Senate Bill No. 24

(By Senators Hunter, Minear, Redd, Kessler, Mitchell and Rowe)

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[Introduced February 14, 2001; referred to the Committee on the Judiciary; and then to the Committee on Finance.]

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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 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. 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 of 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.
§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 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 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. 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 article.
(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 other law;
(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 contract;
(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 exchange centers.
(a) The board shall accept applications for certification and grant or deny those applications expeditiously within the limits of available funds.
(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 rule.
§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 the center.
(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.
§48-2D-7. Evidence.
(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: 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 visitations conducted by the State in connection with abuse and neglect cases.

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