Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
       2022 REGULAR SESSION
                    Enrolled Committee Substitute for Senate Bill 463
     BY SENATORS SMITH, RUCKER, GRADY, SYPOLT,
   MAYNARD, AZINGER, PHILLIPS, TAKUBO, WOODRUM,
                  TARR, AND ROBERTS
[Passed March 12, 2022; in effect 90 days from passage]
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 AN ACT to amend and reenact §48-9-102 of the Code of West Virginia, 1931, as amended; to
       amend said code by adding thereto a new section, designated § 48-9-102a; and to amend
       and reenact §48-9-203, §48-9-204, §48-9-205, §48-9-206, §48-9-207, §48-9-208, §48-9-
       209, §48-9-401, §48-9-402, §48-9-602, and §48-9-603 of said code, all relating generally
       to domestic relations matters; modifying allocation of legal custody and parenting time in
       domestic relations matters; establishing collaborative parenting as a goal in allocation of
       custodial responsibility and decisionmaking; creating a rebuttable presumption that equal
       custodial allocation is in a child’s best interest; requiring specific findings and legal
       conclusions by the court if equal parenting is not granted; establishing criteria for diverging
       from equal custodial allocation when it is sought; authorizing interlocutory appeals to the
       Intermediate Court of Appeals if the family court refuses all physical custody to a parent
       or denies equal custody when sought; precluding the family court from entering a stay
       during an interlocutory appeal; requiring consideration of certain factors in developing a
       temporary parenting plan; ensuring that permanent parenting plans include provisions for
       financial support of children; requiring court not to consider temporary allocation of
       physical custody in final order unless parties agreed on temporary terms; removing
       provisions requiring consideration of terms in temporary orders when drafting final orders;
       requiring consideration of parents’ ability or inability to work together in allocating
       significant decision-making responsibilities; clarifying considerations for courts in
       developing or approving parenting plans; setting forth optional considerations for a court
       in allocating physical custody of a child; authorizing family court to designate which parent
       is entitled to tax deductions and exemptions equitably on a year to year basis when equal
       custody is ordered; clarifying that amendments made during regular session of the
       Legislature, 2022, are prospective; and declaring custodial orders entered prior to the
       effective date of the amendments to chapter 48 during the regular session of the
       Legislature, 2022, remain in full force and effect until judicially modified.
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     Be it enacted by the Legislature of West Virginia:
     ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING
            RESPONSIBILITY OF CHILDREN.
     §48-9-102. Objectives; best interests of the child.
        (a) The primary objective of this article is to serve the child’s best interests by facilitating:
        (1) Stability of the child;
        (2) Collaborative parental planning and agreement about the child’s custodial
 arrangements and upbringing;
        (3) Continuity of existing parent-child attachments;
        (4) Meaningful contact between a child and each parent, and which is rebuttably presumed
 to be equal (50-50) custodial allocation of the child;
        (5) Caretaking and parenting relationships by adults who love the child, know how to
 provide for the child’s needs, and who place a high priority on doing so;
        (6) Security from exposure to physical or emotional harm;
        (7) Expeditious, predictable decisionmaking and avoidance of prolonged uncertainty
 respecting arrangements for the child’s care and control; and
        (8) Meaningful contact between a child and his or her siblings, including half-siblings.
        (b) A secondary objective of this article is to achieve fairness between the parents
 consistent with the rebuttable presumption of equal (50-50) custodial allocation.
     §48-9-102a Presumption in favor of equal (50-50) custodial allocation.
         There shall be a presumption, rebuttable by a preponderance of the evidence, that equal
  (50-50) custodial allocation is in the best interest of the child. If the presumption is rebutted, the
  court shall, absent an agreement between the parents as to all matters related to custodial
  allocation, construct a parenting time schedule which maximizes the time each parent has with
  the child and is consistent with ensuring the child’s welfare.
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     §48-9-203. Proposed temporary parenting plan; temporary order; amendment.
         (a) A parent seeking a temporary order relating to parenting shall file and serve a proposed
 temporary parenting plan by motion. The other parent, if contesting the proposed temporary
 parenting plan, shall file and serve a responsive proposed parenting plan. Either parent may move
 to have a proposed temporary parenting plan entered as part of a temporary order. The parents
 may enter an agreed temporary parenting plan at any time as part of a temporary order. The
 proposed temporary parenting plan may be supported by relevant evidence and shall be verified
 and shall state at a minimum the following:
        (1) The name, address, and length of residence with the person or persons with whom the
 child has lived for the preceding 12 months;
        (2) The performance by each parent during the last 12 months of the parenting functions
 relating to the daily needs of the child;
         (3) The parents’ current work and child-care schedules; and
         (4) Any of the criteria set forth in §48-9-209 of this code that are likely to pose a serious
 risk to the child or that otherwise warrant limitation on the award to a parent of temporary
 residence or time with the child pending entry of a permanent parenting plan.
        (b) At the hearing, the court shall enter a temporary parenting order incorporating a
 temporary parenting plan which includes:
        (1) A schedule for the child’s time with each parent when appropriate;
        (2) Designation of a temporary residence or residences for the child;
        (3) Allocation of decision-making authority, if any. Absent allocation of decision-making
 authority consistent with §48-9-207 of this code, neither party shall make any decision for the child
 other than those relating to day-to-day or emergency care of the child, which shall be made by
 the party who is present with the child;
        (4) Provisions for temporary support for the child; and
        (5) Restraining orders, if applicable.
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        (c) If the parents have not agreed upon the allocation of physical custody of the child, then
 the allocation shall be made by the court upon the evidence presented at the hearing unless the
 parties have agreed to proceed by proffer.
        (d) Upon request of either parent for an equal (50-50) allocation of physical custody, the
 presumption provided in §48-1-102a of this code applies.
        (e) If the temporary allocation of physical custody is not on an equal (50-50) basis, it must
 contain specific findings of fact by the court, based upon evidence presented at a hearing, as to
 the reasons under §48-9-209 of this code that the court ordered the custodial allocation, along
 with the court’s legal conclusions supporting its decision.
        (f) A parent who has sought and been denied equal (50-50) physical custody, or who has
 been denied any physical custody, may file an interlocutory appeal with the West Virginia
 Intermediate Court of Appeals as to the temporary custodial allocation of the child or children, and
 the Intermediate Court of Appeals shall provide an expedited review of the order: Provided, That
 no stay shall be granted pending resolution of the appeal, and the filing of an interlocutory appeal
 shall not be the basis of a continuance of any subsequent or final hearing.
        (g) A parent may move for amendment of a temporary parenting plan, and the court may
 order amendment to the temporary parenting plan, if the amendment conforms to the limitations
 of and considerations required by §48-9-209 of this code and is in the best interest of the child.
 The court’s order modifying the plan shall be in writing and contain specific findings of fact upon
 which the court bases its determinations.
     §48-9-204. Criteria for temporary parenting plan.
         (a) After considering the proposed temporary parenting plan filed pursuant to §48-9-203
  of this code and other relevant evidence presented, the court shall make a temporary parenting
  plan that is in the best interest of the child, which shall be in writing and contain specific findings
  of fact upon which the court bases its determinations. In making this determination, the court shall
  give particular consideration to:
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         (1) Which parent has taken greater responsibility during the last 12 months for performing
 parenting functions relating to the daily needs of the child; and
         (2) Which parenting arrangements will cause the least disruption to the child’s emotional
 stability while the action is pending.
         (b) The court shall also consider the factors used to determine residential provisions in the
 permanent parenting plan.
         (c) Upon credible evidence of one or more of the circumstances set forth in §48-9-209(a)
 of this code, the court shall 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. The temporary order shall be in writing and include specific findings of fact
 supporting the court’s determination.
         (d) Expedited procedures shall be instituted to facilitate the prompt issuance of a parenting
 plan.
         (e) In establishing a temporary parenting plan, there shall be a presumption in favor of
 equal (50-50) physical custody which is rebuttable by a preponderance of the evidence, to be
 evaluated and considered in accordance with the criteria set forth in §48-9-209 of this code.
     §48-9-205. Permanent parenting plan.
          (a) A party seeking a judicial allocation of custodial responsibility or decision-making
  responsibility under this article shall file a proposed parenting plan with the court. Parties may file
  a joint plan. A proposed plan shall be verified and shall state, 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 of age, 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 §48-9-103 of this code;
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        (3) A description of the allocation of caretaking and other parenting responsibilities
 performed by each person named in §48-9-205(a)(1) and §48-9-205(a)(2) of this code;
        (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 criteria described in §48-9-209 of this code that are present,
 including any restraining orders against either parent to prevent domestic or family violence, by
 case number and jurisdiction;
        (7) Required financial information; and
        (8) A description of the known areas of agreement and disagreement with any other
 parenting plan submitted in the case.
        The court shall 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 shall develop a process to identify cases in which there is credible
 information that child abuse or neglect as defined in §49-1-201 of this code or domestic violence
 as defined in §48-27-202 of this code has occurred. The process shall include assistance for
 possible victims of domestic abuse in complying with §48-9-205(a)(6) of this code 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 shall 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 §48-9-202(b)
 of this code.
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         (c) Upon motion of a party and after consideration of the evidence, the court shall order a
 parenting plan consistent with the provisions of §48-9-206 through §48-9-209 of this code,
 containing:
         (1) A provision for the child’s living arrangements and each parent’s custodial
 responsibility, which shall 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 a schedule in sufficient detail that, if necessary,
 the schedule can be enforced in subsequent proceedings by the court;
         (2) An allocation of decision-making responsibility as to significant matters reasonably
 likely to arise with respect to the child;
         (3) A provision consistent with §48-9-202 of this code for resolution of disputes that arise
 under the plan and remedies for violations of the plan;
         (4) Provisions for the financial support of the child or children; and
         (5) A plan for the custody of the child if one or both of the parents as a member of the
 National Guard, a reserve component, or an active duty component are mobilized, deployed, or
 called to active duty.
         (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.
     §48-9-206. Allocation of custodial responsibility at final hearing.
          (a) Unless otherwise resolved by agreement of the parents under §48-9-201 of this code
  or unless harmful to the child, the court shall allocate custodial responsibility so that, except to
  the extent required under §48-9-209 of this code, the custodial time the child spends with each
  parent shall be equal (50-50).
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        (b) The court shall apply the principles set forth in §48-9-403 of this code 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.
        (c) The court may consider the allocation of custodial responsibility arising from temporary
 agreements made by the parties after separation if the court finds, by a preponderance of the
 evidence, that such agreements were consensual. The court shall afford those temporary
 consensual agreements the weight the court believes the agreements are entitled to receive,
 based upon the evidence. The court may not consider the temporary allocation of custodial
 responsibility imposed by a court order on the parties unless both parties agreed to the allocation
 provided for in the temporary order.
        (d) In the absence of an agreement of the parents, the court’s determination of allocation
 of custodial responsibility under this section shall be made pursuant to a final hearing, which shall
 be conducted by the presentation of evidence. The court’s order determining allocation of
 custodial responsibility shall be in writing, and include specific findings of fact and conclusions of
 law supporting the determination.
     §48-9-207. Allocation of significant decision-making responsibility at temporary or final hearing.
         (a) Unless otherwise resolved by agreement of the parents under §48-9-201 of this code,
  the court shall 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 both parents jointly, in
  accordance with the child’s best interest, in light of the ability or inability of the parents, based
  upon the evidence before the court, to work collaboratively and in cooperation with each other in
  decisionmaking on behalf of the child, and the existence of any criteria as set forth in §48-9-209
  of this code.
         (1) The level of each parent’s participation in past decision making on behalf of the child;
         (2) The wishes of the parents; and