H. B. 4538
(By Delegate Webb (By Request))
[Introduced February 19, 2002; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend chapter forty-eight of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twenty-eight,
relating to custody of minor children when one spouse murders
the other spouse.
Be it enacted by the Legislature of West Virginia:
That chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article twenty-eight, to read as
follows:
ARTICLE 28. CUSTODY OF MINOR CHILDREN OF MURDERED SPOUSE.
§48-28-1. Emergency custody orders of court.
(a) Upon the filing of a verified petition under this
article, a family court judge shall, without a hearing therefore,
enter an emergency custody order placing the minor children of a deceased parent allegedly murdered by the spouse of the deceased
parent at or immediately after the arrest of the alleged murderer.
In the emergency custody order, the judge shall provide that
temporary custody of the deceased spouse's minor children shall be
the father and/or mother of the deceased parent. If there are no
adult relatives of the deceased parent available or willing to take
emergency custody of the children, then the family court judge
shall appoint some suitable person that the court determines to be
competent and fit and who will ensure the welfare and best
interests of the children. In no event may emergency custody,
custody or guardianship be granted to any family member of the
alleged murderer.
§48-28-2. Length of emergency custody orders; investigation;
report.
The emergency custody order shall continue in effect for not
less than ninety days nor more than six months unless sooner
modified or shortened by the judge with jurisdiction over the
matter upon a showing of good cause therefor
.
Within thirty days from the grant of emergency custody as set
forth under the provisions of this section, the court shall order
the department of health and human resources to undertake an
investigation of the person in whose custody the children are
placed as set forth in the emergency order to ensure that the best
interests of the children are protected. The department of health and human resources shall consult with the family members of the
deceased parent to determine the most suitable person to become
guardian of the minor children. Upon completion of the
investigation, but not later than thirty days after the referral
from the circuit court, the department of health and human
resources shall file a report with the court setting forth its
findings and making a recommendation for the appointment of a
guardian.
§48-28-3. Guardianship granted.
Upon a hearing in the matter in which all interested parties
may be heard, if accepted by the court, the person recommended by
the department of health and human resources shall be granted
guardianship of the children. If the court does not appoint the
person recommended by the department of health and human resources
as guardian, the court shall appoint another adult family member as
guardian.
NOTE: The purpose of this bill is to provide that custody of
children of the parent murdered by his or her spouse shall be
placed with the most suitable member of the victim's family.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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