H. B. 2717


(By Delegates Fleischauer, Laird, Pettit,
Doyle, Mahan and Staton)
[Introduced February 10, 1999; referred to the
Committee on the Judiciary.]



A BILL to amend chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-d, relating to children's monitored visitation; legislative findings; definitions; duties and powers of board; board to propose legislative rules; certification of children's visitation monitoring and exchange centers; court orders; and evidence from monitoring centers that is admissible in court proceedings.

Be it enacted by the Legislature of West Virginia:
That chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two-d, to read as follows:
ARTICLE 2D. CHILDREN'S MONITORED VISITATION AND EXCHANGE CENTERS.
§48-2D-1. Legislative findings.
(a) Increasing numbers of children have parents who are not living together. They are, therefore, in the physical or legal custody of one parent while having visitation with the other parent, or are in shared custody arrangements where physical custody is shared by parents, or are in the custody of third parties but have parents or others with rights to visitation.
(b) Although these visitation and custody rights are often phrased in terms of rights of parents or other caretakers, the primary purpose of these rights is to further the best interests of the children who are involved.
(c) Many of these children have been exposed to domestic violence perpetrated by a parent or have been victimized by a parent or other person using custody and visitation rights for purposes other than those which are in the best interests of the children. These and other situations adverse to the interests of children require the exercise of custody and visitation rights by certain individuals to be monitored.
(d) Within the current legal framework related to a parent's right of visitation exists an inadequacy which affords some the ability to intimidate children, parents or grandparents, to negatively influence the opinions or recollections of children, to alienate the affections of children from the other parent or other adults, or to engage in other inappropriate behavior that does not serve the best interest of the children involved. The ability to perpetrate this inappropriate behavior is often exploited within the context of domestic violence.
(e) It is in the best interests of children for visitation to occur in safe and neutral settings. It is sometimes in the best interests of children for visitation to be monitored in order to observe and record the visitation process and, if within the capabilities of the monitoring facility and personnel, to discourage or prevent inappropriate conduct; and
(f) For the above reasons it is in the best interests of the children of this state that a program be implemented designed to provide centers to monitor visitation. These centers should be appropriately and adequately configured and equipped while providing trained, competent personnel, to monitor visitation as well as the exchange of children that occurs as a prerequisite to the exercise of custody or visitation rights.
§48-2D-2. Definitions.
For the purposes of this article:
(a) "Board" means the family protection services board created pursuant to article two-c of this chapter.
(b) "Center" when used in connection with monitored visitation or monitored exchange of children means a corporation, partnership, sole proprietorship or other entity within the meaning of the word "person" in section two, article two, chapter ten of this code.
(c) "Monitored exchange" or "exchange" of children when used in connection with monitoring means the transfer of physical custody of a child or children from one parent or caretaker to another parent or caretaker for the purpose of exercising a right to visitation or physical custody. These terms may include the transfers of children in which the monitoring personnel have the authority, within the limits of the powers, abilities and training of personnel, to discourage or stop inappropriate behaviors. These terms do not include therapeutic visitation exchanges or any activity conducted by the state in abuse and neglect proceedings pursuant to article six, chapter forty-eight of this code or by others in which the following occurs: Assessment, evaluation, formulation of a treatment plan, case management, counseling, therapy or the like. Neither do these terms include transportation.
(d) "Monitored visitation" or "monitor" when used in connection with visitation means a form of supervised visitation which includes facilitating, observing and recording the exercise of visitation. These terms may include visitation in which the monitoring personnel have the authority, within the limits of the powers, abilities and training of personnel, to discourage or stop inappropriate behaviors or the visitation itself. The terms do not include therapeutic visitation or any activity conducted by the state in abuse and neglect proceedings pursuant to article six, chapter forty-eight of this code or by others in which the following occurs: Assessment, evaluation, formulation of a treatment plan, case management, counseling, therapy or the like. Neither do these terms include transportation.
§48-2D-3. Duties and powers of board; proposal of rules.
(a) In addition to its duties and powers directed and conferred under article two-c of this chapter the board has the duties and powers set forth in this article.
(b) The board shall propose legislative rules it deems necessary and appropriate to implement and maintain the creation and certification of centers while insuring the centers are properly configured and equipped, have and follow proper procedures, and have properly trained personnel to conduct monitored visitation, including the exchange of children. The board shall consult with judges, magistrates, family law masters, law enforcement officers, licensed batterers' intervention programs, the family law committee of the West Virginia state bar, licensed domestic violence programs, trade organizations of licensed domestic violence programs and other individuals, professions and organizations it considers appropriate in drafting proposed rules. The rules shall include:
(1) Requirements for physical facilities;
(2) Requirements for qualification and training of individuals to monitor children's visitation or the exchange of children;
(3) Requirements that the primary purpose of the center is to protect children's rights, needs and best interests with regard to visitation. It is accordingly recognized that protecting the best interests of children in and throughout the visitation process does not necessarily coincide with supporting the rights of the parents, other family members, associates or other caretakers;
(4) Requirements for qualifications and training of persons authorized to evaluate centers for compliance with the requirements of this article;
(5) Requirements that parents or other caretakers sign a written contract and that the use of the services provided by the center may be terminated by the center for violation of the contract;
(6) Other requirements for certification and maintenance of certification as are appropriate; and
(7) The length of effectiveness of a certification.
§48-2D-4. Certification of children's visitation monitoring and exchange centers.
(a) The board shall accept applications for certification and grant or deny the applications in an expeditious manner.
(b) The board may direct an evaluation be performed of a center that has applied for certification or has been certified in order to determine its ability to comply with the provisions of this article.
(c) The board may suspend or revoke certification of a center if the board finds that the center has ceased to comply with the provisions and requirements of this article. The board may deny, suspend or revoke certification if it finds a pattern of failure to comply with certification or other legal requirements.
§48-2D-5. Representations regarding certification.
Centers that have been certified pursuant to this article may represent that they are "certified" for monitored visitation or the monitored exchange of children. A representation that a person or organization is "certified" or a representation that reasonably leads one to believe that a person or organization is certified when the person or organization is not certified is unlawful and in addition is an unfair and deceptive act or practice in the conduct of trade and commerce.
§48-2D-6. Court orders; individuals.
(a) Judges, family law masters and magistrates with proceedings pending before them regarding the custody or visitation of children may, as a condition of visitation, order persons to apply to a certified center for monitored visitation and to receive services designed to promote the best interests of the children involved and to comply with the terms and conditions required to receive those services, as prescribed by the center. A certified center shall not be required to perform duties which are beyond the center's capacity, or which are in violation of the provisions of this article. Judges, family law masters and magistrates, when ordering child visitation or custody, may require a person to pay a reasonable sum based on his or her ability to pay, or relative fault, or other relevant criteria. The provisions of this section do not limit the provisions that may be placed in orders regarding visitation or the exchange of children not served or otherwise connected with a certified center.
(b) Certified centers may monitor visitation or provide other services to persons who are not ordered to seek such services when the parties agree to the use of the center for such purposes. Certified centers may perform these services on the same terms and conditions that would otherwise apply.
§48-2D-7. Evidence.
(a) A certified center's records of the monitoring of visitation activities shall be admissible in evidence in any civil or criminal proceeding: Provided, That, prior to admission, the intended introduction of such evidence is made known to the adverse party in time for the adverse party to have an opportunity to prepare to meet it.
(b) No witness may qualify to testify to matters beyond their personal observations and actions on the grounds that they are personnel of, or trained to be personnel of, a certified center.



This article is new; therefore, strike-throughs and underscoring have been omitted.


JUDICIARY COMMITTEE AMENDMENT


On page two, section one, line one, by striking out all of section one and renumbering the remaining sections.
On page four, section two, line three, following the word "the", by inserting the word "monitored".
On page four, section two, line twelve, following the word "chapter", by striking out the word "forty-eight", and inserting in lieu thereof the word "forty-nine".
On page five, section two, line two, following the word "chapter", by striking out the word "forty-eight", and inserting in lieu thereof the word "forty-nine".
On page five, section three, line ten, following the word "shall", by inserting the words "in accordance with the provisions of chapter twenty-nine-a of this code" and a comma.
On page five, section three, lines eleven and twelve, following the word "the", by striking out the words "creation and".
On page seven, beginning on line ten, by striking out all of section five, and inserting in lieu thereof a new section five to read as follows:
"§48-2D-5. Representations regarding certification; penalties.
(a) Centers that have been certified pursuant to this article may represent that they are "certified" for monitored visitation or the monitored exchange of children. A representation that a person or organization is certified or a representation that reasonably leads one to believe that a person or organization is certified when the person or organization is not certified is prohibited. A person or organization who represents that the person or organization is certified pursuant to this article, or who, through acts or omissions, causes another person to reasonably believe that the person or organization is certified when, in fact, the person or organization is not certified, is liable for damages, costs and fees as provided for in this section.
(b) A parent or caretaker who has used the services of an uncertified center that is in violation of this section because of misrepresentation as to certification may bring an action to recover actual damages for any injury sustained by delivery of services by the center. In lieu of actual damages, a minimum damage assessment of five hundred dollars may be recovered for violations of this article.
(c) A certified center that has suffered a loss or harm as a result of a violation of this section because of misrepresentation as to certification by an uncertified center may seek injunctive or declaratory relief and actual damages. In lieu of actual damages, a minimum damage assessment of five hundred dollars may be recovered for violations of this article.
(d) The state, on behalf of its residents who have suffered a loss or harm as a result of a violation of this section because of misrepresentation as to certification by an uncertified center, may seek injunctive or declaratory relief, actual damages and civil penalties.
(e) Punitive damages may be awarded for the willful failure to cease misrepresentation as to certification by an uncertified center.
(f) In addition to any other award authorized by this section, court costs and attorney fees may be recovered.
(g) No action brought pursuant to the provisions of this section may be brought more than one year after the date upon which the violation occurred.
(h) The provisions of this section shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law."
On page seven, section six, line twenty-three, following the word "visitation", by inserting a period and striking out the remainder of the sentence.
On page eight, section six, following line seventeen, by inserting a new subsection (c), to read as follows:
"(c) Absent a court order that provides otherwise, nothing in this article shall prohibit a family member or other person who is not certified from providing a safe and neutral setting for the exchange of a child or visitation with a child."
And,
On page eight, section seven, line twenty-one, by changing the colon to a period, striking out the proviso, and inserting a new sentence to read as follows: "After providing a defendant with a copy of the records, notice, and an opportunity to be heard, a center's records of the monitoring of visitation activities shall be admissible unless a challenge to the procedures used to compile the records or a challenge to the conclusions set forth in the records has been made before trial."