H. B. 3173

 

         (By Delegates Walker, Hunt and Frazier)

         [Introduced February 17, 2011; referred to the

         Committee on the Judiciary.]

 

 

 

 

A BILL to amend and reenact §48-5-604 and §48-5-606, of the Code of West Virginia, 1931, as amended; and to amend and reenact §48-9-206, §48-9-207, §48-9-302 and §48-9-403 of said code, all relating to amending and adding to divorce, distribution of property and child custody guidelines to take into consideration the presence of an autistic child.

Be it enacted by the Legislature of West Virginia:

    That §48-5-604 and §48-5-606 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §48-9-206, §48-9-207, §48-9-302 and §48-9-403 of said code be amended and reenacted, all to read as follows:

ARTICLE 5. DIVORCE.

PART 6. JUDGMENT ORDERING DIVORCE.

§48-5-604. Use and occupancy of marital home.

    (a) The court may award the exclusive use and occupancy of the marital home to a party. An order granting use and occupancy of the marital home shall include the use of any necessary household goods, furniture and furnishings. The order shall establish a definite period for the use and occupancy, ending at a specific time set forth in the order, subject to modification upon the petition of either party.

    (b) Generally, an award of the exclusive use and occupancy of the marital home is appropriate when necessary to accommodate rearing minor children of the parties. It is also appropriate to grant sole occupancy of the marital home to the parent that is awarded custody of a minor child that has been diagnosed with autism spectrum disorder. Otherwise, the court may award exclusive use and occupancy only in extraordinary cases supported by specific findings set forth in the order that grants relief.

    (c) An order awarding the exclusive use and occupancy of the marital home may also require payments to third parties for home loan installments, land contract payments, rent, property taxes and insurance coverage. When requiring third-party payments, the court shall reduce them to a fixed monetary amount set forth in the order. The court shall specify whether third-party payments or portions of payments are spousal support, child support, a partial distribution of marital property or an allocation of marital debt. Unless the court identifies third-party payments as child support payments or as installment payments for the distribution of marital property, then such payments are spousal support. If the court does not identify the payments and the parties have waived any right to receive spousal support, the court may identify the payments upon motion by any party.

    (d) This section is not intended to abrogate a contract between either party and a third party or affect the rights and liabilities of either party or a third party under the terms of a contract.

§48-5-606. Relief regarding costs of health care and hospitalization.

    (a) As an incident to requiring the payment of spousal support or child support, the court may order either party to provide medical support to the other party. Payments made to an insurer pursuant to this subdivision, either directly or by a deduction from wages, shall be deemed to be spousal support or installment payments for the distribution of marital property, in such proportion as the court shall direct: Provided, That if the court does not set forth in the order that a portion of the payments is to be deemed installment payments for the distribution of marital property, then all payments made pursuant to this section are spousal support. The designation of insurance coverage as spousal support under the provisions of this subdivision shall not, in and of itself, give rise to a subsequent modification of the order to provide for spousal support other than insurance for covering the costs of health care and hospitalization.

    (b) When determining which parent is responsible for the payment of health care costs, the parent whose health care coverage covers the most expenses for a child’s therapy for autism spectrum disorder and treatment shall be the parent to pay for those health care costs.

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 unless determined subsection-d of this section, 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 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) The court shall allocate custodial responsibility to the parents of child diagnosed with autism spectrum disorder based on the following factors:

    (1) Each parent’s role in obtaining the initial diagnosis of autism spectrum disorder, and any delay caused by a parent in obtaining the diagnosis;

    (2) Each parent’s acknowledgment and acceptance of the child’s autistic disorder, as opposed to a denial of the condition;

    (3) Each parent’s role in obtaining early intervention and therapy for the child, and the reasons for any delay in attempting to obtain services for the child;

    (4) Each parent’s ability to reinforce and follow through on daily recommended behavioral interventions for the autistic, and the level of participation the parent has in working with the autistic child;

    (5) Each parent’s history of increasing his or her education on the needs of an autistic child, by attending seminars, joining autism spectrum disorder support groups, seeking private professional assistance and engaging in other reasonable self-education techniques;

    (6) Each parent’s history of willingness to be a tireless and effective advocate for the autistic and ability to do so;

    (7) Each parent’s ability to handle the emotional and psychological stress involved with raising a child with autism spectrum disorder on a daily basis;

    (8) Each parent’s understanding and appreciation of the window of opportunity concept and the importance of early intense intervention and potential consequences to the child and family if intervention does not take place;

    (9) The quality of the special education, either in public or private school, the child will receive while in the parent’s care; and

    (10) Other supplemental factors the court deems relevant and appropriate on a case-by-case basis.

    (d) (e) 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.

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

    (a) Unless otherwise resolved by agreement of the parents under section 9-201, 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, by one parent’s belief or disbelief in the effectiveness of autism spectrum disorder therapy, or by a showing that joint allocation of decision-making responsibility is not in the child’s best interest.

    (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.

§48-9-302. Appointment of guardian.

    (a) In its discretion, the court may appoint a guardian ad litem to represent the child’s best interests. The court shall specify the terms of the appointment, including the guardian’s role, duties and scope of authority.

    (b) In its discretion, the court may appoint a lawyer to represent the child, if the child is competent to direct the terms of the representation and court has a reasonable basis for finding that the appointment would be helpful in resolving the issues of the case. The court shall specify the terms of the appointment, including the lawyer’s role, duties and scope of authority.

    (c) When substantial allegations of domestic abuse have been made, the court shall order an investigation under section 9-301 or make an appointment under subsection (a) or (b) of this section, unless the court is satisfied that the information necessary to evaluate the allegations will be adequately presented to the court without such order or appointment.

    (d) Subject to whatever restrictions the court may impose or that may be imposed by the attorney-client privilege or by subsection 9-202(d), the court may require the child or parent to provide information to an individual or agency appointed by the court under section 9-301 or subsection (a) or (b) of this section, and it may require any person having information about the child or parent to provide that information, even in the absence of consent by a parent or by the child, except if the information is otherwise protected by law.

    (e) The investigator who submits a report or evidence to the court that has been requested under section 9-301 and a guardian ad litem appointed under subsection (a) of this section who submits information or recommendations to the court are subject to cross-examination by the parties. A lawyer appointed under subsection (b) of this section may not be a witness in the proceedings, except as allowed under standards applicable in other civil proceedings.

    (f) Services and tests ordered under this section shall be ordered only if at no cost to the individuals involved, or at a cost that is reasonable in light of the available financial resources.

    (g) When a child has been diagnosed with autism spectrum disorder and the parents are in disagreement over a course of treatment, the guardian may retain psychological, educational or other professional help, that have expertise in autism spectrum disorder, if the guardian deems it as beneficial. Once the guardian has obtained these professional services, the court will allocate the cost between the parents in an equitable fashion in accordance with subsection-f of this section.

PART 4. MODIFICATION OF PARENTING PLAN.

§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) of the child only when it significantly impairs either parent’s ability to exercise responsibilities that the parent has been exercising or after a comparative analysis of the services available to a child with autism spectrum disorder in the other location are measurably worse than the current location.

    (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, 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;

    (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 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) 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) 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 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. 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, taking into account all relevant factors including the effects of the relocation on the child.

    (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 modify the parenting plan in accordance with the child’s best interests and the effects of the relocation on the child. Among the modifications the court may consider is a reallocation of primary custodial responsibility, 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.

    (e) 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) 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.

    NOTE: The purpose of this bill is to institute new decision points for judges to use to determine the custody, parental property rights and the removal of the child during a divorce proceeding when the parents have a child that has been diagnosed with autism spectrum disorder.

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