ENROLLED

COMMITTEE SUBSTITUTE

FOR

H. B. 4139

(By Delegates Guthrie, L. Phillips, Rowan,

  Fleischauer, Border, Lawrence, Marshall,

  Staggers, Poore and P. Smith)

[Passed March 8, 2014; in effect ninety days from passage.]

AN ACT to amend the Code of West Virginia, 1931, as amended by adding thereto a new section, designated §48-9-209a, relating to restricted parental rights of child custodial responsibility and parenting time when a child was conceived as a result of a sexual assault or certain sexual abuse; denying custodial responsibility and parenting time rights to a natural parent convicted of sexual assault when a child is produced as a result of the offense; providing limited exceptions when the biological parents cohabit; creating a rebuttable presumption against the allocation of exclusive or shared custodial responsibility or parenting time to the perpetrator of the offense after cohabitation with the other parent under certain circumstances; requiring the court to find by clear and convincing evidence that custodial responsibility or parenting time by a person convicted of sexual assault or certain sexual abuse is in the best interest of the child, victim, that the victim consents and certain other facts in order to allocate such custodial responsibility or parenting time; and clarifying the natural parent’s continuing support obligations.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §48-9-209a, to read as follows:

ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.

Part 2 – Parenting Plans

§48-9-209a. Child conceived as result of sexual assault or sexual               abuse by a parent; rights of a biological parent               convicted of sexual assault or abuse; post-               conviction cohabitation; rebuttable presumption upon               separation or divorce.

    (a) Except as otherwise provided in this section, if a child custodial responsibility or parenting time dispute involves a child who is conceived as a result of acts by which one of the child’s biological parents has been convicted of sexual assault, pursuant to section three, four or five, article eight-b, chapter sixty-one of this code, or of sexual abuse by a parent, guardian or custodian, pursuant to section five, article eight-d, chapter sixty-one of this code, the court shall not allocate custodial responsibility to the biological parent convicted of the sexual assault, and the convicted parent has no right to parenting time with the child unless the court finds by clear and convincing evidence set forth in written findings that it is in the best interests of the child, adequately protects the child and the victim of the sexual offense and that the person or persons with custodial responsibility of the child consent thereto.

    (b) Subsection (a) does not apply if:

    (1) The biological parents are husband and wife at the time of the offense and, after the date of conviction, cohabit and establish a mutual custodial environment for the child; or

    (2) After the date of conviction, the unmarried biological parents cohabit and establish a mutual custodial environment for the child.

    (c) If persons described by subsection (b) of this section later separate or divorce, the conviction of sexual assault, pursuant to section three, four or five, article eight-b, chapter sixty-one of this code, or of sexual abuse by a parent, guardian or custodian, pursuant to section five, article eight-d, chapter sixty-one of this code creates a rebuttable presumption that exclusive or shared custodial responsibility of the child by the perpetrator of the offense is not in the best interests of the child. The convicted parent has no right to parenting time with the child unless the court finds by clear and convincing evidence set forth in written findings that, despite the rebuttable presumption required by this subsection, a custodial responsibility or parenting time arrangement with the convicted parent is in the best interests of the child, adequately protects the child and the victim of the sexual offense, and that the victim of the sexual offense consents thereto.

    (d) A denial of custodial responsibility or parenting time under this section does not by itself terminate the parental rights of the person denied custodial responsibility or parenting time, nor does it affect the obligation of the person to support the minor child.