H. B. 4619
(By Delegate Webb)
[Introduced February 25, 2004; referred to the
Committee on the Judiciary.]
A BILL to repeal §48-1-219, §48-1-223, §48-1-242 and §48-1-243 of
the code of West Virginia, 1931, as amended; to amend and
reenact §48-1-218, §48-1-222, §48-1-246 and §48-1-303 of said
code; to amend and reenact §48-6-301 of said code; to amend
and reenact §48-9-204, §48-9-301 and §48-9-303 of said code;
to amend and reenact §48-12-102 of said code; to amend and
reenact §48-13-801 of said code; and to amend said code by
adding thereto two new sections, designated §48-13-901 and
§48-13-902 of said code, all relating to domestic relations;
child custody and support; spousal support; and technical and
nomenclature changes.
Be it enacted by the Legislature of West Virginia:
That §48-1-219, §48-1-223, §48-1-242 and §48-1-243 of the code
of West Virginia, 1931, as amended, be repealed; that §48-1-218,
§48-1-222, §48-1-246 and §48-1-303 of said code be amended and reenacted; that §48-6-301 of said code be amended and reenacted;
that §48-9-204, §48-9-301 and §48-9-303 of said code be amended and
reenacted; that §48-12-102 of said code be amended and reenacted;
that §48-13-801 of said code be amended and reenacted; and that
said code be amended by adding thereto two new sections, designated
§48-13-901 and §48-13-902 of said code, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
PART 2. DEFINITIONS.
§48-1-218. Custodial parent defined.
"
Custodial Residential parent" or "
custodial residential
parent of a child" means a parent who has been granted
custody of
primary residence for a child by a court of competent jurisdiction.
"
Noncustodial Nonresidential parent" means a parent of a child with
respect to whom custody has been adjudicated with the result that
such parent has not been granted
custody of primary residence for
the child.
§48-1-222. Domestic relations action defined.
"Domestic relations action" means an action:
(1) To obtain a divorce;
(2) To have a marriage annulled;
(3) To be granted separate maintenance;
(4) To establish paternity;
(5) To establish and enforce child or spousal support,
including actions brought under the provisions of the uniform interstate family support act; and
(6) To allocate
custodial responsibility parenting time and
determine decision-making responsibility, or to otherwise determine
child custody,
as in an action petitioning for a writ of habeas
corpus or other action wherein the issue is child custody.
§48-1-246. Unreimbursed health care expenses defined.
"Unreimbursed health care expenses" means
the child's portion
of health insurance premiums and extraordinary medical expenses
not
covered by insurance.
PART 3. MISCELLANEOUS PROVISIONS RELATING TO DOMESTIC RELATIONS.
§48-1-303. Confidentiality of domestic relations court files.
(a) All orders in domestic relations actions entered in the
civil order books by circuit clerks are public records.
(b) (a) Upon the filing of a domestic relations action, all
pleadings, exhibits or other documents, other than orders, that are
contained in the court file are confidential and not open for
public inspection either during the pendency of the case or after
the case is closed.
(c) (b) When sensitive information has been disclosed during
a hearing or in pleadings, evidence or documents filed in the
record, the court may, sua sponte or upon motion of a party, order
such information sealed in the court file. Sealed documents or
court files can only be opened by order of a circuit or family
court judge.
(d) (c) The parties, their designees, their attorneys, a duly
appointed guardian ad litem or any other person who has standing to
seek modification or enforcement of a support order has the right
to examine and copy any document in a confidential court file that
has not been sealed by court order. Upon motion and for good cause
shown, the court may permit a person who is not a party to the
action to examine and copy any documents that are necessary to
further the interests of justice.
(e) (d) The clerk of the circuit court shall keep a written
log of all persons who examine confidential documents as provided
for in this section. Every person who examines confidential
documents shall first sign the clerk's written log, except for a
circuit judge or family court judge before whom the case is
pending, or court personnel acting within the scope of their
duties. The clerk shall record the time and date of every
examination of confidential documents. The log must be retained by
the clerk and must be available upon request for inspection by the
circuit judge or the family court judge.
ARTICLE 6. PROPERTY SETTLEMENT AND SEPARATION AGREEMENTS.
PART 3. RELIEF IN ABSENCE OF AGREEMENT.
§48-6-301. Factors considered in awarding spousal support, or
separate maintenance.
(a) In cases where the parties to an action commenced under
the provisions of this article have not executed a separation agreement, or have executed an agreement which is incomplete or
insufficient to resolve the outstanding issues between the parties,
or where the court finds the separation agreement of the parties
not to be fair and reasonable or clear and unambiguous, the court
shall proceed to resolve the issues outstanding between the
parties.
(b) The court shall consider the following factors in
determining the amount of spousal support
child support or separate
maintenance, if any, to be ordered under the provisions of parts 5
and 6, article five of this chapter, as a supplement to or in lieu
of the separation agreement:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties
actually lived together as husband and wife;
(3) The present employment income and other recurring earnings
of each party from any source;
(4) The income-earning abilities of each of the parties, based
upon such factors as educational background, training, employment
skills, work experience, length of absence from the job market and
custodial responsibilities for children;
(5) The distribution of marital property to be made under the
terms of a separation agreement or by the court under the
provisions of article seven of this chapter, insofar as the
distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive spousal support
,
child support or separate maintenance:
Provided, That for the
purposes of determining a spouse's ability to pay spousal support,
the court may not consider the income generated by property
allocated to the payor spouse in connection with the division of
marital property unless the court makes specific findings that a
failure to consider income from the allocated property would result
in substantial inequity;
(6) The ages and the physical, mental and emotional condition
of each party;
(7) The educational qualifications of each party;
(8) Whether either party has foregone or postponed economic,
education or employment opportunities during the course of the
marriage;
(9) The standard of living established during the marriage;
(10) The likelihood that the party seeking spousal support,
child support or separate maintenance can substantially increase
his or her income-earning abilities within a reasonable time by
acquiring additional education or training;
(11) Any financial or other contribution made by either party
to the education, training, vocational skills, career or earning
capacity of the other party;
(12) The anticipated expense of obtaining the education and
training described in subdivision (10) above;
(13) The costs of educating minor children;
(14) (13) The costs of providing health care for each of the
parties;
and their minor children;
(15) (14) The tax consequences to each party;
(16) (15) The extent to which it would be inappropriate for a
party, because said party will be the custodian of a minor child or
children, to seek employment outside the home;
(17) (16) The financial need of each party;
(18) (17) The legal obligations of each party to support
himself or herself and to support any other person;
(19) (18) Costs and care associated with a minor or adult
child's physical or mental disabilities; and
(20) (19) Such other factors as the court deems necessary or
appropriate to consider in order to arrive at a fair and equitable
grant of spousal support
child support or separate maintenance.
ARTICLE 9. CUSTODY OF CHILDREN.
§48-9-204. Criteria for temporary parenting plan.
(a) After considering the proposed temporary parenting plan
filed pursuant to section 9-203 and other relevant evidence
presented, the court shall make a temporary parenting plan that is
in the best interest of the child. In making this determination,
the court shall give particular consideration to:
(1) Which parent has taken greater responsibility during the
last twelve months for performing care taking and parenting functions relating to the daily needs of the child; and
(2) Which parenting arrangements will cause the least
disruption to the child's emotional stability while the action is
pending.
(b) The court shall also consider the factors used to
determine residential provisions in the permanent parenting plan.
(c) (b) Upon credible evidence of one or more of the
circumstances set forth in subsection 9-209(a), the court shall
issue a temporary order limiting or denying access to the child as
required by that section, in order to protect the child or the
other party, pending adjudication of the underlying facts.
(d) (c) Expedited procedures shall be instituted to facilitate
the prompt issuance of a parenting plan.
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
or state social service organization
experienced in counseling children and families,
including child
protective services. 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) 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.
§48-9-303. Interview of the child by the court.
The court, in its discretion, may interview the child in
chambers or direct another person to interview the child, in order
to obtain information relating to the issues of the case. The
interview shall be conducted in accordance with rule
16 17 of the
rules of practice and procedure for family law, as promulgated by
the supreme court of appeals.
ARTICLE 12. MEDICAL SUPPORT.
§48-12-102. Court-ordered medical support.
In every action to establish or modify an order which requires
the payment of child support, the court shall ascertain the ability
of each parent to provide medical care for the children of the
parties. In any temporary or final order establishing an award of
child support or any temporary or final order modifying a prior
order establishing an award of child support, the court shall order
one or more of the following:
(1) The court shall order either parent or both parents to
provide insurance coverage for a child, if such insurance coverage
is available to that parent
at a reasonable cost on a group basis
through an employer, multiemployer trust or through an employee's union. If similar insurance coverage is available to both parents,
the court shall order the child to be insured under the insurance
coverage which provides more comprehensive benefits. If such
insurance coverage is not available at the time of the entry of the
order, the order shall require that if such coverage thereafter
becomes available to either party
at reasonable cost, that party
shall promptly notify the other party of the availability of
insurance coverage for the child.
(2) If the court finds that insurance coverage is not
available
at a reasonable cost to either parent on a group basis
through an employer, multiemployer trust or employees' union, or
that the group insurer is not accessible to the parties, the court
may order either parent or both parents to obtain insurance
coverage which is otherwise available at a reasonable cost.
(3) Based upon the respective ability of the parents to pay,
the court may order either parent or both parents to be liable for
reasonable and necessary medical care for a child. The court shall
specify the proportion of the medical care for which each party
shall be responsible. If the amount of the award of child support
in the order is determined using the child support guidelines, the
court shall order that nonrecurring or subsequently occurring
uninsured medical expenses in excess of two hundred fifty dollars
per year per child shall be separately divided between the parties
in proportion to their adjusted gross incomes.
(4) If insurance coverage is available, the court shall also
determine the amount of the annual deductible on insurance coverage
which is attributable to the children and designate the proportion
of the deductible which each party shall pay.
(5) The order shall require the obligor to continue to provide
the bureau for child support enforcement with information as to his
or her employer's name and address and information as to the
availability of employer-related insurance programs providing
medical care coverage so long as the child continues to be eligible
to receive support.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
PART VIII. MISCELLANEOUS PROVISIONS RELATING TO CHILD SUPPORT
ORDERS.
§48-13-801. Tax exemption for child due support.
Unless otherwise agreed to by the parties, the court shall
allocate the right to claim dependent children for income tax
purposes to the payee parent
except in cases of extended shared
parenting. In extended shared parenting cases, these rights shall
be allocated between the parties in proportion to their adjusted
gross incomes for child support calculations. In a situation where
allocation would be of no tax benefit to
a party the
payee parent
the court need make no allocation to that party. However, the The
tax exemptions
for the minor child or children should shall be
granted to the payor parent only if the total of the payee parent's income and child support is greater when the exemption is awarded
to the payor parent.
§48-13-901. Spousal support defined.
"Spousal support" means an allowance that a person may be
ordered to pay for the support and maintenance of a spouse or a
former spouse, while they are living separate and apart or after an
order for divorce, annulment or separate maintenance.
§48-13-902. Spousal support in gross defined.
"Spousal support in gross" means spousal support payable
either in a lump sum, or in periodic payments of a definite amount
over a specific period of time. A spousal support award is
"spousal support in gross" only if the award grants spousal support
in such terms that a determination can be made of the total amount
to be paid as well as the time such payments will cease.
ARTICLE 2A. FAMILY COURTS.
§51-2A-2. Family court jurisdiction; exceptions; limitations.
(a) The family court shall exercise jurisdiction over the
following matters:
(1) All actions for divorce, annulment or separate maintenance
brought under the provisions of article three, four or five,
chapter forty-eight of this code except as provided in subsections
(b) and (c) of this section;
(2) All actions to obtain orders of child support brought
under the provisions of articles eleven, twelve and fourteen, chapter forty-eight of this code;
(3) All actions to establish paternity brought under the
provisions of article twenty-four, chapter forty-eight of this code
and any dependent claims related to such actions regarding child
support, parenting plans or other allocation of custodial
responsibility or decision-making responsibility for a child;
(4) All actions for grandparent visitation brought under the
provisions of article ten, chapter forty-eight of this code;
(5) All actions for the interstate enforcement of family
support brought under article sixteen, chapter forty-eight of this
code and for the interstate enforcement of child custody brought
under the provisions of article twenty, chapter forty-eight of this
code;
(6) All actions for the establishment of a parenting plan or
other allocation of custodial responsibility or decision-making
responsibility for a child, including actions brought under the
uniform child custody jurisdiction and enforcement act, as provided
in article twenty, chapter forty-eight of this code;
(7) All petitions for writs of habeas corpus wherein the issue
contested is custodial responsibility for a child;
(8) All motions for temporary relief affecting parenting plans
or other allocation of custodial responsibility or decision-making
responsibility for a child, child support, spousal support or
domestic violence;
(9) All motions for modification of an order providing for a
parenting plan or other allocation of custodial responsibility or
decision-making responsibility for a child or for child support or
spousal support;
(10) All actions brought, including civil contempt
proceedings, to enforce an order of spousal or child support or to
enforce an order for a parenting plan or other allocation of
custodial responsibility or decision-making responsibility for a
child;
(11) All actions brought by an obligor to contest the
enforcement of an order of support through the withholding from
income of amounts payable as support or to contest an affidavit of
accrued support, filed with the circuit clerk, which seeks to
collect an arrearage;
(12) All final hearings in domestic violence proceedings;
(13) Petitions for a change of name, exercising concurrent
jurisdiction with the circuit court;
(14) All proceedings for payment of attorney fees if the
family court judge has jurisdiction of the underlying action;
(15) All proceedings for property distribution brought under
article seven, chapter forty-eight of this code;
and
(16) All proceedings to obtain spousal support
brought under
pursuant to article eight chapter forty-eight of this code;
(17) All proceedings for appointment of guardians and wards pursuant to article ten, chapter forty-four of this code; and
(18) All proceedings for custody, visitations or establishment
of a parenting plan for half-siblings or step-siblings.
(b) If an action for divorce, annulment or separate
maintenance does not require the establishment of a parenting plan
or other allocation of custodial responsibility or decision-making
responsibility for a child and does not require an award or any
payment of child support, the circuit court has concurrent
jurisdiction with the family court over the action if, at the time
of the filing of the action, the parties also file a written
property settlement agreement executed by both parties.
(c) If an action for divorce, annulment or separate
maintenance is pending and a petition is filed pursuant to the
provisions of article six, chapter forty-nine of this code alleging
abuse or neglect of a child by either of the parties to the
divorce, annulment or separate maintenance action, the orders of
the circuit court in which the abuse or neglect petition is filed
shall supercede and take precedence over an order of the family
court respecting the allocation of custodial and decision-making
responsibility for the child between the parents. If no order for
the allocation of custodial and decision-making responsibility for
the child between the parents has been entered by the family court
in the pending action for divorce, annulment or separate
maintenance, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making
responsibility for the child between the parents and defer to the
orders of the circuit court in the abuse or neglect proceedings.
(d) A family court is a court of limited jurisdiction. A
family court is a court of record only for the purpose of
exercising jurisdiction in the matters for which the jurisdiction
of the family court is specifically authorized in this section and
in chapter forty-eight of this code. A family court may not
exercise the powers given courts of record in section one, article
five, chapter fifty-one of this code or exercise any other powers
provided for courts of record in this code unless specifically
authorized by the Legislature. A family court judge is not a
"judge of any court of record" or a "judge of a court of record" as
the terms are defined and used in article nine of this chapter.
NOTE: The purpose of this bill is to make technical changes
to the language treating child custody, child support, parental
planning and spousal support, including the repealing of §48-1-242
and §48-1-243 and replacing them, without change, in article
thirteen as §48-13-901 and §48-13-902.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§48-13-901 and §48-13-902 are new; therefore, strike-throughs
and underscoring have been omitted.
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