HB 2666 Text

H. B. 2666

(By Delegate Eldridge)
[Introduced January 13, 2010; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact §48-1-202, §48-1-204, §48-1-205, §48-1-210, §48-1-228, §48-1-230, §48-1-237, §48-1-239, §48-1-244, §48-1-302, §48-1-303, §48-1-305 of the Code of West Virginia, 1931, as amended; to amend and reenact §48-9-101, §48-9-102, §48-9-201, §48-9-202, §48-9-203, §48-9-204, §48-9-205, §48-9-206, §48-9-207, §48-9-209, §48-9-401, §48-9-402, §48-9-403, §48-9-501, §48-9-601 of said code; and to amend and reenact §61-2-14d of said code, all relating to changing some processes and orders when determining child custody disputes; and providing misdemeanor and felony penalties if a person fails to make a reasonable, good faith attempt to return a minor child in a timely manner at the expiration of a lawful custody or visitation period.

Be it enacted by the Legislature of West Virginia:
That §48-1-202, §48-1-204, §48-1-205, §48-1-210, §48-1-228, §48-1-230, §48-1-237, §48-1-239, §48-1-244, §48-1-302, §48-1-303, §48-1-305 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §48-9-101, §48-9-102, §48-9-201, §48-9-202, §48-9-203, §48-9-204, §48-9-205, §48-9-206, §48-9-207, §48-9-209, §48-9-401, §48-9-402, §48-9-403, §48-9-501, §48-9-601 of said code be amended and reenacted; and that §61-2-14d of said code be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
PART 2. DEFINITIONS.
§48-1-202. Adjusted gross income defined.
(a) "Adjusted gross income" means gross income less the payment of previously ordered child support, spousal support or separate maintenance.
(b) A further deduction from gross income for additional dependents ~~may be~~ is allowed by the court if the parent has legal dependents other than those for whom support is being determined. An adjustment ~~may be~~ is used in the establishment of a child support order or in a review of a child support order. However, in cases where a modification is sought, the adjustment should not be used to the extent that it results in a support amount lower than the previously existing order for the children who are the subject of the modification. The court may elect to use the following adjustment because it allots equitable shares of support to all of the support obligor's legal dependents. Using the income of the support obligor only, determine the basic child support obligation (from the table of basic child support obligations in section 13-301 of this chapter) for the number of additional legal ~~dependents living with the support obligor. Multiply this figure by 0.75 and subtract this amount from the support obligor's gross income.~~ The court shall consider all of the obligor's dependents whether living with the obligor or others when calculating the child support obligation and shall calculate the support obligation as if all legal dependents were in the same family. Further, no child is considered less than any other and the obligation to one is the same as to any other.
(c) As used in this section, the term "legal dependents" means:
(1) Minor natural or adopted children who live with the parent or may be the subject of any other child support calculations whether living with the parent or others; and
(2) Natural or adopted adult children who are totally incapacitated because of physical or emotional disabilities and for whom the parent owes a duty of support.
§48-1-204. Arrearages or past due support defined.
"Arrearages" or "past due support" means the total of any matured, unpaid installments of child support required to be paid by an order entered or modified by a court of competent jurisdiction, or by the order of a magistrate court of this state, and shall stand, by operation of law, as a decretal judgment against the obligor owing such support. The amount of unpaid support shall bear interest from the date it accrued, at a rate of $10 upon $100 per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time. Interest is not added on any support obligation where the obligor can show good cause or has mitigating circumstances. Except as provided in rule twenty-three of rules of practice and procedure for family law and as provided in section three hundred two of this article, a child support order may not be retroactively modified so as to cancel or alter accrued installments of support.
§48-1-205. Attributed income defined.
(a) "Attributed income" means income not actually earned by a parent but which may be attributed to the parent because he or she is unemployed, is not working full time or is working below full earning capacity or has nonperforming or underperforming assets. Income may be attributed to a parent if the court evaluates the parent's earning capacity in the local economy (giving consideration to relevant evidence that pertains to the parent's work history, qualifications, education and physical or mental condition) and determines that the parent is unemployed, is not working full time or is working below full earning capacity intentionally with the purpose of reducing child support obligations. The court may not attribute additional income in cases where an obligor is underemployed or unemployed due to circumstances beyond their control. Income may also be attributed to a parent if the court finds that the obligor has nonperforming or underperforming assets that are a direct result of the obligor intentionally trying to reduce the amount of a child support obligation.
(b) If an obligor: (1) Voluntarily leaves employment or voluntarily alters his or her pattern of employment so as to be unemployed, underemployed or employed below full earning capacity; (2) is able to work and is available for full-time work for which he or she is fitted by prior training or experience; and (3) is not seeking employment in the manner that a reasonably prudent person in his or her circumstances would do, then an alternative method for the court to determine gross income is to attribute to the person an earning capacity based on his or her previous income. If the obligor's work history, qualifications, education or physical or mental condition cannot be determined, or if there is an inadequate record of the obligor's previous income, the court may, as a minimum, base attributed income on full-time employment (at forty hours per week) at the federal minimum wage in effect at the time the support obligation is established. In order for the court to consider attribution of income, it is not necessary for the court to find that the obligor's termination or alteration of employment was for the purpose of evading a support obligation.
(c) Income shall not be attributed to an obligor who is unemployed or underemployed or is otherwise working below full earning capacity if any of the following conditions exist:
(1) The parent is providing care required by the children to whom both of the parties owe a legal responsibility for support and such children are of preschool age or are handicapped or otherwise in a situation requiring particular care by the parent;
(2) The parent is pursing a plan of economic self-improvement which will result, within a reasonable time, in an economic benefit to the children to whom the support obligation is owed, including, but not limited to, self-employment or education: Provided, That if the parent is involved in an educational program, the court shall ascertain that the person is making substantial progress toward completion of the program;
(3) The parent is, for valid medical reasons, earning an income in an amount less than previously earned; or
(4) The court makes a written finding that other circumstances exist which would make the attribution of income inequitable: Provided, That in such case the court may decrease the amount of attributed income to an extent required to remove such inequity.
(d) The court may attribute income to a parent's nonperforming or underperforming assets, other than the parent's primary residence. Assets may be considered to be nonperforming or underperforming to the extent that they do not produce income at a rate equivalent to the current six-month certificate of deposit rate or such other rate that the court determines is reasonable unless the obligor made a good faith effort to utilize the assets in such a way as to expect them to perform at or above the equivalent rate but due to no fault of their own, the assets underperformed.
§48-1-210. Caretaker and caretaking functions defined.
(a) "Caretaker" means a person who performs one or more caretaking functions for a child. The term "caretaking functions" means activities that involve interaction with a child and the care of a child, including employment outside or inside of the home to provide for financial needs of the child and other family members. Caretaking functions also include the supervision and direction of interaction and care provided by other persons.
(b) Caretaking functions include the following:
(1) Performing functions that meet the daily physical and financial needs of the child. These functions include, but are not limited to, the following:
(A) Feeding;
(B) Dressing;
(C) Bedtime and wake-up routines;
(D) Caring for the child when sick or hurt;
(E) Bathing and grooming;
(F) Recreation and play;
(G) Physical safety; ~~and~~
(H) Transportation;
(I) Employment, inside or outside of the home to provide for the financial needs of the child and other family members.
(2) Direction of the child's various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence and maturation;
(3) Discipline, instruction in manners, assignment and supervision of chores and other tasks that attend to the child's needs for behavioral control and self-restraint;
(4) Arrangements for the child's education, including remedial or special services appropriate to the child's needs and interests, communication with teachers and counselors and supervision of homework;
(5) The development and maintenance of appropriate interpersonal relationships with peers, siblings and adults;
(6) Arrangements for health care, which includes making medical appointments, communicating with health care providers and providing medical follow-up and home health care;
(7) Moral guidance; and
(8) Arrangement of alternative care by a family member, baby-sitter or other child care provider or facility, including investigation of alternatives, communication with providers and supervision.
§48-1-228. Gross income defined.
(a) "Gross income" means all earned and unearned income. The word "income" means gross income unless the word is otherwise qualified or unless a different meaning clearly appears from the context. When determining whether an income source should be included in the child support calculation, the court shall consider the income source if it would have been available to pay child-rearing expenses had the family remained intact or, in cases involving a nonmarital birth, if a household had been formed.
(b) "Gross income" includes, but is not limited to, the following:
(1) Earnings in the form of salaries, wages, commissions, fees, bonuses, profit sharing, tips and other income;
(2) Any payment from a pension plan, an insurance contract, an annuity, social security benefits, unemployment compensation, supplemental employment benefits, workers' compensation benefits and state lottery winnings and prizes. These payments must be qualified as actual income for the purposes of state or federal income taxes and not payments received based on depletion of the current principal balance in those accounts;
(3) Interest, dividends or royalties;
(4) In kind payments in excess of those allowed by the IRS for income tax filing purposes such as business expense accounts, business credit accounts and tangible property such as automobiles and meals, to the extent that they provide the parent with property or services he or she would otherwise have to provide: Provided, That reimbursement of actual expenses incurred and documented shall not be included as gross income;
(5) Attributed income of the parent, calculated in accordance with the provisions of section one two hundred five;
(6) An amount equal to fifty percent of the average compensation paid for personal services as overtime compensation during the preceding thirty-six months: Provided, That overtime compensation may be excluded from gross income if the parent with the overtime income demonstrates to the court that the overtime work is voluntarily performed and that he or she did not have a previous pattern of working overtime hours prior to separation or the birth of a nonmarital child or if there has been a change of employment in that period of time which no longer requires or lends itself to overtime work;
(7) Income from self-employment or the operation of a business, minus ordinary and necessary expenses which are not reimbursable, and which are lawfully deductible in computing taxable income under applicable income tax laws, and minus FICA and Medicare contributions made in excess of the amount that would be paid on an equal amount of income if the parent was not self-employed: Provided, That the amount of monthly income to be included in gross income shall be determined by averaging the income from such employment during the previous thirty-six-month period or during a period beginning with the month in which the parent first received such income, whichever period is shorter, the court shall take into account any adverse conditions in the employment that may have adversely affected the most recent income of the self employed which are beyond their control and shall adjust the income accordingly;
(8) Income from seasonal employment or other sporadic sources: Provided, That the amount of monthly income to be included in gross income shall be determined by averaging the income from seasonal employment or other sporadic sources received during the previous thirty-six-month period or during a period beginning with the month in which the parent first received such compensation, whichever period is shorter: Provided however, That the seasonal employment is still available and the health of the individual will not be adversely affected by the additional overtime; and
(9) Spousal support and separate maintenance receipts.
~~(c) Depending on the circumstances of the particular case, the court may also include severance pay, capital gains and net~~ ~~gambling, gifts or prizes as gross income.~~
~~(d)~~ (c) "Gross income" does not include:
(1) Income received by other household members such as a new spouse;
(2) Child support received for the children of another relationship;
~~(3) Means-tested assistance such as temporary assistance for needy families, supplemental security income and food stamps; and~~
~~(4) A child's income unless the court determines that the child's income substantially reduces the family's living expenses.~~
§48-1-230. Income defined.
"Income" includes, but is not limited to, the following:
(1) Commissions, earnings, salaries, wages and other income due or to be due in the future to an individual from his or her employer and successor employers;
(2) Any payment due or to be due in the future to an individual from a profit-sharing plan, a pension plan, an insurance contract, an annuity, Social Security, unemployment compensation, supplemental employment benefits, workers' compensation benefits, state lottery winnings and prizes and overtime pay. These payments must be qualified as actual income for the purposes of state or federal income taxes and not payments received based on depletion of the current principal balance in those accounts;
(3) Any amount of money which is owing to an individual as a debt from an individual, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, any other state or a political subdivision of another state or any other legal entity which is indebted to the obligor, subject to those moneys being readily collectible;
(4) Any amount of money which is held by the Regional Jail Authority for an inmate in an inmate's concession account.
§48-1-237. Separate property defined.
"Separate property" means:
(1) Property acquired by a person before marriage;
(2) Property acquired by a person during marriage in exchange for separate property which was acquired before the marriage;
(3) Property acquired by a person during marriage, but excluded from treatment as marital property by a valid agreement of the parties entered into before or during the marriage;
(4) Property acquired by a party during marriage by gift, bequest, devise, descent or distribution;
(5) Property acquired by a party during a marriage but after the separation of the parties and before ordering an annulment, divorce or separate maintenance; or
(6) Any increase or decrease in the value of separate property as defined in subdivision (1), (2), (3), (4) or (5) of this section which is due to inflation or to a change in market value resulting from conditions outside the control of the parties.
§48-1-239. Shared parenting defined.
(a) "Shared parenting" means either basic shared parenting or extended shared parenting.
(b) "Basic shared parenting" means an arrangement under which one parent keeps a child or children ~~overnight~~ for less than thirty-five percent of the year and under which both parents contribute to the expenses of the child or children in addition to the payment of child support.
(c) "Extended shared parenting" means an arrangement under which each parent keeps a child or children ~~overnight~~ for more than thirty-five percent of the year and under which both parents contribute to the expenses of the child or children in addition to the payment of child support.
§48-1-244. Support defined.
"Support" means the payment of money, including interest:
(1) For a child or spouse, ordered by a court of competent jurisdiction, whether the payment is ordered in an emergency, temporary, permanent or modified order, the amount of unpaid support shall bear simple interest from the date it accrued, at a rate of ~~ten~~ four dollars upon $100 per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time. Interest is not added on any support obligation where the obligor can show good cause or has mitigating circumstances;
(2) To third parties on behalf of a child or spouse, including, but not limited to, payments to medical, dental or educational providers, payments to insurers for health and hospitalization insurance, payments of residential rent or mortgage payments, payments on an automobile or payments for day care; or
(3) For a mother, ordered by a court of competent jurisdiction, for the necessary expenses incurred by or for the mother in connection with her confinement or of other expenses in connection with the pregnancy of the mother.
PART 3. MISCELLANEOUS PROVISIONS RELATING TO DOMESTIC RELATIONS.
§48-1-302. Calculation of interest.
(a) Notwithstanding any other provisions of the code, if an obligation to pay interest arises under this chapter, the rate of interest is ~~five~~ four percent per annum and proportionate thereto for a greater or lesser sum, or for a longer or shorter time. Interest awarded shall only be simple interest and nothing in this section may be construed to permit awarding of compound interest. Interest accrues only upon the outstanding principal of such obligation.
(b) Notwithstanding any other provision of law, no court may award or approve prejudgment interest in a domestic relations action against a party unless the court finds, in writing, that the party engaged in conduct that would violate subsection (b), Rule 11 of the West Virginia Rules of Civil Procedure. If prejudgment interest is awarded, the court shall calculate prejudgment interest from the date the offending representation was presented to the court pursuant to subsection (a) of this section.
(c) Upon written agreement by both parties, an obligor may petition the court to enter an order ~~conditionally~~ suspending the collection of all or part of the interest that has accrued on past-due child support prior to the date of the agreement. ~~Provided,~~ ~~That said agreement shall also establish a reasonable~~ payment plan which is calculated to fully discharge all arrearages within twenty-four months. Upon successful completion of the payment plan, the court shall enter an order which permanently relieves the obligor of the obligation to pay the accrued interest. If the obligor fails to comply with the terms of the written agreement, then the court shall enter an order which reinstates the accrued interest.
(d) Amendments to this section enacted by the Legislature during the ~~two thousand six~~ 2009 regular session shall become effective January 1, ~~two thousand seven~~ 2010.
§48-1-303. Confidentiality of domestic relations court files.
(a) All orders in domestic relations actions entered in the civil order books by circuit clerks are public records.
(b) Upon the filing of a domestic relations action, all pleadings, exhibits or other documents, ~~other than~~ including orders, that are contained in the court file are ~~confidential and not~~ open for public inspection either during the pendency of the case or after the case is closed.
(c) When sensitive information has been disclosed during a hearing or in pleadings, evidence or documents filed in the record, the court may, sua sponte or upon motion of a party, order such information sealed in the court file. Sealed documents or court files can only be opened by order of a circuit or family court judge. Court records shall only be ordered sealed in the most compelling of situations where serious harm or injury may result from the disclosure of such information.
(d) The parties, their designees, their attorneys, a duly appointed guardian ad litem or any other person who has standing to seek modification or enforcement of a support order has the right to examine and copy any document in a confidential court file that has not been sealed by court order. Upon motion and for good cause shown, the court may permit a person who is not a party to the action to examine and copy any documents that are necessary to further the interests of justice.
(e) The clerk of the circuit court shall keep a written log of all persons who examine confidential documents as provided for in this section. Every person who examines confidential documents shall first sign the clerk's written log, except for a circuit judge or family court judge before whom the case is pending, or court personnel acting within the scope of their duties. The clerk shall record the time and date of every examination of confidential documents. The log must be retained by the clerk and must be available upon request for inspection by the circuit judge or the family court judge.
§48-1-305. Suit money, counsel fees and costs.
(a) Costs may be awarded to either party as justice requires and in all cases the court, in its discretion, may require payment of costs at any time and may suspend or withhold any order until the costs are paid. Costs of attorney fees are borne by each of the respective parties. If the costs are associated with regards to equitable distribution in dissolution of marriage cases then the fees are allocated to the individual party's share of the distribution. In no case shall one party be responsible for the other party's attorneys fees in cases of dissolution of marriage.
(b) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action. An order for temporary relief awarding attorney's fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of such fees and costs was previously ordered. If an appeal is taken or an intention to appeal is stated, the court may further order either party to pay attorney's fees and costs on appeal. Costs associated with subsequent hearings on matters related to child custody or other issues related to children shall also be borne by the individual parties except as outlined in subsection (c) below.
(c) When it appears to the court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.

ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.

PART 1. SCOPE; OBJECTIVES;
PARTIES AND PARENT EDUCATION CLASSES.

§48-9-101. Scope of article; legislative findings and declarations.

(a) This article sets forth principles governing the allocation of custodial and decision-making responsibility for a minor child when the parents do not live together.
(b) The Legislature finds and declares that it is the public policy of this state to assure that the best interest of children is the court's primary concern in allocating custodial and decision-making responsibilities between parents who do not live together. In furtherance of this policy, the Legislature declares that a child's best interest will be served by assuring that ~~minor children~~ parents have frequent and continuing ~~contact with parents who have shown the ability to act in the best interest of their children~~ custodial time with their minor children when they have the ability and willingness to act in the best interest of their children. The Legislature further declares that the child's best interest is served by educating ~~to educate~~ parents on their rights and responsibilities and the effect their separation may have on children, ~~to encourage~~ encouraging parents to reach mutual agreements related to their child's best interest, and encouraging mediation of disputes ~~and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or divorced~~ when they do not live together or are divorced.
(c) The Legislature further recognizes and declares the fundamental liberty interests of parents to share in the rights and responsibilities of rearing their children after the parents have separated or divorced.
(d) The Legislature also finds and declares the court's secondary concern is to interfere to the least degree in familial relationships promoting cooperation between parents that do not live together to achieve the objectives set forth in this article.
§48-9-102. Objectives; best interests of the child.
(a) The primary objective of this article is to serve the child's best interests, recognizing each parent provides unique and invaluable contributions that are equally important, by facilitating:
(1) ~~Stability of the child~~ Familial, physical health, economic, educational and emotional stability of the child;
(2) Parental planning and agreement about the child's custodial arrangements and upbringing;
(3) Continuity of existing parent-child attachments;
(4) ~~Meaningful~~ Maximum contact between a child and each parent;
(5) Caretaking relationships by ~~adults~~ family members who love the child, know how to provide for the child's needs, and who place a high priority on doing so;
~~(6) Security from exposure to physical or emotional harm; and~~
~~(7) Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child's care and control;~~
(6) Continued contact between child and other family members including, but not limited to, siblings, grandparents, aunts, uncles, cousins and extended family members; and
(7) Parents ability and willingness to reorganize work schedules to maximize contact with the child.
(b) A secondary objective of article is to achieve ~~fairness between the parents~~ approximately equal access to both parents for the child whenever practical.
PART 2. PARENTING PLANS.
§48-9-201. Parenting agreements.
(a) If the parents agree to one or more provisions of a parenting plan, the court shall so order, unless it makes specific findings of fact and conclusions of law that:
(1) The agreement is not knowing or voluntary; or
(2) ~~The~~ There is overwhelming evidence the plan would be harmful to the child.
(b) The court, at its discretion and on ~~any~~ the basis ~~it deems sufficient~~ of compelling evidence, may conduct an evidentiary hearing to determine whether there is a factual basis for a finding under subdivision (1) or (2), subsection (a) of this section. When there is credible, documented and substaniated ~~information~~ that child abuse as defined by ~~section 49-1-3~~ article eight-d, chapter sixty-one of this code or domestic violence as defined by ~~section 27-202~~ section twenty-eight, article two, chapter sixty-one of this code has occurred, a hearing is mandatory and if the court determines that abuse has occurred, appropriate protective measures shall be ordered.
(c) If an agreement, in whole or in part, is not accepted by the court under the standards set forth in subsection (a) of this section, the court shall allow the parents the opportunity to negotiate another agreement.
§48-9-202. Court-ordered services.
(a) (1) The court shall inform the parents, or require them to be informed, about:
(A) How to prepare a parenting plan;
(B) The impact of family dissolution on children and how the needs of children facing family dissolution can best be addressed;
(C) The impact of domestic abuse on children and resources for addressing domestic abuse;
(D) The impact of false allegations of domestic abuse, sexual abuse and neglect; and
~~(D)~~ (E) Mediation or other nonjudicial procedures designed to help them achieve an agreement.
(2) The court shall require the parents to attend parent education classes.
(3) If parents are unable to resolve issues and agree to a parenting plan, the court shall require mediation unless application of the procedural rules promulgated pursuant to the provisions of subsection (b) of this section indicates that mediation is inappropriate in the particular case.
(b) The Supreme Court of Appeals shall make and promulgate rules that will provide for premediation screening procedures to determine whether domestic violence, child abuse or neglect, acts or threats of duress or coercion, substance abuse, mental illness or other such elements would adversely affect the safety of a party, the ability of a party to meaningfully participate in the mediation or the capacity of a party to freely and voluntarily consent to any proposed agreement reached as a result of the mediation. Such rules shall authorize a family court judge to consider alternatives to mediation which may aid the parties in establishing a parenting plan. Such rules shall not establish a per se bar to mediation if domestic violence, child abuse or neglect, acts or threats of duress or coercion, substance abuse, mental illness or other such elements exist, but may be the basis for the court, in its discretion, not to order services under subsection (a) of this section or not to require a parent to have face-to-face meetings with the other parent.
(c) A mediator shall not make a recommendation to the court and may not reveal information that either parent has disclosed during mediation under a reasonable expectation of confidentiality, except that a mediator may reveal to the court ~~credible information~~ corroborated and documented evidence that he or she has received concerning domestic violence or child abuse.
(d) Mediation services authorized under subsection (a) of this section shall be ordered at an hourly cost that is reasonable in light of the financial circumstances of each parent, assessed on a uniform sliding scale. Where one parent's ability to pay for such services is significantly greater than the other, the court may order that parent to pay some or all of the expenses of the other. State revenues shall not be used to defray the costs for the services of a mediator: Provided, That the Supreme Court of Appeals may use a portion of its budget to pay administrative costs associated with establishing and operating mediation programs: Provided, however, That grants and gifts to the state that may be used to fund mediation are not to be considered as state revenues for purposes of this subsection.
(e) The Supreme Court of Appeals shall establish standards for the qualification and training of mediators.

§48-9-203. Proposed temporary parenting plan; temporary order; amendment; vacation of order.

(a) A parent seeking a temporary order relating to parenting shall file and serve a proposed temporary parenting plan by motion. The other parent, if contesting the proposed temporary parenting plan, shall file and serve a responsive proposed parenting plan. Either parent may move to have a proposed temporary parenting plan entered as part of a temporary order. The parents may enter an agreed temporary parenting plan at any time as part of a temporary order. The proposed temporary parenting plan may be supported by relevant evidence and shall be verified and shall state at a minimum the following:
(1) Information from the time frame preceding establishment of separate living arrangements in cases where the parents have lived together or for the twelve months immediately preceding initiation of this action as outlined in subdivisions (A) through (C);
~~(1)~~ (A) The name, address and length of residence with the person or persons with whom the child has lived ~~for the preceding twelve months~~;
~~(2)~~ (B) The performance by each parent ~~during the last twelve months~~ of the parenting functions relating to the daily needs of the child in accordance with section two, article two hundred thirty-five, chapter one of this chapter;
~~(3)~~ (C) The parents' work and child-care schedules ~~for the preceding twelve months~~;
~~(4)~~ (2) The parents' current work and child-care schedules, including; ~~and~~
(A) Any changes in the parents' work schedules in the past thirty days;
(B) Any substantive changes that can be made in future work schedules to allow for more parent-child interaction; and
(C) List of family members available to provide child care in lieu of day care centers along with schedules of available times.
~~(5)~~ (3) Any of the circumstances set forth in section two hundred nine, article nine, that are likely to pose a serious risk to the child and that warrant limitation on the award to a parent of temporary residence or time with the child pending entry of a permanent parenting plan; and
(4) The existence of any orders that may restrict the child's access to either parent including, but not limited to, protective orders.
(b) At the hearing, the court shall enter a temporary parenting order incorporating a temporary parenting plan which includes:
(1) A schedule for the child's time with each parent when appropriate;
(A) If the parents agree on a proposed plan notwithstanding any limiting factors in section two hundred nine of this article, the court shall enter the proposed plan; and
(B) If the parents do not agree on a proposed plan, the court shall enter an order incorporating a temporary plan that allows for maximum contact between the child and each of its parents as well as other family members in accordance with section one hundred two of this article.
(2) Designation of a temporary residence for the child;
(3) Allocation of decision-making authority in accordance with section two hundred seven, if any. Absent allocation of decision-making authority consistent with section two hundred seven of this article, neither party shall make any decision for the child other than those relating to day-to-day or emergency care of the child, which shall be made by the party who is present with the child;
(4) Provisions for temporary support for the child; ~~and~~
(5) Restraining orders, if applicable; and
(6) Provisions for dispute resolution in accordance with section two hundred eight of this article.
(c) A parent may make a motion for an order to show cause and the court may enter a temporary order, including a temporary parenting plan, upon a showing of necessity.
(d) A parent may move for amendment of a temporary parenting plan, and the court may order amendment to the temporary parenting plan, if the amendment conforms to the limitations of section two hundred nine, article nine and ~~is in the~~ conforms to the objectives of the best interest of the child as described in section one hundred two of this article.
§48-9-204. Criteria for temporary parenting plan.
(a) After considering the proposed temporary parenting plan filed pursuant to section two hundred three, article nine and other relevant evidence presented, the court shall make a temporary parenting plan that is in the best interest of the child. In making this determination, the court shall give particular consideration to:
(1) Which ~~parent has taken greater responsibility during the last twelve months for performing~~ parents have the ability and willingness to perform caretaking functions relating to the daily needs of the child. The court shall take into consideration a parent's ability and willingness to adjust work schedules so as to allocate as much time with the child without substantially reducing the overall income of the parties; and
(2) Which parenting arrangements will ~~cause the least disruption to the child's emotional stability~~ allow for the maximum time allocation of the child with each parent and other family members during the pendency of this action ~~while the action is pending~~.
~~(b) The court shall also consider the factors used to determine residential provisions in the permanent parenting plan.~~
~~(c)~~(b) Upon ~~credible evidence~~ initiation of criminal proceedings of one or more of the circumstances set forth in section two hundred nine, article nine (a), or clear and convincing evidence of one or more of the circumstances of said section the court shall issue a temporary order limiting or denying access to the child as required by that section, in order to protect the child or the other party, pending adjudication of the underlying facts.
(d) Expedited procedures shall be instituted to facilitate the prompt issuance of a parenting plan.
§48-9-205. Permanent parenting plan.
(a) A party seeking a judicial allocation of custodial responsibility or decision-making responsibility under this article shall file a proposed parenting plan with the court. Parties may and are encouraged to file a joint plan which is in everyone's best interest. A proposed plan shall be verified and shall state, to the extent known or reasonably discoverable by the filing party or parties:
(1) The name, address and length of residence of any adults with whom the child has lived for one year or more, or in the case of a child less than one year old, any adults with whom the child has lived since the child's birth;
(2) The name and address of each of the child's parents and any other individuals with standing to participate in the action under section one hundred three, chapter nine;
(3) A description of the allocation of caretaking as defined in section two hundred ten, article one and other parenting responsibilities performed by each person named in subdivisions (1) and (2) of this subsection during the twenty-four months preceding the filing of an action under this article, except in cases where parents previously cohabitated. Those cases shall exclude time periods where the parents lived apart without a temporary parenting plan;
(4) A description of the work and child-care schedules of any person seeking an allocation of custodial responsibility, and any expected changes to these schedules in the near future;
(5) A description of the child's school and extracurricular activities;
(6) A description of any of the limiting factors as described in section two hundred nine, article nine that are present, including any ~~restraining~~ protective orders against either parent ~~to prevent domestic or family violence~~, by case number and jurisdiction;
(7) Required financial information; and
(8) A description of the known areas of agreement and disagreement with any other parenting plan submitted in the case.
The court shall maintain the confidentiality of any information required to be filed under this section when the person giving that information has a reasonable fear of domestic abuse and disclosure of the information would increase that fear.
(b) The court shall develop a process to identify cases in which there is credible, documented and verified information that child abuse or neglect, as defined in ~~section 49-1-3~~ article eight-d, chapter sixty-one of this code, or domestic violence as defined in section ~~27-202~~ twenty-eight, article two, chapter sixty-one of this code has occurred. The process shall include assistance for possible victims of domestic abuse in complying with subdivision (6), subsection (a) of this section, and referral to appropriate resources for safe shelter, counseling, safety planning, information regarding the potential impact of domestic abuse, information regarding the potential impact of false allegations of child abuse or domestic violence on children, and information regarding civil and criminal remedies for domestic abuse. The process shall also include a system for ensuring that jointly submitted parenting plans that are filed in cases in which there is credible, documented and verified information that child abuse or domestic abuse has occurred receive the court review that is mandated by subsection section two hundred one, article nine(b).
(c) Upon motion of a party and after consideration of the evidence, the court shall order a parenting plan consistent with the provisions of sections two hundred six, article nine, through section two hundred nine, article nine, of this chapter, containing:
(1) A provision for the child's living arrangements and each parent's custodial responsibility, which shall include either:
(A) A custodial schedule that designates in which parent's home each minor child will reside on given days of the year; or
(B) A formula or method for determining such a schedule in sufficient detail that, if necessary, the schedule can be enforced in subsequent proceedings by the court;
(2) An allocation of decision-making responsibility as to significant matters reasonably likely to arise with respect to the child; and
(3) A provision consistent with ~~section 9-202~~ sections two hundred two, two hundred eight and five hundred one, article nine of this code, for resolution of disputes that arise under the plan, and remedies for violations of the plan.
(d) A parenting plan ~~may~~ shall, at the ~~court's discretion~~ request of either party, contain provisions that address matters that are expected to arise in the event of a party's relocation, or provide for future modifications in the parenting plan if specified contingencies occur.
§48-9-206. Allocation of custodial responsibility.
(a) Unless otherwise resolved by agreement of the parents under section ~~9-201~~ two hundred one, article nine or unless manifestly harmful to the child, the court shall allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation or, if the parents never lived together, before the filing of the action, except to the extent required under section ~~9-209~~ two hundred nine, article nine or necessary to achieve any of the following objectives:
(1) To permit the child to have ~~a relationship~~ maximum time with each parent who has performed or is willing and able to perform a reasonable share of parenting functions as defined in section two hundred thirty-five point two;
(2) To accommodate the firm and reasonable preferences of a child who is fourteen years of age or older, and with regard to a child under fourteen years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent, to give that preference such weight as circumstances warrant;
(A) The court shall consider any negative effects that one parent has had on the child's preference due to tactics utilized to undermine the relationship between the parent and child.
(B) The court shall only give weight to the child's preference when it is manifestly certain that the preference did not come about as a result of action taken by one parent against the other designed to create a divide in the parent-child relationship.
(3) To keep siblings together when the court finds that doing so is ~~necessary to their welfare~~ consistent with the objectives outlined in section one hundred two, article nine of this chapter;
(4) To protect the child's welfare when, under an otherwise appropriate allocation, the child would be harmed because of a gross disparity in the quality of the emotional attachments between each parent and the child or in each parent's demonstrated ability or availability to meet a child's needs;
~~(5)~~ (4) To take into account any prior agreement of the parents that, under the circumstances as a whole including the ~~reasonable expectations~~ prescumption that the decisions of the parents are in the interest of the child, would be appropriate to consider;
(6) To avoid an allocation of custodial responsibility that would be extremely impractical or that would interfere substantially with the child's need for stability in light of economic, physical or other circumstances, including the distance between the parents' residences, the cost and difficulty of transporting the child, the parents' and child's daily schedules, and the ability of the parents to cooperate in the arrangement;
~~(7)~~ (5) To apply the principles set forth in section four hundred three, article nine (d) of this article if one parent relocates or proposes to relocate at a distance that will impair the ability of a parent to exercise the amount of custodial responsibility that would otherwise be ordered under this section; and
~~(8)~~ (6) To consider the stage of a child's development while maintaining the presumption that maximum time allocation with both parents best serves the child's interest.
(b) In determining the proportion of caretaking functions each parent previously performed for the child under subsection (a) of this section, the court shall not consider the divisions of functions arising from temporary arrangements after separation, whether those arrangements are consensual or by court order. The court may take into account information relating to the temporary arrangements in determining other issues under this section.
~~(c)~~ (b) If the court is unable to allocate custodial responsibility under subsection (a) of this section because the allocation under that subsection would be manifestly harmful to the child, or because there is no history of past performance of caretaking functions, as in the case of a newborn, ~~or because the history does not establish a pattern of caretaking sufficiently dispositive of the issues of the case,~~ the court shall allocate custodial responsibility based on the child's best interest as outlined in section one hundred two, of this article, taking into account the factors in considerations that are set forth in this section and in section two hundred nine and section four hundred three, article nine (d) of this article and preserving to the extent possible this section's priority on ~~the share of past caretaking functions each parent performed~~ maximizing the time allocation for the child with each parent.
(d) In determining how to schedule the custodial time allocated to each parent, the court shall take account of the economic, physical and other practical circumstances such as ~~those listed in subdivision (6), subsection (a) of this section~~ the distance between parents' residences cost and difficulty of transporting the child, including the parents' and child's daily schedules.

§48-9-207. Allocation of significant decision-making responsibility.

(a) Unless otherwise resolved by agreement of the parents under section two hundred one, article nine the court shall allocate responsibility for making significant life decisions on behalf of the child, including the child's education and health care, ~~to one parent or~~ to two parents jointly: ~~in accordance with the child's best interest, in light of:~~
~~(1) The allocation of custodial responsibility under section 9-206 of this article;~~
~~(2) The level of each parent's participation in past decision-making on behalf of the child;~~
~~(3) The wishes of the parents;~~
~~(4) The level of ability and cooperation the parents have demonstrated in decision-making on behalf of the child;~~
~~(5) Prior agreements of the parties; and~~
~~(6) The existence of any limiting factors, as set forth in section 9-209 of this article.~~
(b) If each of the child's legal parents has been exercising a reasonable share of parenting functions for the child, the court shall presume that an allocation of decision-making responsibility to both parents jointly is in the child's best interests. The presumption is overcome if there is a history of domestic abuse, or by a showing that joint allocation of decision-making responsibility is not in the child's best interest, by written findings of:
(1) The level of ability and willingness of each parent to cooperate in the decision making process on behalf of the child. The parent who demonstrates ability and willingness to cooperate is given preference in determining whether or not the presumption is overcome; and
(2) The existence of limiting factors, as set forth in section two hundred nine, article ten, of this chapter.
(c) Unless otherwise provided or agreed by the parents, each parent who is exercising custodial responsibility shall be given sole responsibility for day-to-day decisions for the child, while the child is in that parent's care and control, including emergency decisions affecting the health and safety of the child.
(d) (1) 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 the emergency medical procedures: Provided, That nothing contained herein alters or amends 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) Each parent is required to promptly inform the other parent of any illness of the child which requires medical attention.
(3) Each parent is required to consult with the other parent prior to any elective surgery being performed on the child.
(e) (1) Each parent has the right to participate as a member of a Parent Advisory Committee of any other organization comprised of parents and children at the school that the child attends.
(2) Each parent has the right to arrange appointments for parent-teacher conferences absent a court order to the contrary. Neither parent can be compelled against their will to exercise this right by attending jointly with the other parent.
§48-9-209. Parenting plan; limiting factors.
(a) If either of the parents so requests, or upon receipt of credible information thereof, the court shall determine whether a parent who would otherwise be allocated responsibility under a parenting plan:
(1) Has abused, neglected or abandoned a child, as defined by ~~state law~~ article eight-d, chapter sixty-one;
(2) Has sexually assaulted or sexually abused a child as those terms are defined in articles eight-b and eight-d, chapter sixty-one of this code;
(3) Has committed domestic violence, as defined in section ~~27-202~~ twenty-eight, article two, chapter sixty-one;
(4) Has interfered ~~persistently~~ with the other parent's access to the child, except in the case of actions taken for the purpose of protecting the safety of the child or the interfering parent or another family member. ~~pending adjudication of the facts underlying that belief~~ The court may only grant exceptions in cases where criminal remedies have been sought; or
(5) Has ~~repeatedly~~ made fraudulent reports of domestic violence or child abuse.
(b) If a parent is found to have engaged in any activity specified by subsection (a) of this section, the court shall impose limits that are reasonably calculated to protect the child or child's parent from harm. The standard used to make determinations is a clear and convincing standard not the preponderance of the evidence. The limitations that the court shall consider include, but are not limited to:
(1) An adjustment of the custodial responsibility of the parents, including, but not limited to:
(A) Increased parenting time with the child to make up for any parenting time the other parent lost as a result of the proscribed activity;
(B) An additional allocation of parenting time in order to repair any adverse effect upon the relationship between the child and the other parent resulting from the proscribed activity; or
(C) The allocation of exclusive custodial responsibility to one parent or another;
(2) Supervision of the custodial time between a parent and the child;
(3) Exchange of the child between parents through an intermediary, or in a protected setting;
(4) Restraints on the parent from communication with or proximity to the other parent or the child;
(5) A requirement that the parent abstain from possession or consumption of alcohol or nonprescribed drugs while exercising custodial responsibility and in the twenty-four hour period immediately preceding such exercise;
(6) Denial of overnight custodial responsibility;
(7) Restrictions on the presence of specific persons while the parent is with the child;
(8) A requirement that the parent post a bond to secure return of the child following a period in which the parent is exercising custodial responsibility or to secure other performance required by the court;
(9) A requirement that the parent complete a nongender biased program of intervention for perpetrators of domestic violence, for drug or alcohol abuse, or a program designed to correct another factor; or
(10) ~~Any other constraints or conditions that the court deems necessary to provide for the safety of the child, a child's parent or any person whose safety immediately affects the child's welfare~~ An adjustment of the decision-making responsibility of the parents including the allocation of exclusive decision-making responsibility to on of them.
(c) If a parent is found to have engaged in any activity specified in subsection (a) of this section, the determination of which is made by a clear and convincing standard of proof or in the case of domestic violence in accordance with section twenty-eight, article two, chapter sixty-one, the court may not allocate custodial responsibility or decision-making responsibility to that parent ~~without making special written findings that~~ unless the child and other parent can be adequately protected from harm by such limits as it may impose under subsection (b) of this section. The parent found to have engaged in the behavior specified in subsection (a) of this section has the burden of proving that an allocation of custodial responsibility or decision-making responsibility to that parent will not endanger the child or the other parent.
(d) If the court determines, based on the investigation described in part three of this article or other evidence presented to it, that an accusation of child abuse or neglect, or domestic violence against either the child or another family member including a parent, made during a child custody proceeding is false and the parent making the accusation knew it to be false at the time the accusation was made, the court ~~may~~ shall order reimbursement to be paid by the person making the accusations of costs resulting from defending against the accusations. Such reimbursement may not exceed the actual reasonable costs incurred by the accused party as a result of defending against the accusation and reasonable attorney's fees incurred.
(e) (1) A parent who believes he or she is the subject of activities by the other parent described in subdivision (5) of subsection (a), may move the court pursuant to subdivision (4), subsection (b), section one, article seven, chapter forty-nine of this code for the Department of Health and Human Resources to disclose whether the other parent was the source of the allegation and, if so, whether the department found the report to be:
(A) Substantiated;
(B) Unsubstantiated;
(C) Inconclusive; or
(D) Still under investigation.
(2) If the court grants a motion pursuant to this subsection, disclosure by the Department of Health and Human Resources shall be in camera. The court may disclose to the parties information received from the department only if it has reason to believe a parent knowingly made a false report.
PART 4. MODIFICATION OF PARENTING PLAN.

§48-9-401. Modification upon showing of changed circumstances or harm.

(a) Except as provided in section four hundred two, article nine or section four hundred three, article nine a court shall modify a parenting plan order if it finds, on the basis of facts that were not known or have arisen since the entry of the prior order and were not anticipated therein, that a ~~substantial change has occurred in the circumstances of the child or of one or both parents and a~~ modification is necessary to serve the best interests of the child as defined by section one hundred two, article nine of this chapter.
(b) In exceptional circumstances, a court may modify a parenting plan or order if it finds by written findings of fact and conclusions of law that the plan ~~is not working as contemplated and~~ in some specific way is manifestly harmful to the child, even if a substantial change of circumstances has not occurred.
(c) Unless the parents have agreed otherwise, the following circumstances do not justify a significant modification of a parenting plan except where harm to the child is shown:
(1) Circumstances resulting in an involuntary loss of income, by loss of employment or otherwise, affecting the parent's economic status;
(2) A parent's remarriage or cohabitation, provided:
(A) They constitute intent to establish a long term stable einvironment for the child;
(B) They do not involve two or more instances of short duration;
(C) They do not require two or more changes in school districts in a short period of time; and
(D) They do not change access to extended family member for the child; and
(3) Choice of reasonable caretaking arrangements for the child by a legal parent, ~~including~~ excluding the child's placement in day care, when the other parent or members of the other parent's family are available, willing and able to provide alternate care.
(d) For purposes of subsection (a) of this section, the occurrence or worsening of a limiting factor, as defined in subsection (a), section two hundred nine, article nine after a parenting plan has been ordered by the court, constitutes a substantial change of circumstances and measures shall be ordered pursuant to section two hundred nine, article nine to protect the child or the child's parent.
§48-9-402. Modification without showing of changed circumstances.
(a) The court shall modify a parenting plan in accordance with a parenting agreement, unless it ~~finds~~ makes specific written findings of fact and conclusions of law that the agreement is not knowing and voluntary or that there is overwhelming evidence that the plan is ~~it would be~~ harmful to the child.
(b) The court may modify any provisions of the parenting plan without the showing of change circumstances required by subsection section four hundred one, article nine (a) if the modification is in the child's best interests as outlined in section one hundred two of this article, and the modification:
(1) Reflects the de facto arrangements under which the child has been receiving care from the petitioner, without objection, in substantial deviation from the parenting plan, for the preceding six months before the petition for modification is filed, provided the arrangement is not the result of a parent's acquiescence resulting from the other parent's domestic abuse or use of coercive tactics to turn the opinions of a child against a parent including but not limited to false allegations of abuse, discussion of child support or lack thereof, telling the child that the other parent does not love them or has done something wrong or has broken up the family;
(2) Constitutes a minor modification in the plan; or
(3) Is necessary to accommodate the reasonable and firm preferences of a child who has attained the age of fourteen except in cases of extreme interference by the petitioning party in the child's relationship with the other parent.
(c) Evidence of ~~repeated~~ one or more filings of fraudulent reports of domestic violence or child abuse is admissible in a domestic relations action between the involved parties when the allocation of custodial or decision making responsibilities is in issue, and the fraudulent accusations ~~may be~~ is a factor considered by the court in making the allocation of custodial or decision making responsibilities.
§48-9-403. Relocation of a parent.
(a) The relocation of a parent constitutes a substantial change in the circumstances under subsection ~~9-401~~(a), section four hundred one, of this article, of the child only when it significantly impairs either parent's ability to exercise responsibilities that the parent has been exercising except when the nonrelocating parent can demonstrate a pattern and practice of interference which has prevented them from exercising those responsibilities. Where both parents enjoy any form of parenting or custodial time with the child, relocation by either parent with the child 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) Unless otherwise ordered by the court, a parent who has responsibility under a parenting plan who changes, or intends to change, residences for more than ninety days must ~~give a minimum of sixty days' advance notice~~ file, with the clerk of the court that issued the parenting plan order or that has current jurisdiction over the custody proceedings a notice of intent to relocate and a revised parenting plan. Additionally, the relocating parent must send a copy of the notice and revised pan by registered mail to the nonrelocating parent no later than ninety days before the date the move is to take place, or the most notice practicable under the circumstances ~~to any other parent with responsibility under the same parenting plan.~~ Notice shall include:
(1) The relocation date;
(2) The address of the intended new residence;
(A) List of all adults who will reside at the new residence; and
(B) Number ages and gender of all minors who will be living at the new residence.
(3) The specific reasons for the proposed relocation;
(4) A proposal for how custodial responsibility shall be modified, in light of the intended move; and
(5) Information for the other parent as to how he or she may respond to the proposed relocation or modification of custodial responsibility.
Failure to comply with the notice requirements of this section without good cause ~~may be~~ is a factor in the determination of whether the relocation is in good faith under subsection (d) of this section and is a basis for an award of reasonable expenses and reasonable attorney's fees to another parent that are attributable to such failure.
The Supreme Court of Appeals shall make available through the offices of the circuit clerks and the secretary-clerks of the family courts a form notice that complies with the provisions of this subsection. The Supreme Court of Appeals shall promulgate procedural rules that provide for an expedited hearing process to resolve issues arising from a relocation or proposed relocation.
(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 is submitted to a reselected 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 subsection (g) of this section. The relocating parent has the burden of proof at the evidentiary hearing.
~~(c)~~ (d) When changed circumstances are shown under subsection (a) of this section, the court shall, if practical, revise the parenting plan so as to both accommodate the relocation and maintain the same proportion of custodial responsibility being exercised by each of the parents. In making such revision, the court may consider the additional costs that a relocation imposes upon the respective parties for transportation and communication, and may equitably allocate such costs between the parties.
~~(d)~~ (e) When the relocation constituting changed circumstances under subsection (a) of this section renders it impractical to maintain the same proportion of custodial responsibility as that being exercised by each parent, the court shall modify the parenting plan in accordance with the child's best interests as outlined in section one hundred two, of this article and in accordance with the following principles:
(1) A parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose and that it does not require significant loss of contact with a greater portion of the child's family members that if the relocation did not occur. The percentage of custodial responsibility that constitutes a significant majority of custodial responsibility is seventy percent or more. A relocation is for a legitimate purpose if it is to be close to significant family or other support networks, for significant health reasons, to protect the safety of the child or another member of the child's household from significant risk of harm, to pursue a significant employment or educational opportunity or to be with one's spouse who is established, or who is pursuing a significant employment or educational opportunity, in another location. The relocating parent has the burden of proving of the legitimacy of any other purpose. A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving or by moving to a location that is substantially less disruptive of the other parent's relationship to the child.
(2) If a relocation of the parent is in good faith for legitimate purpose and to a location that is reasonable in light of the purpose and if neither has been exercising a significant majority of custodial responsibility for the child, the court shall reallocate custodial responsibility based on the best interest of the child as outlined in section one hundred two, of this article, taking into account all relevant factors including the effects of the relocation on the child. The burden of proof is a high standard and it is upon the relocating parent to prove that it is in the child's best interest as outlined in section one hundred two of this article.
(3) If a parent does not establish that the purpose for that parent's relocation is in good faith for a legitimate purpose into a location that is reasonable in light of the purpose, the court ~~may~~ shall modify the parenting plan in accordance with the child's best interests as outlined in section one hundred two of this article and the effects of the relocation on the child. Among the modifications the court may consider is a reallocation of primary custodial and decision making responsibility to the nonrelocating parent, effective if and when the relocation occurs. ~~but such a reallocation shall not be ordered if the relocating parent demonstrates that the child's best interests would be served by the relocation.~~
(4) The court shall attempt to minimize impairment to a parent-child relationship caused by a parent's relocation through alternative arrangements for the exercise of custodial responsibility appropriate to the parents' resources and circumstances and the developmental level of the child.
(5) If the relocation is granted and the nonrelocating parent has less contact with the child, such that it will cause an increase in the child support allocation, then the calculations are made based upon conditions prior to relocation when determining the division of parenting time.
~~(e)~~ (f) In determining the proportion of caretaking functions each parent previously performed for the child under the parenting plan before relocation, the court may not consider a division of functions arising from any arrangements made after a relocation but before a modification hearing on the issues related to relocation.
~~(f)~~ (g) In determining the effect of the relocation or proposed relocation on a child, any interviewing or questioning of the child shall be conducted in accordance with the provisions of rule 17 of the rules of practice and procedure for family law as promulgated by the Supreme Court of Appeals.
PART 5. ENFORCEMENT OF PARENTING PLANS.
§48-9-501. Enforcement of parenting plans.
(a) If, upon a parental complaint, the court finds a parent intentionally ~~and without good cause~~ violated a provision of the court-ordered parenting plan, the court shall in all cases, absent clear and convincing evidence written in the record to justify the violation, it shall enforce the remedy specified in the plan or, if no remedies are specified or they are clearly inadequate, it shall find the plan has been violated and enter an order ~~an appropriate remedy~~, which ~~may~~ shall include compensatory time equivalent to the lost time and one or more of the following remedies:
(1) In the case of interference with the exercise of custodial responsibility for a child by the other parent, substitute time for that parent to make up for time missed with the child;
(2) In the case of missed time by a parent, costs in recognition of lost opportunities by the other parent, in child care costs and other reasonable expenses in connection with the missed time;
(3) A modification of the plan, if the requirements for a modification are met under section two hundred nine, article nine, section four hundred one, article nine, four hundred two, or four hundred three of this chapter, including an adjustment of the custodial and decision making responsibility of the parents or an allocation of exclusive custodial and decision making responsibility to one of them;
(4) An order that the parent who violated the plan obtain appropriate counseling;
(5) A civil penalty, in an amount of not more than $100 for a first offense, not more than $500 for a second offense, or not more than $1,000 for a third or subsequent offense, to be paid to the parent education fund as established under section one hundred four, article nine;
(6) Court costs, reasonable attorney's fees and any other reasonable expenses in enforcing the plan; ~~and~~
(7) ~~Any other appropriate remedy~~ An order that the violating parent pay the cost of counseling to reestablish the parent child relationship with the other parent; or
(8) Require a bond to assure future compliance with parenting plan orders.
(b) Except as provided in a jointly submitted plan that has been ordered by the court, obligations established in a parenting plan are independent obligations, and it is not a defense to an action under this section by one parent that the other parent failed to meet obligations under a parenting plan or child support order.
(c) An A notarized written agreement between the parents to depart from the parenting plan can be a defense to a claim that the plan has been violated, even though the agreement was not made part of a court order, but only as to acts or omissions consistent with the agreement that occur before the agreement is disaffirmed by either parent.
(d) It is mandatory that the court make a criminal referral to the local law enforcement authorities when there is any evidence that there may have been a violation of section fourteen-d, article two, chapter sixty one of this code.
PART 6. MISCELLANEOUS PROVISIONS.
§48-9-601. Access to a child's records.
(a) (1) Each parent has full and equal access to a child's educational records absent a court order to the contrary. Neither parent may veto the access requested by the other parent. Educational records are academic, attendance and disciplinary records of public and private schools in all grades kindergarten through twelve and any form of alternative school. Educational records are any and all school records concerning the child that would otherwise be properly released to the primary custodial parent, including, but not limited to, report cards and progress reports, attendance records, disciplinary reports, results of the child's performance on standardized tests and statewide tests and information on the performance of the school that the child attends on standardized statewide tests; curriculum materials of the class or classes in which the child is enrolled; names of the appropriate school personnel to contact if problems arise with the child; information concerning the academic performance standards, proficiencies, or skills the child is expected to accomplish; school rules, attendance policies, dress codes and procedures for visiting the school; and information about any psychological testing the school does involving the child.
(2) In addition to the right to receive school records, the nonresidential parent has the right to participate as a member of a parent advisory committee or any other organization comprised of parents of children at the school that the child attends.
~~(3)~~ (2) ~~The nonresidential parent or noncustodial parent~~ Each parent has the right to question anything in the child's record that the parent feels is inaccurate or misleading or is an invasion of privacy and to receive a response from the school.
(4) Each parent has a right to arrange appointments for parent-teacher conferences absent a court order to the contrary. Neither parent can be compelled against their will to exercise this right by attending conferences jointly with the other parent.
(b) ~~(1)~~ Each parent has full and equal access to a child's medical records absent a court order to the contrary. Neither parent may veto the access requested by the other parent. If necessary, either parent is required to authorize medical providers to release to the other parent copies of any and all information concerning medical care provided to the child which would otherwise be properly released to either parent.
~~(2) If the child is in the actual physical custody of one parent, that parent is required to promptly inform the other parent of any illness of the child which requires medical attention.~~
(3) Each parent is required to consult with the other 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 the emergency medical procedures: ~~Provided,~~ That nothing contained herein alters or amends 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.
(c) Each parent has full and equal access to a child's juvenile court records, process and pleadings, absent a court order to the contrary. Neither parent may veto any access requested by the other parent. Juvenile court records are limited to those records which are normally available to a parent of a child who is a subject of the juvenile justice system.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-14d. Concealment or removal of minor child from custodian or from person entitled to visitation; penalties; defenses; failure to provide or return minor child for visitation.

(a) Any person who conceals, takes or removes a minor child in violation of any court order an with the intent to deprive another person of lawful custody or visitation right shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than five years, or in the discretion of the court, shall be imprisoned in the county jail not more than one year of fined not more than one thousand dollars, or both fined and imprisoned. Any person who fails to make a reasonable, good faith effort to provide or return a minor child in a timely manner at the commencement or expiration of any lawful custody or visitation period, or any person who provides false or fictitious information or who withholds information from any law-enforcement agency, or conceals, attempts to conceal, or assists another person in concealing or attempting to conceal, a minor child at the commencement or expiration of any lawful custody or visitation period is, for first offense, guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than ten days or fined not more than $100 and may be ordered to pay any resulting court costs, or both fined and imprisoned; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be imprisoned in jail not more than thirty days or fined not less than $100 nor more than $500 and may be ordered to pay any resulting court costs, or both fined and imprisoned; for the third or any subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than five years, or in the discretion of the court, shall be imprisoned in jail not more than one year or fined not more than $1,000 and may be ordered to pay any resulting court costs, or both fined and imprisoned: Provided, That if the minor child is retained more than twenty-four hours after the excoriation of any lawful custody or visitation period or is removed from the state during such period the felony offense provision under subsections (b) and/or (c) of this section shall apply.
(b) Any person who violates this section and in so doing removes the minor child from this state or conceals the minor child in another state shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than five years, or fined not more than one thousand dollars, or both fined and imprisoned. Any person who conceals, takes or removes a minor child in violation of any court order and with the intent to deprive another person of lawful custody or visitation right shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than five years, or in the discretion of the court, shall be imprisoned in jail not more than one year or fined not more than $1,000 and may be ordered to pay any resulting court costs, or both fined and imprisoned.
(c) It shall be a defense under this section that the accused reasonably believed such action was necessary to preserve the welfare of the minor child. The mere failure to return a minor child at the expiration of any lawful custody or visitation period without the intent to deprive another person of lawful custody or visitation rights shall not constitute an offense under this section. Any person who violates this section and in so doing removes the minor child from this state or conceals the minor child in another state shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than five years, or fined not more than $1,000 and may be ordered to pay any resulting court costs, or both fined and imprisoned.
(d) It is a defense under this section that the accused reasonably believed such action was necessary to preserve the safety and welfare of the minor child. The mere failure to return a minor child at the expiration of any lawful custody or visitation period does not constitute an offense under this section if there is a reasonable, good faith attempt to return a minor child in a timely manner. It shall be the intent of the section to enforce the court order and not subject the minor child to the custody dispute, therefore the age and/or desires of the minor child shall not be used to constitute a defense under this section.
(e) When any law-enforcement officer observes credible evidence that the accused has committed a violation of this article in knowing and willful violation of the terms of any court order he or she shall immediately enforce the court order and initiate a criminal investigation. It shall be the intent of this section to preserve the minor child's right to access any person granted lawful custody or visitation.

NOTE: The purpose of this bill is to provide a misdemeanor and felony penalty if a person fails to make a reasonable, good faith attempt to return a minor child in a timely manner at the expiration of a lawful custody or visitation period.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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