H. B. 4430
(By Delegates Stalnaker, Stephens, Reynolds,
Kessler, Rodighiero, Azinger, Moye, Eldridge and J. Miller)
[Introduced February 5, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-2-14d of the Code of West Virginia,
1931, as amended, relating to providing a misdemeanor penalty
if a person fails to make a reasonable good faith attempt to
return a minor child in a timely manner at the expiration of
a lawful custody or visitation.
Be it enacted by the Legislature of West Virginia:
That §61-2-14d of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-14d. Failure to provide or return minor child for visitation
period, providing false or fictitious information or
assisting in concealing a minor child, concealment
or removal of minor child from custodian or from
person entitled to visitation; penalties; defenses.
(a)
Any person who conceals, takes or removes a minor child in
violation of any court order an with the intent to deprive another
person of lawful custody or visitation right shall be guilty of a
felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than five years, or in the
discretion of the court, shall be imprisoned in the county jail not
more than one year of fined not more than one thousand dollars, or
both fined and imprisoned. Any person who fails to make a
reasonable, good faith effort to provide or return a minor child in
a timely manner at the commencement or expiration of any lawful
custody or visitation period, or any person who provides false or
fictitious information or who withholds information from any
law-enforcement agency, or conceals, attempts to conceal, or
assists another person in concealing or attempting to conceal, a
minor child at the commencement or expiration of any lawful custody
or visitation period is, for first offense, guilty of a misdemeanor
and, upon conviction thereof, shall be confined in jail for not
more than ten days or fined not more than one hundred dollars and
may be ordered to pay any resulting court costs, or both fined and
imprisoned; for the second offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be imprisoned in
jail not more than thirty days or fined not less than one hundred
dollars nor more than five hundred dollars and may be ordered to
pay any resulting court costs, or both fined and imprisoned; for
the third or any subsequent offense, the person is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility not less than one nor more than five years,
or in the discretion of the court, shall be imprisoned in jail not
more than one year or fined not more than one thousand dollars and
may be ordered to pay any resulting court costs, or both fined and imprisoned: Provided, That if the minor child is retained more
than twenty-four hours after the excoriation of any lawful custody
or visitation period or is removed from the state during such
period the felony offense provision under subsections (b) and/or
(c) of this section shall apply.
(b)
Any person who violates this section and in so doing
removes the minor child from this state or conceals the minor child
in another state shall be guilty of a felony, and, upon conviction
thereof, shall be imprisoned in the penitentiary not less than one
nor more than five years, or fined not more than one thousand
dollars, or both fined and imprisoned.
Any person who conceals,
takes or removes a minor child in violation of any court order and
with the intent to deprive another person of lawful custody or
visitation right shall be guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility not
less than one nor more than five years, or in the discretion of the
court, shall be imprisoned in jail not more than one year or fined
not more than one thousand dollars and may be ordered to pay any
resulting court costs, or both fined and imprisoned.
(c) It shall be a defense under this section that the accused
reasonably believed such action was necessary to preserve the
welfare of the minor child. The mere failure to return a minor
child at the expiration of any lawful custody or visitation period
without the intent to deprive another person of lawful custody or
visitation rights shall not constitute an offense under this
section. Any person who violates this section and in so doing removes the minor child from this state or conceals the minor child
in another state shall be guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility not
less than one nor more than five years, or fined not more than one
thousand dollars and may be ordered to pay any resulting court
costs, or both fined and imprisoned.
(d) It is a defense under this section that the accused
reasonably believed such action was necessary to preserve the
safety and welfare of the minor child. The mere failure to return
a minor child at the expiration of any lawful custody or visitation
period does not constitute an offense under this section if there
is a reasonable, good faith attempt to return a minor child in a
timely manner. It shall be the intent of the section to enforce
the court order and not subject the minor child to the custody
dispute, therefore the age and/or desires of the minor child shall
not be used to constitute a defense under this section.
(e) When any law-enforcement officer observes credible
evidence that the accused has committed a violation of this article
in knowing and willful violation of the terms of any court order he
or she shall immediately enforce the court order and initiate a
criminal investigation. It shall be the intent of this section to
preserve the minor child's right to access any person granted
lawful custody or visitation.
NOTE: The purpose of this bill is to provide a misdemeanor
penalty if a person fails to make a reasonable, good faith attempt to return a minor child in a timely manner at the expiration of a
lawful custody or visitation period.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.