HB2694 ENR SUB
H. B. 2694
(By Delegates Boggs, Webster, Iaquinta, Ferro,
Wooton, Schoen, Tabb, Fleischauer, Schadler,
Hamilton and Hutchins)
[Passed April 10, 2009; in effect ninety days from passage.]
to amend the Code of West Virginia, 1931, as amended, by
adding thereto two new sections, designated §48-1-233.3 and
§48-1-233.4; to amend said code by adding thereto a new
section, designated §48-9-404; to amend and reenact §48-11-106
of said code; and to amend said code by adding thereto a new
section, designated §48-11-108, all relating to modifying
and child support for a parent who has been
deployed for military service; providing definitions;
modifying the terms of a parenting plan; requiring that any
order is only a temporary order; providing for temporary
modification of child support during the military service;
requiring an expedited process for modification of a child
support order; reinstating the child support obligation in
place prior to the parent's military service upon release from
service; and requiring that a further modification of child
support be based solely on the
income and earning capacity the
parent has after the military service.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections, designated §48-1-233.3 and §48-
1-233.4; that said code be amended by adding thereto a new section,
designated §48-9-404; that §48-11-106 of said code be amended and
reenacted; and that said code be amended by adding thereto a new
section, designated §48-11-108, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-233.3. Military parent defined.
"Military parent" means a natural parent or adoptive parent of
a child under the age of eighteen whose parental rights have not
been terminated by a court of competent jurisdiction.
§ 48-1-233.4. Military service or service defined.
(a) In the case of a parent who is a member of the Army, Navy,
Air Force, Marine Corps, Coast Guard, or a Reserve component of
these services, "military service or service" means a deployment for
combat operations, a contingency operation, or a natural disaster
based on orders that do not permit a family member to accompany the
member on the deployment.
(b) In the case of a parent who is a member of the National
Guard, "military service or service" means service under a call to
active service authorized by the President of the United States or the Secretary of Defense for a period of more than thirty
consecutive days pursuant to 32 U.S.C. 502(f) for purposes of
responding to a national emergency declared by the President and
supported by federal funds.
(c) "Military service or service" includes a period during
which a military parent remains subject to deployment orders and
remains deployed on account of sickness, wounds, leave or other
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND
DECISION-MAKING RESPONSIBILITY OF CHILDREN.
PART 4. MODIFICATION OF PARENTING PLAN.
§48-9-404. Modification of a parenting plan due to military
(a) If a military parent is required to be separated from a
child due to military service, a court shall not enter a final order
modifying the terms of an existing parenting plan until ninety days
after the military parent is released from military service. A
military parent's absence or relocation because of military service
must not be the sole factor supporting a change in circumstance or
grounds sufficient to support a permanent modification of an
existing parenting plan.
(b) A parenting plan establishing the terms of custody or
visitation in place at the time a military parent is called to
military service may be temporarily modified to make reasonable
accommodation for the parties because of the military parent's service.
A temporary parenting plan pursuant to this section shall
provide that the military parent has at least substantial custodial
responsibility of the child during a period of leave granted to the
military parent during their military service, unless the court
determines that it is not in the best interest of the child. If a
temporary parenting plan is not issued pursuant to this section, the
nonmilitary custodial parent shall make the child or children
reasonably available to the military parent when the military parent
has leave to ensure that the military parent has reasonable
custodial responsibility and is able to exercise custodial
responsibility of the child or children.
(d) If there is no existing parenting plan or order
establishing the terms of custody or visitation and it appears that
military service is imminent, upon motion by either parent, the
court shall expedite a temporary hearing to establish a temporary
parenting plan to ensure the military parent has access to the
child, to establish support, and provide other appropriate relief.
ARTICLE 11. SUPPORT OF CHILDREN
§48-11-106. Expedited process for modification.
(a) An expedited process for modification of a child support
order may be utilized if:
(1) Either parent experiences a substantial change of
circumstances resulting in a decrease in income due to loss of
employment or other involuntary cause;
(2) An increase in income due to promotion, change in employment or reemployment;
(3) Other such change in employment status; or
(4) If a military parent is called to military service.
(b) The party seeking the recalculation of support and
modification of the support order shall file a description of the
decrease or increase in income and an explanation of the cause of
the decrease or increase on a standardized form to be provided by
the secretary-clerk or other employee of the family court. The
standardized form shall be verified by the filing party. Any
available documentary evidence shall be filed with the standardized
form. Based upon the filing and information available in the case
record, the amount of support shall be tentatively recalculated.
(c) The secretary-clerk shall serve a notice of the filing, a
copy of the standardized form and the support calculations upon the
other party by certified mail, return receipt requested, with
delivery restricted to the addressee, in accordance with rule
4(d)(1)(D) of the West Virginia rules of civil procedure. The
secretary-clerk shall also mail a copy, by first-class mail, to the
local office of the bureau for child support enforcement for the
county in which the family court is located in the same manner as
original process under rule 4(d) of the rules of civil procedure.
(d) The notice shall fix a date fourteen days from the date of
mailing and inform the party that unless the recalculation is
contested and a hearing request is made on or before the date fixed,
the proposed modification will be made effective. If the filing is
contested, the proposed modification shall be set for hearing; otherwise, the court shall enter an order for a judgment by default.
Either party may move to set aside a judgment by default, pursuant
to the provisions of rule 55 or rule 60(b) of the rules of civil
(e) If an obligor uses the provisions of this section to
expeditiously reduce his or her child support obligation, the order
that effected the reduction shall also require the obligor to notify
the obligee of reemployment, new employment or other such change in
employment status that results in an increase in income. If an
obligee uses the provisions of this section to expeditiously
increase his or her child support obligation, the order that
effected the increase shall also require the obligee to notify the
obligor of reemployment, new employment or other such change in
employment status that results in an increase in income of the
(f) The supreme court of appeals shall develop the standardized
form required by this section.
§48-11-108. Modification of support based on military service.
(a) If a military parent is called to military service, either
parent may file a notice of activation of military service and a
request for an expedited modification of a support order pursuant
to section one hundred six of this article. In the petition, the
parent must cite the basis for modifying the support order and the
military parent's change in financial circumstances supporting the
(b) The court shall temporarily modify the amount of child support for the duration of the military parent's military service
pursuant to the provisions of section fifteen of this article if
there is a substantial change in circumstances based upon changes
in income and earning capacity of the military parent during
military service. An increase or decrease in income or earning
capacity of a military parent due to military service may only be
used to calculate support during the period of military service and
must not be considered a permanent increase or decrease in income
or earning capacity. The effective date for a temporary modification
must be the date the military parent begins military service.
(c) Upon return from military service, the military parent's
child support obligation prior to a temporary modification is
automatically reinstated, effective on the date the military parent
is released from service. Within ninety days of the military
parent's release from service, either parent may make a request for
a modification of child support to correspond to a change in the
military parent's nonservice related income or earning capacity.
A modification of child support must be based solely upon the income
or earning capacity the military parent has following his or her
period of military service.