Introduced Version
House Bill 2452 History
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Key: Green = existing Code. Red = new code to be enacted
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.