CUSTODY ISSUES

WE AS GRANDPARENTS CANNOT TAKE SIDES IN DIVORCE ISSUES AS HARD AS IT MAY BE OUR CONCERNS MUST BE FOR THE CHILD. THAT IS WHY ENFORCING THE LAWS OF THE U.S. SUPREME COURT AND THE STATES COURTS ARE SO VERY IMPORTANT TO THE "BEST INTEREST OF THE CHILD." CHILDREN COME INTO THIS WORLD WITH TWO PARENTS, THEY HAVE THE CONSTITUTIONAL RIGHT TO KNOW AND HAVE A RELATIONSHIP WITH BOTH PARENTS. THE RELATIONSHIP IS A LIBERTY INTEREST PROTECTED BY THE BILL OF RIGHTS AND DUE PROCESS. TO HAVE ONE PARENT CONTROLLING THE RELATIONSHIP OF THE OTHER PARENT THROUGH INTIMIDATION, THREATS, OR COERCION IS DOMESTIC VIOLENCE, A FELONY IT IS PASS TIME FOR THE COURTS TO START ACTING ON THIS AS SUCH. INTERFERING WITH VISITATION IS A FELONY. VIOLATION OF THE RIGHTS OF THE CHILD TO KNOW BOTH PARENTS.

CHILD SUPPORT:
IT IS THE PARENTS RESPOSIBILITY TO SUPORT THEIR CHILDREN, BOTH PARENTS, IT IS THE RIGHT OF THE CHILD TO BE SUPPORTED BY THEIR PARENTS. CHILD SUPPORT IS THE PROPERTY OF THE CHILD, IT IS NOT FOR THE SUPPORT OF THE CUSTODIAL PARENT. CHILD SUPPORT SHOULD BE ACCOUNTED FOR A "PARENT CANNOT BENEFIT AT THE EXSPENCE OF THE CHILD." IT IS TIME FOR THE LEGISLATORS TO ACTUALLY WRITE LAWS THAT REFLECT THE STATEMENT "THE LEGISLATURE FURTHER FINDS THAT IN SUCH SITUATIONS, AS IN ALL SITUATIONS INVOLVING CHILDREN, THE "BEST INTEREST OF THE CHILDREN MUST BE THE PARAMOUNT CONSIDERATION"

THE PARENTS ARE THE ONES BEING DIVORCED NOT THE CHILDREN. IT IS TIME FOR THE PARENTS TO GET OVER IT AND UNDERSTAND THAT IT IS "THE BEST INTEREST OF THE CHILD" NOT THEIR INTEREST THAT THE COURTS MUST CONSIDER.

Our discussion group is located at WV Alliance FOR TWO PARENTS.

PROPOSED CHANGES TO THE WV CODE:

The West Virginia Shared Parenting Responsibility Act

Amending Chapter 48 of the West Virginia Code
Definitions.

The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:

Joint custody:
Joint legal and physical custody. An award of joint legal and physical custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and unless allocated, apportioned or decreed, the parents or parties shall confer with one another in the exercise of decision-making rights, responsibilities and authority.

Joint legal custody:
The state in which the parents or parties share, have voluntarily allocated or the court has decreed between them the decision-making rights, responsibilities and authority relating to the health, education and welfare of a child. Joint physical custody; The state in which the court has entered an order awarding each of the parents significant periods of time in which a child resides with or under the care and supervision of each of the parents or parties. Joint physical custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents.

Shared custody:
An order awarding shared legal or shared physical custody, or both, of a child in such a way as to assure the child of frequent and continuing contact with and physical access to both parents.

Parenting time:
Chapter ____ Section ____ of West Virginia Code shall be amended to substitute the words "parenting time" for the word "visitation."

Primary residence:
the residence of the parent with whom the child spends the most time according to a joint parenting plan; in cases where children spend equal time in both homes, it shall be defined as the home which is located in the child's school district. Children whose parents reside in the same school district and who spend equal amounts of time with both parents shall not have a primary residence as defined by this statute. Both homes shall be considered the child's primary residence.

Public Policy.

The public policy of this state is to:
(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a stable environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

A court may not render an order that conditions the right of a parent to possession of or access to a child on the payment of child support.>p> Alternate Dispute Resolution Procedures.

On written agreement of the parties, the court may refer a suit affecting the parent-child relationship to arbitration. The agreement must state whether the arbitration is binding or non-binding.
If the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator's award unless the court determines at a non-jury hearing that the award is not in the best interest of the child. The burden of proof at a hearing under this subsection is on the party seeking to avoid rendition of an order based on the arbitrator's award.

On the written agreement of the parties or on the court's own motion, the court may refer a suit affecting the parent-child relationship to mediation.
A mediated settlement agreement is binding on the parties if the agreement:
(1) provides in a separate paragraph an underlined statement that the agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is present at the time the greement is signed.

If a mediated settlement agreement meets the requirements of the above section, a party is entitled to judgment on the mediated settlement agreement notwithstanding another rule of law.
Order for Family Counseling.
The court shall require the parents to attend counseling sessions except where the parents have agreed to a joint custody award, in which case counseling is at the court' s discretion, and shall, where the court has ordered counseling consider the recommendations of the counselors prior to awarding sole or joint custody. These counseling sessions may include, but shall not be limited to, discussions of the responsibilities and decision making, arrangements involved in both sole and joint custody and the suitability of each arrangement to the capabilities of each parent or both parents.

If the court finds at the time of a hearing that the parties have a history of conflict in resolving an issue of custody of or access to the child, the court may order a party to:

(1) participate in counseling with a mental health professional who:
(a) has a background in family therapy;
(b) has a mental health license that requires as a minimum a master's degree; and
(c) has training in domestic violence if the court determines that the training is relevant to the type of counseling needed; and
(2) pay the cost of counseling.
If a person possessing the requirements of this section is not available in the county in which the court presides, the court may appoint a person the court believes is qualified to conduct the counseling ordered under this section.

Award of custody, partial custody and parenting time.

An order for joint custody shall be awarded by the court unless the court finds that joint custody is not in the best interest of the child. There shall be a rebuttable presumption that an award of joint custody is in the best interest of the child. The court shall state on the record the reason for an award other than an award of joint custody.
There shall be a presumption that shared parental responsibility is in the best interests of minor children unless:
(a) The parents have agreed to an award of residential placement or decision-making authority to only one parent; or
(b) The court finds that shared parental responsibility would be detrimental to the child or children.

A parent alleging that shared parental responsibility would be detrimental to the child or children shall have the burden of establishing the allegation.

If a parent alleges that shared parental responsibility would be detrimental to a particular child, the court, in making a determination whether a shared parental responsibility order is appropriate, may direct that an investigation be conducted in accordance with the provisions of West Virginia Code. If the court declines to enter a shared parental responsibility order, the court shall enter findings of fact and conclusions of law stating the reasons that shared parental responsibility is detrimental to the child or children.

Determination of Primary Residence

Factors for court's consideration in determining the child's primary residence:
(1) The love, affection and other emotional ties existing between the parties involved and the child.
(2) The capacity and disposition of the parties involved to give the child love, affection and guidance, and to continue the education and raising of the child in his or her religion or creed, if any.
(3) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care and other material needs.
(4) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(5) The permanence of the family unit of the existing or proposed custodial home or homes.
(6) The moral fitness of the parties involved.
(7) The mental and physical health of the parties involved.
(8) The home, school and community record of the child.
(9) The reasonable preference of the child if the court considers the child to be of sufficient age to express preference.
(10) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent/child relationship between the child and the other parent or the child and the parents.
(11) Domestic violence - regardless of whether the violence was directed against or witnessed by the child.
(12) Any other factor considered by the court to be relevant to a particular child custody dispute.

Change of Primary Residence
A parent shall not move the child's primary residence without the permission of the court if the move will materially affect the current schedule of contact and access with the other parent. It is presumed that a material change in the current schedule of contact will occur if the move is more than 45 miles away from the child's current primary residence. The residential parent must seek permission of the court at least 90 days prior to the scheduled move. In determining whether the child's primary residence may be moved, the court shall consider:
1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child. The burden of proving that the move would be in the best interest of the child lies with the parent wishing to move the child.
2. The extent to which parenting time rights have been allowed and exercised.
3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute parenting time arrangements.
4. Whether the substitute parenting time will be adequate to foster a continuing meaningful relationship between the child and the other parent.
5. Whether the cost of transportation is financially affordable by one or both parties.
6. Whether the move is in the best interests of the child

Consideration of criminal conviction.
If a parent has been convicted of or has pleaded guilty or no contest to an offense as set forth below, the court shall consider such criminal conduct and shall determine that the parent does not pose a threat of harm to the child before making an order of joint custody or sole custody to that parent:
homicide
kidnapping
unlawful restraint
sexual assault
involuntary deviate sexual intercourse
aggravated indecent assault
indecent assault
indecent exposure
incest
endangering welfare of children
prostitution and related offenses
sexual abuse of children
A parent who has obtained information relating to availability of criminal charge information in child custody proceedings of the charge filed against the other parent for an offense listed in the following list may move for a temporary custody order or to modify an existing custody, partial custody or parenting time order. The temporary custody or modification hearing shall be scheduled expeditiously.
In evaluating any request for temporary custody or modification of a custody, partial custody or visitation order, the court shall consider whether the parent who is or has been charged with an offense listed below poses a risk of harm to the child:
aggravated assault
terroristic threats
harassment and stalking
false imprisonment
arson and related offenses
sexual abuse of children
contempt for violation of order or agreement
Failure to apply for information under this subsection shall not prejudice any parent in a custody or parenting time proceeding.
Counseling
In making a determination to award custody, partial custody or visitation pursuant to this section, the court shall appoint a qualified professional to provide counseling to an offending parent described in this section and shall take testimony from that professional regarding the provision of such counseling prior to issuing any order of joint custody, sole custody or unsupervised visitation. Counseling, required in accordance with this subsection, shall include a program of treatment or individual therapy designed to rehabilitate a parent which addresses, but is not limited to, issues regarding physical and sexual abuse, domestic violence, the psychology of the offender and the effects of abuse on the victim. If the court awards custody, partial custody or unsupervised visitation to an offending parent described in this section, the court may require subsequent periodic counseling and reports on the rehabilitation of the offending parent and the well-being of the child following an order relating to sole custody, joint custody or visitation. If, upon review of a subsequent report or reports, the court determines that the offending parent poses a threat of harm to the child, the court: may schedule a hearing and modify the order of custody or visitation to protect the well being of the child.

Relationship of joint custody to child support.
An award of joint custody shall not by itself diminish nor increase the responsibility of each parent to provide for the financial support of the child. Joint custody shall not be decreed exclusively for the purpose of affecting child support and joint custody by itself shall not constitute sufficient grounds for modification of a support order.

Plan for implementation of custody order.

Mandatory plan.--
In awarding joint custody, the court shall require parents to submit a parenting plan. The court may order mediation where appropriate to assist parents in producing an individual or joint parenting plan. In the event the parents fail to submit an agreed-to parenting plan, the court shall produce the plan after consultation with the mediator. The court shall give consideration to any individual parenting plan produced by either or both parents, providing the plan meets the minimum required contact with both parents as outlined in this chapter. The parenting plan shall include provisions covering matters relevant to the care and custody of the child, including , but not limited to:
(1) the child's education and religious training;
(2) the child's health care;
(3) the child's personal care and control, including parenting time, holidays, vacations and child care;
(4) transportation arrangements;
(5) a procedure by which proposed changes, disputes and alleged breaches of the parenting plan may be mediated, adjudicated, arbitrated, or otherwise resolved; and
(6) any other factors the court deems to be in the best interest of the child

Enforcement of order.--In making an order of joint custody, the court shall specify the right of each parent to the physical control of the child in sufficient detail to enable a parent deprived of that control to enforce the court order and to enable law enforcement authorities to implement laws for relief of parental kidnapping.

Receipt of public welfare.--One parent may be designated as a public welfare recipient in situations where public welfare aid is deemed necessary and appropriate.
Discretionary. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of any other type of custody ordered under this chapter. Upon the request of either the parent or the court, the domestic relations section of the court or other party or agency approved by the court shall assist in the formulation and implementation of the plan
Minimum contact requirements.

The court shall not approve a parenting plan that does not meet the minimum parental contact outlined in this section:
For parents who live within 60 miles of one another: Parenting time schedules should equally distribute the child's time between both parent's households with a target of 50/50 contact with both parents. The court shall not accept parenting plans that include the child spending less than 35 percent of his or her time with the non-residential parent, including, but not limited to:

1. a minimum of 128 overnights per year in the non-residential parent's home
2. a minimum of 104 periods of contact per year of at least 3 ½ hours in duration in addition to the overnights. These may be overnights if the non-residential parent agrees to make arrangements to transport the children to school (the parent may delegate that authority to a responsible adult)
3. alternating holidays as set forth below, which are in addition to the minimum visits outlined above
4. the non-residential parent must be given the first right of refusal for baby-sitting when the residential parent requires child care during his/her parenting time with the child.
5. the parenting plan shall take into account the work schedules of the parents and will make allowances for non-residential parents who must work nights, shift work, or who must travel with work.
6. Equal contact with both maternal and paternal grandparents, if they are living, available and wish to have contact with the children.

Example of parenting time schedule for non-residential parent:
1. The child shall be with the non-residential parent on the first, third and fifth weekends of every month, commencing from the time school is dismissed on Friday or the non-residential parent is dismissed from work, until 8 p.m. on Sunday, or the time school resumes on Monday, at the non-residential parent's discretion. For children who are not yet of school age, the visits may end on Monday at the regular time the child goes to day care, a baby-sitter or other caregiver or preschool.

2. The child shall be with the non-residential parent from the time school is dismissed each Tuesday and Thursday until 9 p.m., or until school resumes the next day, at the non-residential parent's discretion; or from the time the non-residential parent is dismissed from work until 9 p.m. The visit may end at the time school resumes the next day at the non-residential parent's discretion. For children who are not yet of school age, the visits may end the next day at the regular time the child goes to day care, a baby-sitter or other caregiver or preschool. The non-residential parent shall be responsible for supervising homework and transporting the child to extra-curricular activities during the non-residential parent's parenting time.

3. The child shall be with the non-residential parent for a duration of not less than six weeks each summer, from the day after school is dismissed for 42 consecutive days, or other six-week period at the non-residential parent's discretion. In the event the child's school district has year-round school, the non-residential parent shall be responsible for making sure the child is transported to school by a responsible adult.

4. Alternating holidays as outlined in the holiday schedule.

5. The non-residential parent may, at his or her discretion, visit with the child at least once per week during lunch break from school. For children that are not of school age, the non-residential parent may pick the child up from day care, preschool, the baby-sitter or other caregiver's home for a lunch or other visit at least once per week.

Holiday Schedule
The following provisions govern the parents' access to the child for vacations and certain specific holidays and supersede conflicting weekend, weekday periods of parenting time. Holiday time is in addition to weekend and weekday access and regularly-scheduled parenting may not be curtailed because it may extend the parents' holiday access. The parents shall have time with the child as follows:
Spring Break:
the non-residential parent shall have parenting time in even-numbered years, beginning at 6 p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6 p.m. on the day before school resumes after that vacation, and the residential parent shall have parenting time for the same period in odd-numbered years;
Christmas Break: the non-residential parent shall have parenting time in even-numbered years, beginning at 6 p.m. on the day the child is dismissed from school and ending at 4 p.m. Christmas Day, and the residential parent shall be with the child from 4 p.m. Christmas Day until 7 p.m. New Year's Day. In odd-numbered years, the residential parent will be with the child from the day school is dismissed until 4 p.m. Christmas day and the non-residential parent will be with the child from 4 p.m. Christmas Day until 7 p.m. New Year's Day.
Other holidays: The non-residential parent shall be with the child in even-numbered years for the following holidays and the residential parent will be with the child in odd-numbered years:
Memorial Day holiday: from after school or work on Friday until an hour before bedtime on Monday or school resumes on Tuesday, at the non-residential parent's discretion.
Labor Day holiday: from after school or work on Friday until an hour before bedtime on Monday or school resumes on Tuesday, at the non-residential parent's discretion.>br> The non-residential parent shall be with the child in odd-numbered years for the following holidays, and the residential parent shall be with the child in even-numbered years:
July 4 holiday: from after school or work on Friday until an hour before bedtime on Monday or school resumes on Tuesday, at the non-residential parent's discretion.
Halloween: from after school on the day Trick or Treat is observed in the parent whose year it is to celebrate the holiday with the child until an hour before bedtime on Sunday or until school resumes on Monday, at the non-residential parent's discretion. If the child is scheduled to attend school during this period, the non-residential parent is responsible for having the child transported to school by a responsible adult.
Thanksgiving: from after school or work on the Friday before Thanksgiving until the Sunday after Thanksgiving at an hour before bedtime, or when school resumes the Monday after Thanksgiving, regardless of whether the child is scheduled to attend school during this period. If school is in session for a portion of this period, the non-residential parent is responsible for having the child transported to school by a responsible adult.

Access to records and information.
Each parent shall be provided access to all the medical, dental, religious or school records of the child, the residence address of the child and of the other parent and any other information that the other parent has access to.

Court determination not to release information. The court, in its discretion, may determine not to release any part or parts of the information in this section but in doing so must state its reason for denial on the record.

Nondisclosure of confidential information.--The court shall not order that the address of a shelter for battered spouses and their dependent children or otherwise confidential information of a domestic violence counselor be disclosed to the defendant or his counsel or any party to the proceedings.

Equal access to records both parents --notwithstanding any other provision of law, access to any records and information pertaining to the child shall not be denied any parent for the sole reason that such parent is not a custodial parent of the child

Modification of existing custody orders

Any order for the custody of a child of a marriage, adoption or relationship between two unmarried parents entered by a court in this state or any state may, subject to the jurisdictional requirements set forth in this code be modified at any time to an order of sole custody or shared custody in accordance with this chapter to reflect changes in circumstances which make the prior custody order insufficient or ineffective.

No Discrimination Based on Sex or Marital Status.

The court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining:
(1) which party to appoint as primary residential parent;
(2) whether to order joint custody ; and
(3) the terms and conditions of Access to

PRESENT LAW:

If both parents agree on "Joint Custody" as part of their break-up or divorce with the "Parenting Plan" spelled out clearly, and the issue of "child support" (if any), satisfactory to both, then and only then will "Joint Custody" be of any value.

< <

a. child abuse, and/or

b. spousal abuse
and the biggest problem of all..........

5. By accepting "Joint Custody", the father has damaged himself in the eyes of the Court, because the father has never said that he could raise his children by himself, IT MEANS THE FATHER IS WORKING IN THE BEST INTEREST OF THE CHILD AS THE CHILD LOVES BOTH PARENTS AND DESERVES A GOOD RELATIONSHIP WITH BOTH (without the mother if necessary) as a "fit and proper parent" (leaving open the question as to the father's abilities, and all other fathers). THIS IS NOT A TRUE ASSUMPTION

IF THE PARENTS ARE NOT WILLING TO WORK TOGETHER THEN THE COURTS SHOULD USE THE 12 FACTORS TO DETERMINE THE BETTER PARENT. IF AND WHEN THE OTHER PARENT DECIDES TO WORK FOR THE BEST OF THE CHILDREN THEN CHANGE THE ORDER TO JOINT CUSTODY. THE COURTS ACTUALLY HAVE TO ACT IN THE BEST INTEREST OF CHILDREN AND STOP THE DISCRIMINATION AGAINST PARENTS.

CZAR
GENNY
"WV GrandChildren/GrandParents HOME"
"Children and Divorce"
Signs of Domestic Violence

Webailey@www.rcvideo.com

© 1997 webailey@rcvideo.com

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