H. B. 4499
(By Delegate Webb)
[Introduced February 19, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section fifteen, article two, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to setting forth
factors to be considered by a circuit court in determining
which parent should be awarded custody of minor children.
Be it enacted by the Legislature of West Virginia:
That section fifteen, article two, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-15. Relief upon ordering divorce or annulment or granting decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay alimony in
the form of periodic installments, or a lump sum, or both, for the maintenance of the other party. Payments of alimony are to
be ordinarily made from a party's income, but when the income is
not sufficient to adequately provide for those payments, the
court may, upon specific findings set forth in the order, order
the party required to make those payments to make them from the
corpus of his or her separate estate. An award of alimony shall
not be disproportionate to a party's ability to pay as disclosed
by the evidence before the court.
(b) Upon ordering the annulment of a marriage or a divorce
or granting of decree of separate maintenance, the court may
further order all or any part of the following relief:
(1) The court may provide for the custody of minor children
of the parties, subject to such rights of visitation, both in and
out of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances. In every action where visitation is awarded, the
court shall specify a schedule for visitation by the noncustodial
parent:
Provided, That with respect to any existing order which
provided for visitation but which does not provide a specific
schedule for visitation by the noncustodial parent, upon motion
of any party, notice of hearing and hearing, the court shall
issue an order which provides a specific schedule of visitation
by the noncustodial parent;
(2) When the action involves a minor child or children, the court shall require either party to pay child support in the form
of periodic installments for the maintenance of the minor
children of the parties in accordance with support guidelines
promulgated pursuant to section one, article one-b, chapter
forty-eight-a of this code. Payments of child support are to be
ordinarily made from a party's income, but in cases when the
income is not sufficient to adequately provide for those
payments, the court may, upon specific findings set forth in the
order, order the party required to make those payments to make
them from the corpus of his or her separate estate;
(3) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of alimony or
child support, the court may order either party to continue in
effect existing policies of insurance covering the costs of
health care and hospitalization of the other party:
Provided,
That if the other party is no longer eligible to be covered by
such insurance because of the granting of an annulment or
divorce, the court may require a party to substitute such
insurance with a new policy to cover the other party or may
consider the prospective cost of such insurance in awarding
alimony to be paid in periodic installments. Payments made to an
insurer pursuant to this subdivision, either directly or by a deduction from wages, shall be deemed to be alimony or
installment payments for the distribution of marital property, in
such proportion as the court shall direct:
Provided, however,
That if the court does not set forth in the order that a portion
of such payments is to be deemed installment payments for the
distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be alimony:
Provided further, That the designation of insurance coverage as
alimony under the provisions of this subdivision shall not, in
and of itself, give rise to a subsequent modification of the
order to provide for alimony other than insurance for covering
the costs of health care and hospitalization;
(5) The court may grant the exclusive use and occupancy of
the marital home to one of the parties, together with all or a
portion of the household goods, furniture and furnishings
reasonably necessary for such use and occupancy. Such use and
occupancy shall be for a definite period, ending at a specific
time set forth in the order, subject to modification upon the
petition of either party. Except in extraordinary cases
supported by specific findings set forth in the order granting
relief, a grant of the exclusive use and occupancy of the marital
home shall be limited to those situations when such use and
occupancy is reasonably necessary to accommodate the rearing of
minor children of the parties. The court may require payments to third parties in the form of home loan installments, land
contract payments, rent, property taxes and insurance coverage if
the amount of such coverage is reduced to a fixed monetary amount
set forth in the court's order. When such third party payments
are ordered, the court shall specify whether such payments or
portions of payments are alimony, child support, a partial
distribution of marital property or an allocation of marital
debt:
Provided, That if the court does not set forth in the
order that a portion of such payments is to be deemed child
support or installment payments for the distribution of marital
property, then all such payments made pursuant to this
subdivision shall be deemed to be alimony. When such third party
payments are ordered, the court shall specify whether such
payments or portions of payments are alimony, child support, a
partial distribution of marital property or an allocation of
marital debt. If the payments are not designated in an order and
the parties have waived any right to receive alimony, the court
may designate the payments upon motion by any party. Nothing
contained in this subdivision shall abrogate an existing contract
between either of the parties and a third party or affect the
rights and liabilities of either party or a third party under the
terms of such contract;
(6) As an incident to requiring the payment of alimony, the
court may grant the exclusive use and possession of one or more motor vehicles to either of the parties. The court may require
payments to third parties in the form of automobile loan
installments or insurance coverage if available at reasonable
rates, and any such payments made pursuant to this subdivision
for the benefit of the other party shall be deemed to be alimony
or installment payments for the distribution of marital property,
as the court may direct. Nothing contained in this subdivision
shall abrogate an existing contract between either of the parties
and a third party or affect the rights and liabilities of either
party or a third party under the terms of such contract;
(7) When the pleadings include a specific request for
specific property or raise issues concerning the equitable
division of marital property as defined in section one of this
article, the court shall order such relief as may be required to
effect a just and equitable distribution of the property and to
protect the equitable interests of the parties therein;
(8) Unless a contrary disposition is ordered pursuant to
other provisions of this section, then upon the motion of either
party, the court may compel the other party to deliver to the
moving party any of his or her separate estate which may be in
the possession or control of the respondent party and may make
such further order as is necessary to prevent either party from
interfering with the separate estate of the other;
(9) When allegations of abuse have been proven, the court shall enjoin the offending party from molesting or interfering
with the other, or otherwise imposing any restraint on the
personal liberty of the other or interfering with the custodial
or visitation rights of the other. Such order may permanently
enjoin the offending party from entering the school, business or
place of employment of the other for the purpose of molesting or
harassing the other; or from contacting the other, in person or
by telephone, for the purpose of harassment or threats; or from
harassing or verbally abusing the other in a public place;
(10) The court may order either party to take necessary
steps to transfer utility accounts and other accounts for
recurring expenses from the name of one party into the name of
the other party or from the joint names of the parties into the
name of one party. Nothing contained in this subdivision shall
affect the liability of the parties for indebtedness on any such
account incurred before the transfer of such account.
(c) When an annulment or divorce is denied, the court shall
retain jurisdiction of the case and may order all or any portion
of the relief provided for in subsections (a) and (b) of this
section which has been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in this state
upon constructive service of process and personal jurisdiction is
thereafter obtained of the defendant in such case, the court may
order all or any portion of the relief provided for in subsections (a) and (b) of this section which has been demanded
or prayed for in the pleadings.
(e) After the entry of an order pursuant to the provisions
of this section, the court may revise the order concerning the
maintenance of the parties and enter a new order concerning the
same, as the circumstances of the parties may require.
The court may also from time to time afterward, upon motion
of either of the parties and upon proper service, revise such
order to grant relief pursuant to subdivision (9), subsection (b)
of this section, and enter a new order concerning the same, as
the circumstances of the parties and the benefit of children may
require. The court may also from time to time afterward, upon
the motion of either of the parties or other proper person having
actual or legal custody of the minor child or children of the
parties, revise or alter the order concerning the custody and
support of the children, and make a new order concerning the
same, issuing it forthwith, as the circumstances of the parents
or other proper person or persons and the benefit of the children
may require:
Provided, That all orders modifying child support
shall be in conformance with the requirements of support
guidelines promulgated pursuant to article one-b, chapter
forty-eight-a of this code:
Provided, however, That an order
providing for child support payments may be revised or altered
for the reason, inter alia, that the existing order provides for child support payments in an amount that is less than eighty-five
percent or more than one hundred fifteen percent of the amount
that would be required to be paid under the child support
guidelines promulgated pursuant to the provisions of said
section.
In granting relief under this subsection, the court may,
when other means are not conveniently available, alter any prior
order of the court with respect to the distribution of marital
property, if such property is still held by the parties, and if
necessary to give effect to a modification of alimony, child
support or child custody or necessary to avoid an inequitable or
unjust result which would be caused by the manner in which the
modification will affect the prior distribution of marital
property.
(f) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the death of the payor party or to cease in such
event. When alimony is to be paid pursuant to the terms of a
separation agreement which does not state whether the payment of
alimony is to continue beyond the death of the payor party or is
to cease, or when the parties have not entered into a separation
agreement and alimony is to be awarded, the court shall
specifically state as a part of its order whether such payments of alimony are to be continued beyond the death of the payor
party or cease.
(g) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the remarriage of the payee party or to cease in
such event. When alimony is to be paid pursuant to the terms of
a separation agreement which does not state whether the payment
of alimony is to continue beyond the remarriage of the payee
party or is to cease, or when the parties have not entered into
a separation agreement and alimony is to be awarded, the court
shall specifically state as a part of its order whether such
payments of alimony are to be continued beyond the remarriage of
the payee party or cease.
(h) In addition to the disclosure requirements set forth in
section thirty-three of this article, the court may order
accounts to be taken as to all or any part of marital property or
the separate estates of the parties and may direct that the
accounts be taken as of the date of the marriage, the date upon
which the parties separated or any other time in assisting the
court in the determination and equitable division of property.
(i) In determining whether alimony is to be awarded, or in
determining the amount of alimony, if any, to be awarded under
the provisions of this section, the court shall consider and compare the fault or misconduct of either or both of the parties
and the effect of such fault or misconduct as a contributing
factor to the deterioration of the marital relationship.
However, alimony shall not be awarded when both parties prove
grounds for divorce and are denied a divorce, nor shall an award
of alimony under the provisions of this section be ordered which
directs the payment of alimony to a party determined to be at
fault, when, as a grounds granting the divorce, such party is
determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime
which is a felony, subsequent to the marriage if such conviction
has become final; or
(3) To have actually abandoned or deserted his or her spouse
for six months.
(j) Whenever under the terms of this section or section
thirteen of this article a court enters an order requiring the
payment of alimony or child support, if the court anticipates the
payment of such alimony or child support or any portion thereof
to be paid out of "disposable retired or retainer pay" as that
term is defined in 10 U.S.C. §1408, relating to members or former
members of the uniformed services of the United States, the court
shall specifically provide for the payment of an amount,
expressed in dollars or as a percentage of disposable retired or retainer pay, from the disposable retired or retainer pay of the
payor party to the payee party.
(k)(1) In determining which party should be granted primary
custody of minor children pursuant to a divorce, the court,
without consideration as to gender, shall first determine who the
primary caretaker of the child or children is. A presumption at
law shall be observed that the primary caretaker is the favored
parent in determining the awarding of custody of minor children.
Next the court shall consider whether the children are of tender
years or not. The court, in determining which natural or
adoptive parent is the primary caretaker, shall consider relevant
factors demonstrating which parent has taken primary
responsibility for the performance of various caring and
nurturing functions, including, but not limited to, the
following: (A) Preparing and planning meals; (B) bathing,
grooming and dressing; (C) purchasing, cleaning and care of
clothes; (D) medical care, including nursing and trips to
physicians; (E) arranging for social interaction among peers
after school, such as transporting to friends' houses or, for
example, to girl or boy scout meetings; (F) arranging alternative
care such as babysitting, day care and the like; (G) putting
child to bed at night, waking child in the morning; (H)
disciplining relative to teaching general manners and toilet
training; (I) educating as to religious, cultural and social aspects of life; and (J) teaching elementary skills such as
reading, writing and arithmetic.
(2) After determining which party is the primary caretaker
the court shall next determine if the primary caretaker meets the
minimum objective standard for being a fit parent based on
whether he or she is at fault in the dissolution of the marriage,
provides emotional support, protection from physical and
emotional harm or abuse, routine cleanliness and nourishing food.
In the event the court determines that the primary caretaker does
not meet the minimum objective standard, the presumption favoring
the primary caretaker parent shall not apply. Otherwise, in the
case of a child of tender years, the primary caretaker shall be
awarded primary custody.
(3) If a child, not of tender years, who is old enough to
formulate an opinion about his or her own custody states a
preference concerning custody, the trial court is entitled to
receive the opinion and accord it the weight as he or she deems
appropriate. When the trial court finds a child, not of tender
years, old enough to formulate an opinion, but under the age of
fourteen, and the child indicates, in the court's opinion, a
justified desire to live with the parent who is not the primary
caretaker, the court may award the child to that parent, unless
it is not in the best interest of the child to do so. The
relevant time for determining which parent is the primary caretaker, is the period in which the parties seperate.
(l) The parties to the proceeding shall be granted joint
legal custody of the child or children involved, unless one of
the parties demonstrates, by clear and convincing evidence, that
such joint legal custody is not in the best interest of the child
or children involved in the proceeding.
(k) m Any order which provides for the custody or support of
a minor child shall include:
(1) The name of the custodian;
(2) The amount of the support payments;
(3) The date the first payment is due;
(4) The frequency of the support payments;
(5) The event or events which trigger termination of the
support obligation;
(6) A provision regarding wage withholding;
(7) The address where payments shall be sent;
(8) A provision for medical support; and
(9) When child support guidelines are not followed, a
specific written finding pursuant to section fourteen, article
one-b, chapter forty-eight-a of this code.
(l) (n) (1) Unless the best interests of the child require
otherwise, every final order and every modification order which
provides for the custody of a minor child of the parties shall
also provide for the following:
(A) The custodial parent shall be required to authorize
school authorities in the school in which the child is enrolled
to release to the noncustodial parent copies of any and all
information concerning the child which would otherwise be
properly released to the custodial parent;
(B) The custodial parent shall be required, promptly after
receipt, to transmit to the noncustodial parent a copy of the
child's grades or report card and copies of any other reports
reflecting the status or progress of the child;
(C) The custodial parent shall be required, when
practicable, to arrange appointments for parent-teacher
conferences at a time when the noncustodial parent can be
present;
(D) The custodial parent shall be required to authorize
medical providers to release to the noncustodial parent copies of
any and all information concerning medical care provided to the
child which would otherwise be properly released to the custodial
parent;
(E) The custodial parent shall be required to promptly
inform the noncustodial parent of any illness of the child which
requires medical attention; or, if the child is in the actual
physical custody of the noncustodial parent during a period of
visitation, the noncustodial parent shall be required to promptly
inform the custodial parent of any illness of the child which requires medical attention;
(F) The custodial parent shall be required to consult with
the noncustodial 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 such
emergency medical procedures:
Provided, That the same duty to
inform the custodial parent applies to the noncustodial parent in
the event that the emergency medical procedures are required
while the child is in the physical custody of the noncustodial
parent during a period of visitation:
Provided, however, That
nothing contained herein shall be deemed to alter or amend 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) In the event a custodial parent shall fail or refuse to
authorize the release of school or medical records as provided
for by subdivision (1) of this subsection, then upon the ex parte
application of the noncustodial parent, the family law master
shall prepare an order for entry by the circuit court which
appoints the family law master as a special commissioner
authorized to execute a consent for the release of such records and direct it to the appropriate school authorities or medical
providers.
NOTE: The purpose of this bill is to codify the factors set
forth in Garska v. McCoy that a circuit court should consider in
determining child custody in divorces. Utilizing fault as a
consideration in child custody. Defining the relevant time
period when making a primary caretaker determination. Requiring
joint legal custody unless shown that it otherwise would not be
in the best interest of the child.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.