SB 674 Text

Senate Bill No. 674
(By Senator Sprouse)
____________
[Introduced February 23, 2004; referred to the Committee on the Judiciary.]
____________

A BILL to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §48-10A-101 and §48-10A-102; and to amend and reenact §51-2A-2 of said code, all relating to family court jurisdiction generally; and providing a special habeas corpus proceeding for grandparents to obtain visitation or custody in respect to certain infant grandchildren.

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 §48-10A-101 and §48-10A-102; and that §51-2A-2 of said code be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 10A. GRANDPARENT CHILD CUSTODY PROCEEDINGS.
§48-10A-101. Legislative findings.
The Legislature hereby finds that with an increasing number of children living in grandparent headed households in this state, grandparents play a special role in the lives of their grandchildren and are increasingly functioning as caregivers in the lives of their grandchildren. In recognition of this critical role that many grandparents play in the lives of their grandchildren, the Legislature finds it necessary to provide guidance regarding the ability of grandparents to obtain standing in custody proceedings involving their grandchildren. This guidance is in no way intended to limit the state of the law as it relates to the ability of any third party to obtain standing in custody proceedings between the third party and the child?s birth parent or parents.

§48-10A-102. Special proceeding or habeas corpus to obtain visitation or custody in respect to certain infant grandchildren.

Where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to the family court by commencing a special proceeding for a writ of habeas corpus to have the child brought before the court; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of the child, to be given in the manner as the court prescribes, may make any order as the best interests of the child may require, for visitation rights for the grandparent or grandparents in respect to the child.
Where a grandparent or the grandparents of a minor child, residing within this state, can demonstrate to the satisfaction of the family court the existence of extraordinary circumstances, the grandparent or grandparents of the child may apply to the family court by commencing a special proceeding for a writ of habeas corpus to have the child brought before the court; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of the child, to be given in the manner as the court prescribes, may make any order as the best interests of the child may require, for custody rights for the grandparent or grandparents in respect to the child. An extended disruption of custody, as the term is defined in this section, shall constitute an extraordinary circumstance. For the purposes of this section "extended disruption of custody" includes, but is not be limited to, a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents: Provided, That the court may find that extraordinary circumstances exist should the prolonged separation have lasted for less than twenty-four months.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2A. FAMILY COURTS.
§51-2A-2. Family court jurisdiction; exceptions; limitations.
(a) The family court shall exercise jurisdiction over the following matters:
(1) All actions for divorce, annulment or separate maintenance brought under the provisions of article three, four or five, chapter forty-eight of this code except as provided in subsections (b) and (c) of this section;
(2) All actions to obtain orders of child support brought under the provisions of articles eleven, twelve and fourteen, chapter forty-eight of this code;
(3) All actions to establish paternity brought under the provisions of article twenty-four, chapter forty-eight of this code and any dependent claims related to such actions regarding child support, parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child;
(4) All actions for grandparent visitation brought under the provisions of article ten, chapter forty-eight of this code and all actions for grandparent custody brought under the provisions of article ten-a, chapter forty-eight of this code;
(5) All actions for the interstate enforcement of family support brought under article sixteen, chapter forty-eight of this code and for the interstate enforcement of child custody brought under the provisions of article twenty, chapter forty-eight of this code;
(6) All actions for the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, including actions brought under the uniform child custody jurisdiction and enforcement act, as provided in article twenty, chapter forty-eight of this code;
(7) All petitions for writs of habeas corpus wherein the issue contested is custodial responsibility for a child;
(8) All motions for temporary relief affecting parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child, child support, spousal support or domestic violence;
(9) All motions for modification of an order providing for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child or for child support or spousal support;
(10) All actions brought, including civil contempt proceedings, to enforce an order of spousal or child support or to enforce an order for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child;
(11) All actions brought by an obligor to contest the enforcement of an order of support through the withholding from income of amounts payable as support or to contest an affidavit of accrued support, filed with the circuit clerk, which seeks to collect an arrearage;
(12) All final hearings in domestic violence proceedings;
(13) Petitions for a change of name, exercising concurrent jurisdiction with the circuit court.
(14) All proceedings for payment of attorney fees if the family court judge has jurisdiction of the underlying action;
(15) All proceedings for property distribution brought under article seven, chapter forty-eight of this code; and
(16) All proceedings to obtain spousal support brought under article eight, chapter forty-eight of this code.
(b) If an action for divorce, annulment or separate maintenance does not require the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child and does not require an award or any payment of child support, the circuit court has concurrent jurisdiction with the family court over the action if, at the time of the filing of the action, the parties also file a written property settlement agreement executed by both parties.
(c) If an action for divorce, annulment or separate maintenance is pending and a petition is filed pursuant to the provisions of article six, chapter forty-nine of this code alleging abuse or neglect of a child by either of the parties to the divorce, annulment or separate maintenance action, the orders of the circuit court in which the abuse or neglect petition is filed shall supercede and take precedence over an order of the family court respecting the allocation of custodial and decision-making responsibility for the child between the parents. If no order for the allocation of custodial and decision-making responsibility for the child between the parents has been entered by the family court in the pending action for divorce, annulment or separate maintenance, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility for the child between the parents and defer to the orders of the circuit court in the abuse or neglect proceedings.
(d) A family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction of the family court is specifically authorized in this section and in chapter forty-eight of this code. A family court may not exercise the powers given courts of record in section one, article five, chapter fifty-one of this code or exercise any other powers provided for courts of record in this code unless specifically authorized by the Legislature. A family court judge is not a "judge of any court of record" or a "judge of a court of record" as the terms are defined and used in article nine of this chapter.

NOTE: The purpose of this bill is to provide a special habeas corpus proceeding for grandparents to obtain visitation or custody in respect to certain infant grandchildren.

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

§§48-10A-101 and 48-10A-102 are new; therefore, strike-throughs and underscoring have been omitted.

Print On Demand