Senate Bill No. 692
(
By Senators Kessler, Wooton, Snyder, Deem, Redd, Minard,
Oliverio, Ball, Dittmar, Fanning, Hunter, McCabe,
Mitchell, Ross, Schoonover and McKenzie)
__________
[Originating in the Committee on the Judiciary;
reported March 2, 1999.]
____________
A BILL to amend and reenact sections one, ten-b, fifteen, sixteen,
thirty-two, thirty-six and thirty-seven, article two, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend said chapter by
adding thereto a new article, designated article two-d; to
amend and reenact section nineteen, article one-a, chapter
forty-eight-a of said code; to amend and reenact sections one,
fourteen and sixteen, article one-b of said chapter; to amend
and reenact section thirty-five, article two of said chapter;
to amend and reenact section three, article three of said
chapter; and to amend and reenact section twenty-nine, article
five, chapter sixty-one of said code, all relating to revising
the laws governing domestic relations generally; defining
terms; limiting what may be included as income, earnings and
marital property; requiring attendance at parenting classes; providing grounds for termination of alimony; establishing
procedure for terminating alimony on grounds of cohabitation;
excluding certain income from consideration in connection with
the division of marital property; adding factors to be
considered in awarding alimony or support; requiring recipient
of alimony to seek training or employment; exceptions;
excluding certain fees from net value for purposes of marital
property distribution; changing the data on which the name of
marital property is determined; prohibiting court from ordering
equitable distribution between persons not married; providing retroactive
effective date of amendments; exceptions; prohibiting
prejudgment interest in equitable distribution cases;
declaring public policy regarding the children of separated
parents; providing factors to be considered regarding shared
parenting; abolishing primary caretaker doctrine; establishing
rights to access to records of children by parents; providing
rights and duties of parents during visitation periods;
requiring primary residential parent to give notice of
relocation; regquiring court order before child can relocated
in certain circumtstances; permitting court to refer parents to counseling
and mediation; establishing factors for determining child's
primary residence and other custody matters; requiring court to consider certain criminal charges and convictions in
determining custody
matters; providing for implementation of shared parenting
plans; establishing minimum contact requirements between a
child and a nonresidential parent; permitting modification of
custody or parenting orders; prohibiting discrimination in the
determination of parenting orders; providing that false
allegations of domestic violence or child abuse may be
considered in the determination of custody matters;
establishing criminal penalties; providing for enforcement of
parenting time orders; excluding certain amounts from gross
income for purposes of the calculation of child support;
establishing presumption of unfairness for purposes of child
support calculation in certain circumstances; adding factors
permitting deviation from child support guidelines; requiring
certain amount of child support to be placed in trust;
requiring bureau of child support enforcement to notify
delinquent obligors in certain circumstances; prohibiting
child advocate from assisting certain persons; and
establishing an affirmative defense in certain prosecutions.
Be it enacted by the Legislature of West Virginia:
That sections one, ten-b, fifteen, sixteen, thirty-two,
thirty-six and thirty-seven, article two, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that said chapter be further
amended by adding thereto a new article, designated article two-d;
that section nineteen, article one-a, chapter forty-eight-a of said
code be amended and reenacted; that sections one, fourteen and
sixteen, article one-b of said chapter be amended and reenacted;
that section thirty-five, article two of said chapter be amended
and reenacted; that section three, article three of said chapter be
amended and reenacted; and that section twenty-nine, article five,
chapter sixty-one of said code be amended and reenacted, all to
read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-1. Definitions.
(a) "Alimony" means the allowance which a person pays to or in
behalf of the support of his or her spouse or divorced spouse while
they are separated or after they are divorced. The payment of
alimony may be required by court order or by the terms of a
separation agreement. Alimony may be paid in a lump sum or paid in
installments as periodic alimony. Alimony includes temporary
alimony as that term is used in section thirteen of this article, as well as alimony as that term is used in section fifteen of this
article and elsewhere throughout this article.
(b) "Antenuptial agreement" or "prenuptial agreement" means an
agreement between a man and woman before marriage, but in
contemplation and generally in consideration of marriage, whereby
the property rights and interests of the prospective husband and
wife, or both of them, are determined, or where property is secured
to either or both of them, to their separate estate, or to their
children or other persons. An antenuptial agreement may include
provisions which define the respective property rights of the
parties during the marriage, or in the event of the death of either
or both of the parties, and may provide for the disposition of
marital property upon an annulment of the marriage or a divorce or
separation of the parties. A prenuptial agreement is void if at
the time it is made either of the parties is a minor.
(c) "Cohabitation", for the purposes of section fifteen of
this article, means the act of two adults unrelated by blood who
are regularly residing with each other for a period of at least one
hundred eighty days in any two-year period and who hold themselves
out as a couple, regardless of whether the relationship confers a
financial benefit on the party receiving alimony. Proof of sexual
relations is admissible but not required to prove cohabitation.
(c) (d) "Earnings" means compensation paid or payable for
personal services, whether denominated as wages, salary,
commission, bonus, or otherwise, and includes periodic payments
pursuant to a pension or retirement program. "Disposable earnings"
means that part of the earnings of any individual remaining after
the deduction from those earnings of any amounts required by law to
be withheld. Notwithstanding any provision of law to the contrary,
"earnings" does not include potential compensation, the payment of
which is dependent upon the occurrence of some future event which
is not certain or absolute.
(d) (e) "Income" includes, but is not limited to, the
following:
(1) Commissions, earnings, salaries, wages, and other income
due or to be due in the future to an individual from his employer
and successor employers;
(2) Any payment due or to be due in the future to an
individual from a profit-sharing plan, a pension plan, an insurance
contract, an annuity, social security, unemployment compensation,
supplemental employment benefits, workers' compensation benefits,
state lottery winnings and prizes, and overtime pay.
Notwithstanding any provision of the law to the contrary, "income"
does not include potential income, the realization of which is dependent upon the occurrence of some future event which is not
certain or absolute; and
(3) Any amount of money which is owing to an individual as a
debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency, this
state or any political subdivision of this state, any other state
or a political subdivision of another state, or any other legal
entity which is indebted to the obligor.
(e) (f) "Marital property" means:
(1) All property and earnings acquired by either spouse during
a marriage, including every valuable right and interest, corporeal
or incorporeal, tangible or intangible, real or personal,
regardless of the form of ownership, whether legal or beneficial,
whether individually held, held in trust by a third party, or
whether held by the parties to the marriage in some form of co- ownership such as joint tenancy or tenancy in common, joint tenancy
with the right of survivorship, or any other form of shared
ownership recognized in other jurisdictions without this state,
except that marital property shall not include separate property as
defined in subsection (f) (g) of this section or contingent and
other fees pending at the time of divorce, the payment of which is
not certain or absolute but which is dependent upon the occurrence of some future event; and
(2) The amount of any increase in value in the separate
property of either of the parties to a marriage, which increase
results from: (A) aAn expenditure of funds which are marital
property, including an expenditure of such funds which reduces
indebtedness against separate property, extinguishes liens, or
otherwise increases the net value of separate property,; or (B) work
performed by either or both of the parties during the marriage.
The definitions of "marital property" contained in this
subsection and "separate property" contained in subsection (f) (g)
of this section shall have no application outside of the provisions
of this article, and the common law as to the ownership of the
respective property and earnings of a husband and wife, as altered
by the provisions of article three of this chapter and other
provisions of this code, are not abrogated by implication or
otherwise, except as expressly provided for by the provisions of
this article as such provisions are applied in actions brought
under this article or for the enforcement of rights under this
article.
(f) (g) "Separate property" means:
(1) Property acquired by a person before marriage; or
(2) Property acquired by a person during marriage in exchange for separate property which was acquired before the marriage; or
(3) Property acquired by a person during marriage, but
excluded from treatment as marital property by a valid agreement of
the parties entered into before or during the marriage; or
(4) Property acquired by a party during marriage by gift,
bequest, devise, descent or distribution; or
(5) Property acquired by a party during a marriage but after
the separation of the parties and before the granting of a divorce,
annulment or decree of separate maintenance; or
(6) Any increase in the value of separate property as defined
in subdivision (1), (2), (3), (4) or (5) of this subsection which
is due to inflation or to a change in market value resulting from
conditions outside the control of the parties.
(g) (h) "Separation" or "separation of the parties" means the
separation of the parties next preceding the filing of an action
under the provisions of this article, which separation continues,
without the parties cohabiting or otherwise living together as
husband and wife, and without interruption.
(h) (i) "Separation agreement" means a written agreement
entered into by a husband and wife whereby they agree to live
separate and apart from each other and, in connection therewith,
agree to settle their property rights; or to provide for the custody and support of their minor child or children, if any; or to
provide for the payment or waiver of alimony by either party to the
other; or to otherwise settle and compromise issues arising out of
their marital rights and obligations. Insofar as an antenuptial
agreement as defined in subsection (b) of this section affects the
property rights of the parties or the disposition of property upon
an annulment of the marriage, or a divorce or separation of the
parties, such antenuptial agreement shall be regarded as a
separation agreement under the provisions of this article.
§48-2-10b. Parent education classes.
(a) A circuit court, or a judge thereof, may shall, by
administrative rule or order, and with the approval of the supreme
court of appeals, designate an organization or agency to establish
and operate education programs designed for parents who have filed
an action for divorce, paternity, support or separate maintenance
and who have minor children. The education programs shall be
designed to instruct and educate parents about the effects of
divorce and custody disputes on their children and to teach parents
ways to help their children and minimize their trauma.
(b) The circuit court may shall issue an order requiring
parties to an action for divorce involving a minor child or
children paternity, custody or separate maintenance to attend parental education classes established pursuant to subsection (a)
of this section and unless the court determines that attendance is
not appropriate or necessary based on the conduct or circumstances
of the parties. The court may, by order, establish sanctions for
failure to attend. The court may also order parties to an action
involving paternity, separate maintenance or modification of a
divorce decree to attend such classes.
(c) The circuit court may require that each person attending
a parental education class pay a fee, not to exceed twenty-five
dollars, to the clerk of such court to defray the cost of materials
and of hiring teachers: Provided, That where it is determined that
a party is indigent and unable to pay for such classes, the court
shall waive the payment of the fee for such party. The clerk of
the circuit court shall, on or before the tenth day of each month,
transmit all fees collected under this subsection to the state
treasurer for deposit in the state treasury to the credit of
special revenue fund to be known as the "parental education fund",
which is hereby created. All moneys collected and received under
this subsection and paid into the state treasury and credited to
the "parental education fund" shall be used by the administrative
office of the supreme court of appeals solely for reimbursing the
provider of parental education classes for the costs of materials and of providing such classes. Such moneys shall not be treated by
the auditor and treasurer as part of the general revenue of the
state.
(d) The administrative office of the supreme court of appeals
shall submit a report to the joint committee on government and
finance summarizing the effectiveness of any program of parent
education no later than two years from the initiation of the
program.
§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 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 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
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 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 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 provide for 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 insurance with a new policy to
cover the other party or may consider the prospective cost of such
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 deemed considered
to be alimony or installment payments for the distribution of
marital property, in such proportion as the court shall direct:
Provided, however, That if the court does not set forth in the
order that a portion of such payments is to be deemed considered installment payments for the distribution of marital property, then
all such payments made pursuant to this subdivision shall be deemed
to be alimony: Provided further, That the designation of insurance
coverage as alimony under the provisions of this subdivision shall
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
payments is to be deemed considered child support or installment
payments for the distribution of marital property, then all such
payments made pursuant to this subdivision shall be 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 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 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 deemed to be alimony or
installment payments for the distribution of marital property, as
the court may direct. Nothing contained in this subdivision shall
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 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 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 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 the
liability of the parties for indebtedness on any such account
incurred before the transfer of such 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 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 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: Provided further, That the child
support enforcement division may review a child support order and,
if appropriate, file a motion with the circuit court for
modification of the child support order pursuant to the provisions
of section thirty-five, article two, chapter forty-eight-a of this
code.
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 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
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.
Unless clearly stated otherwise in the agreement
of the parties or the order of the court, the obligation to pay
alimony shall automatically cease upon the death of the payor party
or upon the death or remarriage of the payee party without the
necessity of a court order.
Cohabitation of the payee shall be grounds for termination of
alimony. In the event the payor party alleges that alimony should
cease on the ground of cohabitation of the payee party, the payor
may file a petition in the circuit court having jurisdiction to
modify the divorce order to seek a declaration that the alimony
award should be terminated. The payor party shall have the burden
of proof on the issue of whether the payee has cohabited within the
meaning of that term set forth in section one of this article. In
the event the court finds by a preponderance of evidence that the
payor has failed to meet his or her burden of proof on the issue,
the court may award reasonable attorney's fees to the payee party
if he or she prevails in an action to terminate alimony on the
ground of cohabitation. The court shall order that the termination
of alimony is retroactive to the date of the filing of the petition
by the payor unless the court finds that reimbursement of amounts
already paid would cause a hardship to the payee.
(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 fault or misconduct as a contributing factor to the
deterioration of the marital relationship. However, alimony shall
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 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 obligee;
(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 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 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.
§48-2-16. Effect of separation agreement; what considered in
awarding alimony, child support or separate maintenance.
(a) In cases where the parties to an action commenced under
the provisions of this article have executed a separation
agreement, if the court finds that the agreement is fair and
reasonable, and not obtained by fraud, duress or other
unconscionable conduct by one of the parties, and further finds
that the parties, through the separation agreement, have expressed
themselves in terms which, if incorporated into a judicial order, would be enforceable by a court in future proceedings, then the
court shall conform the relief which it is authorized to order
under the provisions of sections thirteen and fifteen of this
article to the separation agreement of the parties. The separation
agreement may contractually fix the division of property between
the parties and may determine whether alimony shall be awarded,
whether a court shall have continuing jurisdiction over the amount
of an alimony award so as to increase or decrease the amount of
alimony to be paid, whether alimony shall be awarded as a lump sum
settlement in lieu of periodic payments, whether alimony shall
continue beyond the death of the payor party or the remarriage of
the payee party, or whether the alimony award shall be enforceable
by contempt proceedings or other judicial remedies aside from
contractual remedies. Any award of periodic payments of alimony
shall be deemed to be judicially decreed and subject to subsequent
modification unless there is some explicit, well expressed, clear,
plain and unambiguous provision to the contrary set forth in the
court approved separation agreement or the order granting the
divorce. Child support shall, under all circumstances, always be
subject to continuing judicial modification.
(b) In cases where the parties to an action commenced under
the provisions of this article have not executed a separation agreement, or have executed an agreement which is incomplete or
insufficient to resolve the outstanding issues between the parties,
or where the court finds the separation agreement of the parties
not to be fair and reasonable or clear and unambiguous, the court
shall proceed to resolve the issues outstanding between the
parties. The court shall consider the following factors in
determining the amount of alimony, child support or separate
maintenance, if any, to be ordered under the provisions of sections
thirteen and fifteen of this article, as a supplement to or in lieu
of the separation agreement:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties
actually lived together as husband and wife;
(3) The present employment income and other recurring earnings
of each party from any source;
(4) The income-earning abilities of each of the parties, based
upon such factors as educational background, training, employment
skills, work experience, length of absence from the job market and
custodial responsibilities for children;
(5) The distribution of marital property to be made under the
terms of a separation agreement or by the court under the
provisions of section thirty-two of this article, insofar as the distribution affects or will affect the earnings of the parties and
their ability to pay or their need to receive alimony, child
support or separate maintenance: Provided, That for the purposes
of determining a spouse's ability to pay alimony, the court may not
consider the income generated by property allocated to the payor
spouse in connection with the division of marital property;
(6) The ages and the physical, mental and emotional condition
of each party;
(7) The educational qualifications of each party;
(8) Whether either party has foregone or postponed economic,
education or other employment opportunities during the course of
the marriage;
(9) The standard of living established during the marriage;
(8) (10) The likelihood that the party seeking alimony, child
support or separate maintenance can substantially increase his or
her income-earning abilities within a reasonable time by acquiring
additional education or training;
(11) Any financial or other contribution made by either party
to the education, training, vocational skills, career or earning
capacity of the other party;
(9) (12) The anticipated expense of obtaining the education
and training described in subdivision (8)(10) above;
(10) (13) The costs of educating minor children;
(11) (14) The costs of providing health care for each of the
parties and their minor children;
(12) (15) The tax consequences to each party;
(13) (16) The extent to which it would be inappropriate for a
party, because said party will be the custodian of a minor child or
children, to seek employment outside the home;
(14) (17) The financial need of each party;
(15) (18) The legal obligations of each party to support
himself or herself and to support any other person; and
(16) (19) Such other factors as the court deems necessary or
appropriate to consider in order to arrive at a fair and equitable
grant of alimony, child support or separate maintenance.
(c) Any person awarded alimony has a continuing affirmative
obligation to make good faith efforts to become fully or partially
self-sufficient, which efforts may include taking appropriate
educational or vocational training, if necessary, and seeking
employment unless the court specifically finds, after a hearing,
that it would be inequitable to require a person awarded alimony to
do so: (i) At any time, due to (A) a severe and incapacitating
mental or physical illness or disability or, (B) his or her age,
or; (ii) immediately, after consideration of the needs of a minor child or children or of an incapacitated adult child living with
him or her.
§48-2-32. Marital property disposition.
(a) Except as otherwise provided in this section, upon every
judgment of annulment, divorce or separation, the court shall
divide the marital property of the parties equally between the
parties.
(b) In cases where the parties to an action commenced under
the provisions of this article have executed a separation
agreement, then the court shall divide the marital property in
accordance with the terms of the agreement, unless the court finds:
(1) That the agreement was obtained by fraud, duress or other
unconscionable conduct by one of the parties; or
(2) That the parties, in the separation agreement, have not
expressed themselves in terms which, if incorporated into a
judicial order, would be enforceable by a court in future
proceedings; or
(3) That the agreement, viewed in the context of the actual
contributions of the respective parties to the net value of the
marital property of the parties, is so inequitable as to defeat the
purposes of this section, and such agreement was inequitable at the
time the same was executed.
(c) In the absence of a valid agreement, the court shall
presume that all marital property is to be divided equally between
the parties, but may alter this distribution, without regard to any
attribution of fault to either party which may be alleged or proved
in the course of the action, after a consideration of the
following:
(1) The extent to which each party has contributed to the
acquisition, preservation and maintenance, or increase in value of
marital property by monetary contributions, including, but not
limited to:
(A) Employment income and other earnings; and
(B) Funds which are separate property.
(2) The extent to which each party has contributed to the
acquisition, preservation and maintenance or increase in value of
marital property by nonmonetary contributions, including, but not
limited to:
(A) Homemaker services;
(B) Child care services;
(C) Labor performed without compensation, or for less than
adequate compensation, in a family business or other business
entity in which one or both of the parties has an interest;
(D) Labor performed in the actual maintenance or improvement of tangible marital property; and
(E) Labor performed in the management or investment of assets
which are marital property.
(3) The extent to which each party expended his or her efforts
during the marriage in a manner which limited or decreased such
party's income-earning ability or increased the income-earning
ability of the other party, including, but not limited to:
(A) Direct or indirect contributions by either party to the
education or training of the other party which has increased the
income-earning ability of such other party; and
(B) Foregoing by either party of employment or other
income-earning activity through an understanding of the parties or
at the insistence of the other party.
(4) The extent to which each party, during the marriage, may
have conducted himself or herself so as to dissipate or depreciate
the value of the marital property of the parties: Provided, That
except for a consideration of the economic consequences of conduct
as provided for in this subdivision, fault or marital misconduct
shall not be considered by the court in determining the proper
distribution of marital property.
(d) After considering the factors set forth in subsection (c)
of this section, the court shall:
(1) Determine the net value of all marital property of the
parties as of the date of the commencement of the action or as of
such later date determined by the court to be more appropriate for
attaining an equitable result; Provided, That for contractual
rights to contingent and other future earned fees that are
considered to be marital property, the valuation date is the date
the parties separated. Contractual agreements for contingent or
other future earned fees entered into during the marriage and
before the parties separated is marital property. The court shall
not delay a division of marital property by retaining continuing
jurisdiction over the matter until the amount of the contingent or
other future earned fee has been ultimately decided, but shall make
a valuation of the contractual agreement contemporaneously with the
valuation of other marital property;
(2) Designate the property which constitutes marital property,
and define the interest therein to which each party is entitled and
the value of their respective interest therein. In the case of an
action wherein there is no agreement between the parties and the
relief demanded requires the court to consider such factors as are
described in subdivisions (1), (2), (3) and (4), subsection (c) of
this section, if a consideration of factors only under said
subdivisions (1) and (2) would result in an unequal division of marital property, and if an examination of the factors described in
said subdivisions (3) and (4) produce a finding that a party: (A)
Expended his or her efforts during the marriage in a manner which
limited or decreased such party's income-earning ability or
increased the income-earning ability of the other party; or (B)
conducted himself or herself so as to dissipate or depreciate the
value of the marital property of the parties, then the court may,
in the absence of a fair and just alimony award under the
provisions of section fifteen of this article which adequately
takes into account the facts which underlie the factors described
in subdivisions (3) and (4), subsection (c) of this section,
equitably adjust the definition of the parties' interest in marital
property, increasing the interest in marital property of a party
adversely affected by the factors considered under said
subdivisions who would otherwise be awarded less than one half of
the marital property, to an interest not to exceed one half of the
marital property;
(3) Designate the property which constitutes separate property
of the respective parties or the separate property of their
children;
(4) Determine the extent to which marital property is
susceptible to division in accordance with the findings of the court as to the respective interests of the parties therein;
(5) In the case of any property which is not susceptible to
division, ascertain the projected results of a sale of such
property;
(6) Ascertain the projected effect of a division or transfer
of ownership of income-producing property, in terms of the possible
pecuniary loss to the parties or other persons which may result
from an impairment of the property's capacity to generate earnings;
and
(7) Transfer title to such component parts of the marital
property as may be necessary to achieve an equitable distribution
of the marital property. To make such equitable distribution, the
court may:
(A) Direct either party to transfer their interest in specific
property to the other party;
(B) Permit either party to purchase from the other party their
interest in specific property;
(C) Direct either party to pay a sum of money to the other
party in lieu of transferring specific property or an interest
therein, if necessary to adjust the equities and rights of the
parties, which sum may be paid in installments or otherwise, as the
court may direct;
(D) Direct a party to transfer his or her property to the
other party in substitution for property of the other party of
equal value which the transferor is permitted to retain and assume
ownership of; or
(E) Order a sale of specific property and an appropriate
division of the net proceeds of such sale: Provided, That such
sale may be by private sale, or through an agent or by judicial
sale, whichever would facilitate a sale within a reasonable time at
a fair price.
(e) In order to achieve the equitable distribution of marital
property, the court shall, unless the parties otherwise agree,
order, when necessary, the transfer of legal title to any property
of the parties, giving preference to effecting equitable
distribution through periodic or lump sum payments: Provided, That
the court may order the transfer of legal title to motor vehicles,
household goods and the former marital domicile without regard to
such preference where the court determines it to be necessary or
convenient. In any case involving the equitable distribution of:
(1) Property acquired by bequest, devise, descent, distribution or
gift; or (2) ownership interests in a business entity, the court
shall, unless the parties otherwise agree, give preference to the retention of the ownership interests in such property. In the case
of such business interests, the court shall give preference to the
party having the closer involvement, larger ownership interest or
greater dependency upon the business entity for income or other
resources required to meet responsibilities imposed under this
article, and shall also consider the effects of transfer or
retention in terms of which alternative will best serve to preserve
the value of the business entity or protect the business entity
from undue hardship or from interference caused by one of the
parties or by the divorce, annulment or decree of separate
maintenance: Provided, however, That the court may, unless the
parties otherwise agree, sever the business relationship of the
parties and order the transfer of legal title to ownership
interests in the business entity from one party to the other,
without regard to the limitations on the transfer of title to such
property otherwise provided in this subsection, if such transfer is
required to achieve the other purposes of this article: Provided
further, That in all such cases the court shall order or the
agreement of the parties shall provide for equitable payment or
transfer of legal title to other property, of fair value in money
or moneys' worth, in lieu of any ownership interests in a business entity which are ordered to be transferred under this subsection:
And provided further, That the court may order the transfer of such
business interests to a third party (such as the business entity
itself or another principal in the business entity) where the
interests of the parties under this article can be protected and at
least one party consents thereto.
(f) In any order which divides or transfers the title to any
property, determines the ownership or value of any property,
designates the specific property to which any party is entitled or
grants any monetary award, the court shall set out in detail its
findings of fact and conclusions of law, and the reasons for
dividing the property in the manner adopted.
(g) If an order entered in accordance with the provisions of
this article requires the transfer of title to property and a party
fails or refuses to execute a deed or other instrument necessary to
convey title to such property, the deed or other instrument shall
be executed by a special commissioner appointed by the court for
the purpose of effecting such transfer of title pursuant to section
seven, article twelve, chapter fifty-five of this code.
(h) As to any third party, the doctrine of equitable
distribution of marital property and the provisions of this article
shall be construed as creating no interest or title in property until and unless an order is entered under this article judicially
defining such interest or approving a separation agreement which
defines such interest. Neither this article nor the doctrine of
equitable distribution of marital property shall be construed to
create community property nor any other interest or estate in
property except those previously recognized in this state. A
husband or wife may alienate property at any time prior to the
entry of an order under the provisions of this article or prior to
the recordation of a notice of lis pendens in accordance with the
provisions of section thirty-five of this article, and at anytime
and in any manner not otherwise prohibited by an order under this
article, in like manner and with like effect as if this article and
the doctrine of equitable distribution had not been adopted:
Provided, That as to any transfer prior to the entry of an order
under the provisions of this article, a transfer other than to a
bona fide purchaser for value shall be voidable if the court finds
such transfer to have been effected to avoid the application of the
provisions of this article or to otherwise be a fraudulent
conveyance. Upon the entry of any order under this article or the
admission to record of any notice with respect to an action under
this article, restraining the alienation of property of a party, a
bona fide purchaser for value shall take such title or interest as he or she might have taken prior to the effective date of this
section and no purchaser for value need see to the application of
the proceeds of such purchase except to the extent he or she would
have been required so to do prior to the effective date of this
section: Provided, however, That as to third parties nothing in
this section shall be construed to limit or otherwise defeat the
interests or rights to property which any husband or wife would
have had in property prior to the enactment of this section or
prior to the adoption of the doctrine of equitable distribution by
the supreme court of appeals on the twenty-fifth day of May, one
thousand nine hundred eighty-three: Provided further, That no
order entered under this article shall be construed to defeat the
title of a third party transferee thereof except to the extent that
the power to effect such a transfer of title or interest in such
property is secured by a valid and duly perfected lien and, as to
any personal property, secured by a duly perfected security
interest.
(i) Notwithstanding the provisions of chapter eleven of this
code, no transfer of interest in or title to property under this
section shall be taxable as a transfer of property without
consideration nor, except as to alimony, create liability for sales, use, inheritance and transfer or income taxes due the state
or any political subdivision nor require the payment of the excise
tax imposed under article twenty-two, chapter eleven of this code.
(j) Whenever under the terms of this article a court enters an
order requiring a division of property, if the court anticipates
the division of property will be effected by requiring sums 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) A court may not award support or order equitable
distribution of property between individuals who are not married to
one another in accordance with the provisions of article one of
this chapter.
(k) (l) The amendments to this section effected by the
reenactment of this section during the regular session of the
Legislature, one thousand nine hundred ninety-six, are to be
applied prospectively and shall have no application to any action
for annulment, divorce or separate maintenance that was commenced on or before the effective date of this section.
§48-2-36. Retroactive effect of amendments.
(a) Amendments made to the provisions of this article during
the regular session of the Legislature in the year one thousand
nine hundred eighty-four, shall be of retroactive effect to the
extent that such amended provisions shall apply to the distribution
of marital property, but not an award of alimony, in all actions
filed under the provisions of this article after the twenty-fifth
day of May, one thousand nine hundred eighty-three, or actions
pending on that date in which a claim for equitable distribution of
marital property had been pleaded: Provided, That such amendments
to the provisions of this article shall not, in any case, be
applicable to actions filed under the provisions of this article in
which, prior to the effective date of the act of the Legislature
enacting such amendments: (1) There has been a final decree entered
under the provisions of section fifteen of this article; or (2) the
taking of evidence has been completed and the case has been
submitted for decision.
(b) Except as otherwise provided in this section, amendments
to this article enacted during the regular session of the
Legislature in the year one thousand nine hundred ninety-nine
shall
be of no retroactive effect.
(1) Amendments relating to prejudgment interest, as set forth
in section forty-seven, article two of this chapter, alimony and
the distribution of marital property shall apply only to actions in
which no final order has been entered or in actions where a final
order has been entered but an appeal therefrom is pending.
(2) Amendments relating to alimony termination based upon the
payee's death, remarriage or cohabitation shall have retroactive
effect.
§48-2-37. Calculation of interest; judgment or decree regarding
marital distribution not to bear interest.
If an obligation to pay interest arises under this chapter and
the rate is not specified, the rate is that specified in section
thirty-one, article six, chapter fifty-six of this code. On or
after the effective date of this section, interest shall accrue
only upon the outstanding principal of such obligation. This
section shall be construed to permit the accumulation of simple
interest, and may not be construed to permit the compounding of
interest. Interest which has accrued on unpaid installments
accruing before the effective date of this section may not be
modified by any court, irrespective of whether such installment
accrued simple or compound interest: Provided, That unpaid
installments upon which interest was compounded before the effective date of this section shall accrue only simple interest
thereon on and after the effective date of this section: Provided,
however, That judgments or decrees entered under the provisions of
section thirty-two of this article may not bear prejudgment
interest and the provisions of section thirty-one, article six,
chapter fifty-six do not apply thereto.
ARTICLE 2D. THE WEST VIRGINIA SHARED PARENTING RESPONSIBILITY
ACT.
§48-2D-1. Public policy.
(a) The Legislature finds and declares that it is the public
policy of this state to assure that the best interest of children
shall be the court's primary concern in determining any matters
regarding the custody or visitation of children. In furtherance of
this policy, the Legislature declares that the child's best
interest will be best served by assuring that minor children have
frequent and continuing contact with parents who have shown the
ability to act in the best interest of their children and to
encourage parents to share in the rights and responsibilities of
rearing their children after the parents have separated or
dissolved their marriage. In order to effectuate this goal,
parents are urged to share the rights and responsibilities of
child-rearing and to encourage the love, affection, and contact between the children and both parents.
The Legislature finds and declares that shared parenting is
the preferred arrangement for minor children whose parents are
separated or divorced and should be ordered unless the court finds
compelling reasons to order otherwise. The doctrine of primary
caretaker is hereby abolished.
Factors that favor shared parenting include the parents'
commitment to continuing to be actively involved in parenting their
children together, their willingness to negotiate about differences
in parenting styles and to modify their parenting plan as needs
arise, and their ability to communicate and cooperate. Factors
that do not favor shared parenting include hostility and conflict
between the parents that cannot be diverted from the children,
anger on the part of one or both parents that manifests itself by
the manipulation of the children as a means of punishing the other
parent, a history of family violence, a history of substance abuse,
and an inability to make joint decisions concerning the best
interest of the child.
(b) In determining the best interest of the child, the court
shall consider all relevant factors, including:
(1) The wishes of the child's parents;
(2) The wishes of the child;
(3) The interaction and interrelationship of the child with
his parents, his siblings, and any other person who may
significantly affect the child's best interest;
(4) The child's adjustment to his home, school, and community;
(5) The mental and physical health of all individuals
involved;
(6) The relative abilities of the parents to encourage the
sharing of love, affection, and contact between the child and the
other parent;
(7) Credible evidence of the ability of the parties to
cooperate and to make decisions jointly;
(8) Credible evidence of the ability of the parties to
encourage the sharing of love, affection, and contact between the
child and the other party;
(9) Whether the past pattern of involvement of the parties
with the child reflects a system of values, time commitment, and
mutual support which would indicate an ability to provide a
positive and nourishing relationship with the child;
(10) The physical proximity of the parties to each other; and (11) Whether one of the parties has been a perpetrator of
spouse or child abuse and whether the parties are able to make
shared decisions about their children without physical confrontation and in a place and manner which is not a danger to
the abused spouse or the child.
(c) The court shall not consider conduct of a proposed
custodian that does not affect his or her relationship to the
child.
(d) In considering a proposed primary residential parent, the
court shall not presume that any person is better able to serve the
best interest of the child because of that person's sex.
(e) If a parent is absent or leaves home because of spouse
abuse by the other parent, such absence or leaving shall not be a
factor in determining the best interest of the child. For the
purpose of this subsection, "spouse abuse" means the proven threat
of or infliction of physical pain or injury by a spouse on the
other parent.
(f) The provisions of this article shall be of retroactive
effect.
§48-2D-2. Definitions.
The following words and phrases when used in this article have
the following meanings unless the context clearly indicates
otherwise:
(a) "Best interest of the child" means the medical, physical,
psychological, legal, emotional and spiritual as well as the basic housing, food and clothing needs of the child, to the best of the
ability of the parent or guardian of the child.
(b) "Shared parenting" means an arrangement designed to afford
both parents the continuing responsibility for the upbringing of
their child as well as a means of affording the child frequent and
continuing contact with and physical access to both parents. An
award of shared parenting obligates the parties to exchange
information concerning the health, education and welfare of the
minor child and unless allocated, apportioned or decreed, the
parents or parties shall confer with one another in the exercise of
decision-making rights, responsibilities and authority.
(c) "Parenting time" means the specific time set aside and
designated by court order or decree, or by agreement of the
parties, in which a parent has visitation with his or her child or
children.
(d) "Primary caretaker" means the parent that has taken
primary responsibility for, among other things, the performance of
the following caring and nurturing duties of a parent: (1)
Preparing and planning of meals; (2) bathing, grooming and
dressing; (3) purchasing, cleaning and care of clothes; (4) medical
care, including nursing and trips to physicians; (5) arranging for
social interaction among peers after school, such as transporting to friends' houses or to scout meetings; (6) arranging alternative
care, such as babysitting and day care; (7) putting child to bed at
night, attending to child in the middle of the night, waking child
in the morning; (8) disciplining, such as teaching general manners
and toilet training; (9) educating, such as religious, cultural and
social training; and (10) teaching elementary skills, such as
reading, writing and arithmetic.
(e) "Primary residence" means the residence of the parent with
whom the child spends the most time according to a parenting plan;
in cases where children spend equal time in both homes, it is the
home which is located in the child's school district. Children
whose parents reside in the same school district and who spend
equal amounts of time with both parents shall not have a primary
residence as defined in this section. Both homes shall be
considered the child's primary residence.
(f) "Shared parenting plan" means an agreement between two
parents, or a court order, outlining the duties and
responsibilities of each parent of minor children. The parenting
plan must outline the amount of time the child spends with each
parent, including holiday schedules.
§48-2D-3. Access to records.
Unless the court finds that the best interest of the child would not be furthered thereby, every parent, regardless of the
date on which a final order of divorce may have been heretofore
entered, shall have the following rights and responsibilities:
(a) Every parent has the right to receive any and all school
records concerning the child which would otherwise be properly
released to the custodial parent, including, but not limited to,
report cards and progress reports, attendance records, disciplinary
reports, results of their child's performance on standardized tests
and statewide tests and information on the performance of the
school that their child attends on standardized statewide tests;
curriculum materials of the class or classes in which their child
is enrolled; names of the appropriate school personnel to contact
if problems arise with the child; information concerning the
academic performance standards, proficiencies, or skills their
child is expected to accomplish; school rules, attendance policies,
dress codes, and procedures for visiting the school; and
information about any psychological testing the school does
involving their child;
(b) In addition to the right to receive school records, the
nonresidential parent shall have the right to participate as a
member of a parent advisory committee or any other organization
comprising parents of children at the school that his or her child attends.
The nonresidential parent or noncustodial parent shall have
the right to question anything in their child's record that the
parent feels is inaccurate or misleading or is an invasion of
privacy and to receive a response from the school.
School authorities shall arrange parent-teacher conferences at
times convenient to both parents if, in the sole opinion of the
school authorities, a joint conference is deemed in the child's
best interest. In the event a joint conference is deemed
inappropriate, separate conferences shall be arranged;
(c) Every parent is entitled to receive copies of any and all
information concerning medical care provided to the child which
would otherwise be properly released to the primary residential or
custodial parent;
(d) The primary residential or custodial parent shall be
required to promptly inform the nonresidential or noncustodial
parent of any illness of the child which requires medical
attention; or, if the child is in the actual physical custody of
the nonresidential or noncustodial parent during a period of
visitation, he or she shall be required to promptly inform the
primary residential or custodial parent of any illness of the child
that requires medical attention; and
(e) The primary residential or custodial parent shall be
required to consult with the other 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 applies to the nonresidential or noncustodial parent in the
event that the emergency medical procedures are required while the
child is in the physical custody of the nonresidential or
noncustodial parent during a period of visitation: Provided,
however, That nothing contained herein shall be deemed to 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.
§48-2D-4. Notice of relocation.
Each divorce and separation order must require notice of the
intended relocation of a child by the custodial or primary
residential parent. At least sixty days before the intended
relocation of a child by a parent, the custodial or primary residential parent shall provide notice to the other parent of the
intended relocation. If the relocation must occur in fewer than
sixty days, the parent who is relocating shall provide notice as
soon as possible to the other parent. If the parent who is
relocating believes notifying the other parent will cause danger to
the relocating parent or the child, the relocating parent shall
notify the court of the intended relocation, and the court shall
provide appropriate notice to the other parent in a manner
determined to provide safety to the relocating parent and child.
No parent shall relocate without first submitting to expedited
mediation for the purpose of revising the shared parenting plan.
§48-2D-5. Alternative dispute resolution procedures.
The court may refer any matter affecting the parent-child
relationship to mediation.
§48-2D-6. Order for family counseling.
(a) The court may order that the parties participate in
counseling. Where the court has ordered counseling it shall
consider the recommendations of the counselors prior to entering
any order concerning custody, visitation or any other aspect of the
parenting plan. Counseling sessions may include, but are not
limited to, discussions of the responsibilities and decision-making
and the suitability of each arrangement to the capabilities of each parent. The parties shall share equally in the cost of the
counseling sessions and the court may impose limits on the cost.
(b) If the court finds at the time of a hearing that the
parties have a history of conflict in resolving an issue of custody
of or access to a child, the court may order a party to
participate in counseling with a mental health professional who:
(1) Has a background in family therapy;
(2) Has a mental health license that requires as a minimum a
master's degree; and
(3) Has training in domestic violence if the court determines
that the training is relevant to the type of counseling needed.
(c) If a party does not reside in the county in which the
court presides, the court may appoint a counselor to conduct
counseling in or near the party's residence.
§48-2D-7. Determination of primary residence.
The best interest of the child or children is always the
paramount consideration in determining the primary residential
parent. Factors that may be considered by the court include the
following:
(a) Which parent is the primary caretaker;
(b) The love, affection and other emotional ties existing
between the parties involved and the child;
(c) The capacity and disposition of the parties involved to
give the child love, affection and guidance and to continue the
education and raising of the child in his or her religion or creed,
if any;
(d) The capacity and disposition of the parties involved to
provide the child with food, clothing, medical care or other
remedial care recognized and permitted under the laws of this state
in place of medical care and other material needs;
(e) The length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity;
(f) The permanence of the family unit of the existing or
proposed custodial home or homes;
(g) The moral fitness of the parties involved;
(h) The mental and physical health of the parties involved;
(i) The home, school and community record of the child;
(j) The reasonable preference of the child if the court
considers the child to be of sufficient age to express preference;
(k) The willingness and ability of each of the parties to
facilitate and encourage a close and continuing parent/child
relationship between the child and the other parent or the child
and the parents;
(l) Domestic violence regardless of whether the violence was
directed against or witnessed by the child; and
(m) Any other factor considered by the court to be relevant to
a particular child custody dispute.
§48-2D-8. Consideration of criminal conviction.
(a) If a parent has been charged or convicted of an offense as
set forth below, the court shall consider such criminal conduct and
must determine whether the parent poses a threat of harm to the
child: The following is a list of crimes that applies to this
section:
(1) Homicide;
(2) Kidnaping;
(3) Unlawful restraint;
(4) Sexual assault;
(5) Involuntary deviate sexual intercourse;
(6) Aggravated indecent assault;
(7) Indecent assault;
(8) Indecent exposure;
(9) Incest;
(10) Endangering welfare of children;
(11) Prostitution and related offenses; or
(12) Sexual abuse of children.
(b) A parent who has obtained information relating to a charge
filed against the other parent for an offense listed in subsection
(a) of this section may move for a temporary custody order or to
modify an existing custody, shared parenting or parenting time
order. The temporary custody or modification hearing shall be
scheduled within ten days. In evaluating any request for temporary
custody or modification of a custody, partial custody or visitation
order, the court shall consider whether the parent who is or has
been charged with or
convicted of an offense poses a risk of harm
to the child.
Failure to apply for modification under this subsection shall
not prejudice any parent in a custody or parenting time proceeding.
(c) In making a determination to award custody, shared
parenting or visitation pursuant to this section, the court shall
appoint a qualified professional to provide counseling to an
offending parent and shall take testimony from the professional
prior to issuing any order of custody or unsupervised parenting
time. The ordered counseling may include a program of treatment
and therapy designed to rehabilitate a parent. The treatment and
therapy must address, at a minimum, the following: Issues
regarding physical and sexual abuse, domestic violence, the
psychology of the offender and the affects of abuse on the victim. If the court awards custody, shared parenting or unsupervised
visitation to an offending parent, the court may require the
issuance of periodic counseling reports concerning the progress, if
any, of the rehabilitation process and the well-being of the child.
If upon review of a report the court determines that the offending
parent poses a threat of harm to the child, the court shall
schedule a hearing within ten days of the review of the report and
modify the order of custody or visitation in order to protect the
well-being of the child.
§48-2D-9. Plan for implementation of shared parenting plan.
(a) Mandatory plan. -- The court shall require parents to
submit a parenting plan. If after the parents have attended the
parenting classes mandated by section ten-b, article two of this
chapter, the parents have failed to agree on an agreed parenting
plan that substantially contains adequate provisions for visitation
and other integral aspects of the child's upbringing, the court
shall order mediation to assist parents in producing a parenting
plan. In the event the parents fail to submit an agreed-to
parenting plan the court may consult with the mediator as part of
the proceedings to develop a plan. The court shall give
consideration to any individual parenting plan produced by either
or both parents. The parenting plan shall include provisions covering matters relevant to the care and custody of the child,
including, but not limited to:
(1) The child's education and religious training;
(2) The child's health care;
(3) The child's personal care and control, including parenting
time, holidays, vacations and child care;
(4) Transportation arrangements;
(5) A procedure by which proposed changes, disputes and
alleged breaches of the parenting plan may be mediated,
adjudicated, arbitrated, or otherwise resolved; and
(6) Any other factors the court considers to be in the best
interest of the child.
(b) Enforcement of order. -- In making an order of custody,
the court shall specify the right of each parent to the physical
control of the child in sufficient detail to enable a parent
deprived of that control to seek timely enforcement of the court
order and to enable law-enforcement authorities to act
expeditiously in cases involving parental kidnaping.
(c) Receipt of public welfare. -- One parent may be designated
as a public welfare recipient in situations where public welfare
aid is considered necessary and appropriate.
(d) Discretionary powers of court. -- The court, in its
discretion, may require parents to submit a plan for the
implementation of any other type of custody ordered under this
article. Upon the request of either parent or the court, the court
or other party or agency approved by the court shall assist in the
formulation and implementation of the plan.
§48-2D-10. Minimum contact requirements.
The Legislature recognizes that a shared parenting plan that
enables the nonresidential parent to interact with his or her child
in an regular and unimpeded manner is in the best interest of the
child. The Legislature further recognizes that a rigid visitation
plan is often not in the child's or the parents' best interest and,
therefore, parents are encouraged to develop a plan that takes into
account the age of the child, the distance between the parents'
residences, the extended family of the child, the child's school
and friends, the parents' work schedules, and such other
considerations that may be deemed relevant. In developing such a
plan, the parents should consider the alternative schedule that a
court is likely to impose in the absence of a shared parenting plan
developed by the parents. By way of illustration, such court- imposed plans are likely to include the following:
(a) Equal contact with both maternal and parental grandparents, in a manner consistent with the provisions of article
two-b of this chapter;
(b) For parents who reside less than forty-five miles apart: (1) The child shall be with the nonresidential parent on the
first, third and fifth weekends of every month, commencing from the
time school is dismissed on Friday or the nonresidential parent is
dismissed from work, until eight p.m. on Sunday, or the time school
resumes on Monday, at the nonresidential parent's discretion. For
children who are not yet of school age, the visits shall end on
Monday at the regular time the child goes to day care, a baby- sitter or other caregiver or preschool. The child shall also be
with the nonresidential parent on one evening during one of the
weekdays between alternate visitation weekends from the time school
lets out for the day, or four p.m. for non-school children, to one
hour prior to the child's normal bedtime, but not later than nine
p.m.
(2) The child shall be with the nonresidential parent for a
duration of not less than six weeks each summer, from the day after
school is dismissed for forty-two consecutive days, or other six- week period at the nonresidential parent's discretion. In the
event the child's school district has year-round school, the
nonresidential parent shall be responsible for ensuring that the child is transported to school by a responsible adult.
(3) Alternating holidays as outlined in the holiday schedule
set forth in subsection (e) of this section.
(4) The nonresidential parent may, at his or her discretion,
visit with the child at least once per week during lunch break from
school. For children who are not of school age, the nonresidential
parent may pick the child up from day care, preschool, the baby- sitter or other caregiver's home for a lunch or other visit at
least once per week.
(c) For parents who reside more than forty-five miles apart:
(1) If the nonresidential parent so chooses, he or she may use
the same minimum contact guidelines as those used by parents who
reside within forty-five miles of one another. However, in the
event such frequent contact is not possible, the nonresidential
parent shall be entitled to the following parenting time schedule,
and the parents shall share equally in transportation costs and
responsibility for transporting the children.
(2) The child shall be with the nonresidential parent on
alternating weekends from the time school is out on Friday until
the beginning of school on Monday, or eight a.m. for nonschool
children or when school is not in session.
(3) The parents shall alternate parenting time on holidays as outlined in the holiday schedule in subsection (e) of this subsection.
(d) An inability to adhere to this schedule shall not be
grounds for denying parenting time if the parent's circumstances
change.
(e) Holiday schedule. -- The following provisions govern the
parents' access to the child for vacations and certain specific
holidays and supersede conflicting weekend and weekday periods of
parenting time. Holiday time is in addition to weekend and weekday
access and regularly-scheduled parenting may not be curtailed
because it may extend the parents' holiday access. The parents
shall have time with the child as follows:
(1) Spring break: The nonresidential parent shall have
parenting time in even-numbered years, beginning at six p.m. on the
day the child is dismissed from school for the school's spring
vacation and ending at six p.m. on the day before school resumes
after that vacation, and the residential parent shall have
parenting time for the same period in odd-numbered years;
(2) Christmas break: The nonresidential parent shall have
parenting time in even-numbered years, beginning at six o'clock
p.m. on the day the child is dismissed from school and ending at
four o'clock p.m. Christmas Day, and the residential parent shall be with the child from four o'clock p.m. Christmas Day until seven
o'clock p.m. on New Year's Day. In odd-numbered years, the
residential parent will be with the child from the day school is
dismissed until four o'clock Christmas Day and the nonresidential
parent will be with the child from four o'clock Christmas Day until
seven o'clock New Year's Day.
(3) Other holidays. --
(A) The nonresidential parent shall be with the child in even- numbered years for the following holidays and the residential
parent will be with the child in odd-numbered years:
(i) Memorial Day holiday: From after school or work on Friday
until an hour before bedtime on Monday or school resumes on
Tuesday, at the nonresidential parent's discretion;
(ii) Labor Day holiday: From after school or work on Friday
until an hour before bedtime on Monday or until school resumes on
Tuesday, at the nonresidential parent's discretion.
(B) The nonresidential parent shall be with the child in odd- numbered years for the following holidays, and the residential
parent shall be with the child in even-numbered years:
(i) July Fourth holiday: From after school or work on Friday
until an hour before bedtime on Monday or school resumes on
Tuesday, at the nonresidential parent's discretion;
(ii) Halloween: From after school on the day trick-or-treat
is observed with the parent whose year it is to celebrate the
holiday with the child until an hour before bedtime on Sunday or
until school resumes on Monday, at the nonresidential parent's
discretion. If the child is scheduled to attend school during this
period, the nonresidential parent is responsible for having the
child transported to school by a responsible adult;
(iii) Thanksgiving: From after school or work on the Friday
before Thanksgiving until the Sunday after Thanksgiving at an hour
before bedtime, or when school resumes the Monday after
Thanksgiving, regardless of whether the child is scheduled to
attend school during this period. If school is in session for a
portion of this period, the nonresidential parent is responsible
for having the child transported to school by a responsible adult;
(iv) Other religious holidays: The court order shall specify
a parenting time schedule for parents of children who observe
religious holidays not specified in this chapter.
(f) The court may not order that the address of a shelter for
battered spouses and their dependent children or that confidential
information held by a domestic violence counselor be disclosed to
the opposing party or to any other party to the proceedings.
§48-2D-11. Modification of existing custody or shared parenting orders.
Any custody or shared parenting order entered by a court,
subject to the jurisdictional requirements set forth in this code,
may be modified at any time. If the court finds a basis for
changing the existing order, the parents shall share equally in the
court costs associated with the modification of the order.
§48-2D-12. No discrimination based on sex or marital status.
The court shall consider the qualifications of the parties
without regard to whether the parents were married, or to the sex,
race, color, religion, national origin or political affiliation of
the party or the child in determining:
(a) Which party to appoint as primary residential parent;
(b) Whether to order shared parenting; and
(c) The terms and conditions of custody of and parenting time
with the child.
§48-2D-13. History of domestic violence or child abuse.
In determining custody matters, the court shall consider
evidence of the intentional use of abusive physical force by a
party against the party's spouse or against any person younger than
eighteen years of age, committed within a two-year period preceding
the filing of the divorce complaint or during the pendency of the
divorce.
The court may not order shared parenting if credible evidence
is presented that a history or pattern exists of child neglect, or
physical or sexual abuse by one parent directed against the other
parent, a spouse or child. The court shall consider the commission
of family violence in determining whether to deny, restrict or
limit access to a child by a parent. If the court makes a finding
that abuse has occurred, the court shall report the finding to the
appropriate law-enforcement agency for criminal investigation and,
if appropriate, criminal prosecution.
§48-2D-14. False allegations of domestic violence.
Within ten days of the filing of a petition seeking
modification of a custody or shared parenting order on the basis of
alleged child abuse, a hearing shall be held before the court. At
the hearing, the petitioner must prove the allegation of abuse by
a preponderance of the evidence. The court shall, at the time the
respondent is given notice of the hearing, advise the respondent of
the right to be represented by counsel, and of the fact that any
protection order granted by the court may be considered in any
subsequent proceedings under this article. The notice shall be
printed and delivered in a manner which easily attracts attention
to its content and shall specify that prior protection orders may
be considered.
If the court makes a finding that abuse has occurred, the
court shall report the finding to the appropriate law-enforcement
agency for criminal investigation and, if appropriate, criminal
prosecution. Any person who makes knowingly false allegations of
domestic violence or abuse or neglect is guilty of a felony and,
upon conviction thereof, shall be sentenced to five years in a
correctional facility and fined not more than one thousand five
hundred dollars. If a court, regardless of conviction, finds the
existence of false allegations, it may consider same in determining
the allocation of parental rights and responsibilities or any
modification thereof. If the court finds that a party has been
falsely accused, the court shall order the party who filed the
false allegations to pay the costs incurred by the accused party in
addressing the charges, including court costs and attorney's fees.
Further, the court shall report the finding to the appropriate law- enforcement agency for criminal investigation and, if appropriate,
criminal prosecution.
§48-2D-15. False report of child abuse.
If a party to a proceeding affecting the parent-child
relationship makes a report alleging child abuse by the other
party, the court shall determine whether the report is false. In
the event the court finds the report to be false, it shall next determine if the reporter knew the allegations were false when
reporting them.
Evidence of a false report of child abuse is admissible in a
suit between the involved parties regarding the terms of shared
parenting. The court may find that the false allegations of abuse
are sufficient reason for modifying the allocation of parental
rights and responsibilities.
If the court makes a finding of knowing false reporting of
abuse under this section, the court shall impose a civil penalty of
not less than five hundred dollars and not more than one thousand
five hundred dollars against the offending person. The existence
of false allegations may also be used by the court in determining
the allocation of parental rights and responsibilities. If the
court finds that a party was falsely accused, the court shall order
the party who filed the false allegations to pay the costs incurred
by the accused party in addressing the charges, including court
costs and attorney's fees.
If the court finds that false allegations were made, the court
shall report the finding to the appropriate law-enforcement agency
for criminal investigation and, if appropriate, criminal
prosecution.
The court may change the child's primary residence to the parent who was falsely accused of abuse, at the falsely-accused
parent's request, if in the best interest of the child.
§48-2D-16. Parenting time enforcement.
If, upon the presentation of credible evidence, it is found
that a party has interfered with the parenting time of another
party, or visitation rights of a grandparent, such finding may be
used by the court as sufficient reason to change the child's
primary residence.
§48-2D-17. Contempt for noncompliance with parenting time order.
When a parent refuses without proper cause to honor a
grandparent's visitation rights, as those rights are set forth in
article two-b of this chapter, or the other parent's parenting time
rights the court shall, after calculating the amount of visitation
improperly denied, award the other parent or grandparent a
sufficient amount of extra time with the child to compensate the
other parent or grandparent. The extra time shall be ordered as
expeditiously as possible in a manner consistent with the best
interest of the child and scheduled in a manner that is convenient
for the person deprived of time with the child. In ordering any
makeup parenting time or visitation, the court shall schedule such
extra time in a manner that is consistent with the best interest of
the child or children and that is convenient for the parent or grandparent who has been denied access. In addition, the court
may:
(1) Order the offending party to pay reasonable court costs
and attorney's fees incurred by the other parent or grandparent to
enforce their parenting time or visitation rights;
(2) Order the offending party to attend a parenting course
approved by the court;
(3) Order the offending party to perform community service; (4) Order the offending party to undertake the financial
burden of promoting frequent and continuing contact of the child
with the other parent when the residential parent and child reside
further than forty-five miles from the other parent;
(5) Revise any aspect of the parenting plan or court order if
the best interest of the child would be furthered thereby; or (6) Impose any other reasonable sanction.
§48-2D-18. Infringement of parental rights.
If the court finds that a parent is infringing upon the
parental rights of the other parent, the court shall impose
appropriate sanctions against the offending parent designed to
prevent further such infringement.
§48-2D-19. Rights and duties during period of parenting time.
Unless limited by court order, a parent of a child has the following rights and duties during the period that the parent has
parenting time with the child:
(a) The duty of care, control, protection and reasonable
discipline of the child;
(b) The duty to support the child, including providing the
child with clothing, food, shelter, medical and dental care not
involving an invasive procedure;
(c) The right to consent for the child to medical and dental
care not involving an invasive procedure;
(d) The right to consent for the child to medical, dental and
surgical treatment during an emergency involving immediate danger
to the health and safety of the child;
(e) The right to direct the moral and religious training of
the child;
(f) The duty to permit the other parent to speak on the
telephone with the child at least twice a week for reasonable
periods of time during extended visitation periods and to permit
the child to receive uncensored mail and e-mail from the other
parent; and
(g) Any other rights and duties agreed upon in the shared
parenting plan.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 1A. DEFINITIONS.
§48A-1A-19. Gross income.
(a) "Gross income" means all earned and unearned income. The
word "income" means gross income unless the word is otherwise
qualified or unless a different meaning clearly appears from the
context. When determining whether an income source should be
included in the child support calculation, the court or master
should consider the income source if it would have been available
to pay child-rearing expenses had the family remained intact or, in
cases involving a nonmarital birth, if a household had been formed.
(b) "Gross income" includes, but is not limited to, the
following:
(1) Earnings in the form of salaries, wages, commissions,
fees, bonuses, profit sharing, tips and other income;
(2) Any payment from a pension plan, an insurance contract, an
annuity, social security benefits, unemployment compensation,
supplemental employment benefits, workers' compensation benefits
and state lottery winnings and prizes;
(3) Interest, dividends or royalties;
(4) Expense reimbursements or in In kind payments such as
business expense accounts, business credit accounts, and tangible
property such as automobiles and meals, to the extent that they provide the parent with property or services he or she would
otherwise have to provide: Provided, That reimbursement of actual
expenses incurred and documented shall not be included as gross
income;
(5) Attributed income of the parent, calculated in accordance
with the provisions of section three, article one-a of this
chapter;
(6) Compensation paid for personal services as overtime pay:
Provided, That overtime compensation may be excluded from gross
income if the parent with the overtime income demonstrates to the
court or master that the overtime work is voluntarily performed and
that he or she did not have a previous pattern of working overtime
hours prior to separation or birth of a nonmarital child;
(7) Income from self-employment or the operation of a
business, minus ordinary and necessary expenses which are not
reimbursable, and which are lawfully deductible in computing
taxable income under applicable income tax laws, and minus FICA and
medicare contributions made in excess of the amount that would
be paid on an equal amount of income if the parent was not
self-employed: Provided, That the amount of monthly income to be
included in gross income shall be determined by averaging the income from such employment during the previous thirty-six-month
period or during a period beginning with the month in which the
parent first received such income, whichever period is shorter;
(8) Income from seasonal employment or other sporadic sources:
Provided, That the amount of monthly income to be included in gross
income shall be determined by averaging the income from seasonal
employment or other sporadic sources received during the previous
thirty-six-month period or during a period beginning with the month
in which the parent first received such compensation, whichever
period is shorter; and
(9) Alimony and separate maintenance receipts.
(c) Depending on the circumstances of the particular case, the
court or master may also include severance pay, capital gains and
net gambling, gifts or prizes as gross income.
(d)"Gross income" does not include:
(1) Potential income, the realization of which is dependent
upon the occurrence of some future event which is not certain and
absolute;
(1) (2) Income received by other household members such as a
new spouse;
(2) (3) Child support received for the children of another
relationship;
(3) (4) Means-tested assistance such as aid to families with
dependent children, supplemental security income and food stamps;
and
(4) (5) A child's income unless the court or master determines
that the child's income substantially reduces the family's living
expenses.
ARTICLE 1B. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48A-1B-1. General provisions.
(a) This section establishes guidelines for child support
award amounts so as to ensure greater uniformity by those persons
who make child support recommendations and enter child support
orders and to increase predictability for parents, children and
other persons who are directly affected by child support orders.
There shall be a rebuttable presumption, in any proceeding before
a family law master or circuit court judge for the award of child
support, that the amount of the award which would result from the
application of these guidelines is the correct amount of child
support to be awarded: Provided, That there is a presumption of
substantial unfairness if after the sum total of child support,
alimony and child care costs is subtracted from the obligor
parent's income, the income is at or below one hundred percent of
the federal poverty guidelines unless this would cause the household of the children to fall below the federal poverty level.
(b) The Legislature recognizes that children have a right to
share in their parents' level of living. Expenditures in families
are not made in accordance with subsistence level standards, but
are made in proportion to household income, and as parental incomes
increase or decrease, the actual dollar expenditures for children
also increase or decrease correspondingly. In order to ensure that
children properly share in their parents' resources, regardless of
family structure, the guidelines are structured so as to provide
that after a consideration of respective parental incomes, that
child support will be related, to the extent practicable, to the
level of living that children would enjoy if they were living in a
household with both parents present.
(c) The guidelines promulgated under the provisions of this
section take into consideration the financial contributions of both
parents. The Legislature recognizes that expenditures in
households are made in aggregate form and that total family income
is pooled to determine the level at which the family can live. The
guidelines consider the financial contributions of both parents in
relationship to total income, so as to establish and equitably
apportion the child support obligation.
(d) The provisions of this article which would create a new method of calculating child support obligations based on an income
shares model shall not become operative until the first day of
July, one thousand nine hundred ninety-seven. The child support
guidelines in effect on the first day of January, one thousand nine
hundred ninety-six, as promulgated by legislative rule, shall
continue in effect, notwithstanding the repeal of section
seventeen, article two of this chapter during the regular session
of the Legislature, one thousand nine hundred ninety-six. To the
extent that any definition set forth in article one-a of this
chapter is inconsistent with the manner of calculating a support
obligation under the legislative rule establishing child support
guidelines that is in effect on the first day of January, one
thousand nine hundred ninety-six, such definition shall have no
application until the first day of July, one thousand nine hundred
ninety-seven.
§48A-1B-14. Disregard of formula.
(a) If the court or master finds that the guidelines are
inappropriate in a specific case, the court or master may either
disregard the guidelines or adjust the guidelines-based award to
accommodate the needs of the child or children or the circumstances
of the parent or parents. In either case, the reason for the
deviation and the amount of the calculated guidelines award must be stated on the record (preferably in writing on the worksheet or in
the order). Such findings clarify the basis of the order if
appealed or modified in the future.
(b) These guidelines do not take into account the economic
impact of the following factors and can be possible reasons for
deviation:
(1) Special needs of the child or support obligor;
(2) Educational expenses for the child or the parent (i.e.
those incurred for private, parochial, or trade schools, other
secondary schools, or post-secondary education where there is
tuition or costs beyond state and local tax contributions);
(3) Families with more than six children;
(4) Long distance visitation costs; or
(5) The child resides with third party;
(6) The needs of another child or children to whom the obligor
owes a duty of support; or
(7) The extent to which the obligor's income depends on
nonrecurring or nonguaranteed income.
§48A-1B-16. Investment of child support.
(a) A circuit judge has the discretion, in appropriate cases,
to direct that a portion of child support be placed in trust and
invested for future educational or other needs of the child. The family law master may recommend and the circuit judge may order
such investment when all of the child's day-to-day needs are being
met such that, with due consideration of the age of the child, the
child is living as well as his or her parents.
(b) If the amount of child support, calculated according to
the child support guidelines, exceeds the sum of one thousand five-
hundred dollars per month per child, then the circuit court shall
order that the amount in excess of one thousand five- hundred
dollars per month per child be placed in a trust and invested for
future educational or other needs of the child: Provided, That in
the event it is demonstrated that extraordinary expenses are
incurred on behalf of the child as a result of a physical, mental
or developmental disability, then the court may order that
additional sums be payable to the payee in addition to the one
thousand five hundred dollar base amount instead of being placed in
trust.
(c) A trustee named by the court shall use the judgment and
care under the circumstances then prevailing that persons of
prudence, discretion and intelligence exercise in the management of
their own affairs, not in regard to speculation but in regard to
the permanent disposition of their funds, considering the probable
income as well as the probable safety of their capital. A trustee shall be governed by the provisions of the uniform prudent investor
act as set forth in article six-c, chapter forty-four of this code.
The court may prescribe the powers of the trustee and provide for
the management and control of the trust. Upon petition of a party
or the child's guardian or next friend and upon a showing of good
cause, the court may order the release of funds in the trust from
time to time.
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND ORGANIZATION.
§48A-2-35. Review and adjustment of child support orders.
(a) Either parent or, if there has been an assignment of
support to the department of health and human resources, the child
support enforcement division shall have the right to request an
administrative review of the child support award in the following
circumstances:
(1) Where the request for review is received thirty-six months
or more after the date of the entry of the order or from the
completion of the previous administrative review, whichever is
later, the child support enforcement division shall conduct a
review to determine whether the amount of the child support award
in such order varies from the amount of child support that would be
awarded at the time of the review pursuant to the guidelines for child support awards contained in article one-b of this chapter.
If the amount of the child support award under the existing order
differs by ten percent or more from the amount that would be
awarded in accordance with the child support guidelines, the child
support enforcement division shall file with the circuit court a
motion for modification of the child support order. If the amount
of the child support award under the existing order differs by less
than ten percent from the amount that would be awarded in
accordance with the child support guidelines, the child support
enforcement division may, if it determines that such action is in
the best interest of the child or otherwise appropriate, file with
the circuit court a motion for modification of the child support
order.
(2) Where the request for review of a child support award is
received less than thirty-six months after the date of the entry of
the order or from the completion of the previous administrative
review, the child support enforcement division shall undertake a
review of the case only where it is alleged that there has been a
substantial change in circumstances. If the child support
enforcement division determines that there has been a substantial
change in circumstances and if it is in the best interest of the
child, the division shall file with the circuit court a motion for modification of the child support order in accordance with the
guidelines for child support awards contained in article one-b of
this chapter.
(b) The child support enforcement division shall notify both
parents at least once every three years of their right to request
a review of a child support order. The notice may be included in
any order granting or modifying a child support award.: Provided,
That whenever a child support order becomes more than six months in
arrears or the division becomes aware of a substantial change in an
obligor's financial circumstances in which the obligor's income has
been reduced by more than twenty-five percent, the division shall
inform the obligor of the availability of a modification of the
award and of the services that may be available to him or her from
the division. The division shall also inform the obligor of his or
his
or
her possible entitlement to a reduction in court-ordered support
payments; that a failure to obtain a modification will result in
the previously-ordered award remaining in effect; and that
substantial arrearages might accumulate and remain as judgments
against him or her. The child support enforcement division shall
give each parent at least thirty days' notice before commencing any
review, and shall further notify each parent, upon completion of a
review, of the results of the review, whether of a proposal to move for modification or of a proposal that there should be no change.
(c) When the result of the review is a proposal to move for
modification of the child support order, each parent shall be given
thirty days' notice of the hearing on the motion, the notice to be
directed to the last known address of each party by first class
mail. When the result of the review is a proposal that there be no
change, any parent disagreeing with that proposal may, within
thirty days of the notice of the results of the review, file with
the court a motion for modification setting forth in full the
grounds therefor.
(d) For the purposes of this section, a "substantial change in
circumstances" includes, but is not limited to, a changed financial
condition, a temporary or permanent change in physical custody of
the child which the court has not ordered, increased need of the
child, or other financial conditions. "Changed financial
conditions" means increases or decreases in the resources available
to either party from any source. Changed financial conditions
includes, but is not limited to, the application for or receipt of
any form of public assistance payments, unemployment compensation
and workers' compensation, or a fifteen percent or more variance
from the amount of the existing order and the amount of child support that would be awarded according to the child support
guidelines.
(e) All child support orders shall contain a notice which
contains language substantially similar to the following: "The
amount of the monthly child support can be modified as provided by
law based upon a change in the financial or other circumstances of
the parties if those circumstances are among those considered in
the child support formula. In order to make the modification a
party must file a motion to modify the child support amount.
Unless a motion to modify is filed, the child support amount will
continue to be due and cannot later be changed retroactively even
though there has been a change of circumstances since the entry of
the order. Self help forms for modification can be found at the
circuit clerk's office." The failure of an order to have such a
provision does not alter the effectiveness of the order.
ARTICLE 3. CHILDREN'S ADVOCATE.
§48A-3-3. Duties of the children's advocate.
Subject to the control and supervision of the director:
(a) The children's advocate shall supervise and direct the
secretarial, clerical and other employees in his or her office in
the performance of their duties as such performance affects the
delivery of legal services. The children's advocate will provide appropriate instruction and supervision to employees of his or her
office who are nonlawyers, concerning matters of legal ethics and
matters of law, in accordance with applicable state and federal
statutes, rules and regulations.
(b) In accordance with the requirements of rule 5.4(c) of the
rules of professional conduct as promulgated and adopted by the
supreme court of appeals, the children's advocate shall not permit
a nonlawyer who is employed by the department of health and human
resources in a supervisory position over the children's advocate to
direct or regulate the advocate's professional judgment in
rendering legal services to recipients of services in accordance
with the provisions of this chapter; nor shall any nonlawyer
employee of the department attempt to direct or regulate the
advocate's professional judgment.
(c) The children's advocate shall make available to the public
an informational pamphlet, designed in consultation with the
director. The informational pamphlet shall explain the procedures
of the court and the children's advocate; the duties of the
children's advocate; the rights and responsibilities of the
parties; and the availability of human services in the community.
The informational pamphlet shall be provided as soon as possible
after the filing of a complaint or other initiating pleading. Upon request, a party to a domestic relations proceeding shall receive
an oral explanation of the informational pamphlet from the office
of the children's advocate.
(d) The children's advocate shall act to establish the
paternity of every child born out of wedlock for whom paternity has
not been established, when such child's primary caretaker is an
applicant for or recipient of aid to families with dependent
children, and when such primary caretaker has assigned to the
division of human services any rights to support for the child
which might be forthcoming from the putative father: Provided,
That if the children's advocate is informed by the secretary of the
department of health and human resources or his or her authorized
employee that it has been determined that it is against the best
interest of the child to establish paternity, the children's
advocate shall decline to so act. The children's advocate, upon
the request of any primary caretaker of a child born out of
wedlock, regardless of whether such primary caretaker is an
applicant or recipient of aid to families with dependent children,
shall undertake to establish the paternity of such child.
(e) The children's advocate shall undertake to secure support
for any individual who is receiving aid to families with dependent
children when such individual has assigned to the division of human services any rights to support from any other person such
individual may have: Provided, That if the children's advocate is
informed by the secretary of the department of health and human
resources or his or her authorized employee that it has been
determined that it is against the best interest of a child to
secure support on the child's behalf, the children's advocate shall
decline to so act. The children's advocate, upon the request of
any individual, regardless of whether such individual is an
applicant or recipient of aid to families with dependent children,
shall undertake to secure support for the individual: Provided,
however, That the children's advocate may not represent or
otherwise assist any person in an effort to secure or enforce the
payment of alimony if such person is not also an obligee of a child
support award from the same obligor. If circumstances require, the
children's advocate shall utilize the provisions of chapter forty- eight-b of this code and any other reciprocal arrangements which
may be adopted with other states for the establishment and
enforcement of support obligations, and if such arrangements and
other means have proven ineffective, the children's advocate may
utilize the federal courts to obtain and enforce court orders for
support.
(f) The children's advocate shall pursue the enforcement of
support orders through the withholding from income of amounts
payable as support:
(1) Without the necessity of an application from the obligee
in the case of a support obligation owed to an obligee to whom
services are already being provided under the provisions of this
chapter; and
(2) On the basis of an application for services in the case of
any other support obligation arising from a support order entered
by a court of competent jurisdiction.
(g) The children's advocate may decline to commence an action
to obtain an order of support under the provisions of section one,
article five of this chapter if an action for divorce, annulment or
separate maintenance is pending, or the filing of such action is
imminent, and such action will determine the issue of support for
the child: Provided, That such action shall be deemed considered
to be imminent if it is proposed by the obligee to be commenced
within the twenty-eight days next following a decision by the
children's advocate that an action should properly be brought to
obtain an order for support.
(h) If the child advocate office, through the children's
advocate, shall undertake paternity determination services, child support collection or support collection services for a spouse or
former spouse upon the written request of an individual who is not
an applicant or recipient of assistance from the division of human
services, the office may impose an application fee for furnishing
such the services. Such The application fee shall be in a
reasonable amount, not to exceed twenty-five dollars, as determined
by the director: Provided, That the director may fix such the
amount at a higher or lower rate which is uniform for this state
and all other states if the secretary of the federal department of
health and human services determines that a uniform rate is
appropriate for any fiscal year to reflect increases or decreases
in administrative costs. Any cost in excess of the application fee
so imposed may be collected from the obligor who owes the child or
spousal support obligation involved.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT
.
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-29. Failure to meet an obligation to provide support to a
minor; penalties.
(1) A person who: (a) Persistently fails to provide support
which he or she can reasonably provide and which he or she knows he
or she has a duty to provide to a minor; or (b) is subject to court
order to pay any amount for the support of a minor child and is delinquent in meeting the full obligation established by the order
and has been delinquent for a period of at least six months'
duration, is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than one
thousand dollars, or imprisoned in the county jail for not more
than one year, or both fined and imprisoned.
(2) A person who persistently fails to provide support which
he or she can reasonably provide and which he or she knows he or
she has a duty to provide to a minor by virtue of a court or
administrative order and the failure results in: (a) An arrearage
of not less than eight thousand dollars; or (b) twelve consecutive
months without payment of support, is guilty of a felony and, upon
conviction thereof, shall be fined not less than one hundred
dollars nor more than one thousand dollars, or imprisoned for not
less than one year nor more than three years, or both fined and
imprisoned.
(3) In a prosecution under this section, the defendant's
alleged inability to reasonably provide the required support may be
raised only as an affirmative defense, after reasonable notice to
the state.
Note: Strike-throughs indicate language that would be
stricken from the present law, and underscoring indicates new
language that would be added.
Article two-d, chapter forty-eight is new; therefore, strike-throughs and underscoring have been omitted.