HB2747 INTR

H. B. 2747

(By Delegates Boggs, Yeager and Kuhn)

[Introduced February 12, 1999; referred to the

Committee on the Judiciary then Finance.]

A BILL to amend chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-d, relating to the "Child Relocation Act of 1999;"definitions; applicability; notice of proposed relocation of child; notice of intended change of residential address of adult; mailing notice of proposed relocation or intended change of residential address; standard court order requiring notice; nondisclosure of relocation information in exceptional circumstances; failure to give notice of relocation or change of residential address; failure to obey court order to give notice of relocation; failure to object to notice of proposed relocation; objection to relocation of child; pleadings and affidavits regarding relocation; temporary orders; priority for hearing; evidentiary hearing; proposed relocation as a factor for modification; factors to determine contested relocation; factors not to be considered; burden of proof; posting security; sanctions for unwarranted or frivolous proposal or objection to relocation of child; and, application of factors at initial hearing.

Be it enacted by the Legislature of West Virginia:

That chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two-d, to read as follows:
ARTICLE 2D. CHILD RELOCATION ACT OF 1999.
48-2D-1. Definitions.

As used in this article, unless the context otherwise requires:

(a) "Change of residential address" means a change in the primary residence of an adult;

(b) "Person entitled to custody of a child" means a person so entitled by virtue of a court order or by an express agreement that is subject to court enforcement;

(c) "Person entitled to visitation with a child" means a person so entitled by virtue of a court order or by an express agreement that is subject to court enforcement;

(d) "Principal residence of a child" means:

(1) The location designated by a court to be the primary residence of the child;

(2) In the absence of a court order, the location at which the parties have expressly agreed that the child will primarily reside; or

(3) In the absence of a court order or an express agreement, the location, if any, at which the child, preceding the time involved, lived with the child's parents, a parent, or a person acting as parent for at least six consecutive months and, in the case of a child less than six months old, the location at which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.

(e) "Relocation" means a change in the principal residence of a child for a period of sixty days or more, but does not include a temporary absence from the principal residence.
§48-2D-2. Applicability.

(a) The provisions of this article apply to orders regarding custody of or visitation with children:

(1) After the effective date of this article; and

(2) Before the effective date of this article, if the existing custody or visitation order or enforceable agreement does not expressly govern the relocation of the child or there is a change in the primary residential address of an adult affected by the order.

(b) To the extent that a provision of this article conflicts with an existing order or enforceable agreement, this article does not apply to the terms of that order or agreement that governs relocation of the child or a change in the primary residential address of an adult.
§48-2D-3. Notice of proposed relocation of child.

Except as provided by section seven of this article, a person who has the right to establish the principal residence of the child shall notify every other person entitled to visitation with the child of a proposed relocation of the child's principal residence as required by section five of this article.
§48-2D-4. Notice of intended change of residential address of adult.
Except as provided by section seven, an adult entitled to visitation with a child must notify every other person entitled to residential custody of or visitation with the child of an intended change in the primary residential address of the adult as required by section five of this article.
§48-2D-5. Mailing notice of proposed relocation or intended change of residential address.

(a) Except as provided by section seven of this article, notice of a proposed relocation of the principal residence of a child or notice of an intended change of the primary residential address of an adult as provided in this article must be given by:

(1) First class mail to the last known address of the person to be notified;

(2) No later than:

(A) The sixtieth day before the date of the intended move or proposed relocation; or

(B) The tenth day after the date that the person knows the information required to be furnished by subsection (b), if the person did not know and could not reasonably have known the information in sufficient time to comply with giving a sixty day notice, and it is not reasonably possible to extend the time for relocation of the child.

(b) Except as provided by section seven of this article, the following information, if available, must be included with the notice of intended relocation of the child or change of primary residence of an adult:

(1) The intended new residence, including the specific address, if known;

(2) The mailing address, if not the same;

(3) The home telephone number, if known;

(4) The date of the intended move or proposed relocation;

(5) A brief statement of the specific reasons for the proposed relocation of a child, if applicable;

(6) A proposal for a revised schedule of visitation with the child, if any; and

(7) A warning to the nonrelocating parent that an objection to the relocation must be made within thirty days or the relocation will be permitted.

(c) A person required to give notice of a proposed relocation or change of residential address under this section has a continuing duty to provide a change in or addition to the information required by this section as that information becomes known.
§48-2D-6. Standard court order requiring notice.

(a) After the effective date of this article, an order issued by a court directed to a person entitled to custody of or visitation with a child shall include the following terms:

"You, as a party in this action, are ordered to notify every other party to this action of a proposed relocation of the child and the following information:

(1) The intended new residence, including the specific address, if known;

(2) The mailing address, if not the same;

(3) The home telephone number, if known;

(4) The date of the intended move or proposed relocation;

(5) A brief statement of the specific reasons for the proposed relocation; and

(6) A proposal for a revised schedule of visitation with the child."

(b) "You are further ordered to give notice of the proposed relocation; and change of residential address on or before the sixtieth day before a proposed change. If you do not know and could not have reasonably known of the change in sufficient time to provide a sixty day notice, you are ordered to give notice of the change on or before the tenth day after the date that you know of the change."

"Your obligation to furnish this information to every other party continues as long as you, or any other person, by virtue of this order, are entitled to custody of or visitation with a child covered by this order."

"Your failure to obey the order of this court to provide every other party with notice of information regarding the proposed relocation and change of residential address may result in this court's action to enforce the order, including the use of this court's power of contempt."

"In addition, your failure to provide notice of a relocation of the child may be taken into account in a modification of custody of or visitation with the child. Reasonable costs and attorney's fees also may be assessed against you if you fail to give the required notice."

"If you, as the nonrelocating parent, do not file a request with the court seeking a temporary or permanent order to prevent the relocation within thirty days after receipt of notice of the intent of the other party to relocate the residence of the child, relocation shall be authorized."
§48-2D-7. Nondisclosure of relocation information in exceptional circumstances.

(a) On a finding by the court that the health, safety or liberty of a person or a child would be unreasonably put at risk by the disclosure of the required identifying information in conjunction with a proposed relocation of the child or change of residence of an adult, the court may order that:

(1) The specific residential address and telephone number of the child or of the adult and other identifying information shall not be disclosed in the pleadings, other documents filed in the proceeding, or the final order, except for an in camera disclosure;

(2) The notice requirements provided by this article be waived to the extent necessary to protect confidentiality and the health, safety or liberty of a person or child; and

(3) Any other remedial action that the court considers necessary to facilitate the legitimate needs of the parties and the best interest of the child.

(b) If appropriate, the court may conduct an ex parte hearing under this section.
§48-2D-8. Failure to give notice of relocation or change of residential address.

The court may consider a failure to provide notice of a proposed relocation of a child as required by this article as:

(a) A factor in making its determination regarding the relocation of a child;

(b) A factor in determining whether custody or visitation should be modified;

(d) Sufficient cause to order the person seeking to relocate the child to pay reasonable expenses and attorney's fees incurred by the person objecting to the relocation.
§48-2D-9. Failure to obey court order to give notice of relocation.

In addition to the sanctions provided by section eight of this article, the court may make a finding of contempt if a party violates the notice requirement provided by section six of this article and may impose the sanctions authorized for disobedience of a court order.
§48-2D-10. Failure to object to notice of proposed relocation.

The person entitled to custody of a child may relocate the principal residence of a child after providing notice as provided by this article unless a parent entitled to notice files for injunctive relief seeking a temporary or permanent order to prevent the relocation within thirty days after receipt of the notice.
§48-2D-11. Objection to relocation of child.

(a) A parent entitled by court order or written agreement to visitation with a child may file an objection with the court objecting to a proposed relocation of the principal residence of a child and seek a temporary or permanent order to prevent the relocation.

(b) If relocation of the child is proposed, a nonparent entitled by court order or written agreement to visitation with a child may file a request with the court to obtain a revised schedule of visitation but may not object to the proposed relocation or seek a temporary or permanent order to prevent the relocation.

(c) A request for injunctive relief filed under this section must be filed within thirty days of receipt of notice of a proposed relocation.

(d) Except as otherwise specifically provided in this article, the rules of civil procedure apply to a proceeding seeking to prevent a proposed relocation.
§48-2D-12. Pleadings and affidavits regarding relocation.

(a) The request for an injunction, to prevent the relocation of a child shall be accompanied by an affidavit setting forth the specific factual basis upon which it is based.

(b) The party proposing to relocate the child may respond to a request to enjoin the proposed relocation by filing a counter-affidavit setting forth facts in support of the relocation.
§48-2D-13. Temporary Orders.

(a) The court may grant a temporary injunction restraining the relocation of a child, or order return of the child if a relocation has previously taken place, if the court finds:

(1) The required notice of a proposed relocation of a child was not provided in a timely manner and the parties have not presented an agreed-upon revised schedule for visitation with the child for the court's approval;

(2) The child already has been relocated without notice, agreement of the parties, or court approval; or

(3) From an examination of the evidence presented at the temporary hearing there is a likelihood that it will not approve the relocation of the primary residence of the child.

(b) The court may grant a temporary order permitting the relocation of the child pending final hearing if the court:

(1) Finds that the required notice of a proposed relocation of a child was provided in a timely manner and issues an order for a revised schedule for temporary visitation with the child; and

(2) Finds from an examination of the evidence presented at the temporary hearing there is a likelihood that it will approve the relocation of the primary residence of the child.
§48-2d-14. Priority for hearing.

A hearing to make any determination under the provisions of this article shall be accorded priority on the court's calender and docket.
§48-2D-15. Evidentiary hearing.

On the request of a party, the court shall hold a full evidentiary hearing on the relocation issue.
§48-2D-16. Proposed relocation as a factor for modification.

A proposed relocation of a child may be a factor in considering a change of custody.
§48-2D-17. Factors to determine contested relocation.

In reaching its decision regarding a proposed relocation, the court shall consider the following factors:

(a) The nature, quality, extent of involvement, and duration of the child's relationship with the party proposing to relocate and with the nonrelocation party, siblings, and other significant persons in the child's life;

(b) The age, developmental state, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;

(c) The feasibility of preserving the relationship between the nonrelocation party and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties;

(d) The child's preference, taking into consideration the age and maturity of the child;

(e) Whether there is an established pattern of conduct of the party seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party;

(f) Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to, financial or emotional benefit or educational opportunity;

(g) The reasons of each party for seeking or opposing the relocation; and

(h) Any other factor affecting the best interest of the child.
§48-2D-18. Factors not to be considered.

(a) If the court has issued a temporary order authorizing a party seeking to relocate a child to move before final judgment is issued, the court may not give undue weight to the temporary relocation as a factor in reaching its final decision.

(b) The court may not consider whether the party seeking relocation of the child has declared that he or she will not relocate if relocation of the child is denied.
§48-2D-19. Burden of proof.

The relocating party has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating party to show that the proposed relocation is not in the best interest of the child.
§48-2D-20. Posting security.

If relocation of a child is permitted, the court may require the party relocating the child to provide reasonable security guaranteeing that the court-ordered visitation with the child will not be interrupted or interfered with by the relocating party.
§48-2D-21. Sanctions for unwarranted or frivolous proposal or objection to relocation of child.

(a) After notice has been given to an opposing party and that party has had a reasonable opportunity to respond, the court may impose a sanction on a party proposing a relocation of the child or objecting to a proposed relocation of a child if it determines that the proposal was made or the objection was filed:

(1) To harass a person or to cause unnecessary delay or needless increase in the cost of litigation;

(2) Without being warranted by existing law or was based on frivolous argument; or

(3) Based on allegations and other factual contentions which had no evidentiary support nor, if specifically so identified, could not have been reasonably believed to be likely to have evidentiary support after further investigation.

(b) A sanction imposed under this section shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. The sanction may include directives of a nonmonetary nature, an order to pay a penalty into court, or, upon motion of the prevailing party an order directing payment to the other party of reasonable attorneys' fees and other expenses incurred as a direct result of the violation.
§48-2D-22. Application of factors at initial hearing.

If the issue of relocation is presented at the initial hearing to determine custody of and visitation with a child, the court shall apply the factors set forth in this article in making its initial determination.

NOTE: The purpose of this bill is to create legislation to address the competing parental interests that exist when the relocation of a child to a significantly farther geographical area by a custodial parent is intended or proposed. The bill includes sections that address the following: definitions; applicability; notice of proposed relocation of child; notice of intended change of residential address of adult; mailing notice of proposed relocation or intended change of residential address; standard court order requiring notice; nondisclosure of relocation information in exceptional circumstances; failure to give notice of relocation or change of residential address; failure to obey court order to give notice of relocation; failure to object to notice of proposed relocation; objection to relocation of child; pleadings and affidavits regarding relocation; temporary orders; priority for hearing; evidentiary hearing; proposed relocation as a factor for modification; factors to determine contested relocation; factors not to be considered; burden of proof; posting security; sanctions for unwarranted or frivolous proposal or objection to relocation of child; and, application of factors at initial hearing.

This article is new; therefore, strike-throughs and underscoring have been omitted.