Senate Bill No. 438
(By Senators Kessler and Minard)
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[Introduced March 4, 2009; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §48-1-239 of the Code of West Virginia,
1931, as amended; and to amend and reenact §48-9-101,
§48-9-102, §48-9-201, §48-9-202, §48-9-203, §48-9-204,
§48-9-205, §48-9-206, §48-9-207, §48-9-209, §48-9-401,
§48-9-402, §48-9-403, §48-9-501 and §48-9-601 of said code,
all relating to clarifying the definition of "shared
parenting"; and updating language regarding the allocation of
custodial responsibility and decision-making responsibility of
children.
Be it enacted by the Legislature of West Virginia:
That §48-1-239 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §48-9-101, §48-9-102, §48-9-201,
§48-9-202, §48-9-203, §48-9-204, §48-9-205, §48-9-206, §48-9-207,
§48-9-209, §48-9-401, §48-9-402, §48-9-403, §48-9-501 and §48-9-601
of said code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-239. Shared parenting defined.
(a) "Shared parenting" means either basic shared parenting or
extended shared parenting.
(b) "Basic shared parenting" means an arrangement under which
one parent keeps a child or children
overnight for less than
thirty-five percent of the year and under which both parents
contribute to the expenses of the child or children in addition to
the payment of child support.
(c) "Extended shared parenting" means an arrangement under
which each parent keeps a child or children
overnight for more than
thirty-five percent of the year and under which both parents
contribute to the expenses of the child or children in addition to
the payment of child support.
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND
DECISION-MAKING RESPONSIBILITY OF CHILDREN.
PART 1. SCOPE; OBJECTIVES;
PARTIES AND PARENT EDUCATION CLASSES.
§48-9-101. Scope of article; legislative findings and
declarations.
(a) This article sets forth principles governing the
allocation of custodial and decision-making responsibility for a
minor child when the parents do not live together.
(b) The Legislature finds and declares that it is the public
policy of this state to assure that the best interest of children is the court's primary concern in allocating custodial and
decision-making responsibilities between parents who do not live
together. In furtherance of this policy, the Legislature declares
that a child's best interest will be served by assuring that
minor
children parents have frequent and continuing
contact with parents
who have shown the ability to act in the best interest of their
children custodial time with their minor children when they have
the ability and willingness to act in the best interest of their
children. The Legislature further declares that the child's best
interest is served by educating to educate parents on their rights
and responsibilities and the effect their separation may have on
children,
to encourage encouraging parents to reach mutual
agreements related to their child's best interest, and encouraging
mediation of disputes
and to encourage parents to share in the
rights and responsibilities of rearing their children after the
parents have separated or divorced when they do not live together
or are divorced.
(c) The Legislature further recognizes and declares the
fundamental liberty interests of parents to share in the rights and
responsibilities of rearing their children after the parents have
separated or divorced.
(d) The Legislature also finds and declares the court's
secondary concern is to interfere to the least degree in familial
relationships promoting cooperation between parents that do not live together to achieve the objectives set forth in this article.
§48-9-102. Objectives; best interests of the child.
(a) The primary objective of this article is to serve the
child's best interests,
recognizing each parent provides unique and
invaluable contributions that are equally important, by
facilitating:
(1)
Stability of the child Familial, physical health,
economic, educational and emotional stability of the child;
(2) Parental planning and agreement about the child's
custodial arrangements and upbringing;
(3) Continuity of existing parent-child attachments;
(4)
Meaningful Maximum contact between a child and each
parent;
(5) Caretaking relationships by
adults family members who love
the child, know how to provide for the child's needs, and who place
a high priority on doing so;
(6) Security from exposure to physical or emotional harm; and
(7) Expeditious, predictable decision-making and avoidance of
prolonged uncertainty respecting arrangements for the child's care
and control;
(6) Continued contact between child and other family members
including, but not limited to, siblings, grandparents, aunts,
uncles, cousins and extended family members; and
(7) Parents ability and willingness to reorganize work schedules to maximize contact with the child.
(b) A secondary objective of article is to achieve
fairness
between the parents approximately equal access to both parents for
the child whenever practical.
PART 2. PARENTING PLANS.
§48-9-201. Parenting agreements.
(a) If the parents agree to one or more provisions of a
parenting plan, the court shall so order, unless it makes specific
findings
of fact and conclusions of law that:
(1) The agreement is not knowing or voluntary; or
(2)
There is overwhelming evidence the plan would be harmful
to the child.
(b) The court, at its discretion and on
any the basis
it deems
sufficient of compelling evidence, may conduct an evidentiary
hearing to determine whether there is a factual basis for a finding
under subdivision (1) or (2), subsection (a) of this section. When
there is credible,
documented and substantiated information that
child abuse as defined by
section 49-1-3 article eight-d, chapter
sixty-one of this code or domestic violence as defined by
section
27-202 section twenty-eight, article two, chapter sixty-one of this
code has occurred, a hearing is mandatory and if the court
determines that abuse has occurred, appropriate protective measures
shall be ordered.
(c) If an agreement, in whole or in part, is not accepted by the court under the standards set forth in subsection (a) of this
section, the court shall allow the parents the opportunity to
negotiate another agreement.
§48-9-202. Court-ordered services.
(a) (1) The court shall inform the parents, or require them to
be informed, about:
(A) How to prepare a parenting plan;
(B) The impact of family dissolution on children and how the
needs of children facing family dissolution can best be addressed;
(C) The impact of domestic abuse on children and resources for
addressing domestic abuse;
(D) The impact of false allegations of domestic abuse, sexual
abuse and neglect; and
(D) (E) Mediation or other nonjudicial procedures designed to
help them achieve an agreement.
(2) The court shall require the parents to attend parent
education classes.
(3) If parents are unable to resolve issues and agree to a
parenting plan, the court shall require mediation unless
application of the procedural rules promulgated pursuant to the
provisions of subsection (b) of this section indicates that
mediation is inappropriate in the particular case.
(b) The Supreme Court of Appeals shall make and promulgate
rules that will provide for premediation screening procedures to determine whether domestic violence, child abuse or neglect, acts
or threats of duress or coercion, substance abuse, mental illness
or other such elements would adversely affect the safety of a
party, the ability of a party to meaningfully participate in the
mediation or the capacity of a party to freely and voluntarily
consent to any proposed agreement reached as a result of the
mediation.
Such These rules shall authorize a family court judge
to consider alternatives to mediation which may aid the parties in
establishing a parenting plan.
Such These rules
shall do not
establish a per se bar to mediation if domestic violence, child
abuse or neglect, acts or threats of duress or coercion, substance
abuse, mental illness or other such elements exist, but may be the
basis for the court, in its discretion, not to order services under
subsection (a) of this section or not to require a parent to have
face-to-face meetings with the other parent.
(c) A mediator
shall may not make a recommendation to the
court and may not reveal information that either parent has
disclosed during mediation under a reasonable expectation of
confidentiality, except that a mediator may reveal to the court
credible information corroborated and documented evidence that he
or she has received concerning domestic violence or child abuse.
(d) Mediation services authorized under subsection (a) of this
section shall be ordered at an hourly cost that is reasonable in
light of the financial circumstances of each parent, assessed on a uniform sliding scale. Where one parent's ability to pay for such
services is significantly greater than the other, the court may
order that parent to pay some or all of the expenses of the other.
State revenues
shall may not be used to defray the costs for the
services of a mediator:
Provided, That the Supreme Court of
Appeals may use a portion of its budget to pay administrative costs
associated with establishing and operating mediation programs
:
Provided, however, That grants and gifts to the state that may be
used to fund mediation are not to be considered as state revenues
for purposes of this subsection.
(e) The Supreme Court of Appeals shall establish standards for
the qualification and training of mediators.
§48-9-203. Proposed temporary parenting plan; temporary order;
amendment; vacation of order.
(a) A parent seeking a temporary order relating to parenting
shall file and serve a proposed temporary parenting plan by motion.
The other parent, if contesting the proposed temporary parenting
plan, shall file and serve a responsive proposed parenting plan.
Either parent may move to have a proposed temporary parenting plan
entered as part of a temporary order. The parents may enter an
agreed temporary parenting plan at any time as part of a temporary
order. The proposed temporary parenting plan may be supported by
relevant evidence and shall be verified and shall state at a
minimum the following:
(1) Information from the time frame preceding establishment of
separate living arrangements in cases where the parents have lived
together or for the twelve months immediately preceding initiation
of this action as outlined in subdivisions (A) through (C);
(1) (A) The name, address and length of residence with the
person or persons with whom the child has lived;
for the preceding
twelve months
(2) (B) The performance by each parent
during the last twelve
months of the parenting functions relating to the daily needs of
the child
in accordance with section two, article two hundred
thirty-five, chapter one of this chapter;
(3) (C) The parents' work and child-care schedules;
for the
preceding twelve months
(4) (2) The parents' current work and child-care schedules,
including; and
(A) Any changes in the parents' work schedules in the past
thirty days;
(B) Any substantive changes that can be made in future work
schedules to allow for more parent-child interaction; and
(C) List of family members available to provide child care in
lieu of day care centers along with schedules of available times.
(5) (3) Any of the circumstances set forth in section two
hundred nine, article nine, that are likely to pose a serious risk
to the child and that warrant limitation on the award to a parent of temporary residence or time with the child pending entry of a
permanent parenting plan;
and
(4) The existence of any orders that may restrict the child's
access to either parent including, but not limited to, protective
orders.
(b) At the hearing, the court shall enter a temporary
parenting order incorporating a temporary parenting plan which
includes:
(1) A schedule for the child's time with each parent when
appropriate;
(A) If the parents agree on a proposed plan notwithstanding
any limiting factors in section two hundred nine of this article,
the court shall enter the proposed plan; and
(B) If the parents do not agree on a proposed plan, the court
shall enter an order incorporating a temporary plan that allows for
maximum contact between the child and each of its parents as well
as other family members in accordance with section one hundred two
of this article.
(2) Designation of a temporary residence for the child;
(3) Allocation of decision-making authority
in accordance with
section two hundred seven, if any. Absent allocation of
decision-making authority consistent with section two hundred seven
of this article, neither party shall make any decision for the
child other than those relating to day-to-day or emergency care of the child, which shall be made by the party who is present with the
child;
(4) Provisions for temporary support for the child;
and
(5) Restraining orders, if applicable;
and
(6) Provisions for dispute resolution in accordance with
section two hundred eight of this article.
(c) A parent may make a motion for an order to show cause and
the court may enter a temporary order, including a temporary
parenting plan, upon a showing of necessity.
(d) A parent may move for amendment of a temporary parenting
plan, and the court may order amendment to the temporary parenting
plan, if the amendment conforms to the limitations of section two
hundred nine, article nine and
is in the conforms to the objectives
of the best interest of the child
as described in section one
hundred two of this article.
§48-9-204. Criteria for temporary parenting plan.
(a) After considering the proposed temporary parenting plan
filed pursuant to section two hundred three, article nine and other
relevant evidence presented, the court shall make a temporary
parenting plan that is in the best interest of the child. In
making this determination, the court shall give particular
consideration to:
(1) Which
parent has taken greater responsibility during the
last twelve months for performing parents have the ability and willingness to perform caretaking functions relating to the daily
needs of the child.
The court shall take into consideration a
parent's ability and willingness to adjust work schedules so as to
allocate as much time with the child without substantially reducing
the overall income of the parties; and
(2) Which parenting arrangements will
cause the least
disruption to the child's emotional stability allow for the maximum
time allocation of the child with each parent and other family
members during the pendency of this action. while the action is
pending
(b) The court shall also consider the factors used to
determine residential provisions in the permanent parenting plan.
(c) (b) Upon
credible evidence initiation of criminal
proceedings of one or more of the circumstances set forth in
section two hundred nine, article nine (a),
or clear and convincing
evidence of one or more of the circumstances of said section the
court shall issue a temporary order limiting or denying access to
the child as required by that section, in order to protect the
child or the other party, pending adjudication of the underlying
facts.
(d) Expedited procedures shall be instituted to facilitate the
prompt issuance of a parenting plan.
§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
and are encouraged to file a joint plan
which is in everyone's best
interest. 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, chapter nine;
(3) A description of the allocation of caretaking
as defined
in section two hundred ten, article one 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,
except in cases where
parents previously cohabitated. Those cases shall exclude time
periods where the parents lived apart without a temporary parenting
plan;
(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 that are present,
including any
restraining protective 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,
documented and verified information that
child abuse or neglect, as defined in
section 49-1-3 article
eight-d, chapter sixty-one of this code, or domestic violence as
defined in section
27-202 twenty-eight, article two, chapter
sixty-one of this code 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,
information regarding the potential impact of false
allegations of child abuse or domestic violence 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,
documented and verified information that child
abuse or domestic abuse has occurred receive the court review that
is mandated by subsection section two hundred one, article nine(b).
(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, article nine, through
section two hundred nine, article nine, of this chapter,
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 9-202 sections two hundred two, two hundred eight and five hundred one, article nine
of this code, for resolution of disputes that arise under the plan,
and remedies for violations of the plan.
(d) A parenting plan
may shall, at the
court's discretion
request of either party, 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
9-201 two hundred one, article nine 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
9-209 two hundred nine, article nine or necessary to
achieve any of the following objectives:
(1) To permit the child to have
a relationship maximum time
with each parent who has performed
or is willing and able to
perform a reasonable share of parenting functions
as defined in
section two hundred thirty-five point two;
(2) To accommodate the firm and reasonable preferences of a child who is fourteen years of age or older, and with regard to a
child under fourteen 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;
(A) The court shall consider any negative effects that one
parent has had on the child's preference due to tactics utilized to
undermine the relationship between the parent and child.
(B) The court shall only give weight to the child's preference
when it is manifestly certain that the preference did not come
about as a result of action taken by one parent against the other
designed to create a divide in the parent-child relationship.
(3) To keep siblings together when the court finds that doing
so is
necessary to their welfare consistent with the objectives
outlined in section one hundred two, article nine of this chapter;
(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) (4) To take into account any prior agreement of the
parents that, under the circumstances as a whole including the
reasonable expectations presumption that the decisions of the
parents are 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) (5) To apply the principles set forth in section four
hundred three, article nine (d) 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) (6) To consider the stage of a child's development
while
maintaining the presumption that maximum time allocation with both
parents best serves the child's interest.
(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) (b) 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
as
outlined in section one hundred two, of this article, taking into
account the factors in considerations that are set forth in this
section and in section two hundred nine and section four hundred
three, article nine (d) of this article and preserving to the
extent possible this section's priority on
the share of past
caretaking functions each parent performed maximizing the time
allocation for the child with each parent.
(d) (c) 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 the
distance between parents' residences, cost and difficulty of
transporting the child, including the parents' and child's daily
schedules.
§48-9-207. Allocation of significant decision-making
responsibility.
(a) Unless otherwise resolved by agreement of the parents
under section two hundred one, article nine the court shall
allocate responsibility for making significant life decisions on
behalf of the child, including the child's education and health
care,
to one parent or to two parents jointly.
in accordance with
the child's best interest, in light of:
(1) The allocation of custodial responsibility under section
9-206 of this article;
(2) The level of each parent's participation in past
decision-making on behalf of the child;
(3) The wishes of the parents;
(4) The level of ability and cooperation the parents have
demonstrated in decision-making on behalf of the child;
(5) Prior agreements of the parties; and
(6) The existence of any limiting factors, as set forth in
section 9-209 of this article.
(b) If each of the child's legal parents has been exercising
a reasonable share of parenting functions for the child, the court
shall presume that an allocation of decision-making responsibility
to both parents jointly is in the child's best interests. The
presumption is overcome if there is a history of domestic abuse, or
by a showing that joint allocation of decision-making
responsibility is not in the child's best interest,
by written
findings of:
(1) The level of ability and willingness of each parent to
cooperate in the decision-making process on behalf of the child.
The parent who demonstrates ability and willingness to cooperate is
given preference in determining whether or not the presumption is
overcome; and
(2) The existence of limiting factors, as set forth in section
two hundred nine, article ten, of this chapter.
(c) Unless otherwise provided or agreed by the parents, each
parent who is exercising custodial responsibility shall be given
sole responsibility for day-to-day decisions for the child, while
the child is in that parent's care and control, including emergency
decisions affecting the health and safety of the child.
(d) (1) In the event emergency medical procedures are
undertaken for the child which require the parental consent of
either parent, if time permits, the other parent shall be
consulted, or if time does not permit such consultation, the other
parent shall be promptly informed of the emergency medical
procedures: Provided, That nothing contained herein alters or
amends the law of this state as it otherwise pertains to physicians
or health care facilities obtaining parental consent prior to
providing medical care or performing medical procedures.
(2) Each parent is required to promptly inform the other
parent of any illness of the child which requires medical
attention.
(3) Each parent is required to consult with the other parent
prior to any elective surgery being performed on the child.
(e) (1) Each parent has the right to participate as a member
of a Parent Advisory Committee of any other organization comprised
of parents and children at the school that the child attends.
(2) Each parent has the right to arrange appointments for
parent-teacher conferences absent a court order to the contrary.
Neither parent can be compelled against their will to exercise this
right by attending jointly with the other parent.
§48-9-209. Parenting plan; limiting factors.
(a) If either of the parents so requests, or upon receipt of
credible information thereof, the court shall determine whether a
parent who would otherwise be allocated responsibility under a
parenting plan:
(1) Has abused, neglected or abandoned a child, as defined by
state law article eight-d, chapter sixty-one;
(2) Has sexually assaulted or sexually abused a child as those
terms are defined in articles eight-b and eight-d, chapter
sixty-one of this code;
(3) Has committed domestic violence, as defined in section
27-202 twenty-eight, article two, chapter sixty-one;
(4) Has interfered
persistently with the other parent's access
to the child, except in the case of actions taken for the purpose
of protecting the safety of the child or the interfering parent or another family member.
pending adjudication of the facts underlying
that belief The court may only grant exceptions in cases where
criminal remedies have been sought; or
(5) Has
repeatedly made fraudulent reports of domestic
violence or child abuse.
(b) If a parent is found to have engaged in any activity
specified by subsection (a) of this section, the court shall impose
limits that are reasonably calculated to protect the child or
child's parent from harm.
The standard used to make determinations
is a clear and convincing standard not the preponderance of the
evidence. The limitations that the court shall consider include,
but are not limited to:
(1) An adjustment of the custodial responsibility of the
parents, including,
but not limited to:
(A) Increased parenting time with the child to make up for any
parenting time the other parent lost as a result of the proscribed
activity;
(B) An additional allocation of parenting time in order to
repair any adverse effect upon the relationship between the child
and the other parent resulting from the proscribed activity; or
(C) The allocation of exclusive custodial responsibility to
one parent or another;
(2) Supervision of the custodial time between a parent and the
child;
(3) Exchange of the child between parents through an
intermediary, or in a protected setting;
(4) Restraints on the parent from communication with or
proximity to the other parent or the child;
(5) A requirement that the parent abstain from possession or
consumption of alcohol or nonprescribed drugs while exercising
custodial responsibility and in the twenty-four hour period
immediately preceding such exercise;
(6) Denial of overnight custodial responsibility;
(7) Restrictions on the presence of specific persons while the
parent is with the child;
(8) A requirement that the parent post a bond to secure return
of the child following a period in which the parent is exercising
custodial responsibility or to secure other performance required by
the court;
(9) A requirement that the parent complete a
nongender biased
program of intervention for perpetrators of domestic violence, for
drug or alcohol abuse, or a program designed to correct another
factor; or
(10)
Any other constraints or conditions that the court deems
necessary to provide for the safety of the child, a child's parent
or any person whose safety immediately affects the child's welfare
An adjustment of the decision-making responsibility of the parents
including the allocation of exclusive decision-making responsibility to one of them.
(c) If a parent is found to have engaged in any activity
specified in subsection (a) of this section,
the determination of
which is made by a clear and convincing standard of proof or in the
case of domestic violence in accordance with section twenty-eight,
article two, chapter sixty-one, the court may not allocate
custodial responsibility or decision-making responsibility to that
parent
without making special written findings that unless the
child and other parent can be adequately protected from harm by
such limits as it may impose under subsection (b) of this section.
The parent found to have engaged in the behavior specified in
subsection (a) of this section has the burden of proving that an
allocation of custodial responsibility or decision-making
responsibility to that parent will not endanger the child or the
other parent.
(d) If the court determines, based on the investigation
described in part three of this article or other evidence presented
to it, that an accusation of child abuse or neglect, or domestic
violence
against either the child or another family member
including a parent, made during a child custody proceeding is false
and the parent making the accusation knew it to be false at the
time the accusation was made, the court
may shall order
reimbursement to be paid by the person making the accusations of
costs resulting from defending against the accusations. Such reimbursement may not exceed the actual reasonable costs incurred
by the accused party as a result of defending against the
accusation and reasonable attorney's fees incurred.
(e) (1) A parent who believes he or she is the subject of
activities by the other parent described in subdivision (5) of
subsection (a), may move the court pursuant to subdivision (4),
subsection (b), section one, article seven, chapter forty-nine of
this code for the Department of Health and Human Resources to
disclose whether the other parent was the source of the allegation
and, if so, whether the department found the report to be:
(A) Substantiated;
(B) Unsubstantiated;
(C) Inconclusive; or
(D) Still under investigation.
(2) If the court grants a motion pursuant to this subsection,
disclosure by the Department of Health and Human Resources shall be
in camera. The court may disclose to the parties information
received from the department only if it has reason to believe a
parent knowingly made a false report.
PART 4. MODIFICATION OF PARENTING PLAN.
§48-9-401. Modification upon showing of changed circumstances or
harm.
(a) Except as provided in section four hundred two, article
nine or section four hundred three, article nine a court shall modify a parenting plan order if it finds, on the basis of facts
that were not known or have arisen since the entry of the prior
order and were not anticipated therein, that a
substantial change
has occurred in the circumstances of the child or of one or both
parents and a modification is necessary to serve the best interests
of the child
as defined by section one hundred two, article nine of
this chapter.
(b) In exceptional circumstances, a court may modify a
parenting plan
or order if it finds
by written findings of fact and
conclusions of law that the plan
is not working as contemplated and
in some specific way is manifestly harmful to the child, even if a
substantial change of circumstances has not occurred.
(c) Unless the parents have agreed otherwise, the following
circumstances do not justify a significant modification of a
parenting plan except where harm to the child is shown:
(1) Circumstances resulting in an involuntary loss of income,
by loss of employment or otherwise, affecting the parent's economic
status;
(2) A parent's remarriage or cohabitation,
provided:
(A) They constitute intent to establish a long-term stable
environment for the child;
(B) They do not involve two or more instances of short
duration;
(C) They do not require two or more changes in school districts in a short period of time; and
(D) They do not change access to extended family member for
the child; and
(3) Choice of reasonable caretaking arrangements for the child
by a legal parent,
including excluding the child's placement in day
care,
when the other parent or members of the other parent's family
are available, willing and able to provide alternate care.
(d) For purposes of subsection (a) of this section, the
occurrence or worsening of a limiting factor, as defined in
subsection (a), section two hundred nine, article nine after a
parenting plan has been ordered by the court, constitutes a
substantial change of circumstances and measures shall be ordered
pursuant to section two hundred nine, article nine to protect the
child or the child's parent.
§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 makes specific written
findings of fact and conclusions of law that the agreement is not
knowing and voluntary or that
there is overwhelming evidence that
the plan is 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
section four hundred one, article nine (a) if the modification is
in the child's best interests
as outlined in section one hundred two of this article, 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
or use of coercive
tactics to turn the opinions of a child against a parent including,
but not limited to, false allegations of abuse, discussion of child
support or lack thereof, telling the child that the other parent
does not love them or has done something wrong or has broken up the
family;
(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
except
in cases of extreme interference by the petitioning party in the
child's relationship with the other parent.
(c) Evidence of
repeated one or more 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
or decision-making responsibilities is in
issue, and the fraudulent accusations
may be is a factor considered
by the court in making the allocation of custodial
or
decision-making responsibilities.
§48-9-403. Relocation of a parent.
(a) The relocation of a parent constitutes a substantial
change in the circumstances under subsection
9-401(a),
section four
hundred one, of this article, of the child only when it
significantly impairs either parent's ability to exercise
responsibilities that the parent has been exercising
except when
the nonrelocating parent can demonstrate a pattern and practice of
interference which has prevented them from exercising those
responsibilities. Where both parents enjoy any form of parenting
or custodial time with the child, relocation by either parent with
the child 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 relocating
parent.
(b) Unless otherwise ordered by the court, a parent who has
responsibility under a parenting plan who changes, or intends to
change, residences for more than ninety days must
give a minimum of
sixty days' advance notice file, with the clerk of the court that
issued the parenting plan order or that has current jurisdiction
over the custody proceedings a notice of intent to relocate and a
revised parenting plan. Additionally, the relocating parent must
send a copy of the notice and revised plan by registered mail to
the nonrelocating parent no later than ninety days before the date
the move is to take place, or the most notice practicable under the circumstances.
to any other parent with responsibility under the
same parenting plan Notice shall include:
(1) The relocation date;
(2) The address of the intended new residence;
(A) List of all adults who will reside at the new residence;
and
(B) Number ages and gender of all minors who will be living at
the new residence.
(3) The specific reasons for the proposed relocation;
(4) A proposal for how custodial responsibility shall be
modified, in light of the intended move; and
(5) Information for the other parent as to how he or she may
respond to the proposed relocation or modification of custodial
responsibility.
Failure to comply with the notice requirements of this section
without good cause
may be is a factor in the determination of
whether the relocation is in good faith under subsection (d) of
this section and is a basis for an award of reasonable expenses and
reasonable attorney's fees to another parent that are attributable
to such failure.
The Supreme Court of Appeals shall make available through the
offices of the circuit clerks and the secretary-clerks of the
family courts a form notice that complies with the provisions of
this subsection. The Supreme Court of Appeals shall promulgate procedural rules that provide for an expedited hearing process to
resolve issues arising from a relocation or proposed relocation.
(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 is submitted to a
reselected 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
evidentiary hearing.
(c) (d) When changed circumstances are shown under subsection
(a) of this section, the court shall, if practical, revise the
parenting plan so as to both accommodate the relocation and
maintain the same proportion of custodial responsibility being
exercised by each of the parents. In making such revision, the
court may consider the additional costs that a relocation imposes
upon the respective parties for transportation and communication,
and may equitably allocate such costs between the parties.
(d) (e) When the relocation constituting changed circumstances
under subsection (a) of this section renders it impractical to maintain the same proportion of custodial responsibility as that
being exercised by each parent, the court shall modify the
parenting plan in accordance with the child's best interests
as
outlined in section one hundred two, of this article and in
accordance with the following principles:
(1) A parent who has been exercising a significant majority of
the custodial responsibility for the child should be allowed to
relocate with the child so long as that parent shows that the
relocation is in good faith for a legitimate purpose and to a
location that is reasonable in light of the purpose
and that it
does not require significant loss of contact with a greater portion
of the child's family members that if the relocation did not occur.
The percentage of custodial responsibility that constitutes a
significant majority of custodial responsibility is seventy percent
or more. A relocation is for a legitimate purpose if it is to be
close to significant family or other support networks, for
significant health reasons, to protect the safety of the child or
another member of the child's household from significant risk of
harm, to pursue a significant employment or educational opportunity
or to be with one's spouse who is established, or who is pursuing
a significant employment or educational opportunity, in another
location. The relocating parent has the burden of proving of the
legitimacy of any other purpose. A move with a legitimate purpose
is reasonable unless its purpose is shown to be substantially achievable without moving or by moving to a location that is
substantially less disruptive of the other parent's relationship to
the child.
(2) If a relocation of the parent is in good faith for
legitimate purpose and to a location that is reasonable in light of
the purpose and if neither has been exercising a significant
majority of custodial responsibility for the child, the court shall
reallocate custodial responsibility based on the best interest of
the child
as outlined in section one hundred two, of this article,
taking into account all relevant factors including the effects of
the relocation on the child.
The burden of proof is a high
standard and it is upon the relocating parent to prove that it is
in the child's best interest as outlined in section one hundred two
of this article.
(3) If a parent does not establish that the purpose for that
parent's relocation is in good faith for a legitimate purpose into
a location that is reasonable in light of the purpose, the court
may shall modify the parenting plan in accordance with the child's
best interests
as outlined in section one hundred two of this
article and the effects of the relocation on the child. Among the
modifications the court may consider is a reallocation of primary
custodial
and decision-making responsibility
to the nonrelocating
parent, effective if and when the relocation occurs.
but such a
reallocation shall not be ordered if the relocating parent demonstrates that the child's best interests would be served by the
relocation
(4) The court shall attempt to minimize impairment to a
parent-child relationship caused by a parent's relocation through
alternative arrangements for the exercise of custodial
responsibility appropriate to the parents' resources and
circumstances and the developmental level of the child.
(5) If the relocation is granted and the nonrelocating parent
has less contact with the child, such that it will cause an
increase in the child support allocation, then the calculations are
made based upon conditions prior to relocation when determining the
division of parenting time.
(e) (f) In determining the proportion of caretaking functions
each parent previously performed for the child under the parenting
plan before relocation, the court may not consider a division of
functions arising from any arrangements made after a relocation but
before a modification hearing on the issues related to relocation.
(f) (g) In determining the effect of the relocation or
proposed relocation on a child, any interviewing or questioning of
the child shall be conducted in accordance with the provisions of
rule 17 of the rules of practice and procedure for family law as
promulgated by the Supreme Court of Appeals.
PART 5. ENFORCEMENT OF PARENTING PLANS.
§48-9-501. Enforcement of parenting plans.
(a) If, upon a parental complaint, the court finds a parent
intentionally
and without good cause violated a provision of the
court-ordered parenting plan,
the court shall in all cases, absent
clear and convincing evidence written in the record to justify the
violation, it shall enforce the remedy specified in the plan or, if
no remedies are specified or they are clearly inadequate, it shall
find the plan has been violated and
enter an order
an appropriate
remedy, which
may shall include
compensatory time equivalent to the
lost time and one or more of the following remedies:
(1) In the case of interference with the exercise of custodial
responsibility for a child by the other parent, substitute time for
that parent to make up for time missed with the child;
(2) In the case of missed time by a parent, costs in
recognition of lost opportunities by the other parent, in child
care costs and other reasonable expenses in connection with the
missed time;
(3) A modification of the plan, if the requirements for a
modification are met under section two hundred nine, article nine,
section four hundred one, article nine, four hundred two, or four
hundred three of this chapter, including an adjustment of the
custodial
and decision-making responsibility of the parents or an
allocation of exclusive custodial
and decision-making
responsibility to one of them;
(4) An order that the parent who violated the plan obtain appropriate counseling;
(5) A civil penalty, in an amount of not more than $100 for a
first offense, not more than $500 for a second offense, or not more
than $1,000 for a third or subsequent offense, to be paid to the
parent education fund as established under section one hundred
four, article nine;
(6) Court costs, reasonable attorney's fees and any other
reasonable expenses in enforcing the plan;
and
(7)
Any other appropriate remedy An order that the violating
parent pay the cost of counseling to reestablish the parent-child
relationship with the other parent; or
(8) Require a bond to assure future compliance with parenting
plan orders.
(b) Except as provided in a jointly submitted plan that has
been ordered by the court, obligations established in a parenting
plan are independent obligations, and it is not a defense to an
action under this section by one parent that the other parent
failed to meet obligations under a parenting plan or child support
order.
(c)
An A notarized written agreement between the parents to
depart from the parenting plan can be a defense to a claim that the
plan has been violated, even though the agreement was not made part
of a court order, but only as to acts or omissions consistent with
the agreement that occur before the agreement is disaffirmed by either parent.
(d) It is mandatory that the court make a criminal referral to
the local law-enforcement authorities when there is any evidence
that there may have been a violation of section fourteen-d, article
two, chapter sixty one of this code.
PART 6. MISCELLANEOUS PROVISIONS.
§48-9-601. Access to a child's records.
(a) (1) Each parent has full and equal access to a child's
educational records absent a court order to the contrary. Neither
parent may veto the access requested by the other parent.
Educational records are academic, attendance and disciplinary
records of public and private schools in all grades kindergarten
through twelve and any form of alternative school. Educational
records are any and all school records concerning the child that
would otherwise be properly released to the primary custodial
parent, including, but not limited to, report cards and progress
reports, attendance records, disciplinary reports, results of the
child's performance on standardized tests and statewide tests and
information on the performance of the school that the child attends
on standardized statewide tests; curriculum materials of the class
or classes in which the child is enrolled; names of the appropriate
school personnel to contact if problems arise with the child;
information concerning the academic performance standards,
proficiencies, or skills the child is expected to accomplish; school rules, attendance policies, dress codes and procedures for
visiting the school; and information about any psychological
testing the school does involving the child.
(2) In addition to the right to receive school records, the
nonresidential parent has the right to participate as a member of
a parent advisory committee or any other organization comprised of
parents of children at the school that the child attends.
(3) (2) The nonresidential parent or noncustodial parent Each
parent has the right to question anything in the child's record
that the parent feels is inaccurate or misleading or is an invasion
of privacy and to receive a response from the school.
(4) Each parent has a right to arrange appointments for
parent-teacher conferences absent a court order to the contrary.
Neither parent can be compelled against their will to exercise this
right by attending conferences jointly with the other parent.
(b)
(1) Each parent has full and equal access to a child's
medical records absent a court order to the contrary. Neither
parent may veto the access requested by the other parent. If
necessary, either parent is required to authorize medical providers
to release to the other parent copies of any and all information
concerning medical care provided to the child which would otherwise
be properly released to either parent.
(2) If the child is in the actual physical custody of one
parent, that parent is required to promptly inform the other parent of any illness of the child which requires medical attention.
(3) Each parent is required to consult with the other parent
prior to any elective surgery being performed on the child, and in
the event emergency medical procedures are undertaken for the child
which require the parental consent of either parent, if time
permits, the other parent shall be consulted, or if time does not
permit such consultation, the other parent shall be promptly
informed of the emergency medical procedures: Provided, That
nothing contained herein alters or amends the law of this state as
it otherwise pertains to physicians or health care facilities
obtaining parental consent prior to providing medical care or
performing medical procedures.
(c) Each parent has full and equal access to a child's
juvenile court records, process and pleadings, absent a court order
to the contrary. Neither parent may veto any access requested by
the other parent. Juvenile court records are limited to those
records which are normally available to a parent of a child who is
a subject of the juvenile justice system.
NOTE: The purpose of this bill is to clarify the definition of
shared parenting; and updating language regarding the allocation
of custodial responsibility and decision-making responsibility of
children.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.