H. B. 4293
(By Mr. Speaker, Mr. Kiss (By Request),
and Delegate Susman)
[Introduced
January 29, 2002
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact sections two hundred six, three hundred
one, four hundred three and five hundred one, article nine,
chapter forty-eight of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and reenact
section one hundred eleven, article eighteen of said chapter,
all relating to allocation of custodial responsibility and
decision-making responsibility for children; providing for the
right of first refusal of noncustodial parent where minor
children need child care; providing for criminal background
checks and mental health records in certain instances in
connection with determining child custody and visitation;
providing that all court orders relating to custody are
considered to include a provision requiring the parties to keep the court timely informed of all address changes;
specifying definition; providing for the bureau of child
support enforcement to disclose to the court the address to
which child support payments are being sent; providing
assistance for location and visitation of one parent where the
other parent has taken a child and moved out of state;
providing for bonds in certain instances; providing the right
of a parent to file a missing person report where a child has
been unlawfully taken by a parent; providing the same remedies
for enforcement of child support orders as provided for
enforcement of parenting plans; and lowering the age from
fourteen years to twelve years for the court to accommodate
the reasonable preferences of a child where the child has
expressed a voluntary preference for one parent.
Be it enacted by the Legislature of West Virginia:
That sections two hundred six, three hundred one, four hundred
three and five hundred one, article nine, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section one hundred
eleven, article eighteen of said chapter be amended and reenacted,
all to read as follows:
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.
§48-9-206. Allocation of custodial responsibility.
(a) Unless otherwise resolved by agreement of the parents
under section 9-201 or unless manifestly harmful to the child, the
court shall allocate custodial responsibility so that the
proportion of custodial time the child spends with each parent
approximates the proportion of time each parent spent performing
caretaking functions for the child prior to the parents' separation
or, if the parents never lived together, before the filing of the
action, except to the extent required under section 9-209 or
necessary to achieve any of the following objectives:
(1) To permit the child to have a relationship with each
parent who has performed a reasonable share of parenting functions;
(2) To accommodate the firm and reasonable preferences of a
child who is fourteen twelve years of age or older, and with regard
to a child under fourteen twelve years of age, but sufficiently
matured that he or she can intelligently express a voluntary
preference for one parent, to give that preference such weight as
circumstances warrant;
(3) To keep siblings together when the court finds that doing
so is necessary to their welfare;
(4) To protect the child's welfare when, under an otherwise appropriate allocation, the child would be harmed because of a
gross disparity in the quality of the emotional attachments between
each parent and the child or in each parent's demonstrated ability
or availability to meet a child's needs;
(5) To take into account any prior agreement of the parents
that, under the circumstances as a whole including the reasonable
expectations of the parents in the interest of the child, would be
appropriate to consider;
(6) To avoid an allocation of custodial responsibility that
would be extremely impractical or that would interfere
substantially with the child's need for stability in light of
economic, physical or other circumstances, including the distance
between the parents' residences, the cost and difficulty of
transporting the child, the parents' and child's daily schedules,
and the ability of the parents to cooperate in the arrangement;
(7) To apply the principles set forth in 9-403(d) of this
article if one parent relocates or proposes to relocate at a
distance that will impair the ability of a parent to exercise the
amount of custodial responsibility that would otherwise be ordered
under this section; and
(8) To consider the stage of a child's development.
(b) In determining the proportion of caretaking functions each
parent previously performed for the child under subsection (a) of
this section, the court shall not consider the divisions of
functions arising from temporary arrangements after separation,
whether those arrangements are consensual or by court order. The
court may take into account information relating to the temporary
arrangements in determining other issues under this section.
(c) If the court is unable to allocate custodial
responsibility under subsection (a) of this section because the
allocation under that subsection would be manifestly harmful to the
child, or because there is no history of past performance of
caretaking functions, as in the case of a newborn, or because the
history does not establish a pattern of caretaking sufficiently
dispositive of the issues of the case, the court shall allocate
custodial responsibility based on the child's best interest, taking
into account the factors in considerations that are set forth in
this section and in section two hundred nine and 9-403(d) of this
article and preserving to the extent possible this section's
priority on the share of past caretaking functions each parent
performed.
(d) In determining how to schedule the custodial time allocated to each parent, the court shall take account of the
economic, physical and other practical circumstances such as those
listed in subdivision (6), subsection (a) of this section.
(e) The Legislature recognizes that it is generally in the
best interest of children to be cared for by their parents. Except
where impracticable or not in the best interests of the child, the
court shall provide by order that before either parent may obtain
baby-sitter services, day-care services or any other childcare
services from a third party, that parent shall first offer the
other parent a right of first refusal to personally care for the
child. The court shall determine the guidelines in each case so
that the right of first refusal is effectuated to the extent
practical. In so doing the court shall consider, among other
things, the best interests of the child, distance and travel times,
meaningful notice, emergencies, scheduled and nonscheduled needs
for third party childcare and practicability.
PART 3. FACT FINDING.
§48-9-301. Court-ordered investigation.
(a) In its discretion, the court may order a written
investigation and report to assist it in determining any issue
relevant to proceedings under this article. The investigation and report may be made by the guardian ad litem, the staff of the court
or other professional social service organization experienced in
counseling children and families. The court shall specify the
scope of the investigation or evaluation and the authority of the
investigator.
(b) In preparing the report concerning a child, the
investigator may consult any person who may have information about
the child and the potential parenting or custodian arrangements.
Upon order of the court, the investigator may refer the child to
professional personnel for diagnosis. The investigator may consult
with and obtain information from medical, psychiatric or other
expert persons who have served the child in the past without
obtaining the consent of the parent or the child's custodian; but
the child's consent must be obtained if the child has reached the
age of twelve, unless the court finds that the child lacks mental
capacity to consent. If the requirements of subsection (c) of this
section are fulfilled, the investigator's report may be received in
evidence at the hearing.
(c) The investigator shall deliver the investigator's report
to counsel and to any party not represented by counsel at least ten
days prior to the hearing unless a shorter time is ordered by the court for good cause shown. The investigator shall make available
to counsel and to any party not represented by counsel the
investigator's file of underlying data and reports, complete texts
of diagnostic reports made to the investigator pursuant to the
provisions of subsection (b) of this section, and the names and
addresses of all persons whom the investigator has consulted. Any
party to the proceeding may call the investigator and any person
whom the investigator has consulted for cross-examination. A party
may not waive the right of cross-examination prior to the hearing.
(d)
Upon motion of either party, or the court sui generis, the
court shall obtain a criminal background check of either or both
parents with respect to felony charges and convictions. The court
shall keep this information confidential, but shall take into
consideration any felony record to the extent the court considers
it relevant to do so.
(e) Upon motion of either party, or the court sui generis,
the court shall obtain the mental health records of either or both
parents. The court shall keep this information confidential, but
shall take into consideration the content of the record or records
to the extent the court considers it relevant to do so. Nothing
contained herein may prevent either party from otherwise obtaining records as provided elsewhere in this code.
(f) Services and tests ordered under this section shall be
ordered only if at no cost to the individuals involved, or at a
cost that is reasonable in light of the available financial
resources.
PART 4. MODIFICATION OF PARENTING PLAN.
§48-9-403. Relocation of a parent.
(a) The relocation of a parent constitutes a substantial
change in the circumstances under subsection 9-401(a) of the child
only when it significantly impairs either parent's ability to
exercise responsibilities that the parent has been exercising.
(b) Unless otherwise ordered by the court, a parent who has
responsibility under a parenting plan who changes, or intends to
change, residences for more than ninety days must give a minimum of
sixty days' advance notice, or the most notice practicable under
the circumstances, to any other parent with responsibility under
the same parenting plan. Notice shall include:
(1) The relocation date;
(2) The address of the intended new residence;
(3) The specific reasons for the proposed relocation;
(4) A proposal for how custodial responsibility shall be modified, in light of the intended move; and
(5) Information for the other parent as to how he or she may
respond to the proposed relocation or modification of custodial
responsibility.
Failure to comply with the notice requirements of this section
without good cause may be a factor in the determination of whether
the relocation is in good faith under subsection (d) of this
section and is a basis for an award of reasonable expenses and
reasonable attorney's fees to another parent that are attributable
to such failure.
The supreme court of appeals shall make available through the
offices of the circuit clerks and the secretary-clerks of the
family courts a form notice that complies with the provisions of
this subsection. The supreme court of appeals shall promulgate
procedural rules that provide for an expedited hearing process to
resolve issues arising from a relocation or proposed relocation.
(c) When changed circumstances are shown under subsection (a)
of this section, the court shall, if practical, revise the
parenting plan so as to both accommodate the relocation and
maintain the same proportion of custodial responsibility being
exercised by each of the parents. In making such revision, the court may consider the additional costs that a relocation imposes
upon the respective parties for transportation and communication,
and may equitably allocate such costs between the parties.
(d) When the relocation constituting changed circumstances
under subsection (a) of this section renders it impractical to
maintain the same proportion of custodial responsibility as that
being exercised by each parent, the court shall modify the
parenting plan in accordance with the child's best interests and in
accordance with the following principles:
(1) A parent who has been exercising a significant majority of
the custodial responsibility for the child should be allowed to
relocate with the child so long as that parent shows that the
relocation is in good faith for a legitimate purpose and to a
location that is reasonable in light of the purpose. The
percentage of custodial responsibility that constitutes a
significant majority of custodial responsibility is seventy percent
or more. A relocation is for a legitimate purpose if it is to be
close to significant family or other support networks, for
significant health reasons, to protect the safety of the child or
another member of the child's household from significant risk of
harm, to pursue a significant employment or educational opportunity or to be with one's spouse who is established, or who is pursuing
a significant employment or educational opportunity, in another
location. The relocating parent has the burden of proving of the
legitimacy of any other purpose. A move with a legitimate purpose
is reasonable unless its purpose is shown to be substantially
achievable without moving or by moving to a location that is
substantially less disruptive of the other parent's relationship to
the child.
(2) If a relocation of the parent is in good faith for
legitimate purpose and to a location that is reasonable in light of
the purpose and if neither has been exercising a significant
majority of custodial responsibility for the child, the court shall
reallocate custodial responsibility based on the best interest of
the child, taking into account all relevant factors including the
effects of the relocation on the child.
(3) If a parent does not establish that the purpose for that
parent's relocation is in good faith for a legitimate purpose into
a location that is reasonable in light of the purpose, the court
may modify the parenting plan in accordance with the child's best
interests and the effects of the relocation on the child. Among
the modifications the court may consider is a reallocation of primary custodial responsibility, effective if and when the
relocation occurs, but such a reallocation shall not be ordered if
the relocating parent demonstrates that the child's best interests
would be served by the relocation.
(4) The court shall attempt to minimize impairment to a
parent-child relationship caused by a parent's relocation through
alternative arrangements for the exercise of custodial
responsibility appropriate to the parents' resources and
circumstances and the developmental level of the child.
(e) In determining the proportion of caretaking functions each
parent previously performed for the child under the parenting plan
before relocation, the court may not consider a division of
functions arising from any arrangements made after a relocation but
before a modification hearing on the issues related to relocation.
(f) In determining the effect of the relocation or proposed
relocation on a child, any interviewing or questioning of the child
shall be conducted in accordance with the provisions of rule 17 of
the rules of practice and procedure for family law as promulgated
by the supreme court of appeals.
(g) All orders relating to custody are considered to include
a provision which requires the parties to keep the court timely informed of all address changes until the children have attained
adulthood. For the purposes of this section, "timely informed"
means no less than thirty days prior to a relocation where the
party knows in advance of the relocation, and in all events, not
later than three days following a relocation.
(h) Upon motion of the affected party, the court shall order
the bureau for child support enforcement to disclose to the court
the address to which child support payments are being sent. In the
event a parent has moved and taken a child or children in a manner
to impair or interfere with the visitation of the other parent, the
court shall use the information obtained from the bureau of child
support enforcement to obtain service of process in conjunction
with a proceeding to enforce the prior order of the court regarding
custody and visitation.
(i) In the appropriate case and upon the motion of a party,
the court may, if it considers the action to be warranted, require
any party relocating outside of this state to post a bond to insure
that the parent remaining in this state shall be able to have
visitation with his or her minor child or children. Prior to
ordering any bond under this subsection, the court shall make
specific findings as to why the bond is necessary.
PART 5. ENFORCEMENT OF PARENTING PLANS.
§48-9-501. Enforcement of parenting plans and support orders.
(a) If, upon a parental complaint, the court finds a parent
intentionally and without good cause violated a provision of the
court-ordered parenting plan
or court ordered visitation, it shall
enforce the remedy specified in the plan or, if no remedies are
specified or they are clearly inadequate, it shall find the plan
has been violated and order an appropriate remedy, which may
include:
(1) In the case of interference with the exercise of custodial
responsibility for a child by the other parent, substitute time for
that parent to make up for time missed with the child;
(2) In the case of missed time by a parent, costs in
recognition of lost opportunities by the other parent, in child
care costs and other reasonable expenses in connection with the
missed time;
(3) A modification of the plan, if the requirements for a
modification are met under section 9-209, section 9-401, 402 or 403
of this article, including an adjustment of the custodial
responsibility of the parents or an allocation of exclusive
custodial responsibility to one of them;
(4) An order that the parent who violated the plan obtain
appropriate counseling;
(5) A civil penalty, in an amount of not more than one hundred
dollars for a first offense, not more than five hundred dollars for
a second offense, or not more than one thousand dollars for a third
or subsequent offense, to be paid to the parent education fund as
established under section 9-104;
(6) Court costs, reasonable attorney's fees and any other
reasonable expenses in enforcing the plan; and
(7) Any other appropriate remedy.
(b) Except as provided in a jointly submitted plan that has
been ordered by the court, obligations established in a parenting
plan are independent obligations, and it is not a defense to an
action under this section by one parent that the other parent
failed to meet obligations under a parenting plan or child support
order.
(c) An agreement between the parents to depart from the
parenting plan can be a defense to a claim that the plan has been
violated, even though the agreement was not made part of a court
order, but only as to acts or omissions consistent with the
agreement that occur before the agreement is disaffirmed by either parent.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-111. Establishment of parent locator service.
(a) The bureau for child support enforcement shall establish
a parent locator service to locate individuals for the purposes of
establishing parentage and of establishing, modifying or enforcing
child support obligations utilizing using all sources of
information and available records and the parent locator service in
the federal department of health and human services. For purposes
of obtaining information from the parent locator service, any
person, agency or entity providing services to the bureau for child
support enforcement pursuant to a contract that includes a
provision to ensure that the confidentiality of information is
maintained shall be deemed to be an agent of the bureau for child
support enforcement.
(b) Upon entering into an agreement with the secretary of the
federal department of health and human services for the use of that
department's parent locator service, the bureau for child support
enforcement shall accept and transmit to the secretary of the
federal department of health and human services requests from
authorized persons for information with regard to the whereabouts
of a noncustodial obligor to be furnished by such the federal parent locator service. For purposes of this subsection,
"authorized persons" means: (1) An attorney or agent of the bureau
for child support enforcement; (2) a family law master or circuit
court judge or any agent thereof; or (3) a resident parent, legal
guardian, attorney or agent for a child. The bureau for child
support enforcement shall charge a reasonable fee sufficient to
cover the costs to the state and to the federal department of
health and human services incurred by reason of such the requests
and shall transfer to that department, from time to time, so much
of the fees collected as are attributable to the costs incurred by
that department.
(c) The information obtained by the bureau for child support
enforcement from the federal parent locator service shall be used
for, but not limited to, the following purposes:
(1) Establishing parentage and establishing, setting the
amount of, modifying or enforcing child support obligations;
(2) Obtaining and transmitting information to any family law
master or circuit court or agent thereof or to an attorney or
employee of the United States or of any state responsible for
enforcing any federal or state law with respect to the unlawful
taking or restraint of a child or making or enforcing a child custody or visitation determination.
(d) The bureau for child support enforcement may request from
the federal parent locator service information:
(1) About, or which will facilitate the discovery of
information about, the location of any individual: (A) Who is
under an obligation to pay child support; (B) against whom such an
obligation is sought; or (C) to whom such an obligation is owed,
including the individual's social security number, or numbers, most
recent address and the name, address and employer identification
number of the individual's employer;
(2) Concerning the individual's wages or other income from,
and benefits of, employment, including rights to or enrollment in
group health care coverage; and
(3) Concerning the type, status, location and amount of any
assets of, or debts owed by or to, any such individual.
(e) The family court shall have jurisdiction to hear and
determine, upon a petition by an authorized person as defined in
subsection (b) of this section, whether the release of information
from the federal parent locator service to that person could be
harmful to the custodial parent or the child.
(f) Notwithstanding anything to the contrary, where one party has unlawfully taken a child, or has unlawfully interfered with,
hindered or prevented child visitation, the other custodial party
has the unqualified right to file a missing persons report with the
appropriate law-enforcement agency or agencies and the bureau of
child support enforcement shall file a missing persons report.
Any
law-enforcement agency in this state that receives a report from
the bureau of child support enforcement that a child has been
reported to be missing shall immediately follow its procedures for
investigating missing persons. No agency or department policy
delaying the beginning of an investigation shall have any force or
effect.
(g) The bureau of child support enforcement shall work with
other states to assist a parent denied visitation where one parent
leaves this state and does not inform the court or the other parent
of his or her new address.
NOTE: The purpose of this bill is to provide for the right of
first refusal of noncustodial parent where minor children need
child care. The bill also provides for criminal background checks
and for the court to have mental health records in certain
instances in connection with determining child custody and
visitation. The bill further provides that all court orders
relating to custody are considered to include a provision requiring
the parties to keep the court timely informed of all address
changes.
The bill requires the bureau of child support enforcement to
disclose to the court the address to which child support payments
are being sent. The bill provides a mechanism for providing
assistance for location and visitation of one parent where the
other parent has taken a child and moved out of state. Bonds are
required in certain instances where a custodial parent relocates
out-of-state. The bill gives the right to a parent to file a
missing person report where a child has been unlawfully taken by a
parent.
The bill also provides the same remedies for enforcement of
child support orders as are provided for enforcement of parenting
plans. The bill lowers the age from fourteen years to twelve years
for the court to accommodate the reasonable preferences of a child
where the child has expressed a voluntary preference for one
parent.
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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