Parenting & Custody Rights in West Virginia

The most important thing to know: being incarcerated does NOT automatically terminate your parental rights in West Virginia. WV Code §48-9 governs parenting disputes and is very clear — incarceration is one factor a court may consider, but by itself it is not grounds to take your children permanently.

If DHHR (Department of Health & Human Resources) or CPS (Child Protective Services) has an open case on your family, you have specific rights — and responsibilities — that you must act on even while incarcerated.

• 1
  Find out if a case is open

  Ask your case manager or attorney to contact WV DHHR's Centralized Intake line at 1-800-352-6513. You can also have a trusted family member call on your behalf. If a child abuse or neglect petition was filed, a case is likely open.

• 2
  Request your case plan in writing

  Under WV law, you are entitled to a written copy of your DHHR case plan. Write a letter to your assigned DHHR worker requesting the plan and all court orders. Keep a copy of every letter you send. If the facility's case manager can fax on your behalf, use that.

• 3
  Identify your DHHR worker and supervisor

  Every case has an assigned CPS worker and a supervisor. Ask your attorney, or contact the county DHHR office in the county where your child is located. The worker's name should appear on any court documents you have received.

• 4
  Start completing your case plan tasks from inside

  Typical case plan tasks include: substance abuse treatment, parenting classes, mental health evaluation/therapy, stable housing plan, and employment plan. Many of these have in-facility versions. Ask your case manager what programs are available at your facility that count toward your case plan.

• 5
  Attend every court hearing — even by phone

  Family courts in WV will allow incarcerated parents to participate by phone. Your attorney or the court clerk can arrange this. Missing hearings tells the court you've disengaged, which hurts you in the best-interest analysis.

• 6
  Document everything

  Keep copies of every letter to your child, every completed program certificate, every communication with DHHR. This documentation is evidence that you remained engaged as a parent throughout your incarceration.

ASFA is the federal law that sets the most critical deadline in any custody case involving foster care. Under ASFA, if a child has been in foster care for 15 out of the most recent 22 months, the state is generally required to file a petition to terminate parental rights — unless a specific exception applies.

Exceptions that can pause or prevent a TPR filing under ASFA:

• 1. Child is placed with a relative (kinship placement)

  If your child is living with a grandparent, aunt, uncle, or another relative, the 15/22 month rule may not apply. Getting your child placed with a family member is one of the most important things you can do from inside.

• 2. DHHR has not provided reasonable efforts to reunify

  If DHHR failed to provide reasonable services — did not tell you about case plan requirements, did not set up visitation, did not communicate with your facility — you can argue the clock should not count those months against you.

• 3. Reunification is not in the child's best interest

  This cuts both ways. If a court finds that maintaining your parental rights IS in the child's best interest (e.g., you are close to release and have a solid plan), a judge can decline to require a TPR petition.

• 4. The compelling reasons exception

  DHHR can document a "compelling reason" not to file TPR — including that you are making extraordinary progress on your case plan and have a clear reunification timeline. Push your attorney to argue this.

Termination of Parental Rights is the most severe action a family court can take. It permanently ends your legal relationship with your child. But it is not automatic — you have the right to contest it at every stage.

Legal grounds for TPR in West Virginia (WV Code §49-4-604) include:

• Abandonment

  Defined as having no contact with your child for 6 months or more AND failing to pay support when able. Written letters from prison count as contact. Keep sending them even if you don't get replies.

• Failure to correct conditions of abuse or neglect

  If you were found responsible for abuse or neglect, the court will look at whether you completed your case plan. Completing classes, treatment, and parenting programs is your primary defense here.

• Incarceration for an extended time when child is very young

  If your sentence is so long that returning to parent a young child is not realistic before the child needs permanency, the court may find TPR is in the child's best interest. A realistic, near-term release date strengthens your position significantly.

• Prior TPR for another child

  Having had parental rights terminated before is a strong negative factor. If this applies, get an attorney immediately — you need to build a very strong case that circumstances have fundamentally changed.

Your TPR defense strategy — step by step:

• 1
  Get an attorney appointed immediately

  You have the constitutional right to appointed counsel in TPR proceedings. The moment you learn a TPR petition has been filed, contact the court and demand your right to appointed counsel if you cannot afford one. Do not try to handle this alone.

• 2
  Request a continuance if you need more time to prepare

  Your attorney can request that the hearing be postponed so you can gather evidence and prepare your defense. Courts do grant these — use the time to complete case plan tasks and gather documentation.

• 3
  Gather your evidence of engagement

  Compile: letters sent to your child, certificates from completed programs (parenting, substance abuse, education), communications with DHHR, and evidence of your post-release plan (housing, employment, support network).

• 4
  Identify and contact witnesses

  Family members, clergy, counselors, or facility staff who can testify to your engagement and rehabilitation are important. Your attorney should be subpoenaing anyone who has worked your case.

• 5
  Present your post-release plan in court

  Courts want to know: Where will you live? How will you support your child? Who is in your support network? A concrete, realistic plan — with housing and employment lined up — dramatically improves your position.

• 6
  If TPR is ordered, appeal immediately

  WV law provides a right to appeal a TPR order. The deadline to file a notice of appeal is 30 days from the date of the order. Do not miss this window. Your attorney must file or you must file pro se if you have no attorney.

After release, your path back to full custody or expanded visitation goes through WV Family Court. Each county has a dedicated Family Court judge. Here's how the process works and what to expect.

WV Family Court handles: Custody arrangements, visitation (parenting time), child support, parenting plans, and modifications to all of the above.

Step-by-step: Filing a petition to modify custody or visitation

• 1
  Obtain the correct forms from the county clerk

  Go to the Family Court Clerk's office in the county where the original custody order was entered. Ask for the "Petition to Modify Custody or Visitation" forms. Forms are also available at courtswv.gov under Self-Help Resources. There is no charge to pick up forms.

• 2
  Show a "substantial change in circumstances"

  WV courts will only modify an existing custody order if you can show there has been a substantial change in circumstances since the last order. Your release from incarceration IS a substantial change. Your completed treatment, stable housing, and employment also qualify.

• 3
  File the petition and pay the filing fee (or request a waiver)

  Filing fees vary by county, typically $65–$130. If you cannot afford the fee, ask the clerk for a "Petition to Proceed Without Payment of Fees" (also called an In Forma Pauperis waiver). Income from public assistance or low income qualifies. There is no shame in asking for the waiver.

• 4
  Serve the other party

  The other parent or guardian must be legally "served" with a copy of your petition. The clerk can tell you how to arrange service — typically by certified mail or through the sheriff's office (for a small fee). You cannot serve the papers yourself; someone else must do it.

• 5
  Attend your mediation session

  WV Family Court requires parties to attempt mediation before a full hearing in most cases. Mediation is a structured conversation with a neutral mediator. You do not have to agree to anything in mediation — but you do have to attend. If you reach an agreement, it becomes your new parenting plan.

• 6
  Attend the final hearing and present your parenting plan

  If mediation doesn't resolve things, the judge holds a hearing. Bring all your documentation: completed programs, stable housing evidence, employment, support letters, and a written parenting plan that shows how you'll meet your child's needs.

These are the Family Court Clerk offices for West Virginia's most populated counties. Call ahead to confirm hours and ask whether they offer self-help assistance for pro se (self-represented) filers.

Courts often order supervised visitation as a first step when reunification is the goal. This is not a punishment — it's a bridge. Supervised visits allow you to demonstrate your parenting, build consistency with your children, and create a record that supports expanding your parenting time.

• DHHR Safe Visit Centers

  DHHR operates visitation centers across WV where court-ordered supervised visits take place. Sessions are documented. Consistent attendance and positive interactions are recorded and can be used as evidence in court. Ask your DHHR worker which center serves your county.

  (304) 558-0100

  WV DHHR Bureau for Children and Families

• Safe Families for Children — WV

  A faith-based network that supports families in crisis with temporary care and family connections. Can arrange supervised visitation and help with reunification planning. Works with families voluntarily — no court order required to reach out.

  safe-families.org
• Family Resource Networks (FRNs)

  WV has a statewide network of Family Resource Networks that provide parenting support, visitation support, and connection to community resources. Many operate supervised visitation programs or can refer you to one in your area.

  wvfrn.org (304) 345-7905
• Pressley Ridge — WV Programs

  Provides therapeutic visitation services and family support for families involved with child welfare. Court referrals and voluntary. Has locations across WV including Charleston and Clarksburg.

  pressleyridge.org (304) 345-3507

Even if the relationship with your co-parent is difficult, your ability to work cooperatively with them is one of the factors courts look at in custody decisions. Judges notice when parents put their children first.

• Keep communication about the kids — not the conflict

  Text, email, or apps like OurFamilyWizard create documented, professional communication records. Avoid emotional exchanges. Stick to logistics: schedules, medical appointments, school events.

• Never speak negatively about the other parent in front of your children

  Courts take parental alienation seriously. Children should not be put in the middle. Even if the other parent is doing this to you, document it and let your attorney address it — do not retaliate in kind.

• Attend co-parenting classes

  Many WV Family Courts require co-parenting education classes when custody is disputed. Some counties offer them for free. Completing one proactively (before being ordered to) shows the court you are serious about cooperative parenting.

• Use OurFamilyWizard or TalkingParents apps

  These apps create a documented, court-admissible record of all co-parent communication. Both parents see each other's messages and cannot alter them. Judges can request the logs. If communication has been hostile or nonexistent, these tools create a fresh, professional record.

• Support your children's relationship with their caregiver

  If your children are with a grandparent or foster family during your reentry, support that relationship. Courts view it positively when a returning parent acknowledges the stability the child has had, rather than trying to immediately disrupt it.

• WV Court Approved Co-Parenting Education

  Ask your county Family Court about approved co-parenting programs. Common programs used in WV include "Children in the Middle" and "Cooperative Parenting Institute" materials. Available in-person and online.

  courtswv.gov — Family Court Self-Help
• WV Extension Family Strengthening Programs

  West Virginia University Extension offers free parenting and family programs across the state, including co-parenting skill development. Available in-person at county extension offices and online.

  extension.wvu.edu

Family law attorneys are expensive. But there are multiple free options in West Virginia specifically for women in reentry and low-income parents. You should not navigate TPR proceedings or custody modification without legal help.

• Legal Aid of West Virginia — Family Law Unit

  Legal Aid of WV provides free civil legal help to low-income residents, including family law representation. They handle custody, visitation, TPR defense, and DHHR case advocacy. This is the most important resource on this page.

  1-800-628-5657 legalaidwv.org

  8 offices statewide: Charleston, Huntington, Martinsburg, Morgantown, Parkersburg, Lewisburg, Logan, Clarksburg

• WV Lawyer Referral Service

  The WV State Bar runs a referral service that can connect you with a family law attorney for a reduced-fee initial consultation. Call if Legal Aid has a waitlist in your area.

  (304) 722-4551 wvbar.org
• WVU College of Law Family Law Clinic

  Law students supervised by licensed attorneys handle family court cases for income-eligible clients in the Morgantown area. Call to find out if you qualify and whether they can take your case.

  (304) 293-0111 law.wvu.edu/clinics
• WV Supreme Court Self-Help Resources

  The WV courts website has self-help forms, instructions, and guides for family court. If you cannot get an attorney, these resources can help you understand the process and file correctly on your own.

  courtswv.gov/legal-resources/self-help
• WV Center on Budget & Policy — Reentry Family Support

  Provides policy advocacy and can connect you with local organizations that support mothers in reentry with family legal matters.

  wvcbp.org

The Keeping Infants with Dedicated and Supportive Mothers (KIDS) Program at Lakin Correctional Center in Mason County, WV allows eligible incarcerated mothers to keep their newborn infants with them in a residential nursery setting within the facility.

This program is one of the most important tools for mothers who give birth while incarcerated or who are newly incarcerated with a newborn. Keeping your child with you from birth dramatically strengthens your bond, your legal standing, and your ability to establish parenting patterns that courts recognize.

• How to apply

  Eligibility is reviewed by Lakin facility staff in coordination with DHHR. Application should be made as early as possible during pregnancy — ideally in the second trimester. Talk to your facility case manager or classification officer immediately.

• Eligibility requirements

  Requirements include: being housed at Lakin or transferable to Lakin, having a sentence or remaining time that allows participation in the program, no current felony conviction for child abuse, and agreement to participate in all required parenting and programming components.

• What the program provides

  Mothers and infants live in a dedicated nursery housing unit. The program includes intensive parenting education, infant health support, breastfeeding support, and coordination with DHHR to support reunification planning. Infants typically remain in the program until 18 months of age or the mother's release, whichever comes first.

• Legal impact

  Participation in the KIDS Program is powerful evidence in any custody or TPR proceeding. Courts view it as proof of active, hands-on parenting. Your participation record, infant health outcomes, and program evaluations are all documentable evidence.

• Lakin Correctional Center

  West Virginia's primary correctional facility for women. Located in Mason, WV (Mason County).

  (304) 777-3400

  One Lakin Drive, Mason, WV 25260
  Ask for the KIDS Program coordinator

• WV Division of Corrections and Rehabilitation

  Oversees the KIDS Program. If you are housed at another WV facility and pregnant, contact WVDCR to inquire about transfer eligibility to Lakin.

  (304) 558-0002 dcr.wv.gov

• My rights were never terminated — can I just take my children back after release?
  No. Even if there was no formal TPR, if your children are in foster care or under a custody order giving another person legal custody, you must go through family court to modify that order. Taking children without a court order can result in criminal charges. File the modification petition first.
• My mother has my kids. She won't let me see them. What do I do?
  If your mother has informal custody, you still have parental rights unless a court order says otherwise. File a petition in Family Court asking for a parenting plan that includes visitation. If she has a formal court order granting her guardianship, you'll need to petition to modify that order showing a change in circumstances (your release and stability).
• The ASFA clock is at month 14 and I'm still inside. Is it too late?
  It's not too late but you are in the critical window. Contact Legal Aid of WV today: 1-800-628-5657. The key arguments are: kinship placement exception (is your child with family?), reasonable efforts failure (did DHHR give you services?), and compelling reasons (your release date and completed case plan tasks). Every day matters.
• Can I file for custody modification while I'm still incarcerated?
  In most cases, it is better to file after release when you have housing and stability to demonstrate. However, if a TPR petition has been filed, you must respond immediately regardless of where you are. For other modifications, prepare your case from inside but plan to file after your release date is near or confirmed.
• My child's foster family wants to adopt them. Can they do that without my consent?
  Only if your parental rights have been terminated. Until TPR occurs, your consent is required for adoption. If DHHR is moving toward adoption and has not filed a TPR petition yet, you have time to engage your case plan aggressively. If a TPR petition has been filed, get an attorney immediately.
• I completed my case plan. Why is DHHR still not moving toward reunification?
  DHHR has discretion in reunification timelines. If you've completed your case plan and they're not moving, this is an issue for your attorney to raise in court. A judge can order DHHR to provide a reunification timeline. Legal Aid of WV can file a motion on your behalf asking the court to enforce your case plan progress.