Senate Bill No. 647
(By Senators Harrison, By Request, Smith and Weeks)
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[Introduced February 23, 2004; referred to the Committee on the
Judiciary.]
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A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §48-28-1, §48-28-2 and
§48-28-3, all relating to custody of minor child or children
when one spouse murders the other spouse.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended by
adding thereto a new article, designated §48-28-1, §48-28-2 and §48-
28-3, all to read as follows:
ARTICLE 28. CUSTODY OF MINOR CHILDREN OF MURDERED SPOUSE.
§48-28-1. Petition to court when child's parent, custodian or
guardian is alleged to have murdered another parent,
custodian or guardian of the child; temporary custody.
(a) Upon the filing of a petition, if a parent, custodian or
guardian of a child is charged with murdering another parent,
custodian or guardian of the child, and if the court finds that the child was residing with either the alleged murderer or his or her
victim, or both, at the time of the alleged murder, the court may
order that the child be delivered for not more than ten days into
the custody of the department of health and human resources or a
responsible person found by the court to be a fit and proper person
for the temporary care of the child pending a preliminary hearing.
The initial order directing such temporary custody shall contain
provisions for appointing counsel and scheduling a preliminary
hearing, and upon its service shall require the immediate transfer
of custody of such child or children to the department or to a
responsible relative, which may include any temporary guardian or
custodian other than the alleged murderer.
(b) Whether or not the court orders immediate transfer of
custody as provided in subsection (a) of this section, the court may
schedule a preliminary hearing giving the respondent at least five
days' actual notice. If the court finds at the preliminary hearing
that at the time of the alleged murder the child was residing with
either the alleged murderer or his or her victim, or both, and that
a hearing on the petition cannot be scheduled in the interim period,
the court may order that the child be delivered into the temporary
custody of the department or a responsible person or agency found by
the court to be a fit and proper person for the temporary care of
the child for a period not exceeding sixty days. There shall be a
rebuttable presumption that it is in the best interests of the child that temporary placement be with a fit and proper person who is a
relative of the deceased spouse, with preference first being given
to the father and mother of the deceased spouse. If there are no
adult relatives of the deceased parent available or willing to take
emergency custody of the child, then the court shall appoint some
suitable person whom the court determines to be competent and fit
and who will best serve the welfare and best interests of the child.
§48-28-2. Length of emergency custody orders of the court;
investigation; report.
The emergency custody order shall continue in effect for not
more than sixty days unless sooner modified or shortened upon good
cause.
Contemporaneously with a grant of emergency custody, the court
shall order the department of health and human resources to
undertake an investigation of the person or agency in whose custody
the child or children are placed to ensure that the best interests
of the child or children are protected. Upon completion of the
investigation, but not later than thirty days after the referral
from the circuit court, the department of health and human resources
shall file a written report with the court setting forth its
findings and making a recommendation for the appointment of a
guardian.
§48-28-3. Guardianship granted.
Upon a hearing in the matter in which all interested parties may be heard, the court, acting solely in the best interests of the
child, may grant custody and guardianship to the person or persons
recommended by the department of health and human resources or to
some other fit and proper person or persons.
NOTE: The purpose of this bill is to provide that custody of
the child or children of the parent murdered by his or her spouse
shall be placed with the most suitable member of the victim's
family.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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