WEST virginia
legislature
2017 regular session
By
[
to the Committee on
A BILL to amend and
reenact §48-9-206 of the Code of West Virginia, 1936, as amended, relating to
court ordered allocation of custodial responsibility of children; and providing
that the court to allocate time equally between parents, unless equal custody
is not consistent with the best interest of the child.
Be it enacted by the
Legislature of West Virginia:
That §48-9-206 of the
Code of West Virginia, 1936, as amended, be amended and reenacted to read as
follows:
ARTICLE 9. ALLOCATION OF
CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.
§48-9-206. Allocation of
custodial responsibility.
(a) Unless otherwise
resolved by agreement of the parents under section 9-201 or unless manifestly
harmful to the child or not otherwise in the best interest of the child,
the court shall allocate custodial responsibility so that the proportion of
custodial time the child spends with each parent is equal: Provided, That if the court determines
that equal custodial responsibility is not in the best interest of the child,
the court shall allocate custodial responsibility that 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 or necessary to achieve any
of the following objectives:
(1) To permit the child to
have a relationship with each parent who has performed a reasonable share of
parenting functions;
(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;
(3) To keep siblings
together when the court finds that doing so is necessary to their welfare;
(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) To take into account
any prior agreement of the parents that, under the circumstances as a whole
including the reasonable expectations of the parents 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) To apply the principles
set forth in 9-403(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) To consider the stage
of a child's development.
(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) 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, taking into account the factors in
considerations that are set forth in this section and in section two hundred
nine and 9-403(d) of this article and preserving to the extent possible this
section's priority on the share of past
caretaking functions each parent performed.
(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.
NOTE: The purpose of this bill is
to require the court to allocate time equally between parents, unless equal
custody is not consistent with the best interest of the child.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.