption is rebutted through explicit findings under § 48-9-209(f); and
  • If deviating, constructs a concrete schedule that maximizes each parent’s time and explains why that schedule best serves the child’s welfare.
• Revisit related child support and financial orders as necessary to align with any revised custodial allocation.

The Dissent’s Process Concern

Justice Ewing and Senior Status Justice Hutchison would have set the case for oral argument and issued a formal opinion. Their brief dissent underscores the significance of the issues and suggests that fuller guidance could aid trial courts and practitioners statewide. The majority, however, concluded that a Rule 21(d) memorandum decision sufficed because the defects were clear and the corrective path was well mapped by statute and existing case law.

Conclusion

In re R.L. is a forceful reminder that West Virginia’s custody law now requires a disciplined, written, statute-driven analysis. Trial courts must begin with the 50-50 presumption, evaluate whether it is rebutted under § 48-9-209(f), and, if deviating, still craft schedules that maximize each parent’s time consistent with the child’s welfare. Orders lacking these components will not withstand appellate review. The decision also signals that courts should resist delegating parenting time decisions to a child’s unilateral choice without a concomitant statutory analysis and maximization rationale. In the broader legal landscape, this case continues the post-§ 48-9-102a trend toward transparent, factor-based custody adjudication—and it equips practitioners with a clear checklist for both litigating and drafting compliant custody orders.