H. B. 4042
(By Delegates Ellem, Border, Craig, Crosier, DeLong,
Lane, Moore, Proudfoot, Shook, Stemple and Tabb)
[Introduced January 14, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §48-9A-101,
§48-9A-102, §48-9A-103, §48-9A-104, §48-9A-105 and §48-9A-106,
all relating to Joint Parenting Act; custody of children after
divorce; providing certain rebuttable presumptions concerning
custody; adding procedures and criteria relating to
determining the custody of children; addressing relocation of
parents; addressing certain tax implications; and including
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 article, designated §48-9A-101, §48-9A-102,
§48-9A-103, §48-9A-104, §48-9A-105 and §48-9A-106, all to read as
ARTICLE 9A. JOINT PARENTING ACT.
§48-9A-101. Intent and findings.
The Legislature, recognizing the long history of traditional
and statutory protections afforded child and parent bonds and
recognizing the fundamental liberty interest parents enjoy
respecting the care, custody and companionship of their children,
finds and declares the following with respect to the intent of this
state's statutes related to marriage, family and marital
(1) That an intact, involved two-parent home provides the
optimal environment through which children grow into productive and
responsible adult citizens;
(2) That parents are the primary "polestar" with respect to
developing their children. Our society, state and statutes are
secondary structures designed to support, not supplant, both
parents in their role as the primary shapers of their children;
(3) That mothers and fathers provide unique and invaluable
contributions towards the development of their children. Each
parent's contributions to the upbringing of their children are
indistinguishable and equally necessary to assure children the best
opportunity to develop into healthy citizens;
(4) That children should be separated from their parents only
under the most compelling and unusual circumstances necessary to
protect the child from substantial and imminent harm;
(5) That children have frequent and continuing physical
contact with both parents under joint legal and physical custody arrangements when the parents live separately including after
parental separation or dissolution of marriage. The proper role of
the state in this situation is to interfere to the least degree in
familial relationships with the specific purpose of preserving
maximum time allocations among parents and their children;
(6) That parents may, and should be encouraged to, reach any
agreement mutually acceptable to them regarding their parenting
time allocations as may reflect the individual circumstances of the
parents. In the event parents cannot reach agreement on the
parenting arrangement, it is the specific intent of the statute
that parents have a rebuttable presumption of equal time with the
(7) That the judiciary in contested custody proceedings
demonstrates consistent application of the presumption so that
litigants develop no perception of advantage in proceeding to an
adversarial hearing on custody matters;
(8) That this article discourages children from being
alienated or disenfranchised from their parents' lives by the
geographical relocation away from either parent or through the
interference of either parent;
(9) That this article establishes clear legislative policy
regarding interference with the relationship of children with their
parents when parents live separately; and
(10) In accordance with these findings, the Legislature of this state declares public policy is furthered, and its specific
intent that a child's well-being is effected, by recognizing both
parent's fundamental liberty interest in the care, custody and
companionship of their children.
(a) In cases of marital dissolution or unmarried parentage, it
is the policy of this state that both parents enjoy a rebuttable
presumption of joint legal and physical custody of their children.
Joint physical custody of the children is defined as equal
(b) The burden of overcoming the presumption rests on the
parent challenging the presumption. The presumption may be
overcome only by demonstrating an unfitness of the parent being
challenged that would cause substantial harm to the children. The
clear and convincing evidentiary standard shall be used in making
a fitness determination.
(c) During the pendency of any custody case, if both parents
were residing in the home before filing for separation or divorce,
any temporary orders issued shall maintain an equal time-share
allocation between both parents and their children. Both parents
shall enjoy joint legal and physical custody of the children while
any temporary order is in effect.
(d) If both parents were not residing together in the home
before filing for custody, then any temporary orders shall include a reasonable, specified time-table to establish an equal time-share
allocation as soon as possible.
(e) Allegations of substance, spousal or child abuse or
neglect and any subsequent issuance of protective orders are not
sufficient to cause cessation or reduction of parent-child contact.
Only a written finding of substantiated abuse is sufficient to
allow the court to deviate from an equal time-share arrangement and
award custody to one parent. An allegation of abuse is considered
substantiated if affirmed using the clear and convincing
evidentiary standard. In no instance may the court limit
parent-child contact during the pendency of custody determinations
absent compelling necessity to prevent substantial and imminent
harm to the child.
(f) Knowingly making false allegations of child or spousal
abuse is sufficient grounds to challenge parental fitness of the
accuser. Allegations raised in the context of divorce or custody
proceedings deserve heightened scrutiny as to their veracity.
(g) The state shall consider all abuse allegations as criminal
complaints affording the accused all rights and due process of law
available to those criminally accused.
(h) The court shall require parents to prepare and submit a
parenting plan to the court reflecting parental preferences and
agreement on the matters of substance concerning the children's
education, upbringing and religious training.
(i) The parents shall share decision-making authority and
responsibility as to the important decisions affecting the child's
welfare and when parents are unable to agree, they will submit to
and abide by the decision of a preselected mediator.
(j) The court, in making a determination of parental fitness
pursuant to this section shall consider and evaluate all the
(1) The capacity and disposition of the parents to give the
child love, affection, guidance and protection;
(2) The capacity and disposition of the parents to continue
the academic and religious education of the child;
(3) The capacity and disposition of the parents to provide
food, clothing and medical care;
(4) The mental and physical health of the parents and other
household members. When mental health evaluations are requested of
either parent and the court orders an evaluation, then the
evaluation shall be required of both parents;
(5) The home, school and community behavior of the child; and
(6) The willingness and ability of each of the parents to
demonstrate facilitation and encouragement of a close and
continuing relationship between the child and the other parent.
(k) In any adversarial custody hearing, the judge shall
provide written findings of fact and conclusions of law when
entering any order not reflecting maintenance of the rebuttable presumption of joint legal and physical custody and written
findings that enumerate which of the factors set forth in
subsection (j) of this section are applicable and by what evidence
these factors were demonstrated.
(a) Where both parents enjoy any form of parenting or
visitation time with the children, relocation by either parent with
the children may only take place by joint agreement of both
parents. In the absence of a joint relocation agreement, the
burden of overcoming the presumption against relocation is on the
(b) The relocating parent shall file, with the clerk of the
court that issued the custody order or that has current
jurisdiction over custody proceedings, a notice of intent to
relocate and a revised parenting plan and send a copy of the notice
and revised plan by registered mail to the nonrelocating parent no
later than ninety days before the date that the relocating parent
intends to move.
(c) No later than thirty days after receipt of the notice from
the relocating parent, the nonrelocating parent must file notice of
objection and a revised parenting plan to preserve the presumption
against relocation with the children. Both the relocating and the
nonrelocating parent's revised parenting plans shall be submitted
to a preselected mediator. If the mediator is unable to resolve the parenting plan differences, then the court may issue a revised
parenting plan by written findings, after an evidentiary hearing
for which notice has been provided to both parents, in accordance
with the considerations set forth in subsection (g) of this
section. The relocating parent has the burden of proof at the
(d) If the nonrelocating parent does not file a notice of
objection, the court may approve the relocation with the children.
(e) If relocating parent moves with the children before a
signed, revised parenting plan is in place, they are guilty of
contempt of court and subject to sanctions as determined by the
(f) If uncontested, a court may approve the request upon
written stipulation of both parties, without the requirement of a
(g) In determining whether the relocating parent has overcome
the presumption against relocation with the children, the court
shall give equal consideration to all of the following:
(1) Whether the child will lose substantial contact, joy and
rearing with the nonrelocating parent;
(2) Whether the relocation with the children would improve the
general quality of life for the children, giving primary
consideration to the disruption, caused to the day-to-day
relationship between the nonrelocating parent and the children;
(3) The relocating parent's motives for seeking the
(4) Whether the costs of transportation or revised access time
is financially affordable by both parents;
(5) Whether the relocation with the children will cause
hardship or undue burden on the nonrelocating parent; and
(6) Access to extended family support; and
(7) The impact on the child including whether the relocation
is harmful to health or well-being of the child.
§48-9A-104. Parenting time contempt.
(a) When one parent willfully prevents the other parent from
their share of time with the children, the court shall in all
cases, absent clear and convincing evidence written in the record
to justify a denial, hold the violating parent in contempt of court
and order the violating parent to give compensatory time to the
other parent equivalent to the lost time and shall additionally
order one of the following remedies:
(1) Payment of the expenses and attorney's fees of the parent
bringing the contempt action;
(2) A five hundred dollar minimum fine;
(3) Require a bond to assure future compliance with visitation
(4) Confinement in jail; or
(5) A change in custody.
(b) The court may order any of the following additional
remedies as appropriate:
(1) Requiring participation of the violating parent in a
counseling program about the importance of the children's access to
the other parent; or
(2) Order the violating parent to pay the cost of counseling
to reestablish the parent-child relationship with the other parent.
§48-9A-105. Financial responsibilities; civil liability;
jurisdiction; evidence; recording of meetings.
(a) Each parent is financially liable for their own attorney's
fees and the relocating parent is liable for all court costs. Both
parents shall share equally all mediation costs.
(b) Where both parents are providing joint shared parenting of
their children, the parents shall alternate the dependent tax
deductions, exemptions and credits each year. When one parent does
not abide by this order, they owe a civil liability to the other
parent in the amount of the increase in the other parent's tax
liability and the other parent is eligible to claim the dependent
tax deductions, exemptions and credits in the following two tax
(c) A court has subject matter jurisdiction when the state
intervenes to rescue the children. When the children are being
cared for and under no substantial and imminent threat to their
well-being, child support will not be ordered from either parent.
(d) All law-enforcement officers are permitted and required to
enforce all court orders arising under this article.
(e) All unedited video or tape recordings are admissible as
evidence in court.
(f) Meetings, hearings or conferences may not be held without
properly functioning video or audio recording devices provided by
(g) All recorded meetings, hearings or conferences shall be
reproduced in unedited form at the request of any of the parties to
the action and provided to the requesting parties within ten days
of the request.
If the provisions of this article conflict with any other
provisions of this chapter, the provisions of this article apply.
NOTE: The purpose of this bill is to enact a Joint Parenting
Act. The bill would establish a rebuttable presumption of joint
legal and physical custody of their children in child custody
matters. It outlines procedures and criteria to be used when
determining the custody of children. It also provides procedures
addressing relocation of parents after divorce.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would