H. B. 4659
(By Delegates Miley, Caputo, Fragale,
Iaquinta, Longstreth and Marshall)
[Introduced February 22, 2010
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §44-10-4 of the Code of West Virginia,
1931, as amended; and to amend and reenact §48-9-205, §48-9-
206 and §48-9-402 of said code, all relating to the
designation of a primary guardian for a minor child; modifying
the minor's right to nominate a guardian; increasing the age
of nomination from fourteen to sixteen; providing for the
consideration of minor's preference in parenting plan;
expanding the period of consideration regarding the parents'
comparative caretaking and other parenting responsibilities.
Be it enacted by the Legislature of West Virginia:
That §44-10-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §48-9-205, §48-9-206 and §48-9-
402 of said code be amended and reenacted, all to read as follows:
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 10. GUARDIANS AND WARDS GENERALLY.
§44-10-4. Right of minor to nominate guardian.
(a) If the minor is above the age of fourteen sixteen years,
he or she may in the presence of the circuit or family court, or in
writing acknowledged before any officer authorized to take the
acknowledgment of a deed, nominate his or her own guardian, who, if
approved by the court, shall be appointed accordingly.
(b) If the guardian nominated by the minor is not appointed by
the court, or if the minor resides outside the state, or if, after
being summoned, the minor neglects to nominate a suitable person,
the court may appoint the guardian in the same manner as if the
minor were under the age of fourteen sixteen years.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-
MAKING RESPONSIBILITY OF CHILDREN.
§48-9-205. Permanent parenting plan.
(a) A party seeking a judicial allocation of custodial
responsibility or decision-making responsibility under this article
shall file a proposed parenting plan with the court. Parties may
file a joint plan. A proposed plan shall be verified and shall
state, to the extent known or reasonably discoverable by the filing
party or parties:
(1) The name, address and length of residence of any adults
with whom the child has lived for one year or more, or in the case
of a child less than one year old, any adults with whom the child
has lived since the child's birth;
(2) The name and address of each of the child's parents and
any other individuals with standing to participate in the action
under section
one hundred three of this article;
(3) A description of the allocation of caretaking and other
parenting responsibilities performed by each person named in
subdivisions (1) and (2) of this subsection
during the twenty-four
months preceding the filing of an action under this article;
(4) A description of the work and child-care schedules of any
person seeking an allocation of custodial responsibility, and any
expected changes to these schedules in the near future;
(5) A description of the child's school and extracurricular
activities;
(6) A description of any of the limiting factors as described
in section two hundred nine, article nine of this chapter that are
present, including any restraining orders against either parent to
prevent domestic or family violence, by case number and
jurisdiction;
(7) Required financial information; and
(8) A description of the known areas of agreement and
disagreement with any other parenting plan submitted in the case.
The court shall maintain the confidentiality of any
information required to be filed under this section when the person
giving that information has a reasonable fear of domestic abuse and
disclosure of the information would increase that fear.
(b) The court shall develop a process to identify cases in which there is credible information that child abuse or neglect, as
defined in section three, article one, chapter forty-nine of this
code, or domestic violence as defined in section two hundred two,
article twenty-seven of this chapter has occurred. The process
shall include assistance for possible victims of domestic abuse in
complying with subdivision (6), subsection (a) of this section, and
referral to appropriate resources for safe shelter, counseling,
safety planning, information regarding the potential impact of
domestic abuse on children, and information regarding civil and
criminal remedies for domestic abuse. The process shall also
include a system for ensuring that jointly submitted parenting
plans that are filed in cases in which there is credible
information that child abuse or domestic abuse has occurred receive
the court review that is mandated by subsection (b), section two
hundred one of this article.
(c) Upon motion of a party and after consideration of the
evidence, the court shall order a parenting plan consistent with
the provisions of sections two hundred six through two hundred nine
of this article, containing:
(1) A provision for the child's living arrangements and each
parent's custodial responsibility, which shall include either:
(A) A custodial schedule that designates in which parent's
home each minor child will reside on given days of the year; or
(B) A formula or method for determining such a schedule in
sufficient detail that, if necessary, the schedule can be enforced in subsequent proceedings by the court;
(2) An allocation of decision-making responsibility as to
significant matters reasonably likely to arise with respect to the
child; and
(3) A provision consistent with section two hundred two of
this article for resolution of disputes that arise under the plan,
and remedies for violations of the plan.
(d) A parenting plan may, at the court's discretion, contain
provisions that address matters that are expected to arise in the
event of a party's relocation, or provide for future modifications
in the parenting plan if specified contingencies occur.
§48-9-206. Allocation of custodial responsibility.
(a) Unless otherwise resolved by agreement of the parents
under section two hundred one of this article 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 two hundred nine of this article 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 sixteen years of age or older, and with
regard to a child under
fourteen sixteen 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 subsection (d),
section four hundred three 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 subsection (d),
section four hundred three 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.
§48-9-402. Modification without showing of changed circumstances.
(a) The court shall modify a parenting plan in accordance with
a parenting agreement, unless it finds that the agreement is not
knowing and voluntary or that it would be harmful to the child.
(b) The court may modify any provisions of the parenting plan
without the showing of change circumstances required by subsection
(a), section four hundred one of this article if the modification
is in the child's best interests, and the modification:
(1) Reflects the de facto arrangements under which the child
has been receiving care from the petitioner, without objection, in
substantial deviation from the parenting plan, for the preceding
six months before the petition for modification is filed, provided
the arrangement is not the result of a parent's acquiescence
resulting from the other parent's domestic abuse;
(2) Constitutes a minor modification in the plan; or
(3) Is necessary to accommodate the reasonable and firm
preferences of a child who has attained the age of
fourteen
sixteen.
(c) Evidence of repeated filings of fraudulent reports of
domestic violence or child abuse is admissible in a domestic
relations action between the involved parties when the allocation
of custodial responsibilities is in issue, and the fraudulent accusations may be a factor considered by the court in making the
allocation of custodial responsibilities.
NOTE: The purpose of this bill is to increase the age at which
a minor may nominate a guardian, from fourteen to sixteen and to
expand the period of consideration regarding the parents'
comparative caretaking and other parenting responsibilities.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.