CHARLESTON — Basing the bill off research that doesn’t actually support the bill, the West Virginia House of Delegates Committee on the Judiciary passed a bill Friday that would require judges, except in certain circumstance, to give each parent 50 percent custody of children.

Advocates for the prevention of child abuse and for victims of domestic violence who were present said, following the vote, that they opposed the bill.

If the bill passes, judges should presume that shared legal and physical custody, including equal time spent with both, is best, unless one party can prove that other factors, such as child abuse, neglect, or abandonment, or domestic violence, should be considered. Other exceptions include if a parent has “persistently violated, interfered with, impaired or impeded the rights of a parent or a child with respect to the exercise of shared or sole custodial authority,” made fraudulent reports of domestic violence or child abuse, is currently incarcerated, has been convicted of several violent crimes, or has an “adjudicated substance abuse addiction.”

The bill states that its rationale for “co-equal shared custody” is “the findings of leading published and peer-reviewed social science studies.” During the meeting Friday, Del. Geoff Foster, R-Putnam, sponsor of House Bill 4648, acknowledged that statement referred to studies conducted by Richard Warshak.

However, David McMahon, a lobbyist as well as a lawyer who has worked on divorce and domestic violence proceedings for 30 years, who was asked to offer his technical expertise, noted that research doesn’t actually say 50/50 custody is always best.

A 2014 Warshak study actually stated, “We use the term shared parenting time to designate divisions of time in which each parent is responsible for the child’s care at least 35 percent of the time” and “These findings do not necessarily translate into a preference for parenting plans that divide young children’s time exactly evenly between homes.”

It also stated: “Young children’s interests benefit when two adequate parents follow a parenting plan that provides their children with balanced and meaningful contact with each parent while avoiding a template that calls for a specific division of time imposed on all families.”

McMahon also told lawmakers that since 2001, judges in West Virginia have been asked to consider which parent was primarily providing physical care-taking of the child prior to the divorce. He said the Legislature, at the time, took into account the findings of the American Law Institute.

Foster argued that the Warshak studies were conducted by psychologists, not lawyers and judges, and found “that it was better for the child to spend more time with both parents.”

Joyce Yedlosky, team coordinator for the West Virginia Coalition Against Domestic Violence, said in an interview that her organization opposes a “cookie-cutter approach.” She noted that some victims with means may be able to prove domestic violence in court.

“One of the most vulnerable sets of victims of domestic violence, however, are the ones who are really scared,” she said. “The most dangerous time for a victim of domestic violence is when they’re leaving, so they’re leaving. It’s very dangerous for them. They don’t have an attorney, because you don’t get one in family court. They don’t know what 50/50 custody is or what all this is, and their perpetrator may be trying to use the custody as another way of intimidating them or scaring them and so they go into these proceedings not understanding what the law is, what a presumption is, or how to rebut it, with no evidence, and so they’re going to get 50/50 custody because they wouldn’t even really understand what this process is about.”

The bill would also let parents come to an agreement, rather than going to court.

But that could also be harder for victims of domestic violence, Yedlosky said.

“They either agree or they fight,” she said. “And so for a victim of domestic violence who’s been surviving, you’re saying ‘you either agree with this person that you’ve been trying to survive, or you fight that person.’ And for a victim who’s leaving, who’s vulnerable, who’s traumatized, who doesn’t have resources, that’s your choice. Agree with this person that did this to you, or fight them.”

She also predicted that perpetrators of domestic violence who don’t currently have custody or have limited custody would try to fight for custody if the bill becomes law, putting the victim in the situation of trying to prove domestic violence had occurred potentially years prior.

Jim McKay, of Prevent Child Abuse WV, said he also worries that will occur, leading to instability in children’s lives.

He said his organization “opposes any legislation that would transition from best interests of the child, and that flexibility to consider that in each case, to a cookie-cutter approach.”

“We feel this legislation takes away that local discretion and puts children at risk,” he said. “I believe it disrupts our current stability that families have and stability is the key factor for children to succeed.”

He said he also worried that even with 50/50 custody arrangements, one parent would end up still primarily taking care of the child but end up with less child support.

The bill passed with Republican support. Locally, Dels. Tom Fast, R-Fayette; Kayla Kessinger, R-Fayette; and Brandon Steele, R-Raleigh, voted for it. It now goes to the full House for a vote next week.

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