Senate Bill No. 674
(By Senator Sprouse)
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[Introduced February 23, 2004; referred to the Committee on the
Judiciary.]
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A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §48-10A-101 and
§48-10A-102; and to amend and reenact §51-2A-2 of said code,
all relating to family court jurisdiction generally; and
providing a special habeas corpus proceeding for grandparents
to obtain visitation or custody in respect to certain infant
grandchildren.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §48-10A-101 and
§48-10A-102; and that §51-2A-2 of said code be amended and
reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 10A. GRANDPARENT CHILD CUSTODY PROCEEDINGS.
§48-10A-101. Legislative findings.
The Legislature hereby finds that with an increasing number of
children living in grandparent headed households in this state, grandparents play a special role in the lives of their
grandchildren and are increasingly functioning as caregivers in the
lives of their grandchildren. In recognition of this critical role
that many grandparents play in the lives of their grandchildren,
the Legislature finds it necessary to provide guidance regarding
the ability of grandparents to obtain standing in custody
proceedings involving their grandchildren. This guidance is in no
way intended to limit the state of the law as it relates to the
ability of any third party to obtain standing in custody
proceedings between the third party and the child?s birth parent or
parents.
§48-10A-102.
Special proceeding or habeas corpus to obtain
visitation or custody in respect to certain
infant grandchildren.
Where either or both of the parents of a minor child, residing
within this state, is or are deceased, or where circumstances show
that conditions exist which equity would see fit to intervene, a
grandparent or the grandparents of such child may apply to the
family court by commencing a special proceeding for a writ of
habeas corpus to have the child brought before the court; and on
the return thereof, the court, by order, after due notice to the
parent or any other person or party having the care, custody, and
control of the child, to be given in the manner as the court
prescribes, may make any order as the best interests of the child
may require, for visitation rights for the grandparent or
grandparents in respect to the child.
Where a grandparent or the grandparents of a minor child,
residing within this state, can demonstrate to the satisfaction of
the family court the existence of extraordinary circumstances, the
grandparent or grandparents of the child may apply to the family
court by commencing a special proceeding for a writ of habeas corpus
to have the child brought before the court; and on the return
thereof, the court, by order, after due notice to the parent or any
other person or party having the care, custody, and control of the
child, to be given in the manner as the court prescribes, may make
any order as the best interests of the child may require, for
custody rights for the grandparent or grandparents in respect to the
child. An extended disruption of custody, as the term is defined
in this section, shall constitute an extraordinary circumstance.
For the purposes of this section "extended disruption of custody"
includes, but is not be limited to, a prolonged separation of the
respondent parent and the child for at least twenty-four continuous
months during which the parent voluntarily relinquished care and
control of the child and the child resided in the household of the
petitioner grandparent or grandparents: Provided, That the court
may find that extraordinary circumstances exist should the prolonged
separation have lasted for less than twenty-four months.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2A. FAMILY COURTS.
§51-2A-2. Family court jurisdiction; exceptions; limitations.
(a) The family court shall exercise jurisdiction over the
following matters:
(1) All actions for divorce, annulment or separate maintenance
brought under the provisions of article three, four or five, chapter
forty-eight of this code except as provided in subsections (b) and
(c) of this section;
(2) All actions to obtain orders of child support brought under
the provisions of articles eleven, twelve and fourteen, chapter
forty-eight of this code;
(3) All actions to establish paternity brought under the
provisions of article twenty-four, chapter forty-eight of this code
and any dependent claims related to such actions regarding child
support, parenting plans or other allocation of custodial
responsibility or decision-making responsibility for a child;
(4) All actions for grandparent visitation brought under the
provisions of article ten, chapter forty-eight of this code and all
actions for grandparent custody brought under the provisions of
article ten-a, chapter forty-eight of this code;
(5) All actions for the interstate enforcement of family
support brought under article sixteen, chapter forty-eight of this
code and for the interstate enforcement of child custody brought
under the provisions of article twenty, chapter forty-eight of this
code;
(6) All actions for the establishment of a parenting plan or
other allocation of custodial responsibility or decision-making
responsibility for a child, including actions brought under the
uniform child custody jurisdiction and enforcement act, as provided
in article twenty, chapter forty-eight of this code;
(7) All petitions for writs of habeas corpus wherein the issue
contested is custodial responsibility for a child;
(8) All motions for temporary relief affecting parenting plans
or other allocation of custodial responsibility or decision-making
responsibility for a child, child support, spousal support or
domestic violence;
(9) All motions for modification of an order providing for a
parenting plan or other allocation of custodial responsibility or
decision-making responsibility for a child or for child support or
spousal support;
(10) All actions brought, including civil contempt proceedings,
to enforce an order of spousal or child support or to enforce an
order for a parenting plan or other allocation of custodial
responsibility or decision-making responsibility for a child;
(11) All actions brought by an obligor to contest the
enforcement of an order of support through the withholding from
income of amounts payable as support or to contest an affidavit of
accrued support, filed with the circuit clerk, which seeks to
collect an arrearage;
(12) All final hearings in domestic violence proceedings;
(13) Petitions for a change of name, exercising concurrent
jurisdiction with the circuit court.
(14) All proceedings for payment of attorney fees if the family
court judge has jurisdiction of the underlying action;
(15) All proceedings for property distribution brought under
article seven, chapter forty-eight of this code; and
(16) All proceedings to obtain spousal support brought under
article eight, chapter forty-eight of this code.
(b) If an action for divorce, annulment or separate maintenance
does not require the establishment of a parenting plan or other
allocation of custodial responsibility or decision-making
responsibility for a child and does not require an award or any
payment of child support, the circuit court has concurrent
jurisdiction with the family court over the action if, at the time
of the filing of the action, the parties also file a written
property settlement agreement executed by both parties.
(c) If an action for divorce, annulment or separate maintenance
is pending and a petition is filed pursuant to the provisions of
article six, chapter forty-nine of this code alleging abuse or
neglect of a child by either of the parties to the divorce,
annulment or separate maintenance action, the orders of the circuit
court in which the abuse or neglect petition is filed shall
supercede and take precedence over an order of the family court
respecting the allocation of custodial and decision-making
responsibility for the child between the parents. If no order for
the allocation of custodial and decision-making responsibility for
the child between the parents has been entered by the family court
in the pending action for divorce, annulment or separate
maintenance, the family court shall stay any further proceedings
concerning the allocation of custodial and decision-making
responsibility for the child between the parents and defer to the
orders of the circuit court in the abuse or neglect proceedings.
(d) A family court is a court of limited jurisdiction. A
family court is a court of record only for the purpose of exercising
jurisdiction in the matters for which the jurisdiction of the family
court is specifically authorized in this section and in chapter
forty-eight of this code. A family court may not exercise the
powers given courts of record in section one, article five, chapter
fifty-one of this code or exercise any other powers provided for
courts of record in this code unless specifically authorized by the
Legislature. A family court judge is not a "judge of any court of
record" or a "judge of a court of record" as the terms are defined
and used in article nine of this chapter.
NOTE: The purpose of this bill is to provide a special habeas
corpus proceeding for grandparents to obtain visitation or custody
in respect to certain infant grandchildren.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§§48-10A-101 and 48-10A-102 are new; therefore, strike-throughs
and underscoring have been omitted.