H. B. 2168
(By Delegates Fleischauer, Doyle and Mahan)
[Introduced February 14, 2001; referred to the
Committee on the Judiciary then 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
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.
NOTE: The purpose of this bill is to provide neutral sites or
exchange centers for monitoring the transfer of physical custody
of children from a parent or caretaker to another parent or
caretaker for the purpose of exercising a right to visitation or
physical custody.
This article is new; therefore, strike-throughs and
underscoring have been omitted.