H. B. 2080


(By Delegates Pettit and Warner)
[Introduced January 14, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section fifteen, article two, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend article one, chapter forty-nine of said code by adding thereto a new section, designated section six, all relating to allowing for the admission into evidence in judicial proceedings held to determine custody of minor children any criminal convictions for acts of violence or abuse toward children or family members.

Be it enacted by the Legislature of West Virginia:
That section fifteen, article two, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that article one, chapter forty-nine of said code be amended by adding thereto a new section, designated section six, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS

ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-15. Relief upon ordering divorce or annulment or granting
decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate maintenance, the court may require either party to pay alimony in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party. Payments of alimony are to be ordinarily made from a party's income, but when the income is not sufficient to adequately provide for those payments, the court may, upon specific findings set forth in the order, order the party required to make those payments to make them from the corpus of his or her separate estate. An award of alimony shall may not be disproportionate to a party's ability to pay as disclosed by the evidence before the court.
(b) Upon ordering the annulment of a marriage or a divorce or granting of decree of separate maintenance, the court may further order all or any part of the following relief:
(1) The court may provide for the custody of minor children of the parties, subject to such the rights of visitation, both in and out of the residence of the custodial parent or other person or persons having custody, as may be appropriate under the circumstances. In any judicial proceeding in which the custody of minor children is at issue, evidence of a criminal conviction under any provision contained in article eight-d, chapter sixty-one of this code or of a criminal conviction related to any other act of violence or abuse against any member of a party's nuclear family is admissible. In every action where visitation is awarded, the court shall specify a schedule for visitation by the noncustodial parent: Provided, That with respect to any existing order which provided provides for visitation but which does not provide a specific schedule for visitation by the noncustodial parent, upon motion of any party, notice of hearing and hearing, the court shall issue an order which provides a specific schedule of visitation by the noncustodial parent;
(2) When the action involves a minor child or children, the court shall require either party to pay child support in the form of periodic installments for the maintenance of the minor children of the parties in accordance with support guidelines promulgated pursuant to section one, article one-b, chapter forty-eight-a of this code. Payments of child support are to be ordinarily made from a party's income, but in cases when the income is not sufficient to adequately provide for those payments, the court may, upon specific findings set forth in the order, order the party required to make those payments to make them from the corpus of his or her separate estate;
(3) When the action involves a minor child or children, the court shall in its order provide for the medical support for any minor children in accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of alimony or child support, the court may order either party to continue in effect existing policies of insurance covering the costs of health care and hospitalization of the other party: Provided, That if the other party is no longer eligible to be covered by such insurance because of the granting of an annulment or divorce, the court may require a party to substitute such the insurance with a new policy to cover the other party or may consider the prospective cost of such the insurance in awarding alimony to be paid in periodic installments. Payments made to an insurer pursuant to this subdivision, either directly or by a deduction from wages, shall be are deemed to be alimony or installment payments for the distribution of marital property, in such proportion as the court shall direct directs: Provided, however, That if the court does not set forth in the order that a portion of such the payments is to be deemed installment payments for the distribution of marital property, then all such the payments made pursuant to this subdivision shall be are deemed to be alimony: Provided further, That the designation of insurance coverage as alimony under the provisions of this subdivision shall may not, in and of itself, give rise to a subsequent modification of the order to provide for alimony other than insurance for covering the costs of health care and hospitalization;
(5) The court may grant the exclusive use and occupancy of the marital home to one of the parties, together with all or a portion of the household goods, furniture and furnishings reasonably necessary for such use and occupancy. Such Use and occupancy shall be for a definite period, ending at a specific time set forth in the order, subject to modification upon the petition of either party. Except in extraordinary cases supported by specific findings set forth in the order granting relief, a grant of the exclusive use and occupancy of the marital home shall be limited to those situations when such use and occupancy is reasonably necessary to accommodate the rearing of minor children of the parties. The court may require payments to third parties in the form of home loan installments, land contract payments, rent, property taxes and insurance coverage if the amount of such coverage is reduced to a fixed monetary amount set forth in the court's order. When such third party payments are ordered, the court shall specify whether such payments or portions of payments are alimony, child support, a partial distribution of marital property or an allocation of marital debt: Provided, That if the court does not set forth in the order that a portion of such the payments is to be deemed child support or installment payments for the distribution of marital property, then all such payments made pursuant to this subdivision shall be are deemed to be alimony. When such third party payments are ordered, the court shall specify whether such payments or portions of payments are alimony, child support, a partial distribution of marital property or an allocation of marital debt. If the payments are not designated in an order and the parties have waived any right to receive alimony, the court may designate the payments upon motion by any party. Nothing contained in this subdivision shall may abrogate an existing contract between either of the parties and a third party or affect the rights and liabilities of either party or a third party under the terms of such the contract;
(6) As an incident to requiring the payment of alimony, the court may grant the exclusive use and possession of one or more motor vehicles to either of the parties. The court may require payments to third parties in the form of automobile loan installments or insurance coverage if available at reasonable rates, and any such payments made pursuant to this subdivision for the benefit of the other party shall be are deemed to be alimony or installment payments for the distribution of marital property, as the court may direct. Nothing contained in this subdivision shall may abrogate an existing contract between either of the parties and a third party or affect the rights and liabilities of either party or a third party under the terms of such the contract;
(7) When the pleadings include a specific request for specific property or raise issues concerning the equitable division of marital property as defined in section one of this article, the court shall order such relief as may be required to effect a just and equitable distribution of the property and to protect the equitable interests of the parties therein;
(8) Unless a contrary disposition is ordered pursuant to other provisions of this section, then upon the motion of either party, the court may compel the other party to deliver to the moving party any of his or her separate estate which may be in the possession or control of the respondent party and may make such further order as is necessary to prevent either party from interfering with the separate estate of the other;
(9) When allegations of abuse have been proven, the court shall enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other or interfering with the custodial or visitation rights of the other. Such The order may permanently enjoin the offending party from entering the school, business or place of employment of the other for the purpose of molesting or harassing the other; or from contacting making contact the other, in person or by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place;
(10) The court may order either party to take necessary steps to transfer utility accounts and other accounts for recurring expenses from the name of one party into the name of the other party or from the joint names of the parties into the name of one party. Nothing contained in this subdivision shall affect affects the liability of the parties for indebtedness on any such account incurred before the transfer of such the account.
(c) When an annulment or divorce is denied, the court shall retain jurisdiction of the case and may order all or any portion of the relief provided for in subsections (a) and (b) of this section which has been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in this state upon constructive service of process and personal jurisdiction is thereafter obtained of the defendant in such the case, the court may order all or any portion of the relief provided for in subsections (a) and (b) of this section which has been demanded or prayed for in the pleadings.
(e) After the entry of an order pursuant to the provisions of this section, the court may revise the order concerning the maintenance of the parties and enter a new order concerning the same, as the circumstances of the parties may require.
The court may also from time to time afterward, upon motion of either of the parties and upon proper service, revise such the order to grant relief pursuant to subdivision (9), subsection (b) of this section, and enter a new order concerning the same, as the circumstances of the parties and the benefit of children may require. The court may also from time to time afterward, upon the motion of either of the parties or other proper person having actual or legal custody of the minor child or children of the parties, revise or alter the order concerning the custody and support of the children, and make a new order concerning the same, issuing it forthwith, as the circumstances of the parents or other proper person or persons and the benefit of the children may require: Provided, That all orders modifying child support shall be in conformance with the requirements of support guidelines promulgated pursuant to article one-b, chapter forty-eight-a of this code: Provided, however, That an order providing for child support payments may be revised or altered for the reason, inter alia, that the existing order provides for child support payments in an amount that is less than eighty-five percent or more than one hundred fifteen percent of the amount that would be required to be paid under the child support guidelines promulgated pursuant to the provisions of said section.
In granting relief under this subsection, the court may, when other means are not conveniently available, alter any prior order of the court with respect to the distribution of marital property, if such the property is still held by the parties, and if necessary to give effect to a modification of alimony, child support or child custody or necessary to avoid an inequitable or unjust result which would be caused by the manner in which the modification will affect the prior distribution of marital property.
(f) When a separation agreement is the basis for an award of alimony, the court, in approving the agreement, shall examine the agreement to ascertain whether it clearly provides for alimony to continue beyond the death of the payor party or to cease in such that event. When alimony is to be paid pursuant to the terms of a separation agreement which does not state whether the payment of alimony is to continue beyond the death of the payor party or is to cease, or when the parties have not entered into a separation agreement and alimony is to be awarded, the court shall specifically state as a part of its order whether such payments of alimony are to be continued beyond the death of the payor party or cease.
(g) When a separation agreement is the basis for an award of alimony, the court, in approving the agreement, shall examine the agreement to ascertain whether it clearly provides for alimony to continue beyond the remarriage of the payee party or to cease in such event. When alimony is to be paid pursuant to the terms of a separation agreement which does not state whether the payment of alimony is to continue beyond the remarriage of the payee party or is to cease, or when the parties have not entered into a separation agreement and alimony is to be awarded, the court shall specifically state as a part of its order whether such payments of alimony are to be continued beyond the remarriage of the payee party or cease.
(h) In addition to the disclosure requirements set forth in section thirty-three of this article, the court may order accounts to be taken as to all or any part of marital property or the separate estates of the parties and may direct that the accounts be taken as of the date of the marriage, the date upon which the parties separated or any other time in assisting the court in the determination and equitable division of property.
(i) In determining whether alimony is to be awarded, or in determining the amount of alimony, if any, to be awarded under the provisions of this section, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of such the fault or misconduct as a contributing factor to the deterioration of the marital relationship. However, alimony shall may not be awarded when both parties prove grounds for divorce and are denied a divorce, nor shall an award of alimony under the provisions of this section be ordered which directs the payment of alimony to a party determined to be at fault, when, as a grounds granting the divorce, such the party is determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime which is a felony, subsequent to the marriage if such conviction has become final; or
(3) To have actually abandoned or deserted his or her spouse for six months.
(j) Whenever under the terms of this section or section thirteen of this article a court enters an order requiring the payment of alimony or child support, if the court anticipates the payment of such alimony or child support or any portion thereof to be paid out of "disposable retired or retainer pay" as that term is defined in 10 U.S.C. §1408, relating to members or former members of the uniformed services of the United States, the court shall specifically provide for the payment of an amount, expressed in dollars or as a percentage of disposable retired or retainer pay, from the disposable retired or retainer pay of the payor party to the payee party.
(k) Any order which provides for the custody or support of a minor child shall include:
(1) The name of the custodian;
(2) The amount of the support payments;
(3) The date the first payment is due;
(4) The frequency of the support payments;
(5) The event or events which trigger termination of the support obligation;
(6) A provision regarding wage withholding;
(7) The address where payments shall be sent;
(8) A provision for medical support; and
(9) When child support guidelines are not followed, a specific written finding pursuant to section fourteen, article one-b, chapter forty-eight-a of this code.
(l) (1) Unless the best interests of the child require otherwise, every final order and every modification order which provides for the custody of a minor child of the parties shall also provide for the following:
(A) The custodial parent shall be required to authorize school authorities in the school in which the child is enrolled to release to the noncustodial parent copies of any and all information concerning the child which would otherwise be properly released to the custodial parent;
(B) The custodial parent shall be required, promptly after receipt, to transmit to the noncustodial parent a copy of the child's grades or report card and copies of any other reports reflecting the status or progress of the child;
(C) The custodial parent shall be required, when practicable, to arrange appointments for parent-teacher conferences at a time when the noncustodial parent can be present;
(D) The custodial parent shall be required to authorize medical providers to release to the noncustodial parent copies of any and all information concerning medical care provided to the child which would otherwise be properly released to the custodial parent;
(E) The custodial parent shall be required to promptly inform the noncustodial parent of any illness of the child which requires medical attention; or, if the child is in the actual physical custody of the noncustodial parent during a period of visitation, the noncustodial parent shall be required to promptly inform the custodial parent of any illness of the child which requires medical attention;
(F) The custodial parent shall be required to consult with the noncustodial parent prior to any elective surgery being performed on the child; and in the event emergency medical procedures are undertaken for the child which require the parental consent of either parent, if time permits, the other parent shall be consulted, or if time does not permit such consultation, the other parent shall be promptly informed of such emergency medical procedures: Provided, That the same duty to inform the custodial parent applies to the noncustodial parent in the event that the emergency medical procedures are required while the child is in the physical custody of the noncustodial parent during a period of visitation: Provided, however, That nothing contained herein shall be deemed to may alter or amend the law of this state as it otherwise pertains to physicians or health care facilities obtaining parental consent prior to providing medical care or performing medical procedures.
(2) In the event a custodial parent shall fail or refuse fails or refuses to authorize the release of school or medical records as provided for by subdivision (1) of this subsection, then upon the ex parte application of the noncustodial parent, the family law master shall prepare an order for entry by the circuit court which appoints the family law master as a special commissioner authorized to execute a consent for the release of such records and direct it to the appropriate school authorities or medical providers.
CHAPTER 49. CHILD WELFARE.

ARTICLE 1. PURPOSES; DEFINITIONS.

§49-1-6. Admission of evidence of conviction for abuse of family
members.

In any judicial proceeding in which the custody of minor children is at issue, evidence of a criminal conviction under any provision contained in article eight-d, chapter sixty-one of this code or of a criminal conviction related to any other act of violence or abuse against any member of a party's nuclear family
is admissible.




NOTE: The purpose of this bill is to authorize the admission into evidence of a criminal conviction for abuse or violence against a family member in proceedings held to determine custodial rights of minor children.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§49-1-6 is new; therefore, strike-throughs and underscoring have been omitted.