H. B. 4685
(By Delegates Staton, Trump, Tillis, Smirl,
Underwood, Dalton and Amores)
(Originating in the Committee on the Judiciary)
[February 27, 1998]
A BILL to amend chapter forty-eight-a of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article five-b, relating to
the enforcement of orders granting visitation with a child and
providing for the suspension of licenses for violation of a
visitation order.
Be it enacted by the Legislature of West Virginia:
That chapter forty-eight-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article five-b, to read as
follows:
ARTICLE 5B. VISITATION ENFORCEMENT.
§48A-5B-1. Definitions.
For purposes of this article, the words or terms defined in
this section have the meanings ascribed to them. These definitions
are applicable unless a different meaning clearly appears from the context.
(1) "Action against a license" means a domestic relations
action seeking to cause the denial, nonrenewal, suspension,
revocation or restriction of a license applied for or held by a
person who has failed to comply with an order granting visitation
with a child.
(2) "License" means a license, permit, certificate of
registration, registration, credential, stamp or other indicia that
evidences a personal privilege entitling a person to do an act that
he or she would otherwise not be entitled to do, or evidences a
special privilege to pursue a profession, trade, occupation,
business or vocation. A license evidences a privilege that is
subject to suspension, withdrawal, revocation, forfeiture,
termination, or an action equivalent to any of these, by the
issuing licensing authority, and does not constitute a property
interest.
(3) "Licensee" means any person who possesses a valid license
in active status or who has a legal right or privilege to activate
or receive a license.
(4) "Licensing authority" means a department, commission,
board, office, agency or other unit of the state or a political
subdivision that issues a license.
§48A-5B-2. Licenses subject to action.
(a) The following licenses are subject to an action against a license as provided for in this article:
(1) A permit or license issued under chapter seventeen-b of
this code, authorizing a person to drive a motor vehicle;
(2) A commercial driver's license, issued under chapter
seventeen-e of this code, authorizing a person to drive a class of
commercial vehicle;
(3) A permit, license or stamp issued under article two or
two-b, chapter twenty of this code, regulating a person's
activities for wildlife management purposes, authorizing a person
to serve as an outfitter or guide, or authorizing a person to hunt
or fish;
(4) A license or registration issued under chapter thirty of
this code, authorizing a person to practice or engage in a
profession or occupation;
(5) A license issued under article twelve, chapter forty- seven of this code, authorizing a person to transact business as a
real estate broker or real estate salesperson;
(6) A license or certification issued under article fourteen,
chapter thirty-seven of this code, authorizing a person to transact
business as a real estate appraiser;
(7) A license issued under article twelve, chapter thirty- three of this code, authorizing a person to transact insurance
business as an agent, broker or solicitor;
(8) A registration made under article two, chapter thirty-two of this code, authorizing a person to transact securities business
as a broker-dealer, agent or investment advisor;
(9) A license issued under article twenty-two, chapter
twenty-nine of this code, authorizing a person to transact business
as a lottery sales agent;
(10) A license issued under articles thirty-two or thirty- four, chapter sixteen of this code, authorizing persons to pursue
a trade or vocation in asbestos abatement or radon mitigation;
(11) A license issued under article eleven, chapter twenty- one of this code, authorizing a person to act as a contractor;
(12) A license issued under article two-c, chapter nineteen
of this code, authorizing a person to act as an auctioneer; and
(13) A license, permit or certificate issued under chapter
nineteen of this code, authorizing a person to sell, market or
distribute agricultural products or livestock.
(b) More than one license may be the subject of a suspension
proceeding under this article.
§48A-5B-3. Persons who may commence an action against a license.
An action against a license may be commenced by (1) any person
who is subject to the terms of an order granting visitation with a
child or (2) the child with whom visitation is ordered. An action
against a license may not be brought against a person entitled to
visitation because of a failure of the person to exercise the
visitation.
§48A-5B-4. Jurisdiction for an action against a license.
A circuit court of this state has jurisdiction of an action
against a license. An action against a license shall be referred
to a family law master in accordance with the provisions of
subdivision (9), subsection (a), section six, article four of this
chapter.
§48A-5B-5. Commencement of action against a license.
An action against a license may be commenced by petition in
the circuit court of the county where the order for visitation was
issued or in the county where the licensee resides. The petition
shall allege the following:
(1) The name and, if known, the social security number of the
licensee;
(2) The type or types of license or licenses the licensee is
believed to hold and the name of each licensing authority;
(3) The manner in which a licensee has failed to comply with
an order for visitation; and
(4) The last known address of the licensee.
§48A-5B-6. Proof of visitation violation.
In an action against a license, the petitioner has the duty to
establish, by a preponderance of the evidence adduced at the
hearing, that the licensee knowingly and willfully engaged in a
pattern of material noncompliance with the terms of the visitation
order.
§48A-5B-7. Order suspending a license.
(a) If after notice and hearing, the petitioner has proven
that the licensee knowingly and willfully engaged in a pattern of
material noncompliance with the terms of an order for visitation,
the circuit court shall issue an order suspending a license for a
period of six months unless:
(1) The petitioner complaining of the visitation violation
files a certification that the licensee has entered into a
reasonable agreement for rescheduling any missed visitation or
otherwise correcting the visitation violation; or
(2) At a hearing, the licensee shows justification for the
noncompliance or shows other good cause why the request for license
suspension should be denied or stayed.
(b) It is a defense to an action against a license if the
child who is the subject of the visitation order is fourteen years
of age or older, and action or conduct of the child is the cause of
the noncompliance.
(c) The order suspending a license shall include the last
known address of the licensee.
(d) An order suspending a license shall also state that the
licensee is subject to the penalties of the licensing authority if
a final order of suspension is violated.
(e) A final order suspending a license shall be forwarded to
the appropriate licensing authority.
(f) If the court finds that the petition for suspension
should be denied, the petition shall be dismissed without
prejudice.
(g) In the discretion of the court, an order entered in an
action against a license may compel the losing party to pay all or
a portion of the attorney's fees and court costs reasonably
incurred by the prevailing party in prosecuting or defending the
action.
§48A-5B-8. Vacating or staying an order suspending a license.
(a) Upon motion, a court shall issue an order staying the
suspension of a license ordered by the court for one hundred eighty
days if the licensee enters into a reasonable agreement for
rescheduling any missed visitation or otherwise correcting the
visitation violation: Provided, That if the licensee has previously
had a license suspended pursuant to the provisions of this article,
the suspension shall not be stayed.
(b) If the suspension is stayed and if, at the end of one
hundred eighty days, the licensee is in compliance with the
agreement, the suspension of the license shall be vacated.
(c) The licensing authority shall be notified if the
suspension of a license is vacated or stayed. On receipt of such
notice, the licensing authority shall restore the licensee to
active status upon payment of any applicable fees and satisfaction
of any other licensing requirements.
§48A-5B-9. Proceeding to reinstate the suspension.
(a) The person complaining of the visitation violation may
file a motion with the court to lift the stay and reinstate the
suspension of a license if the licensee fails to comply with the
order for visitation, or fails to comply with an agreement for
rescheduling any missed visitation or otherwise correcting the
visitation violation. The motion shall allege the manner in which
the licensee (1) failed to comply with the order for visitation, or
(2) failed to comply with an agreement for rescheduling any missed
visitation or otherwise correcting the visitation violation.
(b) Upon a motion to lift a stay of an order suspending a
license, notice of a hearing shall be provided not less than
fourteen days prior to the hearing, by personal service or
certified mail, return receipt requested.
(c) If the licensee is found not to be in compliance with an
order for visitation or not to be in compliance with the terms of
an agreement for rescheduling any missed visitation or otherwise
correcting the visitation violation, the stay of the suspension
shall be lifted, the order suspending the license or licenses shall
be reinstated, and the licensing authority shall be promptly
informed of the suspension. The licensing authority shall suspend
the license effective the date the order becomes final.
§48A-5B-10. Order of suspension not a bar to other remedies.
An order of suspension issued pursuant to the provisions of this article does not prohibit the person seeking to enforce a
visitation order from seeking any other remedy provided by law or
from seeking additional relief pursuant to the provisions of this
article.