Senate Bill No. 381
(By Senator Hunter, Walker, Redd, Kessler, Mitchell, Unger, Ball,
McKenzie, Minear and Love)
[Introduced February 2, 2000; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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
establishing a center to effect monitoring and facilitating
exchanges of children between parents for visitations.
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
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. Therefore, they are in shared legal custody
arrangements where physical custody is shared by parents, are in
the custody of one parent while having visitation with the other
parent, 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. The visitation or exchange can be an opportunity for
adults who have things they want to say or do regarding their
relationship with the other adult to say or do them in front of the
children when it is inappropriate to do so. The visitation or
exchange can be an opportunity for attempts to influence the
opinion or recollection of facts by children or other adults prior to court hearings. The visitation or exchange can be an
opportunity for one adult to say or do things to alienate the
affections of children from the other parent or another adult. The
visitation or exchange can be an opportunity for investigation of
the social or other activities of the other parent or other adults.
These and other situations adverse to the interests of children
require the exercise of custody and visitation rights by some
adults to be monitored. The opportunity for these inappropriate
behaviors is often exploited when domestic violence among the
adults involved has occurred or has been alleged.
(d) It is sometimes in the best interests of children for
visitation or the exchange of physical custody for the exercise of
shared custody or visitation rights 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
(e) For the above reasons it is in the best interests of the
children of this state that a program be implemented to foster safe
and neutral centers to monitor visitation and the exchange of
children for the exercise of shared custody and visitation rights
through certification monitored visitation and exchange centers so parents and courts can know if a center is properly configured and
equipped, if a center has and follows proper procedures, and if a
center has adequately trained personnel in order to properly
monitor visitation or monitor the exchange of children for the
exercise of visitation or shared custody.
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
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 or the transfer itself. The 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. The terms do not include
(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.
The terms do not include transportation.
§48-2D-3. Duties and powers of board; promulgation of rules; effective date of other duties and powers.
(a) In addition to its duties and powers in article two-c of
this chapter, the board has the duties and powers set forth in this
(b) The board shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code it deems necessary and appropriate to
implement and maintain the certification of centers which are
properly configured and equipped, have and follow proper
procedures, and have properly trained personnel to conduct
monitored visitation and exchange of children. During the
promulgation of rules 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 deems advisable. The
rules shall include:
(1) Requirements for physical facilities;
(2) Requirements for qualification and training of individuals
monitoring children's visitation or exchange of children;
(3) Requirements that the primary purpose of the center shall
be the children's rights, needs, and best interests with regard to
visitation and exchange of children and not 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, rules promulgated pursuant to this article and
(5) Requirements that the parents or other caretakers sign a
written contract and that the use of the services provided by the
center can be terminated by the center for violation of the
(6) Other requirements for certification and maintenance of
certification as are advisable; and
(7) The length of effectiveness of a certification.
(c) The powers of the board in this article which are not
necessary in order for the board to promulgate the initial rule
authorized by this section shall take effect after the effective
date of the rule first promulgated pursuant to this section.
§48-2D-4. Certification of children's visitation monitoring and
(a) The board shall accept applications for certification and
grant or deny those applications expeditiously within the limits of
(b) The board may cause an evaluation to be made of a center
that has applied for certification or has been certified in order
to determine its ability to monitor children's visitation or the
exchange of children or the center's compliance with the provisions
of this article, rules promulgated pursuant to this article and
other law. The evaluation may be done by the board, the
department, by designees of the board, or by peer evaluation of
other certified centers.
(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 of this article, rules promulgated pursuant to this
article or other law. In addition to other valid reasons for
denying, suspending or revoking a certification, the board may take
those actions if the board finds a pattern of failure to comply
with certification requirements or a pattern of violation of law or
§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
monitored exchange of children. A representation that a person or
organization is "certified" or a representation that would lead a
member of the public or a public official 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 a trade or commerce.
§48-2D-6. Court orders; individuals.
(a) Judges, family law masters and magistrates with
proceedings before them regarding the custody or visitation of
children may, as a condition of visitation or the exchange of
children, order persons to apply to a certified center for
monitored visitation services or monitored exchange of children
services and comply with the terms and conditions of those services
as set by the center pursuant to this article, the rules
promulgated pursuant to this article, other law and the policies of
(b) A certified center may not be required to perform duties
which are beyond the center's capacity, which are not monitored
visitation or monitored exchange of children, which are in
violation of this article, rules promulgated pursuant to this article, other law or the reasonable policies of the center.
(c) Judges, family law masters and magistrates, when ordering
visitation or custody, may require a person to pay a reasonable
amount based on ability to pay, fault and other relevant criteria,
for any fee charged by a center.
(d) The provisions of this section do not limit the provisions
that may be placed in orders regarding visitation or exchange not
connected with a certified center.
(e) Certified centers may offer monitored visitation services
or monitored exchange of children services to persons who are not
ordered to seek the services of the center when the adult parties
to the visitation or exchange agree to the use of the center.
Certified centers may do so on terms and conditions that comply
with this article, rules promulgated pursuant to this article,
other law, and the reasonable policies of the center.
(a) A certified center's records of the monitoring of
visitation or exchange of children shall be admissible in evidence
under Rule 803(24) or other provisions for the admissibility of
reliable hearsay evidence the introduction of which 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 is qualified to testify to matters other than
their observations and actions on the grounds that they are
personnel of, or trained to be personnel of, a certified center.
NOTE: In West Virginia, the best interests of children are
paramount. The purpose of this bill is to promote West Virginia's
children's interest in their visitation and shared custody rights
with adults. The exercise of visitation rights, and the physical
exchange of children for the exercise of shared custody rights and
visitation rights can often be a flashpoint for conflict between
the adults in the presence of the children. The bill fosters the
provision of safe and neutral settings for children's visitation
and for the exchange of children for the exercise of visitation or
shared or joint custody rights by providing for the certification
of qualified centers for monitoring children's visitation and for
monitoring the exchange of children for the exercise of visitation
or shared or joint custody rights. To be certified, centers would
have to meet requirements for physical facilities, staffing,
training etc. The bill does not pertain to therapeutic visitations
or evaluations or those conducted by the State in connection with
abuse and neglect cases.
This article is new; therefore, strike-throughs and
underscoring have been omitted.