SB316 SUB1 Senate Bill 316 History

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SB316 SUB1 SB316 SUB1 2-22


Senate Bill No. 316

(By Senators Love and Kessler)


[Originating in the Committee on Judiciary;

reported February 22, 2008.]


A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §48-9A-101, §48-9A-102, §48-9A-103, §48-9A-104, §48-9A-105 and §48-9A-106, all relating to Joint Parenting Act; custody of children after divorce; providing certain rebuttable presumptions concerning custody; adding procedures and criteria relating to determining the custody of children; addressing relocation of parents; addressing certain tax implications; and including contempt provisions.

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 §48-9A-101, §48-9A-102, §48-9A-103, §48-9A-104, §48-9A-105 and §48-9A-106, all to read as follows:
§48-9A-101. Intent and findings.

The Legislature, recognizing the long history of traditional and statutory protections afforded child and parent bonds and recognizing the fundamental liberty interest parents enjoy respecting the care, custody and companionship of their children, finds and declares the following with respect to the intent of this state's statutes related to marriage, family and marital dissolution:
(1) That an intact, involved two-parent home provides the optimal environment through which children grow into productive and responsible adult citizens;
(2) That parents are the primary "polestar" with respect to developing their children. Our society, state and statutes are secondary structures designed to support, not supplant, both parents in their role as the primary shapers of their children;
(3) That mothers and fathers provide unique and invaluable contributions towards the development of their children. Each parent's contributions to the upbringing of their children are indistinguishable and equally necessary to assure children the best opportunity to develop into healthy citizens;
(4) That children should be separated from their parents only under the most compelling and unusual circumstances necessary to protect the child from substantial and imminent harm;
(5) That children have frequent and continuing physical contact with both parents under joint legal and physical custody arrangements when the parents live separately including after parental separation or dissolution of marriage. The proper role of the state in this situation is to interfere to the least degree in familial relationships with the specific purpose of preserving maximum time allocations among parents and their children;
(6) That parents may, and should be encouraged to, reach any agreement mutually acceptable to them regarding their parenting time allocations as may reflect the individual circumstances of the parents. In the event parents cannot reach agreement on the parenting arrangement, it is the specific intent of the statute that parents have a rebuttable presumption of equal time with the children;
(7) That the judiciary in contested custody proceedings demonstrates consistent application of the presumption so that litigants develop no perception of advantage in proceeding to an adversarial hearing on custody matters;
(8) That this article discourages children from being alienated or disenfranchised from their parents' lives by the geographical relocation away from either parent or through the interference of either parent;
(9) That this article establishes clear legislative policy regarding interference with the relationship of children with their parents when parents live separately; and
(10) In accordance with these findings, the Legislature of this state declares public policy is furthered, and its specific intent that a child's well-being is effected, by recognizing both parent's fundamental liberty interest in the care, custody and companionship of their children.
§48-9A-102. Parenting.
(a) In cases of marital dissolution or unmarried parentage, it is the policy of this state that both parents enjoy a rebuttable presumption of joint legal and physical custody of their children. Joint physical custody of the children is defined as equal time-sharing.
(b) The burden of overcoming the presumption rests on the parent challenging the presumption. The presumption may be overcome only by demonstrating an unfitness of the parent being challenged that would cause substantial harm to the children. The clear and convincing evidentiary standard shall be used in making a fitness determination.
(c) The court shall require parents to prepare and submit a parenting plan reflecting parental preferences and agreement on the matters of substance concerning the children's education, upbringing, religious training and residential time sharing allocations, in any manner the parents jointly agree is acceptable to them prior to any permanent custody hearing.
(d) Each plan will contain provisions which provide alternative methods for resolving issues or modifying plans prior to returning to court. The goal of this provision is to reduce litigation rates by encouraging parties to reach agreement outside the courtroom.
(e) The court shall ratify the parenting plan submitted by the parents unless the court demonstrates the proposed plan does not provide the children opportunity to maintain a sufficient relationship with both parents or poses a threat of imminent or substantial harm to the child(ren). Any such finding of the court as justification to overrule the parenting plan must contain written findings of fact and conclusions of law.
(f)Should the parents fail to submit a parenting plan prior to the permanent custody hearing, the court shall consider the parenting arrangements under the temporary orders as the basis for permanent orders. Parents may subsequently return to court for ratification of a mutually agreed parenting plan if they have not previously submitted such a plan.
(g) During the pendency of any custody case, if both parents were residing in the home before filing for separation or divorce, any temporary orders issued shall maintain an equal time-share allocation between both parents and their children. Both parents shall enjoy joint legal and physical custody of the children while any temporary order is in effect.
(h) If both parents were not residing together in the home before filing for custody, then any temporary orders shall include a reasonable, specified time-table to establish an equal time-share allocation as soon as possible.

(i) Allegations of substance, spousal or child abuse or neglect and any subsequent issuance of protective orders are not sufficient to cause cessation or reduction of parent-child contact. Only a written finding of substantiated abuse is sufficient to allow the court to deviate from an equal time-share arrangement and award custody to one parent. An allegation of abuse is considered substantiated if affirmed using the clear and convincing evidentiary standard. In no instance may the court limit parent-child contact during the pendency of custody determinations absent compelling necessity to prevent substantial and imminent harm to the child.
(j) Knowingly making false allegations of child or spousal abuse is sufficient grounds to challenge parental fitness of the accuser. Allegations raised in the context of divorce or custody proceedings deserve heightened scrutiny as to their veracity.
(k) The state shall
develop and provide published guidelines for individuals accused of spousal or child abuse in conjunction with custody cases to assure due process and equal protection of law to the accused.
(l) The state shall consider all abuse allegations as criminal complaints affording the accused all rights and due process of law available to those criminally accused.
(m) The court shall require parents to prepare and submit a parenting plan to the court reflecting parental preferences and agreement on the matters of substance concerning the children's education, upbringing and religious training.
(n) The parents shall share decision-making authority and responsibility as to the important decisions affecting the child's welfare and when parents are unable to agree, they will submit to and abide by the decision of a preselected mediator.
(o) The court, in making a determination of parental fitness pursuant to this section shall consider and evaluate all the following factors:
(1) The capacity and disposition of the parents to give the child love, affection, guidance and protection;
(2) The capacity and disposition of the parents to continue the academic and religious education of the child;
(3) The capacity and disposition of the parents to provide food, clothing and medical care;
(4) The mental and physical health of the parents and other household members. When mental health evaluations are requested of either parent and the court orders an evaluation, then the evaluation shall be required of both parents;
(5) The home, school and community behavior of the child; and
(6) The willingness and ability of each of the parents to demonstrate facilitation and encouragement of a close and continuing relationship between the child and the other parent.
(7) In any adversarial custody hearing, the judge shall provide written findings of fact and conclusions of law when entering any order not reflecting maintenance of the rebuttable presumption of joint legal and physical custody and written findings that enumerate which of the factors set forth in this section are applicable and by what evidence these factors were demonstrated.
§48-9A-103. Relocation.
(a) Where both parents enjoy any form of parenting or visitation time with the children, relocation by either parent with the children may only take place by joint agreement of both parents. In the absence of a joint relocation agreement, the burden of overcoming the presumption against relocation is on the relocating parent.
(b) The relocating parent shall file, with the clerk of the court that issued the custody order or that has current jurisdiction over custody proceedings, a notice of intent to relocate and a revised parenting plan and send a copy of the notice and revised plan by registered mail to the nonrelocating parent no later than ninety days before the date that the relocating parent intends to move.
(c) No later than thirty days after receipt of the notice from the relocating parent, the nonrelocating parent must file notice of objection and a revised parenting plan to preserve the presumption against relocation with the children. Both the relocating and the nonrelocating parent's revised parenting plans shall be submitted to a preselected mediator. If the mediator is unable to resolve the parenting plan differences, then the court may issue a revised parenting plan by written findings, after an evidentiary hearing for which notice has been provided to both parents, in accordance with the considerations set forth in this section. The relocating parent has the burden of proof at the evidentiary hearing.
(d) If the nonrelocating parent does not file a notice of objection, the court may approve the relocation with the children.
(e) If relocating parent moves with the children before a signed, revised parenting plan is in place, they are guilty of contempt of court and subject to sanctions as determined by the court.
(f) If uncontested, a court may approve the request upon written stipulation of both parties, without the requirement of a hearing.
(g) In determining whether the relocating parent has overcome the presumption against relocation with the children, the court shall give equal consideration to all of the following:
(1) Whether the child will lose substantial contact, joy and rearing with the nonrelocating parent;
(2) Whether the relocation with the children would improve the general quality of life for the children, giving primary consideration to the disruption, caused to the day-to-day relationship between the nonrelocating parent and the children;
(3) The relocating parent's motives for seeking the relocation;
(4) Whether the costs of transportation or revised access time is financially affordable by both parents;
(5) Whether the relocation with the children will cause hardship or undue burden on the nonrelocating parent; and
(6) Access to extended family support; and
(7) The impact on the child including whether the relocation is harmful to health or well-being of the child.
§48-9A-104. Parenting time contempt.
(a) When one parent willfully prevents the other parent from their share of time with the children, the court shall in all cases, absent clear and convincing evidence written in the record to justify a denial, hold the violating parent in contempt of court and order the violating parent to give compensatory time to the other parent equivalent to the lost time and shall additionally order one of the following remedies:
(1) Payment of the expenses and attorney's fees of the parent bringing the contempt action;
(2) A five hundred dollar minimum fine;
(3) Require a bond to assure future compliance with visitation orders;
(4) Confinement in jail; or
(5) A change in custody.
(b) The court may order any of the following additional remedies as appropriate:
(1) Requiring participation of the violating parent in a counseling program about the importance of the children's access to the other parent; or
(2) Order the violating parent to pay the cost of counseling to reestablish the parent-child relationship with the other parent.
§48-9A-105. Financial responsibilities; civil liability; jurisdiction; evidence; recording of meetings.

(a) Each parent is financially liable for their own attorney's fees and the relocating parent is liable for all court costs. Both parents shall share equally all mediation costs.
(b) Where both parents are providing joint shared parenting of their children, the parents shall alternate the dependent tax deductions, exemptions and credits each year. When one parent does not abide by this order, they owe a civil liability to the other parent in the amount of the increase in the other parent's tax liability and the other parent is eligible to claim the dependent tax deductions, exemptions and credits in the following two tax years.
(c) All law-enforcement officers are permitted and required to enforce all court orders arising under this article.
(d) All unedited video or tape recordings are admissible as evidence in court.
(e) Meetings, hearings or conferences may not be held without properly functioning video or audio recording devices provided by the court.
(f) All recorded meetings, hearings or conferences shall be reproduced in unedited form at the request of any of the parties to the action and provided to the requesting parties within ten days of the request.
§48-9A-106. Applicability.
If the provisions of this article conflict with any other provisions of this chapter, the provisions of this article apply.
NOTE: The purpose of this bill is to enact a Joint Parenting Act. The bill would establish a rebuttable presumption of joint legal and physical custody of their children in child custody matters. It outlines procedures and criteria to be used when determining the custody of children. It also provides procedures addressing relocation of parents after divorce.

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