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Introduced Version House Bill 2452 History

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hb2452 intr
H. B. 2452


                (By Delegates Marshall, Guthrie, Barill,
D. Poling, Fragale and Moore)

           [Introduced February 14, 2013; referred to the
           Committee on the Judiciary.]


A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §48-10A-101, §48-10A-102, §48-10A-201, §48-10A-202, §48-10A-203, §48-10A-301, §48-10A-401, §48-10A-402, §48-10A-501, §48-10A-502, §48-10A-601, §48-10A-602, §48-10A-701, §48-10A-801, §48-10A-802, §48-10A-901, §48-10A-902, §48-10A-1001, §48-10A-1002, §48-10A-1101 and §48-10A-1201, all relating to extended family visitation generally; setting forth legislative findings and intent; certain terms defined; persons who may apply for extended family visitation; petition for extended family visitation, appointment of guardian ad litem for the child; necessary findings for grant of reasonable visitation to an extended family member; factors to be considered in making a determination as to a grant of visitation to an extended family member; interview of child in chambers; prohibitions on use of child's written or recorded statement or affidavit; proof required generally and in cases of domestic violence; order granting or refusing extended family visitation must state findings of fact and conclusions of law; supervised visitation; conditions on visitation; effect of remarriage of the custodial parent; effect of adoption of the child; continuing jurisdiction of circuit court and family court; termination of extended family visitation; attorney's fees and costs; and misdemeanor offense for allowing contact between child and person who has been precluded visitation rights, and penalties upon conviction for offense.
Be it enacted by the Legislature of West Virginia:
     That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §48-10A-101, §48-10A-102, §48-10A-201, §48-10A-202, §48-10A-203, §48-10A-301, §48-10A-401, §48-10A-402, §48-10A-501, §48-10A-502, §48-10A-601, §48-10A-602, §48-10A-701, §48-10A-801, §48-10A-802, §48-10A-901, §48-10A-902, §48-10A-1001, §48-10A-1002, §48-10A-1101 and §48-10A-1201, all to read as follows:
ARTICLE 10A. EXTENDED FAMILY VISITATION.
PART 1. GENERAL PROVISIONS.
§48-10A-101. Legislative findings.
_____The Legislature finds that circumstances arise where it is appropriate for circuit courts or family courts of this state to order that extended family of minor children may exercise visitation with children who are part of the extended family. The Legislature further finds that in such situations, as in all situations involving children, the best interest of the child or children is the paramount consideration.
§48-10A-102. Legislative intent.
_____It is the express intent of the Legislature that the provisions for extended family visitation that are set forth in this article are to be applied to allow extended family of a natural parent that is deceased to have visitation with the deceased natural parent's children when a petition for grandparent visitation has been denied, the grandparents have failed to exercise grandparent visitation rights as provided in article ten of this chapter, or the grandparent visitation has ceased because of death or incapacity.
PART 2. DEFINITIONS.
§48-10A-201. Applicability of definitions.
_____For the purposes of this article the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them in this article. These definitions are applicable unless a different meaning clearly appears from the context.
§48-10A-202. Child defined.
_____"Child" means a person or persons under the age of eighteen years who has not been married or otherwise emancipated.
§48-10A-203. Extended Family defined.
_____"Extended Family" means persons who have the following relationships to a deceased natural parent:
_____(1) Brother or sister;
_____(2) Foster brother or sister with whom the natural parent resided with and developed a sibling relationship with; or
_____(3) The child of a brother, sister, foster brother or sister with whom the natural parent resided with and developed a sibling relationship with.
PART 3. APPLICATION TO THE CIRCUIT COURT OR FAMILY COURT FOR EXTENDED FAMILY VISITATION.

§48-10A-301. Persons who may apply for extended family visitation; venue.

_____An extended family member of a child residing in this state may, by petition, make application to the circuit court or family court of the county in which that child resides for an order granting visitation.
PART 4. PROCEEDINGS FOR VISITATION FOR EXTENDED FAMILY.
§48-10A-401. Petition for extended family visitation.
_____(a) The provisions of this section apply when a petition for grandparent visitation has been denied, the grandparents have failed, refused or are unable to petition for grandparent visitation pursuant to article ten of this chapter, or to exercise grandparent visitation rights previously granted by a court, or grandparent visitation has ceased because of death or incapacity.
_____(b) An extended family member may petition the circuit court or family court for an order granting visitation with the child or children of a deceased natural parent if an order granting extended family visitation has not been issued.
_____(c) When a petition under this section is filed, the matter shall be styled "In re extended family visitation of [petitioner's(s') name(s)]". The petition shall be served on all individuals defined in this article as extended family to provide an opportunity to participate in the proceeding.
_____(d) Petitions for extended family visitation shall be filed and heard in the family court except when an abuse or neglect proceeding involving the child or children is pending before the circuit court, in which case the motion or petition shall be filed and heard in the circuit court.
§48-10A-402. Appointment of guardian ad litem for the child.
_____When a petition is filed seeking extended family visitation, the court, on its own motion or upon the motion of a party, may appoint a guardian ad litem for the child to assist the court in determining the best interests of the child regarding extended family visitation.
PART 5. FACTORS AFFECTING A DECISION TO GRANT VISITATION FOR EXTENDED FAMILY.
§48-10A-501. Necessary findings for grant of reasonable extended family visitation.
_____The circuit court or family court shall grant reasonable extended family visitation upon a finding that visitation would be in the best interest of the child and would not substantially interfere with the parent-child relationship. However, in the case where the natural parent died as a result of domestic violence committed by a family or household member as defined in section two hundred four, article twenty-seven of this chapter, the extended family shall be entitled to visitation unless it is proven by clear and convincing evidence that an award of extended family visitation is contrary to the best interest and welfare of the child.
§48-10A-502. Factors to be considered in making a determination as to a grant of extended family visitation.
_____In making a determination on a petition the court shall consider the factors set forth in section five hundred two, article ten of this chapter to the extent that the factors do not conflict with the provisions of this article.
PART 6. INTERVIEW OF CHILD BY JUDGE.
§48-10A-601.Interview of child in chambers.
_____In considering the factors provided in section five hundred two of this article for purposes of determining whether to grant visitation, establishing a specific visitation schedule, and resolve any issues related to the making of any determination with respect to visitation or the establishment of any specific visitation schedule, the court, in its discretion, may interview in chambers any or all involved children regarding their wishes and concerns. No person may be present other than the court, the child, the child's attorney or guardian ad litem, if any, and any necessary court personnel.
§48-10A-602. Prohibitions on use of child's written or recorded statement or affidavit; child not to be called as a witness.
_____(a) No person may obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the wishes and concerns of the child regarding extended family visitation matters, and the court, in considering the factors provided in section five hundred two of this article for purposes of determining whether to grant any visitation, establishing a visitation schedule, or resolving any issues related to the making of any determination with respect to visitation or the establishment of any specific visitation schedule, may not accept or consider such a written or recorded statement or affidavit.
_____(b) A child may not be called as a witness in any proceeding to determine whether extended family visitation should be awarded.
PART 7. PROOF REQUIRED FOR GRANT OF EXTENDED FAMILY VISITATION.
§48-10A-701. Proof required generally and in cases of domestic violence.
_____Extended family visitation shall be granted if a preponderance of the evidence shows that visitation is in the best interest of the child. However, in the case where the natural parent died as a result of domestic violence committed by a family or household member as defined in section two hundred four, article twenty-seven of this chapter, the extended family shall be entitled to visitation unless it is proven by clear and convincing evidence that an award of extended family visitation is contrary to the best interest and welfare of the child.
PART 8. ORDERS GRANTING OR REFUSING EXTENDED FAMILY VISITATION.
§48-10A-801. Order granting or refusing extended family visitation must state findings of fact and conclusions of law.
_____An order granting or refusing a petition for extended family visitation must state in writing the court's findings of fact and conclusions of law.
§48-10A-802. Supervised visitation; conditions on visitation.
_____In the court's discretion, an order granting extended family visitation may require supervised visitation or may place such conditions on visitation that it finds are in the best interest of the child, including, but not limited to, the following:
_____(1) Allowing an extended family member who did not originally file the petition to participate in visitation;
_____(2) That extended family not attempt to influence any religious beliefs or practices of the children in a manner contrary to the preferences of the child's natural parent who has custody of the child;
_____(3) That extended family not engage in, permit or encourage activities, or expose the child to conditions or circumstances, that are contrary to the preferences of the natural parent who has custody of the child, which has been made known to the extended family in writing; or
_____(4) That the extended family not otherwise act in a manner to contradict or interfere with child-rearing decisions made by the natural parent who has custody of the child.
PART 9. EFFECT OF REMARRIAGE OR ADOPTION ON EXTENDED FAMILY VISITATION.
§48-10A-901. Effect of remarriage of the custodial parent.
_____The remarriage of the custodial parent of a child does not affect the authority of a circuit court or family court to grant reasonable extended family visitation.
§48-10A-902. Effect of adoption of the child.
_____If a child who is subject to an extended family visitation order under this article is later adopted, the order for extended family visitation is automatically vacated when the order for adoption is entered, unless the adopting parent is a stepparent, grandparent or other relative of the child.
PART 10. MODIFICATION OR TERMINATION OF EXTENDED FAMILY VISITATION.
§48-10A-1001. Continuing jurisdiction of circuit court and family court.
_____Any circuit court or family court that grants visitation rights pursuant to this article shall retain jurisdiction throughout the minority of the minor child or children with whom visitation is granted to modify or terminate such rights as dictated by the best interests of the minor child.
§48-10A-1002. Termination of Extended Family Visitation.
_____A circuit court or family court shall, based upon a petition brought by an interested person, terminated any grant of the right of extended family visitation, or make any modifications thereto, upon presentation of a preponderance of the evidence that an extended family member has materially violated the terms and conditions of the order of visitation.
Provided, That in a case where multiple individuals of the extended family are subject to the order, only the individual family member materially violating the terms and conditions of the order of visitation is subject to such action by the court.
PART 11. ATTORNEY'S FEES AND COSTS.
§48-10A-1101. Attorney's fees; reasonable costs.
_____In an action brought under the provisions of this article, a circuit court may order payment of reasonable attorney's fees and costs based upon the equities of the positions asserted by the parties to pay such fees and costs.
PART 12. OFFENSES.
§48-10A-1201. Misdemeanor offense for allowing contact between child and persons who has been precluded visitation rights; penalties.
_____Any extended family member who knowingly allows contact between a minor child with whom extended visitation has been granted and a person who has been precluded visitation rights with the child by court order is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail not more than thirty days or fined not less than $100 nor more than $1,000.



     NOTE: The purpose of this bill is to allow extended family members of a child to petition a court for extended visitation rights with the child under certain circumstances.

     This article is new; therefore, it has been completely underscored.
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