H. B. 3004


(By Delegates Johnson, Webb, Hines, Mahan,

Wills, Pino and Capito)

[Introduced February 26, 1999; referred

to the Committee on the Judiciary.]



A BILL to amend chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-d, all relating to allocating custodial and decisionmaking responsibility for minor children.

Be it enacted by the Legislature of West Virginia:
That chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended, by adding thereto a new article, designated article two-d, all to read as follows:
ARTICLE 2D. ALLOCATION OF CUSTODIAL AND DECISION-MAKING RESPONSIBILITY FOR CHILDREN.

Part 1. Scope, objectives, definitions, and parties.

§48-2D-1. Scope of article.


This article sets forth principles governing the allocation of custodial and decision-making responsibility for a minor child when the parents do not live together.

§48-2D-2. Objectives; best interests of the child defined.


(a) The primary objective of this article is to serve the child's best interests, by facilitating:
(1) Parental planning and agreement about the child's custodial arrangements and upbringing;
(2) Continuity of existing parent-child attachments;
(3) Meaningful contact between a child and each parent;
(4) Caretaking relationships by adults who love the child, know how to provide for the child's needs, and place a high priority on doing so;
(5) Security from exposure to physical or emotional harm; and
(6) Expeditious, predictable decisionmaking and avoidance of prolonged uncertainty respecting arrangements for the child's care and control.
(b) A secondary objective of article next is to achieve fairness between the parents.

§48-2D-3. Definitions.


For the 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) Unless otherwise specified, "parent" means a legal parent or a de facto parent.
(2) "Legal parent" means an individual defined as a parent, by law, on the basis of biological relationship, presumed biological relationship, legal adoption, or other recognized grounds.
(3) "Parenting plan" means a set of provisions for allocation of custodial responsibility and decisionmaking authority on behalf of a child and for resolution of subsequent disputes between the parents.
(4) "Custodial responsibility" refers to physical custodianship and supervision of a child. It usually includes, but does not necessary require residential or overnight responsibility.
(5) "Decisionmaking responsibility" refers to authority for making significant life decisions on behalf of the child, including the child's education, spiritual guidance, and health care.
(6) "Caretaking functions" are tasks that involve interaction with the child or direct the interaction and care provided by others. Caretaking functions include:
(A) Feeding, bedtime and wake-up routines, care of the child when sick or hurt, bathing, grooming, personal hygiene, dressing, recreation and play, physical safety, transportation, and other functions that meet the daily physical needs of the child;
(B) Direction of the child's various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence, and maturation;
(C) Discipline, instruction in manners, assignment and supervision of chores, and other tasks that attend to the child's needs for behavioral control and self-restraint;
(D) Arrangements for the child's education, including remedial or special services appropriate to the child's needs and interests, communication with teachers and counselors, and supervision of homework;
(E) The development and maintenance of appropriate interpersonal relationships with peers, siblings, and adults;
(F) Arrangements for health care, including making appointments, communication with health-care providers, medical follow-up, and home health care;
(G) Moral guidance; and
(H) Arrangement of alternative care by a family member, baby- sitter, or other child-care provider or facility, including investigation of alternatives, communication with providers, and supervision.
(8) "Parenting functions" are tasks that serve the needs of the child or the child's residential family. Parenting functions include caretaking functions, as defined in subdivision (7). Parenting functions also include functions that are not caretaking functions under subdivision (7), including:
(A) Provision of economic support;
(B) Participation in decisionmaking regarding the child's welfare;
(C) Maintenance or improvement of the family residence, home or furniture repair, home-improvement projects, yard work, and house cleaning;
(D) Financial planning and organization, car repair and maintenance, food and clothing purchasing, cleaning and maintenance of clothing, and other tasks supporting the consumption and savings needs of the family; and
(E) Other functions usually performed by a parent or guardian that are important to the child's welfare and development.
(8) "Family violence", "domestic violence", "domestic or family violence" or "abuse" means the occurrence of one or more of the following acts between family or household members, as that term is defined in subdivision (9) of this section:
(A) Attempting to cause or intentionally, knowingly or recklessly causing physical harm to another with or without dangerous or deadly weapons;
(B) Placing another in reasonable apprehension of physical harm;
(C) Creating fear of physical harm by harassment, psychological abuse or threatening acts;
(D) Committing either sexual assault or sexual abuse as those terms are defined in articles eight-b and eight-d, chapter sixty- one of this code; and
(E) Holding, confining, detaining or abducting another person against that person's will.
(9) "Family or household member" means current or former spouses, persons living as spouses, persons who formerly resided as spouses, parents, children and stepchildren, current or former sexual or intimate partners, persons who are dating or who have dated, persons who are presently residing or cohabiting together or in the past have resided or cohabited together or a person with whom the victim has a child in common.
Reasonable action taken by a person for self-protection, or the protection of another person, is not domestic abuse.

§48-2D-4. Parties to an action under this article.


(1) Persons who have a right to be notified of and participate as a party in an action filed by another are:
(a) A legal parent of the child, as defined in §48-2D-3(a)(1); or
(b) An adult allocated custodial responsibility or decision- making responsibility under a parenting plan regarding the child that is then in effect.
(2) In exceptional cases the court may, in its discretion, grant permission to intervene to other persons or public agencies whose participation in the proceedings under this article it determines is likely to serve the child's best interests. The court may place limitations on participation by the intervening party as the court determines to be appropriate. Such persons or public agencies do not have standing to initiate an action under this article.

§48-2D-6. Parental agreements.


(a) If the parents agree to one or more provisions of a parenting plan, the court should so order, unless it makes specific findings that:
(1) The agreement is not knowing or voluntary, or
(2) The plan would be harmful to the child.
(b) The court, at its discretion and on any basis it deems sufficient, may conduct an evidentiary hearing to determine whether there is a factual basis for a findings under subdivision one or to, subsection (a) of this section. When there is credible information that child abuse as defined by state law or domestic abuse as defined by article two-b of this chapter has occurred, a hearing is mandatory and if the court determines that abuse has occurred, appropriate protective measures should be ordered.
(c) If an agreement, in whole or in part, is not accepted by the court under the standards set forth in subsection (a) of this section, the court should allow the parents the opportunity to negotiate another agreement.

§48-2D-7. Court ordered services.


(a) (1) The court shall inform the parents, or require them to be informed, about:
(A) How to prepare a parenting plan;
(B) The impact of family dissolution on children and how the needs of children facing family dissolution can best be addressed;
(C) The impact of domestic abuse on children, and resources for dressing domestic abuse; and
(D) Mediation or other non-judicial procedures designed to help them achieve an agreement.
(2) If available, court shall require the parents to attend parental education classes as provided under §48-2-10b.
(3) If parents are unable to resolve issues and agree to a parenting plan, the court shall require mediation.
(b) The court should not order services under subsection (a) of this section that require a parent to have face-to-face meetings with the other parent.
(c) A mediator should not conduct a mediation, even by parental agreement, without first screening for domestic abuse. If credible evidence thereof exists, the mediator should take steps:
(1) To ensure the voluntary consent of the victim of the abuse to participate in the mediation, and to any agreement reached as a result of the mediation; and
(2) To protect the safety of the victim.
(d) A mediator should not make a recommendation to the court and may not reveal information that either parent has disclosed during mediation under a reasonable expectation of confidentiality except, upon questioning by the court, if relevant to fact-finding under §48-2D-7.
(e) Services authorized under subsection (a) of this section should be ordered at a cost that is reasonable in light of the financial circumstances of each parent. Where one parent's ability to pay for such services is significantly greater than the other, the court may order that parent to pay some or all of the expenses of the other.

§48-2D-8. Parenting Plan.


(a) A party seeking a judicial allocation of custodial responsibility or decisionmaking responsibility under this article should file a proposed parenting plan with the court. Parties may file a joint plan. A plan should be supported by an affidavit containing, to the extent known or reasonably discoverable by the filing party or parties:
(1) The name, address, and length of residence of any adults with whom the child has lived for one year or more, or in the case of a child less than one year old, any adults with whom the child has lived since the child's birth;
(2) The name and address of each of the child's parents and any other individuals with standing to participate in the action under §48-2D-4;
(3) A description of the allocation of caretaking and other parenting responsibilities performed by each person named in subdivisions one and two of this subsection during the twenty-four months preceding the filing of an action under this article;
(4) A description of the work and child-care schedules of any person seeking an allocation of custodial responsibility, and any expected changes to these schedules in the near future;
(5) A description of the child's school and extracurricular activities;
(6) A description of any of the limiting factors as described in §48-2D-13 that are present, including any restraining orders against either parent to prevent domestic or family violence, by case number and jurisdiction;
(7) Financial information, required under article 3; and
(8) A description of the known areas of agreement and disagreement with any other parenting plan submitted in the case.
The court should maintain the confidentiality of any information required to be filed under this section when the person giving that information has a reasonable fear of domestic abuse and disclosure of the information would increase that fear.
(b) The court should develop a process to identify cases in which there is credible information that child abuse or neglect, as defined in section three, article one, chapter forty-nine of this code, or domestic or family violence as defined in section two, article two-a of this chapter has occurred. The process should include assistance for possible victims of domestic abuse in complying with subdivision six, subsection (a) of this section, and referral to appropriate resources for safe shelter, counseling, safety planning, information regarding the potential impact of domestic abuse on children, and information regarding civil and criminal remedies for domestic abuse. The process should also include a system for ensuring that jointly submitted parenting plans that are filed in cases in which there is credible information that child abuse or domestic abuse has occurred receive the court review that is mandated by §48-2D-7(b).
(c) Upon motion of a party and after consideration of the evidence, the court should order a parenting plan consistent with the provisions of §48-2D-9 through §48-2D-14, containing:
(1) A provision for the child's living arrangements and each parent's custodial responsibility, which should include either
(A) A custodial schedule that designates in which parent's home each minor child will reside on given days of the year; or (B) A formula or method for determining such a schedule in sufficient detail that, if necessary, the schedule can be enforced in subsequent proceedings by the court.
(2) An allocation of decisionmaking responsibility as to significant matters reasonably likely to arise with respect to the child; and
(3) A provision consistent with §48-2D-8 for resolution of disputes that arise under the plan, and for remedies of violations of the plan.
(d) A parenting plan may, at the court's discretion, contain provisions that address matters that are expected to arise in the event of a party's relocation, or provide for future modifications in the parenting plan if specified contingencies occur.
(e) The court may order a temporary allocation of custodial responsibility or decisionmaking responsibility as the court determines is in the child's best interests, considering the factors in §§48-2D-9 and 48-2D-10. Such an order ordinarily should not preclude access to the child by a parent who has been exercising a reasonable share of parenting functions. Upon credible evidence of one or more of the circumstances set forth in §48-2D-13(a), the court should 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.
(f) Expedited procedures should be instituted to facilitate the prompt issuance of a parenting plan.

§48-2D-9. Allocation of custodial responsibility.


(A) Unless otherwise resolved by agreement of the parents under §48-2D-7 or unless manifestly harmful to the child, the court should allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing parenting functions for the child prior to the parents' separation or, if the parents never lived together, before the filing of the action, except to the extent required under §48-2D-13 or necessary to achieve any of the following objectives:
(1) To permit the child to have a relationship with each parent who has performed a reasonable share of parenting functions;
(2) To accommodate the firm and reasonable preferences of a child who is fourteen years of age or older, and with regard to a child under 14 years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent, to give that preference such weight as circumstances warrant.
(3) To keep siblings together when the court finds that doing so is necessary to their welfare;
(4) To protect the child's welfare when, under an otherwise appropriate allocation, the child would be harmed because of a gross disparity in the quality of the emotional attachments between each parent and the child or in each parent's demonstrated ability or availability to meet a child's needs;
(5) To take into account any prior agreement of the parents that, under the circumstances as a whole including the reasonable expectations of the parents in the interest of the child, would be appropriate to consider;
(6) To avoid an allocation of custodial responsibility that would be extremely impractical or that would interfere substantially with the child's need for stability in light of economic, physical, or other circumstances, including the distance between the parents' residences, the cost and difficulty of transporting the child, the parents' and child's daily schedules, and the ability of the parents to cooperate in the arrangement; and
(7) To apply the principles set forth in §48-2D-20(d) if one parent relocates or proposes to relocate at a distance that will impair the ability of a parent to exercise the amount of custodial responsibility that would otherwise be ordered under this section.
(b) In determining the proportion of care taking functions each parent previously performed for the child under subsection (a) of this section, the court should not consider the divisions of functions arising from temporary arrangements after separation, whether those arrangements are consensual or by court order. The court may take into account information relating to the temporary arrangements in determining other issues under this section.
(c) If the court is unable to allocate custodial responsibility under subsection (a) of this section because the allocation under that subsection would be manifestly harmful to the child, or because there is no history of past performance of caretaking functions, as in the case of a newborn, or because the history does not establish a pattern of caretaking sufficiently dispositive of the issues of the case, the court should allocate custodial responsibility based on the child's best interest, taking into account the factors in considerations that are set forth in this section and in sections §48-2D-13 and §48-2D-20(d) and preserving to the extent possible this section's priority on the share of past caretaking functions each parent performed.
(d) In determining how to schedule the custodial time allocated to each parent, the court should take account of the economic, physical, and other practical circumstances such as those listed in subdivision six, subsection (a) of this section.

§48-2D-10. Allocation of significant decision-making responsibility.


(a) Unless otherwise resolved by agreement of the parents under §48-2D-7, the court should allocate responsibility for making significant life decisions on behalf of the child, including the child's education and health care, to one parent or to two parents jointly, in accordance with the child's best interest, in light of:
(1) The allocation of custodial responsibility under §48-2D-9;
(2) The level of each parent's participation in past decision- making on behalf of the child;
(3) The wishes of the parents;
(4) The level of ability and cooperation the parents have demonstrated in decision-making on behalf of the child;
(5) Prior agreements of the parties; and
(6) The existence of any limiting factors, as set forth in §48-2D-13.
(b) If each of the child's legal parents has been exercising a reasonable share of parenting functions for the child, the court should presume that an allocation of decision-making responsibility to both parents jointly is in the child's best interests. The presumption is overcome if there is a history of domestic abuse, or by a showing that joint allocation of decision-making responsibility is not in the child's best interest.
(c) Unless otherwise provided or agreed by the parents, each parent who is exercising custodial responsibility should be given sole responsibility for day-to-day decisions for the child, while the child is in that parent's care and control, including emergency decisions affecting the health and safety of the child.
(d) Even if a legal parent is not allocated decision-making responsibility under this section, a legal parent should have access to school and health-care records concerning the child to which legal parents have access by other law, except insofar as access is not in the child's best interests or where the provision of such information might endanger a parent who has been the victim of domestic abuse.

§48-2D-11. Criteria for parenting plan; dispute resolution.


(a) If provisions for resolving parental disputes are not ordered by the court pursuant to parental agreement under §48-2D-7, the portion order method of resolving disputes that serves a child's best interest in light of:
(1) The parents' wishes;
(2) Circumstances, including but not limited to financial circumstances, that may affect the parents ability to participate in a prescribed dispute resolution process; and
(3) The existence of any limiting factor, as set forth in §48- 2D-13.
(b) The court may order a non-judicial process of dispute resolution, by designating with particularity the person or agency to conduct the process or the method for selecting such a person or agency. The disposition of a dispute through a non-judicial method of dispute resolution that has been ordered by the court without prior parental agreement is subject to de novo judicial review. If the parents have agreed in a parenting plan or by agreement thereafter to a binding resolution of their dispute by non-judicial means, a decision by such means is binding upon the parents and must be enforced by the court, unless it is shown to be manifestly harmful to the child's interests, beyond the scope of the parents' agreement, or the result of fraud, misconduct, corruption, or other serious irregularity.
(c) This section is subject to the limitations imposed by §48- 2D-8.

§48-2D-13. Parenting plan; limiting factors.


(a) If either of the parents so requests, or upon receipt of credible information thereof, the court should 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 inflicted domestic abuse, as defined in §48-2D-3(h);
(3) 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.
(b) If a parent is found to have engaged in any activity specified by subsection (a) of this section, the court should impose limits that are reasonably calculated to protect the child or child's parent from harm. The limitations that the court should 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 non-prescribed drugs while exercising custodial responsibility and in the 24-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 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 tough if if if if if 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.

§48-2D-14. Criteria for parenting plan; prohibited factors.


(a) In issuing orders under this article, the court should disregard:
(1) The race or ethnicity of the parent, child, or other family member;
(2) The sex of a parent or of the child;
(3) The religious practices of a parent or of the child, except to the minimum degree necessary to protect the child from manifest harm or to protect the child's ability to practice a religion to which the child has made a substantial and meaningful commitment;
(4) The sexual orientation of a parent; and
(5) The extra marital sexual conduct of a parent, except upon a showing that it is harmful to the child; and
(6) The parents' relative earning capacities or financial circumstances, except the court may take account of the degree to which the combined financial resources of the parents set practical limits on the feasible custodial arrangements.
(b) Nothing in this section precludes consideration of a parent's ability to care for a child, including meeting a child's needs for a positive self-image.
Part 3. Fact finding.

§48-2D-15. Court or investigation; appointment of guardian.


(a) In its discretion, the court may order a written investigation or evaluation from an appropriate individual or agency to assist it in determining any issue relevant to proceedings under this article. The court should specify the scope of the investigation or evaluation and the authority of the investigator or evaluator.
(b) In its discretion, the court may appoint a guardian ad litem to represent the child's best interests. The court should specify the terms of the appointment, including the guardian's role, duties, and scope of authority.
(c) In its discretion, the court may appoint a lawyer to represent the child, if the child is competent to direct the terms of the representation and court has a reasonable basis for finding that the appointment would be helpful in resolving the issues of the case. The court should specify the terms of the appointment, including the lawyer's role, duties, and scope of authority.
(d) When substantial allegations of domestic abuse have been made, the court should order an investigation under subsection (a) of this section or make an appointment under subsection (b) or (c), unless the court is satisfied that the information necessary to evaluate the allegations will be adequately presented to the court without such an order or appointment.
(e) Subject to whatever restrictions the court may impose or that may be imposed by the attorney-client privilege or by §48- 2D-8(d), the court may require the child or parent to provide information to an individual or agency appointed by the court under subsection (a), (b), or (c), and it may require any person having information about the child or parent to provide that information, even if the information is otherwise protected by law and even in the absence of consent by parent or by the child.
(f) The investigator or evaluator who submits a report or evidence to the court that has been requested under subsection (a) of this section and a guardian ad litem appointed under subsection (b) of this section who submits information or recommendations to the court are subject to cross-examination by the parties. A lawyer appointed under subsection (c) may not be a witness in the proceedings, except as allowed under standards applicable in other civil proceedings.
(g) Services and tests ordered under this section should 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.

§48-2D-16. Interview of the child by the court.


The court, in its discretion, may interview the child or direct another person to interview the child, in order to obtain information relating to the issues of the case. Counsel for a parent or for the child should be permitted to submit questions to the court that may be asked of the child if the court approves. A transcript, videotape, or other reliable means of recording the complete interview shall be made part of the record of the proceedings, and should be confidential except for purposes of appeal of the court's order.
Part 4. Modification of parenting plan.

§48-2D-18. Modification upon showing of changed circumstances or harm.


(a) Except as provided in §48-2D-19 or §48-2D-20, a court should modify a parenting plan order if it finds, on the basis of facts that were not known or have arisen since the entry of the prior order and were not anticipated therein, that a substantial change has occurred in the circumstances of the child or of one or both parents and a modification is necessary to the child's welfare.
(b) In exceptional circumstances, a court may modify a parenting plan if it finds that the plan is not working as contemplated and in some specific way is manifestly harmful to the child, even if a substantial change of circumstances has not occurred.
(c) Unless the parents have agreed otherwise, the following circumstances do not justify a significant modification of a parenting plan except where harm to the child is shown:
(1) Circumstances resulting in an involuntary loss of income, by loss of employment or otherwise, affecting the parents economic status;
(2) A parent's remarriage or cohabitation; and
(3) Choice of reasonable caretaking arrangements for the child by a legal parent, including the child's placement in day care.
(d) For purposes of subsection (a) of this section, the occurrence or worsening of a limiting factor, as defined in §48- 2D-13(a), after a parenting plan has been ordered by the court, constitutes a substantial change of circumstances and measures should be ordered pursuant to §48-2D-13 to protect the child or the child's parent.

§48-2D-19. Modification without showing of changed circumstances.


(a) The court should modify a parenting plan in accordance with a parental agreement, unless it finds that the agreement is not knowing and voluntary or that it would be harmful to the child.
(b) The court may modify any provisions of the parenting plan without the showing of change circumstances required by §48-2D-18(a), if the modification is in the child's best interests, and the modification:
(1) Reflects the de facto arrangements under which the child has been receiving care, without objection, for the preceding six months before the petition for modification is filed, provided the arrangement is not the result of a parent's acquiescence resulting from the other parent's domestic abuse;
(2) Constitutes a minor modification in the plan; or
(3) Is necessary to accommodate the reasonable and firm preferences of a child who has attained the age specified pursuant to §48-2D-9(a)(2).

§48-2D-20. Relocation of a parent.


(a) The relocation of a parent constitutes a substantial change in the circumstances under §48-2D-18(a) of the child only when it significantly impairs either parent's ability to exercise responsibilities that the parent has been exercising.
(b) Unless otherwise ordered by the court, a parent who has responsibility under a parenting plan who changes, or intends to change, residences for more than 90 days must give a minimum of 60 days advance notice, or the most notice practicable under the circumstances, to any other parent with responsibility under the same parenting plan, notice should include:
(1) The relocation date;
(2) The address of the intended new residence;
(3) The specific reasons for the proposed relocation, and
(4) A and proposal for how custodial responsibility should be modified, in light of the intended move.
Failure to comply with the notice requirements of this section without good college may be a factor in the determination of whether the relocation is in good faith under subsection (d) of this section, and is a basis for an award of reasonable expenses and reasonable attorneys fees to another parent that are attributable to such failure.
(c) When changed circumstances are shown under subsection (a) of this section, the court should, if practical, revise the parenting plan so as to both accommodate the relocation and maintain the same proportion of custodial responsibility being exercise by each of the parents.
(d) When the relocation constituting changed circumstances under subsection a) renders it impractical to maintain the same proportion of custodial responsibility as that being exercise by each parent, the court should modify the parenting plan in accordance with the jobs best entries, as defined and §48-2D-9 and §48-2D-10, and in accordance with the following principles:
(1) A parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for legitimate purpose and to a location that is reasonable in light of the purpose. The proportion of custodial responsibility that constitutes a significant majority of custodial responsibility should be established to the role of statewide application. A relocation is for a legitimate purpose if it is to the close to significant family or other support networks, for significant health reasons, to protect the safety of the child or another member of the child's house sold from significant risk of harm, to pursue a significant employment or educational opportunity, or to be with one's spouse [or spouse equivalent, is such is defined in chapter 6] who is established, or who is pursuing a significant employment or educational opportunity, in another location. The relocating parent has the burden of proving of the legitimacy of any other purpose. A move with illegitimate purpose is reasonable unless his purpose to shown to be substantially achievable without moving, or by moving to location that is substantially less disruptive of the other parent's relationship to the child.
(2) If a relocation of the parent is in good faith for legitimate purpose and to location that is reasonable in light of the purpose, and if neither has been exercising a significant majority of custodial responsibility for the child, the court should reality custodial responsibility based on the best interest of the child, taking into can all relevant factors including the effects of the relocation on the child.
(3) If a parent does not establish that the purpose for that parent's relocation is in good faith for a legitimate purpose into a location that is reasonable in light of the purpose, the court may modify the parenting plan in accordance with the child's best interests and the effects of the relocation on the child. Among the modifications in court may consider is a tree allocation of primary custodial responsibility, effective if and when the relocation occurs, but such a reallocation should not be ordered if the relocating parent demonstrates that the child's best interests would be served by the relocation.
(4) The court should attempt to minimize impairment to a parent-to child relationship caused by a parent's relocation through alternative arrangements for the exercise of custodial responsibility appropriate to the parents' resources and circumstances and the developmental level of the child.

§48-2D-21. Allocations of responsibility to persons other than legal parents.


(a) The court should allocate responsibility to a de facto parent as defined in §48-2D-3(a)(2) in accordance with the standard set forth in §48-2D-9 through §48-2D-14, except that:
(1) It should allocate primary custodial responsibility to a de facto parent over the objection of a legal parent who is fit and willing to assume primary custodial responsibility only if:
(A) The legal parent has not been performing a reasonable share of parenting functions, as defined in §48-2D-3(g); or
(B) The alternative would be harmful to the child; and
(2) It should limit or deny an allocation otherwise to be made if, because of the number of other adults to be allocated responsibility, the allocation would be impractical under the objectives of this article.
(b) A court should not allocate responsibility to an adult who is neither a legal parent nor a de facto parent, over the objection of a legal parent or a de facto parent who is fit and willing to care for the child, unless:
(1) The adult is a grandparent or other relative who has developed a significant relationship with the child and
(A) A legal parent consents to the allocation, and
(B) The parent objecting to the allocation has not been performing a reasonable share of parenting functions for the child; or
(2) The alternative would be harmful to the child.

§48-2D-22. Enforcement of parenting plans.


(a) If, upon a parental complaint, the court finds a parent intentionally and without good cause violated a provision of the court-ordered parenting plan, it should enforce the remedy specified in the plan or, if no remedies are specified or they are clearly inadequate, it should find the plan has been violated and order an appropriate remedy, which may include:
(1) In the case of interference with the exercise of custodial responsibility for a child by the other parent, substitute time for that parent to make up for time missed with the child;
(2) In the case of missed time by a parent, costs in recognition of lost opportunities by the other parent, in child care costs and other reasonable expenses in connection with the missed time;
(3) A modification of the plan, if the requirements for a modification are met under §48-2D-18, §48-2D-19, or §48-2D-20;
(4) An order that the parent who violated the plan obtain appropriate counseling;
(5) A civil fine, in an amount that increases with each violation as established by a uniform rule of statewide application, to be paid to the nonviolating parent or, if both parents have violated the parenting plan, to the court;
(6) Court costs, reasonable attorney's fees, and any other reasonable expenses in enforcing the plan, and
(7) Any other appropriate remedy.
(b) Except as provided in a jointly submitted plan that has been ordered by the court, obligations established in a parenting plan are independent obligations, and it is not a defense to an action under this section by one parent that the other parent failed to meet obligations under a parenting plan or child support order.
(c) An agreement between the parents to depart from the parenting plan can be a defense to a claim that the plan has been violated, even though the agreement was not made part of a court order, but only as to acts or omissions consistent with the agreement that occur before the agreement is disaffirmed by either parent.