H. B. 2694
(By Delegates Boggs, Webster, Iaquinta, Ferro,
Wooton, Schoen, Tabb, Fleischauer, Schadler,
Hamilton and Hutchins)
(Originating in the Committee on the Judiciary)
[February 25, 2009]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto two new sections, designated §48-1-233.3 and
§48-1-233.4; to amend said code by adding thereto a new
section, designated §48-9-404; to amend and reenact §48-11-106
of said code; and to amend said code by adding thereto a new
section, designated §48-11-108, all relating to modification
of custodial rights for parent's have been deployed for
military service; requiring that any such order is only a
temporary order; providing for temporary modification of child
support during the deployment.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections, designated §48-11-108; that
said code be amended by adding thereto a new section, designated
§48-9-404; that §48-11-106 of said code be amended and reenacted;
and that said code be amended by adding thereto a new section,
designated §48-11-108, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-233.3. Military parent defined.
"Military parent" means a natural parent or adoptive parent of
a child under the age of eighteen whose parental rights have not
been terminated by a court of competent jurisdiction.
§ 48-1-233.4. Military service or service defined.
(a) In the case of a parent who is a member of the Army, Navy,
Air Force, Marine Corps, Coast Guard, or a Reserve component of
these services, "military service or service" means a deployment
for combat operations, a contingency operation, or a natural
disaster based on orders that do not permit a family member to
accompany the member on the deployment.
(b) In the case of a parent who is a member of the National
Guard, "military service or service" means service under a call to
active service authorized by the President of the United States or
the Secretary of Defense for a period of more than thirty
consecutive days pursuant to 32 U.S.C. 502(f) for purposes of
responding to a national emergency declared by the President and
supported by federal funds.
(c) "Military service or service" includes a period during
which a military parent remains subject to deployment orders and
remains deployed on account of sickness, wounds, leave, or other
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.
PART 4. MODIFICATION OF PARENTING PLAN.
§48-9-404. Modification of a parenting plan due to military
(a) If a military parent is required to be separated from a
child due to military service, a court shall not enter a final
order modifying the terms of an existing parenting plan until
ninety days after the military parent is released from military
service. A military parent's absence or relocation because of
military service must not be the sole factor supporting a change in
circumstance or grounds sufficient to support a permanent
modification of an existing parenting plan.
(b) A parenting plan establishing the terms of custody or
visitation in place at the time a military parent is called to
military service may be temporarily modified to make reasonable
accommodation for the parties because of the military parent's
(c) A temporary parenting plan pursuant to this section must
provide that the military parent has custodial responsibility of
the child during a period of leave granted to the military parent
during their military service. If a temporary parenting plan is not
issued pursuant to this section, the nonmilitary custodial parent
shall make the child or children reasonably available to the
military parent when the military parent has leave to ensure that
the military parent has reasonable custodial responsibility and is able to exercise custodial responsibility of the child or children.
(d) If there is no existing parenting plan or order
establishing the terms of custody or visitation and it appears that
military service is imminent, upon motion by either parent, the
court shall expedite a temporary hearing to establish a temporary
parenting plan to ensure the military parent has access to the
child, to establish support, and provide other appropriate relief.
ARTICLE 11. SUPPORT OF CHILDREN
§48-11-106. Expedited process for modification.
(a) An expedited process for modification of a child support
order may be utilized if:
(1) Either parent experiences a substantial change of
circumstances resulting in a decrease in income due to loss of
employment or other involuntary cause;
(2) An increase in income due to promotion, change in
employment or reemployment;
(3) Other such change in employment status; or
(4) If a military parent is called to military service
(b) The party seeking the recalculation of support and
modification of the support order shall file a description of the
decrease or increase in income and an explanation of the cause of
the decrease or increase on a standardized form to be provided by
the secretary-clerk or other employee of the family court. The
standardized form shall be verified by the filing party. Any
available documentary evidence shall be filed with the standardized
form. Based upon the filing and information available in the case record, the amount of support shall be tentatively recalculated.
(c) The secretary-clerk shall serve a notice of the filing, a
copy of the standardized form and the support calculations upon the
other party by certified mail, return receipt requested, with
delivery restricted to the addressee, in accordance with rule
4(d)(1)(D) of the West Virginia rules of civil procedure. The
secretary-clerk shall also mail a copy, by first-class mail, to the
local office of the bureau for child support enforcement for the
county in which the family court is located in the same manner as
original process under rule 4(d) of the rules of civil procedure.
(d) The notice shall fix a date fourteen days from the date of
mailing and inform the party that unless the recalculation is
contested and a hearing request is made on or before the date
fixed, the proposed modification will be made effective. If the
filing is contested, the proposed modification shall be set for
hearing; otherwise, the court shall enter an order for a judgment
by default. Either party may move to set aside a judgment by
default, pursuant to the provisions of rule 55 or rule 60(b) of the
rules of civil procedure.
(e) If an obligor uses the provisions of this section to
expeditiously reduce his or her child support obligation, the order
that effected the reduction shall also require the obligor to
notify the obligee of reemployment, new employment or other such
change in employment status that results in an increase in income.
If an obligee uses the provisions of this section to expeditiously
increase his or her child support obligation, the order that effected the increase shall also require the obligee to notify the
obligor of reemployment, new employment or other such change in
employment status that results in an increase in income of the
(f) The supreme court of appeals shall develop the
standardized form required by this section.
§48-11-108. Modification of support based on military service.
(a) If a military parent is called to military service, either
parent may file a notice of activation of military service and a
request for an expedited modification of a support order pursuant
to section one hundred six of this article. In the petition, the
parent must cite the basis for modifying the support order and the
military parent's change in financial circumstances supporting the
(b) The court shall temporarily modify the amount of child
support for the duration of the military parent's military service
pursuant to the provisions of section fifteen of this article, if
there is a substantial change in circumstances based on changes in
income and earning capacity of the military parent during military
service. An increase or decrease in income or earning capacity of
a military parent due to military service may only be used to
calculate support during the period of military service and must
not be considered a permanent increase in wages or earning
capacity. The effective date for a temporary modification must be
the date the military parent begins military service.
(c) Upon return from military service, the military parent's child support obligation prior to a temporary modification is
automatically reinstated, effective on the date the military parent
is released from service. Within ninety days of the military
parent's release from service, either parent may make a subsequent
request for modification to correspond to a change in the military
parent's nonservice related income or earning capacity. A
modification must be based upon the income or earning capacity of
the military parent following the period of military service.
(d) Except for modifying a child support obligation during
military service pursuant to this section, a military parent's
income during military service must not be used to determine the
military parent's income or earning capacity.