H. B. 4139
(By Delegates Guthrie, L. Phillips, Rowan,
Fleischauer, Border, Lawrence, Marshall,
Staggers, Poore and P. Smith)
(Originating in the Committee on the Judiciary)
[January 24, 2014]
A BILL to amend and reenact §48-9-209 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §48-9-209a, all relating to restricted parental rights of child custody and visitation when a child was conceived as a result of a sexual assault or sexual abuse; denying custody and visitation rights to a natural parent convicted of sexual assault when a child is produced as a result of the offense, unless the victim or guardian consents and it is in the best interests of the child; providing limited exceptions when the biological parents cohabit; creating a rebuttable presumption against the granting of sole or joint custody to the perpetrator of the offense under certain circumstances; providing a mechanism to petition the court for consideration of additional factors and protections in a parenting plan when a child is the product of a sexual assault or sexual abuse; burden of proof to met by the petitioner; and clarifying the natural parent’s continuing support obligations.
Be it enacted by the Legislature of West Virginia:
That §48-9-209 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §48-9-209a, all to read as follows:
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.
Part 2 – Parenting Plans
§48-9-209. Parenting plan; limiting factors.
(a) If either of the parents so requests, or upon receipt of credible information thereof, the court shall determine whether a parent who would otherwise be allocated responsibility under a parenting plan:
(1) Has abused, neglected or abandoned a child, as defined by state law;
(2) Has sexually assaulted or sexually abused a child as those terms are defined in articles eight-b and eight-d, chapter sixty-one of this code;
(3) Has committed domestic violence, as defined in section 27-202 two hundred two, article twenty-seven of this chapter;
(4) Has interfered persistently with the other parent's access to the child, except in the case of actions taken for the purpose of protecting the safety of the child or the interfering parent or another family member, pending adjudication of the facts underlying that belief; or
(5) Has repeatedly made fraudulent reports of domestic violence or child abuse.
(b) If either of the parents so requests, or upon receipt of clear and convincing evidence thereof, the court shall determine whether a parent has otherwise sexually assaulted or sexually abused the natural parent of the child, as those terms are defined in articles eight-b and eight-d, chapter sixty-one of this code, and a child was conceived as a result of that act.
(b)(c) If a parent is found to have engaged in any activity specified by subsection subsections (a) or (b) of this section, the court shall impose limits that are reasonably calculated to protect the child or child's parent from harm. The limitations that the court shall consider include, but are not limited to:
(1) An adjustment of the custodial responsibility of the parents, including but not limited to:
(A) Increased parenting time with the child to make up for any parenting time the other parent lost as a result of the proscribed activity;
(B) An additional allocation of parenting time in order to repair any adverse effect upon the relationship between the child and the other parent resulting from the proscribed activity; or
(C) The allocation of exclusive custodial responsibility to one of them;
(2) Supervision of the custodial time between a parent and the child;
(3) Exchange of the child between parents through an intermediary, or in a protected setting;
(4) Restraints on the parent from communication with or proximity to the other parent or the child;
(5) A requirement that the parent abstain from possession or consumption of alcohol or nonprescribed drugs while exercising custodial responsibility and in the twenty-four hour period immediately preceding such exercise;
(6) Denial of overnight custodial responsibility;
(7) Restrictions on the presence of specific persons while the parent is with the child;
(8) A requirement that the parent post a bond to secure return of the child following a period in which the parent is exercising custodial responsibility or to secure other performance required by the court;
(9) A requirement that the parent complete a program of intervention for perpetrators of domestic violence, for drug or alcohol abuse, or a program designed to correct another factor; or
(10) Any other constraints or conditions that the court deems necessary to provide for the safety of the child, a child's parent or any person whose safety immediately affects the child's welfare.
(c)(d) If a parent is found to have engaged in any activity specified in subsection subsections (a) or (b) of this section, the court may not allocate custodial responsibility or decision-making responsibility to that parent without making special written findings that the child and other parent can be adequately protected from harm by such limits as it may impose under subsection (b) of this section. The parent found to have engaged in the behavior specified in subsection subsections (a) or (b) of this section has the burden of proving that an allocation of custodial responsibility or decision-making responsibility to that parent will not endanger the child or the other parent.
(d)(e) If the court determines, based on the investigation described in part three of this article or other evidence presented to it, that an accusation of child abuse or neglect, or domestic violence made during a child custody proceeding is false and the parent making the accusation knew it to be false at the time the accusation was made, the court may order reimbursement to be paid by the person making the accusations of costs resulting from defending against the accusations. Such reimbursement may not exceed the actual reasonable costs incurred by the accused party as a result of defending against the accusation and reasonable attorney's fees incurred.
(e) (1) A parent who believes he or she is the subject of activities by the other parent described in subdivision (5) of subsection (a) of this section, may move the court pursuant to subdivision (4), subsection (b), section one, article seven, chapter forty-nine of this code for the Department of Health and Human Resources to disclose whether the other parent was the source of the allegation and, if so, whether the department found the report to be:
(C) Inconclusive; or
(D) Still under investigation.
(2) If the court grants a motion pursuant to this subsection, disclosure by the Department of Health and Human Resources shall be in camera. The court may disclose to the parties information received from the department only if it has reason to believe a parent knowingly made a false report.
§48-9-209a. Child conceived as result of sexual assault or abuse; rights of a natural parent convicted of sexual assault or abuse; rights when a parent is the spouse of victim; rebuttable presumption upon separation or divorce.
(a) Except as otherwise provided in subsection (b) of this section, if a child custody or visitation dispute involves a child who is conceived as a result of acts by which one of the child’s biological parents has been convicted of sexual assault as defined by section three, four or five, article eight-b, chapter sixty-one of this code, or of sexual abuse by a parent, guardian or custodian under section five, article eight-d, chapter sixty-one of this code, the court shall not award custody to the natural parent convicted of the sexual assault, and the convicted parent has no right to visitation with the child unless the parent/victim or legal guardian consents thereto and it is in the best interests of the child.
(b) Subsection (a) does not apply if:
(1) The biological parents are husband and wife at the time of the offense, and after the date of conviction, cohabit and establish a mutual custodial environment for the child; or
(2) After the date of conviction, the unmarried biological parents cohabit and establish a mutual custodial environment for the child.
(c) If persons described by subsection (b) of this section later separate or divorce, the conviction of sexual assault under section three, four or five, article eight-b, chapter sixty-one of this code or the conviction of sexual abuse by a parent, guardian or custodian under section five, article eight-d, chapter sixty-one of this code creates a rebuttable presumption that sole or joint custody of the child by the perpetrator of the offense is not in the best interests of the child, and the court shall set forth findings that any custody or visitation arrangement ordered by the court adequately protects the child and the victim of the sexual offense.
(d) A denial of custody or visitation under this section does not by itself terminate the parental rights of the person denied visitation or custody, nor does it affect the obligation of the person to support the minor child.
(e) If there is clear and convincing evidence presented that the child was conceived as a result of a sexual assault committed by one of the child’s natural parents against the child’s other natural parent, and the natural parent who committed that act was not prosecuted for or convicted of such an offense, the natural parent who was the victim of the offense may petition the court for consideration of the act as a factor to be considered by the court when structuring an appropriate parenting plan, pursuant to section two hundred nine of this article. The exercise of one’s Fifth Amendment rights against self-incrimination shall not be a factor in determining whether clear and convincing evidence is present.