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Introduced Version Senate Bill 41 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 41

(By Senator Kessler, Barnes and White)

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[Introduced January 9, 2008; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §48-9-209 of the Code of West Virginia, 1931, as amended, relating to the allocation of responsibility under a parenting plan for a child; and adding that if a parent has made two or more unsubstantiated or false reports of domestic violence or child abuse, then, upon the request of either parent, the court may determine if limitations should be imposed.

Be it enacted by the Legislature of West Virginia:
That §48-9-209 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.

§48-9-209. Parenting plan; limiting factors.
(a) If either of the parents so requests, or upon receipt of credible information thereof, the court shall determine whether a parent who would otherwise be allocated responsibility under a parenting plan:
(1) Has abused, neglected or abandoned a child, as defined by state law;
(2) Has sexually assaulted or sexually abused a child as those terms are defined in articles eight-b and eight-d, chapter sixty-one of this code;
(3) Has committed domestic violence, as defined in section 27-202;
(4) Has interfered persistently with the other parent's access to the child, except in the case of actions taken for the purpose of protecting the safety of the child or the interfering parent or another family member, pending adjudication of the facts underlying that belief; or
(5) Has repeatedly knowingly made a fraudulent reports report of domestic violence or child abuse; or 
(6) Has made two or more unsubstantiated or false reports of domestic violence or child abuse.
(b) If a parent is found to have engaged in any activity specified by subsection (a) of this section, the court shall impose limits that are reasonably calculated to protect the child or child's parent from harm. The limitations that the court shall consider include, but are not limited to:
(1) An adjustment of the custodial responsibility of the parents, including the allocation of exclusive custodial responsibility to one of them;
(2) Supervision of the custodial time between a parent and the child;
(3) Exchange of the child between parents through an intermediary, or in a protected setting;
(4) Restraints on the parent from communication with or proximity to the other parent or the child;
(5) A requirement that the parent abstain from possession or consumption of alcohol or nonprescribed drugs while exercising custodial responsibility and in the twenty-four hour period immediately preceding such exercise;
(6) Denial of overnight custodial responsibility;
(7) Restrictions on the presence of specific persons while the parent is with the child;
(8) A requirement that the parent post a bond to secure return of the child following a period in which the parent is exercising custodial responsibility or to secure other performance required by the court;
(9) A requirement that the parent complete a program of intervention for perpetrators of domestic violence, for drug or alcohol abuse, or a program designed to correct another factor; or
(10) Any other constraints or conditions that the court deems necessary to provide for the safety of the child, a child's parent or any person whose safety immediately affects the child's welfare.
(c) If a parent is found to have engaged in any activity specified in subsection (a) of this section, the court may not allocate custodial responsibility or decision-making responsibility to that parent without making special written findings that the child and other parent can be adequately protected from harm by such limits as it may impose under subsection (b) of this section. The parent found to have engaged in the behavior specified in subsection (a) of this section has the burden of proving that an allocation of custodial responsibility or decision-making responsibility to that parent will not endanger the child or the other parent.



NOTE: The purpose of this bill is to add if a parent has made two or more unsubstantiated or false reports of domestic violence or child abuse, then upon the request of either parent, the court may determine if limitations should be imposed upon the allocated responsibility.

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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