WEST virginia Legislature

2021 regular session

Introduced

House Bill 3025

By Delegate Pritt

[Introduced March 09, 2021; Referred to the Committee on the Judiciary]

A BILL to amend and reenact §48-9-501 of the Code of West Virginia, 1931, as amended, relating to making a de facto parenting plan an affirmative defense to the violation of a parenting plan.

Be it enacted by the Legislature of West Virginia:

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

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, 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 order an appropriate remedy, which may include:

(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 9-209, section 9-401, 402 or 403 of this article, including an adjustment of the custodial responsibility of the parents or an allocation of exclusive custodial 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 9-104;

(6) Court costs, reasonable attorney's fees and any other reasonable expenses in enforcing the plan; and

(7) Any other appropriate remedy.

(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 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) A “de facto” parenting plan shall be an affirmative defense to the violation of a parenting plan.

NOTE: The purpose of this bill is to ensure that a “de facto” parenting plan is an affirmative defense to violation of a parenting plan.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.