Introduced Version
House Bill 2989 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2989
(By Delegates Eldridge, Rodighiero, Barker, Shook,
Beach, Butcher, Longstreth, Stowers, Reynolds and Louisos)
[Introduced March 9, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-2-14d of the Code of West Virginia,
1931, as amended, relating to failing to provide or return a
minor child for visitation; and providing penalties.
Be it enacted by the Legislature of West Virginia:
That §61-2-14d of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-14d.
Failure to provide or return minor child for
visitation; false or fictitious information or
assisting in concealing a minor child; concealment
or removal of minor child from custodian or from
person entitled to visitation; penalties;
defenses. Failure to provide or return minor
child for visitation
(a)
Any person who conceals, takes or removes a minor child in violation of any court order an with the intent to deprive another
person of lawful custodial time or visitation right shall be guilty
of a felony, and, upon conviction thereof, shall be imprisoned in
the penitentiary not less than one nor more than five years, or in
the discretion of the court, shall be imprisoned in the county jail
not more than one year of fined not more than one thousand dollars,
or both fined and imprisoned. Any person who fails to make a
reasonable, good faith effort to provide or return a minor child in
a timely manner at the commencement or expiration of any lawful
custodial time or visitation period, or any person who provides
false or fictitious information or who withholds information from
any law-enforcement agency, or conceals, attempts to conceal, or
assists another person in concealing or attempting to conceal, a
minor child at the commencement or expiration of any lawful
custodial time or visitation period is, for first offense, guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
jail for not more than ten days or fined not more than $100 and may
be ordered to pay any resulting court costs, or both fined and
confined; for the second offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
not more than thirty days or fined not less than $100 nor more than
$500 and may be ordered to pay any resulting court costs, or both
fined and confined; for the third or any subsequent offense, the
person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor
more than five years, or in the discretion of the court, shall be
confined in jail not more than one year or fined not more than
$1,000 and may be ordered to pay any resulting court costs, or both
fined and imprisoned: Provided, That if the minor child is
retained more than twenty-four hours after the excoriation of any
lawful custodial time or visitation period or is removed from the
state during such period the felony offense provision under
subsections (b) and/or (c) of this section shall apply.
(b)
Any person who violates this section and in so doing
removes the minor child from this state or conceals the minor child
in another state shall be guilty of a felony, and, upon conviction
thereof, shall be imprisoned in the penitentiary not less than one
nor more than five years, or fined not more than one thousand
dollars, or both fined and imprisoned.
Any person who conceals,
takes or removes a minor child in violation of any court order and
with the intent to deprive another person of lawful custodial time
or visitation right is guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility not
less than one nor more than five years, or in the discretion of the
court, shall be confined in jail not more than one year or fined
not more than $1,000 and may be ordered to pay any resulting court
costs, or both fined and confined.
(c) It shall be a defense under this section that the accused
reasonably believed such action was necessary to preserve the
welfare of the minor child. The mere failure to return a minor
child at the expiration of any lawful custodial time or visitation
period without the intent to deprive another person of lawful
custodial time or visitation rights shall not constitute an offense
under this section. Any person who violates this section and in so
doing removes the minor child from this state or conceals the minor
child in another state is guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility not
less than one nor more than five years, or fined not more than
$1,000 and may be ordered to pay any resulting court costs, or both
fined and imprisoned.
(d) It is a defense under this section that the accused
reasonably believed such action was necessary to preserve the
safety and welfare of the minor child. The mere failure to return
a minor child at the expiration of any lawful custodial time or
visitation period does not constitute an offense under this section
if there is a reasonable, good faith attempt to return a minor
child in a timely manner. It is the intent of this section to
enforce the court order and not subject the minor child to the
custody dispute, therefore the age or desires of the minor child
may not be used to constitute a defense under this section.
(e) When any law-enforcement officer observes credible evidence that the accused has committed a violation of this article
in knowing and willful violation of the terms of any court order he
or she shall immediately enforce the court order and initiate a
criminal investigation. It is the intent of this section to
preserve the minor child's right to access any person granted
lawful custodial time or visitation.
NOTE: The purpose of this bill is to provide a misdemeanor and
felony penalty if a person fails to make a reasonable, good faith
attempt to return a minor child in a timely manner at the
expiration of a lawful custodial time or visitation period.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.