COMMITTEE SUBSTITUTE
FOR
H. B. 3065
(Delegates Eldridge, Rodighiero, Ellis, Stemple,
Williams, Perry, Beach, Shook, Argento and Reynolds)
(Originating in the Committee on the Judiciary)
[February 22, 2008]
A BILL to amend and reenact §48-9-209
of the Code of West Virginia,
1931, as amended;
to amend said code by adding thereto a new
section, designated §48-9-301a; and to amend said code by
adding thereto a new section, designated §61-6-25, all
relating false allegations of child abuse and/or neglect;
impact of allegations on allocation
of custodial
responsibility under a parenting plan; imposition of
reasonable money sanctions and reasonable attorney's fees for
false allegations; request for disclosure of source of
allegations by Department of Health and Human Resources;
investigation of allegations of child sexual abuse by family
courts; and new misdemeanor offense for falsely reporting
child abuse.
Be it enacted by the Legislature of West Virginia:
That
§48-9-209
of the Code of West Virginia, 1931, as amended,
be amended and reenacted;
that said code be amended by adding thereto a new section, designated
§48-9-301a
;
that
§48-9-401 of
said code be amended and reenacted; and
that said code be amended
by adding thereto a new section, designated
§61-6-25, all to read
as follows:
CHAPTER 48. DOMESTIC RELATIONS
ARTICLE 9. CUSTODY OF CHILDREN
Part 2 - Parenting Plans
§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;
(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;
(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; 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 limitations that the court shall
consider include, but are not limited to:
(1) An adjustment of the custodial responsibility of the
parents, including
,
(A) allocation of additional parenting time with the child
to make up for any parenting time the other parent lost as a result
of the proscribed activity;
(B) allocation of additional parenting time in order to
rehabilitate any adverse effect upon the relationship between the
child and the other parent that arose because the other parent lost
parenting time as a result of the activity; or
(C) 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 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 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.
(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.
(d) If the court determines, based on the investigation
described in part five of this article or other evidence presented
to it, that an accusation of child abuse or neglect, or domestic
violence 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 impose reasonable money
sanctions, not to exceed all costs incurred by the party accused as
a direct result of defending the accusation, and reasonable
attorney's fees incurred in recovering the sanctions, against the
parent making the accusation. The remedy provided by this
subsection is in addition to any other remedy provided by law.
(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 3 - Fact Finding.
§ 48-9-301a. Child sexual abuse allegations.
(a) If allegations of child sexual abuse are made during a
child custody proceeding and the court has concerns regarding the
child's safety, the court may take any reasonable, temporary steps
as the court, in its discretion, deems appropriate under the
circumstances to protect the child's safety until an investigation
can be completed. Nothing in this section shall affect the
applicability of section nine, article six-A, chapter forty-nine of
this Code.
(b) If allegations of child sexual abuse are made during a
child custody proceeding, the court may request that the local child
protective service conduct an investigation of the allegations
pursuant to section nine, article six-A, chapter forty-nine of this
Code. Upon completion of the investigation, the agency shall report
its findings to the court.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT
ARTICLE 6. CRIMES AGAINST THE PEACE
§61-6-25. Falsely reporting child abuse.
(a) A person is guilty of a misdemeanor who:
(1) informs a law enforcement officer or child protective
service worker that a person has committed sexual abuse, physical
abuse, or neglect of a child, as defined in section three, article one, chapter forty-nine of this Code;
(2) at the time the accusation is made, knows that the
allegation of abuse or neglect is false or is without reason to
believe that the alleged abuser committed the abuse or neglect; and
(3) has the intent that the information influence a child
custody proceeding.
(b) Any person who violates this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined one
thousand dollars or sentenced to not less than forty hours nor more
than sixty hours of community service, or both fined and sentenced
to community service: Provided, That the person so convicted shall
be required to attend parenting classes conducted by any court-
approved agency.
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