ENGROSSED
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. 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 monitored 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-nine 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-nine 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-2. 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, in accordance with the provisions of
chapter twenty-nine-a of this code, propose legislative rules it
deems necessary and appropriate to implement and maintain the
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-3. 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-4. 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.
§48-2D-5. 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.
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.
(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.
§48-2D-6. Evidence.
(a) A certified center's records of the monitoring of
visitation activities shall be admissible in evidence in any
civil or criminal proceeding.
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.
(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.