West Virginia Law Review

Document Type

Student Note


The “best interest of the child” standard is used throughout family law and is the generally accepted standard for determining custody disputes. However, many states have introduced, and some have enacted, legislation that creates a presumption of joint, or “50/50,” physical custody between the parents. As psychological studies have shown, instability typically found in custody disputes can have a significant impact on a child’s life, influencing attachment style and abilities to successfully self-regulate. These findings make the 50/50 presumption a flawed concept. Courts should be able to take factors supported by this research into account when making custody determinations as enumerated in best interest statutes. This Note argues that generally, and in West Virginia specifically, a presumption of 50/50 physical custody is not in the best interest of the child in every case and therefore undermines the best interest standard because it takes away judges’ discretion in determining each case on a fact-intensive basis.

Included in

Family Law Commons



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