Senate Bill No. 623
(By Senators Kessler, Edgell and Foster)
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[Introduced February 16, 2007; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §48-9-209 of the Code of West Virginia,
1931, as amended, relating to the allocation of responsibility
under a parenting plan for a child; and adding that if a
parent has made two or more unsubstantiated or false reports
of domestic violence or child abuse, then, upon the request of
either parent, the court may determine if limitations should
be imposed.
Be it enacted by the Legislature of West Virginia:
That §48-9-209 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND
DECISION-MAKING RESPONSIBILITY OF CHILDREN.
§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;
(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;
(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; or
(5) Has repeatedly knowingly made a fraudulent reports report
of domestic violence or child abuse; or
(6) Has made two or more unsubstantiated or false 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 limitations that the court shall
consider include, but are not limited to:
(1) An adjustment of the custodial responsibility of the parents, including the allocation of exclusive custodial
responsibility to one of them;
(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 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.
(c) If a parent is found to have engaged in any activity
specified in subsection (a) of this section, the court may not
allocate custodial responsibility or decision-making responsibility
to that parent without making special written findings that 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.
NOTE: The purpose of this bill is to add if a parent has made
two or more unsubstantiated or false reports of domestic violence
or child abuse, then upon the request of either parent, the court
may determine if limitations should be imposed upon the allocated
responsibility.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.