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
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
ARTICLE 2D. CHILDREN'S MONITORED VISITATION AND EXCHANGE
§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.
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
(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
(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
(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
(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
§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
(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.
(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
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
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
(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."
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."