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Engrossed Committee Substitute House Bill 3065 History

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Key: Green = existing Code. Red = new code to be enacted
HB3065 ENG SUB
ENGROSSED

COMMITTEE SUBSTITUTE

FOR

H. B. 3065

(Delegates Eldridge, Rodighiero, Ellis, Stemple,

Williams, Perry, Beach, Shook, Argento and Reynolds)


(Originating in the Committee on the Judiciary)

[February 22, 2008]


A BILL to amend and reenact §48-9-209 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §48-9-301a; and to amend said code by adding thereto a new section, designated §61-6-25, all relating false allegations of child abuse and/or neglect; impact of allegations on allocation of custodial responsibility under a parenting plan; imposition of reasonable money sanctions and reasonable attorney's fees for false allegations; request for disclosure of source of allegations by Department of Health and Human Resources; investigation of allegations of child sexual abuse by family courts; and new misdemeanor offense for falsely reporting child abuse.

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; that said code be amended by adding thereto a new section, designated §48-9-301a ; that §48-9-401 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §61-6-25, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS

ARTICLE 9. CUSTODY OF CHILDREN

Part 2 - Parenting Plans

§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 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 limitations that the court shall consider include, but are not limited to:
(1) An adjustment of the custodial responsibility of the parents, including,
(A) allocation of additional parenting time with the child to make up for any parenting time the other parent lost as a result of the proscribed activity;
(B) allocation of additional parenting time in order to rehabilitate any adverse effect upon the relationship between the child and the other parent that arose because the other parent lost parenting time as a result of the activity; or
(C)
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.
(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 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 impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney's fees incurred in recovering the sanctions, against the parent making the accusation. The remedy provided by this subsection is in addition to any other remedy provided by law.
(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 3 - Fact Finding.

§ 48-9-301a. Child sexual abuse allegations.
(a) If allegations of child sexual abuse are made during a child custody proceeding and the court has concerns regarding the child's safety, the court may take any reasonable, temporary steps as the court, in its discretion, deems appropriate under the circumstances to protect the child's safety until an investigation can be completed. Nothing in this subsection shall affect the applicability of sections two and nine of article six-A, chapter forty-nine of this Code.
(b) If allegations of child sexual abuse are made during a child custody proceeding, the court may request that the local child protective service conduct an investigation of the allegations pursuant to article six-A, chapter forty-nine of this Code. Upon completion of the investigation, the agency shall report its findings to the court.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT

ARTICLE 6. CRIMES AGAINST THE PEACE
§61-6-25. Falsely reporting child abuse.
(a) A person is guilty of a misdemeanor who:
(1) informs a law enforcement officer or child protective service worker that a person has committed sexual abuse, physical abuse, or neglect of a child, as defined in section three, article one, chapter forty-nine of this Code;
(2) at the time the accusation is made, knows that the allegation of abuse or neglect is false or is without reason to believe that the alleged abuser committed the abuse or neglect; and
(3) has the intent that the information influence a child custody proceeding.
(b) Any person who violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined one thousand dollars or sentenced to not less than forty hours nor more than sixty hours of community service, or both fined and sentenced to community service:
Provided, That the person so convicted shall be required to attend parenting classes conducted by any court- approved agency.
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