H. B. 4293


(By Mr. Speaker, Mr. Kiss (By Request),

and Delegate Susman)

[Introduced January 29, 2002 ; referred to the

Committee on the Judiciary then Finance.]




A BILL to amend and reenact sections two hundred six, three hundred one, four hundred three and five hundred one, article nine, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section one hundred eleven, article eighteen of said chapter, all relating to allocation of custodial responsibility and decision-making responsibility for children; providing for the right of first refusal of noncustodial parent where minor children need child care; providing for criminal background checks and mental health records in certain instances in connection with determining child custody and visitation; providing that all court orders relating to custody are considered to include a provision requiring the parties to keep the court timely informed of all address changes; specifying definition; providing for the bureau of child support enforcement to disclose to the court the address to which child support payments are being sent; providing assistance for location and visitation of one parent where the other parent has taken a child and moved out of state; providing for bonds in certain instances; providing the right of a parent to file a missing person report where a child has been unlawfully taken by a parent; providing the same remedies for enforcement of child support orders as provided for enforcement of parenting plans; and lowering the age from fourteen years to twelve years for the court to accommodate the reasonable preferences of a child where the child has expressed a voluntary preference for one parent.

Be it enacted by the Legislature of West Virginia:
That sections two hundred six, three hundred one, four hundred three and five hundred one, article nine, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section one hundred eleven, article eighteen of said chapter be amended and reenacted, all to read as follows:
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.

 §48-9-206. Allocation of custodial responsibility.
(a) Unless otherwise resolved by agreement of the parents under section 9-201 or unless manifestly harmful to the child, the court shall allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation or, if the parents never lived together, before the filing of the action, except to the extent required under section 9-209 or necessary to achieve any of the following objectives:
(1) To permit the child to have a relationship with each parent who has performed a reasonable share of parenting functions;
(2) To accommodate the firm and reasonable preferences of a child who is fourteen twelve years of age or older, and with regard to a child under fourteen twelve years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent, to give that preference such weight as circumstances warrant;
(3) To keep siblings together when the court finds that doing so is necessary to their welfare;
(4) To protect the child's welfare when, under an otherwise appropriate allocation, the child would be harmed because of a gross disparity in the quality of the emotional attachments between each parent and the child or in each parent's demonstrated ability or availability to meet a child's needs;
(5) To take into account any prior agreement of the parents that, under the circumstances as a whole including the reasonable expectations of the parents in the interest of the child, would be appropriate to consider;
(6) To avoid an allocation of custodial responsibility that would be extremely impractical or that would interfere substantially with the child's need for stability in light of economic, physical or other circumstances, including the distance between the parents' residences, the cost and difficulty of transporting the child, the parents' and child's daily schedules, and the ability of the parents to cooperate in the arrangement;
(7) To apply the principles set forth in 9-403(d) of this article if one parent relocates or proposes to relocate at a distance that will impair the ability of a parent to exercise the amount of custodial responsibility that would otherwise be ordered under this section; and
(8) To consider the stage of a child's development.
(b) In determining the proportion of caretaking functions each parent previously performed for the child under subsection (a) of this section, the court shall not consider the divisions of functions arising from temporary arrangements after separation, whether those arrangements are consensual or by court order. The court may take into account information relating to the temporary arrangements in determining other issues under this section.
(c) If the court is unable to allocate custodial responsibility under subsection (a) of this section because the allocation under that subsection would be manifestly harmful to the child, or because there is no history of past performance of caretaking functions, as in the case of a newborn, or because the history does not establish a pattern of caretaking sufficiently dispositive of the issues of the case, the court shall allocate custodial responsibility based on the child's best interest, taking into account the factors in considerations that are set forth in this section and in section two hundred nine and 9-403(d) of this article and preserving to the extent possible this section's priority on the share of past caretaking functions each parent performed.
(d) In determining how to schedule the custodial time allocated to each parent, the court shall take account of the economic, physical and other practical circumstances such as those listed in subdivision (6), subsection (a) of this section.
(e) The Legislature recognizes that it is generally in the best interest of children to be cared for by their parents. Except where impracticable or not in the best interests of the child, the court shall provide by order that before either parent may obtain baby-sitter services, day-care services or any other childcare services from a third party, that parent shall first offer the other parent a right of first refusal to personally care for the child. The court shall determine the guidelines in each case so that the right of first refusal is effectuated to the extent practical. In so doing the court shall consider, among other things, the best interests of the child, distance and travel times, meaningful notice, emergencies, scheduled and nonscheduled needs for third party childcare and practicability.
PART 3. FACT FINDING.

§48-9-301. Court-ordered investigation.
(a) In its discretion, the court may order a written investigation and report to assist it in determining any issue relevant to proceedings under this article. The investigation and report may be made by the guardian ad litem, the staff of the court or other professional social service organization experienced in counseling children and families. The court shall specify the scope of the investigation or evaluation and the authority of the investigator.
(b) In preparing the report concerning a child, the investigator may consult any person who may have information about the child and the potential parenting or custodian arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric or other expert persons who have served the child in the past without obtaining the consent of the parent or the child's custodian; but the child's consent must be obtained if the child has reached the age of twelve, unless the court finds that the child lacks mental capacity to consent. If the requirements of subsection (c) of this section are fulfilled, the investigator's report may be received in evidence at the hearing.
(c) The investigator shall deliver the investigator's report to counsel and to any party not represented by counsel at least ten days prior to the hearing unless a shorter time is ordered by the court for good cause shown. The investigator shall make available to counsel and to any party not represented by counsel the investigator's file of underlying data and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (b) of this section, and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator and any person whom the investigator has consulted for cross-examination. A party may not waive the right of cross-examination prior to the hearing.
(d) Upon motion of either party, or the court sui generis, the court shall obtain a criminal background check of either or both parents with respect to felony charges and convictions. The court shall keep this information confidential, but shall take into consideration any felony record to the extent the court considers it relevant to do so.
(e) Upon motion of either party, or the court sui generis, the court shall obtain the mental health records of either or both parents. The court shall keep this information confidential, but shall take into consideration the content of the record or records to the extent the court considers it relevant to do so. Nothing contained herein may prevent either party from otherwise obtaining records as provided elsewhere in this code.
(f) Services and tests ordered under this section shall be ordered only if at no cost to the individuals involved, or at a cost that is reasonable in light of the available financial resources.
PART 4. MODIFICATION OF PARENTING PLAN.

§48-9-403. Relocation of a parent.
(a) The relocation of a parent constitutes a substantial change in the circumstances under subsection 9-401(a) of the child only when it significantly impairs either parent's ability to exercise responsibilities that the parent has been exercising.
(b) Unless otherwise ordered by the court, a parent who has responsibility under a parenting plan who changes, or intends to change, residences for more than ninety days must give a minimum of sixty days' advance notice, or the most notice practicable under the circumstances, to any other parent with responsibility under the same parenting plan. Notice shall include:
(1) The relocation date;
(2) The address of the intended new residence;
(3) The specific reasons for the proposed relocation;
(4) A proposal for how custodial responsibility shall be modified, in light of the intended move; and
(5) Information for the other parent as to how he or she may respond to the proposed relocation or modification of custodial responsibility.
Failure to comply with the notice requirements of this section without good cause may be a factor in the determination of whether the relocation is in good faith under subsection (d) of this section and is a basis for an award of reasonable expenses and reasonable attorney's fees to another parent that are attributable to such failure.
The supreme court of appeals shall make available through the offices of the circuit clerks and the secretary-clerks of the family courts a form notice that complies with the provisions of this subsection. The supreme court of appeals shall promulgate procedural rules that provide for an expedited hearing process to resolve issues arising from a relocation or proposed relocation.
(c) When changed circumstances are shown under subsection (a) of this section, the court shall, if practical, revise the parenting plan so as to both accommodate the relocation and maintain the same proportion of custodial responsibility being exercised by each of the parents. In making such revision, the court may consider the additional costs that a relocation imposes upon the respective parties for transportation and communication, and may equitably allocate such costs between the parties.
(d) When the relocation constituting changed circumstances under subsection (a) of this section renders it impractical to maintain the same proportion of custodial responsibility as that being exercised by each parent, the court shall modify the parenting plan in accordance with the child's best interests and in accordance with the following principles:
(1) A parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose. The percentage of custodial responsibility that constitutes a significant majority of custodial responsibility is seventy percent or more. A relocation is for a legitimate purpose if it is to be close to significant family or other support networks, for significant health reasons, to protect the safety of the child or another member of the child's household from significant risk of harm, to pursue a significant employment or educational opportunity or to be with one's spouse who is established, or who is pursuing a significant employment or educational opportunity, in another location. The relocating parent has the burden of proving of the legitimacy of any other purpose. A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving or by moving to a location that is substantially less disruptive of the other parent's relationship to the child.
(2) If a relocation of the parent is in good faith for legitimate purpose and to a location that is reasonable in light of the purpose and if neither has been exercising a significant majority of custodial responsibility for the child, the court shall reallocate custodial responsibility based on the best interest of the child, taking into account all relevant factors including the effects of the relocation on the child.
(3) If a parent does not establish that the purpose for that parent's relocation is in good faith for a legitimate purpose into a location that is reasonable in light of the purpose, the court may modify the parenting plan in accordance with the child's best interests and the effects of the relocation on the child. Among the modifications the court may consider is a reallocation of primary custodial responsibility, effective if and when the relocation occurs, but such a reallocation shall not be ordered if the relocating parent demonstrates that the child's best interests would be served by the relocation.
(4) The court shall attempt to minimize impairment to a parent-child relationship caused by a parent's relocation through alternative arrangements for the exercise of custodial responsibility appropriate to the parents' resources and circumstances and the developmental level of the child.
(e) In determining the proportion of caretaking functions each parent previously performed for the child under the parenting plan before relocation, the court may not consider a division of functions arising from any arrangements made after a relocation but before a modification hearing on the issues related to relocation.
(f) In determining the effect of the relocation or proposed relocation on a child, any interviewing or questioning of the child shall be conducted in accordance with the provisions of rule 17 of the rules of practice and procedure for family law as promulgated by the supreme court of appeals.
(g) All orders relating to custody are considered to include a provision which requires the parties to keep the court timely informed of all address changes until the children have attained adulthood. For the purposes of this section, "timely informed" means no less than thirty days prior to a relocation where the party knows in advance of the relocation, and in all events, not later than three days following a relocation.
(h) Upon motion of the affected party, the court shall order the bureau for child support enforcement to disclose to the court the address to which child support payments are being sent. In the event a parent has moved and taken a child or children in a manner to impair or interfere with the visitation of the other parent, the court shall use the information obtained from the bureau of child support enforcement to obtain service of process in conjunction with a proceeding to enforce the prior order of the court regarding custody and visitation.
(i) In the appropriate case and upon the motion of a party, the court may, if it considers the action to be warranted, require any party relocating outside of this state to post a bond to insure that the parent remaining in this state shall be able to have visitation with his or her minor child or children. Prior to ordering any bond under this subsection, the court shall make specific findings as to why the bond is necessary.
PART 5. ENFORCEMENT OF PARENTING PLANS.

§48-9-501. Enforcement of parenting plans and support orders.
(a) If, upon a parental complaint, the court finds a parent intentionally and without good cause violated a provision of the court-ordered parenting plan or court ordered visitation, it shall enforce the remedy specified in the plan or, if no remedies are specified or they are clearly inadequate, it shall find the plan has been violated and order an appropriate remedy, which may include:
(1) In the case of interference with the exercise of custodial responsibility for a child by the other parent, substitute time for that parent to make up for time missed with the child;
(2) In the case of missed time by a parent, costs in recognition of lost opportunities by the other parent, in child care costs and other reasonable expenses in connection with the missed time;
(3) A modification of the plan, if the requirements for a modification are met under section 9-209, section 9-401, 402 or 403 of this article, including an adjustment of the custodial responsibility of the parents or an allocation of exclusive custodial responsibility to one of them;
(4) An order that the parent who violated the plan obtain appropriate counseling;
(5) A civil penalty, in an amount of not more than one hundred dollars for a first offense, not more than five hundred dollars for a second offense, or not more than one thousand dollars for a third or subsequent offense, to be paid to the parent education fund as established under section 9-104;
(6) Court costs, reasonable attorney's fees and any other reasonable expenses in enforcing the plan; and
(7) Any other appropriate remedy.
(b) Except as provided in a jointly submitted plan that has been ordered by the court, obligations established in a parenting plan are independent obligations, and it is not a defense to an action under this section by one parent that the other parent failed to meet obligations under a parenting plan or child support order.
(c) An agreement between the parents to depart from the parenting plan can be a defense to a claim that the plan has been violated, even though the agreement was not made part of a court order, but only as to acts or omissions consistent with the agreement that occur before the agreement is disaffirmed by either parent.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
 §48-18-111. Establishment of parent locator service.
(a) The bureau for child support enforcement shall establish a parent locator service to locate individuals for the purposes of establishing parentage and of establishing, modifying or enforcing child support obligations utilizing using all sources of information and available records and the parent locator service in the federal department of health and human services. For purposes of obtaining information from the parent locator service, any person, agency or entity providing services to the bureau for child support enforcement pursuant to a contract that includes a provision to ensure that the confidentiality of information is maintained shall be deemed to be an agent of the bureau for child support enforcement.
(b) Upon entering into an agreement with the secretary of the federal department of health and human services for the use of that department's parent locator service, the bureau for child support enforcement shall accept and transmit to the secretary of the federal department of health and human services requests from authorized persons for information with regard to the whereabouts of a noncustodial obligor to be furnished by such the federal parent locator service. For purposes of this subsection, "authorized persons" means: (1) An attorney or agent of the bureau for child support enforcement; (2) a family law master or circuit court judge or any agent thereof; or (3) a resident parent, legal guardian, attorney or agent for a child. The bureau for child support enforcement shall charge a reasonable fee sufficient to cover the costs to the state and to the federal department of health and human services incurred by reason of such the requests and shall transfer to that department, from time to time, so much of the fees collected as are attributable to the costs incurred by that department.
(c) The information obtained by the bureau for child support enforcement from the federal parent locator service shall be used for, but not limited to, the following purposes:
(1) Establishing parentage and establishing, setting the amount of, modifying or enforcing child support obligations;
(2) Obtaining and transmitting information to any family law master or circuit court or agent thereof or to an attorney or employee of the United States or of any state responsible for enforcing any federal or state law with respect to the unlawful taking or restraint of a child or making or enforcing a child custody or visitation determination.
(d) The bureau for child support enforcement may request from the federal parent locator service information:
(1) About, or which will facilitate the discovery of information about, the location of any individual: (A) Who is under an obligation to pay child support; (B) against whom such an obligation is sought; or (C) to whom such an obligation is owed, including the individual's social security number, or numbers, most recent address and the name, address and employer identification number of the individual's employer;
(2) Concerning the individual's wages or other income from, and benefits of, employment, including rights to or enrollment in group health care coverage; and
(3) Concerning the type, status, location and amount of any assets of, or debts owed by or to, any such individual.
(e) The family court shall have jurisdiction to hear and determine, upon a petition by an authorized person as defined in subsection (b) of this section, whether the release of information from the federal parent locator service to that person could be harmful to the custodial parent or the child.
(f) Notwithstanding anything to the contrary, where one party has unlawfully taken a child, or has unlawfully interfered with, hindered or prevented child visitation, the other custodial party has the unqualified right to file a missing persons report with the appropriate law-enforcement agency or agencies and the bureau of child support enforcement shall file a missing persons report. Any law-enforcement agency in this state that receives a report from the bureau of child support enforcement that a child has been reported to be missing shall immediately follow its procedures for investigating missing persons. No agency or department policy delaying the beginning of an investigation shall have any force or effect.
(g) The bureau of child support enforcement shall work with other states to assist a parent denied visitation where one parent leaves this state and does not inform the court or the other parent of his or her new address.


NOTE: The purpose of this bill is to provide for the right of first refusal of noncustodial parent where minor children need child care. The bill also provides for criminal background checks and for the court to have mental health records in certain instances in connection with determining child custody and visitation. The bill further provides that all court orders relating to custody are considered to include a provision requiring the parties to keep the court timely informed of all address changes.
The bill requires the bureau of child support enforcement to disclose to the court the address to which child support payments are being sent. The bill provides a mechanism for providing assistance for location and visitation of one parent where the other parent has taken a child and moved out of state. Bonds are required in certain instances where a custodial parent relocates out-of-state. The bill gives the right to a parent to file a missing person report where a child has been unlawfully taken by a parent.

The bill also provides the same remedies for enforcement of child support orders as are provided for enforcement of parenting plans. The bill lowers the age from fourteen years to twelve years for the court to accommodate the reasonable preferences of a child where the child has expressed a voluntary preference for one parent.

 Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.