Senate Bill No. 421
(By Senators D. Facemire, Minard, Laird and Jenkins)
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[Introduced March 3, 2009; referred to the Committee on Military;
and then to the Committee on the Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §48-9-404, relating
to modifying a child custody and support order due to military
service.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §48-9-404, to read as
follows:
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-
MAKING RESPONSIBILITY OF CHILDREN.
§48-9-404. Modification due to military service.
(a) If a petition or a motion for modification of a parenting
plan is filed because a parent is activated, deployed or
temporarily assigned to military service and the parent's ability
to comply with a parenting plan is materially affected as a result, the court may not issue an order, modify, or amend a previous
judgment or order that changes a parenting plan as it existed on
the date the parent was activated, deployed or temporarily assigned
to military service, except that a court may enter a temporary
order to modify or amend a parenting plan if there is preponderance
of the evidence that the temporary modification or amendment is in
the best interest of the child. When entering a temporary order
under this section, the court is to consider and provide for, if
feasible contact between the military service member and his or her
child, including, but not limited to, electronic communication by
web cam, telephone or other available means. The court is to
permit a liberal parenting plan during periods of leave from
military service, as it is in the child's best interest to maintain
the parent-child bond during the parent's military service.
(b) If a temporary parenting plan is issued under this
section, the court is to reinstate the parenting plan previously in
effect upon the service member parent's return from active military
service, deployment or temporary assignment.
(c) If a temporary order is entered under this section, the
court may address the issue of support for the child by:
(1) Entering an order of temporary support from the service
member to the other parent under article eleven of this chapter;
(2) Suspending, abating or reducing the child support
obligation of the nonservice member until the custody judgement or parenting plan order previously in effect is reinstated.
(d) This section does not apply to permanent change of station
moves by military personnel.
NOTE: The purpose of this bill is to allow for more
flexibility in the parenting plan of a member of the military who
is called back to active duty.
§48-9-404 is new; therefore, strike-throughs and underscoring
have been omitted.
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