Senate Bill No. 67
(By Senators Wells, D. Facemire and Chafin)
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[Introduced January 13, 2010; referred to the Committee on
Military; and then to the Committee on the Judiciary.]
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A BILL to amend and reenact §48-9-404 of the Code of West Virginia,
1931, as amended, relating to custody of children; and
prohibiting a parent's military service from being a factor
in modification of a parenting plan.
Be it enacted by the Legislature of West Virginia:
That §48-9-404 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-
MAKING RESPONSIBILITY OF CHILDREN.
§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 may 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 may not be
the sole a 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 shall
provide that the military parent has at least substantial custodial
responsibility of the child during a period of leave granted to the
military parent during their military service, unless the court
determines that it is not in the best interest of the child. 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.
NOTE: The purpose of this bill is to prohibit military service
from being a factor in a permanent modification to an existing
parenting plan.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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