H. B. 3298
(By Delegates Perdue, Moore, Marshall,
Mahan and Guthrie)
[Introduced March 23, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §48-9-301 of the Code of West Virginia,
1931, as amended, relating to court ordered investigations and
prohibited use of supervised visitation.
Be it enacted by the Legislature of West Virginia:
That §48-9-301 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION
MAKING RESPONSIBILITY OF CHILDREN.
PART 3. FACT FINDING.
§48-9-301. Court-ordered investigation in matters other than child
abuse and neglect and prohibited use of supervised
visitation by the department.
(a) In its discretion, the court may order a written
investigation and report to assist it in determining any issue
relevant to proceedings under this article. The investigation and report may be made by the guardian ad litem, the staff of the court
or other professional social service organization experienced in
counseling children and families,
other than the Department of
Health and Human Resources. The court shall specify the scope of
the investigation or evaluation and the authority of the
investigator.
(b) In preparing the report concerning a child, the
investigator may consult any person who may have information about
the child and the potential parenting or custodian arrangements.
Upon order of the court, the investigator may refer the child to
professional personnel for diagnosis. The investigator may consult
with and obtain information from medical, psychiatric or other
expert persons who have served the child in the past without
obtaining the consent of the parent or the child's custodian; but
the child's consent must be obtained if the child has reached the
age of twelve, unless the court finds that the child lacks mental
capacity to consent. If the requirements of subsection (c) of this
section are fulfilled, the investigator's report may be received in
evidence at the hearing.
(c) The investigator shall deliver the investigator's report
to counsel and to any party not represented by counsel at least ten
days prior to the hearing unless a shorter time is ordered by the
court for good cause shown. The investigator shall make available
to counsel and to any party not represented by counsel the investigator's file of underlying data and reports, complete texts
of diagnostic reports made to the investigator pursuant to the
provisions of subsection (b) of this section, and the names and
addresses of all persons whom the investigator has consulted. Any
party to the proceeding may call the investigator and any person
whom the investigator has consulted for cross-examination. A party
may not waive the right of cross-examination prior to the hearing.
(d) 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.
(e) The family court shall not order supervised visitation by
the Department of Health and Human Resources, nor may the family
court order the department to pay or provide other child protective
services including, but not limited to, ordering a child into the
custody of the department.
NOTE: The purpose of this bill is to restrict the use of DHHR
in family court proceedings to investigation and reporting with
respect to child abuse and neglect only.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.