H. B. 3004
(By Delegates Johnson, Webb, Hines, Mahan,
Wills, Pino and Capito)
[Introduced February 26, 1999; referred
to the Committee on the Judiciary.]
A BILL to amend chapter forty-eight of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article two-d, all relating
to allocating custodial and decisionmaking responsibility for
minor children.
Be it enacted by the Legislature of West Virginia:
That chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended, by adding
thereto a new article, designated article two-d, all to read as
follows:
ARTICLE 2D. ALLOCATION OF CUSTODIAL AND DECISION-MAKING
RESPONSIBILITY FOR CHILDREN.
Part 1. Scope, objectives, definitions, and parties.
§48-2D-1. Scope of article.
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.
§48-2D-2. Objectives; best interests of the child defined.
(a) The primary objective of this article is to serve the
child's best interests, by facilitating:
(1) Parental planning and agreement about the child's
custodial arrangements and upbringing;
(2) Continuity of existing parent-child attachments;
(3) Meaningful contact between a child and each parent;
(4) Caretaking relationships by adults who love the child,
know how to provide for the child's needs, and place a high
priority on doing so;
(5) Security from exposure to physical or emotional harm; and
(6) Expeditious, predictable decisionmaking and avoidance of
prolonged uncertainty respecting arrangements for the child's care
and control.
(b) A secondary objective of article next is to achieve
fairness between the parents.
§48-2D-3. Definitions.
For the purposes of this article, the words or terms defined
in this section have the meanings ascribed to them. These
definitions are applicable unless a different meaning clearly
appears from the context.
(1) Unless otherwise specified, "parent" means a legal parent
or a de facto parent.
(2) "Legal parent" means an individual defined as a parent, by
law, on the basis of biological relationship, presumed biological
relationship, legal adoption, or other recognized grounds.
(3) "Parenting plan" means a set of provisions for allocation
of custodial responsibility and decisionmaking authority on behalf
of a child and for resolution of subsequent disputes between the
parents.
(4) "Custodial responsibility" refers to physical
custodianship and supervision of a child. It usually includes, but
does not necessary require residential or overnight responsibility.
(5) "Decisionmaking responsibility" refers to authority for
making significant life decisions on behalf of the child, including
the child's education, spiritual guidance, and health care.
(6) "Caretaking functions" are tasks that involve interaction
with the child or direct the interaction and care provided by
others. Caretaking functions include:
(A) Feeding, bedtime and wake-up routines, care of the child
when sick or hurt, bathing, grooming, personal hygiene, dressing,
recreation and play, physical safety, transportation, and other
functions that meet the daily physical needs of the child;
(B) Direction of the child's various developmental needs,
including the acquisition of motor and language skills, toilet
training, self-confidence, and maturation;
(C) 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;
(D) 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;
(E) The development and maintenance of appropriate
interpersonal relationships with peers, siblings, and adults;
(F) Arrangements for health care, including making
appointments, communication with health-care providers, medical
follow-up, and home health care;
(G) Moral guidance; and
(H) 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.
(8) "Parenting functions" are tasks that serve the needs of
the child or the child's residential family. Parenting functions
include caretaking functions, as defined in subdivision (7).
Parenting functions also include functions that are not caretaking
functions under subdivision (7), including:
(A) Provision of economic support;
(B) Participation in decisionmaking regarding the child's
welfare;
(C) Maintenance or improvement of the family residence, home
or furniture repair, home-improvement projects, yard work, and
house cleaning;
(D) Financial planning and organization, car repair and
maintenance, food and clothing purchasing, cleaning and maintenance
of clothing, and other tasks supporting the consumption and savings
needs of the family; and
(E) Other functions usually performed by a parent or guardian
that are important to the child's welfare and development.
(8) "Family violence", "domestic violence", "domestic or
family violence" or "abuse" means the occurrence of one or more of
the following acts between family or household members, as that
term is defined in subdivision (9) of this section:
(A) Attempting to cause or intentionally, knowingly or
recklessly causing physical harm to another with or without
dangerous or deadly weapons;
(B) Placing another in reasonable apprehension of physical
harm;
(C) Creating fear of physical harm by harassment,
psychological abuse or threatening acts;
(D) Committing either sexual assault or sexual abuse as those
terms are defined in articles eight-b and eight-d, chapter sixty- one of this code; and
(E) Holding, confining, detaining or abducting another person against that person's will.
(9) "Family or household member" means current or former
spouses, persons living as spouses, persons who formerly resided as
spouses, parents, children and stepchildren, current or former
sexual or intimate partners, persons who are dating or who have
dated, persons who are presently residing or cohabiting together or
in the past have resided or cohabited together or a person with
whom the victim has a child in common.
Reasonable action taken by a person for self-protection, or
the protection of another person, is not domestic abuse.
§48-2D-4. Parties to an action under this article.
(1) Persons who have a right to be notified of and participate
as a party in an action filed by another are:
(a) A legal parent of the child, as defined in §48-2D-3(a)(1);
or
(b) An adult allocated custodial responsibility or decision- making responsibility under a parenting plan regarding the child
that is then in effect.
(2) In exceptional cases the court may, in its discretion,
grant permission to intervene to other persons or public agencies
whose participation in the proceedings under this article it
determines is likely to serve the child's best interests. The
court may place limitations on participation by the intervening
party as the court determines to be appropriate. Such persons or public agencies do not have standing to initiate an action under
this article.
§48-2D-6. Parental agreements.
(a) If the parents agree to one or more provisions of a
parenting plan, the court should so order, unless it makes specific
findings that:
(1) The agreement is not knowing or voluntary, or
(2) The plan would be harmful to the child.
(b) The court, at its discretion and on any basis it deems
sufficient, may conduct an evidentiary hearing to determine whether
there is a factual basis for a findings under subdivision one or
to, subsection (a) of this section. When there is credible
information that child abuse as defined by state law or domestic
abuse as defined by article two-b of this chapter has occurred, a
hearing is mandatory and if the court determines that abuse has
occurred, appropriate protective measures should 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 should allow the parents the opportunity to
negotiate another agreement.
§48-2D-7. 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 dressing domestic abuse; and
(D) Mediation or other non-judicial procedures designed to
help them achieve an agreement.
(2) If available, court shall require the parents to attend
parental education classes as provided under §48-2-10b.
(3) If parents are unable to resolve issues and agree to a
parenting plan, the court shall require mediation.
(b) The court should not order services under subsection (a)
of this section that require a parent to have face-to-face meetings
with the other parent.
(c) A mediator should not conduct a mediation, even by
parental agreement, without first screening for domestic abuse. If
credible evidence thereof exists, the mediator should take steps:
(1) To ensure the voluntary consent of the victim of the abuse
to participate in the mediation, and to any agreement reached as a
result of the mediation; and
(2) To protect the safety of the victim.
(d) A mediator should 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, upon questioning by the court, if relevant to fact-finding under §48-2D-7.
(e) Services authorized under subsection (a) of this section
should be ordered at a cost that is reasonable in light of the
financial circumstances of each parent. 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.
§48-2D-8. Parenting Plan.
(a) A party seeking a judicial allocation of custodial
responsibility or decisionmaking responsibility under this article
should file a proposed parenting plan with the court. Parties may
file a joint plan. A plan should be supported by an affidavit
containing, 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 §48-2D-4;
(3) A description of the allocation of caretaking and other
parenting responsibilities performed by each person named in
subdivisions one and two of this subsection during the twenty-four months preceding the filing of an action under this article;
(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 §48-2D-13 that are present, including any restraining orders
against either parent to prevent domestic or family violence, by
case number and jurisdiction;
(7) Financial information, required under article 3; and
(8) A description of the known areas of agreement and
disagreement with any other parenting plan submitted in the case.
The court should 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 should develop a process to identify cases in
which there is credible information that child abuse or neglect, as
defined in section three, article one, chapter forty-nine of this
code, or domestic or family violence as defined in section two,
article two-a of this chapter has occurred. The process should
include assistance for possible victims of domestic abuse in
complying with subdivision six, subsection (a) of this section, and referral to appropriate resources for safe shelter, counseling,
safety planning, information regarding the potential impact of
domestic abuse on children, and information regarding civil and
criminal remedies for domestic abuse. The process should also
include a system for ensuring that jointly submitted parenting
plans that are filed in cases in which there is credible
information that child abuse or domestic abuse has occurred receive
the court review that is mandated by §48-2D-7(b).
(c) Upon motion of a party and after consideration of the
evidence, the court should order a parenting plan consistent with
the provisions of §48-2D-9 through §48-2D-14, containing:
(1) A provision for the child's living arrangements and each
parent's custodial responsibility, which should 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 decisionmaking responsibility as to
significant matters reasonably likely to arise with respect to the
child; and
(3) A provision consistent with §48-2D-8 for resolution of
disputes that arise under the plan, and for remedies of violations
of the plan.
(d) A parenting plan may, at the court's discretion, 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.
(e) The court may order a temporary allocation of custodial
responsibility or decisionmaking responsibility as the court
determines is in the child's best interests, considering the
factors in §§48-2D-9 and 48-2D-10. Such an order ordinarily should
not preclude access to the child by a parent who has been
exercising a reasonable share of parenting functions. Upon
credible evidence of one or more of the circumstances set forth in
§48-2D-13(a), the court should 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.
(f) Expedited procedures should be instituted to facilitate
the prompt issuance of a parenting plan.
§48-2D-9. Allocation of custodial responsibility.
(A) Unless otherwise resolved by agreement of the parents
under §48-2D-7 or unless manifestly harmful to the child, the court
should 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 parenting 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 §48-2D-13 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 14 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; and
(7) To apply the principles set forth in §48-2D-20(d) 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.
(b) In determining the proportion of care taking functions
each parent previously performed for the child under subsection (a)
of this section, the court should 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 should 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 sections §48-2D-13 and §48-2D-20(d) 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 should take account of the
economic, physical, and other practical circumstances such as those
listed in subdivision six, subsection (a) of this section.
§48-2D-10. Allocation of significant decision-making
responsibility.
(a) Unless otherwise resolved by agreement of the parents
under §48-2D-7, the court should 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 §48-2D-9;
(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
§48-2D-13.
(b) If each of the child's legal parents has been exercising
a reasonable share of parenting functions for the child, the court
should 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.
(c) Unless otherwise provided or agreed by the parents, each
parent who is exercising custodial responsibility should 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) Even if a legal parent is not allocated decision-making
responsibility under this section, a legal parent should have
access to school and health-care records concerning the child to
which legal parents have access by other law, except insofar as
access is not in the child's best interests or where the provision
of such information might endanger a parent who has been the victim
of domestic abuse.
§48-2D-11. Criteria for parenting plan; dispute resolution.
(a) If provisions for resolving parental disputes are not
ordered by the court pursuant to parental agreement under §48-2D-7,
the portion order method of resolving disputes that serves a
child's best interest in light of:
(1) The parents' wishes;
(2) Circumstances, including but not limited to financial
circumstances, that may affect the parents ability to participate
in a prescribed dispute resolution process; and
(3) The existence of any limiting factor, as set forth in §48- 2D-13.
(b) The court may order a non-judicial process of dispute
resolution, by designating with particularity the person or agency
to conduct the process or the method for selecting such a person or
agency. The disposition of a dispute through a non-judicial method
of dispute resolution that has been ordered by the court without
prior parental agreement is subject to de novo judicial review. If
the parents have agreed in a parenting plan or by agreement
thereafter to a binding resolution of their dispute by non-judicial
means, a decision by such means is binding upon the parents and
must be enforced by the court, unless it is shown to be manifestly
harmful to the child's interests, beyond the scope of the parents'
agreement, or the result of fraud, misconduct, corruption, or other
serious irregularity.
(c) This section is subject to the limitations imposed by §48- 2D-8.
§48-2D-13. Parenting plan; limiting factors.
(a) If either of the parents so requests, or upon receipt of
credible information thereof, the court should 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;
(2) Has inflicted domestic abuse, as defined in §48-2D-3(h);
(3) 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.
(b) If a parent is found to have engaged in any activity
specified by subsection (a) of this section, the court should
impose limits that are reasonably calculated to protect the child
or child's parent from harm. The limitations that the court should
consider include but are not limited to:
(1) An adjustment of the custodial responsibility of the
parents, including the allocation of exclusive custodial
responsibility to one of them;
(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 non-prescribed drugs while exercising
custodial responsibility and in the 24-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 program of
intervention for perpetrators of domestic violence, for drug or
alcohol abuse, or 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 tough if if if
if if child's parent, or any person whose safety immediately
affects the child's welfare.
(c) If a parent is found to have engaged in any activity
specified in subsection (a) of this section, the court may not
allocate custodial responsibility or decision-making responsibility
to that parent without making special written findings that 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.
§48-2D-14. Criteria for parenting plan; prohibited factors.
(a) In issuing orders under this article, the court should
disregard:
(1) The race or ethnicity of the parent, child, or other
family member;
(2) The sex of a parent or of the child;
(3) The religious practices of a parent or of the child,
except to the minimum degree necessary to protect the child from
manifest harm or to protect the child's ability to practice a
religion to which the child has made a substantial and meaningful
commitment;
(4) The sexual orientation of a parent; and
(5) The extra marital sexual conduct of a parent, except upon
a showing that it is harmful to the child; and
(6) The parents' relative earning capacities or financial
circumstances, except the court may take account of the degree to
which the combined financial resources of the parents set practical
limits on the feasible custodial arrangements.
(b) Nothing in this section precludes consideration of a parent's ability to care for a child, including meeting a child's
needs for a positive self-image.
Part 3. Fact finding.
§48-2D-15. Court or investigation; appointment of guardian.
(a) In its discretion, the court may order a written
investigation or evaluation from an appropriate individual or
agency to assist it in determining any issue relevant to
proceedings under this article. The court should specify the
scope of the investigation or evaluation and the authority of the
investigator or evaluator.
(b) In its discretion, the court may appoint a guardian ad
litem to represent the child's best interests. The court should
specify the terms of the appointment, including the guardian's
role, duties, and scope of authority.
(c) 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 should specify the terms of the
appointment, including the lawyer's role, duties, and scope of
authority.
(d) When substantial allegations of domestic abuse have been
made, the court should order an investigation under subsection
(a) of this section or make an appointment under subsection (b) or (c), unless the court is satisfied that the information
necessary to evaluate the allegations will be adequately
presented to the court without such an order or appointment.
(e) Subject to whatever restrictions the court may impose or
that may be imposed by the attorney-client privilege or by §48- 2D-8(d), the court may require the child or parent to provide
information to an individual or agency appointed by the court
under subsection (a), (b), or (c), and it may require any person
having information about the child or parent to provide that
information, even if the information is otherwise protected by
law and even in the absence of consent by parent or by the child.
(f) The investigator or evaluator who submits a report or
evidence to the court that has been requested under subsection
(a) of this section and a guardian ad litem appointed under
subsection (b) of this section who submits information or
recommendations to the court are subject to cross-examination by
the parties. A lawyer appointed under subsection (c) may not be
a witness in the proceedings, except as allowed under standards
applicable in other civil proceedings.
(g) Services and tests ordered under this section should 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.
§48-2D-16. Interview of the child by the court.
The court, in its discretion, may interview the child or
direct another person to interview the child, in order to obtain
information relating to the issues of the case. Counsel for a
parent or for the child should be permitted to submit questions
to the court that may be asked of the child if the court
approves. A transcript, videotape, or other reliable means of
recording the complete interview shall be made part of the record
of the proceedings, and should be confidential except for
purposes of appeal of the court's order.
Part 4. Modification of parenting plan.
§48-2D-18. Modification upon showing of changed circumstances or
harm.
(a) Except as provided in §48-2D-19 or §48-2D-20, a court
should 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 the child's
welfare.
(b) In exceptional circumstances, a court may modify a
parenting plan if it finds 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 parents
economic status;
(2) A parent's remarriage or cohabitation; and
(3) Choice of reasonable caretaking arrangements for the
child by a legal parent, including the child's placement in day
care.
(d) For purposes of subsection (a) of this section, the
occurrence or worsening of a limiting factor, as defined in §48- 2D-13(a), after a parenting plan has been ordered by the court,
constitutes a substantial change of circumstances and measures
should be ordered pursuant to §48-2D-13 to protect the child or
the child's parent.
§48-2D-19. Modification without showing of changed
circumstances.
(a) The court should modify a parenting plan in accordance
with a parental agreement, unless it finds that the agreement is
not knowing and voluntary or that 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 §48-2D-18(a), if the modification is in the child's best interests,
and the modification:
(1) Reflects the de facto arrangements under which the child
has been receiving care, without objection, 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;
(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 specified
pursuant to §48-2D-9(a)(2).
§48-2D-20. Relocation of a parent.
(a) The relocation of a parent constitutes a substantial
change in the circumstances under §48-2D-18(a) of the child only
when it significantly impairs either parent's ability to exercise
responsibilities that the parent has been exercising.
(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 90 days must give a minimum of
60 days advance notice, or the most notice practicable under the
circumstances, to any other parent with responsibility under the
same parenting plan, notice should include:
(1) The relocation date;
(2) The address of the intended new residence;
(3) The specific reasons for the proposed relocation, and
(4) A and proposal for how custodial responsibility should
be modified, in light of the intended move.
Failure to comply with the notice requirements of this
section without good college 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 attorneys fees to another parent that are
attributable to such failure.
(c) When changed circumstances are shown under subsection
(a) of this section, the court should, if practical, revise the
parenting plan so as to both accommodate the relocation and
maintain the same proportion of custodial responsibility being
exercise by each of the parents.
(d) When the relocation constituting changed circumstances
under subsection a) renders it impractical to maintain the same
proportion of custodial responsibility as that being exercise by
each parent, the court should modify the parenting plan in
accordance with the jobs best entries, as defined and §48-2D-9
and §48-2D-10, 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 legitimate purpose and to a location that is reasonable in light of the purpose. The
proportion of custodial responsibility that constitutes a
significant majority of custodial responsibility should be
established to the role of statewide application. A relocation
is for a legitimate purpose if it is to the 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 house sold from significant risk of harm, to pursue a
significant employment or educational opportunity, or to be with
one's spouse [or spouse equivalent, is such is defined in chapter
6] 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 illegitimate purpose is
reasonable unless his purpose to shown to be substantially
achievable without moving, or by moving to 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 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
should reality custodial responsibility based on the best
interest of the child, taking into can 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 in court may consider is a tree
allocation of primary custodial responsibility, effective if and
when the relocation occurs, but such a reallocation should not be
ordered if the relocating parent demonstrates that the child's
best interests would be served by the relocation.
(4) The court should attempt to minimize impairment to a
parent-to 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.
§48-2D-21. Allocations of responsibility to persons other than
legal parents.
(a) The court should allocate responsibility to a de facto
parent as defined in §48-2D-3(a)(2) in accordance with the
standard set forth in §48-2D-9 through §48-2D-14, except that:
(1) It should allocate primary custodial responsibility to a
de facto parent over the objection of a legal parent who is fit
and willing to assume primary custodial responsibility only if:
(A) The legal parent has not been performing a reasonable
share of parenting functions, as defined in §48-2D-3(g); or
(B) The alternative would be harmful to the child; and
(2) It should limit or deny an allocation otherwise to be
made if, because of the number of other adults to be allocated
responsibility, the allocation would be impractical under the
objectives of this article.
(b) A court should not allocate responsibility to an adult
who is neither a legal parent nor a de facto parent, over the
objection of a legal parent or a de facto parent who is fit and
willing to care for the child, unless:
(1) The adult is a grandparent or other relative who has
developed a significant relationship with the child and
(A) A legal parent consents to the allocation, and
(B) The parent objecting to the allocation has not been
performing a reasonable share of parenting functions for the
child; or
(2) The alternative would be harmful to the child.
§48-2D-22. 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, it should enforce the remedy
specified in the plan or, if no remedies are specified or they
are clearly inadequate, it should find the plan has been violated and order an appropriate remedy, which may include:
(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 §48-2D-18, §48-2D-19, or §48-2D-20;
(4) An order that the parent who violated the plan obtain
appropriate counseling;
(5) A civil fine, in an amount that increases with each
violation as established by a uniform rule of statewide
application, to be paid to the nonviolating parent or, if both
parents have violated the parenting plan, to the court;
(6) Court costs, reasonable attorney's fees, and any other
reasonable expenses in enforcing the plan, and
(7) Any other appropriate remedy.
(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 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.