HB 2694 Text

COMMITTEE SUBSTITUTE

FOR
H. B. 2694
(By Delegates Boggs, Webster, Iaquinta, Ferro,

Wooton, Schoen, Tabb, Fleischauer, Schadler,

Hamilton and Hutchins)
(Originating in the Committee on the Judiciary)
[February 25, 2009]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §48-1-233.3 and §48-1-233.4; to amend said code by adding thereto a new section, designated §48-9-404; to amend and reenact §48-11-106 of said code; and to amend said code by adding thereto a new section, designated §48-11-108, all relating to modification of custodial rights for parent's have been deployed for military service; requiring that any such order is only a temporary order; providing for temporary modification of child support during the deployment.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §48-11-108; that said code be amended by adding thereto a new section, designated §48-9-404; that §48-11-106 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §48-11-108, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
PART 2--DEFINITIONS.
§48-1-233.3. Military parent defined.
"Military parent" means a natural parent or adoptive parent of a child under the age of eighteen whose parental rights have not been terminated by a court of competent jurisdiction.
§ 48-1-233.4. Military service or service defined.
(a) In the case of a parent who is a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or a Reserve component of these services, "military service or service" means a deployment for combat operations, a contingency operation, or a natural disaster based on orders that do not permit a family member to accompany the member on the deployment.
(b) In the case of a parent who is a member of the National Guard, "military service or service" means service under a call to active service authorized by the President of the United States or the Secretary of Defense for a period of more than thirty consecutive days pursuant to 32 U.S.C. 502(f) for purposes of responding to a national emergency declared by the President and supported by federal funds.
(c) "Military service or service" includes a period during which a military parent remains subject to deployment orders and remains deployed on account of sickness, wounds, leave, or other lawful cause.

ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.

PART 4. MODIFICATION OF PARENTING PLAN.
§48-9-404. Modification of a parenting plan due to military service.

(a) If a military parent is required to be separated from a child due to military service, a court shall not enter a final order modifying the terms of an existing parenting plan until ninety days after the military parent is released from military service. A military parent's absence or relocation because of military service must not be the sole factor supporting a change in circumstance or grounds sufficient to support a permanent modification of an existing parenting plan.
(b) A parenting plan establishing the terms of custody or visitation in place at the time a military parent is called to military service may be temporarily modified to make reasonable accommodation for the parties because of the military parent's service.
(c) A temporary parenting plan pursuant to this section must provide that the military parent has custodial responsibility of the child during a period of leave granted to the military parent during their military service. If a temporary parenting plan is not issued pursuant to this section, the nonmilitary custodial parent shall make the child or children reasonably available to the military parent when the military parent has leave to ensure that the military parent has reasonable custodial responsibility and is able to exercise custodial responsibility of the child or children.
(d) If there is no existing parenting plan or order establishing the terms of custody or visitation and it appears that military service is imminent, upon motion by either parent, the court shall expedite a temporary hearing to establish a temporary parenting plan to ensure the military parent has access to the child, to establish support, and provide other appropriate relief.
ARTICLE 11. SUPPORT OF CHILDREN
§48-11-106. Expedited process for modification.
(a) An expedited process for modification of a child support order may be utilized if:
(1) Either parent experiences a substantial change of circumstances resulting in a decrease in income due to loss of employment or other involuntary cause;
(2) An increase in income due to promotion, change in employment or reemployment; or
(3) Other such change in employment status; or
(4) If a military parent is called to military service.
(b) The party seeking the recalculation of support and modification of the support order shall file a description of the decrease or increase in income and an explanation of the cause of the decrease or increase on a standardized form to be provided by the secretary-clerk or other employee of the family court. The standardized form shall be verified by the filing party. Any available documentary evidence shall be filed with the standardized form. Based upon the filing and information available in the case record, the amount of support shall be tentatively recalculated.
(c) The secretary-clerk shall serve a notice of the filing, a copy of the standardized form and the support calculations upon the other party by certified mail, return receipt requested, with delivery restricted to the addressee, in accordance with rule 4(d)(1)(D) of the West Virginia rules of civil procedure. The secretary-clerk shall also mail a copy, by first-class mail, to the local office of the bureau for child support enforcement for the county in which the family court is located in the same manner as original process under rule 4(d) of the rules of civil procedure.
(d) The notice shall fix a date fourteen days from the date of mailing and inform the party that unless the recalculation is contested and a hearing request is made on or before the date fixed, the proposed modification will be made effective. If the filing is contested, the proposed modification shall be set for hearing; otherwise, the court shall enter an order for a judgment by default. Either party may move to set aside a judgment by default, pursuant to the provisions of rule 55 or rule 60(b) of the rules of civil procedure.
(e) If an obligor uses the provisions of this section to expeditiously reduce his or her child support obligation, the order that effected the reduction shall also require the obligor to notify the obligee of reemployment, new employment or other such change in employment status that results in an increase in income. If an obligee uses the provisions of this section to expeditiously increase his or her child support obligation, the order that effected the increase shall also require the obligee to notify the obligor of reemployment, new employment or other such change in employment status that results in an increase in income of the obligee.
(f) The supreme court of appeals shall develop the standardized form required by this section.
§48-11-108. Modification of support based on military service.
(a) If a military parent is called to military service, either parent may file a notice of activation of military service and a request for an expedited modification of a support order pursuant to section one hundred six of this article. In the petition, the parent must cite the basis for modifying the support order and the military parent's change in financial circumstances supporting the petition.
(b) The court shall temporarily modify the amount of child support for the duration of the military parent's military service pursuant to the provisions of section fifteen of this article, if there is a substantial change in circumstances based on changes in income and earning capacity of the military parent during military service. An increase or decrease in income or earning capacity of a military parent due to military service may only be used to calculate support during the period of military service and must not be considered a permanent increase in wages or earning capacity. The effective date for a temporary modification must be the date the military parent begins military service.
(c) Upon return from military service, the military parent's child support obligation prior to a temporary modification is automatically reinstated, effective on the date the military parent is released from service. Within ninety days of the military parent's release from service, either parent may make a subsequent request for modification to correspond to a change in the military parent's nonservice related income or earning capacity. A modification must be based upon the income or earning capacity of the military parent following the period of military service.
(d) Except for modifying a child support obligation during military service pursuant to this section, a military parent's income during military service must not be used to determine the military parent's income or earning capacity.

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