Email WV Code

Email: Chapter 48

CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.

PART 1. GENERAL PROVISIONS.

§48-1-101. Short title; intent of recodification.

(a) This chapter sets forth the "West Virginia Domestic Relations Act."

(b) The recodification of this chapter during the regular session of the Legislature in the year 2001 is intended to embrace in a revised, consolidated, and codified form and arrangement the laws of the State of West Virginia relating to domestic relations at the time of that enactment.

§48-1-102. Legislative intent; continuation of existing statutory provisions.

In recodifying the domestic relations law of this state during the regular session of the Legislature in the year 2001 through the passage of House Bill 2199 it is intended by the Legislature that each specific reenactment of a substantively similar prior statutory provision will be construed as continuing the intended meaning of the corresponding prior statutory provision and any existing judicial interpretation of the prior statutory provision. It is not the intent of the Legislature, by recodifying the domestic relations law of this state during the regular session of the Legislature in the year 2001 through the passage of House Bill 2199 to alter the substantive law of this state as it relates to domestic relations.

§48-1-103. Operative date of enactment; effect on existing law.

The amendment and reenactment of chapter forty-eight of this code and the repeal of chapters forty-eight-a, forty-eight-b and forty-eight-c of this code pursuant to the provisions of Enrolled Committee Substitute for House Bill No. 2199, as enacted by the Legislature during the regular session, 2001, are operative on September 1, 2001. The prior enactments of chapters forty-eight, forty-eight-a, forty-eight-b and forty-eight-c of this code, whether amended and reenacted or repealed by the passage of Enrolled Committee Substitute for House Bill No. 2199 have full force and effect until the provisions of Enrolled Committee Substitute for House Bill No. 2199 are operative on September 1, 2001, unless after the effective date of Enrolled Committee Substitute for House Bill No. 2199 and prior to the operative date of September 1, 2001, the provisions of Enrolled Committee Substitute for House Bill No. 2199 are otherwise repealed or amended and reenacted

§48-1-104. West Virginia code replacement.

The Department of Health and Human Resources is not required to change any form or letter that contains a citation to this code that is changed or otherwise affected by the recodification of this chapter during the regular session of the Legislature in the year 2001 through the passage of Committee Substitute for House Bill 2199, unless specifically required by a provision of this code.

PART 2. DEFINITIONS.

§48-1-201. Applicability of definitions.

For the purposes of this chapter the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them in this article. These definitions are applicable unless a different meaning clearly appears from the context.

PART 2. DEFINITIONS.

§48-1-202. Adjusted gross income defined.

(a) "Adjusted gross income" means gross income less the payment of previously ordered child support, spousal support or separate maintenance.

(b) A further deduction from gross income for additional dependents may be allowed by the court if the parent has legal dependents other than those for whom support is being determined. An adjustment may be used in the establishment of a child support order or in a review of a child support order. However, in cases where a modification is sought, the adjustment should not be used to the extent that it results in a support amount lower than the previously existing order for the children who are the subject of the modification. The court may elect to use the following adjustment because it allots equitable shares of support to all of the support obligor's legal dependents. Using the income of the support obligor only, determine the basic child support obligation (from the table of basic child support obligations in section 13-301 of this chapter) for the number of additional legal dependents living with the support obligor. Multiply this figure by 0.75 and subtract this amount from the support obligor's gross income.

(c) As used in this section, the term "legal dependents" means:

(1) Minor natural or adopted children who live with the parent; and

(2) Natural or adopted adult children who are totally incapacitated because of physical or emotional disabilities and for whom the parent owes a duty of support.

§48-1-203. Antenuptial or prenuptial agreement defined.

"Antenuptial agreement" or "prenuptial agreement" means an agreement between a man and woman before marriage, but in contemplation and generally in consideration of marriage, by which the property rights and interests of the prospective husband and wife, or both of them, are determined, or where property is secured to either or both of them, to their separate estate, or to their children or other persons. An antenuptial agreement may include provisions that define the respective property rights of the parties during the marriage, or upon the death of either or both of the parties. The agreement may provide for the disposition of marital property upon an annulment of the marriage or a divorce or separation of the parties. A prenuptial agreement is void if at the time it is made either of the parties is a minor.

§48-1-204. Arrearages or past due support defined.

"Arrearages" or "past due support" means the total of any matured, unpaid installments of child support required to be paid by an order entered or modified by a court of competent jurisdiction, or by the order of a magistrate court of this state, and shall stand, by operation of law, as a decretal judgment against the obligor owing such support. The amount of unpaid support shall bear interest from the date it accrued, at a rate of five percent per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time. Except as provided in rule 23 of rules of practice and procedure for family law and as provided in section 1-302, a child support order may not be retroactively modified so as to cancel or alter accrued installments of support.

§48-1-205. Attributed income defined.

(a) "Attributed income" means income not actually earned by a parent but which may be attributed to the parent because he or she is unemployed, is not working full time or is working below full earning capacity or has nonperforming or underperforming assets. Income may be attributed to a parent if the court evaluates the parent's earning capacity in the local economy (giving consideration to relevant evidence that pertains to the parent's work history, qualifications, education and physical or mental condition) and determines that the parent is unemployed, is not working full time or is working below full earning capacity. Income may also be attributed to a parent if the court finds that the obligor has nonperforming or underperforming assets.

(b) If an obligor: (1) Voluntarily leaves employment or voluntarily alters his or her pattern of employment so as to be unemployed, underemployed or employed below full earning capacity; (2) is able to work and is available for full-time work for which he or she is fitted by prior training or experience; and (3) is not seeking employment in the manner that a reasonably prudent person in his or her circumstances would do, then an alternative method for the court to determine gross income is to attribute to the person an earning capacity based on his or her previous income. If the obligor's work history, qualifications, education or physical or mental condition cannot be determined, or if there is an inadequate record of the obligor's previous income, the court may, as a minimum, base attributed income on full-time employment (at forty hours per week) at the federal minimum wage in effect at the time the support obligation is established. In order for the court to consider attribution of income, it is not necessary for the court to find that the obligor's termination or alteration of employment was for the purpose of evading a support obligation.

(c) Income shall not be attributed to an obligor who is unemployed or underemployed or is otherwise working below full earning capacity if any of the following conditions exist:

(1) The parent is providing care required by the children to whom both of the parties owe a legal responsibility for support and such children are of preschool age or are handicapped or otherwise in a situation requiring particular care by the parent;

(2) The parent is pursing a plan of economic self-improvement which will result, within a reasonable time, in an economic benefit to the children to whom the support obligation is owed, including, but not limited to, self-employment or education: Provided, That if the parent is involved in an educational program, the court shall ascertain that the person is making substantial progress toward completion of the program;

(3) The parent is, for valid medical reasons, earning an income in an amount less than previously earned; or

(4) The court makes a written finding that other circumstances exist which would make the attribution of income inequitable: Provided, That in such case the court may decrease the amount of attributed income to an extent required to remove such inequity.

(d) The court may attribute income to a parent's nonperforming or underperforming assets, other than the parent's primary residence. Assets may be considered to be nonperforming or underperforming to the extent that they do not produce income at a rate equivalent to the current six-month certificate of deposit rate or such other rate that the court determines is reasonable.

§48-1-206. Automatic data processing and retrieval system defined.

"Automatic data processing and retrieval system" means a computerized data processing system designed to do the following:

(1) To control, account for and monitor all of the factors in the support enforcement collection and paternity determination process, including, but not limited to:

(A) Identifiable correlation factors (such as social security numbers, names, dates of birth, home addresses and mailing addresses of any individual with respect to whom support obligations are sought to be established or enforced and with respect to any person to whom such support obligations are owing) to assure sufficient compatibility among the systems of different jurisdictions to permit periodic screening to determine whether such individual is paying or is obligated to pay support in more than one jurisdiction;

(B) Checking of records of such individuals on a periodic basis with federal, interstate, intrastate and local agencies;

(C) Maintaining the data necessary to meet applicable federal reporting requirements on a timely basis; and

(D) Delinquency and enforcement activities;

(2) To control, account for and monitor the collection and distribution of support payments (both interstate and intrastate) the determination, collection and distribution of incentive payments (both interstate and intrastate), and the maintenance of accounts receivable on all amounts owed, collected and distributed;

(3) To control, account for and monitor the costs of all services rendered, either directly or by exchanging information with state agencies responsible for maintaining financial management and expenditure information;

(4) To provide access to the records of the Department of Health and Human Resources in order to determine if a collection of a support payment causes a change affecting eligibility for or the amount of aid under such program;

(5) To provide for security against unauthorized access to, or use of, the data in such system;

(6) To facilitate the development and improvement of the income withholding and other procedures designed to improve the effectiveness of support enforcement through the monitoring of support payments, the maintenance of accurate records regarding the payment of support and the prompt provision of notice to appropriate officials with respect to any arrearage in support payments which may occur; and

(7) To provide management information on all cases from initial referral or application through collection and enforcement.

§48-1-207. Basic child support obligation defined.

"Basic child support obligation" means the base amount of child support due by both parents as determined by the table of basic child support obligations set forth in section 13-301 of this chapter, based upon the combined adjusted gross income of the parents and the number of children to whom support is due.

§48-1-208. Bureau for child support enforcement defined.

"Bureau for child support enforcement" means the agency created under the provisions of article eighteen of this chapter, or any public or private entity or agency contracting to provide a service. The "Bureau for Child Support enforcement" is that agency intended by the Legislature to be the single and separate organizational unit of state government administering programs of child and spousal support enforcement and meeting the staffing and organizational requirements of the secretary of the federal department of health and human services. A reference in this chapter and elsewhere in this code to the "child advocate office" or the child support enforcement division shall be interpreted to refer to the Bureau for Child Support enforcement.

§48-1-209. Bureau for child support enforcement attorney defined.

"Bureau for child support enforcement attorney" means those persons or agencies or entities providing services under the direction of or pursuant to a contract with the Bureau for Child Support enforcement as provided in article eighteen of this chapter.

§48-1-210. Caretaker and caretaking functions defined.

 (a) "Caretaker" means a person who performs one or more caretaking functions for a child. The term "caretaking functions" means activities that involve interaction with a child and the care of a child. Caretaking functions also include the supervision and direction of interaction and care provided by other persons.

(b) Caretaking functions include the following:

(1) Performing functions that meet the daily physical needs of the child. These functions include, but are not limited to, the following:

(A) Feeding;

(B) Dressing;

(C) Bedtime and wake-up routines;

(D) Caring for the child when sick or hurt;

(E) Bathing and grooming;

(F) Recreation and play;

(G) Physical safety; and

(H) Transportation.

(2) Direction of the child's various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence and maturation;

(3) Discipline, instruction in manners, assignment and supervision of chores and other tasks that attend to the child's needs for behavioral control and self-restraint;

(4) Arrangements for the child's education, including remedial or special services appropriate to the child's needs and interests, communication with teachers and counselors and supervision of homework;

(5) The development and maintenance of appropriate interpersonal relationships with peers, siblings and adults;

(6) Arrangements for health care, which includes making medical appointments, communicating with health care providers and providing medical follow-up and home health care;

(7) Moral guidance; and

(8) Arrangement of alternative care by a family member, baby-sitter or other child care provider or facility, including investigation of alternatives, communication with providers and supervision.

§48-1-211. Chief judge defined.

"Chief judge" means the circuit judge of the circuit court in a judicial circuit that has only one circuit judge, or the chief judge of the circuit court in a judicial circuit that has two or more circuit judges.

§48-1-212. Clergy defined.

"Clergy" includes a minister, priest, rabbi or other clergy who has qualified as such before the county commission or the clerk of the county commission as provided for in section 2-402 of this chapter.

§48-1-213. Combined adjusted gross income defined.

"Combined adjusted gross income" means the combined monthly adjusted gross incomes of both parents.

§48-1-214. Commissioner defined.

" Commissioner" means any person appointed pursuant to section 18-102, who directs all child support establishment and enforcement services for the Bureau for Child Support enforcement.

§48-1-215. Contingent fee agreement defined.

(a) "Contingent fee agreement" means a contract under which an attorney may be compensated for work in progress, dependent on the occurrence of some future event which is not certain and absolute. As such, a contingent fee agreement is not an asset, but is potential income or income capacity. This potential income may have current value, and a portion of that current value, if any, may be considered to be a marital asset. In the event a party seeks to quantify the current value of a particular contingent fee agreement for the purpose of establishing the value of the agreement as marital property, the court must find that the party has proved such value by a preponderance of the evidence. Factors to be considered by the court include, but are not limited to, the following:

(1) The nature of the particular case or claim which underlies the agreement;

(2) The jurisdiction or venue of any projected trial or proceeding;

(3) Any historical data relevant to verdicts or settlements within the jurisdiction where the case or claim is pending or may be brought;

(4) The terms and particulars of the agreement;

(5) The status of the case or claim at valuation date;

(6) The amount of time spent working on the case or claim prior to the valuation date, and an analysis of the nature of how that time was spent, including, but not limited to, such activities such as investigation, research, discovery, trial or appellate practice;

(7) The extent of the person's active role in the work in process, whether as an actual participant or as an indirect participant such as a partner, local counsel or other ancillary role;

(8) The age of the case or claim;

(9) The expenses accrued or projected to bring the case or claim to resolution, including any office overhead attributable to case or claim; and

(10) The probable tax consequences attendant to a successful resolution of the case or claim.

(b) The provisions of this section as enacted during the regular session of the Legislature, one thousand nine hundred ninety-six, are to be applied prospectively and shall have no application to any action for annulment, divorce or separate maintenance that was commenced on or before June 7, 1996.

§48-1-216. Court defined.

"Court" means a family court of this state unless the context in which such term is used clearly indicates that reference to some other court is intended.

§48-1-217. Court of competent jurisdiction defined.

"Court of competent jurisdiction" means a circuit court or family court within this state or a court or administrative agency of another state having jurisdiction and due legal authority to deal with the subject matter of the establishment and enforcement of support obligations. Whenever in this chapter reference is made to an order of a court of competent jurisdiction, or similar wording, such language shall be interpreted so as to include orders of an administrative agency entered in a state where enforceable orders may by law be properly made and entered by such administrative agency.

§48-1-218. Custodial parent defined.

"Custodial parent" or "custodial parent of a child" means a parent who has been granted custody of a child by a court of competent jurisdiction. "Noncustodial parent" means a parent of a child with respect to whom custody has been adjudicated with the result that such parent has not been granted custody of the child.

§48-1-219. Custodial responsibility defined.

"Custodial responsibility" refers to physical custodianship and supervision of a child. It usually includes, but does not necessarily require, the exercise of residential or overnight responsibility.

§48-1-220. Decision-making responsibility defined.

“Decision-making responsibility” refers to authority for making significant life decisions on behalf of a child, including, but not limited to, the child’s education, spiritual guidance and health care: Provided, That with regard to healthcare, both parents in any shared parenting plan, regardless of the relative ratio of parenting time allocated between the parents, shall have the authority to make emergency or other non-elective healthcare decisions concerning their child necessary for the child’s health or welfare during such parent’s parenting time.

§48-1-221. Divorce defined.

"Divorce" means the judicial termination of a marriage contract. The termination of a marriage contract must be based on misconduct or other statutory cause arising after the marriage. A divorce is established by the order of a family court or circuit court that changes the status of a husband and wife from a state of marriage to that of single persons.

PART 2. DEFINITIONS.

§48-1-222. Domestic relations action defined.

"Domestic relations action" means an action:

(1) To obtain a divorce;

(2) To have a marriage annulled;

(3) To be granted separate maintenance;

(4) To establish paternity;

(5) To establish and enforce child or spousal support, including actions brought under the provisions of the uniform interstate family support act; and

(6) To allocate custodial responsibility and determine decision-making responsibility, or to otherwise determine child custody, as in an action petitioning for a writ of habeas corpus wherein the issue is child custody.

§48-1-223. Earnings defined.

"Earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program. "Disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.

§48-1-224. Employer defined.

"Employer" means any individual, sole proprietorship, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, any other state or a political subdivision of another state and any other legal entity which hires and pays an individual for his services.

§48-1-225. Extraordinary medical expenses defined.

"Extraordinary medical expenses" means uninsured medical expenses in excess of $250 per year per child which are recurring and can reasonably be predicted by the court at the time of establishment or modification of a child support order. Such expenses shall include, but not be limited to, insurance copayments and deductibles, reasonable costs for necessary orthodontia, dental treatment, asthma treatments, physical therapy, prescription pharmaceuticals, vision therapy and eye care and any uninsured chronic health problem.

§48-1-226. Family court judge defined.

"Family court judge" means a family court judge appointed or elected and authorized to hear certain domestic relations actions as provided in article two-a, chapter fifty-one of this code.

§48-1-227. Final divorce or final annulment order defined.

"Final divorce order" or "final annulment order" means an order that grants or denies the judicial termination of a marriage contract.

§48-1-228. Gross income defined.

(a) "Gross income" means all earned and unearned income. The word "income" means gross income unless the word is otherwise qualified or unless a different meaning clearly appears from the context. When determining whether an income source should be included in the child support calculation, the court shall consider the income source if it would have been available to pay child-rearing expenses had the family remained intact or, in cases involving a nonmarital birth, if a household had been formed.

(b) "Gross income" includes, but is not limited to, the following:

(1) Earnings in the form of salaries, wages, commissions, fees, bonuses, profit sharing, tips and other income;

(2) Any payment from a pension plan, an insurance contract, an annuity, social security benefits, unemployment compensation, supplemental employment benefits, workers' compensation benefits and state lottery winnings and prizes;

(3) Interest, dividends or royalties;

(4) In kind payments such as business expense accounts, business credit accounts and tangible property such as automobiles and meals, to the extent that they provide the parent with property or services he or she would otherwise have to provide: Provided, That reimbursement of actual expenses incurred and documented shall not be included as gross income;

(5) Attributed income of the parent, calculated in accordance with the provisions of section 1-205;

(6) An amount equal to fifty percent of the average compensation paid for personal services as overtime compensation during the preceding thirty-six months: Provided, That overtime compensation may be excluded from gross income if the parent with the overtime income demonstrates to the court that the overtime work is voluntarily performed and that he or she did not have a previous pattern of working overtime hours prior to separation or the birth of a nonmarital child;

(7) Income from self-employment or the operation of a business, minus ordinary and necessary expenses which are not reimbursable, and which are lawfully deductible in computing taxable income under applicable income tax laws, and minus FICA and Medicare contributions made in excess of the amount that would be paid on an equal amount of income if the parent was not self-employed: Provided, That the amount of monthly income to be included in gross income shall be determined by averaging the income from such employment during the previous thirty-six-month period or during a period beginning with the month in which the parent first received such income, whichever period is shorter;

(8) Income from seasonal employment or other sporadic sources: Provided, That the amount of monthly income to be included in gross income shall be determined by averaging the income from seasonal employment or other sporadic sources received during the previous thirty-six-month period or during a period beginning with the month in which the parent first received such compensation, whichever period is shorter; and

(9) Spousal support and separate maintenance receipts.

(c) Depending on the circumstances of the particular case, the court may also include severance pay, capital gains and net gambling, gifts or prizes as gross income.

(d) "Gross income" does not include:

(1) Income received by other household members such as a new spouse;

(2) Child support received for the children of another relationship;

(3) Means-tested assistance such as temporary assistance for needy families, supplemental security income and food stamps; and

(4) A child's income unless the court determines that the child's income substantially reduces the family's living expenses.

§48-1-229. Guardian of the property of a child defined.

"Guardian of the property of a child" means a person lawfully invested with the power, and charged with the duty, of managing and controlling the estate of a child.

§48-1-230. Income defined.

"Income" includes, but is not limited to, the following:

(1) Commissions, earnings, salaries, wages and other income due or to be due in the future to an individual from his or her employer and successor employers;

(2) Any payment due or to be due in the future to an individual from a profit-sharing plan, a pension plan, an insurance contract, an annuity, Social Security, unemployment compensation, supplemental employment benefits, workers' compensation benefits, state lottery winnings and prizes and overtime pay;

(3) Any amount of money which is owing to an individual as a debt from an individual, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, any other state or a political subdivision of another state or any other legal entity which is indebted to the obligor;

(4) Any amount of money which is held by the Regional Jail Authority for an inmate in an inmate's concession account.

§48-1-231. Individual entitled to support enforcement services under the provisions of this chapter and the provisions of Title IV-D of the federal Social Security Act defined.

(a) "Individual entitled to support enforcement services under the provisions of this chapter and the provisions of Title IV-D of the federal Social Security Act" means:

(1) An individual who has applied for or is receiving services from the Bureau for Child Support enforcement and who is the parent of a child, or the caretaker of a child, or the guardian of the property of a child when:

(A) The child has a parent and child relationship with an obligor who is not a custodial parent, a caretaker or a guardian; and

(B) The obligor with whom the child has a parent and child relationship is not meeting an obligation to support the child, or has not met such obligation in the past; or

(2) An individual who has applied for or is receiving services from the Bureau for Child Support enforcement and who is an adult or an emancipated minor whose spouse or former spouse has been ordered by a court of competent jurisdiction to pay spousal support to the individual, whether such support is denominated spousal support or separate maintenance, or is identified by some other terminology, thus establishing a support obligation with respect to such spouse, when the obligor required to pay such spousal support is not meeting the obligation, or has not met such obligation in the past; or

(3) Any individual who is an obligee in a support order, entered by a court of competent jurisdiction after December 31, 1993.

(b) The filing of an action wherein the establishment or enforcement of child support is an issue constitutes an application to receive services from the Bureau for Child Support enforcement, if the individual filing the action is otherwise eligible for such services: Provided, That any such individual has the option to decline the receipt of such services.

§48-1-232. Legal parent defined.

"Legal parent" means an individual defined as a parent, by law, on the basis of biological relationship, presumed biological relationship, legal adoption or other recognized grounds.

§48-1-233. Marital property defined.

"Marital property" means:

(1) All property and earnings acquired by either spouse during a marriage, including every valuable right and interest, corporeal or incorporeal, tangible or intangible, real or personal, regardless of the form of ownership, whether legal or beneficial, whether individually held, held in trust by a third party, or whether held by the parties to the marriage in some form of coownership such as joint tenancy or tenancy in common, joint tenancy with the right of survivorship, or any other form of shared ownership recognized in other jurisdictions without this state, except that marital property does not include separate property as defined in section 1-238; and

(2) The amount of any increase in value in the separate property of either of the parties to a marriage, which increase results from: (A) An expenditure of funds which are marital property, including an expenditure of such funds which reduces indebtedness against separate property, extinguishes liens, or otherwise increases the net value of separate property; or (B) work performed by either or both of the parties during the marriage.

The definition of "marital property" contained in this section has no application outside of the provisions of this article, and the common law as to the ownership of the respective property and earnings of a husband and wife, as altered by the provisions of article 29 of this chapter and other provisions of this code, are not abrogated by implication or otherwise, except as expressly provided for by the provisions of this article as such provisions are applied in actions brought under this article or for the enforcement of rights under this article.

§48-1-234. Obligee defined.

"Obligee" means:

(1) An individual to whom a duty of support is or is alleged to be owed or in whose favor a support order has been issued or a judgment determining parentage has been rendered;

(2) A state or political subdivision to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee; or

(3) An individual seeking a judgment determining parentage of the individual's child.

§48-1-235. Obligor defined.

"Obligor" means an individual or the estate of a decedent:

(1) Who owes or is alleged to owe a duty of support;

(2) Who is alleged, but has not been adjudicated, to be a parent of a child; or

(3) Who is liable under a support order.

§48-1-236. Secretary defined.

"Secretary" means the secretary of the Department of Health and Human Resources.

§48-1-237. Separate property defined.

"Separate property" means:

(1) Property acquired by a person before marriage;

(2) Property acquired by a person during marriage in exchange for separate property which was acquired before the marriage;

(3) Property acquired by a person during marriage, but excluded from treatment as marital property by a valid agreement of the parties entered into before or during the marriage;

(4) Property acquired by a party during marriage by gift, bequest, devise, descent or distribution;

(5) Property acquired by a party during a marriage but after the separation of the parties and before ordering an annulment, divorce or separate maintenance; or

(6) Any increase in the value of separate property as defined in subdivision (1), (2), (3), (4) or (5) of this section which is due to inflation or to a change in market value resulting from conditions outside the control of the parties.

§48-1-238. Separation defined.

"Separation" or "separation of the parties" means the uninterrupted separation of a husband and wife for some continuous period of time during which they do not cohabit or otherwise live together as husband and wife. When a separation is required as a predicate for filing an action under this article, the separation must continue through the date of filing.

§48-1-239. Shared parenting defined.

(a) “Shared parenting” means either basic shared parenting or extended shared parenting.

(b) “Basic shared parenting” means an arrangement under which one parent keeps a child or children overnight for less than 35 percent of the year and under which both parents contribute to the expenses of the child or children in addition to the payment of child support.

(c) “Extended shared parenting” means an arrangement under which each parent keeps a child or children overnight for more than 35 percent of the year and under which both parents contribute to the expenses of the child or children in addition to the payment of child support.

(d) In any case where, in the absence of an agreement between the parents, a court orders shared parenting; the order shall be in writing and include specific findings of fact supporting the Court’s determination.

§48-1-240. Source of income defined.

"Source of income" means an employer or successor employer or any other person who owes or will owe income to an obligor.

§48-1-241. Split physical custody defined.

"Split physical custody" means a situation where there is more than one child and where each parent has physical custody of at least one child.

§48-1-242. Spousal support defined.

"Spousal support" means an allowance that a person may be ordered to pay for the support and maintenance of a spouse or a former spouse, while they are living separate and apart or after an order for divorce, annulment or separate maintenance.

§48-1-243. Spousal support in gross defined.

"Spousal support in gross" means spousal support payable either in a lump sum, or in periodic payments of a definite amount over a specific period of time. A spousal support award is "spousal support in gross" only if the award grants spousal support in such terms that a determination can be made of the total amount to be paid as well as the time such payments will cease.

§48-1-244. Support defined.

"Support" means the payment of money, including interest:

(1) For a child or spouse, ordered by a court of competent jurisdiction, whether the payment is ordered in an emergency, temporary, permanent or modified order, the amount of unpaid support shall bear simple interest from the date it accrued, at a rate of five percent per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time;

(2) To third parties on behalf of a child or spouse, including, but not limited to, payments to medical, dental or educational providers, payments to insurers for health and hospitalization insurance, payments of residential rent or mortgage payments, payments on an automobile or payments for day care; or

(3) For a mother, ordered by a court of competent jurisdiction, for the necessary expenses incurred by or for the mother in connection with her confinement or of other expenses in connection with the pregnancy of the mother.

§48-1-245. Support order defined.

(a) For cases being enforced pursuant to Title IV-D of the Social Security Act, "support order" means a judgment, decree or order, whether temporary, final, or subject to modification, issued by a court or an administrative agency of competent jurisdiction, for the support and maintenance of a child, including a child who has attained the age of majority under the law of the issuing state, or a child and the parent with whom the child is living, which provides for monetary support, health care, arrearage or reimbursements, and which may include related costs and fees, interest and penalties, income withholding, attorneys' fees and other relief.

(b) For all other cases, "support order" means an order as defined in subsection (a) of this section and, in addition, an order for the support and maintenance of a spouse or former spouse.

§48-1-246. Unreimbursed health care expenses defined.

"Unreimbursed health care expenses" means the child's portion of health insurance premiums and extraordinary medical expenses.

§48-1-247. Work-related child care costs defined.

"Work-related child care costs" shall mean the cost of child care the parent incurs due to employment or the search for employment.

PART III. MISCELLANEOUS PROVISIONS

RELATING TO DOMESTIC RELATIONS.

§48-1-301. Communications between clergy and party.

(a) A party to a domestic relations action cannot compel a member of the clergy to testify regarding any communications or statements made to the member of the clergy in his or her capacity as spiritual counselor or spiritual adviser by a party to the action, if the following conditions exist:

(1) Both the clergy and the party making such communications or statements claim that the communications or statements were made to the clergy in his capacity as a clergy and spiritual counselor or spiritual adviser to such party;

(2) No person, other than a member of the clergy, a party and the spouse of the party, was present when such communications or statements were made; and

(3) The party making such communications or statements does not either consent to their disclosure or otherwise waive the privilege granted by this section.

(b) The privilege granted by this section shall be in addition to and not in derogation of any other privileges recognized by law.

§48-1-302. Calculation of interest.

(a) Notwithstanding any other provisions of the code, if an obligation to pay interest arises under this chapter, the rate of interest is five percent per annum and proportionate thereto for a greater or lesser sum, or for a longer or shorter time. Interest awarded shall only be simple interest and nothing in this section may be construed to permit awarding of compound interest. Interest accrues only upon the outstanding principal of such obligation.

(b) Notwithstanding any other provision of law, no court may award or approve prejudgment interest in a domestic relations action against a party unless the court finds, in writing, that the party engaged in conduct that would violate subsection (b), Rule 11 of the West Virginia Rules of Civil Procedure. If prejudgment interest is awarded, the court shall calculate prejudgment interest from the date the offending representation was presented to the court pursuant to subsection (a) of this section.

(c) Upon written agreement by both parties, an obligor may petition the court to enter an order conditionally suspending the collection of all or part of the interest that has accrued on past-due child support prior to the date of the agreement: Provided, That said agreement shall also establish a reasonable payment plan which is calculated to fully discharge all arrearages within sixty months. Upon successful completion of the payment plan, the court shall enter an order which permanently relieves the obligor of the obligation to pay the accrued interest. If the obligor fails to comply with the terms of the written agreement, then the court shall enter an order which reinstates the accrued interest.

(d) Amendments to this section enacted by the Legislature during the 2006 regular session shall become effective January 1, 2007.

PART 3. MISCELLANEOUS PROVISIONS RELATING TO DOMESTIC RELATIONS.

§48-1-303. Confidentiality of domestic relations court files.

(a) All orders in domestic relations actions entered in the civil order books by circuit clerks are public records.

(b) Upon the filing of a domestic relations action, all pleadings, exhibits or other documents, other than orders, that are contained in the court file are confidential and not open for public inspection either during the pendency of the case or after the case is closed.

(c) When sensitive information has been disclosed during a hearing or in pleadings, evidence or documents filed in the record, the court may, sua sponte or upon motion of a party, order such information sealed in the court file. Sealed documents or court files can only be opened by order of a circuit or family court judge.

(d) The parties, their designees, their attorneys, a duly appointed guardian ad litem or any other person who has standing to seek modification or enforcement of a support order has the right to examine and copy any document in a confidential court file that has not been sealed by court order. Upon motion and for good cause shown, the court may permit a person who is not a party to the action to examine and copy any documents that are necessary to further the interests of justice.

(e) The clerk of the circuit court shall keep a written log of all persons who examine confidential documents as provided for in this section. Every person who examines confidential documents shall first sign the clerk's written log, except for a circuit judge or family court judge before whom the case is pending, or court personnel acting within the scope of their duties. The clerk shall record the time and date of every examination of confidential documents. The log must be retained by the clerk and must be available upon request for inspection by the circuit judge or the family court judge.

§48-1-304. Proceedings in contempt.

(a) Upon a verified petition for contempt, notice of hearing and hearing, if the petition alleges criminal contempt or the court informs the parties that the matter will be treated and tried as a criminal contempt, the matter shall be tried in the circuit court before a jury, unless the party charged with contempt shall knowingly and intelligently waive the right to a jury trial with the consent of the court and the other party. If the jury, or the circuit court sitting without a jury, shall find the defendant in contempt for willfully failing to comply with an order of the court made pursuant to the provisions of article three, four, five, eight, nine, eleven, twelve, fourteen or fifteen of this chapter, as charged in the petition, the court may find the person to be in criminal contempt and may commit such person to the county jail for a determinate period not to exceed six months.

(b) If trial is had under the provisions of subsection (a) of this section and the court elects to treat a finding of criminal contempt as a civil contempt and the matter is not tried before a jury and the court finds the defendant in contempt for willfully failing to comply with an order of the court made pursuant to the provisions of article three, four, five, eight, nine, eleven, twelve, fourteen or fifteen of this chapter, and if the court further finds the person has the ability to purge himself of contempt, the court shall afford the contemnor a reasonable time and method whereby he may purge himself of contempt. If the contemnor fails or refuses to purge himself of contempt, the court may confine the contemnor to the county jail for an indeterminate period not to exceed six months or until such time as the contemnor has purged himself whichever shall first occur. If the petition alleges civil contempt, the matter shall be heard by the family court. The family court has the same power and authority as the circuit court under the provisions of this section for criminal contempt proceedings which the circuit court elects to treat as civil contempt.

(c) In the case of a charge of contempt based upon the failure of the defendant to pay alimony, child support or separate maintenance, if the court or jury finds that the defendant did not pay because he was financially unable to pay, the defendant may not be imprisoned on charges of contempt of court.

(d) Regardless of whether the court or jury finds the defendant to be in contempt, if the court shall find that a party is in arrears in the payment of alimony, child support or separate maintenance ordered to be paid under the provisions of this chapter, the court shall enter judgment for such arrearage and award interest on such arrearage from the due date of each unpaid installment. Following any hearing wherein the court finds that a party is in arrears in the payment of alimony, child support or separate maintenance, the court may, if sufficient assets exist, require security to ensure the timely payment of future installments.

(e) At any time during a contempt proceeding the court may enter an order to attach forthwith the body of, and take into custody, any person who refuses or fails to respond to the lawful process of the court or to comply with an order of the court. Such order of attachment shall require the person to be brought forthwith before the court or the judge thereof in any county in which the court may then be sitting.

§48-1-305. Suit money, counsel fees and costs.

(a) Costs may be awarded to either party as justice requires and in all cases the court, in its discretion, may require payment of costs at any time and may suspend or withhold any order until the costs are paid.

(b) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action. An order for temporary relief awarding attorney's fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of such fees and costs was previously ordered. If an appeal is taken or an intention to appeal is stated, the court may further order either party to pay attorney's fees and costs on appeal.

(c) When it appears to the court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.

§48-1-306. Proceeding for release of support lien.

If any person deem that his or her interest, or that of any person for whom he or she may act in a fiduciary or representative capacity, will be promoted by a release, in full or in part, of a lien created upon his or her real or personal property for the support or maintenance of another person or persons, or for spousal or child support, he or she may apply by petition, in a summary way, to the court that entered the order or decree creating such lien for relief from said order. The petition shall be verified and shall describe said lien, the circumstances of the petitioner or the person for whom he is acting, the name or names of the person or persons holding such lien, and the circumstances calculated to show the propriety of the release requested. All persons interested shall be made defendants and shall be given ten days' notice before hearing upon the petition. If authorized by the court, the release may be so conditioned as to promote substantial justice, but the release may only be prospective in effect, and may not operate to deprive the person secured by the lien of the right to receive spousal or child support payments accrued to the date of the hearing.

§48-1-307. Collection of child or spousal support by collection agencies.

(a) Any person attempting to collect a child or spousal support obligation or arrearage on behalf of a resident or from a resident of this state is subject to the provisions of article sixteen, chapter forty-seven of this code and the provisions of this section and is otherwise subject to the jurisdiction of this state.

(b) The amount of delinquent child or spousal support or arrearage established by order of a court of competent jurisdiction in this state is not subject to waiver or compromise, either by agreement of the parties or by a collection agency acting on behalf of a party and may only be modified by an order of a court of competent jurisdiction.

(c) No child or spousal support or arrearage of child or spousal support collected by the state IV-D agency may be redirected to any collection agency.

(d) No collection agency attempting to collect a child or spousal support obligation or arrearage on behalf of a resident or from a resident of this state may include any funds collected by a IV-D agency in the amount from which their fee is determined or collected.

(e) No collection agency, other than an attorney licensed to practice law in this state, attempting to collect a child support or spousal support obligation or arrearage may engage in conduct which is considered the practice of law, including, but not limited to:

(1) The performance of legal services, the offering of legal advice or the making of a false representation, directly or by implication, that a person is an attorney;

(2) Any communication with persons in the name of an attorney or upon stationery or other written matter bearing an attorney's name; and

(3) Any demand for or payment of money constituting a share of compensation for services performed or to be performed by an attorney in collecting a claim.

(f) No collection agency may collect or attempt to collect any money alleged to be due and owing by any threat, coercion or attempt to coerce, including, but not limited to:

(1) The use, or the express or implicit threat of use, of violence or other criminal means, to cause harm to the person, reputation or property of any person;

(2) The accusation or threat to accuse any person of fraud, of any crime, or of any conduct which, if true, would tend to disgrace the other person or in any way subject them to ridicule or contempt of society;

(3) False accusations made to another person, including any credit reporting agency, that a person is willfully refusing to pay a just claim, or the threat to make such false accusations;

(4) The threat that nonpayment of an alleged claim will result in the arrest of any person, or of the taking of any other action requiring judicial sanction, without informing the person that there must be in effect a court order permitting the action before it can be taken; and

(5) The threat to take any action prohibited by this section or other law regulating the conduct of a collection agency.

(g) No collection agency may unreasonably oppress or abuse any person in connection with the collection of or attempt to collect any child or spousal support obligation or arrearage, including, but not limited to:

(1) The use of profane or obscene language or language that is intended to unreasonably abuse the listener or reader;

(2) The placement of telephone calls without disclosure of the caller's identity and with the intent to annoy, harass or threaten any person at the called number;

(3) Causing expense to any person in the form of long distance telephone tolls, telegram fees or other charges incurred by a medium of communication by concealment of the true purpose of the communication; and

(4) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously, or at unusual times or at times known to be inconvenient, with intent to annoy, abuse, oppress or threaten any person at the called number.

(h) No collection agency may unreasonably publicize information relating to any alleged child or spousal support obligation or arrearage, including, but not limited to:

(1) The communication to any employer or his or her agent of any information relating to an employee's indebtedness other than through proper legal action, process or proceeding;

(2) The disclosure, publication or communication of information relating to a child or spousal support obligation or arrearage to any relative or family member of the obligor, except through proper legal action or process or at the express and unsolicited request of the obligor;

(3) The disclosure, publication or communication of any information relating to an obligor's child or spousal support obligation or arrearage to any other person other than a credit reporting agency, by publishing or posting any list of persons, commonly known as "deadbeat lists", or in any manner other than through proper legal action, process or proceeding; and

(4) The use of any form of communication to the obligor, which ordinarily may be seen by any other person, that displays or conveys any information about the alleged claim other than the name, address and telephone number of the collection agency.

(i) No collection agency may use any fraudulent, deceptive or misleading representation or means to collect or attempt to collect claims or to obtain information concerning support obligors, including, but not limited to:

(1) The use of any business, company or organization name while engaged in the collection of claims, other than the true name of the collection agency's business, company or organization;

(2) Any false representation that the collection agency has in its possession information or something of value for the obligor with the underlying purpose of soliciting or discovering information about the person;

(3) The failure to clearly disclose the name of the person to whom the claim is owed, at the time of making any demand for money;

(4) Any false representation or implication of the character, extent or amount of a claim against an obligor or of the status of any legal proceeding;

(5) Any false representation or false implication that any collection agency is vouched for, bonded by, affiliated with an agency, instrumentality, agent or official of this state or of the federal or local government;

(6) The use, distribution or sale of any written communication which simulates or is falsely represented to be a document authorized, issued or approved by a court, an official or any other legally constituted or authorized authority, or which creates a false impression about its source, authorization or approval;

(7) Any representation that an existing obligation of the obligor may be increased by the addition of attorney's fees, investigation fees, service fees or any other fees or charges when in fact the fees or charges may not legally be added to the existing obligation; and

(8) Any false representation or false impression about the status or true nature of the services rendered by the collection agency.

(j) No collection agency may use unfair or unconscionable means to collect or attempt to collect any claim, including, but not limited to:

(1) The collection of or the attempt to collect any interest in excess of that interest authorized by the provisions of this chapter, or other charge, fee or expense incidental to the principal obligation that exceeds ten percent of the principal amount from an obligor or obligee; and

(2) Any communication with an obligor whenever it appears the obligor is represented by an attorney and the attorney's name and address are known, or could be easily ascertained, unless the attorney fails to answer correspondence, return telephone calls or discuss the obligation in question, or unless the attorney and the obligor consent to direct communication.

(k) No collection agency may use, distribute, sell or prepare for use any written communication which violates or fails to conform to United States postal laws and regulations.

(l) No collection agency may place a telephone call or otherwise communicate by telephone with an obligor at any place, including a place of employment, falsely stating that the call is "urgent" or an "emergency".

(m) No collection agency may attempt to collect any portion of a fee from any money collected by any other entity or authority. The collection agency may only collect a fee from funds procured solely through its collection activities.

(n) A collection agency must provide the state IV-D agency with an accounting of any money collected and forwarded to the obligee as child support, spousal support or arrearages every sixty days until the collection agency ceases all collection activity.

(o) Any resident of this state who contracts for services with a collection agency to collect current or past-due child support or spousal support may, upon thirty days' written notice, cancel the contract for collection. The notice must be mailed to the collection agency by first-class mail. All contracts signed by residents of this state must include written notification of this right of cancellation.

(p) Any person who violates the provisions of this section is subject to the penalties set forth in section 47-16-5 and section 11-12-9 of this code.

(q) Any person who violates the provisions of this section is liable to the injured party in a civil action. Additionally, any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 for each separate incident.

(r) For any action filed pursuant to this section alleging illegal, fraudulent or unconscionable conduct or any prohibited debt collection practice, the court, in its discretion, may award all or a portion of the costs of litigation, including reasonable attorney fees, court costs and fees, to the injured party. Upon a finding by the court that an action filed pursuant to this section on the grounds of illegal, fraudulent or unconscionable conduct or any prohibited debt collection practice was brought in bad faith and for the purposes of harassment, the court may award the defendant reasonable attorney fees.

§48-1-233.1. Mediation defined.

"Mediation" means a method of alternative dispute resolution in which a neutral third person helps resolve a dispute. Mediation is an informal, nonadversarial process whereby the neutral third person, the mediator, assists parties to a dispute to resolve, by agreement, some or all of the differences between them. The mediator has no authority to render a judgment on any issue of the dispute.

§48-1-233.2. Mediator defined.

"Mediator" means a neutral third person who interposes between two contending parties, with their consent, for the purpose of assisting them in settling their differences.

§48-1-233.3

Repealed

Acts, 2017 Reg. Sess., Ch.

§48-1-233.4

Repealed

Acts, 2017 Reg. Sess., Ch. 66.

§48-1-235.1. Parent defined.

"Parent" means a legal parent as defined in section 1-232 unless otherwise specified.

§48-1-235.2. Parenting functions defined.

"Parenting functions" means tasks that serve the needs of the child or the child's residential family. Parenting functions include caretaking functions, as defined in section 1-210. Parenting functions also include functions that are not caretaking functions, including:

(A) Provision of economic support;

(B) Participation in decision-making regarding the child's welfare;

(C) Maintenance or improvement of the family residence, home or furniture repair, home-improvement projects, yard work and house cleaning;

(D) Financial planning and organization, car repair and maintenance, food and clothing purchasing, cleaning and maintenance of clothing, and other tasks supporting the consumption and savings needs of the family; and

(E) Other functions usually performed by a parent or guardian that are important to the child's welfare and development.

§48-1-235.3. Parenting plan defined.

"Parenting plan" means a temporary parenting plan as defined in subdivision (22) of this section or a permanent parenting plan as defined in subdivision (17) of this section.

§48-1-235.4. Permanent parenting plan defined.

"Permanent parenting plan" means a plan for parenting a child that is incorporated into a final order or subsequent modification order in a domestic relations action. The plan principally establishes, but is not limited to, the allocation of custodial responsibility and significant decision-making responsibility and provisions for resolution of subsequent disputes between the parents.

§48-1-235.5. Rehabilitative spousal support defined.

"Rehabilitative spousal support" means spousal support payable for a specific and determinable period of time, designed to cease when the payee is, after the exercise of reasonable efforts, in a position of self-support.

ARTICLE 2. MARRIAGES.

PART 1. APPLICATION FOR MARRIAGE LICENSE.

§48-2-101. Necessity of marriage license.

Every marriage in this state must be solemnized under a marriage license issued by a clerk of the county commission in accordance with the provisions of this article. If a ceremony of marriage is performed without a license, the attempted marriage is void, and the parties do not attain the legal status of husband and wife.

§48-2-102. Where an application for a marriage license may be made; when an application may be received and a license issued; application by mail.

(a) Applicants, regardless of their state or county residency, may apply for a license to be issued by the clerk of the county commission in any county in this state.

(b) Applications for licenses may be received and licenses may be issued by the clerk of the county commission when the office of the clerk is officially open for the conduct of business.

§48-2-103. Waiting period before issuance of marriage license; issuance of license in case of emergency or extraordinary circumstances.

(a) Except as otherwise provided in subsection(b) of this section, if either or both of the applicants for a marriage license is under eighteen years of age, the clerk of the county commission may not issue a marriage license until two full days elapse after the day the license application is filed.

(b) In case of an emergency or extraordinary circumstances, as shown by affidavit or other proof, a circuit judge of the county in which an application for a marriage license will be filed may order the clerk of the county commission to issue a license at any time before the expiration of the waiting period prescribed in subsection (a) of this section. The clerk of the county commission shall attach a certified copy of the judge's order to the application and issue the marriage license in accordance with the order. If the judge or judges of the county in which the application will be filed are absent or incapacitated, the order may be made and directed to the clerk of the county commission of the county by a circuit judge in any adjoining judicial circuit, or a special judge appointed by the Supreme Court of Appeals.

PART I. APPLICATION FOR MARRIAGE LICENSE

§48-2-104. Contents of the application for a marriage license.

(a) The application for a marriage license must contain a statement of the full names of both the female and the male parties, their social security account numbers, dates of birth, places of birth and residence addresses. The application must state whether or not the persons seeking the license have completed premarital education pursuant to section seven hundred one, article two, chapter forty-eight of this code. If the application states that the applicants seeking issuance of the license have completed premarital education, then the applicants must submit a signed and dated certificate of completion issued by the premarital education provider.

(b) If either of the parties is a legal alien in the United States of America and has no social security account number, a tourist or visitor visa number or number equivalent to a United States social security account number must be provided.

(c) Every application for a marriage license must contain the following statement: "Marriage is designed to be a loving and lifelong union between a woman and a man.

The laws of this state affirm your right to enter into this marriage and to live within the marriage free from violence and abuse. Neither of you is the property of the other. Physical abuse, sexual abuse, battery and assault of a spouse or other family member, and other provisions of the criminal laws of this state are applicable to spouses and other family members, and these violations are punishable by law."

§48-2-105. Execution of the application for a marriage license.

Both female and male parties to a contemplated marriage are required to sign the application for a marriage license, under oath. The application must be signed before the clerk of the county commission or another person authorized to administer oaths under the laws of this state.

§48-2-106. Proof of age.

(a) At the time of the execution of the application, the clerk or the person administering the oath to the applicants shall require evidence of the age of each of the applicants. Evidence of age may be as follows:

(1) A certified copy of a birth certificate or a duplicate certificate produced by any means that accurately reproduces the original;

(2) A voter's registration certificate;

(3) An operator's or chauffeur's license;

(4) The affidavit of both parents or the legal guardian of the applicant; or

(5) Other good and sufficient evidence.

(b) If an affidavit is relied upon as evidence of the age of an applicant, and if one parent is dead, the affidavit of the surviving parent or of the guardian of the applicant is sufficient. If both parents are dead, the affidavit of the guardian of the applicant is sufficient. If the parents of the applicant live separate and apart, the affidavit of the parent having custody of the applicant is sufficient.

§48-2-107. Recording an application for a marriage license.

The clerk of the county commission shall record the application for a marriage license in the register of marriages provided for in section 2-203. The clerk shall note the date of the filing of the application in the register. The clerk's notation, or a certified copy thereof, is legal evidence of the facts contained in the license.

PART 2. MARRIAGE LICENSE.

§48-2-201. Form of marriage license.

The marriage license shall be in form substantially as follows:

Marriage License.

State of West Virginia, County of __________________, to wit:

To any person authorized to celebrate marriages:

You are hereby authorized to join together in matrimony ______________________________ and ______________________________

Given under my hand, as clerk of the county commission of the county of _____________, this _____ day of ______________, 2______.

 __________________________

 Clerk as aforesaid.

§48-2-202. Endorsement and return of licenses by persons solemnizing marriage; duties of clerk pertaining thereto.

(a) The person solemnizing a marriage shall retain the marriage license and place an endorsement on it establishing the fact of the marriage and the time and place it was celebrated.

(b) Before the sixth day of the month after the month in which the marriage was celebrated, the person who solemnized the marriage shall forward the original of the marriage license to the clerk who issued the license.

(c) In the event that the marriage authorized by the license is not solemnized within sixty days from the date of its issuance, then the license is null and void. If the county clerk has not received the original license within sixty days after the expiration date on the license, the clerk shall notify each of the applicants of that fact, by certified mail, return receipt requested.

§48-2-203. Register of marriages.

(a) The clerk of the county commission is required to maintain a suitable book to be used as a register of marriages. The clerk shall keep a complete record of the following information:

(1) Factual information that relates to the eligibility of a person to obtain a marriage license: Provided, That if the license is issued because the female is pregnant, the pregnancy will not be noted by the clerk in the register of marriages;

(2) Each marriage license issued by the clerk; and

(3) An endorsement by a minister, priest, rabbi, or judge certifying that the marriage was solemnized.

(b) The clerk shall index the register of marriages in the names of both parties to the marriage.

§48-2-204. Record of marriage celebrated outside of state.

If at the time of celebrating any marriage out of this state, either or both of the parties thereto is a resident of this state, a certificate or statement of that fact, verified by the affidavit of any person present at such celebration, or a transcript of the marriage record, certified by the custodian of such records, from the state where the marriage was celebrated, may be returned to the clerk of the county commission of the county in which the husband resides, if he is a resident, or otherwise to the clerk of the county in which the wife resides, and an abstract thereof shall be recorded by the clerk in the register of marriages and indexed in the name of both parties.

PART 3. CAPACITY TO MARRY.

§48-2-301. Age of consent for marriage; exception.

(a) The age of consent for marriage for both the male and the female is eighteen years of age. A person under the age of eighteen lacks the capacity to contract a marriage without the consent required by this section.

(b) The clerk of the county commission may issue a marriage license to an applicant who is under the age of eighteen but sixteen years of age or older if the clerk obtains a valid written consent from the applicant's parents or legal guardian.

(c) Upon order of a circuit judge, the clerk of the county commission may issue a marriage license to an applicant who is under the age of sixteen, if the clerk obtains a valid written consent from the applicant's parents or legal guardian. A circuit judge of the county in which the application for a marriage license is filed may order the clerk of the county commission to issue a license to an applicant under the age of sixteen if, in the court's discretion, the issuance of a license is in the best interest of the applicant and if consent is given by the parents or guardian.

(d) A consent to marry must be duly acknowledged before an officer authorized to acknowledge a deed. If the parents are living together at the time the application for a marriage license is made and the consent is given, the signatures of both parents or the applicant's legal guardian is required. If one parent is dead, the signature of the surviving parent or the applicant's legal guardian is required. If both parents are dead, the signature of the applicant's legal guardian is required. If the parents of the applicant are living separate and apart, the signature of the parent having custody of the applicant or the applicant's legal guardian is required.

(e) If a person under the age of consent is married in violation of this section, the marriage is not void for this reason, and such marriage is valid until it is actually annulled.

(f) A marriage by an underage person without a valid consent as required by this section, though voidable at the time it is entered into, may be ratified and become completely valid and binding when the underage party reaches the age of consent. Validation of a marriage by ratification is established by some unequivocal and voluntary act, statement, or course of conduct after reaching the age of consent. Ratification includes, but is not limited to, continued cohabitation as husband and wife after the age of consent is attained.

§48-2-302. Prohibition against marriage of persons related within certain degrees.

(a) A man is prohibited from marrying his mother, grandmother, sister, daughter, granddaughter, half sister, aunt, brother's daughter, sister's daughter, first cousin or double cousin. A woman is prohibited from marrying her father, grandfather, brother, son, grandson, half brother, uncle, brother's son, sister's son, first cousin or double cousin.

(b) The prohibitions described in subsection (a) of this section are applicable to consanguineous relationships where persons are blood related by virtue of having a common ancestor.

(c) The prohibitions described in subsection (a) of this section are applicable to persons related by affinity, where the relationship is founded on a marriage, and the prohibition continues in force even though the marriage is terminated by death or divorce, unless the divorce was ordered for a cause which made the marriage, originally, unlawful or void.

§48-2-303. Prohibition against marriage not to include persons related by adoption.

For the purpose of section 2-302, cousin or double cousin does not include persons whose relationship is created solely by adoption. If it necessary to open and examine the record of any adoption proceeding in the state to ascertain that a relationship of cousin or double cousin is created solely by adoption, then an application may be made to the circuit court that held the adoption proceeding, by the clerk of the county commission seeking to issue the marriage license, or either party applying for the license, to open the record and cause it to be examined. Upon such application, the judge shall examine the record confidentially and report to the clerk whether the record discloses any consanguinity prohibited by this section and may grant such other relief prayed for which may be proper under article 22 of this chapter.

PART 4. MARRIAGE CEREMONY.

§48-2-401. Persons authorized to perform marriages.

A religious representative who has complied with the provisions of section 2-402, a family court judge, a circuit judge or a justice of the Supreme Court of Appeals, is authorized to celebrate the rites of marriage in any county of this state. Celebration or solemnization of a marriage means the performance of the formal act or ceremony by which a man and woman contract marriage and assume the status of husband and wife.

For purposes of this chapter, the term "religious representative" means a minister, priest or rabbi and includes, without being limited to, a leader or representative of a generally recognized spiritual assembly, church or religious organization which does not formally designate or recognize persons as ministers, priests or rabbis.

§48-2-402. Qualifications of religious representative for celebrating marriages; registry of persons authorized to perform marriage ceremonies; special revenue fund.

(a) Beginning September 1, 2001, the Secretary of State shall, upon payment of the registration fee established by the Secretary of State pursuant to subsection (d) of this section, make an order authorizing a person who is a religious representative to celebrate the rites of marriage in all the counties of the state, upon proof that the person:

(1) Is eighteen years of age or older;

(2) Is duly authorized to perform marriages by his or her church, synagogue, spiritual assembly or religious organization; and

(3) Is in regular communion with the church, synagogue, spiritual assembly or religious organization of which he or she is a member.

(b) The Secretary of State shall establish a central registry of persons authorized to celebrate marriages in this state. Every person authorized under the provisions of subsection (a) of this section to celebrate marriages shall be listed in this registry. Every county clerk shall, prior to October 1, 2001, transmit to the Secretary of State the name of every person authorized to celebrate marriages by order issued in his or her county since 1960 and the Secretary of State shall include these names in the registry. The completed registry and periodic updates shall be transmitted to every county clerk.

(c)(1) Upon written request from the registrant, the Secretary of State shall designate the registrant as inactive on the registry.

(2) Upon written notice from the governing body of the registrant's authorizing body that the registrant has died or that the registrant's authority to perform marriages has been revoked, the Secretary of State shall attempt to notify the registrant of the change in the registrant's status by United States mail addressed to the registrant's last known address. If the registrant fails to provide the Secretary of State with proof of good standing with his or her authorizing body within thirty days, the registrant shall be designated on the registry as inactive.

(d) A fee not to exceed $25 may be charged by the Secretary of State for each registration or reactivation of an individual designated as inactive on the registry received on or after September 1, 2001, and all money received shall be deposited in a special revenue revolving fund designated the Marriage Celebrants Registration Fee Administration Fund in the state Treasury to be administered by the Secretary of State. Expenses incurred by the secretary in the implementation and operation of the registry program shall be paid from the fund.

(e) No marriage performed by a person authorized by law to celebrate marriages may be invalidated solely because the person was not listed in the registry provided for in this section.

(f) The Secretary of State shall promulgate rules to implement the provisions of this section.

§48-2-403. Ritual for ceremony of marriage by a religious representative.

A religious representative authorized to celebrate the rites of marriage shall perform the ceremony of marriage according to the rites and ceremonies of his or her religious denomination, church, synagogue, spiritual assembly or religious organization and the laws of the State of West Virginia.

§48-2-404. Ritual for ceremony of marriage by a judge or justice.

The ritual for the ceremony of marriages by a family court judge, a circuit judge or a justice of the Supreme Court of Appeals may be as follows: At the time appointed, the persons to be married, being qualified according to the law of the State of West Virginia, standing together facing the judge, the man at the judge's left hand and the woman at the right, the judge shall say:

"We are gathered here, in the presence of these witnesses, to join together this man and this woman in matrimony. It is not to be entered into unadvisedly but discreetly, sincerely and in dedication of life."

(Then shall the judge say to the man, using his christian name:)

"N., wilt thou have this woman to be thy wedded wife, to live together in the bonds of matrimony? Wilt thou love her, comfort her, honor and keep her in sickness and in health?"

(Then the man shall answer:)

"I will."

(Then the judge shall say to the woman, using her christian name:)

"N., wilt thou have this man to be thy wedded husband, to live together in the bonds of matrimony? Wilt thou love him comfort him honor and keep him in sickness and health?"

(The woman shall answer:)

"I will."

(Then may the judge say:)

"Who giveth this woman to be married to this man?"

(The father of the woman, or whoever giveth her in marriage, shall answer:)

"I do."

(Then the judge shall ask the man to say after him)

"I, N., take thee, N., to be my wedded wife, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, as long as life shall last, and thereto I pledge thee my faith."

(Then the judge shall ask the woman to repeat after him)

"I, N., take thee, N., to be my wedded husband, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, as long as life shall last, and thereto I pledge thee my faith."

(Then, if there be a ring, the judge shall say:)

"The wedding ring is an outward and visible sign--signifying unto all, the uniting of this man and this woman in matrimony."

(The judge then shall deliver the ring to the man to put on the third finger of the woman's left hand. The man shall say after the judge:)

"In token and pledge of the vow between us made, with this ring, I thee wed."

(Then, if there be a second ring, the judge shall deliver it to the woman to put upon the third finger of the man's left hand; and the woman shall say after the judge:)

"In token and pledge of the vow between us made, with this ring, I thee wed."

(Then shall the judge say:)

"Forasmuch as N. and N. have consented together in wedlock, and have witnessed the same each to the other and before these witnesses and thereto have pledged their faith each to the other, and have declared the same by giving (and receiving) a ring, by virtue of the authority vested in me as judge of this court, I pronounce that they are husband and wife together."

§48-2-405. Record of marriage to be kept by person officiating.

A record of each marriage performed, with the names of the parties, their respective places of residence prior to marriage, and the date of marriage, shall be kept by the officiating religious representative in the permanent record of the church, synagogue, spiritual assembly or religious organization which he or she serves.

PART 5. OFFENSES AND PENALTIES.

§48-2-501. Unlawful acts by clerk of the county commission; penalties.

(a) It is unlawful for a clerk of the county commission to do any of the following acts:

(1) To make a false entry as to the date of application for a marriage license;

(2) To issue a marriage license prior to the end of the required three-day period (unless a circuit judge dispenses with this requirement by order pursuant to section 2-103);

(3) To issue a license on any Sunday or a legal holiday; or

(4) To receive an application for a marriage license or issue a marriage license in any place other than the office of the clerk of the county commission.

(b) A clerk of the county commission who violates the provisions of subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $200 nor more than $1,000, or by confinement in the county or regional jail for not less than three months nor more than nine months, or by both such fine and confinement, in the discretion of the court.

§48-2-502. Issuing marriage license contrary to law; penalty.

A clerk of the county commission who knowingly issues a marriage license contrary to law is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not exceeding $500, or by confinement in the county or regional jail for not more than one year, or by both such fine and confinement, in the discretion of the court.

§48-2-503. Consanguineous marriage; penalty.

(a) If a person marries another who is within the degrees of relationship described in section 2-302, and the relationship is founded on consanguinity, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500, or be confined in the county or regional jail for not more than six months, or both, in the discretion of the court.

(b) If a person who is a resident of this state marries in another state or country, the person violates subsection (a) of this section if:

(1) The persons married are within the degrees of relationship described in section 2-302 and the relationship is founded on consanguinity;

(2) The person intends to evade the law of this state;

(3) The person intends to return and reside in this state; and

(4) The persons, after marrying, return to this state and cohabit as man and wife.

(c) For purposes of this section, the fact of cohabitation of the persons as man and wife is evidence of their marriage.

§48-2-504. Failure to endorse and return license; penalties.

If a person who is authorized to celebrate marriages in this state willfully fails to comply with the provisions of section 2-202, relating to the endorsement and return of a license, his or her authority must be suspended for a period of not less than six months nor more than one year. If the person gave bond under the provisions of section 2-402, the conditions of the bond are deemed to be broken and the bond must be forfeited as otherwise provided by law. The county clerk shall notify the prosecuting attorney of the county of any failure to comply with section 2-202. The prosecuting attorney shall institute proceedings before the circuit court to suspend the person's authority to celebrate marriages. The court shall determine all questions of law and fact.

§48-2-505. Unlawful solicitation of a celebration of marriage.

(a) It is unlawful for any religious representative in any manner to solicit the celebration of a marriage ceremony.

(b) It is unlawful for a religious representative to give anything of value, directly or indirectly, as a reward to any person who may accompany, bring, send or direct the holders of a marriage license to the religious representative.

(c) If a person violates the provisions of subsection (a) or (b) of this section, his or her license to celebrate marriages shall be revoked, and no such license shall thereafter be issued to the person. It is the duty of the prosecuting attorney of the county in which the violation occurs to institute proceedings in the circuit court to revoke the license. Reasonable notice of proceedings to revoke a license shall be given to the licensee. The court shall determine all questions of law and fact.

PART VI. MISCELLANEOUS PROVISIONS.

§48-2-601. Belief of parties in lawful marriage validates certain defects.

If a marriage is solemnized by a person professing to be authorized to celebrate marriages when, in fact, the person is not authorized, or if a marriage is solemnized after the license is expired, the marriage is not void and subject to a judgment of nullity based on that fact alone if:

(1) The marriage is lawful in all other respects, and

(2) The marriage is consummated with a full belief on the part of either or both of the persons married that they have been lawfully joined in marriage.

§48-2-602. Marriage out of state to evade law.

If a resident of this state marries in another state or country, the marriage is governed by the same law, in all respects, as if it had been solemnized in this state if, at the time of the marriage:

(1) The marriage would have been in violation of section 3-103 if performed in this state;

(2) The person intended to evade the law of this state; and

(3) The person intended to return and reside in this state.

§48-2-603. Certain acts, records, and proceedings not to be given effect in this state.

A public act, record or judicial proceeding of any other state, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other state, territory, possession, or tribe, or a right or claim arising from such relationship, shall not be given effect by this state.

§48-2-604.

Repealed.

Acts, 2013 Reg. Sess., Ch. 29.

Part VII. PREMARITAL EDUCATION.

§48-2-701. Premarital education encouraged; requirements.

(a) Persons applying for a marriage license may attend a premarital education course of at least four hours during the twelve months immediately preceding the date of the application for the license.

(b) A premarital education course offers instruction involving marital issues which may include, but not be limited to, the following:

(1) Conflict management;

(2) Communication skills;

(3) Managing finances;

(4) Child and parenting responsibilities;

(5) Extended family roles; and

(6) Key components of a successful marriage.

(c) Premarital education course instructors must have training in skills-based and research-based marriage preparation curricula.

(d) Premarital education courses may be performed by the following:

(1) A professional counselor or marriage and family therapist licensed pursuant to article thirty-one, chapter thirty of this code;

(2) A social worker licensed pursuant to article thirty, chapter thirty of this code;

(3) A psychiatrist who is licensed as a physician pursuant to article three, chapter thirty of this code;

(4) A psychologist who is licensed pursuant to article twenty-one, chapter thirty of this code; or

(5) An active member of the clergy or his or her designee, including retired clergy, provided that a designee is trained in skills-based and research-based marriage preparation curricula premarital education.

(e) The premarital education course curricula must meet the requirements of this section and provide a skills-based and research-based curricula of the following:

(1) The National Healthy Marriage Resource Center;

(2) A church, spiritual assembly, or religious organization; or

(3) Other substantially similar resource.

(f) The Department of Health and Human Resources shall maintain an Internet website on which individuals and organizations described in subsection (c) may electronically register with the department to indicate the skills-based and research-based curriculum in which the registrant is trained.

(g) The premarital education provider shall furnish each participant, who completes the premarital education required by this section, a certificate of completion.

§48-2-702. Marriage education fund.

(a) There is hereby created a special revenue account within the State Treasury known as the Marriage Education Fund. The account shall be administered by the Secretary of the Department of Health and Human Resources.

(b) Any balance in the account at the end of each fiscal year shall not revert to the general revenue fund but shall remain in the account and be expended as provided by in this section.

(c) The account shall consist of all fees collected under the provisions of paragraph (C), subdivision (4), subsection (c), of section ten, article one, chapter fifty-nine of this code, legislative appropriations, and all interest or other returned earned from investment of the fund.

(d) Expenditures from the account shall be made by the secretary for the purposes set forth in section seven-hundred-one of this article, and are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for fiscal year ending June 30, 2013, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature.

ARTICLE 3. PROPERTY, RIGHTS AND LIABILITIES OF MARRIED WOMEN; HUSBAND AND WIFE.

§48-3-101. Right to sue to annul or affirm marriage.

(a) Except as otherwise provided in subsection (b) of this section, an action to annul or affirm a marriage is not maintainable unless one of the parties is a resident of this state at the time the action is commenced.

(b) Even if neither party is a resident of this state, an action to annul a marriage that was performed in this state is maintainable if the parties have not established a matrimonial domicile elsewhere.

§48-3-102. Venue of actions for annulment or affirmation.

(a) If the respondent to an action for annulling or affirming a marriage is a resident of this state, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the respondent resides.

(b) If the respondent to an action for annulling or affirming a marriage is not a resident of this state, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the petitioner resides.

(c) If neither party is a resident of this state, the action must be brought in the county where the marriage was performed.

§48-3-103. Voidable marriages.

The following marriages are voidable and are void from the time they are so declared by a judgment order of nullity:

(1) Marriages that are prohibited by law on account of either of the parties having a wife or husband of a prior marriage, when the prior marriage has not been terminated by divorce, annulment or death;

(2) Marriages that are prohibited by law on account of consanguinity or affinity between the parties;

(3) Marriages solemnized when either of the parties:

(A) Was mentally incompetent;

(B) Was afflicted with a sexually transmitted disease;

(C) Was incapable, because of natural or incurable impotency of the body, of entering into the marriage state;

(D) Was under the age of consent; or

(E) Had been, prior to the marriage and without the knowledge of the other party, convicted of a crime punishable by imprisonment in excess of one year under the applicable law of this state, another state or the United States;

(4) Marriages solemnized when, at the time of the marriage, the wife, without the knowledge of the husband, was with child by some person other than the husband.

§48-3-104. Affirmation or annulment of marriage.

If a marriage is supposed to be void, or voidable, or any doubt exists as to its validity, for any of the causes set forth in section 3-103, or for any other cause recognized in law, either party may, except as provided in section 3-105, institute an action for annulling or affirming the marriage. Upon hearing the proofs and allegations of the parties, the court shall enter a judgment order annulling or affirming the marriage. In every case where the validity of a marriage is called into question, it is presumed that the marriage is valid, unless the contrary is clearly proved. If the court orders that the marriage is valid, the finding of the court is conclusive upon all persons concerned.

§48-3-105. What persons may not institute annulment action.

An action for annulling a marriage may not be instituted:

(a) Where the cause is the natural or incurable impotency of body of either of the parties to enter the marriage state, by the party who had knowledge of such incapacity at the time of marriage;

(b) Where the cause is fraud, force or coercion, by the party who was guilty of such fraud, force or coercion, nor by the injured party if, after knowledge of the facts, he or she has by acts or conduct confirmed such marriage;

(c) Where the cause is affliction with a sexually transmitted disease existing at the time of marriage, by the party who was so afflicted if such party has subsequent to the marriage become cured of such disease, nor by the person who was not so afflicted if he or she after the curing of the afflicted person has by acts or conduct confirmed the marriage;

(d) Where the cause is the nonage of either of the parties, by the party who was capable of consenting, nor by the party not so capable if he or she has by acts or conduct confirmed the marriage after arriving at the age of consent; or

(e) Where the cause is lack of consent on the part of either of the parties, by the party consenting or bringing about the marriage;

(f) Where the cause is that either of the parties has been convicted of a crime punishable by imprisonment in excess of one year under the applicable law of this state, another state or the United States prior to marriage, by the other party if, after knowledge of such fact, he or she has cohabited with the party so convicted; or

(g) Where the cause is that the wife was at the time of marriage with child by some person other than the husband, by the husband, if after knowledge of the fact he has cohabited with the wife.

§48-3-106. Relief ordered in annulment.

In an action for annulment, the court may order all or any portion of the final relief provided for in sections 5-603 through 5-614 and all or any portion of the temporary relief provided for in part 5, article 5 of this chapter.

§48-3-107. Modification of order granting annulment.

Upon the petition of either party, the court may revise or alter an order entered in an action for annulment or make further orders, concerning the following matters:

(1) The support and maintenance of either spouse;

(2) The interest of one spouse in the property of the other spouse;

(3) The allocation of responsibility for the children of the parties; and

(4) The support of the children of the parties.

ARTICLE 4. SEPARATE MAINTENANCE.

§48-4-101. Where an action for separate maintenance may be brought.

An action for separate maintenance may be brought in the family court of any county where an action for divorce between the parties could be brought. An action for separate maintenance may be brought whether or not a divorce is prayed for.

§48-4-102. Grounds for separate maintenance.

Separate maintenance may be ordered:

(1) If the party seeking separate maintenance has grounds for divorce; or

(2) If the party from whom separate maintenance is sought, without good and sufficient cause:

(A) Has failed to provide suitable support for the other spouse; or

(B) Has abandoned or deserted the other spouse.

§48-4-103. Award of relief in action for separate maintenance.

(a) In an action for separate maintenance, the court may order all or any portion of the temporary or final relief that the court may order in an action for divorce, other than a divorce.

(b) During the pendency of the action, the court has the same powers to make temporary orders as the court would have in actions for divorce, insofar as those powers are applicable, on behalf of either spouse.

(c) Any order entered in the case is effective during the time the court by its order directs, until further order of the court.

§48-4-104. Modification of order awarding separate maintenance.

Upon the petition of either party, the court may revise or alter an order entered in an action for separate maintenance, or may make further orders, concerning the following matters:

(1) The support and maintenance of either spouse;

(2) The interest of one spouse in the property of the other spouse;

(3) The allocation of responsibility for the children of the parties; and

(4) The support of the children of the parties.

ARTICLE 5. DIVORCE.

PART 1. GENERAL PROVISIONS.

§48-5-101. Absolute divorce.

A divorce ordered in this state is an absolute divorce.

PART 1. GENERAL PROVISIONS.

§48-5-102. Subject matter jurisdiction.

(a) The Legislature hereby finds and declares that it has the authority to establish, by general law, the jurisdiction of circuit courts and family courts over domestic relations matters.

(b) The circuit courts and family courts of this state, by act of the Legislature, are vested with concurrent jurisdiction over the subject matter of divorce. Generally, a family court has the right and authority to adjudicate actions for divorce and the power to carry its judgment and order into execution. Circuit courts have limited jurisdiction in divorce actions, as provided in section two, article two-a, chapter fifty-one of this code and as otherwise specifically provided in this chapter. Jurisdiction of the subject matter of divorce embraces the power to determine every issue or controverted question in an action for divorce, according to the court's view of the law and the evidence.

§48-5-103. Jurisdiction of parties; service of process.

(a) In an action for divorce, it is immaterial where the marriage was celebrated, where the parties were domiciled at the time the grounds for divorce arose or where the marital offense was committed. If one or both of the parties is domiciled in this state at the time the action is commenced, the circuit courts and family courts of this state have jurisdiction to grant a divorce for any grounds fixed by law in this state, without any reference to the law of the place where the marriage occurred or where the marital offense was committed.

(b) A judgment order may be entered upon service of process in the manner specified in the rules of civil procedure for the service of process upon individuals.

§48-5-104. Retention of jurisdiction when divorce is denied.

If a divorce is denied, the court shall retain jurisdiction of the case and may order all or any portion of the relief provided for in this article that has been demanded in the pleadings.

§48-5-105. Residency requirements for maintaining an action for divorce.

(a) Except as otherwise provided in subsection (b) of this section:

(1) If the marriage was entered into within this state, an action for divorce is maintainable if one of the parties is an actual bona fide resident of this state at the time of commencement of the action, without regard to the length of time residency has continued; or

(2) If the marriage was not entered into within this state, an action for divorce is maintainable if:

(A) One of the parties was an actual bona fide resident of this state at the time the cause of action arose, or has become a resident since that time; and

(B) The residency has continued uninterrupted through the one-year period immediately preceding the filing of the action.

(b) An action for divorce cannot be maintained if the cause for divorce is adultery, whether the cause of action arose in or out of this state, unless one of the parties, at the commencement of the action, is a bona fide resident of this state. In such case, if the respondent is a nonresident of this state and cannot be personally served with process within this state, the action is not maintainable unless the petitioner has been an actual bona fide resident of this state for at least one year next preceding the commencement of the action; or

(c) When a divorce is granted in this state upon constructive service of process and personal jurisdiction is thereafter obtained of the respondent in the case, the court may order all or any portion of the relief that has been demanded in the pleadings.

§48-5-106. Venue of actions for divorce.

(a) If the respondent in an action for divorce is a resident of this state, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the respondent resides.

(b) If the respondent in an action for divorce is not a resident of this state, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the petitioner resides.

§48-5-107. Parties to a divorce action.

(a) Either or both of the parties to a marriage may initiate an action for divorce.

(b) A spouse who is under the age of majority has standing in a divorce action to sue, answer or plead by a next friend.

(c) An incompetent or insane person shall sue, answer or plead by his or her committee. If a person has not been adjudicated incompetent or insane and has not been divested of the power to act on his or her own behalf, it is presumed that the person has the capacity to bring the action or be made a party respondent. This presumption may be rebutted by evidence which shows that the person cannot reasonably understand the nature and purpose of the action and the effect of his or her acts with reference to the action.

(d) The appointment of a guardian ad litem for a minor, an incompetent or an insane party is not required unless specifically ordered by the judge hearing the action.

(e) Anyone charged as a particeps criminis shall be made a party to a divorce action, upon his or her application to the court, subject to such terms and conditions as the court may prescribe.

(f) In a divorce action where the interests of the minor children of the parties are or may be substantially different from those of either or both of the parents and the best interests of the children may be in conflict with the desires of either or both parents, the court may make the children parties respondent and appoint a guardian ad litem to advocate and protect their rights and welfare.

PART 2. GROUNDS FOR DIVORCE.

§48-5-201. Grounds for divorce; irreconcilable differences.

The court may order a divorce if the complaint alleges that irreconcilable differences exist between the parties and an answer is filed admitting that allegation. A complaint alleging irreconcilable differences shall set forth the names of any dependent children of either or both of the parties. A divorce on this ground does not require corroboration of the irreconcilable differences or of the issues of jurisdiction or venue. The court may approve, modify or reject any agreement of the parties and make orders concerning spousal support, custodial responsibility, child support, visitation rights or property interests.

§48-5-202. Grounds for divorce; voluntary separation.

(a) A divorce may be ordered when the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year. The separation may occur as a result of the voluntary act of one of the parties or the mutual consent of both parties.

(b) Allegations of res judicata or recrimination with respect to any other alleged grounds for divorce are not a bar to either party obtaining a divorce on the ground of voluntary separation.

(c) When required by the circumstances of a particular case, the court may receive evidence bearing on alleged marital misconduct and may consider issues of fault for the limited purpose of deciding whether spousal support should be awarded. Establishment of fault does not affect the right of either party to obtain a divorce on the ground of voluntary separation.

§48-5-203. Grounds for divorce; cruel or inhuman treatment.

(a) A divorce may be ordered for cruel or inhuman treatment by either party against the other. Cruel or inhuman treatment includes, but is not limited to, the following:

(1) Reasonable apprehension of bodily harm;

(2) False accusation of adultery or homosexuality; or

(3) Conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable.

(b) It is not necessary to allege or prove acts of physical violence in order to establish cruel and inhuman treatment as a ground for divorce.

§48-5-204. Grounds for divorce; adultery.

A divorce may be ordered for adultery. Adultery is the voluntary sexual intercourse of a married man or woman with a person other than the offender's wife or husband. The burden is on the party seeking the divorce to prove the alleged adultery by clear and convincing evidence.

§48-5-205. Grounds for divorce; conviction of crime.

A divorce may be ordered when either of the parties subsequent to the marriage has, in or out of this state, been convicted for the commission of a crime that is a felony and, the conviction is final.

§48-5-206. Grounds for divorce; permanent and incurable insanity.

(a) A divorce may be ordered for permanent and incurable insanity, only if the person is permanently and incurably insane and has been confined in a mental hospital or other similar institution for a period of not less than three consecutive years next preceding the filing of the complaint and the court has heard competent medical testimony that such insanity is permanently incurable.

(b) A court granting a divorce on this grounds may in its discretion order support and maintenance for the permanently incurably insane party by the other.

(c) In an action for divorce or annulment, where the petitioner is permanently incurably insane, the respondent shall not enter a plea of recrimination based upon the insanity of the petitioner.

§48-5-207. Grounds for divorce; habitual drunkenness or drug addiction.

(a) A divorce may be ordered for habitual drunkenness of either party subsequent to the marriage.

(b) A divorce may be ordered for the addiction of either party, subsequent to the marriage, to the habitual use of any narcotic or dangerous drug defined in this code.

§48-5-208. Grounds for divorce; desertion.

A divorce may be ordered to the party abandoned, when either party willfully abandons or deserts the other for six months.

§48-5-209. Grounds for divorce; abuse or neglect of a child.

(a) A divorce may be ordered for abuse or neglect of a child of the parties or of one of the parties, "abuse" meaning any physical or mental injury inflicted on such child including, but not limited to, sexual molestation; and "neglect" is willful failure to provide, by a party who has legal responsibility for such child, the necessary support, education as required by law, or medical, surgical or other care necessary for the well-being of such child.

(b) A divorce shall not be granted on this ground except upon clear and convincing evidence sufficient to justify permanently depriving the offending party of any allocation of custodial responsibility for the abused or neglected child.

PART 3. DEFENSES.

§48-5-301. When a divorce not to be granted.

No divorce for adultery shall be granted on the uncorroborated testimony of a prostitute, or a particeps criminis, or when it appears that the parties voluntarily cohabited after the knowledge of the adultery, or that it occurred more than three years before the institution of the action; nor shall a divorce be granted for any cause when it appears that the offense charged has been condoned, or was committed by the procurement or connivance of the plaintiff, or that the plaintiff has, within three years before the institution of action, been guilty of adultery not condoned, but such exception shall not be applicable to causes of action brought pursuant to sections 5-201 and 5-202 of this chapter. The defense of collusion shall not be pleaded as a bar to a divorce.

PART 4. PRACTICE AND PROCEDURE.

§48-5-401. Verification of pleadings.

All pleadings in a divorce action must be verified by the party in whose name they are filed.

PART 4. PRACTICE AND PROCEDURES.

§48-5-402. Petition for divorce.

(a) An action for divorce is instituted by a verified petition and the formal style and the caption for all pleadings is "In Re the marriage of ________ and ________". The parties shall be identified in all pleadings as "petitioner" and "respondent".

(b) The petition must set forth the ground or grounds for divorce. It is not necessary to allege the facts constituting a ground relied on and a petition or counter-petition is sufficient if a ground for divorce is alleged in the language of the statute as set forth in this article. The court has the discretionary authority to grant a motion to require a more definite and certain statement, set forth in ordinary and concise language, alleging facts and not conclusions of law.

(c) If the jurisdiction of the court to grant a divorce depends upon the existence of certain facts, including, but not limited to, facts showing domicil or domicil for a certain length of time, the petition must allege those facts. It is not necessary that allegations showing requisite domicil be in the language of the statute, but they should conform substantially thereto so that everything material to the fact of requisite domicil can be ascertained therefrom.

(d) A petition shall not be taken for confessed and whether the respondent answers or not, the case shall be tried and heard independently of the admissions of either party in the pleadings or otherwise. No judgment order shall be granted on the uncorroborated testimony of the parties or either of them, except for a proceeding in which the grounds for divorce are irreconcilable differences.

(e) The Supreme Court of Appeals shall develop and provide forms for petitions filed pursuant to this section and for answers filed pursuant to section 5-403. The forms shall be made available for distribution in the offices of the clerks of the circuit courts and in the offices of the secretary-clerks to the family court judges.

§48-5-403. Answer to petition.

(a) The responsive pleading to a petition for divorce is denominated an answer. The form and requisites for an answer to a petition for divorce are governed by the rules of civil procedure.

(b) Except as provided in subsection (c) of this section, an allegedly guilty party who relies upon an affirmative defense must assert such defense by both pleadings and proof. Affirmative defenses include, but are not limited to, condonation, connivance, collusion, recrimination, insanity and lapse of time.

(c) In an action in which a party seeks a divorce based on an allegation that the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year, the affirmative defenses, including, but not limited to, condonation, connivance, collusion, recrimination, insanity and lapse of time, shall not be raised.

§48-5-404. Advance filing of divorce petition in actions alleging abandonment or voluntary separation.

(a) At any time after the parties to a marriage have lived separate and apart in separate places of abode without any cohabitation or after a party is abandoned or deserted, either party living separate and apart or the party abandoned may apply for temporary relief in accordance with the provisions of part 5 of this article by instituting an action for divorce alleging that the petitioner reasonably believes that the period of living separate and apart or of abandonment will continue for the periods prescribed by the applicable provisions of sections 5-202 and 5-208.

(b) If the period of abandonment or living separate and apart continues for the period prescribed by the applicable provisions of sections 5-202 and 5-208, the divorce action may proceed to a final hearing without a new petition being filed.

(c) The petitioner shall give the respondent at least twenty days' notice of the time, place and purpose of the final hearing, unless the respondent files a verified waiver of notice of further proceedings. If the notice is required to be served, it must be served in the same manner as original process under rule 4(d) of the rules of civil procedure, regardless of whether the respondent has appeared or answered.

§48-5-405. Amendments to pleadings.

Amendments to pleadings in an action for divorce are permitted upon the same general considerations which govern the practice in other proceedings, and are properly allowed for the purpose of making the allegations of the pleading more definite and certain, of asserting an essential allegation which has been omitted, or of including allegations of misconduct committed subsequent to the commencement of the action.

PART 5. TEMPORARY RELIEF DURING PENDENCY

OF ACTION FOR DIVORCE.

§48-5-501. Relief that may be included in temporary order of divorce.

At the time of the filing of the complaint or at any time after the commencement of an action for divorce under the provisions of this article and upon motion for temporary relief, notice of hearing and hearing, the court may order all or any portion of the following temporary relief described in this part 5, to govern the marital rights and obligations of the parties during the pendency of the action.

§48-5-502. Temporary spousal support.

The court may require either party to pay temporary spousal support in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party.

§48-5-503. Temporary parenting order; child support.

(a) The court shall enter a temporary parenting order in accordance with the provisions of sections 9-203 and 9-204 of this chapter that incorporates a temporary parenting plan.

(b) When the action involves a minor child or children, the court shall require either party to pay temporary child support in the form of periodic installments for the maintenance of the minor children of the parties.

(c) When the action involves a minor child or children, the court shall provide for medical support for any minor children.

§48-5-504. Attorney's fees and court costs.

(a) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action. The question of whether or not a party is entitled to temporary spousal support is not decisive of that party's right to a reasonable allowance of attorney's fees and court costs.

(b) An order for temporary relief awarding attorney fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of fees and costs was previously ordered. If an appeal is taken or an intention to appeal is stated, the court may further order either party to pay attorney fees and costs on appeal.

(c) If it appears to the court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.

§48-5-505. Costs of health care and hospitalization.

As an incident to requiring the payment of temporary spousal support, the court may order either party to continue in effect existing policies of insurance covering the costs of health care and hospitalization of the other party. If there is no such existing policy or policies, the court may order that such health care insurance coverage be paid for by a party if the court determines that such health care coverage is available to that party at a reasonable cost. Payments made to an insurer pursuant to this subdivision, either directly or by a deduction from wages, may be deemed to be temporary spousal support.

§48-5-506. Use and occupancy of the marital home.

(a) The court may grant the exclusive use and occupancy of the marital home to one of the parties during the pendency of the action, together with all or a portion of the household goods, furniture and furnishings, reasonably necessary for such use and occupancy.

(b) The court may require payments to third parties in the form of home loan installments, land contract payments, rent, payments for utility services, property taxes and insurance coverage. If these third party payments are ordered, the court may specify whether such payments or portions of payments are temporary spousal support, temporary child support, a partial distribution of marital property or an allocation of marital debt.

(c) If the court does not set forth in the temporary order that all or a portion of payments made to third parties pursuant to this section are to be deemed temporary child support, then all the payments made pursuant to this section are deemed to be temporary spousal support. The court may order third party payments to be made without denominating them as either temporary spousal support or temporary child support, reserving such decision until the court determines the interests of the parties in marital property and equitably divides the same. At the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made to third parties under the provisions of this subdivision have affected the rights of the parties in marital property and may treat these payments as a partial distribution of marital property notwithstanding the fact that these payments were denominated temporary spousal support or temporary child support or not so denominated under the provisions of this section.

(d) If the payments are not designated in an order and the parties have waived any right to receive spousal support, the court may designate the payments upon motion by any party.

(e) Nothing contained in this section shall abrogate an existing contract between either of the parties and a third party, or affect the rights and liabilities of either party or a third party under the terms of a contract.

§48-5-507. Use and possession of motor vehicles.

(a) As an incident to requiring the payment of temporary alimony, the court may grant the exclusive use and possession of one or more motor vehicles to either of the parties during the pendency of the action.

(b) The court may require payments to third parties in the form of automobile loan installments or insurance coverage, and payments made to third parties pursuant to this section are deemed to be temporary spousal support, subject to any reservation provided for in subsection (c) of this section.

(c) The court may order that third party payments made pursuant to this section be made without denominating them as temporary spousal support, reserving that decision until the court determines the interests of the parties in marital property and equitably divides the same. At the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made to third parties under the provisions of this section have affected the rights of the parties in marital property and may treat such payments as a partial distribution of marital property notwithstanding the fact that such payments have been denominated temporary spousal support or not so denominated under the provisions of this section.

(d) Nothing contained in this section will abrogate an existing contract between either of the parties and a third party or affect the rights and liabilities of either party or a third party under the terms of a contract.

§48-5-508. Preservation of the properties of the parties.

(a) If the pleadings include a specific request for specific property or raise issues concerning the equitable division of marital property, the court may enter an order that is reasonably necessary to preserve the estate of either or both of the parties.

(b) The court may impose a constructive trust, so that the property is forthcoming to meet any order that is made in the action, and may compel either party to give security to comply with the order, or may require the property in question to be delivered into the temporary custody of a third party.

(c) The court may order either or both of the parties to pay the costs and expenses of maintaining and preserving the property of the parties during the pendency of the action. At the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made for the maintenance and preservation of property under the provisions of this section have affected the rights of the parties in marital property and may treat such payments as a partial distribution of marital property. The court may release all or any part of such protected property for sale and substitute all or a portion of the proceeds of the sale for such property.

§48-5-509. Enjoining abuse, emergency protective order.

(a) The court may enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other, or interfering with the custodial or visitation rights of the other. This order may enjoin the offending party from:

(1) Entering the school, business or place of employment of the other for the purpose of molesting or harassing the other;

(2) Contacting the other, in person or by telephone, for the purpose of harassment or threats; or

(3) Harassing or verbally abusing the other in a public place.

(b) Any order entered by the court to protect a party from abuse may grant any other relief authorized by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established the grounds for that relief as required by the provisions of said article.

(c) The court, in its discretion, may enter a protective order, as provided in article twenty-seven of this chapter, as part of the final relief granted in a divorce action, either as a part of an order for temporary relief or as part of a separate order. Notwithstanding the provisions of section five hundred five of said article, a protective order entered pursuant to the provisions of this subsection shall remain in effect until a final order is entered in the divorce, unless otherwise ordered by the judge.

§48-5-510. Consideration of financial factors in ordering temporary relief.

(a) In ordering temporary relief under the provisions of this part 5, the court shall consider the financial needs of the parties, the present income of each party from any source, their income-earning abilities and the respective legal obligations of each party to support himself or herself and to support any other persons.

(b) Except in extraordinary cases supported by specific findings set forth in the order granting relief, payments of temporary spousal support and temporary child support are to be made from a party's income and not from the corpus of a party's separate estate, and an award of such relief shall not be disproportionate to a party's ability to pay as disclosed by the evidence before the court: Provided, That child support shall be established in accordance with the child support guidelines set forth in article 13 of this chapter.

§48-5-511. Disclosure of assets.

To facilitate the resolution of issues arising at a hearing for temporary relief, the court may, or upon the motion of either party shall, order the parties to comply with the disclosure requirements set forth in article 7 of this chapter prior to the hearing for temporary relief. The form for this disclosure shall substantially comply with the form promulgated by the Supreme Court of Appeals, pursuant to said section. If either party fails to timely file a complete disclosure as required by this section or as ordered by the court, the court may accept the statement of the other party as accurate.

§48-5-512. Ex parte orders granting temporary relief.

An ex parte order granting all or part of the relief provided for in this part 5 may be granted without written or oral notice to the adverse party if:

(1) It appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or such party's attorney can be heard in opposition. The potential injury, loss or damage may be anticipated when the following conditions exist: Provided, That the following list of conditions is not exclusive:

(A) There is a real and present threat of physical injury to the applicant at the hands or direction of the adverse party;

(B) The adverse party is preparing to quit the state with a minor child or children of the parties, thus depriving the court of jurisdiction in the matter of child custody;

(C) The adverse party is preparing to remove property from the state or is preparing to transfer, convey, alienate, encumber or otherwise deal with property which could otherwise be subject to the jurisdiction of the court and subject to judicial order under the provisions of this section or part 5-601, et seq.; and

(2) The moving party or his or her attorney certifies in writing any effort that has been made to give the notice and the reasons supporting his or her claim that notice should not be required.

§48-5-513. Granting of ex parte relief.

(a) Every ex parte order granted without notice must:

(1) Be endorsed with the date and hour of issuance;

(2) Be filed forthwith in the circuit clerk's office and entered of record; and

(3) Set forth the finding of the court that unless the order is granted without notice there is probable cause to believe that existing conditions will result in immediate and irreparable injury, loss or damage to the moving party before the adverse party or his or her attorney can be heard in opposition.

(b) The order granting ex parte relief must fix a time for a hearing for temporary relief to be held within a reasonable time, not to exceed twenty days, unless before the time fixed for hearing, the hearing is continued for good cause shown or with the consent of the party against whom the ex parte order is directed. The reasons for the continuance must be entered of record. Within the time limits described herein, when an ex parte order is made, a motion for temporary relief must be set down for hearing at the earliest possible time and takes precedence over all matters except older matters of the same character. If the party who obtained the ex parte order fails to proceed with a motion for temporary relief, the court shall set aside the ex parte order.

(c) At any time after ex parte relief is granted, and on two days' notice to the party who obtained the relief or on such shorter notice as the court may direct, the adverse party may appear and move the court to set aside or modify the ex parte order on the grounds that the effects of the order are onerous or otherwise improper. In that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

§48-5-514. Temporary order not subject to appeal or review.

An order granting temporary relief may not be the subject of an appeal or a petition for review.

PART 6. JUDGMENT ORDERING DIVORCE.

§48-5-601. Relief that may be included in final order of divorce.

In ordering a divorce, the court may order additional relief, including, but not limited to, the relief described in the following sections of this part 6.

§48-5-602. Court may require payment of spousal support.

The court, in ordering a divorce may require either party to pay spousal support in accordance with the provisions of article 8-101, et seq., of this chapter.

§48-5-603. Relief regarding minor child or children.

(a) If the action involves a minor child or children, the court may, if appropriate, order the allocation of custodial responsibility and the allocation of decision-making responsibility in accordance with the provisions of article 9-101, et seq., of this chapter.

(b) If the action involves a minor child or children, the court shall order either or both parties to pay child support in accordance with the provisions of articles 11-101, et seq., and 13-101, et seq., of this chapter.

(c) If the action involves a minor child or children, the court shall order medical support to be provided for the child or children in accordance with the provisions of article 12-101, et seq., of this chapter.

 PART 6. JUDGMENT ORDERING DIVORCE.

§48-5-604. Use and occupancy of marital home.

(a) The court may award the exclusive use and occupancy of the marital home to a party. An order granting use and occupancy of the marital home shall include the use of any necessary household goods, furniture and furnishings. The order shall establish a definite period for the use and occupancy, ending at a specific time set forth in the order, subject to modification upon the petition of either party.

(b) Generally, an award of the exclusive use and occupancy of the marital home is appropriate when necessary to accommodate rearing minor children of the parties. Otherwise, the court may award exclusive use and occupancy only in extraordinary cases supported by specific findings set forth in the order that grants relief.

(c) An order awarding the exclusive use and occupancy of the marital home may also require payments to third parties for home loan installments, land contract payments, rent, property taxes and insurance coverage. When requiring third-party payments, the court shall reduce them to a fixed monetary amount set forth in the order. The court shall specify whether third-party payments or portions of payments are spousal support, child support, a partial distribution of marital property or an allocation of marital debt. Unless the court identifies third-party payments as child support payments or as installment payments for the distribution of marital property, then such payments are spousal support. If the court does not identify the payments and the parties have waived any right to receive spousal support, the court may identify the payments upon motion by any party.

(d) This section is not intended to abrogate a contract between either party and a third party or affect the rights and liabilities of either party or a third party under the terms of a contract.

§48-5-605. Use and possession of motor vehicles.

(a) The court may award the exclusive use and possession of a motor vehicle or vehicles to either of the parties.

(b) The court may require payments to third parties in the form of automobile loan installments or insurance coverage, if coverage is available at reasonable rates. When requiring third-party payments, the court shall reduce them to a fixed monetary amount set forth in the order. The court shall specify whether third-party payments or portions of payments are spousal support or installment payments for the distribution of marital property.

(c) This section is not intended to abrogate a contract between either party and a third party or affect the rights and liabilities of either party or a third party under the terms of a contract.

§48-5-606. Relief regarding costs of health care and hospitalization.

As an incident to requiring the payment of spousal support or child support, the court may order either party to provide medical support to the other party. Payments made to an insurer pursuant to this subdivision, either directly or by a deduction from wages, shall be deemed to be spousal support or installment payments for the distribution of marital property, in such proportion as the court shall direct: Provided, That if the court does not set forth in the order that a portion of the payments is to be deemed installment payments for the distribution of marital property, then all payments made pursuant to this section are spousal support. The designation of insurance coverage as spousal support under the provisions of this subdivision shall not, in and of itself, give rise to a subsequent modification of the order to provide for spousal support other than insurance for covering the costs of health care and hospitalization.

§48-5-607. Court may order transfer of accounts for recurring expenses.

The court may order either party to take necessary steps to transfer utility accounts and other accounts for recurring expenses from the name of one party into the name of the other party or from the joint names of the parties into the name of one party. This section is not intended to affect the liability of the parties for indebtedness on any account incurred before the transfer of the account.

§48-5-608. Injunctive relief or protective orders.

(a) When allegations of abuse have been proved, the court shall enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other or interfering with the custodial or visitation rights of the other. The order may permanently enjoin the offending party from entering the school, business or place of employment of the other for the purpose of molesting or harassing the other or from entering or being present in the immediate environs of the residence of the petitioner or from contacting the other, in person or by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other. The relief afforded by the provisions of this subsection may be ordered whether or not there are grounds for relief under subsection (c) of this section and whether or not an order is entered pursuant to such subsection.

(b) Any order entered by the court to protect a party from abuse may grant any other relief authorized to be awarded by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established the grounds for that relief as required by the provisions of said article. The relief afforded by the provisions of this subsection may be ordered whether or not there are grounds for relief under subsection (c) of this section and whether or not an order is entered pursuant to subsection (c) of this section.

(c) The court, in its discretion, may enter a protective order, as provided by the provisions of article twenty-seven of this chapter, as part of the final relief in a divorce action, either as a part of a order for final relief or in a separate written order. A protective order entered pursuant to the provisions of this subsection shall remain in effect for the period of time ordered by the court not to exceed one hundred eighty days: Provided, That the court may extend the protective order for whatever period the court deems necessary to protect the safety of the petitioner and others threatened or at risk, if the court determines:

(A) That a violation of a protective order entered during or extended by the divorce action has occurred; or

(B) Upon a motion for modification, that a violation of a provision of a final order entered pursuant to this section has occurred.

§48-5-609. Court may restore to either party his or her property.

Upon ordering a divorce, the court has the power to award to either of the parties whatever of his or her property, real or personal, may be in the possession, or under the control, or in the name, of the other, and to compel a transfer or conveyance.

§48-5-610. Court may order just and equitable distribution of property.

(a) When the pleadings include a specific request for specific property or raise issues concerning the equitable division of marital property, the court shall order such relief as may be required to effect a just and equitable distribution of the property and to protect the equitable interests of the parties therein.

(b) In addition to the disclosure requirements set forth in part 7-201, et seq., of this chapter, the court may order accounts to be taken as to all or any part of marital property or the separate estates of the parties and may direct that the accounts be taken as of the date of the marriage, the date upon which the parties separated or any other time in assisting the court in the determination and equitable division of property.

§48-5-611. Suit money, counsel fees and costs.

(a) Costs may be awarded to either party as justice requires, and in all cases the court, in its discretion, may require payment of costs at any time and may suspend or withhold any order until the costs are paid.

(b) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action. An order for temporary relief awarding attorney's fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of such fees and costs was previously ordered. If an appeal be taken or an intention to appeal be stated, the court may further order either party to pay attorney fees and costs on appeal.

(c) When it appears to the court that a party has incurred attorney's fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney's fees and costs to the other party.

§48-5-612. Court may order a party to deliver separate property.

Unless a contrary disposition is ordered pursuant to other provisions of this section, then upon the motion of either party, the court may compel the other party to deliver to the moving party any of his or her separate estate which may be in the possession or control of the respondent party and may make such further order as is necessary to prevent either party from interfering with the separate estate of the other.

§48-5-613. Former name of party; restoration.

The court, upon ordering a divorce, shall if requested to do so by either party, allow such party to resume the name used prior to his or her marriage without the necessity of filing a separate petition pursuant to section one hundred one, article twenty-five, chapter forty-eight of this code. If a name change is requested, the court shall also issue a certificate of divorce reflecting that change in name. The certificate shall be no longer than one page. For purpose of confidentiality, the certificate shall not be considered an order. The certificate shall include the style of the divorce case, the name on the birth certificate of the party requesting the name change, that party's date of birth, that party's social security number, the date on which the name change is effective, and the new name of that party. In order to be valid, the certificate shall be certified by a clerk of the court. The certified certificate may be used by that person for all lawful purposes, including as a proof of legal name change for driver licensing purposes or state identification card at the Division of Motor Vehicles.

PART 7. MODIFICATION OF FINAL DIVORCE ORDER.

§48-5-701. Revision of order concerning spousal support.

After the entry of a final divorce order, the court may revise the order concerning spousal support or the maintenance of the parties and enter a new order concerning the same, as the circumstances of the parties may require.

§48-5-702. Revision of order enjoining abuse.

After entering an order enjoining abuse in accordance with the provisions of section 5-509, the court may, from time to time afterward, upon motion of either of the parties and upon proper service, revise the order and enter a new order concerning the same as the circumstances of the parties and the benefit of children may require.

§48-5-703. Revision of order allocating custodial responsibility and decision-making responsibility.

After entering an order allocating custodial responsibility and decision-making responsibility in accordance with the provisions of sections 9-206 and 9-207, the court may also from time to time afterward, upon the motion of either of the parties or other proper person having actual or legal custody of the minor child or children of the parties, revise or alter the order concerning the allocation of custodial responsibility or allocation of decision-making responsibility in accordance with the provisions of article 9 of this chapter, and make a new order concerning the same, issuing it forthwith, as the circumstances of the parents or other proper person or persons and the benefit of the children may require.

§48-5-704. Revision of order establishing child support.

(a) After entering an order establishing child support in accordance with the provisions of section 5-603, the court may from time to time afterward, upon the motion of either of the parties or other proper person having actual or legal custody of the minor child or children of the parties, revise or alter the order concerning the support of the children, and make a new order concerning the same, issuing it forthwith, as the circumstances of the parents or other proper person or persons and the benefit of the children may require.

(b) All orders modifying an award of child support must conform to the provisions regarding child support guidelines that are set forth in article 13 of this chapter.

(c) An order providing for child support payments may be revised or altered for the reason, inter alia, that the existing order provides for child support payments in an amount that is less than eighty-five percent or more than one hundred fifteen percent of the amount that would be required to be paid under the provisions of the child support guidelines that are set forth in article 13 of this chapter.

§48-5-705. Bureau for child support enforcement may seek revision of order establishing child support.

The Bureau for Child Support enforcement may review a child support order and, if appropriate, file a motion with the court for modification of the child support order.

§48-5-706. Revision of order concerning distribution of marital property.

In modifying a final divorce order, the court may, when other means are not conveniently available, alter any prior order of the court with respect to the distribution of marital property, if:

(1) The property is still held by the parties;

(2) The alteration of the prior order as it relates the distribution of marital property is necessary to give effect to a modification of spousal support, child support or child custody; or

(3) The alteration of the prior order as it relates the distribution of marital property is necessary to avoid an inequitable or unjust result which would be caused by the manner in which the modification will affect the prior distribution of marital property.

§48-5-707. Reduction or termination of spousal support because of de facto marriage.

(a)(1) In the discretion of the court, an award of spousal support may be reduced or terminated upon specific written findings by the court that since the granting of a divorce and the award of spousal support a de facto marriage has existed between the spousal support payee and another person.

(2) In determining whether an existing award of spousal support should be reduced or terminated because of an alleged de facto marriage between a payee and another person, the court should elicit the nature and extent of the relationship in question. The court should give consideration, without limitation, to circumstances such as the following in determining the relationship of an ex-spouse to another person:

(A) The extent to which the ex-spouse and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as "my husband" or "my wife", or otherwise conducting themselves in a manner that evidences a stable marriage-like relationship;

(B) The period of time that the ex-spouse has resided with another person not related by consanguinity or affinity in a permanent place of abode;

(C) The duration and circumstances under which the ex-spouse has maintained a continuing conjugal relationship with the other person;

(D) The extent to which the ex-spouse and the other person have pooled their assets or income or otherwise exhibited financial interdependence;

(E) The extent to which the ex-spouse or the other person has supported the other, in whole or in part;

(F) The extent to which the ex-spouse or the other person has performed valuable services for the other;

(G) The extent to which the ex-spouse or the other person has performed valuable services for the other's company or employer;

(H) Whether the ex-spouse and the other person have worked together to create or enhance anything of value;

(I) Whether the ex-spouse and the other person have jointly contributed to the purchase of any real or personal property;

(J) Evidence in support of a claim that the ex-spouse and the other person have an express agreement regarding property sharing or support; or

(K) Evidence in support of a claim that the ex-spouse and the other person have an implied agreement regarding property sharing or support.

(3) On the issue of whether spousal support should be reduced or terminated under this subsection, the burden is on the payor to prove by a preponderance of the evidence that a de facto marriage exists. If the court finds that the payor has failed to meet burden of proof on the issue, the court may award reasonable attorney's fees to a payee who prevails in an action that sought to reduce or terminate spousal support on the ground that a de facto marriage exists.

(4) The court shall order that a reduction or termination of spousal support is retroactive to the date of service of the petition on the payee, unless the court finds that reimbursement of amounts already paid would cause an undue hardship on the payee.

(5) An award of rehabilitative spousal support shall not be reduced or terminated because of the existence of a de facto marriage between the spousal support payee and another person.

(6) An award of spousal support in gross shall not be reduced or terminated because of the existence of a de facto marriage between the spousal support payee and another person.

(7) An award of spousal support shall not be reduced or terminated under the provisions of this subsection for conduct by a spousal support payee that occurred before October 1, 1999.

(b) Nothing in this subsection shall be construed to abrogate the requirement that every marriage in this state be solemnized under a license or construed to recognize a common law marriage as valid.

ARTICLE 5A. COLLABORATIVE FAMILY LAW PROCEEDINGS.

§48-5A-101. Legislative findings.

 The Legislature finds that parties to family law actions often have particular needs and interests that may not be addressed through traditional litigation. The Legislature also finds that in the area of family law there may be an alternative approach to dispute resolution which targets settlement from the outset and which employs cooperative negotiation and problem solving that encourages compromise and direct communication among the parties.

§48-5A-102. Collaborative law generally; requesting the Supreme Court to study collaborative law procedures for possible implementation in this state.

(a) Collaborative law is a procedure in which parties who are involved in family law matters and the involved attorneys agree in writing to use their best efforts and make a good-faith attempt to resolve their disputes arising from family law matters on an agreed basis without resorting to judicial intervention, except to have a court approve the settlement agreement, make the legal pronouncements and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate.

(b) Several states have passed laws adopting collaborative law procedures. The Legislature requests that the Supreme Court of Appeals study the use of collaborative law procedures in the family courts of this state and, should the court find that the procedures would be an effective alternative approach to dispute resolution in family law matters, promulgate rules for the implementation of the collaborative law procedures. The Legislature further requests that the Supreme Court of Appeals present its findings and any rules promulgated to the Legislature at the regular session of the Legislature, 2009.

ARTICLE 6. APPENDICES.

PART I. DEFINITIONS.

§48-6-101. Property settlement or separation agreement defined.

(a) "Property settlement or separation agreement" means a written agreement between a husband and wife whereby they agree to live separate and apart from each other. A separation agreement may also:

(1) Settle the property rights of the parties;

(2) Provide for child support;

(3) Provide for the allocation of custodial responsibility and the determination of decision-making responsibility for the children of the parties;

(4) Provide for the payment or waiver of spousal support by either party; or

(5) Otherwise settle and compromise issues arising from the marital rights and obligations of the parties.

(b) To the extent that an antenuptial agreement affects the property rights of the parties or the disposition of property after an annulment of the marriage or after a divorce or separation of the parties, the antenuptial agreement is a separation agreement.

PART II. RELIEF BASED ON AGREEMENT.

§48-6-201. Effect of separation agreement.

(a) In cases where the parties to an action commenced under the provisions of this chapter have executed a separation agreement, if the court finds that the agreement is fair and reasonable, and not obtained by fraud, duress or other unconscionable conduct by one of the parties, and further finds that the parties, through the separation agreement, have expressed themselves in terms which, if incorporated into a judicial order, would be enforceable by a court in future proceedings, then the court shall conform the relief which it is authorized to order under the provisions of parts 5 and 6, article 5 of this chapter to the separation agreement of the parties. The separation agreement may contractually fix the division of property between the parties and may determine whether spousal support shall be awarded, whether an award of spousal support, other than an award of rehabilitative spousal support or spousal support in gross, may be reduced or terminated because a de facto marriage exists between the spousal support payee and another person, whether a court shall have continuing jurisdiction over the amount of a spousal support award so as to increase or decrease the amount of spousal support to be paid, whether spousal support shall be awarded as a lump sum settlement in lieu of periodic payments, whether spousal support shall continue beyond the death of the payor party or the remarriage of the payee party, or whether the spousal support award shall be enforceable by contempt proceedings or other judicial remedies aside from contractual remedies.

(b) Any award of periodic payments of spousal support shall be deemed to be judicially decreed and subject to subsequent modification unless there is some explicit, well expressed, clear, plain and unambiguous provision to the contrary set forth in the court-approved separation agreement or the order granting the divorce. Child support shall, under all circumstances, always be subject to continuing judicial modification.

§48-6-202. Agreement for spousal support beyond the death of the payor.

When a separation agreement is the basis for an award of spousal support, the court, in approving the agreement, shall examine the agreement to ascertain whether it clearly provides for spousal support to continue beyond the death of the payor or the payee or to cease in such event. When spousal support is to be paid pursuant to the terms of a separation agreement which does not state whether the payment of spousal support is to continue beyond the death of the payor or payee or is to cease, or when the parties have not entered into a separation agreement and spousal support is awarded, the court shall have the discretion to determine, as a part of its order, whether such payments of spousal support are to be continued beyond the death of the payor or payee or cease. In the event neither an agreement nor an order makes provision for the death of the payor or payee, spousal support other than rehabilitative spousal support or spousal support in gross shall cease on the death of the payor or payee. In the event neither an agreement nor an order makes provision for the death of the payor, rehabilitative spousal support continues beyond the payor's death, in the absence of evidence that the payor's estate is likely to be insufficient to meet other obligations or that other matters would make continuation after death inequitable. Rehabilitative spousal support ceases with the payee's death. In the event neither an agreement nor an order makes provision for the death of the payor or payee, spousal support in gross continues beyond the payor's or payee's death.

§48-6-203. Agreement for spousal support beyond the remarriage of the payee.

When a separation agreement is the basis for an award of spousal support, the court, in approving the agreement, shall examine the agreement to ascertain whether it clearly provides for spousal support to continue beyond the remarriage of the payee or to cease in such event. When spousal support is to be paid pursuant to the terms of a separation agreement which does not state whether the payment of spousal support is to continue beyond the remarriage of the payee or is to cease, or when the parties have not entered into a separation agreement and spousal support is awarded, the court shall have the discretion to determine, as a part of its order, whether such payments of spousal support are to be continued beyond the remarriage of the payee. In the event neither an agreement nor an order makes provision for the remarriage of the payee, spousal support other than rehabilitative spousal support or spousal support in gross shall cease on the remarriage of the payee. Rehabilitative spousal support does not cease upon the remarriage of the payee during the first four years of a rehabilitative period. In the event neither an agreement nor an order makes provision for the remarriage of the payee, spousal support in gross continues beyond the payee's remarriage.

§48-6-301. Factors considered in awarding spousal support and separate maintenance.

(a) In cases where the parties to an action commenced under the provisions of this article have not executed a separation agreement, or have executed an agreement which is incomplete or insufficient to resolve the outstanding issues between the parties, or where the court finds the separation agreement of the parties not to be fair and reasonable or clear and unambiguous, the court shall proceed to resolve the issues outstanding between the parties.

(b) The court shall consider the following factors in determining the amount and duration of spousal support and separate maintenance, if any, to be ordered under the provisions of parts V and VI, §48-5-1 et seq. of this code as a supplement to or in lieu of the separation agreement:

(1) The length of time the parties were married;

(2) The period of time during the marriage when the parties actually lived together as husband and wife;

(3) The present employment income and other recurring earnings of each party from any source;

(4) The income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market, and custodial responsibilities for children;

(5) The distribution of marital property to be made under the terms of a separation agreement or by the court under the provisions of §48-7-6 et seq. of this code, insofar as the distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive spousal support and separate maintenance: Provided, That for the purposes of determining a spouse’s ability to pay spousal support, the court may not consider the income generated by property allocated to the payor spouse in connection with the division of marital property unless the court makes specific findings that a failure to consider income from the allocated property would result in substantial inequity;

(6) The ages and the physical, mental, and emotional condition of each party;

(7) The educational qualifications of each party;

(8) Whether either party has foregone or postponed economic, education, or employment opportunities during the course of the marriage;

(9) The standard of living established during the marriage;

(10) The likelihood that the party seeking spousal support and separate maintenance can substantially increase his or her income-earning abilities within a reasonable time by acquiring additional education or training;

(11) Any financial or other contribution made by either party to the education, training, vocational skills, career, or earning capacity of the other party;

(12) The anticipated expense of obtaining the education and training described in §48-6-301(b)(10) of this code;

(13) The costs of educating minor children;

(14) The costs of providing health care for each of the parties and their minor children;

(15) The tax consequences to each party;

(16) The extent to which it would be inappropriate for a party, because that party will be the custodian of a minor child or children, to seek employment outside the home;

(17) The financial need of each party;

(18) The legal obligations of each party to support himself or herself and to support any other person;

(19) Costs and care associated with a minor or adult child’s physical or mental disabilities; and

(20) Any other factors as the court determines necessary or appropriate to consider in order to arrive at a fair and equitable grant of spousal support and separate maintenance.

ARTICLE 7. EQUITABLE DISTRIBUTION OF PROPERTY.

PART 1. MARITAL PROPERTY DISPOSITION.

§48-7-101. Equal division of marital property.

Except as otherwise provided in this section, upon every judgment of annulment, divorce or separation, the court shall divide the marital property of the parties equally between the parties.

§48-7-102. Division of marital property in accordance with a separation agreement.

In cases where the parties to an action commenced under the provisions of this chapter have executed a separation agreement, then the court shall divide the marital property in accordance with the terms of the agreement, unless the court finds:

(1) That the agreement was obtained by fraud, duress or other unconscionable conduct by one of the parties; or

(2) That the parties, in the separation agreement, have not expressed themselves in terms which, if incorporated into a judicial order, would be enforceable by a court in future proceedings; or

(3) That the agreement, viewed in the context of the actual contributions of the respective parties to the net value of the marital property of the parties, is so inequitable as to defeat the purposes of this section, and such agreement was inequitable at the time the same was executed.

§48-7-103. Division of marital property without a valid agreement.

In the absence of a valid agreement, the court shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to any attribution of fault to either party which may be alleged or proved in the course of the action, after a consideration of the following:

(1) The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary contributions, including, but not limited to:

(A) Employment income and other earnings; and

(B) Funds which are separate property.

(2) The extent to which each party has contributed to the acquisition, preservation and maintenance or increase in value of marital property by nonmonetary contributions, including, but not limited to:

(A) Homemaker services;

(B) Child care services;

(C) Labor performed without compensation, or for less than adequate compensation, in a family business or other business entity in which one or both of the parties has an interest;

(D) Labor performed in the actual maintenance or improvement of tangible marital property; and

(E) Labor performed in the management or investment of assets which are marital property.

(3) The extent to which each party expended his or her efforts during the marriage in a manner which limited or decreased such party's income-earning ability or increased the income-earning ability of the other party, including, but not limited to:

(A) Direct or indirect contributions by either party to the education or training of the other party which has increased the income-earning ability of such other party; and

(B) Foregoing by either party of employment or other income-earning activity through an understanding of the parties or at the insistence of the other party.

(4) The extent to which each party, during the marriage, may have conducted himself or herself so as to dissipate or depreciate the value of the marital property of the parties: Provided, That except for a consideration of the economic consequences of conduct as provided for in this subdivision, fault or marital misconduct shall not be considered by the court in determining the proper distribution of marital property.

§48-7-104. Determination of worth of marital property.

After considering the factors set forth in section 7-103, the court shall:

(1) Determine the net value of all marital property of the parties as of the date of the separation of the parties or as of such later date determined by the court to be more appropriate for attaining an equitable result. Where the value of the marital property portion of a spouse's entitlement to future payments can be determined at the time of entering a final order in a domestic relations action, the court may include it in reckoning the worth of the marital property assigned to each spouse. In the absence of an agreement between the parties, when the value of the future payments is not known at the time of entering a final order in a domestic relations action, if their receipt is contingent on future events or not reasonably assured, or if for other reasons it is not equitable under the circumstances to include their value in the property assigned at the time of dissolution, the court may decline to do so; and

(A) Fix the spouses' respective shares in such future payments if and when received; or

(B) If it is not possible and practical to fix their share at the time of entering a final order in a domestic relations action, reserve jurisdiction to make an appropriate order at the earliest practical date;

If a valuation is made after a contingent or other future fee has been earned through the personal services or skills of a spouse, the portion that is marital property shall be in the same proportion to the total fee that the personal services or skills expended before the separation of the parties bears to the total personal skills or services expended. The provisions of this subdivision apply to pending cases when the issues of contingent fees or future earned fees have not been finally adjudicated.

(2) Designate the property which constitutes marital property, and define the interest therein to which each party is entitled and the value of their respective interest therein. In the case of an action wherein there is no agreement between the parties and the relief demanded requires the court to consider such factors as are described in subdivisions (1), (2), (3) and (4), section 7-103, if a consideration of factors only under said subdivisions (1) and (2) would result in an unequal division of marital property, and if an examination of the factors described in said subdivisions (3) and (4) produce a finding that a party: (A) Expended his or her efforts during the marriage in a manner which limited or decreased such party's income-earning ability or increased the income-earning ability of the other party; or (B) conducted himself or herself so as to dissipate or depreciate the value of the marital property of the parties, then the court may, in the absence of a fair and just spousal support award under the provisions of section 5-602 which adequately takes into account the facts which underlie the factors described in subdivisions (3) and (4), section 7-103, equitably adjust the definition of the parties' interest in marital property, increasing the interest in marital property of a party adversely affected by the factors considered under said subdivisions who would otherwise be awarded less than one half of the marital property, to an interest not to exceed one half of the marital property;

(3) Designate the property which constitutes separate property of the respective parties or the separate property of their children;

(4) Determine the extent to which marital property is susceptible to division in accordance with the findings of the court as to the respective interests of the parties therein;

(5) In the case of any property which is not susceptible to division, ascertain the projected results of a sale of such property;

(6) Ascertain the projected effect of a division or transfer of ownership of income-producing property, in terms of the possible pecuniary loss to the parties or other persons which may result from an impairment of the property's capacity to generate earnings; and

(7) Transfer title to such component parts of the marital property as may be necessary to achieve an equitable distribution of the marital property. To make such equitable distribution, the court may:

(A) Direct either party to transfer their interest in specific property to the other party;

(B) Permit either party to purchase from the other party their interest in specific property;

(C) Direct either party to pay a sum of money to the other party in lieu of transferring specific property or an interest therein, if necessary to adjust the equities and rights of the parties, which sum may be paid in installments or otherwise, as the court may direct;

(D) Direct a party to transfer his or her property to the other party in substitution for property of the other party of equal value which the transferor is permitted to retain and assume ownership of; or

(E) Order a sale of specific property and an appropriate division of the net proceeds of such sale: Provided, That such sale may be by private sale, or through an agent or by judicial sale, whichever would facilitate a sale within a reasonable time at a fair price.

§48-7-105. Transfers of property to achieve equitable distribution of marital property.

In order to achieve the equitable distribution of marital property, the court shall, unless the parties otherwise agree, order, when necessary, the transfer of legal title to any property of the parties, giving preference to effecting equitable distribution through periodic or lump sum payments: Provided, That the court may order the transfer of legal title to motor vehicles, household goods and the former marital domicile without regard to such preference where the court determines it to be necessary or convenient. In any case involving the equitable distribution of: (1) Property acquired by bequest, devise, descent, distribution or gift; or (2) ownership interests in a business entity, the court shall, unless the parties otherwise agree, give preference to the retention of the ownership interests in such property. In the case of such business interests, the court shall give preference to the party having the closer involvement, larger ownership interest or greater dependency upon the business entity for income or other resources required to meet responsibilities imposed under this article, and shall also consider the effects of transfer or retention in terms of which alternative will best serve to preserve the value of the business entity or protect the business entity from undue hardship or from interference caused by one of the parties or by the divorce, annulment or decree of separate maintenance: Provided, however, That the court may, unless the parties otherwise agree, sever the business relationship of the parties and order the transfer of legal title to ownership interests in the business entity from one party to the other, without regard to the limitations on the transfer of title to such property otherwise provided in this subsection, if such transfer is required to achieve the other purposes of this article: Provided further, That in all such cases the court shall order, or the agreement of the parties shall provide for, equitable payment or transfer of legal title to other property, of fair value in money or moneys' worth, in lieu of any ownership interests in a business entity which are ordered to be transferred under this subsection: And provided further, That the court may order the transfer of such business interests to a third party (such as the business entity itself or another principal in the business entity) where the interests of the parties under this article can be protected and at least one party consents thereto.

§48-7-106. Findings; rationale for division of property.

In any order which divides or transfers the title to any property, determines the ownership or value of any property, designates the specific property to which any party is entitled or grants any monetary award, the court shall set out in detail its findings of fact and conclusions of law, and the reasons for dividing the property in the manner adopted.

§48-7-107. Refusal to transfer property; appointment of special commissioner.

If an order entered in accordance with the provisions of this article requires the transfer of title to property and a party fails or refuses to execute a deed or other instrument necessary to convey title to such property, the deed or other instrument shall be executed by a special commissioner appointed by the court for the purpose of effecting such transfer of title pursuant to section seven, article twelve, chapter fifty-five of this code.

§48-7-108. Interest or title in property prior to judicial determination.

As to any third party, the doctrine of equitable distribution of marital property and the provisions of this article shall be construed as creating no interest or title in property until and unless an order is entered under this article judicially defining such interest or approving a separation agreement which defines such interest. Neither this article nor the doctrine of equitable distribution of marital property shall be construed to create community property nor any other interest or estate in property except those previously recognized in this state. A husband or wife may alienate property at any time prior to the entry of an order under the provisions of this article or prior to the recordation of a notice of lis pendens in accordance with the provisions of part 7-401, et seq., and at anytime and in any manner not otherwise prohibited by an order under this chapter, in like manner and with like effect as if this article and the doctrine of equitable distribution had not been adopted: Provided, That as to any transfer prior to the entry of an order under the provisions of this article, a transfer other than to a bona fide purchaser for value shall be voidable if the court finds such transfer to have been effected to avoid the application of the provisions of this article or to otherwise be a fraudulent conveyance. Upon the entry of any order under this article or the admission to record of any notice with respect to an action under this article, restraining the alienation of property of a party, a bona fide purchaser for value shall take such title or interest as he or she might have taken prior to the effective date of this section and no purchaser for value need see to the application of the proceeds of such purchase except to the extent he or she would have been required so to do prior to the effective date of this section: Provided, however, That as to third parties nothing in this section shall be construed to limit or otherwise defeat the interests or rights to property which any husband or wife would have had in property prior to the enactment of this section or prior to the adoption of the doctrine of equitable distribution by the Supreme Court of Appeals on May 25, 1983: Provided further, That no order entered under this article shall be construed to defeat the title of a third party transferee thereof except to the extent that the power to effect such a transfer of title or interest in such property is secured by a valid and duly perfected lien and, as to any personal property, secured by a duly perfected security interest.

§48-7-109. Tax consequences of transfer of interest or title.

Notwithstanding the provisions of chapter eleven of this code, no transfer of interest in or title to property under this article is taxable as a transfer of property without consideration nor, except as to spousal support, create liability for sales, use, inheritance and transfer or income taxes due the state or any political subdivision nor require the payment of the excise tax imposed under article twenty-two, chapter eleven of this code.

§48-7-110. Requiring sums to be paid out of disposable retired or retainer pay.

Whenever under the terms of this article a court enters an order requiring a division of property, if the court anticipates the division of property will be effected by requiring sums to be paid out of "disposable retired or retainer pay" as that term is defined in 10 U.S.C. §1408, relating to members or former members of the uniformed services of the United States, the court shall specifically provide for the payment of an amount, expressed in dollars or as a percentage of disposable retired or retainer pay, from the disposable retired or retainer pay of the payor party to the payee party.

§48-7-111. No equitable distribution of property between individuals not married to one another.

A court may not award spousal support or order equitable distribution of property between individuals who are not married to one another in accordance with the provisions of article one of this chapter.

§48-7-112. Prospective effect of prior amendments.

The amendments to this section effected by the reenactment of section 48-2-32 during the regular session of the Legislature, 1996, are to be applied prospectively and have no application to any action for annulment, divorce or separate maintenance that was commenced on or before June 7, 1996.

PART 2. DISCLOSURE OF ASSETS REQUIRED.

§48-7-201. Required disclosure and updates.

In all divorce actions and in any other action involving child support, all parties shall fully disclose their assets and liabilities within forty days after the service of summons or at such earlier time as ordered by the court. The information contained on these forms shall be updated on the record to the date of the hearing.

§48-7-202. Assets that are required to be disclosed.

The disclosure required by this part 2 may be made by each party individually or by the parties jointly. Assets required to be disclosed shall include, but are not limited to, real property, savings accounts, stocks and bonds, mortgages and notes, life insurance, health insurance coverage, interest in a partnership or corporation, tangible personal property, income from employment, future interests whether vested or nonvested and any other financial interest or source.

PART 2. DISCLOSURE OF ASSETS REQUIRED.

§48-7-203. Forms for disclosure of assets.

The Supreme Court of Appeals shall prepare and make available a standard form for the disclosure of assets and liabilities required by this part. The clerk of the circuit court and the secretary-clerk of the family court shall make these forms available to all parties in any divorce action or other action involving child support. All disclosure required by this part shall be on a form that substantially complies with the form promulgated by the Supreme Court of Appeals. The form used shall contain a statement in conspicuous print that complete disclosure of assets and liabilities is required by law and deliberate failure to provide complete disclosure as ordered by the court constitutes false swearing.

§48-7-204. Discovery under rules; optional disclosure of tax returns.

Nothing contained in this part 2 shall be construed to prohibit the court from ordering discovery pursuant to rule eighty-one of the rules of civil procedure. Additionally, the court may on its own initiative and shall at the request of either party require the parties to furnish copies of all state and federal income tax returns filed by them for the past two years and may require copies of such returns for prior years.

§48-7-205. Confidentiality of disclosed information.

Information disclosed under this part 2 is confidential and may not be made available to any person for any purpose other than the adjudication, appeal, modification or enforcement of judgment of an action affecting the family of the disclosing parties. The court shall include in any order compelling disclosure of assets such provisions as the court considers necessary to preserve the confidentiality of the information ordered disclosed.

§48-7-206. Failure to disclose required financial information.

Any failure to timely or accurately disclose financial information required by this part 2 may be considered as follows:

(1) Upon the failure by either party timely to file a complete disclosure statement as required by this part 2 or as ordered by the court, the court may accept the statement of the other party as accurate.

(2) If any party deliberately or negligently fails to disclose information which is required by this part 2 and in consequence thereof any asset or assets with a fair market value of $500 or more is omitted from the final distribution of property, the party aggrieved by the nondisclosure may at any time petition a court of competent jurisdiction to declare the creation of a constructive trust as to all undisclosed assets, for the benefit of the parties and their minor or dependent children, if any, with the party in whose name the assets are held declared the constructive trustee, such trust to include such terms and conditions as the court may determine. The court shall impose the trust upon a finding of a failure to disclose such assets as required under this part 2.

(3) Any assets with a fair market value of $500 or more which would be considered part of the estate of either or both of the parties if owned by either or both of them at the time of the action, but which was transferred for inadequate consideration, wasted, given away or otherwise unaccounted for by one of the parties, within five years prior to the filing of the petition or length of the marriage, whichever is shorter, shall be presumed to be part of the estate and shall be subject to the disclosure requirement contained in this part 2. With respect to such transfers the spouse shall have the same right and remedies as a creditor whose debt was contracted at the time the transfer was made under article one-a, chapter forty of this code. Transfers which resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed when such assets are otherwise identified in the statement of net worth.

(4) A person who knowingly provides incorrect information or who deliberately fails to disclose information pursuant to the provisions of this part 2 is guilty of false swearing.

PART 3. INJUNCTION; SETTING ASIDE CERTAIN TRANSFERS.

§48-7-301. Injunction to prevent removal or disposition of property.

Where it appears to the court that a party is about to remove himself or herself or his or her property from the jurisdiction of the court or is about to dispose of, alienate or encumber property in order to defeat a fair distribution of marital property, or the payment of alimony, child support or separate maintenance, an injunction may issue to prevent the removal or disposition and the property may be attached as provided by this code. The court may issue such injunction or attachment without bond.

§48-7-302. Notice of hearing for injunction; temporary injunction.

Any such injunction may be granted upon proper hearing after notice. For good cause shown, a temporary injunction may be issued after an ex parte proceeding with notice and proper hearing for a permanent injunction to be held forthwith thereafter.

§48-7-303. Applicability of injunction procedures to sale of goods or disposition of major business assets.

The procedures of this part 3 are not intended to apply to the sale of goods in the ordinary course of operating a business but shall apply to the disposition of the major assets of a business.

§48-7-304. Setting aside encumbrance or disposition of property to third persons.

Any encumbrance or disposition of property to third persons, except to bona fide purchasers without notice for full and adequate consideration, may be set aside by the court.

PART 4. LIS PENDENS.

§48-7-401. Lis pendens.

Upon the commencement of an action under the provisions of this article, any party claiming an interest in real property in which the other party has an interest, may cause a notice of lis pendens to be recorded in the office of the clerk of the county commission of the county wherein the property is located.

§48-7-402. Notice of lis pendens.

The notice shall contain the names of the parties, the nature of the complaint, the court having jurisdiction, the date the complaint was filed, and a description of the real property. Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the complaint. Each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter acquired by descent, or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of the notice, to the same extent as if he were made a party to the complaint. A notice of lis pendens recorded in accordance with this section may be discharged by the court upon substitution of a bond with surety in an amount established by the court, if the court finds that the claim against the property subject to the notice of lis pendens can be satisfied by a monetary award. In cases in which the sale of property is already in process when the notice of lis pendens is filed, and upon application, proper notice and hearing, the court may substitute a lien on the net proceeds of the sale.

PART 5. MISCELLANEOUS PROVISIONS RELATING

TO EQUITABLE DISTRIBUTION.

§48-7-501. Retroactive effect of amendments.

Amendments made to the provisions of former article two of this chapter during the 1984 regular session of the Legislature, shall be of retroactive effect to the extent that such amended provisions shall apply to the distribution of marital property, but not an award of spousal support, in all actions filed under the provisions of former article two of this chapter after May 25, 1983, or actions pending on that date in which a claim for equitable distribution of marital property had been pleaded: Provided, That the amendments are not applicable to actions where, prior to the effective date of the amendments, there has been a final decree entered or the taking of evidence has been completed and the case has been submitted for decision.

ARTICLE 8. SPOUSAL SUPPORT.

§48-8-101. General provisions regarding spousal support.

(a) An obligation that compels a person to pay spousal support may arise from the terms of a court order, an antenuptial agreement or a separation agreement. In an order or agreement, a provision that has the support of a spouse or former spouse as its sole purpose is to be regarded as an allowance for spousal support whether expressly designated as such or not, unless the provisions of this chapter specifically require the particular type of allowance to be treated as child support or a division of marital property. Spousal support may be paid as a lump sum or as periodic installments without affecting its character as spousal support.

(b) Spousal support is divided into four classes which are: (1) Permanent spousal support; (2) temporary spousal support, otherwise known as spousal support pendente lite; (3) rehabilitative spousal support; and (4) spousal support in gross.

(c) An award of spousal support cannot be ordered unless the parties are actually living separate and apart from each other.

§48-8-102. Jurisdiction to award spousal support.

The family courts and circuit courts, as provided in this chapter, have jurisdiction to award spousal support. A court may provide for the maintenance of a spouse during the pendency of an appeal to the circuit court or to the Supreme Court of Appeals.

§48-8-103. Payment of spousal support.

(a) Upon ordering a divorce or granting a decree of separate maintenance, the court may require either party to pay spousal support in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party. Payments of spousal support are to be ordinarily made from a party's income, but when the income is not sufficient to adequately provide for those payments, the court may, upon specific findings set forth in the order, order the party required to make those payments to make them from the corpus of his or her separate estate. An award of spousal support shall not be disproportionate to a party's ability to pay as disclosed by the evidence before the court.

(b) At any time after the entry of an order pursuant to the provisions of this article, the court may, upon motion of either party, revise or alter the order concerning the maintenance of the parties, or either of them, and make a new order concerning the same, issuing it forthwith, as the altered circumstances or needs of the parties may render necessary to meet the ends of justice. (c)(1) For the purposes of subsection (b) of this section, "altered circumstances" includes evidence in the form of genetic testing that establishes that a child conceived during the marriage of the parties is not the child of the former husband, or that a child was born to a woman other than the former wife because of the adultery of the former husband.

(2) Prior to admitting evidence of genetic testing, the court shall preliminarily determine whether genetic testing evidence should be admitted for the purpose of disproving or establishing paternity. The facts that may be considered by the court at this hearing include the following:

(A) The length of time that has elapsed since the party was first placed on notice that a child conceived during the marriage of the parties is not the child of the former husband, or that a child was born to a woman other than the former wife because of the adultery of the former husband;

(B) The length of time during which the individual desiring to challenge paternity assumed the role of parent to the child;

(C) The facts surrounding the party's discovery of nonpaternity;

(D) The nature of the parent/child relationship;

(E) The age of the child;

(F) The harm which may result to the child if paternity were successfully disproved;

(G) The extent to which the passage of time reduced the chances of establishing paternity in favor of the child; and

(H) All other factors which may affect the equities involved in the potential disruption of the parent/child relationship or the chances of undeniable harm to the child.

(d) For the purposes of subsection (c), genetic testing must be performed pursuant to the following guidelines:

(1) The tests show that the inherited characteristics including, but not limited to, blood types, have been determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under the laws of this state, or any other state, and an expert qualified as an examiner of genetic markers has analyzed, interpreted and reported on the results; and

(2) The genetic test results exclude the former husband as the father of the child.

§48-8-104. Effect of fault or misconduct on award of spousal support.

In determining whether spousal support is to be awarded, or in determining the amount of spousal support, if any, to be awarded, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of the fault or misconduct as a contributing factor to the deterioration of the marital relationship.

§48-8-105. Rehabilitative spousal support.

(a) The court may award rehabilitative spousal support for a limited period of time to allow the recipient spouse, through reasonable efforts, to become gainfully employed. When awarding rehabilitative spousal support, the court shall make specific findings of fact to explain the basis for the award, giving due consideration to the factors set forth in §48-6-301 of this code. An award of rehabilitative spousal support is appropriate when the dependent spouse evidences a potential for self-support that could be developed through rehabilitation, training, or academic study.

(b) The court may modify an award of rehabilitative spousal support if a substantial change in the circumstances under which rehabilitative spousal support was granted warrants terminating, extending, or modifying the award or replacing it with an award of permanent spousal support. In determining whether a substantial change of circumstances exists which would warrant a modification of a rehabilitative spousal support award, the court may consider a reassessment of the dependent spouse’s potential work skills and the availability of a relevant job market, the dependent spouse’s age, health and skills, the dependent spouse’s ability or inability to meet the terms of the rehabilitative plan and other relevant factors as provided for in §48-6-301 of this code.

§48-8-106. Payments out of disposable retired or retainer pay.

Whenever the court enters an order requiring the payment of spousal support, if the court anticipates the payment or any portion thereof is to be paid out of "disposable retired or retainer pay" as that term is defined in 10 U.S.C. §1408, relating to members or former members of the uniformed services of the United States, the court shall specifically provide for the payment of an amount, expressed in dollars or as a percentage of disposable retired or retainer pay, from the disposable retired or retainer pay of the payor party to the payee party.

ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.

PART 1. SCOPE; OBJECTIVES; PARTIES

AND PARENT EDUCATION CLASSES.

§48-9-101. Scope of article; legislative findings and declarations.

(a) This article sets forth principles governing the allocation of custodial and decision-making responsibility for a minor child when the parents do not live together.

(b) The Legislature finds and declares that it is the public policy of this state to assure that the best interest of children is the court's primary concern in allocating custodial and decision-making responsibilities between parents who do not live together. In furtherance of this policy, the Legislature declares that a child's best interest will be served by assuring that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children, to educate parents on their rights and responsibilities and the effect their separation may have on children, to encourage mediation of disputes, and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or divorced.

§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) 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;

(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 decision-making 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 article is to achieve fairness between the parents.

§48-9-103. Parties to an action under this article.

(a) Persons who have a right to be notified of and participate as a party in an action filed by another are:

(1) A legal parent of the child, as defined in section 1-232 of this chapter;

(2) An adult allocated custodial responsibility or decision-making responsibility under a parenting plan regarding the child that is then in effect; or

(3) Persons who were parties to a prior order establishing custody and visitation, or who, under a parenting plan, were allocated custodial responsibility or decision-making responsibility.

(b) In exceptional cases the court may, in its discretion, grant permission to intervene to other persons or public agencies whose participation in the proceedings under this article it determines is likely to serve the child's best interests. The court may place limitations on participation by the intervening party as the court determines to be appropriate. Such persons or public agencies do not have standing to initiate an action under this article.

PART 1. SCOPE; OBJECTIVES; PARTIES

AND PARENT EDUCATION CLASSES.

§48-9-104. Parent education classes.

(a) The family court shall, by order, and with the approval of the Supreme Court of Appeals, designate an organization or agency to establish and operate education programs designed for parents who have filed an action for divorce, paternity, support, separate maintenance or other custody proceeding and who have minor children. The education programs shall be designed to instruct and educate parents about the effects of divorce and custody disputes on their children and to teach parents ways to help their children and minimize their trauma.

(b) The family court shall issue an order requiring parties to an action for divorce involving a minor child or children to attend parent education classes established pursuant to subsection (a) of this section unless the court determines that attendance is not appropriate or necessary based on the conduct or circumstances of the parties. The court may, by order, establish sanctions for failure to attend. The court may also order parties to an action involving paternity, separate maintenance or modification of a divorce decree to attend such classes.

(c) The family court may require that each person attending a parent education class pay a fee, not to exceed $25, to the clerk of the circuit court to defray the cost of materials and of hiring teachers: Provided, That where it is determined that a party is indigent and unable to pay for such classes, the court shall waive the payment of the fee for such party. The clerk of the circuit court shall, on or before the tenth day of each month, transmit all fees collected under this subsection to the state Treasurer for deposit in the state Treasury to the credit of special revenue fund to be known as the "parent education fund" which is hereby created. All moneys collected and received under this subsection and paid into the state Treasury and credited to the parent education fund shall be used by the administrative office of the Supreme Court of Appeals solely for reimbursing the provider of parent education classes for the costs of materials and of providing such classes. Such moneys shall not be treated by the Auditor and treasurer as part of the general revenue of the state.

(d) The administrative office of the Supreme Court of Appeals shall submit a report to the Joint Committee on Government and Finance summarizing the effectiveness of any program of parent education no later than two years from the initiation of the program.

PART 2. PARENTING PLANS.

§48-9-201. Parenting agreements.

(a) If the parents agree to one or more provisions of a parenting plan, the court shall so order, unless it makes specific findings that:

(1) The agreement is not knowing or voluntary; or

(2) The plan would be harmful to the child.

(b) The court, at its discretion and on any basis it deems sufficient, may conduct an evidentiary hearing to determine whether there is a factual basis for a finding under subdivision (1) or (2), subsection (a) of this section. When there is credible information that child abuse as defined by section 49-1-3 of this code or domestic violence as defined by section 27-202 of this code has occurred, a hearing is mandatory and if the court determines that abuse has occurred, appropriate protective measures shall be ordered.

(c) If an agreement, in whole or in part, is not accepted by the court under the standards set forth in subsection (a) of this section, the court shall allow the parents the opportunity to negotiate another agreement.

PART 2. PARENTING PLANS.

§48-9-202. Court-ordered services.

(a)(1) The court shall inform the parents, or require them to be informed, about:

(A) How to prepare a parenting plan;

(B) The impact of family dissolution on children and how the needs of children facing family dissolution can best be addressed;

(C) The impact of domestic abuse on children and resources for addressing domestic abuse; and

(D) Mediation or other nonjudicial procedures designed to help them achieve an agreement.

(2) The court shall require the parents to attend parent education classes.

(3) If parents are unable to resolve issues and agree to a parenting plan, the court shall require mediation unless application of the procedural rules promulgated pursuant to the provisions of subsection (b) of this section indicates that mediation is inappropriate in the particular case.

(b) The Supreme Court of Appeals shall make and promulgate rules that will provide for premediation screening procedures to determine whether domestic violence, child abuse or neglect, acts or threats of duress or coercion, substance abuse, mental illness or other such elements would adversely affect the safety of a party, the ability of a party to meaningfully participate in the mediation or the capacity of a party to freely and voluntarily consent to any proposed agreement reached as a result of the mediation. Such rules shall authorize a family court judge to consider alternatives to mediation which may aid the parties in establishing a parenting plan. Such rules shall not establish a per se bar to mediation if domestic violence, child abuse or neglect, acts or threats of duress or coercion, substance abuse, mental illness or other such elements exist, but may be the basis for the court, in its discretion, not to order services under subsection (a) of this section or not to require a parent to have face-to-face meetings with the other parent.

(c) A mediator shall not make a recommendation to the court and may not reveal information that either parent has disclosed during mediation under a reasonable expectation of confidentiality, except that a mediator may reveal to the court credible information that he or she has received concerning domestic violence or child abuse.

(d) Mediation services authorized under subsection (a) of this section shall be ordered at an hourly cost that is reasonable in light of the financial circumstances of each parent, assessed on a uniform sliding scale. Where one parent's ability to pay for such services is significantly greater than the other, the court may order that parent to pay some or all of the expenses of the other. State revenues shall not be used to defray the costs for the services of a mediator: Provided, That the Supreme Court of Appeals may use a portion of its budget to pay administrative costs associated with establishing and operating mediation programs: Provided, however, That grants and gifts to the state that may be used to fund mediation are not to be considered as state revenues for purposes of this subsection.

(e) The Supreme Court of Appeals shall establish standards for the qualification and training of mediators.

§48-9-203. Proposed temporary parenting plan; temporary order; amendment; vacation of order.

(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 twelve 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’ work and child-care schedules for the preceding twelve months;

(4) The parents’ current work and child-care schedules; and

(5) Any of the circumstances set forth in §48-9-209 of this code that are likely to pose a serious risk to the child and that 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 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;

(5) Restraining orders, if applicable; and

(6) Specific findings of fact upon which the court bases its determinations.

(c) A parent may make a motion for an order to show cause and the court may enter a temporary order, including a temporary parenting plan, upon a showing of necessity.

(d) 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 §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:

(1) Which parent has taken greater responsibility during the last 12 months for performing caretaking and/or 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.

§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;

(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 limiting factors as 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.

(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; and

(4) A plan for the custody of the child should one or both of the parents as a member of the National Guard, a reserve component, or an active duty component be 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.

(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 may be expected to achieve any of the following objectives:

(1) To permit the child to have a meaningful relationship with each parent who has performed a reasonable share of parenting functions;

(2) To accommodate, if the court determines it is in the best interests of the child, the firm and reasonable preferences of a child who is 14 years of age or older; and to accommodate, if the court determines it is in the best interests of the child, the firm and reasonable preferences of a child under 14 years of age, but sufficiently matured that he or she can intelligently express a voluntary preference for one parent;

(3) To keep siblings together when the court finds that doing so is necessary to their welfare;

(4) To protect the child’s welfare when, under an otherwise appropriate allocation, the child would be harmed because of a gross disparity in the quality of the emotional attachments between each parent and the child, or in each parent’s demonstrated ability or availability to meet a child’s needs;

(5) To take into account any prior agreement of the parents that, under the circumstances as a whole, including the reasonable expectations of the parents in the interest of the child, would be appropriate to consider;

(6) To avoid an allocation of custodial responsibility that would be extremely impractical or that would interfere substantially with the child’s need for stability in light of economic, physical, or other circumstances, including the distance between the parents’ residences, the cost and difficulty of transporting the child, the parents’ and child’s daily schedules, and the ability of the parents to cooperate in the arrangement;

(7) To apply the principles set forth in §48-9-403(d) 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;

(8) To consider the stage of a child’s development;

(9) To consider which parent will encourage and accept a positive relationship between the child and the other parent, including which parent is more likely to keep the other parent involved in the child’s life and activities;

(10) To take into account the preference that time allocated to the parent resulting in the child being under the care and custody of that parent is preferred to time allocated to the parent resulting in the child being under the care or custody of a family member of that parent or a third party; and

(11) To allow reasonable access to the child by telephone or other electronic contact, which shall be defined in the parenting plan.

 (b) 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.

(c) If the court is unable to allocate custodial responsibility under §48-9-206(a) of this code because the allocation under §48-9-206(a) of this code would be harmful to the child, or because there is no history of past performance of caretaking functions, as in the case of a newborn, or because the history does not establish a pattern of caretaking sufficiently dispositive of the issues of the case, the court shall allocate custodial responsibility based on the child’s best interest, taking into account the factors in considerations that are set forth in this section and in §48-9-209 and §48-9-403(d) of this code and preserving to the extent possible this section’s priority on the share of past caretaking functions each parent performed: Provided, That if either parent or both has demonstrated reasonable participation in parenting functions as defined in §48-1-235.2 of this code, the court cannot rely solely on caretaking functions, and shall consider the parents’ participation in parenting functions.

(d) In determining how to schedule the custodial time allocated to each parent, the court shall take account of the economic, physical, and other practical circumstances such as those listed in §48-9-206(a)(6) of this code.

(e) 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 hearing, which shall not be conducted exclusively by the presentation of evidence by proffer. The court’s order determining allocation of custodial responsibility shall be in writing, and include specific findings of fact supporting the determination.

§48-9-207. Allocation of significant decision-making responsibility.

(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 two parents jointly, in accordance with the child’s best interest, in light of:

(1) The allocation of custodial responsibility under §48-9-206 of this code;

(2) The level of each parent’s participation in past decision-making on behalf of the child;

(3) The wishes of the parents;

(4) The level of ability and cooperation the parents have demonstrated in decision-making on behalf of the child;

(5) Prior agreements of the parties; and

(6) The existence of any limiting factors, as set forth in section 9-209 of this article.

(b) If each of the child’s legal parents has been exercising a reasonable share of parenting functions for the child, the court shall presume that an allocation of decision-making responsibility to both parents jointly is in the child’s best interests. The presumption is overcome if there is a history of domestic abuse, neglect, or abandonment, or by a showing that joint allocation of decision-making responsibility is not in the child’s best interest: Provided, That the court’s determination shall be in writing and include specific findings of fact supporting any determination that joint allocation of decision-making responsibility is not in the child’s best interest.

(c) Unless otherwise provided or agreed by the parents, each parent who is exercising custodial responsibility shall be given sole responsibility for day-to-day decisions for the child, while the child is in that parent’s care and control, including emergency decisions affecting the health and safety of the child.

§48-9-208. Criteria for parenting plan; dispute resolution.

(a) If provisions for resolving parental disputes are not ordered by the court pursuant to parenting agreement under section 9-201, the court shall order a method of resolving disputes that serves the child's best interest in light of:

(1) The parents' wishes and the stability of the child;

(2) Circumstances, including, but not limited to, financial circumstances, that may affect the parents ability to participate in a prescribed dispute resolution process; and

(3) The existence of any limiting factor, as set forth in section 9-209 of this article.

(b) The court may order a nonjudicial process of dispute resolution by designating with particularity the person or agency to conduct the process or the method for selecting such a person or agency. The disposition of a dispute through a nonjudicial method of dispute resolution that has been ordered by the court without prior parental agreement is subject to de novo judicial review. If the parents have agreed in a parenting plan or by agreement thereafter to a binding resolution of their dispute by nonjudicial means, a decision by such means is binding upon the parents and must be enforced by the court, unless it is shown to be contrary to the best interests of the child, beyond the scope of the parents' agreement, or the result of fraud, misconduct, corruption or other serious irregularity.

(c) This section is subject to the limitations imposed by section two hundred two of this article.

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 §61-8B-1 et seq. and §61-8D-1 et seq. of this code;

(3) Has committed domestic violence, as defined in §48-27-202 of this code;

(4) Has overtly or covertly, persistently violated, interfered with, impaired, or impeded the rights of a parent or a child with respect to the exercise of shared authority, residence, visitation, or other contact with 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 made one or more fraudulent reports of domestic violence or child abuse: Provided, That a person’s withdrawal of or failure to pursue a report of domestic violence or child support shall not alone be sufficient to consider that report fraudulent.

(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 but not limited to:

(A) Increased parenting time with the child to make up for any parenting time the other parent lost as a result of the proscribed activity;

(B) An additional allocation of parenting time in order to repair any adverse effect upon the relationship between the child and the other parent resulting from the proscribed 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 three 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 order reimbursement to be paid by the person making the accusations of costs resulting from defending against the accusations. Such reimbursement may not exceed the actual reasonable costs incurred by the accused party as a result of defending against the accusation and reasonable attorney’s fees incurred.

(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 hundred and one, article five, 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.

Part 2 – Parenting Plans

§48-9-209a. Child conceived as result of sexual assault or sexual abuse by a parent; rights of a biological parent convicted of sexual assault or abuse; post-conviction cohabitation; rebuttable presumption upon separation or divorce.

(a) Except as otherwise provided in this section, if a child custodial responsibility or parenting time dispute involves a child who is conceived as a result of acts by which one of the child's biological parents has been convicted of sexual assault, pursuant to section three, four or five, article eight-b, chapter sixty-one of this code, or of sexual abuse by a parent, guardian or custodian, pursuant to section five, article eight-d, chapter sixty-one of this code, the court shall not allocate custodial responsibility to the biological parent convicted of the sexual assault, and the convicted parent has no right to parenting time with the child unless the court finds by clear and convincing evidence set forth in written findings that it is in the best interests of the child, adequately protects the child and the victim of the sexual offense and that the person or persons with custodial responsibility of the child consent thereto.

(b) Subsection (a) does not apply if:

(1) The biological parents are husband and wife at the time of the offense and, after the date of conviction, cohabit and establish a mutual custodial environment for the child; or

(2) After the date of conviction, the unmarried biological parents cohabit and establish a mutual custodial environment for the child.

(c) If persons described by subsection (b) of this section later separate or divorce, the conviction of sexual assault, pursuant to section three, four or five, article eight-b, chapter sixty-one of this code, or of sexual abuse by a parent, guardian or custodian, pursuant to section five, article eight-d, chapter sixty-one of this code creates a rebuttable presumption that exclusive or shared custodial responsibility of the child by the perpetrator of the offense is not in the best interests of the child. The convicted parent has no right to parenting time with the child unless the court finds by clear and convincing evidence set forth in written findings that, despite the rebuttable presumption required by this subsection, a custodial responsibility or parenting time arrangement with the convicted parent is in the best interests of the child, adequately protects the child and the victim of the sexual offense, and that the victim of the sexual offense consents thereto.

(d) A denial of custodial responsibility or parenting time under this section does not by itself terminate the parental rights of the person denied custodial responsibility or parenting time, nor does it affect the obligation of the person to support the minor child.

Part 3. Fact Finding

§48-9-301. Court-ordered investigation.

(a) In its discretion, the court may order a written investigation and report to assist it in determining any issue relevant to proceedings under this article: Provided, That the court must serve notice to all parties of the court’s order. The investigation and report may be made by the guardian ad litem, the staff of the court, or other professional social service organization experienced in counseling children and families: Provided, That the court shall identify to all parties the identity of the assigned investigator, and the investigator shall be a compulsory witness and subject to full examination and cross-examination by both parties. The court shall specify the scope and objective of the investigation or evaluation and the authority of the investigator.

(b) In preparing the report concerning a child, the investigator may consult any person who may have information about the child and the potential parenting or custodian arrangements: Provided, That the person(s) consulted by the investigator shall be identified to the parties and shall be subject to complete discovery including but not limited to pre-hearing deposition. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric or other expert persons who have served the child in the past without obtaining the consent of the parent or the child’s custodian; but the child’s consent must be obtained if the child has reached the age of twelve, unless the court finds that the child lacks mental capacity to consent. If the requirements of subsection (c) of this section are fulfilled, the investigator’s report may be received in evidence at the hearing.

(c) The investigator shall deliver the investigator’s report to counsel and to any party not represented by counsel at least 10 days prior to the hearing unless a shorter time is ordered by the court for good cause shown: Provided, That in no event shall the hearing take place until after the report has been provided to the parties and the completion of any discovery requested thereupon. The court may grant a continuance, upon motion by a party showing good cause that discovery cannot be adequately completed within 10 days. The investigator shall make available to counsel and to any party not represented by counsel the investigator’s file of underlying data and reports, records or documents reviewed or relied upon by the investigator, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (b) of this section, and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call as a hearing witness the investigator and any person whom the investigator has consulted for cross-examination. A party may not waive the right of cross-examination prior to the hearing.

(d) Services and tests ordered under this section shall be ordered only if at no cost to the individuals involved, or at a cost that is reasonable in light of the available financial resources.

§48-9-301a. Child abuse allegations.

(a) If allegations of child 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, considers appropriate under the circumstances to protect the child’s safety until an investigation can be completed. Nothing in this subsection shall affect the applicability of §49-2-802 and §49-2-803 of this code.

(b) If allegations of child 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 §49-2-801 through §49-2-814 of this code. Upon completion of the investigation, the agency shall report its findings to the court.

§48-9-302. Appointment of guardian.

(a) In its discretion, the court may appoint a guardian ad litem to represent the child's best interests. The court shall specify the terms of the appointment, including the guardian's role, duties and scope of authority.

(b) In its discretion, the court may appoint a lawyer to represent the child, if the child is competent to direct the terms of the representation and court has a reasonable basis for finding that the appointment would be helpful in resolving the issues of the case. The court shall specify the terms of the appointment, including the lawyer's role, duties and scope of authority.

(c) When substantial allegations of domestic abuse have been made, the court shall order an investigation under section 9-301 or make an appointment under subsection (a) or (b) of this section, unless the court is satisfied that the information necessary to evaluate the allegations will be adequately presented to the court without such order or appointment.

(d) Subject to whatever restrictions the court may impose or that may be imposed by the attorney-client privilege or by subsection 9-202(d), the court may require the child or parent to provide information to an individual or agency appointed by the court under section 9-301 or subsection (a) or (b) of this section, and it may require any person having information about the child or parent to provide that information, even in the absence of consent by a parent or by the child, except if the information is otherwise protected by law.

(e) The investigator who submits a report or evidence to the court that has been requested under section 9-301 and a guardian ad litem appointed under subsection (a) of this section who submits information or recommendations to the court are subject to cross-examination by the parties. A lawyer appointed under subsection (b) of this section may not be a witness in the proceedings, except as allowed under standards applicable in other civil proceedings.

(f) Services and tests ordered under this section shall be ordered only if at no cost to the individuals involved, or at a cost that is reasonable in light of the available financial resources.

§48-9-303. Interview of the child by the court.

The court, in its discretion, may interview the child in chambers or direct another person to interview the child, in order to obtain information relating to the issues of the case. The interview shall be conducted in accordance with rule 16 of the rules of practice and procedure for family law, as promulgated by the Supreme Court of Appeals.

PART 4. MODIFICATION OF PARENTING PLAN.

§48-9-401. Modification upon showing of changed circumstances or harm.

(a) Except as provided in section 9-402 or 9-403, a court shall modify a parenting plan order if it finds, on the basis of facts that were not known or have arisen since the entry of the prior order and were not anticipated therein, that a substantial change has occurred in the circumstances of the child or of one or both parents and a modification is necessary to serve the best interests of the child.

(b) In exceptional circumstances, a court may modify a parenting plan if it finds that the plan is not working as contemplated and in some specific way is manifestly harmful to the child, even if a substantial change of circumstances has not occurred.

(c) Unless the parents have agreed otherwise, the following circumstances do not justify a significant modification of a parenting plan except where harm to the child is shown:

(1) Circumstances resulting in an involuntary loss of income, by loss of employment or otherwise, affecting the parent's economic status;

(2) A parent's remarriage or cohabitation; and

(3) Choice of reasonable caretaking arrangements for the child by a legal parent, including the child's placement in day care.

(d) For purposes of subsection (a) of this section, the occurrence or worsening of a limiting factor, as defined in subsection (a), section 9-209, after a parenting plan has been ordered by the court, constitutes a substantial change of circumstances and measures shall be ordered pursuant to section 9-209 to protect the child or the child's parent.

§48-9-402. Modification without showing of changed circumstances.

(a) The court shall modify a parenting plan in accordance with a parenting agreement, unless it finds that the agreement is not knowing and voluntary or that it would be harmful to the child.

(b) The court may modify any provisions of the parenting plan without the showing of change circumstances required by §48-9-401(a) if the modification is in the child’s best interests, and the modification:

(1) Reflects the de facto arrangements under which the child has been receiving care from the petitioner, without objection, in substantial deviation from the parenting plan, for the preceding six months before the petition for modification is filed, provided the arrangement is not the result of a parent’s acquiescence resulting from the other parent’s domestic abuse;

(2) Constitutes a minor modification in the plan; or

(3) Is necessary to accommodate the reasonable and firm preferences of a child who, has attained the age of fourteen; or

(4) Is necessary to accommodate the reasonable and firm preferences of a child who, is under the age of fourteen and, in the discretion of the court, is sufficiently matured that he or she can intelligently express a voluntary preference.

(c) Evidence of repeated filings of fraudulent reports of domestic violence or child abuse is admissible in a domestic relations action between the involved parties when the allocation of custodial responsibilities is in issue, and the fraudulent accusations may be a factor considered by the court in making the allocation of custodial responsibilities.

Part 4. Modification Of Parenting Plan.

§48-9-403. Relocation of a parent.

(a) The relocation of a parent constitutes a substantial change in the circumstances of the child under §48-9-401(a) of this code when it impairs either parent’s ability to exercise responsibilities that the parent has been exercising, or when it impairs the schedule of custodial allocation that has been ordered by the court for a parent or any other person.

(b) A parent who has responsibility under a parenting plan who changes, or intends to change, residences must file a verified petition with the court for modification of the parenting plan, and cause a copy of the same to be served upon the other parent and upon all other persons who, pursuant to the court’s order in effect at the time of the petition, have been allocated custodial time with the child. The petition shall be filed at least 90 days prior to any relocation, and the summons must be served at least 60 days in advance of any relocation, unless the relocating parent establishes that it was impracticable under the circumstances to provide such notice 90 days in advance. The verified petition shall include:

(1) The proposed relocation date;

(2) The address of the intended new residence;

(3) The specific reasons for the proposed relocation;

(4) A proposal for how custodial responsibility shall be modified, in light of the intended move; and

(5) A request for a hearing.

Failure to comply with the requirements of this section may be a factor in the determination of whether the relocation is in good faith under subsection (d) of this section, and may also be a basis for reallocation of the primary residence and custodial responsibility for the child and for an award of reasonable expenses and reasonable attorney’s fees to another parent or another person exercising custodial responsibility for the child pursuant to an order of the court that are attributable to such failure.

(c) A hearing on the petition shall be held by the court at least 30 days in advance of the proposed date of relocation. A parent proposing to relocate may move for an expedited hearing upon the petition in circumstances under which the parent needs an answer expeditiously. If the hearing is held fewer than 30 days in advance of the proposed date of relocation, the court’s order shall include findings of fact as to why the hearing was not held at least 30 days prior to the petition’s proposed date of relocation. After a hearing upon a petition filed under this section, the court shall, if practical, revise the parenting plan so as to both accommodate the relocation and maintain the same proportion of custodial responsibility being exercised by each of the parents and all such other persons exercising custodial responsibility for the child pursuant to the order of the court. In making such revision, the court may consider the additional costs that a relocation imposes upon the respective parties for transportation and communication, and may equitably allocate such costs between the parties and may consider §48-13-702 of this code authorizing the court to disregard the child support formula relating to long distance visitation costs.

(d) (1) At the hearing held pursuant to this section, the relocating parent has the burden of proving that: (A) The reasons for the proposed relocation are legitimate and made in good faith; (B) that allowing relocation of the relocating parent with the child is in the best interests of the child as defined in §48-9-102 of this code; and (C) that there is no reasonable alternative, other than the proposed relocation, available to the relocating parent that would be in the child’s best interests and less disruptive to the child.

(2) A relocation is for a legitimate purpose if it is to be close to immediate family members, for substantial health reasons, to protect the safety of the child or another member of the child’s household from significant risk of harm, to pursue a significant employment or educational opportunity, or to be with one’s spouse or significant other with whom the relocating parent has cohabitated for at least a year, who is established, or who is pursuing a significant employment or educational opportunity, in another location.

(3) The relocating parent has the burden of proving the proposed relocation is for one of these legitimate purposes. The relocating parent has the burden of proving the legitimacy of any other purpose. A move with a legitimate purpose is unreasonable unless the relocating parent proves that the purpose is not substantially achievable without moving, and that moving to a location that is substantially less disruptive of the other parent’s relationship to the child is not feasible.

(4) When the relocation is for a legitimate purpose, in good faith, and renders it impractical to maintain the same proportion of custodial responsibility as that being exercised by each parent and all other persons exercising custodial responsibility for the child pursuant to an order of the court, the court shall modify the parenting plan in accordance with the child’s best interests.

(5) If the relocating parent does not establish that the purpose for that parent’s relocation is made in good faith for a legitimate purpose to a location that is reasonable in light of the purpose, the court may modify the parenting plan in accordance with the child’s best interests and the effects of the relocation on the child. Among the modifications the court may consider is a reallocation of primary custodial responsibility, to become effective if and when the parent’s relocation occurs.

(6) The court shall attempt to minimize impairment to a parent-child relationship caused by a parent’s relocation through alternative arrangements for the exercise of custodial responsibility appropriate to the parents’ resources and circumstances and the developmental level of the child.

(e) If the parties file with the court a modified parenting plan signed by all the parties the court may enter an order modifying custodial responsibility in accordance with the parenting plan if the court determines that the parenting plan is in the best interest of the child to do so.

(f) Except in extraordinary circumstance articulated in the court’s order, a relocation may not be considered until an initial permanent parenting plan is established.

(g) In determining the effect of the relocation or proposed relocation on a child, any interviewing or questioning of the child shall be conducted in accordance with the provisions of Rule 17 of the Rules of Practice and Procedure for Family Court as promulgated by the Supreme Court of Appeals.

§48-9-404

Repealed

Acts, 2017 Reg. Sess., Ch. 66.

PART 5. ENFORCEMENT OF PARENTING PLANS.

§48-9-501. Enforcement of parenting plans.

(a) If, upon a parental complaint, the court finds a parent intentionally and without good cause violated a provision of the court-ordered parenting plan, it shall enforce the remedy specified in the plan or, if no remedies are specified or they are clearly inadequate, it shall find the plan has been violated and order an appropriate remedy, which may include:

(1) In the case of interference with the exercise of custodial responsibility for a child by the other parent, substitute time for that parent to make up for time missed with the child;

(2) In the case of missed time by a parent, costs in recognition of lost opportunities by the other parent, in child care costs and other reasonable expenses in connection with the missed time;

(3) A modification of the plan, if the requirements for a modification are met under section 9-209, section 9-401, 402 or 403 of this article, including an adjustment of the custodial responsibility of the parents or an allocation of exclusive custodial responsibility to one of them;

(4) An order that the parent who violated the plan obtain appropriate counseling;

(5) A civil penalty, in an amount of not more than $100 for a first offense, not more than $500 for a second offense, or not more than $1,000 for a third or subsequent offense, to be paid to the parent education fund as established under section 9-104;

(6) Court costs, reasonable attorney's fees and any other reasonable expenses in enforcing the plan; and

(7) Any other appropriate remedy.

(b) Except as provided in a jointly submitted plan that has been ordered by the court, obligations established in a parenting plan are independent obligations, and it is not a defense to an action under this section by one parent that the other parent failed to meet obligations under a parenting plan or child support order.

(c) An agreement between the parents to depart from the parenting plan can be a defense to a claim that the plan has been violated, even though the agreement was not made part of a court order, but only as to acts or omissions consistent with the agreement that occur before the agreement is disaffirmed by either parent.

Part 6. Miscellaneous Provisions.

§48-9-601. Access to a child’s records.

(a)(1) Each parent has full and equal access to a child’s educational records absent a court order to the contrary. Neither parent may veto the access requested by the other parent. Educational records are academic, attendance and disciplinary records of public and private schools in all grades pre-kindergarten through 12 and any form of alternative school. Educational records are any and all school records concerning the child that would otherwise be properly released to the primary custodial parent, including, but not limited to, report cards and progress reports, attendance records, disciplinary reports, results of the child’s performance on standardized tests and statewide tests and information on the performance of the school that the child attends on standardized statewide tests; curriculum materials of the class or classes in which the child is enrolled; names of the appropriate school personnel to contact if problems arise with the child; information concerning the academic performance standards, proficiencies, or skills the child is expected to accomplish; school rules, attendance policies, dress codes and procedures for visiting the school; and information about any psychological testing the school does involving the child.

(2) In addition to the right to receive school records, the nonresidential parent has the right to participate as a member of a parent advisory committee or any other organization comprised of parents of children at the school that the child attends.

(3) The nonresidential parent or noncustodial parent has the right to question anything in the child’s record that the parent feels is inaccurate or misleading or is an invasion of privacy and to receive a response from the school.

(4) Each parent has a right to arrange appointments for parent-teacher conferences absent a court order to the contrary. Neither parent can be compelled against their will to exercise this right by attending conferences jointly with the other parent.

(b)(1) Each parent has full and equal access to a child’s medical records and vital records absent a court order to the contrary. Neither parent may veto the access requested by the other parent. If necessary, either parent is required to authorize medical providers to release to the other parent copies of any and all information concerning medical care provided to the child which would otherwise be properly released to either parent.

(2) If the child is in the actual physical custody of one parent, that parent is required to promptly inform the other parent of any illness of the child which requires medical attention.

(3) Each parent is required to consult with the other parent prior to any elective surgery being performed on the child, and in the event emergency medical procedures are undertaken for the child which require the parental consent of either parent, if time permits, the other parent shall be consulted, or if time does not permit such consultation, the other parent shall be promptly informed of the emergency medical procedures: Provided, That nothing contained herein alters or amends the law of this state as it otherwise pertains to physicians or health care facilities obtaining parental consent prior to providing medical care or performing medical procedures.

(c)(1) Each parent has full and equal access to a child’s juvenile court records, process and pleadings, absent a court order to the contrary. Neither parent may veto any access requested by the other parent. Juvenile court records are limited to those records which are normally available to a parent of a child who is a subject of the juvenile justice system.

(2) Each parent has the right to be notified by the other party if the minor child is the victim of an alleged crime, including the name of the investigating law-enforcement officer or agency, if known. There is no duty to notify if the party to be notified is the alleged perpetrator.

§48-9-602. Designation of custody for the purpose of other state and federal statutes.

Solely for the purposes of all other state and federal statutes which require a designation or determination of custody, a parenting plan shall designate the parent with whom the child is scheduled to reside the majority of the time as the custodian of the child. However, this designation shall not affect either parent's rights and responsibilities under a parenting plan. In the absence of such a designation, the parent with whom the child is scheduled to reside the majority of the time is deemed to be the custodian of the child for the purposes of such federal and state statutes.

§48-9-603. Effect of enactment; operative dates.

(a) The enactment of this article, formerly enacted as article eleven of this chapter during the second extraordinary session of the 1999 Legislature, is prospective in operation unless otherwise expressly indicated.

(b) The provisions of §48-9-202 of this code, insofar as they provide for parent education and mediation, became operative on January 1, 2000. Until that date, parent education and mediation with regard to custody issues were discretionary unless made mandatory under a particular program or pilot project by rule or direction of the Supreme Court of Appeals or a circuit court.

(c) The provisions of this article that authorize the court, in the absence of an agreement of the parents, to order an allocation of custodial responsibility and an allocation of significant decision-making responsibility became operative on January 1, 2000, at which time the primary caretaker doctrine was replaced with a system that allocates custodial and decision-making responsibility to the parents in accordance with this article. Any order entered prior to January 1, 2000, based on the primary caretaker doctrine remains in full force and effect until modified by a court of competent jurisdiction.

(d) The amendments to this chapter made during the 2021 session of the Legislature shall become applicable upon the effective date of those amendments. Any order entered prior to the effective date of those amendments remains in full force and effect until modified by a court of competent jurisdiction.

§48-9-604. Parent education and mediation fund.

There is hereby created in the state Treasury a special revenue account, designated the "parent education and mediation fund." The moneys of the fund shall be expended by the administrator of the Supreme Court of Appeals for parent education and mediation programs.

ARTICLE 10. GRANDPARENT VISITATION.

§48-10-1.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-2.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-3.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-4.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-5.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-6.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-7.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-8.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-9.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-10.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-11.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-12.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-13.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-14.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-15.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-16.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-17.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-18.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-19.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-20.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-21.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-22.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-23.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-24.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-25.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-26.

Repealed.

Acts, 2000 Reg. Sess., Ch. 44.

§48-10-101. Legislative findings.

The Legislature finds that circumstances arise where it is appropriate for circuit courts or family courts of this state to order that grandparents of minor children may exercise visitation with their grandchildren. The Legislature further finds that in such situations, as in all situations involving children, the best interests of the child or children are the paramount consideration.

§48-10-102. Legislative intent.

It is the express intent of the Legislature that the provisions for grandparent visitation that are set forth in this article are exclusive.

PART 2. DEFINITIONS.

§48-10-201. Applicability of definitions.

For the purposes of this article the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them in this article. These definitions are applicable unless a different meaning clearly appears from the context.

§48-10-202. Child defined.

"Child" means a person under the age of eighteen years who has not been married or otherwise emancipated.

§48-10-203. Grandparent defined.

"Grandparent" means a biological grandparent, a person married or previously married to a biological grandparent, or a person who has previously been granted custody of the parent of a minor child with whom visitation is sought.

§48-10-301. Persons who may apply for grandparent visitation; venue.

A grandparent of a child residing in this state may, by motion or petition, make application to the circuit court or family court of the county in which that child resides for an order granting visitation with his or her grandchild.

§48-10-401. Motion for grandparent visitation when action for divorce, custody, legal separation, annulment or establishment of paternity is pending.

(a) The provisions of this section apply to any pending actions for divorce, custody, legal separation, annulment or establishment of paternity.

(b) After the commencement of the action, a grandparent seeking visitation with his or her grandchild may, by motion, apply to the family court for an order granting visitation. A grandparent moving for an order of visitation will not be afforded party status, but may be called as a witness by the court, and will be subject to cross-examination by the parties.

(c) Motions or petitions for grandparent visitation shall be filed and heard in the family court except when an abuse or neglect proceeding involving the child or children is pending before the circuit court, in which case the motion or petition shall be filed and heard in the circuit court.

§48-10-402. Petition for grandparent visitation when action for divorce, custody, legal separation, annulment or establishment of paternity is not pending.

(a) The provisions of this section apply when no proceeding for divorce, custody, legal separation, annulment or establishment of paternity is pending.

(b) A grandparent may petition the family court for an order granting visitation with his or her grandchild, regardless of whether the parents of the child are married. If the grandparent filed a motion for visitation in a previous proceeding for divorce, custody, legal separation, annulment or establishment of paternity, and a decree or final order has issued in that earlier action, the grandparent may petition for visitation if the circumstances have materially changed since the entry of the earlier order or decree.

(c) When a petition under this section is filed, the matter shall be styled "In re grandparent visitation of [petitioner's(s') name(s)]".

(d) Motions or petitions for grandparent visitation shall be filed and heard in the family court except when an abuse or neglect proceeding involving the child or children is pending before the circuit court, in which case the motion or petition shall be filed and heard in the circuit court.

§48-10-403. Appointment of guardian ad litem for the child.

When a motion or petition is filed seeking grandparent visitation, the court, on its own motion or upon the motion of a party or grandparent, may appoint a guardian ad litem for the child to assist the court in determining the best interests of the child regarding grandparent visitation.

§48-10-501. Necessary findings for grant of reasonable visitation to a grandparent.

The circuit court or family court shall grant reasonable visitation to a grandparent upon a finding that visitation would be in the best interests of the child and would not substantially interfere with the parent-child relationship.

§48-10-502. Factors to be considered in making a determination as to a grant of visitation to a grandparent.

In making a determination on a motion or petition the court shall consider the following factors:

(1) The age of the child;

(2) The relationship between the child and the grandparent;

(3) The relationship between each of the child's parents or the person with whom the child is residing and the grandparent;

(4) The time which has elapsed since the child last had contact with the grandparent;

(5) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;

(6) If the parents are divorced or separated, the custody and visitation arrangement which exists between the parents with regard to the child;

(7) The time available to the child and his or her parents, giving consideration to such matters as each parent's employment schedule, the child's schedule for home, school and community activities, and the child's and parents' holiday and vacation schedule;

(8) The good faith of the grandparent in filing the motion or petition;

(9) Any history of physical, emotional or sexual abuse or neglect being performed, procured, assisted or condoned by the grandparent;

(10) Whether the child has, in the past, resided with the grandparent for a significant period or periods of time, with or without the child's parent or parents;

(11) Whether the grandparent has, in the past, been a significant caretaker for the child, regardless of whether the child resided inside or outside of the grandparent's residence;

(12) The preference of the parents with regard to the requested visitation; and

(13) Any other factor relevant to the best interests of the child.

PART 6. INTERVIEW OF CHILD BY JUDGE.

§48-10-601. Interview of child in chambers.

In considering the factors listed in section 10-502 for purposes of determining whether to grant visitation, establishing a specific visitation schedule, and resolving any issues related to the making of any determination with respect to visitation or the establishment of any specific visitation schedule, the court, in its discretion, may interview in chambers any or all involved children regarding their wishes and concerns. No person shall be present other than the court, the child, the child's attorney or guardian ad litem, if any, and any necessary court personnel.

§48-10-602. Prohibitions on use of child's written or recorded statement or affidavit; child not to be called as a witness.

(a) No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the wishes and concerns of the child regarding grandparent visitation matters, and the court, in considering the factors listed in section 10-502 of this article for purposes of determining whether to grant any visitation, establishing a visitation schedule, or resolving any issues related to the making of any determination with respect to visitation or the establishment of any specific visitation schedule, shall not accept or consider such a written or recorded statement or affidavit.

(b) A child shall not be called as a witness in any proceeding to determine whether grandparent visitation should be awarded.

PART 7. PROOF REQUIRED FOR GRANT

OF GRANDPARENT VISITATION.

§48-10-701. Proof required when action is pending for divorce, custody, legal separation, annulment or establishment of paternity.

If a motion for grandparent visitation is filed in a pending action for divorce, custody, legal separation, annulment or establishment of paternity pursuant to section 21-401, the grandparent shall be granted visitation if a preponderance of the evidence shows that visitation is in the best interest of the child and that:

(1) The party to the divorce through which the grandparent is related to the minor child has failed to answer or otherwise appear and defend the cause of action; or

(2) The whereabouts of the party through which the grandparent is related to the minor child are unknown to the party bringing the action and to the grandparent who filed the motion for visitation.

§48-10-702. Proof required when action is not pending for divorce, custody, legal separation, annulment or establishment of paternity.

(a) If a petition is filed pursuant to section 10-402 when the parent through whom the grandparent is related to the grandchild does not: (1) Have custody of the child; (2) share custody of the child; or (3) exercise visitation privileges with the child that would allow participation in the visitation by the grandparent if the parent so chose, the grandparent shall be granted visitation if a preponderance of the evidence shows that visitation is in the best interest of the child.

(b) If a petition is filed pursuant to section 10-402, there is a presumption that visitation privileges need not be extended to the grandparent if the parent through whom the grandparent is related to the grandchild has custody of the child, shares custody of the child, or exercises visitation privileges with the child that would allow participation in the visitation by the grandparent if the parent so chose. This presumption may be rebutted by clear and convincing evidence that an award of grandparent visitation is in the best interest of the child.

PART 8. ORDERS GRANTING OR REFUSING

GRANDPARENT VISITATION.

§48-10-801. Order granting or refusing grandparent visitation must state findings of fact and conclusions of law.

An order granting or refusing the grandparent's motion or petition for visitation must state in writing the court's findings of fact and conclusions of law.

§48-10-802. Grandparent visitation orders.

In the court’s discretion, an order granting visitation privileges to a grandparent may provide for daytime visits, overnight visits and electronic communications. For the purposes of this section, the term “electronic communications” includes, but is not limited to, communications by telephone, email, Skype, Facetime, text messaging and instant messaging.

§48-10-803. Supervised visitation; conditions on visitation.

In the court’s discretion, an order granting visitation privileges to a grandparent may require supervised visitation or may place such conditions on visitation that it finds are in the best interests of the child, including, but not limited to, the following:

(1) That the grandparent not attempt to influence any religious beliefs or practices of the children in a manner contrary to the preferences of the child’s parents;

(2) That the grandparent not engage in, permit or encourage activities, or expose the grandchild to conditions or circumstances that are contrary to the preferences of the child’s parents; or

(3) That the grandparent not otherwise act in a manner to contradict or interfere with child-rearing decisions made by the child’s parents.

§48-10-901. Effect of remarriage of the custodial parent.

The remarriage of the custodial parent of a child does not affect the authority of a circuit court or family court to grant reasonable visitation to any grandparent.

§48-10-902. Effect of adoption of the child.

If a child who is subject to a grandparent visitation order under this article is later adopted, the order for grandparent visitation is automatically vacated when the order for adoption is entered, unless the adopting parent is a stepparent, grandparent or other relative of the child.

§48-10-1001. Continuing jurisdiction of circuit court or family court.

Any circuit court or family court that grants visitation rights to a grandparent shall retain jurisdiction throughout the minority of the minor child with whom visitation is granted to modify or terminate such rights as dictated by the best interests of the minor child.

§48-10-1002. Termination of grandparent visitation.

A circuit court or family court shall, based upon a petition brought by an interested person, terminate any grant of the right of grandparent visitation upon presentation of a preponderance of the evidence that a grandparent granted visitation has materially violated the terms and conditions of the order of visitation.

§48-10-1101. Attorney's fees; reasonable costs.

In an action brought under the provisions of this article, a circuit court or family court may order payment of reasonable attorney's fees and costs based upon the equities of the positions asserted by the parties to pay such fees and costs.

PART 12. OFFENSES.

§48-10-1201. Misdemeanor offense for allowing contact between child and person who has been precluded visitation rights; penalties.

Any grandparent who knowingly allows contact between a minor grandchild and a parent or other person who has been precluded visitation rights with the child by court order is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail not more than thirty days or fined not less than $100 nor more than $1,000.

ARTICLE 11. SUPPORT OF CHILDREN.

§48-11-101. General provisions relating to child support.

(a) It is one of the purposes of the Legislature in enacting this chapter to improve and facilitate support enforcement efforts in this state, with the primary goal being to establish and enforce reasonable child support orders and thereby improve opportunities for children. It is the intent of the Legislature that to the extent practicable, the laws of this state should encourage and require a child's parents to meet the obligation of providing that child with adequate food, shelter, clothing, education, and health and child care.

(b) When the domestic relations action involves a minor child or children, the court shall require either party to pay child support in the form of periodic installments for the maintenance of the minor children of the parties in accordance with support guidelines promulgated pursuant to article 13-101, et seq., of this chapter. Payments of child support are to be ordinarily made from a party's income, but in cases when the income is not sufficient to adequately provide for those payments, the court may, upon specific findings set forth in the order, order the party required to make those payments to make them from the corpus of his or her separate estate.

§48-11-102. Required information in support orders.

(a) Any order which provides for the custody or support of a minor child shall include:

(1) The name of the custodian;

(2) The amount of the support payments;

(3) The date the first payment is due;

(4) The frequency of the support payments;

(5) The event or events which trigger termination of the support obligation;

(6) A provision regarding wage withholding;

(7) The address where payments shall be sent;

(8) A provision for medical support;

(9) When child support guidelines are not followed, a specific written finding pursuant to section 13-702.

(b) Effective October 1, 1999, any order entered that provides for the payment of child support shall also include a statement that requires both parties to report any changes in gross income, either in source of employment or in the amount of gross income, to the Bureau for Child Support enforcement and to the other party. The notice shall not be required if the change in gross income is less than a fifteen percent change in gross income.

(c) All child support orders shall contain a notice which contains language substantially similar to the following: "The amount of the monthly child support can be modified as provided by law based upon a change in the financial or other circumstances of the parties if those circumstances are among those considered in the child support formula. In order to make the modification a party must file a motion to modify the child support amount. Unless a motion to modify is filed, the child support amount will continue to be due and cannot later be changed retroactively even though there has been a change of circumstances since the entry of the order. Self help forms for modification can be found at the circuit clerk's office." The failure of an order to have such a provision does not alter the effectiveness of the order.

§48-11-103. Child support beyond age eighteen.

(a) An order for child support shall provide that payments of such support continue beyond the date when the child reaches the age of eighteen, so long as the child is unmarried and residing with a parent, guardian or custodian and is enrolled as a full-time student in a secondary educational or vocational program and making substantial progress towards a diploma: Provided, That such payments may not extend past the date that the child reaches the age of twenty.

(b) Nothing herein shall be construed to abrogate or modify existing case law regarding the eligibility of handicapped or disabled children to receive child support beyond the age of eighteen.

(c) The reenactment of this section during the 1994 regular session of the Legislature shall not, by operation of law, have any effect upon or vacate any order or portion thereof entered under the prior enactment of this section which awarded educational and related expenses for an adult child accepted or enrolled and making satisfactory progress in an educational program at a certified or accredited college. Any such order or portion thereof shall continue in full force and effect until the court, upon motion of a party, modifies or vacates the order upon a finding that:

(1) The facts and circumstances which supported the entry of the original order have changed, in which case the order may be modified;

(2) The facts and circumstances which supported the entry of the original order no longer exist because the child has not been accepted or is not enrolled in and making satisfactory progress in an educational program at a certified or accredited college or the parent ordered to pay such educational and related expenses is no longer able to make such payments, in which case the order shall be vacated;

(3) The child, at the time the order was entered, was under the age of sixteen years, in which case the order shall be vacated;

(4) The amount ordered to be paid was determined by an application of child support guidelines in accordance with the provisions of section one hundred one, article thirteen, et seq., of this chapter, or legislative rules promulgated thereunder, in which case the order may be modified or vacated; or

(5) The order was entered after March 14, 1994, in which case the order shall be vacated.

§48-11-104. Payments out of disposable retired or retainer pay.

Whenever under the terms of article 5-601, et seq., or article 5-501, et seq., a court enters an order requiring the payment of child support, if the court anticipates the payment of such child support or any portion thereof to be paid out of "disposable retired or retainer pay" as that term is defined in 10 U.S.C. §1408, relating to members or former members of the uniformed services of the United States, the court shall specifically provide for the payment of an amount, expressed in dollars or as a percentage of disposable retired or retainer pay, from the disposable retired or retainer pay of the payor party to the payee party.

§48-11-105. Modification of child support order.

(a) The court may modify a child support order, for the benefit of the child, when a motion is made that alleges a change in the circumstances of a parent or another proper person or persons. A motion for modification of a child support order may be brought by a custodial parent or any other lawful custodian or guardian of the child, by a parent or other person obligated to pay child support for the child or by the Bureau for Child Support Enforcement of the Department of Health and Human Resources of this state.

(b) The provisions of the order may be modified if there is a substantial change in circumstances. If application of the guideline would result in a new order that is more than fifteen percent different, then the circumstances are considered a substantial change.

(c) An order that modifies the amount of child support to be paid shall conform to the support guidelines set forth in section one hundred one, article thirteen, et seq., of this chapter unless the court disregards the guidelines or adjusts the award as provided in section seven hundred two of said article.

(d) The Supreme Court of Appeals shall make available to the courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should be altered or revised because of a loss or change of employment or other substantial change affecting income or that the amount of support required to be aid is not within fifteen percent of the child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court shall make the forms available to persons desiring to represent themselves in filing a motion for modification of the support award.

(e) Upon entry of an order modifying a child support amount the court shall, no later than five days from entry of the order, provide a copy of the modified order to the Bureau for Child Support Enforcement. If an overpayment to one of the parties occurs as a result of the modified terms of the order, funds properly withheld by the Bureau for Child Support Enforcement pursuant the terms of the original order shall not be returned until such time as the Bureau for Child Support Enforcement receives repayment from the party in possession of the overpayment.

§48-11-106. Expedited process for modification.

 (a) An expedited process for modification of a child support order may be utilized if:

(1) Either parent experiences a substantial change of circumstances resulting in a decrease in income due to loss of employment or other involuntary cause;

(2) An increase in income due to promotion, change in employment or reemployment;

(3) Other such change in employment status; or

(4) If a military parent is called to military service.

(b) The party seeking the recalculation of support and modification of the support order shall file a description of the decrease or increase in income and an explanation of the cause of the decrease or increase on a standardized form to be provided by the secretary-clerk or other employee of the family court. The standardized form shall be verified by the filing party. Any available documentary evidence shall be filed with the standardized form. Based upon the filing and information available in the case record, the amount of support shall be tentatively recalculated.

(c) The secretary-clerk shall serve a notice of the filing, a copy of the standardized form and the support calculations upon the other party by certified mail, return receipt requested, with delivery restricted to the addressee, in accordance with rule 4(d)(1)(D) of the West Virginia rules of civil procedure. The secretary-clerk shall also mail a copy, by first-class mail, to the local office of the Bureau for Child Support enforcement for the county in which the family court is located in the same manner as original process under rule 4(d) of the rules of civil procedure.

(d) The notice shall fix a date fourteen days from the date of mailing and inform the party that unless the recalculation is contested and a hearing request is made on or before the date fixed, the proposed modification will be made effective. If the filing is contested, the proposed modification shall be set for hearing; otherwise, the court shall enter an order for a judgment by default. Either party may move to set aside a judgment by default, pursuant to the provisions of rule 55 or rule 60(b) of the rules of civil procedure.

(e) If an obligor uses the provisions of this section to expeditiously reduce his or her child support obligation, the order that effected the reduction shall also require the obligor to notify the obligee of reemployment, new employment or other such change in employment status that results in an increase in income. If an obligee uses the provisions of this section to expeditiously increase his or her child support obligation, the order that effected the increase shall also require the obligee to notify the obligor of reemployment, new employment or other such change in employment status that results in an increase in income of the obligee.

(f) The Supreme Court of Appeals shall develop the standardized form required by this section.

§48-11-106a. Modification of support order with the assistance of Bureau for Child Support Enforcement.

In addition to any other procedure which may exist by law, any party seeking the recalculation of support and modification under a child support order due to a substantial change in circumstances pursuant to the provisions of section one hundred six of this article may seek and obtain the assistance of the Bureau of Child Support Enforcement, pursuant to the procedures established under the provisions of sections two hundred one through two hundred six, inclusive, article eighteen of this chapter, in the preparation, assessment and presentation of an appropriate petition for modification of a support order, including the identification and narrowing of issues associated with a requested recalculation of support prior to filing the petition and the preparation and presentation of an appropriate petition and proposed order for modification for consideration by the family court.

§48-11-107. Modification resulting in reduction and overpayment of support.

In any proceeding filed after January 1, 2001, where a petition to modify child support is granted which results in a reduction of child support owed so that the obligor has overpaid child support, the court shall grant a decretal judgment to the obligor for the amount of the overpayment. The court shall inquire as to whether a support arrearage was owed by the obligor for support due prior to the filing of the petition for modification. If an arrearage exists, the court shall order an offset of the overpayment against the child support arrearages. If no prior arrearage exists or if the arrearage is not sufficient to offset the overpayment, then the court may direct the Bureau for Child Support enforcement to collect the overpayment through income withholding, if the person has, in the court's opinion, sufficient income other than the child support received. The income withholding shall be in all respects as provided for in part 14-401, et seq., except that in no circumstances may the amount withheld exceed thirty-five percent of the disposable earnings for the period, regardless of the length of time that the overpayment has been owed.

§48-11-108. Modification of support based on military service.

(a) If a military parent is called to military service, either parent may file a notice of activation of military service and a request for an expedited modification of a support order pursuant to section one hundred six of this article. In the petition, the parent must cite the basis for modifying the support order and the military parent's change in financial circumstances supporting the petition.

(b) The court shall temporarily modify the amount of child support for the duration of the military parent's military service pursuant to the provisions of section fifteen of this article if there is a substantial change in circumstances based upon changes in income and earning capacity of the military parent during military service. An increase or decrease in income or earning capacity of a military parent due to military service may only be used to calculate support during the period of military service and must not be considered a permanent increase or decrease in income or earning capacity. The effective date for a temporary modification must be the date the military parent begins military service.

(c) Upon return from military service, the military parent's child support obligation prior to a temporary modification is automatically reinstated, effective on the date the military parent is released from service. Within ninety days of the military parent's release from service, either parent may make a request for a modification of child support to correspond to a change in the military parent's nonservice related income or earning capacity. A modification of child support must be based solely upon the income or earning capacity the military parent has following his or her period of military service.

PART IV. MODIFICATION OF PARENTING PLAN.

§48-11-401. Modification upon showing of changed circumstances or harm.

(a) Except as provided in section four hundred two or four hundred three of this article, a court shall modify a parenting plan order if it finds, on the basis of facts that were not known or have arisen since the entry of the prior order and were not anticipated therein, that a substantial change has occurred in the circumstances of the child or of one or both parents and a modification is necessary to serve the best interests of the child.

(b) In exceptional circumstances, a court may modify a parenting plan if it finds that the plan is not working as contemplated and in some specific way is manifestly harmful to the child, even if a substantial change of circumstances has not occurred.

(c) Unless the parents have agreed otherwise, the following circumstances do not justify a significant modification of a parenting plan except where harm to the child is shown:

(1) Circumstances resulting in an involuntary loss of income, by loss of employment or otherwise, affecting the parent's economic status;

(2) A parent's remarriage or cohabitation; and

(3) Choice of reasonable caretaking arrangements for the child by a legal parent, including the child's placement in day care.

(d) For purposes of subsection (a) of this section, the occurrence or worsening of a limiting factor, as defined in subsection (a), section two hundred nine of this article, after a parenting plan has been ordered by the court, constitutes a substantial change of circumstances and measures shall be ordered pursuant to section two hundred nine of this article to protect the child or the child's parent.

§48-11-402. Modification without showing of changed circumstances.

(a) The court shall modify a parenting plan in accordance with a parenting agreement, unless it finds that the agreement is not knowing and voluntary or that it would be harmful to the child.

(b) The court may modify any provisions of the parenting plan without the showing of change circumstances required by subsection (a), section four hundred one of this article if the modification is in the child's best interests, and the modification:

(1) Reflects the de facto arrangements under which the child has been receiving care from the petitioner, without objection, in substantial deviation from the parenting plan, for the preceding six months before the petition for modification is filed, provided the arrangement is not the result of a parent's acquiescence resulting from the other parent's domestic abuse;

(2) Constitutes a minor modification in the plan; or

(3) Is necessary to accommodate the reasonable and firm preferences of a child who has attained the age of fourteen.

(c) Evidence of repeated filings of fraudulent reports of domestic violence or child abuse is admissible in a domestic relations action between the involved parties when the allocation of custodial responsibilities is in issue, and the fraudulent accusations may be a factor considered by the court in making the allocation of custodial responsibilities.

§48-11-403. Relocation of a parent.

(a) The relocation of a parent constitutes a substantial change in the circumstances under subsection (a), section four hundred one of this article of the child only when it significantly impairs either parent's ability to exercise responsibilities that the parent has been exercising.

(b) Unless otherwise ordered by the court, a parent who has responsibility under a parenting plan who changes, or intends to change, residences for more than ninety days must give a minimum of sixty days' advance notice, or the most notice practicable under the circumstances, to any other parent with responsibility under the same parenting plan. Notice shall include:

(1) The relocation date;

(2) The address of the intended new residence;

(3) The specific reasons for the proposed relocation;

(4) A proposal for how custodial responsibility shall be modified, in light of the intended move; and

(5) Information for the other parent as to how he or she may respond to the proposed relocation or modification of custodial responsibility.

Failure to comply with the notice requirements of this section without good cause may be a factor in the determination of whether the relocation is in good faith under subsection (d) of this section, and is a basis for an award of reasonable expenses and reasonable attorneys fees to another parent that are attributable to such failure.

The Supreme Court of Appeals shall make available through the offices of the circuit clerks and the family law masters a form notice that complies with the provisions of this subsection. The Supreme Court of Appeals shall promulgate procedural rules that provide for an expedited hearing process to resolve issues arising from a relocation or proposed relocation.

(c) When changed circumstances are shown under subsection (a) of this section, the court shall, if practical, revise the parenting plan so as to both accommodate the relocation and maintain the same proportion of custodial responsibility being exercised by each of the parents. In making such revision, the court may consider the additional costs that a relocation imposes upon the respective parties for transportation and communication, and may equitably allocate such costs between the parties.

(d) When the relocation constituting changed circumstances under subsection (a) of this section renders it impractical to maintain the same proportion of custodial responsibility as that being exercised by each parent, the court shall modify the parenting plan in accordance with the child's best interests and in accordance with the following principles:

(1) A parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose. The percentage of custodial responsibility that constitutes a significant majority of custodial responsibility is seventy percent or more. A relocation is for a legitimate purpose if it is to be close to significant family or other support networks, for significant health reasons, to protect the safety of the child or another member of the child's household from significant risk of harm, to pursue a significant employment or educational opportunity, or to be with one's spouse who is established, or who is pursuing a significant employment or educational opportunity, in another location. The relocating parent has the burden of proving of the legitimacy of any other purpose. A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent's relationship to the child.

(2) If a relocation of the parent is in good faith for legitimate purpose and to a location that is reasonable in light of the purpose, and if neither has been exercising a significant majority of custodial responsibility for the child, the court shall reallocate custodial responsibility based on the best interest of the child, taking into account all relevant factors including the effects of the relocation on the child.

(3) If a parent does not establish that the purpose for that parent's relocation is in good faith for a legitimate purpose into a location that is reasonable in light of the purpose, the court may modify the parenting plan in accordance with the child's best interests and the effects of the relocation on the child. Among the modifications the court may consider is a reallocation of primary custodial responsibility, effective if and when the relocation occurs, but such a reallocation shall not be ordered if the relocating parent demonstrates that the child's best interests would be served by the relocation.

(4) The court shall attempt to minimize impairment to a parent-child relationship caused by a parent's relocation through alternative arrangements for the exercise of custodial responsibility appropriate to the parents' resources and circumstances and the developmental level of the child.

(e) In determining the proportion of caretaking functions each parent previously performed for the child under the parenting plan before relocation, the court shall not consider a division of functions arising from any arrangements made after a relocation but before a modification hearing on the issues related to relocation.

(f) In determining the effect of the relocation or proposed relocation on a child, any interviewing or questioning of the child shall be conducted in accordance with the provisions of rule 16 of the rules of practice and procedure for family law, as promulgated by the Supreme Court of Appeals.

ARTICLE 12. MEDICAL SUPPORT.

§48-12-101. Definitions applicable to medical support enforcement.

For the purposes of this article:

(1) "Appropriate health insurance coverage" means insurance coverage that is reasonable in cost, comprehensive in nature and reasonably accessible to the child to be covered.

(2) "Cash medical support" means an amount ordered to be paid toward the cost of health insurance provided by a public entity or by another person through employment or otherwise, or for other medical costs not covered by insurance.

(3) "Custodian for the children" means a parent, legal guardian, committee or other third party appointed by court order as custodian of a child or children for whom child support is ordered.

(4) Obligated parent" means a natural or adoptive parent who is required by agreement or order to pay for insurance coverage and medical care, or some portion thereof, for his or her child.

(5) "Insurance coverage" means coverage for medical, dental, including orthodontic, optical, prescription pharmaceuticals, psychological, psychiatric or other health care services.

(6) "Child" means a child to whom a duty of child support is owed.

(7) "Medical care" means medical, dental, optical, prescription pharmaceuticals, psychological, psychiatric or other health care service for children in need of child support.

(8) "Insurer" means any company, health maintenance organization, self-funded group, multiple employer welfare arrangement, hospital or medical services corporation, trust, group health plan, as defined in 29 U.S.C. §1167, Section 607(1) of the Employee Retirement Income Security Act of 1974 or other entity which provides insurance coverage or offers a service benefit plan.

(9) "National medical support notice" means the written notice described in 29 U.S.C. §1169 (a)(5)(C) and 42 U.S.C. §666(a)(19) and issued as a means of enforcing the health care coverage provisions in a child support order for children whose parent or parents are required to provide health-care coverage through an employment-related group health plan. This notice is consider under ERISA to be a qualified medical child support order (QMSO).

(10) "Qualified medical child support order" means a medical child support order which creates or recognizes the existence of an alternate recipient's right to, or assigns to an alternate recipient the right to, receive benefits from which a participant or beneficiary is eligible under a group health plan. A qualified medical child support order must include the name and the last known mailing address, if any, of the participant and the name and mailing address of each alternate recipient covered by the order, except that, to the extent provided in the order, the name and mailing address of an official of the IV-D agency may be substituted for the mailing address of any alternate recipient, a reasonable description of the type of coverage provided to each alternate recipient or the manner in which the type of coverage is determined and the time period for which the order applies.

(11) "Reasonably accessible health insurance coverage" means that the coverage will provide payment for the primary health care services within a reasonable distance from the child's primary residence.

(12) "Reasonable costs" means the child's portion of the medical insurance premiums not exceeding five percent of the gross income of the parent who provides the coverage.

§48-12-102. Court-ordered medical support.

In every action to establish or modify an order which requires the payment of child support, the court shall ascertain the ability of each parent to provide medical care for the children of the parties. In any temporary or final order establishing an award of child support or any temporary or final order modifying a prior order establishing an award of child support, the court shall address the provision of medical support through one or more of the following methods:

(1) The court shall determine whether appropriate medical insurance coverage as defined in section one hundred one of this article is available to either parent. If such insurance coverage exists, the court shall order the appropriate parent to enroll the child in that coverage and the cost of providing appropriate medical insurance shall be entered on line 5b of worksheet A for the basic shared parenting child support calculation as provided in section two hundred four, article thirteen of this code or line 12b of worksheet B for the extended shared parenting child support calculation as provided in said section.

(2) If the court does not include the cost of the medical insurance in the child support calculation, the court may order the other parent to contribute to the cost of the premium through an award of medical support. If the amount of the award of child support in the order is determined using the child support guidelines, the court shall order that nonrecurring or subsequently occurring uninsured medical expenses in excess of $250 per year per child shall be separately divided between the parties in proportion to their adjusted gross incomes.

(3) If neither parent currently has access to appropriate medical insurance coverage, the court shall take the following actions:

(a) The court shall order the parties to provide appropriate medical insurance coverage if it becomes available in the future; and

(b) The court shall order the payment of cash medical support by either or both parties. The amount of the cash medical support to be awarded is within the discretion of the court but the total of the cash medical support and cost of the insurance premiums shall not exceed five percent of the payor's gross income.

(c) In setting a cash medical support award, the court may consider the costs of uncovered medical expenses for the child, the relative percentages of the parties' incomes or the cost to the government to provide medical coverage for the child.

(d) If the support obligor's adjusted gross income is less than two hundred percent of the federal poverty level, the court shall set the cash medical support amount at zero.

(e) Cash medical support shall be collected and enforced in the same manner as child support payments.

(4) The order shall require the obligor to continue to provide the Bureau for Child Support Enforcement with information as to his or her employer's name and address and information as to the availability of employer-related insurance programs providing medical care coverage so long as the child continues to be eligible to receive support.

§48-12-103. Cost of medical support considered in applying support guidelines.

The Bureau for Child Support Enforcement or the parties to the case may bring a petition to modify the medical support obligations upon notification of any new source of insurance coverage or any change in circumstances as set forth in section one hundred six, article fourteen of this chapter.

§48-12-104. Use of national medical support notice; employer to enroll child and withhold premium.

(a) All child support orders which include a provision for health care coverage of a child shall be enforced, where appropriate, through the use of the national medical support notice, as set forth in 42 U.S.C. §666 (a)(19) and 29 U.S.C. §1169 (a)(5)(C) et seq.

(b) Unless alternative coverage is permitted in any order by a court of competent jurisdiction, in any case in which a parent is required pursuant to a child support order to provide the health care coverage and the employer of the parent is known to the IV-D agency, the IV-D agency shall use the national medical support notice to give notice of the provision for the health care coverage of the child to the employer. The employer shall enroll the child as a beneficiary in the group insurance plan and withhold any required premium from the obligated parent's income or wages, and remit any amount withheld for the premium directly to the plan.

§48-12-105. Employer's obligation to transfer notice to appropriate plan.

Within twenty business days after the date of receipt of the national medical support notice, the employer shall transfer the notice, excluding the severable employer withholding notice described in section 401 (b)(2)(C) of the Child Support Performance and Incentive Act of 1998, to the appropriate plan providing any health care coverage for which the child is eligible.

§48-12-106. Notice requirements for certain newly-hired employees.

In any case in which the parent is a newly hired employee who is reported to the state directory of new hires pursuant to section 18-125 of this chapter, and if the Bureau for Child Support enforcement is currently providing services for this case, the agency shall issue, where appropriate, the national medical support notice, together with an income withholding notice issued pursuant to section 14-405 of this chapter, within two days after the date of the entry of the employee in the directory.

§48-12-107. Notice requirement upon termination of parent.

In any case in which the employment of the parent with any employer who received a national medical support notice is terminated, the employer is required to notify the IV-D agency of the termination, within fourteen days of the termination, and shall provide the Bureau for Child Support enforcement with the obligor's last known address at the time of termination.

§48-12-108. Certain liabilities of parent for contributions under the plan subject to enforcement; exceptions.

Any liability a parent may have for employee contributions required under the plan for enrollment of the child is subject to appropriate enforcement unless the parent contests the enforcement based upon a mistake of fact, except that if enforcement of both the full amount of cash child support and the full amount of medical support violates the application provisions of 15 U.S.C. §1673, Section 303(b) of the Consumer Credit Protection Act, then the current month's cash child support shall receive priority, and shall be deducted in full prior to any deduction being made for payment of either current medical support or health insurance premiums. If the employee contests the withholding in the manner prescribed within the notice, the employer must initiate withholding until such time as the employer receives notice that the contest is resolved.

§48-12-109. Custodial parent to receive coverage information, documents.

Within forty business days after the date of the national medical support notice, the plan administrator shall provide to the custodial parent a description of the coverage available and any forms or documents, including an insurance enrollment card, to effectuate the coverage.

§48-12-110. Employer, union to notify IV-D agency within forty days of receipt of notice.

Within forty days of receipt of a national medical support notice, the obligated parent's employer, multiemployer trust or union shall notify the IV-D agency with respect to whether coverage for the child is available, and if so, whether the child is covered under the plan, the effective date of the coverage and the name of the insurer.

§48-12-111. Employer's duties upon service of national medical support notice; notice from another state.

(a) Upon service of the national medical support notice requiring insurance coverage for the children, the employer, multiemployer trust or union shall enroll the child as a beneficiary in the group insurance plan and withhold any required premium from the obligated parent's income or wages, unless the child is already enrolled in this plan.

(b) If more than one plan is offered by the employer, multiemployer trust or union, the child shall be enrolled in the same plan as the obligated parent. If the obligated parent is not enrolled for insurance coverage, the employer shall promptly report the availability of plans to the IV-D agency. The IV-D agency, in consultation with parent, shall promptly select the most appropriate plan, considering both the health needs of the child and the cost to the parents, and shall notify the plan administrator and the parties of the selection.

(c) Insurance coverage for the child which is ordered pursuant to the provisions of this section shall not be terminated except as provided in section one hundred fifteen of this article.

(d) A medical support notice issued by the appropriate IV-D agency of another state may be sent directly to an employer in this state without the necessity of first filing a petition or similar pleading or registering the order with the IV-D agency of this state. The medical support notice shall have the same force and effect as if the notice had been issued by the IV-D agency of this state. Upon receipt of a medical support notice from the IV-D agency of another state, the employer shall immediately provide a copy of the notice to the obligor.

§48-12-112. Employer's duties where court-ordered coverage available.

(a) Where a parent is required by a court or administrative order to provide health coverage, which is available through an employer doing business in this state, the employer is required:

(1) To permit the parent to enroll under family coverage any child who is otherwise eligible for coverage without regard to any enrollment season restrictions;

(2) If the parent is enrolled but fails to make application to obtain coverage of the child, to enroll the child under family coverage upon application by the child's other parent, by the state agency administering the Medicaid program or by the Bureau for Child Support enforcement;

(3) Not to disenroll or eliminate coverage of the child unless the employer is provided satisfactory written evidence that:

(A) The court or administrative order is no longer in effect;

(B) The child is or will be enrolled in comparable coverage which will take effect no later than the effective date of disenrollment; or

(C) The employer eliminated family health coverage for all of its employees; and

(4) To withhold from the employee's compensation the employee's share, if any, of premiums for health coverage and to pay this amount to the insurer: Provided, That the amount so withheld may not exceed the maximum amount permitted to be withheld under 15 U.S.C. §1673, Section 303(b) of the consumer credit protection act.

§48-12-113. Signature of custodian of child is valid authorization to insurer; insurer's obligations.

(a) The signature of the custodian for the child shall constitute a valid authorization to the insurer for the purposes of processing an insurance payment to the provider of medical care for the child.

(b) No insurer, employer or multiemployer trust in this state may refuse to honor a claim for a covered service when the custodian for the child or the obligated parent submits proof of payment for medical bills for the child.

(c) The insurer shall reimburse the custodian for the child or the obligated parent who submits copies of medical bills for the child with proof of payment.

(d) All insurers in this state shall comply with the provisions of section 33-15-16 and section 33-16-11 of this code and shall provide insurance coverage for the child of a covered employee notwithstanding the amount of support otherwise ordered by the court and regardless of the fact that the child may not be living in the home of the covered employee.

§48-12-114. Notice to be transferred on parent's change of employment.

Where an obligated parent changes employment and the new employer provides the obligated parent's health care coverage, the Bureau for Child Support enforcement shall transfer to the new employer notice of the obligated parent's duty to provide health care coverage by use of the national medical support notice.

§48-12-115. Insurer to notify custodian when obligated parent's employment is terminated or coverage is denied, modified or terminated; explanation of conversion privileges; employer to notify bureau of termination.

When an order for insurance coverage for a child pursuant to this article is in effect and the obligated parent's employment is terminated or the insurance coverage for the child is denied, modified or terminated, the insurer shall in addition to complying with the requirements of article sixteen-a, chapter thirty-three of this code, within ten days after the notice of change in coverage is sent to the covered employee, notify the custodian for the child and provide an explanation of any conversion privileges available from the insurer. In any case in which the employment of the obligated parent to provide insurance is terminated, the employer shall notify the Bureau for Child Support enforcement of the termination.

§48-12-116. Child is eligible for coverage until emancipated; remedies available if obligated parent fails to provide ordered coverage; failure to maintain coverage is basis for modification of support order.

(a) A child of an obligated parent shall remain eligible for insurance coverage until the child is emancipated or until the insurer under the terms of the applicable insurance policy terminates said child from coverage, whichever is later in time, or until further order of the court.

(b) If the obligated parent fails to comply with the order to provide insurance coverage for the child, the court shall:

(1) Hold the obligated parent in contempt for failing or refusing to provide the insurance coverage or for failing or refusing to provide the information required in subdivision (4) of this subsection;

(2) Enter an order for a sum certain against the obligated parent for the cost of medical care for the child and any insurance premiums paid or provided for the child during any period in which the obligated parent failed to provide the required coverage;

(3) In the alternative, other enforcement remedies available under sections 14-2, 14-3 and 14-4 of this chapter, or otherwise available under law, may be used to recover from the obligated parent the cost of medical care or insurance coverage for the child;

(4) In addition to other remedies available under law, the Bureau for Child Support enforcement may initiate an income withholding against the wages, salary or other employment income of, and withhold amounts from state tax refunds to any person who:

(A) Is required by court or administrative order to provide coverage of the cost of health services to a child; and

(B) Has received payment from a third party for the costs of the services but has not used the payments to reimburse either the other parent or guardian of the child or the provider of the services, to the extent necessary to reimburse the state Medicaid agency for its costs: Provided, That claims for current and past due child support shall take priority over these claims.

(c) Proof of failure to maintain court ordered insurance coverage for the child constitutes a showing of substantial change in circumstances or increased need, and provides a basis for modification of the child support order.

§48-12-117. Mandatory date for use of the national medical support notice.

Provisions of this article which require the use of the national medical support notice are not mandatory until April 1, 2002.

§48-12-118. Failure of employer to comply with medical insurance coverage; penalties.

For the failure of any employer, multiemployer trust or employee's union to comply with the requirements of this article the Bureau for Child Support enforcement may assess a civil penalty of not more than $100. If a court of competent jurisdiction determines that the employer, multiemployer trust or the employee's union wilfully failed to comply with the provisions of this article the employer, multiemployer trust or employee's union shall be found guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000.

ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.

PART 1. GENERAL PROVISIONS.

§48-13-101. Guidelines to ensure uniformity and increase predictability; presumption of correctness.

This article establishes guidelines for child support award amounts so as to ensure greater uniformity by those persons who make child support recommendations and enter child support orders and to increase predictability for parents, children and other persons who are directly affected by child support orders. There is a rebuttable presumption, in any proceeding before a court for the award of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded.

§48-13-102. Right of children to share in parents' level of living.

The Legislature recognizes that children have a right to share in their natural parents' level of living. Expenditures in families are not made in accordance with subsistence level standards, but are made in proportion to household income, and as parental incomes increase or decrease, the actual dollar expenditures for children also increase or decrease correspondingly. In order to ensure that children properly share in their parents' resources, regardless of family structure, these guidelines are structured so as to provide that after a consideration of respective parental incomes, child support will be related, to the extent practicable, to the standard of living that children would enjoy if they were living in a household with both parents present.

§48-13-103. Financial contributions of both parents to be considered.

The guidelines promulgated under the provisions of this article take into consideration the financial contributions of both parents. The Legislature recognizes that expenditures in households are made in aggregate form and that total family income is pooled to determine the level at which the family can live. These guidelines consider the financial contributions of both parents in relationship to total income, so as to establish and equitably apportion the child support obligation.

PART 2. CALCULATION OF CHILD SUPPORT ORDER.

§48-13-201. Use of both parents' income in determining child support.

A child support order is determined by dividing the total child support obligation between the parents in proportion to their income. Both parents' adjusted gross income is used to determine the amount of child support.

PART 2. CALCULATION OF CHILD SUPPORT ORDER.

§48-13-202. Application of expenses and credits in determining child support.

In determining the total child support obligation, the court shall:

(1) Add to the basic child support obligation any unreimbursed child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or ordered by the court; and

(2) Subtract any extraordinary credits agreed to by the parents or ordered by the court.

§48-13-203. Amount determined by guidelines presumed to be correct.

The amount of support resulting from the application of the guidelines is presumed to be the correct amount, unless the court, in a written finding or a specific finding on the record, disregards the guidelines or adjusts the award as provided for in section 13-702.

§48-13-204. Use of worksheets.

 The calculation of the amount awarded by the support order requires the use of one of two worksheets which must be completed for each case. Worksheet A is used for a basic shared parenting arrangement. Worksheet B is used for an extended shared parenting arrangement.

§48-13-205. Present income as monthly amounts.

To the extent practicable, all information relating to income shall be presented to the court based on monthly amounts. For example, when a party is paid wages weekly, the pay should be multiplied by fifty-two and divided by twelve to arrive at a correct monthly amount. If the court deems appropriate, such information may be presented in such other forms as the court directs.

PART 3. BASIC CHILD SUPPORT ORDER.

§48-13-301. Determining the basic child support obligation.

The basic child support obligation is determined from the following table of monthly basic child support obligations:

West Virginia

Monthly Basic Child Support Obligations

(Adjusted for West Virginia's Income Relative to U.S. Averages)

COMBINED

GROSS

ONE

TWO

THREE

FOUR

FIVE

SIX

MONTHLY

CHILD

CHILDREN

CHILDREN

CHILDREN

CHILDREN

CHILDREN

INCOME

550

127

185

219

242

263

281

600

137

200

237

262

284

304

650

147

214

253

280

303

325

700

156

227

268

296

321

344

750

163

238

282

311

337

361

800

171

249

295

326

353

378

850

179

261

309

341

370

395

900

188

273

323

357

387

414

950

197

286

338

374

405

433

1000

205

299

353

390

423

452

1050

214

311

368

406

440

471

1100

223

324

382

423

458

490

1150

231

336

397

439

476

509

1200

240

349

412

455

493

528

1250

248

361

426

471

511

547

1300

257

373

441

487

528

565

1350

265

386

456

503

546

584

1400

274

398

470

519

563

602

1450

282

410

484

534

579

620

1500

291

422

498

550

596

638

1550

299

434

512

565

613

656

1600

307

446

526

581

630

674

1650

316

458

540

596

646

692

1700

324

470

554

612

663

709

1750

332

482

568

627

680

727

1800

341

494

581

643

697

745

1850

349

506

595

658

713

763

1900

357

517

609

673

730

781

1950

366

529

623

689

747

799

2000

373

540

636

703

762

816

2050

381

551

649

717

778

832

2100

388

562

662

731

793

848

2150

395

573

674

745

808

864

2200

403

583

687

759

823

881

2250

410

594

700

773

838

897

2300

417

605

712

787

853

913

2350

425

616

725

801

869

929

2400

432

626

738

815

884

946

2450

440

637

750

829

899

962

2500

447

648

763

843

914

978

2550

454

658

776

857

929

994

2600

460

667

786

868

941

1007

2650

465

674

794

877

951

1018

2700

471

682

803

887

962

1029

2750

475

688

810

895

970

1038

2800

479

694

816

902

978

1046

2850

484

700

823

909

986

1055

2900

488

705

830

917

994

1063

2950

492

711

836

924

1002

1072

3000

496

717

843

931

1010

1080

3050

500

723

850

939

1018

1089

3100

504

729

856

946

1026

1097

3150

509

735

863

953

1033

1106

3200

513

740

869

961

1041

1114

3250

517

746

876

968

1049

1123

3300

521

752

882

975

1057

1131

3350

524

757

888

981

1064

1138

3400

527

761

893

987

1070

1145

3450

531

766

899

993

1077

1152

3500

534

771

904

999

1083

1159

3550

537

775

910

1006

1090

1166

3600

541

780

916

1012

1097

1173

3650

544

785

921

1018

1103

1180

3700

547

790

927

1024

1110

1187

3750

550

794

932

1030

1116

1194

3800

554

799

937

1036

1123

1201

3850

557

803

943

1041

1129

1208

3900

560

808

948

1047

1135

1215

3950

563

812

953

1053

1142

1222

4000

566

817

959

1059

1148

1229

4050

570

822

964

1065

1155

1236

4100

574

828

972

1074

1164

1245

4150

579

834

979

1082

1172

1254

4200

583

841

986

1090

1181

1264

4250

588

847

993

1098

1190

1273

4300

592

853

1001

1106

1199

1283

4350

597

860

1008

1114

1207

1292

4400

601

866

1015

1122

1216

1301

4450

606

873

1023

1130

1225

1311

4500

610

879

1030

1138

1234

1320

4550

615

885

1037

1146

1242

1329

4600

619

892

1044

1154

1251

1339

4650

624

898

1052

1162

1260

1348

4700

628

904

1059

1170

1269

1357

4750

633

911

1066

1178

1277

1367

4800

637

917

1074

1186

1286

1376

4850

642

924

1082

1195

1296

1386

4900

647

931

1090

1204

1305

1397

4950

651

938

1098

1213

1315

1407

5000

656

945

1106

1222

1325

1418

5050

661

951

1114

1231

1335

1428

5100

666

958

1123

1240

1345

1439

5150

670

965

1131

1249

1354

1449

5200

675

972

1139

1259

1364

1460

5250

680

979

1147

1268

1374

1470

5300

685

986

1155

1277

1384

1481

5350

689

993

1163

1285

1393

1491

5400

694

999

1171

1294

1403

1501

5450

698

1006

1179

1302

1412

1511

5500

703

1012

1186

1311

1421

1521

5550

707

1019

1194

1319

1430

1530

5600

712

1025

1201

1328

1439

1540

5650

716

1031

1208

1335

1447

1548

5700

719

1036

1214

1341

1454

1556

5750

723

1042

1220

1348

1462

1564

5800

727

1047

1226

1355

1469

1572

5850

731

1052

1233

1362

1477

1580

5900

735

1058

1239

1369

1484

1588

5950

739

1063

1245

1376

1492

1596

6000

743

1069

1251

1383

1499

1604

6050

747

1074

1258

1390

1506

1612

6100

751

1080

1265

1397

1515

1621

6150

755

1086

1272

1405

1523

1630

6200

760

1093

1279

1413

1531

1639

6250

764

1099

1286

1420

1540

1648

6300

768

1105

1292

1428

1548

1657

6350

773

1111

1299

1436

1556

1665

6400

777

1117

1306

1444

1565

1674

6450

781

1123

1313

1451

1573

1683

6500

785

1129

1320

1459

1582

1692

6550

789

1135

1327

1467

1590

1701

6600

793

1140

1334

1474

1598

1710

6650

797

1146

1341

1482

1607

1719

6700

801

1152

1348

1490

1615

1728

6750

806

1158

1355

1498

1623

1737

6800

810

1164

1362

1505

1632

1746

6850

814

1170

1369

1513

1640

1755

6900

818

1176

1376

1521

1649

1764

6950

822

1182

1383

1529

1657

1773

7000

826

1188

1390

1536

1665

1782

7050

830

1194

1397

1544

1674

1791

7100

834

1200

1404

1552

1682

1800

7150

838

1206

1411

1560

1691

1809

7200

842

1212

1418

1567

1699

1818

7250

847

1218

1425

1575

1707

1827

7300

851

1224

1432

1583

1716

1836

7350

855

1230

1439

1591

1724

1845

7400

859

1236

1446

1598

1733

1854

7450

863

1242

1453

1606

1741

1863

7500

867

1248

1460

1614

1749

1872

7550

871

1253

1468

1622

1758

1881

7600

875

1259

1475

1629

1766

1890

7650

879

1265

1482

1637

1775

1899

7700

883

1271

1489

1645

1783

1908

7750

887

1277

1496

1653

1792

1917

7800

891

1283

1503

1661

1800

1926

7850

895

1289

1510

1669

1809

1935

7900

899

1295

1517

1676

1817

1944

7950

903

1300

1524

1684

1826

1954

8000

907

1306

1531

1692

1834

1963

8050

911

1312

1538

1700

1843

1972

8100

915

1318

1545

1708

1851

1981

8150

919

1324

1553

1716

1860

1990

8200

923

1330

1560

1723

1868

1999

8250

927

1336

1567

1731

1877

2008

8300

931

1342

1574

1739

1885

2017

8350

935

1348

1581

1747

1894

2026

8400

939

1353

1588

1755

1902

2035

8450

943

1359

1595

1763

1911

2044

8500

947

1365

1602

1770

1919

2053

8550

951

1371

1609

1778

1928

2062

8600

954

1377

1616

1786

1936

2072

8650

958

1383

1623

1794

1944

2081

8700

962

1389

1630

1802

1953

2090

8750

966

1395

1638

1809

1961

2099

8800

970

1401

1645

1817

1970

2108

8850

974

1406

1652

1825

1978

2117

8900

978

1412

1659

1833

1987

2126

8950

982

1418

1666

1840

1995

2135

9000

985

1423

1672

1847

2002

2142

9050

989

1428

1678

1854

2010

2150

9100

992

1433

1684

1861

2017

2158

9150

996

1438

1690

1867

2024

2166

9200

999

1443

1696

1874

2032

2174

9250

1003

1448

1702

1881

2039

2182

9300

1006

1453

1708

1888

2046

2189

9350

1010

1458

1714

1894

2053

2197

9400

1013

1463

1720

1901

2061

2205

9450

1016

1469

1727

1908

2068

2213

9500

1020

1474

1733

1915

2075

2221

9550

1023

1479

1739

1921

2083

2228

9600

1027

1484

1745

1928

2090

2236

9650

1030

1489

1751

1935

2097

2244

9700

1034

1494

1757

1942

2105

2252

9750

1037

1499

1763

1948

2112

2260

9800

1041

1504

1769

1955

2119

2268

9850

1044

1509

1775

1962

2127

2275

9900

1047

1514

1781

1969

2134

2283

9950

1051

1519

1788

1975

2141

2291

10000

1054

1524

1794

1982

2148

2299

10050

1058

1529

1800

1989

2156

2307

10100

1061

1534

1806

1995

2163

2315

10150

1065

1539

1812

2002

2170

2322

10200

1068

1545

1818

2009

2178

2330

10250

1072

1550

1824

2016

2185

2338

10300

1075

1555

1830

2022

2192

2346

10350

1078

1560

1836

2029

2200

2354

10400

1082

1565

1842

2036

2207

2361

10450

1086

1570

1849

2043

2215

2370

10500

1089

1576

1855

2050

2222

2378

10550

1093

1581

1861

2057

2230

2386

10600

1097

1586

1868

2064

2237

2394

10650

1101

1592

1874

2071

2245

2402

10700

1104

1597

1880

2078

2252

2410

10750

1108

1602

1887

2085

2260

2418

10800

1112

1608

1893

2092

2268

2426

10850

1115

1613

1899

2099

2275

2434

10900

1119

1619

1906

2106

2283

2443

10950

1123

1624

1912

2113

2290

2451

11000

1127

1629

1918

2120

2298

2459

11050

1130

1635

1925

2127

2306

2467

11100

1134

1640

1931

2134

2313

2475

11150

1138

1645

1937

2141

2321

2483

11200

1142

1651

1944

2148

2328

2491

11250

1145

1656

1950

2155

2336

2499

11300

1149

1662

1956

2162

2343

2507

11350

1153

1667

1963

2169

2351

2516

11400

1156

1672

1969

2176

2359

2524

11450

1160

1678

1975

2183

2366

2532

11500

1163

1682

1981

2189

2373

2539

11550

1167

1687

1987

2196

2380

2547

11600

1170

1692

1993

2202

2387

2554

11650

1174

1697

1999

2208

2394

2561

11700

1177

1702

2004

2215

2401

2569

11750

1180

1707

2010

2221

2408

2576

11800

1184

1712

2016

2228

2415

2584

11850

1187

1717

2022

2234

2422

2591

11900

1191

1722

2027

2240

2428

2598

11950

1193

1725

2031

2245

2433

2604

12000

1195

1729

2035

2249

2438

2609

12050

1198

1732

2039

2254

2443

2614

12100

1200

1735

2043

2258

2448

2619

12150

1202

1739

2047

2262

2452

2624

12200

1205

1742

2051

2267

2457

2629

12250

1207

1746

2055

2271

2462

2634

12300

1210

1749

2059

2276

2467

2640

12350

1212

1752

2063

2280

2472

2645

12400

1214

1756

2067

2285

2476

2650

12450

1217

1759

2071

2289

2481

2655

12500

1219

1763

2075

2293

2486

2660

12550

1221

1766

2079

2298

2491

2665

12600

1224

1770

2083

2302

2496

2670

12650

1226

1773

2088

2307

2500

2675

12700

1228

1776

2092

2311

2505

2681

12750

1231

1780

2096

2316

2510

2686

12800

1233

1783

2100

2320

2515

2691

12850

1236

1787

2104

2324

2520

2696

12900

1238

1790

2108

2329

2524

2701

12950

1240

1793

2112

2333

2529

2706

13000

1243

1797

2116

2338

2534

2711

13050

1245

1800

2120

2342

2539

2717

13100

1247

1804

2124

2347

2544

2722

13150

1250

1807

2128

2351

2548

2727

13200

1252

1811

2132

2355

2553

2732

13250

1255

1814

2136

2360

2558

2737

13300

1257

1817

2140

2364

2563

2742

13350

1259

1821

2144

2369

2568

2747

13400

1262

1824

2148

2373

2572

2753

13450

1264

1828

2152

2378

2577

2758

13500

1266

1831

2156

2382

2582

2763

13550

1269

1834

2160

2386

2587

2768

13600

1271

1838

2164

2391

2592

2773

13650

1274

1841

2168

2395

2596

2778

13700

1276

1845

2172

2400

2601

2783

13750

1278

1848

2176

2404

2606

2789

13800

1281

1852

2180

2409

2611

2794

13850

1283

1855

2184

2413

2616

2799

13900

1285

1858

2188

2417

2620

2804

13950

1288

1862

2192

2422

2625

2809

14000

1290

1865

2196

2426

2630

2814

14050

1292

1869

2200

2431

2635

2819

14100

1295

1872

2204

2435

2640

2824

14150

1297

1875

2208

2440

2645

2830

14200

1300

1879

2212

2444

2649

2835

14250

1302

1882

2216

2448

2654

2840

14300

1304

1886

2220

2453

2659

2845

14350

1307

1889

2224

2457

2664

2850

14400

1309

1893

2228

2462

2669

2855

14450

1311

1896

2232

2466

2673

2860

14500

1314

1899

2236

2471

2678

2866

14550

1316

1903

2240

2475

2683

2871

14600

1319

1906

2244

2479

2688

2876

14650

1321

1910

2248

2484

2693

2881

14700

1323

1913

2252

2488

2697

2886

14750

1326

1916

2256

2493

2702

2891

14800

1328

1920

2260

2497

2707

2896

14850

1330

1923

2264

2502

2712

2902

14900

1333

1927

2268

2506

2717

2907

14950

1335

1930

2272

2510

2721

2912

15000

1338

1934

2276

2515

2726

2917

§48-13-302. Incomes below the table for determining basic child support obligations.

If combined adjusted gross income is below $550 per month, which is the lowest amount of income considered in the table of monthly basic child support obligations set forth in subsection (a) of this section, the basic child support obligation shall be set at $50 per month or a discretionary amount determined by the court based on the resources and living expenses of the parents and the number of children due support.

§48-13-303. Incomes above the table for determining basic child support obligations.

If combined adjusted gross income is above $15,000 per month, which is the highest amount of income considered in the table of monthly basic child support obligations set forth in subsection (a) of this section, the basic child support obligation shall not be less than it would be based on a combined adjusted gross income of $15,000. The court may also compute the basic child support obligation for combined adjusted gross incomes above $15,000 by the following:

(1) One child -- $1,338 + 0.088 x combined adjusted gross income above $15,000 per month;

(2) Two children -- $1,934 + 0.129 x combined adjusted gross income above $15,000 per month;

(3) Three children -- $2,276 + 0.153 x combined adjusted gross income above $15,000 per month;

(4) Four children -- $2,515 + 0.169 x combined adjusted gross income above $15,000 per month;

(5) Five children -- $2,726 + 0.183 x combined adjusted gross income above $15,000 per month; and

(6) Six children -- $2,917 + 0.196 x combined adjusted gross income above $15,000 per month.

PART 4. SUPPORT IN BASIC SHARED PARENTING CASES.

§48-13-401. Basic child support obligation in basic shared parenting.

For basic shared parenting cases, the total child support obligation consists of the basic child support obligation plus the child's share of any unreimbursed health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or ordered by the court less any extraordinary credits agreed to by the parents or ordered by the court.

§48-13-402. Division of basic child support obligation in basic shared parenting.

For basic shared parenting cases, the total basic child support obligation is divided between the parents in proportion to their income. From this amount is subtracted the payor's direct expenditures of any items which were added to the basic child support obligation to arrive at the total child support obligation.

§48-13-403. Worksheet for calculating basic child support obligation in basic shared parenting cases.

Child support for basic shared parenting cases shall be calculated using the following worksheet:

Worksheet A: BASIC SHARED PARENTING

IN THE FAMILY COURT OF __________ COUNTY, WEST VIRGINIA CASE NO.________

Mother: ______________ SS No.: ________________ Primary Custodial parent?  Yes  No

Father: _______________ SS No.: ________________ Primary Custodial parent?  Yes  No

Children

SSN

Date of Birth

Children

SSN

Date of    Birth

PART I. CHILD SUPPORT ORDER

Mother

Father

Combined

1. MONTHLY GROSS INCOME (Exclusive of overtime compensation)

$

$

a. Minus preexisting child support payment

-

-

 b. Minus maintenance paid

-

-

 c. Plus overtime compensation, if not excluded, and not to exceed 50%, pursuant to W. Va. Code §48-1-228(b)(6)

 d. Additional dependents deduction

+

+

 2. MONTHLY ADJUSTED GROSS INCOME

$

$

$

 3. PERCENTAGE SHARE OF INCOME

 (Each parent's income from line 2 divided by Combined Income)

%

%

 100%

 4. BASIC OBLIGATION

 (Use Line 2 combined to find amount from schedule.)

$

 5. ADJUSTMENTS (Expenses paid directly by each parent)

a. Work-Related Child Care Costs Adjusted for Federal Tax Credit (0.75 x actual work-related child care costs.)

$

$

 b. Extraordinary Medical Expenses (Uninsured only) and Children's Portion of Health Insurance Premium Costs.

$

$

 c. Extraordinary Expenses (Agreed to by parents or by order of the court.)

$

$

 d. Minus Extraordinary Adjustments (Agreed to by parents or by order of court.)

 e. Total Adjustments (For each column, add 5a, 5b, and 5c. Subtract Line 5d. Add the parent's totals together for Combined amount.)

$

$

$

 6. TOTAL SUPPORT OBLIGATION

 (Add line 4 and line 5e Combined.)

$

 7. EACH PARENT'S SHARE OF THE TOTAL CHILD SUPPORT OBLIGATION (Line 3 x line 6 for each parent.)

$

$

 8. PAYOR PARENT ADJUSTMENT

 (Enter payor parent's line 5e.)

$

$

 9. RECOMMENDED CHILD SUPPORT ORDER

 (Subtract line 8 from line 7 for the payor parent only. Leave payee parent column blank.)

$

$

PART II. ABILITY TO PAY CALCULATION

(Complete if the payor parent's adjusted monthly gross income is below $1,550.)

10. Spendable Income

 (0.80 x line 2 for payor parent only.)

11. Self Support Reserve

$500

$500

12. Income Available for Support

 (Line 10 - line 11. If less than $50, then $50)

13. Adjusted Child Support Order

 (Lessor of Line 9 and Line 12.)

Comments, calculations, or rebuttals to schedule or adjustments if payor parent directly pays extraordinary expenses.

PREPARED BY:

Date:

§48-13-404. Additional calculation to be made in basic shared parenting cases.

In cases where the payor parent's adjusted gross income is below $1,550 per month, an additional calculation in Worksheet A, Part II shall be made. This additional calculation sets the child support order at whichever is lower.

(1) Child support at the amount determined in Part I; or

(2) The difference between eighty percent of the payor parent's adjusted gross income and $500, or fifty dollars, whichever is more.

PART 5. SUPPORT IN EXTENDED SHARED PARENTING

OR SPLIT PHYSICAL CUSTODY CASES.

§48-13-501. Extended shared parenting adjustment.

Child support for cases with extended shared parenting is calculated using Worksheet B. The following method is used only for extended shared parenting: That is, in cases where each parent has the child for more than one hundred twenty-seven days per year (thirty-five percent).

(1) The basic child support obligation is multiplied by 1.5 to arrive at a shared parenting basic child support obligation. The shared parenting basic child support obligation is apportioned to each parent according to his or her income. In turn, a child support obligation is computed for each parent by multiplying that parent's portion of the shared parenting child support obligation by the percentage of time the child spends with the other parent. The respective basic child support obligations are then offset, with the parent owing more basic child support paying the difference between the two amounts. The transfer for the basic obligation for the parent owing less basic child support shall be set at zero dollars.

(2) Adjustments for each parent's additional direct expenses on the child are made by apportioning the sum of the parent's direct expenditures on the child's share of any unreimbursed child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or ordered by the court less any extraordinary credits agreed to by the parents or ordered by the court to each parent according to their income share. In turn each parent's net share of additional direct expenses is determined by subtracting the parent's actual direct expenses on the child's share of any unreimbursed child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or by the court less any extraordinary credits agreed to by the parents or ordered by the court from their share. The parent with a positive net share of additional direct expenses owes the other parent the amount of his or her net share of additional direct expenses. The parent with zero or a negative net share of additional direct expenses owes zero dollars for additional direct expenses.

(3) The final amount of the child support order is determined by summing what each parent owes for the basic support obligation and additional direct expenses as defined in subdivisions (1) and (2) of this section. The respective sums are then offset, with the parent owing more paying the other parent the difference between the two amounts.

§48-13-502. Extended shared parenting worksheet.

Child support for extended shared parenting cases shall be calculated using the following worksheet:

Worksheet B: extended shared parenting

IN THE FAMILY COURT OF ______________ COUNTY, WEST VIRGINIA

CASE NO. ____________

Mother: ___________________________ SS No.: __________

Father: ____________________________ SS No.: __________

Children

SSN

Date of Birth

Children

SSN

Date of Birth

PART I. BASIC OBLIGATION

Mother

Father

Combined

1. MONTHLY GROSS INCOME (Exclusive of overtime compensation)

$

$

 a. Minus preexisting child support payment

-

-

 b. Minus maintenance paid

-

-

 c. Plus overtime compensation, if not excluded, and not to exceed 50%, pursuant to W. Va. Code §48-1-228(b)(6)

 d. Additional dependent deduction

+

+

 2. MONTHLY ADJUSTED GROSS INCOME

$

$

$

 3. PERCENTAGE SHARE OF INCOME (Each parent's income from line 2 divided by Combined

 Income)

%

%

100%

 4. BASIC OBLIGATION (Use line 2 Combined to find amount from Child Support Schedule.)

$

PART II. SHARED PARENTING ADJUSTMENT

 5. Shared Parenting Basic Obligation (line 4 x 1.50)

$

 6. Each Parent's Share (Line 5 x each parent's line 3)

$

$

 7. Overnights with Each Parent (must total 365)

365

 8. Percentage with Each Parent (Line 7 divided by 365)

%

%

100%

 9. Amount Retained (Line 6 x line 8 for each parent)

$

$

 10. Each Parent's Obligation (Line 6 - line 9)

$

$

 11. AMOUNT TRANSFERRED FOR BASIC OBLIGATION (Subtract smaller amount on line 10 from larger amount on line 10. Parent with larger amount on line 10 owes the other parent the difference. Enter $0 for other parent.

$

$

PART III. ADJUSTMENTS FOR ADDITIONAL EXPENSES (Expenses paid directly by each parent.)

 12a. Work-Related Child Care Costs Adjusted for Federal Tax Credit (0.75 x actual work-related child care costs.)

$

$

 12b. Extraordinary Medical Expenses (Uninsured only) and Children's Portion of Health Insurance Premium Costs.

$

$

 12c. Extraordinary Additional Expenses (Agreed to by parents or by order of the court.)

$

$

 12d. Minus Extraordinary Adjustments (Agreed to by parents or by order of the court.)

$

$

 12e. Total Adjustments (For each column, add 11a, 11b, and 11c. Subtract line 11d. Add the parent's totals together for Combined amount.)

$

$

$

 13. Each Parent's Share of Additional Expenses (Line 3 x line 12e Combined.)

$

$

 14. Each Parent's Net Share of Additional Direct Expenses (Each parent's line 13-line 12e. If negative number, enter $0)

$

$

 15. AMOUNT TRANSFERRED FOR ADDITIONAL EXPENSES (Subtract smaller amount on line 14 from larger amount on line 14. Parent with larger amount on line 14 owes the other parent the difference. Enter $0 for other parent.)

$

$

PART IV. RECOMMENDED CHILD SUPPORT ORDER

 16. TOTAL AMOUNT TRANSFERRED (Line 11 + line 15)

$

$

 17. RECOMMENDED CHILD SUPPORT ORDER (Subtract smaller amount on line 16 from larger amount on line 16. Parent with larger amount on line 16 owes the other parent the difference.)

$

$

Comments, calculations, or rebuttals to schedule or adjustments

PREPARED BY:

Date:

§48-13-503. Split physical custody adjustment.

In cases with split physical custody, the court shall use Worksheet A as set forth in section 13-403 to calculate a separate child support order for each parent based on the number of children in that parent's custody. Instead of transferring the calculated orders between parents, the two orders are offset. The difference of the two orders is the child support order to be paid by the parent with the higher sole-parenting order.

PART 6. ADJUSTMENT OF SHARES OF SUPPORT OBLIGATIONS.

§48-13-601. Adjustment for child care tax credit.

(a) The amount of the federal tax credit for child care expenses that can be realized by the custodial parent shall be approximated by deducting twenty-five percent from work-related child care costs, except that no such deduction shall be made for custodial parents with monthly gross incomes below the following amounts:

(1) One child--$1,150;

(2) Two children--$1,550;

(3) Three children--$1,750;

(4) Four children--$1,950;

(5) Five children--$2,150; and

(6) Six or more children--$2,350.

(b) Work-related child care costs net of any adjustment for the child care tax credit shall be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross income.

§48-13-602. Adjustment for child health care.

(a) A child support order shall provide for the child's current and future medical needs by providing relief in accordance with the provisions of article 12-101, et seq., of this chapter.

(b) The payment of a premium to provide health insurance coverage on behalf of the children subject to the order is added to the basic child support obligation and divided between the parents in proportion to their adjusted gross income. The amount added to the basic child support obligation is the actual amount of the total insurance premium that is attributable to the number of children due support. If this amount is not available or cannot be verified, the total cost of the premium should be divided by the total number of persons covered by the policy. The cost per person derived from this calculation is multiplied by the number of children who are the subject of the order and who are covered under the policy.

(c) After the total child support obligation is calculated and divided between the parents in proportion to their adjusted gross income, the amount of the health insurance premium added to the basic child support obligation is deducted from the support obligor's share of the total child support obligation if the support obligor is actually paying the premium.

(d) Extraordinary medical expenses shall be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross income.

§48-13-603. Adjustment for obligor's social security benefits sent directly to the child; receipt by child of supplemental security income.

(a) If a proportion of the obligor's social security benefit is paid directly to the custodian of his or her dependents who are the subject of the child support order, the following adjustment shall be made. The total amount of the social security benefit which includes the amounts paid to the obligor and the obligee shall be counted as gross income to the obligor. In turn, the child support order will be calculated as described in sections 13-401 through 13-404. To arrive at the final child support amount, however, the amount of the social security benefits sent directly to the child's household will be subtracted from the child support order. If the child support order amount results in a negative amount it shall be set at zero.

(b) If a child is a recipient of disability payments as supplemental security income for aged, blind and disabled, under the provisions of 42 U.S.C. §1382, et seq., and if support furnished by an obligor would be considered unearned income that renders the child ineligible for disability payments or medical benefits, no child support order shall be entered for that child. If a support order is entered for the child's siblings or other persons in the household, the child shall be excluded from the calculation of support, and the amount of support for the child shall be set at zero.

PART 7. APPLICATION OF CHILD SUPPORT GUIDELINES.

§48-13-701. Rebuttable presumption that child support award is correct.

The guidelines in child support awards apply as a rebuttable presumption to all child support orders established or modified in West Virginia. The guidelines must be applied to all actions in which child support is being determined including temporary orders, interstate (URESA and UIFSA), domestic violence, foster care, divorce, nondissolution, public assistance, nonpublic assistance and support decrees arising despite nonmarriage of the parties. The guidelines must be used by the court as the basis for reviewing adequacy of child support levels in uncontested cases as well as contested hearings.

§48-13-702. Disregard of formula.

(a) If the court finds that the guidelines are inappropriate in a specific case, the court may either disregard the guidelines or adjust the guidelines-based award to accommodate the needs of the child or children or the circumstances of the parent or parents. In either case, the reason for the deviation and the amount of the calculated guidelines award must be stated on the record (preferably in writing on the worksheet or in the order). Such findings clarify the basis of the order if appealed or modified in the future.

(b) These guidelines do not take into account the economic impact of the following factors that may be possible reasons for deviation:

(1) Special needs of the child or support obligor, including, but not limited to, the special needs of a minor or adult child who is physically or mentally disabled;

(2) Educational expenses for the child or the parent (i.e. those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or costs beyond state and local tax contributions);

(3) Families with more than six children;

(4) Long distance visitation costs;

(5) The child resides with third party;

(6) The needs of another child or children to whom the obligor owes a duty of support;

(7) The extent to which the obligor's income depends on nonrecurring or nonguaranteed income; or

(8) Whether the total of spousal support, child support and child care costs subtracted from an obligor's income reduces that income to less than the federal poverty level and conversely, whether deviation from child support guidelines would reduce the income of the child's household to less than the federal poverty level.

§48-13-703. Restructuring of payments upon release of inmate.

Upon his or her release from the custody of the Division of Corrections or the United States Bureau of Prisons, a person who is gainfully employed and is subject to a child support obligation or obligations and from whose weekly disposable earnings an amount in excess of forty percent is being withheld for the child support obligation or obligations may, within eighteen months of his or her release, petition the court having jurisdiction over the case or cases to restructure the payments to an amount that allows the person to pay his or her necessary living expenses. In order to achieve consistency and fairness, one judge may assume jurisdiction over all the cases the person may have within that circuit of the court. In apportioning the available funds, the court shall give priority to the person's current child support obligations: Provided, That a minimum of $50 per month shall be paid in each case.

PART VIII. MISCELLANEOUS PROVISIONS RELATING TO CHILD SUPPORT ORDERS.

§48-13-801. Tax exemption for child due support.

Unless otherwise agreed to by the parties, the court shall allocate the right to claim dependent children for income tax purposes to the payee parent except in cases of extended shared parenting. In extended shared parenting cases, these rights shall be allocated between the parties in proportion to their adjusted gross incomes for child support calculations. In a situation where allocation would be of no tax benefit to a party, the court need make no allocation to that party. However, the tax exemptions for the minor child or children should be granted to the payor parent only if the total of the payee parent's income and child support is greater when the exemption is awarded to the payor parent.

§48-13-802. Investment of child support.

(a) The court has the discretion, in appropriate cases, to direct that a portion of child support be placed in trust and invested for future educational or other needs of the child. The court may order such investment when all of the child's day-to-day needs are being met such that, with due consideration of the age of the child, the child is living as well as his or her parents.

(b) If the amount of child support ordered per child exceeds the sum of $2,000 per month, the court is required to make a finding, in writing, as to whether investments shall be made as provided for in subsection (a) of this section.

(c) A trustee named by the court shall use the judgment and care under the circumstances then prevailing that persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. A trustee shall be governed by the provisions of the uniform prudent investor act as set forth in article six-c, chapter forty-four of this code. The court may prescribe the powers of the trustee and provide for the management and control of the trust. Upon petition of a party or the child's guardian or next friend and upon a showing of good cause, the court may order the release of funds in the trust from time to time.

§48-13-803. Reimbursement or arrearage only support.

When the payor is not paying any current support obligation but is required to pay for arrearages or reimbursement support, the court shall set a payment amount for the repayment of reimbursement support or of a support arrearage that is reasonable pursuant to the provisions of this article or section 6-301, but not to exceed the limits set out in section 14-408.

§48-13-804. Default orders.

(a) In any proceeding in which support is to be established, if a party has been served with proper pleadings and notified of the date, time and place of a hearing before a family court judge and does not enter an appearance or file a response, the family court judge shall prepare a default order for entry establishing the defaulting party's child support obligation consistent with the child support guidelines contained in this article.

(1) When applying the child support guidelines, the court may accept financial information from the other party as accurate, pursuant to rule 13(b) of the Rules of Practice and Procedure for Family Court; or

(2) If financial information is not available, the court may attribute income to the party based upon either:

(i) The party's work history;

(ii) Minimum wage, if appropriate; or

(iii) At a minimum, enter a child support order in a nominal amount unless, in the court's discretion, a zero support order should be entered.

(b) All orders shall provide for automatic withholding from income of the obligor pursuant to part 4, article fourteen of this chapter.

§48-13-901.

Repealed.

Acts, 2002 Reg. Sess., Ch. 18.

§48-13-902.

Repealed.

Acts, 2002 Reg. Sess., Ch. 18.

ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.

PART 1. ACTION TO OBTAIN AN ORDER FOR

SUPPORT OF MINOR CHILD.

§48-14-101. When action may be brought for child support order.

An action may be brought in family court to obtain an order for the support of a minor child when:

(1) The child has a parent and child relationship with an obligor;

(2) The obligor is not meeting an obligation to support the child;

(3) An enforceable order for the support of the child by the obligor has not been entered by a court of competent jurisdiction; and

(4) There is no pending action for divorce, separate maintenance or annulment in which the obligation of support owing from the obligor to the child is at issue.

§48-14-102. Who may bring action for child support order.

An action may be brought under the provisions of section one hundred one of this article by:

(1) A custodial parent of a child when the divorce order or other order which granted custody did not make provision for the support of the child by the obligor;

(2) A primary caretaker of a child;

(3) A guardian of the property of a child or the committee for a child; or

(4) The Bureau for Child Support Enforcement, on behalf of the state, when the Department of Health and Human Resources is providing assistance on behalf of the child or the person to whom a duty of support is owed, in the form of temporary assistance to needy families or medical assistance, and any right to support has been assigned to the department or in any other case wherein a party has applied for child support enforcement services from the Bureau for Child Support Enforcement.

§48-14-103. Venue for action for child support order.

An action under the provisions of this section may be brought in the county where the obligee, the obligor or the child resides.

§48-14-104. Obligee may seek spousal support in addition to child support.

When an action for child support is brought under the provisions of this section by an obligee against his or her spouse, such obligee may also seek spousal support from the obligor, unless such support has been previously waived by agreement or otherwise.

§48-14-105. Mandatory provision for wage withholding.

Every order of support heretofore or hereafter entered or modified under the provisions of this section shall include a provision for the income withholding in accordance with the provisions of 12-101, et seq., and 14-401, et seq.

§48-14-106.Modification of support order.

(a) At any time after the entry of an order for support, the court may, upon the verified petition of an obligee or the obligor, revise or alter such order and make a new order as the altered circumstances or needs of a child, an obligee or the obligor may render necessary to meet the ends of justice.

(b) The Supreme Court of Appeals shall make available to the family courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should be altered or revised because of a loss or change of employment or other substantial change affecting income or that the amount of support required to be paid is not within fifteen percent of the child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court shall make such forms available to persons desiring to petition the court pro se for a modification of the support award.

(c) Upon entry of an order modifying a child support amount the court shall, no later than five days from entry of the order, provide a copy of the modified order to the Bureau for Child Support Enforcement. If an overpayment to one of the parties occurs as a result of the modified terms of the order, funds properly withheld by the Bureau for Child Support Enforcement pursuant the terms of the original order shall not be returned until such time as the Bureau for Child Support Enforcement receives repayment from the party in possession of the overpayment.

§48-14-107. Modification of support order with the assistance of Bureau for Child Support Enforcement.

In addition to any other procedure which may exist by law, any party seeking the recalculation of support and modification under a child support order due to a substantial change in circumstances pursuant to the provisions of section one hundred six of this article may seek and obtain the assistance of the Bureau of Child Support Enforcement, pursuant to the procedures established under the provisions of sections two hundred one through two hundred six, inclusive, article eighteen of this chapter, in the preparation, assessment and presentation of an appropriate petition for modification of a support order, including the identification and narrowing of issues associated with a requested recalculation of support prior to filing the petition, and the preparation and presentation of an appropriate petition and proposed order for modification for consideration by the family court.

§48-14-108. Deceased parties in support cases.

(a) In the event of the death of any party to a domestic relations support action, support payments or a refund of support payments due to the party by the obligee, obligor or the Bureau for Child Support Enforcement, not in excess of $1,000, may, upon proper demand, be paid, in the absence of actual notice of the pendency of probate proceedings, without requiring letters testamentary or of administration in the following order of preference to decedent's:

(1) Surviving spouse;

(2) Children eighteen years of age and over in equal shares;

(3) Father and mother, or survivor; and

(4) Sisters and brothers.

(b) Payments under this section shall release and discharge the obligee, obligor or the Bureau for Child Support Enforcement to the amount of such payment.

PART 2. LIENS AGAINST PERSONAL PROPERTY

FOR OVERDUE SUPPORT.

§48-14-201. Arrearages stand by operation of law as judgment against support obligor.

When an obligor is in arrears in the payment of support which is required to be paid by the terms of an order for support of a child, an obligee or the Bureau for Child Support enforcement may file an abstract of the order giving rise to the support obligation and an "affidavit of accrued support," setting forth the particulars of such arrearage and requesting a writ of execution, suggestion or suggestee execution. The filing of the abstract and affidavit shall give rise, by operation of law, to a lien against personal property of an obligor who resides within this state or who owns property within this state for overdue support.

§48-14-202. Registration of foreign order.

If the duty of support is based upon an order from another jurisdiction, the obligee shall first register the order in accordance with the provisions of part 16-601, et seq., of this chapter: Provided, That nothing in this subsection shall prevent the Bureau for Child Support enforcement from enforcing foreign orders for support without registration of the order in accordance with the provisions of part 16-501, et seq., of this chapter.

§48-14-203. Affidavit of accrued support.

(a) The affidavit of accrued support may be filed with the clerk of the circuit court in the county in which the obligee or the obligor resides, in the county where the order originated or where the obligor's source of income is located.

The affidavit may be filed when a payment required by such order has been delinquent, in whole or in part, for a period of fourteen days.

(b) The affidavit shall:

(1) Identify the obligee and obligor by name and address, and shall list the last four digits of the obligor's Social Security number or numbers, if known;

(2) Name the court which entered the support order and set forth the date of such entry;

(3) State the total amount of accrued support which has not been paid by the obligor; and

(4) State the name and address of the obligor's source of income, if known.

PART 2. LIENS AGAINST PERSONAL

PROPERTY FOR OVERDUE SUPPORT.

§48-14-204. Execution and notice.

(a) Upon receipt of the affidavit, the clerk shall issue a writ of execution, suggestion or suggestee execution and shall mail a copy of the affidavit and a notice of the filing of the affidavit to the obligor at his or her last known address. If the Bureau for Child Support enforcement is not acting on behalf of the obligee in filing the affidavit, the clerk shall forward a copy of the affidavit and the notice of the filing to the Bureau for Child Support enforcement.

(b) The notice provided for in subsection (a) of this section must inform the obligor that if he or she desires to contest the affidavit on the grounds that the amount claimed to be in arrears is incorrect or that a writ of execution, suggestion or suggestee execution is not proper because of mistakes of fact, he or she must, within fourteen days of the date of the notice: (1) Inform the Bureau for Child Support enforcement in writing of the reasons why the affidavit is contested and request a meeting with the Bureau for Child Support enforcement; or (2) where a court of this state has jurisdiction over the parties, obtain a date for a hearing before the court and mail written notice of such hearing to the obligee and to the Bureau for Child Support enforcement on a form prescribed by the administrative office of the Supreme Court of Appeals and made available through the office of the clerk of the circuit court.

(c) Upon being informed by an obligor that he or she desires to contest the affidavit, the Bureau for Child Support enforcement shall inform the court of such fact, and the court shall require the obligor to give security, post a bond or give some other guarantee to secure payment of overdue support.

§48-14-205. Circuit clerk to provide form affidavits.

The clerk of the circuit court shall make available form affidavits for use under the provisions of this article. Such form affidavits shall be provided to the clerk by the Bureau for Child Support enforcement. The notice of the filing of an affidavit shall be in a form prescribed by the Bureau for Child Support enforcement.

§48-14-206. Priority over other legal process.

Writs of execution, suggestions or suggestee executions issued pursuant to the provisions of this article shall have priority over any other legal process under the laws of this state against the same income, except for withholding from income of amounts payable as support in accordance with the provisions of section 14-401 of this chapter, and shall be effective notwithstanding any exemption that might otherwise be applicable to the same income.

§48-14-207. Amount to be withheld from income.

Notwithstanding any other provision of this code to the contrary, the amount to be withheld from the disposable earnings of an obligor pursuant to a suggestee execution in accordance with the provisions of this article shall be the same amount which could properly be withheld in the case of a withholding order under the provisions of 14-401, et seq.

§48-14-208. Filing of false affidavit constitutes false swearing.

A person who files a false affidavit is guilty of false swearing and, upon conviction thereof, shall be punished as provided by law for such offense.

§48-14-209. Application to support orders of another state.

The provisions of this article apply to support orders issued by a court of competent jurisdiction of any other state.

§48-14-210. Application to income withholding.

The provisions of this article do not apply to income withholding, as provided in section 14-401 of this chapter.

§48-14-211. Release of lien.

Upon satisfaction of the overdue support obligation, the obligee shall issue a release to the obligor and file a copy thereof with the clerk of the county commission in the county in which the lien arose pursuant to this section. The Bureau for Child Support enforcement shall issue a release in the same manner and with the same effect as liens taken by the Tax Commissioner pursuant to section twelve, article ten, chapter eleven of this code.

PART 3. LIENS AGAINST REAL PROPERTY

FOR OVERDUE SUPPORT.

§48-14-301. Liens against real property by operation of law.

An order for support entered by a court of competent jurisdiction will give rise, by operation of law, to a lien against real property of an obligor who resides or owns property within this state for overdue support upon the filing by the obligee, or, when appropriate, the Bureau for Child Support enforcement, an abstract of the order giving rise to the support obligation and an "Affidavit of Accrued Support" setting forth the particulars of the arrearage.

§48-14-302. Affidavit of accrued support.

The affidavit and abstract as provided in section four, article three, chapter thirty-eight of this code shall be filed with the clerk of the county commission in which the real property is located or in the county where the order originated. The affidavit shall:

(1) Identify the obligee and obligor by name and address, and shall list the last four digits of the obligor's Social Security number or numbers, if known;

(2) Name the court which entered the support order and set forth the date of such entry;

(3) Allege that the support obligor is at least thirty days in arrears in the payment of child support; and

(4) State the total amount of accrued support which has not been paid by the obligor.

§48-14-303. Registration of foreign order.

If the duty of support is based upon a foreign order the obligee shall first register the order in accordance with the provisions of article 16 of this chapter: Provided, That nothing in this subsection shall prevent the Bureau for Child Support enforcement from enforcing foreign orders for support without registration of the order in accordance with the provisions of article 16 of this chapter.

§48-14-304. Full faith and credit to liens arising in another state.

This state will accord full faith and credit to liens described in section 301 of this article arising in another state, when the out-of-state agency, party, or other entity seeking to enforce such a lien complies with the procedural rules relating to recording or serving liens that arise within the other state.

§48-14-305. Release of lien.

Upon satisfaction of the overdue support obligation, the obligee shall issue a release to the obligor and file a copy thereof with the clerk of the county commission in the county in which the lien arose pursuant to this section. The Bureau for Child Support enforcement shall issue a release in the same manner and with the same effect as liens taken by the Tax Commissioner pursuant to section twelve, article ten, chapter eleven of this code.

§48-14-306. Filing of false affidavit constitutes false swearing.

Any person who files a false affidavit shall be guilty of false swearing and, upon conviction thereof, shall be punished as provided by law for such offense.

§48-14-307. Application to support orders of another state.

The provisions of this part 14-301, et seq., shall apply to support orders issued by a court of competent jurisdiction of any other state.

§48-14-308. Enforcement by the Bureau for Child Support enforcement of lien on real property.

The Bureau for Child Support enforcement may enforce a lien upon real property pursuant to the provisions of article three, chapter thirty-eight of this code.

PART 4. WITHHOLDING FROM INCOME OF AMOUNTS PAYABLE AS SUPPORT.

§48-14-401. Support orders to provide for withholding from income.

(a) Every order entered or modified under the provisions of this article that requires the payment of child support or spousal support must include a provision for automatic withholding from income of the obligor in order to facilitate income withholding as a means of collecting support.

(b) Every support order heretofore or hereafter entered by a court of competent jurisdiction is considered to provide for an order of income withholding, notwithstanding the fact that the support order does not in fact provide for an order of withholding. Income withholding may be instituted under this part for any arrearage without the necessity of additional judicial or legal action.

(c) Every such order as described in subsection (a) of this section shall contain language authorizing income withholding for both current support and for any arrearages to commence without further court action as follows:

The order shall provide that income withholding shall begin immediately, without regard to whether there is an arrearage;

(A) When a child for whom support is ordered is included or becomes included in a grant of assistance from the division of human services or a similar agency of a sister state for temporary assistance for needy families benefits, medical assistance only benefits or foster care benefits and is referred to the Bureau for Child Support enforcement; or

(B) When the support obligee has applied for services from the Bureau for Child Support enforcement created pursuant to section 18-101, et seq., of this chapter, or the support enforcement agency of another state or is otherwise receiving services from the Bureau for Child Support enforcement as provided for in this chapter. In any case where one of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding, or in any case where there is filed with the court a written agreement between the parties which provides for an alternative arrangement, such order shall not provide for income withholding to begin immediately, pursuant to section four hundred three, article fourteen of this chapter.

PART 4. WITHHOLDING FROM INCOME OF

AMOUNTS PAYABLE AS SUPPORT.

§48-14-402. Commencement of withholding from income without further court action.

(a) Except as otherwise provided in section 14-403, a support order as described in section 14-401 must contain or must be deemed to contain language requiring automatic income withholding for both current support and for any arrearages to commence without further court action on the date the support order is entered.

(b) The Supreme Court of Appeals shall make available to the family courts standard language to be included in all such orders, so as to conform such orders to the applicable requirements of state and federal law regarding the withholding from income of amounts payable as support.

§48-14-403. Exception to requirement for automatic withholding from income.

If one of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding, or in any case where there is filed with the court a written agreement between the parties which provides for an alternative arrangement, the support order may not provide for income withholding to begin immediately.

(1) The order must provide that income withholding will begin immediately upon the occurrence of any of the following:

(A) When the payments which the obligor has failed to make under the order are at least equal to the support payable for one month, if the order requires support to be paid in monthly installments;

(B) When the payments which the obligor has failed to make under the order are at least equal to the support payable for four weeks, if the order requires support to be paid in weekly or bi-weekly installments;

(C) When the obligor requests the Bureau for Child Support enforcement to commence income withholding; or

(D) When the obligee requests that such withholding begin, if the request is approved by the court in accordance with procedures and standards established by rules promulgated by the commission pursuant to this section and to chapter twenty-nine-a of this code.

(2) The court shall consider the best interests of the child in determining whether "good cause" exists under this section. The court may also consider the obligor's payment record in determining whether "good cause" has been demonstrated.

(3) When immediate income withholding is not required due to the findings required by this section, the Bureau for Child Support enforcement shall mail a notice to the obligor pursuant to section 14-405 of this article upon the occurrence of any of the conditions provided for in subdivision (1) of this section.

§48-14-404. Enforcement of withholding by Bureau for Child Support Enforcement.

The withholding from an obligor's income of amounts payable as spousal or child support or fees awarded by a court of competent jurisdiction to the state in connection with the establishment of paternity and support or the enforcement of a support order shall be enforced by the Bureau for Child Support Enforcement in accordance with the provisions of part 4 of this article. If an overpayment of spousal or child support occurs and an arrearage exists, the Bureau for Child Support Enforcement shall first offset the overpayment of spousal or child support against the arrearage. If no arrearage exists with which to offset the overpayment or the arrearage is not sufficient to offset the overpayment and the obligee does not enter into a repayment agreement with the Bureau for Child Support Enforcement, the Bureau for Child Support Enforcement may issue an income withholding to the obligee's employer to recoup the amount of the overpayment. The income withholding shall be in the same manner as provided in this article: Provided, That in no circumstances may the amount withheld exceed thirty-five percent of the disposable earnings for the period, regardless of the length of time that the overpayment has been owed.

§48-14-405. Information required in notice to obligor.

When income withholding is required, the Bureau for Child Support enforcement shall send by first-class mail or electronic means to the obligor notice that withholding has commenced. The notice shall inform the obligor of the following:

(1) The amount owed;

(2) That a withholding from the obligor's income of amounts payable as support has commenced;

(3) That the amount withheld will be equal to the amount required under the terms of the current support order, plus amounts for any outstanding arrearage;

(4) The definition of "gross income" as defined in section 1-228 of this chapter;

(5) That the withholding will apply to the obligor's present source of income and to any future source of income and, therefore, no other notice of withholding will be sent to the obligor. A copy of any new or modified withholding notice will be sent to the obligor at approximately the same time the original is sent to the source of income;

(6) That any action by the obligor to purposefully minimize his or her income will result in the enforcement of support being based upon potential and not just actual earnings;

(7) That payment of the arrearage after the date of the notice is not a bar to such withholding;

(8) That the obligor may request a review of the withholding by written request to the Bureau for Child Support enforcement when the obligor has information showing an error in the current or overdue support amount or a mistake as to the identity of the obligor;

(9) That a mistake of fact exists only when there is an error in the amount of current or overdue support claimed in the notice or there is a mistake as to the identity of the obligor;

(10) That matters such as lack of visitation, inappropriateness of the support award or changed financial circumstances of the obligee or the obligor will not be considered at any hearing held pursuant to the withholding, but may be raised by the filing of a separate petition in family court;

(11) That if the obligor desires to contest the withholding, the obligor may petition the family court for a resolution; and

(12) That while the withholding is being contested through the court, the income withholding may not be stayed but may be modified.

§48-14-406. Notice to source of income; withholding in compliance with order.

(a) Withholding shall occur and the notice to withhold shall be sent either by first-class mail or by electronic means to the source of income when the support order provides for immediate income withholding pursuant to sections four hundred one and four hundred two of this article or if immediate income withholding is not so provided, when the support payments are in arrears in the amount specified in section four hundred three [§48-14-403] of this article.

(b) The source of income shall withhold so much of the obligor's income as is necessary to comply with the order authorizing such withholding, up to the maximum amount permitted under applicable law for both current support and for any arrearages which are due. Such withholding, unless otherwise terminated under the provisions of this part, shall apply to any subsequent source of income or any subsequent period of time during which income is received by the obligor.

(c) In addition to any amounts payable as support withheld from the obligor's income, the source of income may deduct a fee, not to exceed $1, for administrative costs incurred by the source of income for each withholding.

§48-14-407. Contents of notice to source of income.

(a) The source of income of any obligor who is subject to withholding, upon being given notice of withholding, shall withhold from such obligor's income the amount specified by the notice and pay such amount to the Bureau for Child Support Enforcement for distribution. The notice given to the source of income shall contain only such information as may be necessary for the source of income to comply with the withholding order and no source of income may require additional information or documentation. Such notice to the source of income shall include, at a minimum, the following:

(1) The amount to be withheld from the obligor's disposable earnings and a statement that the amount to be withheld for support and other purposes, including the fee specified under subdivision (3) of this subsection, may not be in excess of the maximum amounts permitted under Section 303(b) of the federal Consumer Credit Protection Act or limitations imposed under the provisions of this code;

(2) That the source of income shall send the amount to be withheld from the obligor's income to the Bureau for Child Support Enforcement, along with such identifying information as may be required by the bureau, the same day that the obligor is paid;

(3) That, in addition to the amount withheld under the provisions of subdivision (1) of this subsection, the source of income may deduct a fee, not to exceed $1, for administrative costs incurred by the source of income for each withholding;

(4) That withholding is binding on the source of income until further notice by the Bureau for Child Support Enforcement or until the source of income notifies the Bureau for Child Support Enforcement of a termination of the obligor's employment in accordance with the provisions of section four hundred twelve of this article;

(5) That the source of income is subject to a fine for discharging an obligor from employment, refusing to employ or taking disciplinary action against any obligor because of the withholding;

(6) That when the source of income fails to withhold income in accordance with the provisions of the notice, the source of income is liable for the accumulated amount the source of income should have withheld from the obligor's income;

(7) That the withholding under the provisions of this part shall have priority over any other legal process under the laws of this state against the same income and shall be effective despite any exemption that might otherwise be applicable to the same income;

(8) That when an employer has more than one employee who is an obligor who is subject to wage withholding from income under the provisions of this code, the employer may combine all withheld payments to the Bureau for Child Support Enforcement when the employer properly identifies each payment with the information listed in this part. A source of income is liable to an obligee, including the State of West Virginia or the Department of Health and Human Resources where appropriate, for any amount which the source of income fails to identify with the information required by this part and is therefore not received by the obligee;

(9) That the source of income shall implement withholding no later than the first pay period or first date for payment of income that occurs after fourteen days following the date the notice to the source of income was mailed; and

(10) That the source of income shall notify the Bureau for Child Support Enforcement promptly when the obligor terminates his or her employment or otherwise ceases receiving income from the source of income and shall provide the obligor's last known address and the name and address of the obligor's new source of income, if known.

(b) The Bureau for Child Support Enforcement shall, by administrative rule, establish procedures for promptly refunding to obligors amounts which have been improperly withheld under the provisions of this part. When a court reduces an order of support, the Bureau for Child Support Enforcement is not liable for refunding amounts which have been withheld pursuant to a court order enforceable at the time that the bureau received the funds unless the funds were kept by the state. The obligee or obligor who received the benefit of the withheld amounts shall be liable for promptly refunding any amounts which would constitute an overpayment of the support obligation.

§48-14-408. Determination of amounts to be withheld.

Notwithstanding any other provision of this code to the contrary which provides for a limitation upon the amount which may be withheld from earnings through legal process, the amount of an obligor's aggregate disposable earnings for any given workweek which may be withheld as support payments is to be determined in accordance with the provisions of this subsection, as follows:

(1) After ascertaining the status of the payment record of the obligor under the terms of the support order, the payment record shall be examined to determine whether any arrearage is due for amounts which should have been paid prior to a twelve-week period which ends with the workweek for which withholding is sought to be enforced.

(2) Prior to January 1, 2001, when none of the withholding is for amounts which came due prior to such twelve-week period, then:

(A) When the obligor is supporting another spouse or dependent child other than the spouse or child for whom the proposed withholding is being sought, the amount withheld may not exceed fifty percent of the obligor's disposable earnings for that week; and

(B) When the obligor is not supporting another spouse or dependent child as described in paragraph (A) of this subdivision, the amount withheld may not exceed sixty percent of the obligor's disposable earnings for that week.

(3) Prior to January 1, 2001, when a part of the withholding is for amounts which came due prior to such twelve-week period, then:

(A) Where the obligor is supporting another spouse or dependent child other than the spouse or child for whom the proposed withholding is being sought, the amount withheld may not exceed fifty-five percent of the obligor's disposable earnings for that week; and

(B) Where the obligor is not supporting another spouse or dependent child as described in paragraph (A) of this subdivision, the amount withheld may not exceed sixty-five percent of the obligor's disposable earnings for that week.

(4) Beginning January 1, 2001, when none of the withholding is for amounts which came due prior to such twelve-week period, then:

(A) When the obligor is supporting another spouse or dependent child other than the spouse or child for whom the proposed withholding is being sought, the amount withheld may not exceed forty percent of the obligor's disposable earnings for that week; and

(B) When the obligor is not supporting another spouse or dependent child as described in paragraph (A) of this subdivision, the amount withheld may not exceed fifty percent of the obligor's disposable earnings for that week.

(5) Beginning January 1, 2001, when a part of the withholding is for amounts which came due prior to such twelve-week period, then:

(A) When the obligor is supporting another spouse or dependent child other than the spouse or child for whom the proposed withholding is being sought, the amount withheld may not exceed forty-five percent of the obligor's disposable earnings for that week; and

(B) Where the obligor is not supporting another spouse or dependent child as described in paragraph (A) of this subdivision, the amount withheld may not exceed fifty-five percent of the obligor's disposable earnings for that week.

(6) In addition to the percentage limitations set forth in subdivisions (2) and (3) of this section, it shall be a further limitation that when the current month's obligation plus arrearages are being withheld from salaries or wages in no case shall the total amounts withheld for the current month's obligation plus arrearage exceed the amounts withheld for the current obligation by an amount greater than twenty-five percent of the current monthly support obligation.

(7) The provisions of this section shall apply directly to the withholding of disposable earnings of an obligor regardless of whether the obligor is paid on a weekly, biweekly, monthly or other basis.

(8) The Bureau for Child Support Enforcement has the authority to prorate the current support obligation in accordance with the pay cycle of the source of income. This prorated current support obligation shall be known as the "adjusted support obligation". The current support obligation or the adjusted support obligation is the amount, if unpaid, on which interest will be charged.

(9) When an obligor acts so as to purposefully minimize his or her income and to thereby circumvent the provisions of part 4 of this article which provide for withholding from income of amounts payable as support, the amount to be withheld as support payments may be based upon the obligor's potential earnings rather than his or her actual earnings, and such obligor may not rely upon the percentage limitations set forth in this subsection which limit the amount to be withheld from disposable earnings.

(10) Notwithstanding any other provision of this section, the Bureau for Child Support Enforcement may withhold not more than fifty percent of any earnings denominated as an employment-related bonus to satisfy an outstanding child support arrearage.

(A) Two weeks prior to issuing any bonus equal to or in excess of $100 to an employee or employees, an employer shall notify the Bureau for Child Support Enforcement, in a manner prescribed by the bureau, of the employee or employees' name, address, social security number, date of birth and amount of the bonus.

(B) If it is determined that an employee owes an arrearage, an income withholding notice shall be issued pursuant to chapter forty-eight, article fourteen, to the employer.

§48-14-409. Time for implementing withholding.

Every source of income who receives a notice of withholding under the provisions of this section shall implement withholding no later than the first pay period or first date for the payment of income which occurs after fourteen days following the date the notice to the source of income was mailed.

§48-14-410. Sending amounts withheld to bureau; notice.

After implementation in accordance with the provisions of section 14-409, a source of income shall send the amount to be withheld from the obligor's income to the Bureau for Child Support enforcement and shall notify the Bureau for Child Support enforcement of the date of withholding, the same date that the obligor is paid. If the source of income has more than fifty employees, the source of income shall submit the support withheld via electronic means in a manner prescribed by the Bureau for Child Support enforcement.

§48-14-411. Time withholding is to stay in effect.

Withholding of amounts payable as support under the provisions of this part 4 of this article is binding on the source of income until further notice by the Bureau for Child Support enforcement or until the source of income notifies the Bureau for Child Support enforcement of a termination of the obligor's employment in accordance with the provisions of section 14-412.

§48-14-412. Notice of termination of employment or receipt of income.

A source of income who employs or otherwise pays income to an obligor who is subject to withholding under the provisions of this part 4 shall notify the Bureau for Child Support enforcement promptly when the obligor terminates employment or otherwise ceases receiving income from the source of income, and shall provide the Bureau for Child Support enforcement with the obligor's last known address and the name and address of the obligor's new source of income, if known.

§48-14-413. Combining withheld amounts.

When an employer has more than one employee who is an obligor who is subject to wage withholding from income for amounts payable as support, the employer may combine all withheld payments to the Bureau for Child Support enforcement when the employer properly identifies each payment with the information listed in this part 4. A source of income is liable to an obligee, including the State of West Virginia or the Department of Health and Human Resources where appropriate, for any amount which the source of income fails to identify in accordance with this part 4 and is therefore not received by the obligee.

§48-14-414. Sending amounts withheld to division; notice.

A source of income is liable to an obligee, including the State of West Virginia or the Department of Health and Human Resources where appropriate, for any amount which the source of income fails to withhold from income due an obligor following receipt by such source of income of proper notice under section 14-407: Provided, That a source of income shall not be required to vary the normal pay and disbursement cycles in order to comply with the provisions of this section.

§48-14-415. Misdemeanor offense of concealing payment of income to obligor; penalty.

Any source of income who knowingly and willfully conceals the fact that the source of income is paying income to an obligor, with the intent to avoid withholding from the obligor's income of amounts payable as support, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $100.

§48-14-416. Request to source of income for information regarding payment of income.

When the Bureau for Child Support enforcement makes a written request to a source of income to provide information as to whether the source of income has paid income to a specific obligor, within the preceding sixty-day period, the source of income shall, within fourteen days thereafter, respond to such request, itemizing all such income, if any, paid to the obligor during such sixty-day period. A source of income shall not be liable, civilly or criminally, for providing such information in good faith.

§48-14-417. Priority of support collection over other legal process.

Support collection under the provisions of this section shall have priority over any other legal process under the laws of this state against the same income, and shall be effective despite any exemption that might otherwise be applicable to the same income.

§48-14-418. Misdemeanor offense for source of income's action against an obligor; penalty.

Any source of income who discharges from employment, refuses to employ, or takes disciplinary action against any obligor subject to income withholding required by this part 4 because of the existence of such withholding and the obligations or additional obligations which it imposes on the source of income, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000.

§48-14-419.

Repealed.

Acts, 2005 Reg. Sess., Ch. 39.

PART 5. ENFORCEMENT OF SUPPORT ORDERS

BY CONTEMPT PROCEEDINGS.

§48-14-501. Commencement of contempt action.

In addition to or in lieu of the other remedies provided by this article for the enforcement of support orders, the Bureau for Child Support enforcement may commence a civil or criminal contempt proceeding in accordance with the provisions of section 1-304 against an obligor who is alleged to have willfully failed or refused to comply with the order of a court of competent jurisdiction requiring the payment of support. Such proceeding shall be instituted by filing a petition for an order to show cause why the obligor should not be held in contempt.

§48-14-502. Willful failure or refusal to comply with order to pay support.

If the court finds that the obligor willfully failed or refused to comply with an order requiring the payment of support, the court shall find the obligor in contempt and may do one or more of the following:

(1) Require additional terms and conditions consistent with the court's support order.

(2) After notice to both parties and a hearing, if requested by a party, on any proposed modification of the order, modify the order in the same manner and under the same requirements as an order requiring the payment of support may be modified under the provisions of Part 5-701, et seq. A modification sought by an obligor, if otherwise justified, shall not be denied solely because the obligor is found to be in contempt.

(3) Order that all accrued support and interest thereon be paid under such terms and conditions as the court, in its discretion, may deem proper.

(4) Order the contemnor to pay support in accordance with a plan approved by the Bureau for Child Support Enforcement or to participate in such work activities as the court deems appropriate.

(5) If appropriate under the provisions of section 1-304:

(A) Commit the contemnor to the regional jail; or

(B) Commit the contemnor to the regional jail with the privilege of leaving the jail, during such hours as the court determines and under such supervision as the court considers necessary, for the purpose of allowing the contemnor to go to and return from his or her place of employment.

§48-14-503. Limitation on length of commitment.

(a) In a commitment under subdivision (5) of section 14-502 the court shall confine the contemnor for an indeterminate period not to exceed six months or until such time as the contemnor has purged himself or herself, whichever shall first occur.

(b) An obligor committed under subdivision (5), section five hundred two of this article shall be released by court order if the court has reasonable cause to believe that the obligor will comply with the court's order.

§48-14-504. Violation of work release conditions.

If an obligor is committed to jail under the provisions of paragraph (B), subdivision (5), of section 14-502 and violates the conditions of the court, the court may commit the person to the county or regional jail without the privilege provided under said paragraph (B) for the balance of the period of commitment imposed by the court.

§48-14-505. Misdemeanor offense of escape from custody; penalty.

If a person is committed to jail under the provisions of paragraph (B), subdivision (5), of section 14-502 and willfully fails to return to the place of confinement within the time prescribed, such person shall be considered to have escaped from custody and shall be guilty of a misdemeanor, punishable by imprisonment for not more than one year.

PART 6. HIGH-VOLUME AUTOMATED ADMINISTRATIVE ENFORCEMENT

OF CHILD SUPPORT IN INTERSTATE CASES.

§48-14-601. Definitions.

As used in this chapter:

(1) "High-volume automated administrative enforcement" in interstate cases means at the request of another state, the identification by a state, through automated data matches with financial institutions and other entities where assets may be found, of assets owned by persons who owe child support in other states, and the seizure of such assets by the state, through levy or other appropriate processes.

(2) "Assisting state" means a state which matches the requesting state's delinquent obligors against the databases of financial institutions and other entities within its own state boundaries where assets may be found, and, if appropriate, seizes assets on behalf of the requesting state.

(3) "Requesting state" means a state transmitting a request for administrative enforcement to another state.

(4) "State" means a state of the United States, or the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term "state" shall also include Indian tribes and a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support which are substantially similar to the procedures under this chapter or under the uniform reciprocal enforcement of support act, the revised uniform reciprocal enforcement of support act, or the uniform interstate family support act.

§48-14-602. Use of automated administrative enforcement.

The Bureau for Child Support enforcement shall use automated administrative enforcement to the same extent as used for intrastate cases in response to a request made by another state to enforce support orders, and shall promptly report the results of such enforcement procedures to the requesting state.

§48-14-603. Enforcing support orders through automated administrative enforcement.

(a) The Bureau for Child Support enforcement may, by electronic or other means, transmit to, or receive from, another state a request for assistance in enforcing support orders through automated administrative enforcement. Such request shall include:

(1) Information as will enable the assisting state to compare the information about the cases to the information in the databases of the state;

(2) All supporting documentation necessary under the laws of this state to support an attachment of the asset or assets, should such assets be located; and

(3) Said transmittal shall constitute a certification by the requesting state:

(A) Of the amount of past-due support owed; and

(B) That the requesting state has complied with all procedural due process requirements applicable to each case.

(b) A requesting state may transmit to an assisting state either:

(1) A request to locate and seize assets; or

(2) A request to seize an asset already identified by the requesting state.

§48-14-701. Posting of bonds or giving security to guarantee payment of overdue support.

An obligor with a pattern of overdue support may be required by order of the court to post bond, give security or some other guarantee to secure payment of overdue support. The guarantee may include an order requiring that stocks, bonds or other assets of the obligor be held in escrow by the court until the obligor pays the support.

§48-14-801. When monthly payments may be increased to satisfy overdue support.

(a) For the purpose of securing overdue support, the Bureau for Child Support Enforcement has the authority to increase the monthly support payments of an obligor by as much as $100 per month to satisfy the arrearage when:

(1) An obligor has failed to make payments as required by a support order and arrears are equal to an amount of support payable for six months if the order requires support to be paid in monthly installments; or

(2) An obligor has failed to make payments as required by a support order and arrears are equal to an amount of support payable for twenty-seven weeks if the order requires support to be paid in weekly or biweekly installments.

(b) For the purpose of securing overdue support, the Bureau for Child Support Enforcement has the authority to increase the monthly support payments of an obligor by as much as $200 per month to satisfy the arrearage when:

(1) An obligor's gross income equals or exceeds $65,000; and

(2) An obligor has failed to make payments as required by a support order and arrears are equal to an amount of support payable for twelve months if the order requires support to be paid in monthly installments; or

(3) An obligor has failed to make payments as required by a support order and arrears are equal to an amount of support payable for fifty-four weeks if the order requires support to be paid in weekly or biweekly installments.

(c) An increase in monthly support under this section will be in addition to any amounts withheld from income pursuant to this article.

(d) This increase in monthly support may be enforced through the withholding process.

PART 8. INCREASE IN PAYMENTS TO SATISFY ARREARAGE.

§48-14-802. Notice of increase in monthly payments to satisfy overdue support.

Notice of the increase shall be sent to the obligor at the time such increase is implemented. If the obligor disagrees with the increase in payments, he or she may file, within thirty days of the date of the notice, a motion with the court for a determination of whether there should be an increase in monthly payments and the amount of that increase, if any.

§48-14-803. Application to support orders of courts of competent jurisdiction.

The provisions of sections 14-801 and 14-802 apply to support orders issued by a court of competent jurisdiction of this or any other state.

PART 9. PROCEDURES BEFORE THE

BUREAU FOR CHILD SUPPORT ENFORCEMENT.

§48-14-901. Procedure when person contests action proposed to be taken against him

(a) In any case arising under the provisions of this article wherein a notice is served upon a person requiring him or her to notify the Bureau for Child Support enforcement if the person is contesting action proposed to be taken against him

(1) If the person so notified does not submit written reasons for contesting the action within the time set to contest the proposed action, and does not request a meeting with the Bureau for Child Support enforcement, then the Bureau for Child Support enforcement shall proceed with the proposed action; or

(2) If the person so notified does submit written reasons for contesting the action within the time set to contest the proposed action, and requests a meeting with the Bureau for Child Support enforcement, then the Bureau for Child Support enforcement shall schedule a meeting at the earliest practicable time with the person and attempt to resolve the matter informally.

(b) If the matter cannot be resolved informally, the Bureau for Child Support enforcement shall make a determination as to whether the proposed action is proper and should actually occur.

(c) The determination of the Bureau for Child Support enforcement shall be made within forty-five days from the date of the notice which first apprised the person of the proposed action. Upon making the determination, the Bureau for Child Support enforcement shall inform the parties as to whether or not the proposed action will occur, and, if it is to occur, of the date on which it is to begin, and in the case of withholding from income, shall furnish the obligor with the information contained in any notice given to an employer under the provisions of section 14-407 with respect to such withholding.

PART 10. OFFENSES.

§48-14-1001. Misrepresentation of delinquent support payments; penalty.

If any person knowingly and willfully makes any false, fictitious or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, thus misrepresenting the amount of child support actually due and owing, and if such statement, representation, writing or document causes bureau for support enforcement attorney in reliance thereon to institute an action or proceeding or otherwise commence to enforce a support obligation under this article or under section 1-305, such person is guilty of false swearing and, upon conviction thereof, shall be punished as provided by law for such offense.

ARTICLE 15. ENFORCEMENT OF SUPPORT ORDER THROUGH ACTION AGAINST LICENSE.

PART 1. DEFINITIONS.

§48-15-101. Applicability of definitions.

For purposes of this article, the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context.

§48-15-102. Action against a license defined.

"Action against a license" means action taken by the Bureau for Child Support enforcement to cause the denial, nonrenewal, suspension or restriction of a license applied for or held by: (A) A support obligor owing overdue support; or (B) a person who has failed to comply with subpoenas or warrants relating to paternity or child support proceedings.

§48-15-103. Application defined.

"Application" means a request to have a license issued, a request for a renewal of an existing license or a request to change the status of an existing license.

§48-15-104. License defined.

"License" means a license, permit, certificate of registration, registration, credential, stamp or other indicia that evidences a personal privilege entitling a person to do an act that he or she would otherwise not be entitled to do, or evidences a special privilege to pursue a profession, trade, occupation, business or vocation.

Part 2. Action Against License.

§48-15-201. Licenses subject to action.

The following licenses are subject to an action against a license as provided for in this article:

(1) A business registration certificate issued under article twelve, chapter eleven of this code authorizing a person to transact business in the State of West Virginia;

(2) A permit or license issued under chapter seventeen-b of this code authorizing a person to drive a motor vehicle;

(3) A commercial driver's license issued under chapter seventeen-e of this code authorizing a person to drive a class of commercial vehicle;

(4) A permit, license or stamp issued under article two or two-b, chapter twenty of this code regulating a person's activities for wildlife management purposes, authorizing a person to serve as an outfitter or guide or authorizing a person to hunt or fish;

(5) A license or registration issued under chapter thirty of this code authorizing a person to practice or engage in a profession or occupation;

(6) A license issued under article twelve, chapter forty-seven of this code authorizing a person to transact business as a real estate broker or real estate salesperson;

(7) A license or certification issued under article fourteen, chapter thirty-seven of this code authorizing a person to transact business as a real estate appraiser;

(8) A license issued under article twelve, chapter thirty-three of this code authorizing a person to transact insurance business as an agent, broker or solicitor;

(9) A registration made under article two, chapter thirty-two of this code authorizing a person to transact securities business as a broker-dealer, agent or investment advisor;

(10) A license issued under article twenty-two, chapter twenty-nine of this code authorizing a person to transact business as a lottery sales agent;

(11) A license issued under article thirty-two or thirty-four, chapter sixteen of this code authorizing persons to pursue a trade or vocation in asbestos abatement or radon mitigation;

(12) A license issued under article eleven, chapter twenty-one of this code authorizing a person to act as a contractor;

(13) A license issued under article two-c, chapter nineteen of this code authorizing a person to act as an auctioneer; and

(14) A license, permit or certificate issued under chapter nineteen of this code authorizing a person to sell, market or distribute agricultural products or livestock.

§48-15-202. Persons subject to notice of action against license.

The Bureau for Child Support enforcement shall send a written notice of an action against a license to a person who:

(1) Owes overdue child support, if the child support arrearage equals or exceeds the amount of child support payable for six months;

(2) Has failed for a period of six months to pay medical support ordered under article 12-101, et seq., of this code; or

(3) Has failed, after appropriate notice, to comply with subpoenas or warrants relating to paternity or child support proceedings.

§48-15-203. Exhaustion of other statutory enforcement methods.

In the case of overdue child support or noncompliance with a medical support order, notice of an action against a license shall be served only if other statutory enforcement methods to collect the support arrearage have been exhausted or are not available.

§48-15-204. Service of notice of action against a license.

The bureau shall send a notice of action against a license by regular mail and by certified mail, return receipt requested, to the person's last-known address or place of business or employment. Simultaneous certified and regular mailing of the written notice shall constitute effective service unless the United States Postal Service returns the mail to the Bureau for Child Support enforcement within the thirty-day response period marked "moved, unable to forward," "addressee not known," "no such number/street," "insufficient address," or "forwarding order expired." If the certified mail is returned for any other reason without the return of the regular mail, the regular mail service shall constitute effective service. If the mail is addressed to the person at his or her place of business or employment, with postal instructions to deliver to addressee only, service will be deemed effective only if the signature on the return receipt appears to be that of the person. Acceptance of the certified mail notice signed by the person, the person's attorney, or a competent member of the person's household above the age of sixteen shall be deemed effective service.

PART 2. ACTION AGAINST LICENSE.

§48-15-205. Form of notice of action against a license.

The notice shall be substantially in the following form:

NOTICE OF ACTION AGAINST LICENSE

Name and address:

Date:

Case No:

Social Security No:

Family Court of ________ County, West Virginia

Section 1.

G The Bureau for Child Support Enforcement has determined that you have failed to comply with an order to pay child support and that the amount you owe equals six months' child support or more. The amount you owe is calculated to be $____________ as of the ______ day of ____________, _________.

G The Bureau for Child Support Enforcement has determined that you have failed to comply with a medical support order for a period of six months. The amount you owe is calculated to be $___________ as of the _______ day of ______________, __________.

G The Bureau for Child Support Enforcement has determined that you have failed to comply with a medical support order requiring you to obtain health insurance for your child or children.

G The Bureau for Child Support Enforcement has determined that you have failed to comply with a subpoena or warrant relating to a paternity or child support proceeding.

Section 2.

Under West Virginia law, your failure to comply as described in Section 1 may result in an action against certain licenses issued to you by the State of West Virginia. Action may be taken against a driver's license, a recreational license such as a hunting and fishing license and a professional or occupational license necessary for you to work. An application for a license may be denied. A renewal of a license may be refused. A license which you currently hold may be suspended or restricted in its use.

The Bureau for Child Support Enforcement has determined that you are a current license holder, have applied for or are likely to apply for the following license or licenses:

   

To avoid an action against your licenses, check which of the following actions you will take:

G I want to pay in full the overdue amount I owe as child support. I am enclosing a check or money order in the amount of $ ___________.

G I want to pay in full the amount I owe as medical support. I am enclosing a check or money order in the amount of $ ____________.

G I am requesting a meeting with a representative of the Bureau for Child Support Enforcement to arrange a payment plan that will allow me to make my current payments as they become due and to pay on the arrearage I owe or to otherwise bring me into compliance with current support orders.

G I am requesting a hearing before the family judge to contest an action against my licenses. Please serve me with any petition filed and provide me with notice of the time and place of the hearing.

Signed _____________________________ Date: _____________

Section 3.

You must check the appropriate box or boxes in Section 2, sign your name and mail this form to the Bureau for Child Support Enforcement before the______ day of ___________, _______. Otherwise, the Bureau for Child Support Enforcement may begin an action against your licenses in the Family Court without further notice to you. Mail this form to the following address:

§48-15-206. Notice of consequences of failure to comply.

The notice shall advise the person that further failure to comply may result in an action against licenses held by the person, and that any pending application for a license may be denied, renewal of a license may be refused, or an existing license may be suspended or restricted unless, within thirty days of the date of the notice, the person pays the full amount of the child support arrearage or the medical support arrearage, makes a request for a meeting with a representative of the Bureau for Child Support enforcement to arrange a payment plan or to otherwise arrange compliance with existing support orders, or makes a request for a court hearing to the Bureau for Child Support enforcement. An action against a license shall be terminated if the person pays the full amount of the child support arrearage or medical support arrearage, or provides proof that health insurance for the child has been obtained as required by a medical support order or enters into a written plan with the Bureau for Child Support enforcement for the payment of current payments and payment on the arrearage.

§48-15-207. Failure to act in response to notice; entry of order.

If the person fails to take one of the actions described in section 15-206 within thirty days of the date of the notice and there is proof that service on the person was effective, the Bureau for Child Support enforcement shall file a certification with the court setting forth the person's noncompliance with the support order or failure to comply with a subpoena or warrant and the person's failure to respond to the written notice of the potential action against his or her license. If the court is satisfied that service of the notice on the person was effective as set forth in this section, it shall, without need for further due process or hearing, enter an order suspending or restricting any licenses held by the person. Upon the entry of the order, the Bureau for Child Support enforcement shall forward a copy to the person and to any appropriate agencies responsible for the issuance of a license.

§48-15-208. Request and petition for hearing.

If the person requests a hearing, the Bureau for Child Support enforcement shall file a petition for a hearing before the family court. The hearing shall occur within forty-two days of the receipt of the person's request. If, prior to the hearing, the person pays the full amount of the child support arrearage or medical support arrearage or provides health insurance as ordered, the action against a license shall be terminated. No action against a license shall be initiated if the Bureau for Child Support enforcement has received notice that the person has pending a motion to modify the child support order if that motion was filed prior to the date that the notice of the action against the license was sent by the Bureau for Child Support enforcement. The court shall consider the Bureau for Child Support enforcement's petition to deny, refuse to renew, suspend or restrict a license in accordance with section 15-209.

§48-15-209. Hearing on denial, nonrenewal, suspension or restriction of license.

(a) The court shall order a licensing authority to deny, refuse to renew, suspend or restrict a license if it finds that:

(1) All appropriate enforcement methods have been exhausted or are not available;

(2) The person is the holder of a license or has an application pending for a license;

(3) The requisite amount of child support or medical support arrearage exists or health insurance for the child has not been provided as ordered, or the person has failed to comply with a subpoena or warrant relating to a paternity or child support proceeding;

(4) No motion to modify the child support order, filed prior to the date that the notice was sent by the Bureau for Child Support enforcement, is pending before the court; and

(5) There is no equitable reason, such as involuntary unemployment, disability, or compliance with a court-ordered plan for the periodic payment of the child support arrearage amount, for the person's noncompliance with the child support order.

(b) If the court is satisfied that the conditions described in subsection (a) of this section exist, it shall first consider suspending or restricting a driver's license prior to professional license. If the person fails to appear at the hearing after being properly served with notice, the court shall order the suspension of all licenses held by the person.

(c) If the court finds that a license suspension will result in a significant hardship to the person, to the person's legal dependents under eighteen years of age living in the person's household, to the person's employees, or to persons, businesses or entities to whom the person provides goods or services, the court may allow the person to pay a percentage of the past-due child support amount as an initial payment, and establish a payment schedule to satisfy the remainder of the arrearage within one year, and require that the person comply with any current child support obligation. If the person agrees to this arrangement, no suspension or restriction of any licenses shall be ordered. Compliance with the payment agreement shall be monitored by the Bureau for Child Support enforcement.

(d) If a person has good cause for not complying with the payment agreement within the time permitted, the person shall immediately file a motion with the court and the Bureau for Child Support enforcement requesting an extension of the payment plan. The court may extend the payment plan if it is satisfied that the person has made a good faith effort to comply with the plan and is unable to satisfy the full amount of past-due support within the time permitted due to circumstances beyond the person's control. If the person fails to comply with the court-ordered payment schedule, the court shall, upon receipt of a certification of noncompliance from the Bureau for Child Support enforcement, and without further hearing, order the immediate suspension or restriction of all licenses held by the person.

PART 3. ENFORCEMENT OF ORDER

BY LICENSING AUTHORITY.

§48-15-301. Copy of order provided to licensing authority.

(a) The Bureau for Child Support enforcement shall provide the licensing authority with a copy of the order requiring the denial, nonrenewal, suspension or restriction of a license.

(b) Upon receipt of an order requiring the suspension or restriction of a license for nonpayment of child support, the licensing authority shall immediately notify the applicant or licensee of the effective date of the denial, nonrenewal, suspension or limitation, which shall be twenty days after the date of the notice, direct any licensee to refrain from engaging in the activity associated with the license, surrender any license as required by law, and inform the applicant or licensee that the license shall not be approved, renewed or reinstated until the court or Bureau for Child Support enforcement certifies compliance with court orders for the payment of current child support and arrearage.

(c) The Bureau for Child Support enforcement, in association with the affected licensing authorities, may develop electronic or magnetic tape data transfers to notify licensing authorities of denials, nonrenewals, suspensions and reinstatements.

(d) No liability shall be imposed on a licensing authority for suspending or restricting a license if the action is in response to a court order issued in accordance with this article.

(e) Licensing authorities shall not have jurisdiction to modify, remand, reverse, vacate or stay a court order to deny, not renew, suspend or restrict a license for nonpayment of child support.

§48-15-302. Denial, nonrenewal, suspension or restriction continues until further order or issuance of certificate of compliance.

The denial, nonrenewal, suspension or restriction of a license ordered by the court shall continue until the Bureau for Child Support enforcement files with the licensing authority either a court order restoring the license or a Bureau for Child Support enforcement certification attesting to compliance with court orders for the payment of current child support and arrearage.

§48-15-303. License applicant to certify information regarding child support obligation.

(a) Each licensing authority shall require license applicants to certify on the license application form, under penalty of false swearing, that the applicant does not have a child support obligation, the applicant does have such an obligation but any arrearage amount does not equal or exceed the amount of child support payable for six months, or the applicant is not the subject of a child-support related subpoena or warrant. The application form shall state that making a false statement may subject the license holder to disciplinary action including, but not limited to, immediate revocation or suspension of the license.

(b) A license shall not be granted to any person who applies for a license if there is an arrearage equal to or exceeding the amount of child support payable for six months or if it is determined that the applicant has failed to comply with a warrant or subpoena in a paternity or child support proceeding.

§48-15-304. Procedure where license to practice law may be subject to denial, suspension or restriction.

If a person who has been admitted to the practice of law in this state by order of the Supreme Court of Appeals is determined to be in default under a support order or has failed to comply with a subpoena or warrant in a paternity or child support proceeding, such that his or her other licenses are subject to suspension or restriction under this article, the Bureau for Child Support enforcement may send a notice listing the name and social security number or other identification number to the lawyer disciplinary board established by the Supreme Court of Appeals. The Legislature hereby requests the Supreme Court of Appeals to promptly adopt rules pursuant to its Constitutional authority to govern the practice of law that would include as attorney misconduct for which an attorney may be disciplined, situations in which a person licensed to practice law in West Virginia has been determined to be in default under a support order or has failed to comply with a subpoena or warrant in a paternity or child support proceeding.

PART 4. MISCELLANEOUS PROVISIONS.

§48-15-401. Application of article.

The provisions of this article apply to all orders issued before or after the enactment of this article. All child support, medical support and health insurance provisions in existence on or before the effective date of this article shall be included in determining whether a case is eligible for enforcement. This article applies to all child support obligations ordered by any state, territory or district of the United States that are being enforced by the Bureau for Child Support enforcement, that are payable directly to the obligee, or have been registered in this state in accordance with the uniform interstate family support act.

§48-15-402. Effect of determination as to authority of federal government to require denials, suspensions or restrictions of licenses.

The provisions of this article have been enacted to conform to the mandates of the federal "Personal Responsibility and Work Opportunity Reconciliation Act of 1996." If a court of competent jurisdiction should determine, or if it is otherwise determined that the federal government lacked authority to mandate the license denials, nonrenewals, suspensions or restrictions contemplated by this article, then the provisions of this article shall be null and void and of no force and effect.

ARTICLE 16. UNIFORM INTERSTATE FAMILY SUPPORT ACT.

PART I. GENERAL PROVISIONS.

§48-16-101. Short title.

This article may be cited as the uniform interstate family support act.

PART I. GENERAL PROVISIONS.

§48-16-102. Definitions.

As used in this article:

(1) "Child" means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual's parent or who is or is alleged to be the beneficiary of a support order directed to the parent.

(2) "Child support order" means a support order for a child, including a child who has attained the age of majority under the law of the issuing state or foreign country.

(3) "Convention" means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.

(4) "Duty of support" means an obligation imposed or imposable by law to provide support for a child, spouse or former spouse, including an unsatisfied obligation to provide support.

(5) "Foreign country" means a country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and:

(A) Which has been declared under the law of the United States to be a foreign reciprocating country;

(B) Which has established a reciprocal arrangement for child support with this state;

(C) Which has enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under this article; or

(D) In which the convention is in force with respect to the United States.

(6) "Foreign support order" means a support order of a foreign tribunal.

(7) "Foreign tribunal" means a court, administrative agency or quasi-judicial entity of a foreign country which is authorized to establish, enforce or modify support orders or to determine parentage of a child. The term includes a competent authority under the convention.

(8) "Home state" means the state or foreign country in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.

(9) "Income" includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this state.

(10) "Income withholding order" means an order or other legal process directed to an obligor's source of income as defined by section 1-240 [§48-1-240] of this chapter to withhold support from the income of the obligor.

(11) "Initiating tribunal" means the tribunal of a state or foreign country from which a petition or comparable pleading is forwarded or in which a petition or comparable pleading is filed for forwarding to another state or foreign country.

(12) "Issuing foreign country" means the foreign country in which a tribunal issues a support order or a judgment determining parentage of a child.

(13) "Issuing state" means the state in which a tribunal issues a support order or a judgment determining parentage of a child.(14) "Issuing tribunal" means the tribunal of a state or foreign country that issues a support order or a judgment determining parentage of a child.

(15) "Law" includes decisional and statutory law and rules and regulations having the force of law.

(16) "Obligee" means:

(A) An individual to whom a duty of support is or is alleged to be owed or in whose favor a support order or a judgment determining parentage of a child has been issued;

(B) A foreign country, state or political subdivision of a state to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee in place of child support;

(C) An individual seeking a judgment determining parentage of the individual's child; or

(D) A person that is a creditor in a proceeding under part VII.

(17) "Obligor" means an individual or the estate of a decedent that:

(A) Owes or is alleged to owe a duty of support;

(B) Is alleged but has not been adjudicated to be a parent of a child;

(C) Is liable under a support order; or

(D) Is a debtor in a proceeding under part VII.

(18) "Outside this state" means a location in another state or a country other than the United States, whether or not the country is a foreign country.

(19) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity.

(20) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(21) "Register" means to record in a tribunal of this state a support order or judgment determining parentage of a child issued in another state or a foreign country.

(22) "Registering tribunal" means a tribunal in which a support order or judgment determining parentage of a child is registered.

(23) "Responding state" means a state in which a petition or comparable pleading for support or to determine parentage of a child is filed or to which a petition or comparable pleading is forwarded for filing from another state or a foreign country.

(24) "Responding tribunal" means the authorized tribunal in a responding state or foreign country.

(25) "Spousal support order" means a support order for a spouse or former spouse of the obligor.

(26) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian nation or tribe.

(27) "Support enforcement agency" means a public official or governmental entity, or private agency authorized to:

(A) Seek enforcement of support orders or laws relating to the duty of support;

(B) Seek establishment or modification of child support;

(C) Request determination of parentage of a child;

(D) Attempt to locate obligors or their assets; or

(E) Request determination of the controlling child support order.

(28) "Support order" means a judgment, decree, order, decision or directive, whether temporary, final or subject to modification, issued in a state or foreign country for the benefit of a child, a spouse or a former spouse which provides for monetary support, health care, arrearages, retroactive support or reimbursement for financial assistance provided to an individual obligee in place of child support. The term may include related costs and fees, interest, income withholding, automatic adjustment, reasonable attorney's fees and other relief.

(29) "Tribunal" means a court, administrative agency or quasi-judicial entity authorized to establish, enforce or modify support orders or to determine parentage of a child.

§48-16-103. State tribunal and support enforcement agency.

(a) The family court is the tribunal of this state.

(b) The Bureau for Child Support Enforcement is the support enforcement agency of this state.

§48-16-104. Remedies cumulative.

(a) Remedies provided by this article are cumulative and do not affect the availability of remedies under other law or the recognition of a support order on the basis of comity.

(b) This article does not:

(1) Provide the exclusive method of establishing or enforcing a support order under the law of this state; or

(2) Grant a tribunal of this state jurisdiction to render judgment or issue an order relating to child custody or visitation in a proceeding under this article.

§48-16-105. Application of article to resident of foreign country and foreign support proceeding.

(a) A tribunal of this state shall apply parts I through VI [§48-16-101 et seq. through §48-16-601 et seq.] and, as applicable, part VII [§48-16-701 et seq.], to a support proceeding involving:

(1) A foreign support order;

(2) A foreign tribunal; or

(3) An obligee, obligor, or child residing in a foreign country.

(b) A tribunal of this state that is requested to recognize and enforce a support order on the basis of comity may apply the procedural and substantive provisions of parts I through VI.

(c) Part VII [§48-16-701 et seq.] applies only to a support proceeding under the convention. In such a proceeding, if a provision of part VII [§48-16-701 et seq.] is inconsistent with parts 1 through VI [§48-16-101 et seq. through §48-16-601 et seq.], part VII [§48-16-701 et seq.] controls.

PART II. JURISDICTION.

§48-16-201. Bases for jurisdiction over nonresident.

(a) In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:

(1) The individual is personally served with notice within this state;

(2) The individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;

(3) The individual resided with the child in this state;

(4) The individual resided in this state and provided prenatal expenses or support for the child;

(5) The child resides in this state as a result of the acts or directives of the individual;

(6) The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;

(7) The individual has committed a tortious act by failing to support a child resident in this state; or

(8) There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

(b) The bases of personal jurisdiction set forth in subsection (a) of this section or in any other law of this state may not be used to acquire personal jurisdiction for a tribunal of this state to modify a child support order of another state unless the requirements of section 611 [§48-16-611] are met or in the case of a foreign support order, unless the requirements of section 615 [§48-16-615] are met.

§48-16-202. Duration of personal jurisdiction.

Personal jurisdiction acquired by a tribunal of this state in a proceeding under this article or other law of this state relating to a support order continues as long as a tribunal of this state has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by sections 205, 206 and 211.

§48-16-203. Initiating and responding tribunal of state.

Under this article, a tribunal of this state may serve as an initiating tribunal to forward proceedings to a tribunal of another state and as a responding tribunal for proceedings initiated in another state or a foreign country.

§48-16-204. Simultaneous proceedings.

(a) A tribunal of this state may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a petition or comparable pleading is filed in another state or a foreign country only if:

(1) The petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state or the foreign country for filing a responsive pleading challenging the exercise of jurisdiction by the other state or the foreign country:

(2) The contesting party timely challenges the exercise of jurisdiction in the other state or foreign country; and

(3) If relevant, this state is the home state of the child.

(b) A tribunal of this state may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state or a foreign country if:

(1) The petition or comparable pleading in the other state or foreign country is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state;

(2) The contesting party timely challenges the exercise of jurisdiction in this state; and

(3) If relevant, the other state or foreign country is the home state of the child.

§48-16-205. Continuing, exclusive jurisdiction to modify child support order.

(a) A tribunal of this state that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order and:

(1) At the time of the filing of a request for modification this state is the residence of the obligor, the individual obligee or the child for whose benefit the support order is issued; or

(2) Even if this state is not the residence of the obligor, the individual obligee or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.

(b) A tribunal of this state that has issued a child support order consistent with the law of this state may not exercise continuing, exclusive jurisdiction to modify the order if:

(1) All of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or

(2) Its order is not the controlling order.

(c) If a tribunal of another state has issued a child support order pursuant to the Uniform Interstate Family Support Act or a law substantially similar to that article which modifies a child support order of a tribunal of this state, tribunals of this state shall recognize the continuing, exclusive jurisdiction of the tribunal of the other state.

(d) A tribunal of this state that lacks continuing, exclusive jurisdiction to modify a child support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state.

(e) A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.

§48-16-206. Continuing jurisdiction to enforce child support order.

(a) A tribunal of this state that has issued a child support order consistent with the law of this state may serve as an initiating tribunal to request a tribunal of another state to enforce:

(1) The order if the order is the controlling order and has not been modified by a tribunal of another state that assumed jurisdiction pursuant to the Uniform Interstate Family Support Act; or

(2) A money judgment for arrears of support and interest on the order accrued before a determination that an order of a tribunal of another state is the controlling order.

(b) A tribunal of this state having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order.

§48-16-207. Determination of controlling child support order.

(a) If a proceeding is brought under this article and only one tribunal has issued a child support order, the order of that tribunal controls and must be so recognized.

(b) If a proceeding is brought under this article, and two or more child support orders have been issued by tribunals of this state, another state or a foreign country with regard to the same obligor and same child, a tribunal of this state having personal jurisdiction over both the obligor and individual obligee shall apply the following rules and by order shall determine which order controls and must be recognized.

(1) If only one of the tribunals would have continuing, exclusive jurisdiction under this article, the order of that tribunal controls and must be so recognized.

(2) If more than one of the tribunals would have continuing, exclusive jurisdiction under this article:

(A) An order issued by a tribunal in the current home state of the child controls; or

(B) If an order has not been issued in the current home state of the child, the order most recently issued controls.

(3) If none of the tribunals would have continuing, exclusive jurisdiction under this article, the tribunal of this state shall issue a child support order which controls.

(c) If two or more child support orders have been issued for the same obligor and same child, upon request of a party who is an individual or that is a support enforcement agency, a tribunal of this state having personal jurisdiction over both the obligor and the obligee who is an individual shall determine which order controls under subsection (b) of this section. The request may be filed with a registration for enforcement or registration for modification pursuant to part VI or [§48-16-601 et seq.] may be filed as a separate proceeding.

(d) A request to determine which is the controlling order must be accompanied by a copy of every child support order in effect and the applicable record of payments. The requesting party shall give notice of the request to each party whose rights may be affected by the determination.

(e) The tribunal that issued the controlling order under subsection (a), (b) or (c) of this section has continuing jurisdiction to the extent provided in section 16-205 [§48-16-205] or 16-206 [§48-16-206].

(f) A tribunal of this state that determines by order which is the controlling order under subsection (b) (1) or (2) or (c) or that issues a new controlling order under subdivision (3) of subsection (b) shall state in that order:

(1) The basis upon which the tribunal made its determination;

(2) The amount of prospective support, if any; and

(3) The total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided by section 209 [§48-16-209].

(g) Within thirty days after issuance of an order determining which is the controlling order, the party obtaining that order shall file a certified copy of it in each tribunal that issued or registered an earlier order of child support. A party or support enforcement agency obtaining the order that fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the controlling order.

(h) An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made pursuant to this section must be recognized in proceedings under this article.

§48-16-208. Child support orders for two or more obligees.

In responding to registrations or petitions for enforcement of two or more child support orders in effect at the same time with regard to the same obligor and different individual obligees, at least one of which was issued by a tribunal of another state or a foreign country, a tribunal of this state shall enforce those orders in the same manner as if the orders had been issued by a tribunal of this state.

§48-16-209. Credit for payments.

A tribunal of this state shall credit amounts collected for a particular period pursuant to any child support order against the amounts owed for the same period under any other child support order for support of the same child issued by a tribunal of this state, another state, or a foreign country.

§48-16-210. Application of article to nonresident subject to personal jurisdiction.

A tribunal of this state exercising personal jurisdiction over a nonresident in a proceeding under this article, under other law of this state relating to a support order, or recognizing a foreign support order may receive evidence from outside this state pursuant to section 316 [§48-16-316], communication with a tribunal outside this state pursuant to section 317 [§48-16-317], and obtain discovery through a tribunal outside this state pursuant to section 318 [§48-16-318]. In all other respects, parts III through [§§48-3-101 et seq. through §§ 48-6-101 et seq.] VI do not apply and the tribunal shall apply the procedural and substantive law of this state.

§48-16-211. Continuing, exclusive jurisdiction to modify spousal support order.

(a) A tribunal of this state issuing a spousal support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation.

(b) A tribunal of this state may not modify a spousal support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.

(c) A tribunal of this state that has continuing, exclusive jurisdiction over a spousal support order may serve as:

(1) An initiating tribunal to request a tribunal of another state to enforce the spousal support order issued in this state; or

(2) A responding tribunal to enforce or modify its own spousal support order.

PART III. CIVIL PROCEDURES OF GENERAL APPLICATION.

§48-16-301. Proceeding under article.

(a) Except as otherwise provided in this article, this part applies to all proceedings under this article.

(b) An individual petitioner or a support enforcement agency may initiate a proceeding authorized under this article by filing a petition in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or a comparable pleading directly in a tribunal of another state or a foreign country which has or can obtain personal jurisdiction over the respondent.

§48-16-302. Proceeding by minor parent.

A minor parent, or a guardian or other legal representative of a minor parent, may maintain a proceeding on behalf of or for the benefit of the minor's child.

§48-16-303. Application of law of state.

Except as otherwise provided in this article, a responding tribunal of this state shall:

(1) Apply the procedural and substantive law generally applicable to similar proceedings originating in this state and may exercise all powers and provide all remedies available in those proceedings; and

(2) Determine the duty of support and the amount payable in accordance with the law and support guidelines of this state.

§48-16-304. Duties of initiating tribunal.

(a) Upon the filing of a petition authorized by this article, an initiating tribunal of this state shall forward the petition and its accompanying documents:

(1) To the responding tribunal or appropriate support enforcement agency in the responding state; or

(2) If the identity of the responding tribunal is unknown, to the state information agency of the responding state with a request that they be forwarded to the appropriate tribunal and that receipt be acknowledged.

(b) If requested by the responding tribunal, a tribunal of this state shall issue a certificate or other document and make findings required by the law of the responding state. If the responding tribunal is in a foreign country, upon request, the tribunal of this state shall specify the amount of support sought, convert that amount into the equivalent amount in the foreign currency under applicable official or market exchange rate as publicly reported and provide any other documents necessary to satisfy the requirements of the responding foreign tribunal.

§48-16-305. Duties and powers of responding tribunal.

(a) When a responding tribunal of this state receives a petition or comparable pleading from an initiating tribunal or directly pursuant to subsection (b), section 16-301 [§48-16-301], it shall cause the petition or pleading to be filed and notify the petitioner where and when it was filed.

(b) A responding tribunal of this state, to the extent not prohibited by other law, may do one or more of the following:

(1) Establish or enforce a support order, modify a child support order, determine the controlling child support order, or determine parentage of a child;

(2) Order an obligor to comply with a support order, specifying the amount and the manner of compliance;

(3) Order income withholding;

(4) Determine the amount of any arrearages and specify a method of payment;

(5) Enforce orders by civil or criminal contempt or both;

(6) Set aside property for satisfaction of the support order;

(7) Place liens and order execution on the obligor's property;

(8) Order an obligor to keep the tribunal informed of the obligor's current residential address, electronic mail address, telephone number, employer, address of employment and telephone number at the place of employment;

(9) Issue a capias for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the capias in any local and state computer systems for criminal warrants;

(10) Order the obligor to seek appropriate employment by specified methods;

(11) Award reasonable attorney's fees and other fees and costs; and

(12) Grant any other available remedy.

(c) A responding tribunal of this state shall include in a support order issued under this article or, in the documents accompanying the order, the calculations on which the support order is based.

(d) A responding tribunal of this state may not condition the payment of a support order issued under this article upon compliance by a party with provisions for visitation.

(e) If a responding tribunal of this state issues an order under this article, the tribunal shall send a copy of the order to the petitioner and the respondent and to the initiating tribunal, if any.

(f) If requested to enforce a support order, arrears, or judgment or modify a support order stated in a foreign currency, a responding tribunal of this state shall convert the amount stated in the foreign currency to the equivalent amount in dollars under the applicable official or market exchange rate as publicly reported.

§48-16-306. Inappropriate tribunal.

If a petition or comparable pleading is received by an inappropriate tribunal of this state, the tribunal shall forward the pleading and accompanying documents to an appropriate tribunal in this state or another state and notify the petitioner where and when the pleading was sent.

§48-16-307. Duties of support enforcement agency.

(a) A support enforcement agency of this state, upon request, shall provide services to a petitioner in a proceeding under this article.

(b) A support enforcement agency of this state that is providing services to the petitioner shall:

(1) Take all steps necessary to enable an appropriate tribunal of this state, another state or a foreign country to obtain jurisdiction over the respondent;

(2) Request an appropriate tribunal to set a date, time and place for a hearing;

(3) Make a reasonable effort to obtain all relevant information, including information as to income and property of the parties;

(4) Within two days, exclusive of Saturdays, Sundays and legal holidays, after receipt of a notice in a record from an initiating, responding or registering tribunal, send a copy of the notice to the petitioner;

(5) Within two days, exclusive of Saturdays, Sundays and legal holidays, after receipt of communication in a record from the respondent or the respondent's attorney, send a copy of the communication to the petitioner; and

(6) Notify the petitioner if jurisdiction over the respondent cannot be obtained.

(c) A support enforcement agency of this state that requests registration of a child support order in this state for enforcement or for modification shall make reasonable efforts:

(1) To ensure that the order to be registered is the controlling order; or

(2) If two or more child support orders exist and the identity of the controlling order has not been determined, to ensure that a request for such a determination is made in a tribunal having jurisdiction to do so.

(d) A support enforcement agency of this state that requests registration and enforcement of a support order, arrears or judgment stated in a foreign currency shall convert the amounts stated in the foreign currency into the equivalent amounts in dollars under the applicable official or market exchange rate as publicly reported.

(e) A support enforcement agency of this state shall request a tribunal of this state to issue a child support order and an income withholding order that redirect payment of current support, arrears, and interest if requested to do so by a support enforcement agency of another state pursuant to section 319[§48-16-319].

(f) This article does not create or negate a relationship of attorney and client or other fiduciary relationship between a support enforcement agency or the attorney for the agency and the individual being assisted by the agency.

§48-16-308.

Repealed.

Acts, 2005 Reg. Sess., Ch. 39.

§48-16-309. Private counsel.

An individual may employ private counsel to represent the individual in proceedings authorized by this article.

§48-16-310. Duties of state information agency.

(a) The Bureau for Child Support Enforcement is the state information agency under this article.

(b) The state information agency shall:

(1) Compile and maintain a current list, including addresses, of the tribunals in this state which have jurisdiction under this article and any support enforcement agencies in this state and transmit a copy to the state information agency of every other state;

(2) Maintain a register of names and addresses of tribunals and support enforcement agencies received from other states.

(3) Forward to the appropriate tribunal in the county in this state in which the obligee who is an individual or the obligor resides, or in which the obligor's property is believed to be located, all documents concerning a proceeding under this article received from another state or a foreign country; and

(4) Obtain information concerning the location of the obligor and the obligor's property within this state not exempt from execution, by such means as postal verification and federal or state locator services, examination of telephone directories, requests for the obligor's address from employers and examinations of governmental records, including, to the extent not prohibited by other law, those relating to real property, vital statistics, law enforcement, taxation, motor vehicles, driver's licenses and social security.

§48-16-311. Pleadings and accompanying documents.

(a) In a proceeding under this article, a petitioner seeking to establish a support order, to determine parentage of a child or to register and modify a support order of a tribunal of another state or a foreign country must file a petition. Unless otherwise ordered under section 16-312 [§48-16-312], the petition or accompanying documents must provide, so far as known, the name, residential address and social security numbers of the obligor and the obligee or the parent and alleged parent and the name, sex, residential address, social security number and date of birth of each child for whose benefit support is sought or whose parentage is to be determined. Unless filed at the time of registration, the petition must be accompanied by a copy of any support order known to have been issued by another tribunal. The petition may include any other information that may assist in locating or identifying the respondent.

(b) The petition must specify the relief sought. The petition and accompanying documents must conform substantially with the requirements imposed by the forms mandated by federal law for use in cases filed by a support enforcement agency.

§48-16-312. Nondisclosure of information in exceptional circumstances.

If a party alleges in an affidavit or a pleading under oath that the health, safety or liberty of a party or child would be jeopardized by disclosure of specific identifying information, that information must be sealed and may not be disclosed to the other party or the public. After a hearing in which a tribunal takes into consideration the health, safety or liberty of the party or child, the tribunal may order disclosure of information that the tribunal determines to be in the interest of justice.

§48-16-313. Costs and fees.

(a) The petitioner may not be required to pay a filing fee or other costs.

(b) If an obligee prevails, a responding tribunal of this state may assess against an obligor filing fees, reasonable attorney's fee, other costs and necessary travel and other reasonable expenses incurred by the obligee and the obligee's witnesses. The tribunal may not assess fees, costs or expenses against the obligee or the support enforcement agency of either the initiating or the responding state or foreign country, except as provided by other law. Attorney's fees may be taxed as costs and may be ordered paid directly to the attorney, who may enforce the order in the attorney's own name. Payment of support owed to the obligee has priority over fees, costs and expenses.

(c) The tribunal shall order the payment of costs and reasonable attorney's fees if it determines that a hearing was requested primarily for delay. In a proceeding under part VI [§§48-16-601 through 48-16-615], a hearing is presumed to have been requested primarily for delay if a registered support order is confirmed or enforced without change.

§48-16-314.Limited immunity of petitioner.

(a) Participation by a petitioner in a proceeding under this article before a responding tribunal, whether in person, by private attorney or through services provided by the support enforcement agency, does not confer personal jurisdiction over the petitioner in another proceeding.

(b) A petitioner is not amenable to service of civil process while physically present in this state to participate in a proceeding under this article.

(c) The immunity granted by this section does not extend to civil litigation based on acts unrelated to a proceeding under this article committed by a party while physically present in this state to participate in the proceeding.

§48-16-315. Nonparentage as defense.

A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this article.

§48-16-316. Special rules of evidence and procedure.

(a) The physical presence of a nonresident party who is an individual in a tribunal of this state is not required for the establishment, enforcement or modification of a support order or the rendition of a judgment determining parentage of a child.

(b) An affidavit, a document substantially complying with federally mandated forms or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing outside this state.

(c) A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it and is admissible to show whether payments were made.

(d) Copies of bills for testing for parentage of a child, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary and customary.

(e) Documentary evidence transmitted from outside this state to a tribunal of this state by telephone, telecopier or other electronic means that do not provide an original record may not be excluded from evidence on an objection based on the means of transmission.

(f) In a proceeding under this article, a tribunal of this state shall permit a party or witness residing outside this state to be deposed or to testify under penalty of perjury by telephone, audiovisual means or other electronic means at a designated tribunal or other location. A tribunal of this state shall cooperate with other tribunals in designating an appropriate location for the deposition or testimony. The Supreme Court of Appeals shall promulgate new rules or amend the rules of practice and procedure for family law to establish procedures pertaining to the exercise of cross examination in those instances involving the receipt of testimony by means other than direct or personal testimony.

(g) If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.

(h) A privilege against disclosure of communications between spouses does not apply in a proceeding under this article.

(i) The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under this article.

(j) A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child.

§48-16-317. Communications between tribunals.

A tribunal of this state may communicate with a tribunal outside this state in a record, or by telephone, electronic mail or other means, to obtain information concerning the laws, the legal effect of a judgment, decree, or order of that tribunal and the status of a proceeding. A tribunal of this state may furnish similar information by similar means to a tribunal outside this state.

§48-16-318. Assistance with discovery.

A tribunal of this state may:

(1) Request a tribunal outside this state to assist in obtaining discovery; and

(2) Upon request, compel a person over which it has jurisdiction to respond to a discovery order issued by a tribunal outside this state.

§48-16-319. Receipt and disbursement of payments.

(a) A support enforcement agency or tribunal of this state shall disburse promptly any amounts received pursuant to a support order as directed by the order. The agency or tribunal shall furnish to a requesting party or tribunal of another state or a foreign country a certified statement by the custodian of the record of the amounts and dates of all payments received.

(b) If neither the obligor, nor the obligee who is an individual, nor the child resides in this state, upon request from the support enforcement agency of this state or another state, a tribunal of this state shall:

(1) Direct that the support payment be made to the support enforcement agency in the state in which the obligee is receiving services; and

(2) Issue and send to the obligor's employer a conforming income withholding order or an administrative notice of change of payee, reflecting the redirected payments.

(c) The support enforcement agency of this state receiving redirected payments from another state pursuant to a law similar to subsection (b) of this section shall furnish to a requesting party or tribunal of the other state a certified statement by the custodian of the record of the amount and dates of all payments received.

PART IV. ESTABLISHMENT OF SUPPORT ORDER.

§48-16-401. PETITION TO ESTABLISH SUPPORT ORDER.

(a) If a support order entitled to recognition under this article has not been issued, a responding tribunal of this state with personal jurisdiction over the parties may issue a support order if:

(1) The individual seeking the order resides outside this state; or

(2) The support enforcement agency seeking the order is located outside this state.

(b) The tribunal may issue a temporary child support order if the tribunal determines that such an order is appropriate and the individual ordered to pay is:

(1) A presumed father of the child;

(2) Petitioning to have his paternity adjudicated;

(3) Identified as the father of the child through genetic testing;

(4) An alleged father who has declined to submit to genetic testing;

(5) Shown by clear and convincing evidence to be the father of the child;

(6) An acknowledged father as provided by applicable state law;

(7) The mother of the child; or

(8) An individual who has been ordered to pay child support in a previous proceeding and the order has not been reversed or vacated.

(c) Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to section 16-305 [§48-16-305].

§48-16-402. Proceeding to determine parentage.

A tribunal of this state authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage of a child brought under this article or a law or procedure substantially similar to this article.

PART V. ENFORCEMENT OF SUPPORT ORDER WITHOUT REGISTRATION.

§48-16-501. Employer's receipt of income withholding order of another state.

An income withholding order issued in another state may be sent by or on behalf of the obligee, or by the support enforcement agency, to the person defined as the obligor's source of income under section 1-240 {[§48-1-240] of this chapter without first filing a petition or comparable pleading or registering the order with a tribunal of this state.

§48-16-502. Employer's compliance with income withholding order of another state.

(a) Upon receipt of an income withholding order, the obligor's employer shall immediately provide a copy of the order to the obligor.

(b) The employer shall treat an income withholding order issued in another state which appears regular on its face as if it had been issued by a tribunal of this state.

(c) Except as otherwise provided in subsection (d) of this section and section 16-503 [§48-16-503], the employer shall withhold and distribute the funds as directed in the withholding order by complying with the terms of the order which specify:

(1) The duration and amount of periodic payments of current child support, stated as a sum certain;

(2) The person designated to receive payments and the address to which the payments are to be forwarded;

(3) Medical support, whether in the form of periodic cash payment, stated as a sum certain, or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor's employment;

(4) The amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal and the obligee's attorney, stated as sums certain; and

(5) The amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.

(d) An employer shall comply with the law of the state of the obligor's principal place of employment for withholding from income with respect to:

(1) The employer's fee for processing an income withholding order;

(2) The maximum amount permitted to be withheld from the obligor's income; and

(3) The times within which the employer must implement the withholding order and forward the child support payment.

§48-16-503. Employer's compliance with two or more income withholding orders.

If an obligor's employer receives two or more income withholding orders with respect to the earnings of the same obligor, the employer satisfies the terms of the orders if the employer complies with the law of the state of the obligor's principal place of employment to establish the priorities for withholding and allocating income withheld for two or more child support obligees.

§48-16-504. Immunity from civil liability.

An employer that complies with an income withholding order issued in another state in accordance with this article is not subject to civil liability to any individual or agency with regard to the employer's withholding of child support from the obligor's income.

§48-16-505. Penalties for noncompliance.

An employer that willfully fails to comply with an income withholding order issued in another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state.

§48-16-506. Contest by obligor.

(a) An obligor may contest the validity or enforcement of an income withholding order issued in another state and received directly by an employer in this state by registering the order in a tribunal of this state and filing a contest to that order as provided in part VI [§48-16-601 et seq.], or otherwise contesting the order in the same manner as if the order had been issued by a tribunal of this state.

(b) The obligor shall give notice of the contest to:

(1) A support enforcement agency providing services to the obligee;

(2) Each employer that has directly received an income withholding order relating to the obligor; and

(3) The person designated to receive payments in the income withholding order, or if no person is designated, to the obligee.

§48-16-507. Administrative enforcement of orders.

(a) A party or support enforcement agency seeking to enforce a support order or an income withholding order, or both, issued in another state or a foreign support order may send the documents required for registering the order to a support enforcement agency of this state.

(b) Upon receipt of the documents, the support enforcement agency, without initially seeking to register the order, shall consider and, if appropriate, use any administrative procedure authorized by the law of this state to enforce a support order or an income withholding order, or both. If the obligor does not contest administrative enforcement, the order need not be registered. If the obligor contests the validity or administrative enforcement of the order, the support enforcement agency shall register the order pursuant to this article.

PART VI. REGISTRATION, ENFORCEMENT AND MODIFICATION OF SUPPORT ORDER.

§48-16-601. Registration of order for enforcement.

A support order or income withholding order issued in another state or a foreign support order may be registered in this state for enforcement.

§48-16-602. Procedure to register order for enforcement.

(a) Except as provided in section 706 [§48-16-706], a support order or income withholding order of another state or a foreign support order may be registered in this state by sending the following records to the state information agency in this state:

(1) A letter of transmittal to the tribunal requesting registration and enforcement;

(2) Two copies, including one certified copy, of the order to be registered, including any modification of the order;

(3) A sworn statement by the person requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage;

(4) The name of the obligor and, if known:

(A) The obligor's address and social security number;

(B) The name and address of the obligor's employer and any other source of income of the obligor; and

(C) A description and the location of property of the obligor in this state not exempt from execution; and

(5) Except as otherwise provided in section 312 [§48-16-312], the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted.

(b) On receipt of a request for registration, the clerk of the court shall cause the order to be filed as an order of a tribunal of another state or a foreign support order, together with one copy of the documents and information, regardless of their form.

(c) A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this state may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.

(d) If two or more orders are in effect, the person requesting registration shall:

(1) Furnish to the tribunal a copy of every support order asserted to be in effect in addition to the documents specified in this section;

(2) Specify the order alleged to be the controlling order, if any; and

(3) Specify the amount of consolidated arrears, if any.

(e) A request for a determination of which is the controlling order may be filed separately or with a request for registration and enforcement or for registration and modification. The person requesting registration shall give notice of the request to each party whose rights may be affected by the determination.

§48-16-603. Effect of registration for enforcement.

(a) A support order or income withholding order issued in another state or a foreign support order is registered when the order is filed in the registering tribunal of this state.

(b) A registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.

(c) Except as otherwise provided in this article, a tribunal of this state shall recognize and enforce, but may not modify, a registered support order if the issuing tribunal had jurisdiction.

§48-16-604. Choice of law.

(a) Except as otherwise provided in subsection (d) of this section, the law of the issuing state or foreign country governs:

(1) The nature, extent, amount and duration of current payments under a registered support order;

(2) The computation and payment of arrearages and accrual of interest on the arrearages under the support order; and

(3) The existence and satisfaction of other obligations under the support order.

(b) In a proceeding for arrears under a registered support order, the statute of limitation of this state or of the issuing state or foreign country, whichever is longer, applies.

(c) A responding tribunal of this state shall apply the procedures and remedies of this state to enforce current support and collect arrears and interest due on a support order of another state or a foreign country registered in this state.

(d) After a tribunal of this state or another state determines which is the controlling order and issues an order consolidating arrears, if any, a tribunal of this state shall prospectively apply the law of the state or foreign country issuing the controlling order, including its law on interest on arrears, on current and future support and on consolidated arrears.

§48-16-605. Notice of registration of order.

(a) When a support order or income withholding order issued in another state or a foreign support order is registered, the clerk of the court shall notify the nonregistering party. The notice must be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.

(b) A notice must inform the nonregistering party:

(1) That a registered order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of this state;

(2) That a hearing to contest the validity or enforcement of the registered order must be requested within twenty days after notice unless the registered order is under section 707 [§48-16-707];

(3) That failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages; and

(4) Of the amount of any alleged arrearages.

(c) If the registering party asserts that two or more orders are in effect, a notice must also:

(1) Identify the two or more orders and the order alleged by the registering party to be the controlling order and the consolidated arrears, if any;

(2) Notify the nonregistering party of the right to a determination of which is the controlling order;

(3) State that the procedures provided in subsection (b) of this section apply to the determination of which is the controlling order; and

(4) State that failure to contest the validity or enforcement of the order alleged to be the controlling order in a timely manner may result in confirmation that the order is the controlling order.

(d) Upon registration of an income withholding order for enforcement, the support enforcement agency or the registering tribunal shall notify the obligor's source of income pursuant to section 14-401 et seq. [§48-14-401 et seq.], of this chapter.

§48-16-606. Procedure to contest validity or enforcement of registered support order.

(a) A nonregistering party seeking to contest the validity or enforcement of a registered order in this state shall request a hearing within the time required by section 605 [§48-16-605]. The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order or to contest the remedies being sought or the amount of any alleged arrearages pursuant to section 16-607 [§48-16-607].

(b) If the nonregistering party fails to contest the validity or enforcement of the registered support order in a timely manner, the order is confirmed by operation of law.

(c) If a nonregistering party requests a hearing to contest the validity or enforcement of the registered order, the registering tribunal shall schedule the matter for hearing and give notice to the parties of the date, time and place of the hearing.

§48-16-607. Contest of registration or enforcement.

(a) A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving one or more of the following defenses:

(1) The issuing tribunal lacked personal jurisdiction over the contesting party;

(2) The order was obtained by fraud;

(3) The order has been vacated, suspended or modified by a later order;

(4) The issuing tribunal has stayed the order pending appeal;

(5) There is a defense under the law of this state to the remedy sought;

(6) Full or partial payment has been made;

(7) The statute of limitation under section 16-604 [§48-16-604] precludes enforcement of some or all of the alleged arrearages; or

(8) The alleged controlling order is not the controlling order.

(b) If a party presents evidence establishing a full or partial defense under subsection (a) of this section, a tribunal may stay enforcement of a registered support order, continue the proceeding to permit production of additional relevant evidence and issue other appropriate orders. An uncontested portion of the registered support order may be enforced by all remedies available under the law of this state.

(c) If the contesting party does not establish a defense under subsection (a) of this section to the validity or enforcement of a registered support order, the registering tribunal shall issue an order confirming the order.

§48-16-608. Confirmed order.

Confirmation of a registered support order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

§48-16-609. Procedure to register child support order of another state for modification.

A party or support enforcement agency seeking to modify or to modify and enforce a child support order issued in another state shall register that order in this state in the same manner provided in sections 16-601 through 16-608 [§§48-16-601 through §48-16-608] if the order has not been registered. A petition for modification may be filed at the same time as a request for registration or later. The pleading must specify the grounds for modification.

§48-16-610. Effect of registration for modification.

A tribunal of this state may enforce a child support order of another state registered for purposes of modification in the same manner as if the order had been issued by a tribunal of this state, but the registered support order may be modified only if the requirements of section 16-611 [§48-16-611] or 16-613 [§48-16-613] have been met.

§48-16-611. Modification of child support order of another state.

(a) If section 613 [§48-16-613] does not apply, upon petition a tribunal of this state may modify a child support order issued in another state which is registered in this state if, after notice and hearing, the tribunal finds that:

(1) The following requirements are met:

(A) Neither the child, nor the obligee who is an individual nor the obligor resides in the issuing state;

(B) A petitioner who is a nonresident of this state seeks modification; and

(C) The respondent is subject to the personal jurisdiction of the tribunal of this state; or

(2) This state is the residence of the child or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.

(b) Modification of a registered child support order is subject to the same requirements, procedures and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.

(c) A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support. If two or more tribunals have issued child support orders for the same obligor and same child, the order that controls must be so recognized under section 16-207 [§48-16-207] establishes the aspects of the support order which are nonmodifiable.

(d) In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state.

(e) On the issuance of an order by a tribunal of this state modifying a child support order issued in another state, the tribunal of this state becomes the tribunal having continuing, exclusive jurisdiction.

(f) Notwithstanding subsections (a) through (e) of this section and section 201 (b), a tribunal of this state retains jurisdiction to modify an order issued by a tribunal of this state if:

(1) One party resides in another state; and

(2) The other party resides outside the United States.

§48-16-612. Recognition of order modified in another state.

If a child support order issued by a tribunal of this state is modified by a tribunal of another state which assumed jurisdiction pursuant to the uniform interstate family support act, a tribunal of this state:

(1) May enforce its order that was modified only as to arrears and interest accruing before the modification;

(2) May provide appropriate relief for violations of its order which occurred before the effective date of the modification; and

(3) Shall recognize the modifying order of the other state, upon registration, for the purpose of enforcement.

§48-16-613. Jurisdiction to modify child support order of another state when individual parties reside in this state.

(a) If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state's child support order in a proceeding to register that order.

(b) A tribunal of this state exercising jurisdiction under this section shall apply the provisions of parts I [§48-16-101 et seq.] and II [§48-16-201 et seq.], and the procedural and substantive law of this state to the proceeding for enforcement or modification. Parts III, IV, V, VII and VIII [§§48-16-301 et seq. through §§48-16-501 et seq. and §§48-16-701 et seq. and §§48-16-801 et seq.] do not apply.

§48-16-614. Notice to issuing tribunal of modification.

Within thirty days after issuance of a modified child support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order and in each tribunal in which the party knows the earlier order has been registered. A party who obtains the order and fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the modified order of the new tribunal having continuing, exclusive jurisdiction.

§48-16-615. Jurisdiction to modify child support order of foreign country.

(a) Except as otherwise provided in section 711 [§48-16-711], if a foreign country lacks or refuses to exercise jurisdiction to modify its child support order pursuant to its laws, a tribunal of this state may assume jurisdiction to modify the child support order and bind all individuals subject to the personal jurisdiction of the tribunal whether the consent to modification of a child support order otherwise required of the individual pursuant to section 611 [§48-16-611] has been given or whether the individual seeking modification is a resident of this state or of the foreign country.

(b) An order issued by a tribunal of this state modifying a foreign child support order pursuant to this section is the controlling order.

§48-16-616. Procedure to register child support order of foreign country for modification.

A party or support enforcement agency seeking to modify, or to modify and enforce, a foreign child support order not under the convention may register that order in this state under sections 601 through 608 [§§48-16-601 through §48-16-608] if the order has not been registered. A petition for modification may be filed at the same time as a request for registration or at another time. The petition must specify the grounds for modification.

PART VII. SUPPORT PROCEEDING UNDER CONVENTION.

§48-16-701. Definitions.

In this part:

(1) "Application" means a request under the convention by an obligee or obligor, or on behalf of a child, made through a central authority for assistance from another central authority.

(2) "Central authority" means the entity designated by the United States or a foreign country described in section 102(5)(D) [§48-16-102(5)(D]] to perform the functions specified in the convention.

(3) "Convention support order" means a support order of a tribunal of a foreign country described in section 102(5)(D) [§48-16-102(5)(D)].

(4) "Direct request" means a petition filed by an individual in a tribunal of this state in a proceeding involving an obligee, obligor or child residing outside the United States.

(5) "Foreign central authority" means the entity designated by a foreign country described in section 102(5)(D) [§48-16-102(5)(D)], to perform the functions specified in the convention.

(6) "Foreign support agreement:"

(A) Means an agreement for support in a record that:

(i) Is enforceable as a support order in the country of origin;

(ii) Has been:

(I) Formally drawn up or registered as an authentic instrument by a foreign tribunal; or

(II) Authenticated by, or concluded, registered or filed with a foreign tribunal; and

(iii) May be reviewed and modified by a foreign tribunal; and

(B) Includes a maintenance arrangement or authentic instrument under the convention.

(7) "United States central authority" means the Secretary of the United States Department of Health and Human Services.

§48-16-702. Applicability.

This article applies only to a support proceeding under the convention. In such a proceeding, if a provision of this article is inconsistent with parts I through VI [§§48-16-101 et seq. through §§48-16-601 et seq.], this part controls.

§48-16-703. Relationship of Bureau for Child Support Enforcement to United States central authority.

The Bureau for Child Support Enforcement of this state is recognized as the agency designated by the United States central authority to perform specific functions under the convention.

§48-16-704. Initiation by Bureau for Child Support Enforcement proceeding under convention.

(a) In a support proceeding under this article, the Bureau for Child Support Enforcement of this state shall:

(1) Transmit and receive applications; and

(2) Initiate or facilitate the institution of a proceeding regarding an application in a tribunal of this state.

(b) The following support proceedings are available to an obligee or under the convention:

(1) Recognition or recognition and enforcement of a foreign support order;

(2) Enforcement of a support order issued or recognized in this state;

(3) Establishment of a support order if there is no existing order, including, if necessary, determination of parentage of a child;

(4) Establishment of a support order if recognition of a foreign support order is refused under section 708(b)(2) [§48-16-708(b)(2)], (4) [§48-16-708(b)(4)], or (9) [§48-16-708(b)(9).

(5) Modification of a support order of a tribunal of this state; and

(6) Modification of a support order of a tribunal of another state or a foreign country.

(c) The following support proceedings are available under the convention to an obligor against which there is an existing support order;

(1) Recognition of an order suspending or limiting enforcement of an existing support order of a tribunal of this state;

(2) Modification of a support order of a tribunal of this state; and

(3) Modification of a support order of a tribunal of another state or a foreign country.

(d) A tribunal of this state may not require security, bond or deposit, however described, to guarantee the payment of costs and expenses in proceedings under the convention.

§48-16-705. Direct request.

(a) A petitioner may file a direct request seeking establishment or modification of a support order or determination of parentage of a child. In the proceeding, the law of this state applies.

(b) A petitioner may file a direct request seeking recognition and enforcement of a support order or support agreement. In the proceeding, sections 706 through 713 [§§48-16-706 through §48-16-713] apply.

(c) In a direct request for recognition and enforcement of a convention support order or foreign support agreement:

(1) A security, bond, or deposit is not required to guarantee the payment of costs and expenses; and

(2) An obligee or obligor that in the issuing country has benefited from free legal assistance is entitled to benefit, at least to the same extent, from any free legal assistance provided for by the law of this state under the same circumstances.

(d) A petitioner filing a direct request is not entitled to assistance from the Bureau for Child Support Enforcement.

(e) This article does not prevent the application of laws of this state that provide simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement.

§48-16-706. Registration of convention support order.

(a) Except as otherwise provided in this article, a party who is an individual or a support enforcement agency seeking recognition of a convention support order shall register the order in this state as provided in part VI.

(b) Notwithstanding sections 311 [§48-16-311] and 602(a) [§48-16-602(a)], a request for registration of a convention support order must be accompanied by:

(1) A complete text of the support order or an abstract or extract of the support order drawn up by the issuing foreign tribunal, which may be in the form recommended by the Hague Conference on Private International Law;

(2) A record stating that the support order is enforceable in the issuing country;

(3) If the respondent did not appear and was not represented in the proceedings in the issuing country, a record attesting, as appropriate, either that the respondent had proper notice of the proceedings and an opportunity to be heard or that the respondent had proper notice of the support order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal;

(4) A record showing the amount of arrears, if any, and the date the amount was calculated;

(5) A record showing a requirement for automatic adjustment of the amount of support, if any, and the information necessary to make the appropriate calculations; and

(6) If necessary, a record showing the extent to which the applicant received free legal assistance in the issuing country;

(c) A request for registration of a convention support order may seek recognition and partial enforcement of the order.

(d) A tribunal of this state may vacate the registration of a convention support order without the filing of a contest under section 707 [§48-16-707] only if, acting on its own motion, the tribunal finds that recognition and enforcement of the order would be manifestly incompatible with public policy.

(e) The tribunal shall promptly notify the parties of the registration or the order vacating the registration of a convention support order.

§48-16-707. Contest of registered convention support order.

(a) Except as otherwise provided in this article, sections 605 through 608 [§§48-16-605 through §48-16-608] apply to a contest of a registered convention support order.

(b) A party contesting a registered convention support order shall file a contest not later than thirty days after notice of the registration, but if the contesting party does not reside in the United States, the contest must be filed not later than sixty days after notice of the registration.

(c) If the nonregistering party fails to contest the registered convention support order by the time specified in subsection (b) of this section, the order is enforceable.

(d) A contest of a registered convention support order may be based only on grounds set forth in section 708 [§48-16-708]. The contesting party bears the burden of proof.

(e) In a contest of a registered convention support order, a tribunal of this state:

(1) Is bound by the findings of fact on which the foreign tribunal based its jurisdiction; and

(2) May not review the merits of the order.

(f) A tribunal of this state deciding a contest of a registered convention support order shall promptly notify the parties of its decision.

(g) A challenge or appeal, if any, does not stay the enforcement of a convention support order unless there are exceptional circumstances.

§48-16-708. Recognition and enforcement of registered convention support order.

(a) Except as otherwise provided in subsection (b) of this section, a tribunal of this state shall recognize and enforce a registered convention support order.

(b) The following grounds are the only grounds on which a tribunal of this state may refuse recognition and enforcement of a registered convention support order:

(1) Recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard;

(2) The issuing tribunal lacked personal jurisdiction consistent with section 201 [§48-16-201];

(3) The order is not enforceable in the issuing country;

(4) The order was obtained by fraud in connection with a matter of procedure;

(5) A record transmitted in accordance with section 706 [§48-16-706] lacks authenticity or integrity;

(6) A proceeding between the same parties and having the same purpose is pending before a tribunal of this state and that proceeding was the first to be filed;

(7) The order is incompatible with a more recent support order involving the same parties and having the same purpose if the more recent support order is entitled to recognition and enforcement under this article in this state;

(8) Payment, to the extent alleged arrears have been paid in whole or in part;

(9) In a case in which the respondent neither appeared nor was represented in the proceeding in the issuing foreign country:

(A) If the law of that country provides for prior notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard; or

(B) If the law of that country does not provide for prior notice of the proceedings, the respondent did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal; or

(10) The order was made in violation of section 711 [§48-16-711].

(c) If a tribunal of this state does not recognize a convention support order under subsection (b)(2) [§48-16-708 (b)(2)], (4) [§48-16-708(b)(4)], or (9) [§48-16-708(b)(9);

(1) The tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new convention support order; and

(2) The Bureau for Child Support Enforcement shall take all appropriate measures to request a child support order for the obligee if the application for recognition and enforcement was received under section 704 [§48-16-704].

§48-16-709. Partial enforcement.

If a tribunal of this state does not recognize and enforce a convention support order in its entirety, it shall enforce any severable part of the order. An application or direct request may seek recognition and partial enforcement of a convention support order.

§48-16-710. Foreign support agreement.

(a) Except as otherwise provided in subsections (c) and (d) of this section, a tribunal of this state shall recognize and enforce a foreign support agreement registered in this state.

(b) An application or direct request for recognition and enforcement of a foreign support agreement must be accompanied by:

(1) A complete text of the foreign support agreement; and

(2) A record stating that the foreign support agreement is enforceable as an order of support in the issuing country.

(c) A tribunal of this state may vacate the registration of a foreign support agreement only if, acting on its own motion, the tribunal finds that recognition and enforcement would be manifestly incompatible with public policy.

(d) In a contest of a foreign support agreement, a tribunal of this state may refuse recognition and enforcement of the agreement if it finds:

(1) Recognition and enforcement of the agreement is manifestly incompatible with public policy;

(2) The agreement was obtained by fraud or falsification;

(3) The agreement is incompatible with a support order involving the same parties and having the same purpose in this state, another state or a foreign country if the support order is entitled to recognition and enforcement under this article in this state; or

(4) The record submitted under subsection (b) of this section lacks authenticity or integrity.

(e) A proceeding for recognition and enforcement of a foreign support agreement must be suspended during the pendency of a challenge to or appeal of the agreement before a tribunal of another state or a foreign country.

§48-16-711. Modification of convention child support order.

(a) A tribunal of this state may not modify a convention child support order if the obligee remains a resident of the foreign country where the support order was issued unless:

(1) The obligee submits to the jurisdiction of a tribunal of this state, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity; or

(2) The foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order.

(b) If a tribunal of this state does not modify a convention child support order because the order is not recognized in this state, section 708(c) [§48-16-708(c)] applies.

§48-16-712. Personal information: limit on use.

Personal information gathered or transmitted under this article may be used only for the purposes for which it was gathered or transmitted.

§48-16-713. Record original language: English translation.

A record filed with a tribunal of this state under this article must be in the original language, and, if not in English, must be accompanied by an English translation.

PART VIII. INTERSTATE RENDITION.

§48-16-801. Grounds for rendition.

(a) For purposes of this article, "Governor" includes an individual performing the functions of Governor or the executive authority of a state covered by this article.

(b) The Governor of this state may:

(1) Demand that the Governor of another state surrender an individual found in the other state who is charged criminally in this state with having failed to provide for the support of an obligee; or

(2) On the demand of the Governor of another state, surrender an individual found in this state who is charged criminally in the other state with having failed to provide for the support of an obligee.

(c) A provision for extradition of individuals not inconsistent with this article applies to the demand even if the individual whose surrender is demanded was not in the demanding state when the crime was allegedly committed and has not fled therefrom.

§48-16-802. Conditions of rendition.

(a) Before making a demand that the Governor of another state surrender an individual charged criminally in this state with having failed to provide for the support of an obligee, the Governor of this state may require a prosecutor of this state to demonstrate that at least sixty days previously the obligee had initiated proceeding for support pursuant to this article or that the proceeding would be of no avail.

(b) If, under this article or a law substantially similar to this article, the Governor of another state makes a demand that the Governor of this state surrender an individual charged criminally in that state with having failed to provide for the support of a child or other individual to whom a duty of support is owed, the Governor may require a prosecutor to investigate the demand and report whether a proceeding for support has been initiated or would be effective. If it appears that a proceeding would be effective but has not been initiated, the Governor may delay honoring the demand for a reasonable time to permit the initiation of a proceeding.

(c) If a proceeding for support has been initiated and the individual whose rendition is demanded prevails, the Governor may decline to honor the demand. If the petitioner prevails and the individual whose rendition is demanded is subject to a support order, the Governor may decline to honor the demand if the individual is complying with the support order.

Part IX. Miscellaneous Provisions.

§48-16-901. Uniformity of application and construction.

In applying and construing this Uniform Act consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

PART IX. MISCELLANEOUS PROVISIONS.

§48-16-902. Transitional provision.

This article applies to proceedings begun on or after the effective date of the amendments to this article enacted during the 2015 regular session of the West Virginia Legislature, to establish a support order or determine parentage of a child or to register, recognize, enforce, or modify a prior support order, determination, or agreement, whenever issued or entered.

§48-16-903. Severability.

If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application and to this end the provisions of this article are severable.

ARTICLE 17. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION.

§48-17-101. Creation of Support Enforcement Commission; number of members.

The West Virginia Support Enforcement Commission, consisting of nine members, is hereby created in the Department of Health and Human Resources and may use the administrative support and services of that department. The commission is not subject to control, supervision or direction by the Department of Health and Human Resources, but is an independent, self-sustaining commission that shall have the powers and duties specified in this chapter.

The commission is a part-time commission whose members perform such duties as specified in this chapter. The ministerial duties of the commission shall be administered and carried out by the Commissioner of the Bureau for Child Support Enforcement, with the assistance of such staff of the Department of Health and Human Resources as the secretary may assign.

Each member of the commission shall devote the time necessary to carry out the duties and obligations of the office and the seven members appointed by the Governor may pursue and engage in another business, occupation or gainful employment that is not in conflict with the duties of the commission.

While the commission is self-sustaining and independent, it, its members, its employees and the commissioner are subject to article nine-a, chapter six of this code, chapter six-b of this code, chapter twenty-nine-a of this code and chapter twenty-nine-b of this code.

§48-17-102. Appointment of members of Support Enforcement Commission; qualifications and eligibility.

(a) Of the nine members of the commission, seven members are to be appointed by the Governor: Provided, That no more than five members of the commission may belong to the same political party.

(1) One member is to be a lawyer licensed by, and in good standing with, the West Virginia State Bar, with at least five years of professional experience in domestic relations law and the establishment and enforcement of support obligations;

(2) One member is to be a person experienced as a public administrator in the supervision and regulation of a governmental agency;

(3) One member is to be an employer experienced in withholding support payments from the earnings of obligors;

(4) One member is to be a practicing family court judge, as an ex officio member, who will serve in an advisory capacity, without compensation or voting rights; and

(5) Three members are to be representatives of the public at large, with at least one being an obligor and one being an obligee.

(b) One member is to be the Commissioner of the Bureau for Children and Families, Department of Health and Human Resources or his or her designee.

(c) The Commissioner of the Bureau for Child Support Enforcement, or his or her designee, is an ex officio nonvoting member of the commission.

(d) Each member of the commission is to be a citizen of the United States, a resident of the State of West Virginia and at least twenty-one years of age.

§48-17-103. Terms of commission members; conditions of membership.

(a) Beginning June 1, 2008, and every four years thereafter, the Governor shall convene the commission to review the child support guidelines, in accordance with the Code of Federal Regulations, Part 45, Section 302.56(C)(3)(e).

(b) The Governor shall make appointments by June 1, 2008, and on June 1 every four years thereafter.

(c) The commissioner shall report the commission's findings and recommendations to the Legislative Oversight Commission on Health and Human Resources Accountability by July 1, 2009, and by July 1, every four years thereafter.

(d) The commissioners' terms shall expire on July 1, in the year in which they submit the required report to the Legislature as set forth in subsection (c) of this section.

§48-17-104. Oath.

Before entering upon the discharge of the duties as commissioner, each commissioner shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia.

§48-17-105. Commission chairman.

The Commissioner of the Bureau for Child Support Enforcement shall serve as the chair of the commission.

§48-17-106. Compensation of members; reimbursement for expenses.

(a) Each voting member of the commission shall receive $100 for each day or portion thereof spent in the discharge of his or her official duties.

(b) Each member of the commission shall be reimbursed for all actual and necessary expenses and disbursements involved in the execution of official duties.

§48-17-107. Meeting requirements.

(a) The commission shall meet at least twice during the one-year term for the sole purpose of reviewing the child support guidelines set forth in article thirteen of this chapter. The commission may determine if it needs to convene more frequently to effectively study the guidelines, but shall not meet more than eight times during the one-year term.

(b) Four voting members of the commission are a quorum for the transaction of any business and for the performance of any duty.

(c) A majority vote of the voting members present is required for any final determination by the commission.

(d) The commission may elect to meet in executive session after an affirmative vote of a majority of its members present according to section four, article nine-a, chapter six of this code.

(e) The commission shall keep a complete and accurate record of all its meetings according to section five, article nine-a, chapter six of this code.

§48-17-108. Removal of commission members.

Notwithstanding the provisions of section four, article six, chapter six of this code, the Governor may remove any commission member for incompetence, misconduct, gross immorality, misfeasance, malfeasance or nonfeasance in office.

§48-17-109. General duties of support enforcement commission.

(a) Federal law requires that each state periodically review the formula used to set child support obligations to determine appropriate awards for the support of children. States are required to consider current research and data on the costs of and expenditures necessary for rearing children. A process for review of the guidelines should be established to ensure the integrity of the formula and reviews undertaken to comply with federal law.

(b) The commission shall review and analyze:

(1) The current child support guidelines;

(2) Relevant research and data regarding the cost of child rearing;

(3) Research and data on the application of, and deviations from, the child support guidelines;

(4) Current law, administrative rules and practices regarding child support; and

(5) Any other data the commission deems relevant to the review of the current child support guidelines.

§48-17-110.

Repealed.

Acts, 2003 Reg. Sess., Ch. 62.

§48-17-111.

Repealed.

Acts, 2003 Reg. Sess., Ch. 62.

ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.

§48-18-101. Establishment of the Bureau for Child Support enforcement; cooperation with the division of human services.

(a) Effective July 1, 1995, there is hereby established in the Department of Health and Human Resources the Bureau for Child Support enforcement. The bureau is under the immediate supervision of the commissioner, who is responsible for the exercise of the duties and powers assigned to the bureau under the provisions of this chapter. The bureau is designated as the single and separate organizational unit within this state to administer the state plan for child and spousal support according to 42 U.S.C. §654(3).

(b) The division of human services shall cooperate with the Bureau for Child Support enforcement. At a minimum, such cooperation shall require that the division of human services:

(1) Notify the Bureau for Child Support enforcement when the division of human services proposes to terminate or provide public assistance payable to any obligee;

(2) Receive support payments made on behalf of a former or current recipient to the extent permitted by Title IV-D, Part D of the Social Security Act; and

(3) Accept the assignment of the right, title or interest in support payments and forward a copy of the assignment to the Bureau for Child Support enforcement.

§48-18-102. Appointment of commissioner; duties; compensation.

(a) There is hereby created the position of commissioner. The commissioner shall:

(1) Be appointed by the secretary;

(2) Serve at the will and pleasure of the secretary;

(3) Serve on a full-time basis and shall not engage in any other profession or occupation, including the holding of a political office in the state either by election or appointment, while serving as commissioner;

(4) Be a lawyer licensed by, and in good standing with, the West Virginia State Bar; and

(5) Have responsible administrative experience, possess management skills and have knowledge of the law as it relates to domestic relations and the establishment and enforcement of support obligations.

Before entering upon the discharge of the duties as commissioner, the commissioner shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia.

(b) The duties of the commissioner shall include the following:

(1) To direct and administer the daily operations of the Bureau for Child Support Enforcement;

(2) To administer the Child Support Enforcement Fund created pursuant to section one hundred seven of this article;

(3) To chair the commission set forth in article seventeen of this chapter for the purpose of conducting the federally required review of the child support formula every four years and make a report to the Legislative Oversight Commission on Health and Human Resources Accountability of the commission's findings;

(4) To keep the records and papers of the commission, including a record of each proceeding; and

(5) To prepare, issue and submit reports of the commission.

(c) All payments to the commissioner as compensation shall be made from the Child Support Enforcement Fund. The commissioner is entitled to:

(1) A reasonable and competitive compensation package to be established by the secretary; and

(2) Reimbursement for expenses under the standard state travel regulations.

§48-18-103. Organization and employees.

(a) The Commissioner shall organize the work of the Bureau in such offices or other organizational units as he or she may determine to be necessary for effective and efficient operation.

(b) The Commissioner shall employ a sufficient number of employees in the position of Bureau for Child Support Enforcement attorney so as to provide for the effective and efficient operation of the Bureau for Child Support Enforcement. The Bureau for Child Support Enforcement attorneys shall be distributed geographically as determined by the Commissioner.

(c) The Secretary may transfer employees and resources of the Department to the Bureau for Child Support Enforcement as may be necessary to fulfill the duties and responsibilities of the Bureau under this chapter: Provided, That the Secretary may not transfer employees of other divisions and agencies within the Department to the Bureau for Child Support Enforcement without a prior finding that the office or position held by the employee may be eliminated and until the office or position is, in fact, eliminated.

(d) The Commissioner, if he or she deems such action necessary, may hire legal counsel for the Division, notwithstanding the provisions of section two, article three, chapter five of this code or any other code provision to the contrary, or may request the Attorney General to appoint counsel who shall perform such duties as may be required by the Bureau. The Attorney General, in pursuance of such request, may select and appoint counsel to serve during the will and pleasure of the Attorney General, and shall be paid out of any funds allocated and appropriated to the Child Support Enforcement Fund.

(e) The Commissioner may employ such staff or employees as may be necessary to administer and enforce this chapter.

§48-18-104. Supervisory responsibilities within the Bureau for Child Support enforcement.

The commissioner shall have control and supervision of the Bureau for Child Support enforcement and shall be responsible for the work of each of its organizational units. Each organizational unit shall be headed by an employee of the bureau appointed by the commissioner who shall be responsible to the commissioner for the work of his or her organizational unit.

§48-18-105. General duties and powers of the Bureau for Child Support enforcement.

In carrying out the policies and procedures for enforcing the provisions of this chapter, the bureau shall have the following power and authority:

(1) To establish policies and procedures for obtaining and enforcing support orders and establishing paternity according to this chapter;

(2) To undertake directly, or by contract, activities to obtain and enforce support orders and establish paternity;

(3) To undertake directly, or by contract, activities to establish paternity for minors for whom paternity has not been acknowledged by the father or otherwise established by law;

(4) To undertake directly, or by contract, activities to collect and disburse support payments;

(5) To contract for professional services with any person, firm, partnership, professional corporation, association or other legal entity to provide representation for the bureau and the state in administrative or judicial proceedings brought to obtain and enforce support orders and establish paternity;

(6) To ensure that activities of a contractor under a contract for professional services are carried out in a manner consistent with attorneys' professional responsibilities as established in the rules of professional conduct as promulgated by the Supreme Court of Appeals;

(7) To contract for collection services with any person, firm, partnership, corporation, association or other legal entity to collect and disburse amounts payable as support;

(8) To ensure the compliance of contractors and their employees with the provisions of this chapter, and to terminate, after notice and hearing, the contractual relationship between the bureau and a contractor who fails to comply;

(9) To require a contractor to take appropriate remedial or disciplinary action against any employee who has violated or caused the contractor to violate the provisions of this chapter, in accordance with procedures prescribed in legislative rules promulgated by the commission;

(10) To locate parents who owe a duty to pay child support;

(11) To cooperate with other agencies of this state and other states to search their records to help locate parents;

(12) To cooperate with other states in establishing and enforcing support obligations;

(13) To exercise such other powers as may be necessary to effectuate the provisions of this chapter;

(14) To establish and maintain procedures under which expedited processes, administrative or judicial are in effect for obtaining and enforcing support orders and establishing paternity according to this chapter;

(15) To promulgate all emergency and legislative rules pursuant to chapter twenty-nine-a [§§ 29A-1-1 et seq.] of this code as are required by this chapter: Provided, That all rules which are in effect at the time of the implementation of this section shall continue in full force and effect until the commissioner of the Bureau for Child Support enforcement promulgates a rule or rules regarding the same subject matter;

(16) To adopt standards for staffing, record-keeping, reporting, intergovernmental cooperation, training, physical structures and time frames for case processing;

(17) To review the state plan for child and spousal support to determine its conformance or nonconformance with the provisions of 42 U.S.C. §654;

(18) To cooperate with judicial organizations and the private bar to provide training to persons involved in the establishment and enforcement of child support orders; and

(19) To promulgate legislative rules pursuant to chapter twenty-nine-a [§§29A-1-1] of this code which may aid the Bureau for Child Support enforcement in the establishment and enforcement of child support orders. In addition to the specific designation of such rules that constitute emergency rules within the meaning of section fifteen [§29A-3-15], article three, chapter twenty-nine-a of this code, the commissioner may promulgate other rules as emergency rules when such rule is necessary to ensure that the state is awarded federal funds for the actions described in the rule or when the promulgation of such rule is necessary to prevent substantial harm to the public interest by ensuring that child support is timely collected and disbursed.

§48-18-106. Notice to unemployed obligor.

Upon receipt of a report from an employer stating that a support obligor has been discharged or laid off or has resigned or voluntarily quit, the Bureau for Child Support enforcement shall send a notice to the obligor, informing the obligor of the availability of a modification of the support award and of the services that may be available to him or her from the bureau. The bureau shall also inform the obligor of his or her possible entitlement to a reduction in court-ordered support payments; that a failure to obtain a modification will result in the previously-ordered award remaining in effect; and that substantial arrearage might accumulate and remain as judgments against him or her.

§48-18-107. Creation of child support enforcement fund; purpose; funding; disbursements.

(a) There is hereby created in the State Treasury a separate special revenue account, which shall be an interest bearing account, to be known as the "child support enforcement fund." The special revenue account shall consist of all incentive payments paid by the federal government pursuant to 42 U.S.C. §658 as a percentage of the total amount of support collected directly or by contract by the Bureau for Child Support enforcement, all amounts appropriated by the Legislature to maintain and operate the Bureau for Child Support enforcement according to this chapter, and all interest or other earnings from moneys in the fund. Any agency or entity receiving federal matching funds for services of the Bureau for Child Support enforcement shall enter into an agreement with the secretary whereby all federal matching funds paid to and received by that agency or entity for the activities of the Bureau for Child Support enforcement shall be paid into the child support enforcement fund. Said agreement shall provide for advance payments into the fund by such agencies, from available federal funds, pursuant to Title IV-D of the Social Security Act and in accordance with federal regulations. No expenses incurred under this section shall be a charge against the General Funds of the state.

(b) Moneys in the special revenue account shall be appropriated to the department and used exclusively, in accordance with appropriations by the Legislature, to pay costs, fees and expenses incurred, or to be incurred for the following purpose: The provision of child support services authorized pursuant to Title IV, Part D of the Social Security Act and any further duty as set forth in this chapter, including, but not limited to, the duties assigned to the bureau by virtue of its being designated as the single and separate organizational unit within this state to administer the state plan for child and spousal support.

(c) Any balance remaining in the special revenue account at the end of any state fiscal year shall not revert to the General Revenue Fund but shall remain in the special revenue account and shall be used solely in a manner consistent with this section: Provided, That for the three succeeding fiscal years after the effective date of this section, any appropriation made to the special revenue account from general revenue shall be repaid to the General Revenue Fund from moneys available in the special revenue account.

(d) Disbursements from the special revenue account shall be authorized by the commissioner.

§48-18-108. Fees.

(a) When the Bureau for Child Support Enforcement provides child support collection services either to a public assistance recipient or to a party who does not receive public assistance, the Bureau for Child Support Enforcement shall, upon written notice to the obligor, charge a monthly collection fee equivalent to the full monthly cost of the services, in addition to the amount of child support which was ordered by the court. The fee shall be deposited in the Child Support Enforcement Fund. The service fee assessed may not exceed ten percent of the monthly court-ordered child support and may not be assessed against any obligor who is current in payment of the monthly court-ordered child support payments: Provided, That this fee may not be assessed when the obligor is also a recipient of public assistance.

(b) Except for those persons applying for services provided by the Bureau for Child Support Enforcement who are applying for or receiving public assistance from the Division of Human Services or persons for whom fees are waived pursuant to a legislative rule promulgated pursuant to this section, all applicants shall pay an application fee of $25.

(c) Fees imposed by state and federal tax agencies for collection of overdue support shall be imposed on the person for whom these services are provided. Upon written notice to the obligee, the Bureau for Child Support Enforcement shall assess a fee of $25 to any person not receiving public assistance for each successful federal tax interception. The fee shall be withheld prior to the assistance for each successful federal tax interception. The fee shall be withheld prior to the release of the funds received from each interception and deposited in the Child Support Enforcement Fund established pursuant to section 18-107.

(d) In any action brought by the Bureau for Child Support Enforcement, the court shall order that the obligor shall pay attorney fees for the services of the attorney representing the Bureau for Child Support Enforcement in an amount calculated at a rate similar to the rate paid to court-appointed attorneys paid pursuant to section thirteen-a, article twenty-one, chapter twenty-nine of this code and all court costs associated with the action: Provided, That no such award shall be made when the court finds that the award of attorney's fees would create a substantial financial hardship on the obligor or when the obligor is a recipient of public assistance. Further, the Bureau for Child Support Enforcement may not collect such fees until the obligor is current in the payment of child support. No court may order the Bureau for Child Support Enforcement to pay attorney's fees to any party in any action brought pursuant to this chapter.

(e) This section shall not apply to the extent it is inconsistent with the requirements of federal law for receiving funds for the program under Title IV-A and Title IV-D of the Social Security Act, United States Code, article three, Title 42, Sections 601 to 613 and United States Code, Title 42, Sections 651 to 662.

§48-18-109.

Repealed.

Acts, 2005 Reg. Sess., Ch. 39.

§48-18-110. Attorneys representing state.

(a) Attorneys employed by the Bureau for Child Support enforcement may represent this state or another state in an action brought under the authority of federal law of this chapter.

(b) An attorney employed by the Bureau for Child Support enforcement or employed by a person or agency or entity pursuant to a contract with the Bureau for Child Support enforcement represents the interest of the state or the bureau and not the interest of any other party. The Bureau for Child Support enforcement shall, at the time an application for child support services is made, inform the applicant that any attorney who provides services for the Bureau for Child Support enforcement is the attorney for the State of West Virginia and that the attorney providing those services does not provide legal representation to the applicant.

(c) An attorney employed by the Bureau for Child Support enforcement or pursuant to a contract with the Bureau for Child Support enforcement may not be appointed or act as a guardian ad litem or attorney ad litem for a child or another party.

§48-18-111. Establishment of parent locator service.

(a) The Bureau for Child Support enforcement shall establish a parent locator service to locate individuals for the purposes of establishing parentage and of establishing, modifying or enforcing child support obligations utilizing all sources of information and available records and the parent locator service in the federal department of health and human services. For purposes of obtaining information from the parent locator service, any person, agency or entity providing services to the Bureau for Child Support enforcement pursuant to a contract that includes a provision to ensure that the confidentiality of information is maintained shall be deemed to be an agent of the Bureau for Child Support enforcement.

(b) Upon entering into an agreement with the secretary of the federal department of health and human services for the use of that department's parent locator service, the Bureau for Child Support enforcement shall accept and transmit to the secretary of the federal department of health and human services requests from authorized persons for information with regard to the whereabouts of a noncustodial obligor to be furnished by such federal parent locator service. For purposes of this subsection, "authorized persons" means: (1) An attorney or agent of the Bureau for Child Support enforcement; (2) a family or circuit court judge or any agent thereof; or (3) a resident parent, legal guardian, attorney or agent for a child. The Bureau for Child Support enforcement shall charge a reasonable fee sufficient to cover the costs to the state and to the federal department of health and human services incurred by reason of such requests and shall transfer to that department, from time to time, so much of the fees collected as are attributable to the costs incurred by that department.

(c) The information obtained by the Bureau for Child Support enforcement from the federal parent locator service shall be used for, but not limited to, the following purposes:

(1) Establishing parentage and establishing, setting the amount of, modifying or enforcing child support obligations;

(2) Obtaining and transmitting information to any family or circuit court or agent thereof or to an attorney or employee of the United States or of any state responsible for enforcing any federal or state law with respect to the unlawful taking or restraint of a child or making or enforcing a child custody or visitation determination.

(d) The Bureau for Child Support enforcement may request from the federal parent locator service information:

(1) About, or which will facilitate the discovery of information about, the location of any individual: (A) Who is under an obligation to pay child support; (B) against whom such an obligation is sought; or (C) to whom such an obligation is owed, including the individual's social security number, or numbers, most recent address and the name, address and employer identification number of the individual's employer;

(2) Concerning the individual's wages or other income from, and benefits of, employment, including rights to or enrollment in group health care coverage; and

(3) Concerning the type, status, location and amount of any assets of, or debts owed by or to, any such individual.

(e) The family court shall have jurisdiction to hear and determine, upon a petition by an authorized person as defined in subsection (b) of this section, whether the release of information from the federal parent locator service to that person could be harmful to the custodial parent or the child.

§48-18-112. Cooperation with other states in the enforcement of child support.

(a) The Bureau for Child Support Enforcement shall cooperate with any other state in the following:

(1) In establishing paternity;

(2) In locating an obligor residing temporarily or permanently in this state, against whom any action is being taken for the establishment of paternity or the enforcement of child and spousal support;

(3) In securing compliance by an obligor residing temporarily or permanently in this state, with an order issued by a court of competent jurisdiction against such obligor for the support and maintenance of a child or children or the parent of such child or children; and

(4) In carrying out other functions necessary to a program of child and spousal support enforcement.

(b) The Commissioner shall, establish procedures necessary to extend the Bureau for Child Support Enforcements' system of withholding under article fourteen of this chapter, so that such system may include withholding from income derived within this state in cases where the applicable support orders were issued in other states, in order to assure that child support owed by obligors in this state or any other state will be collected without regard to the residence of the child for whom the support is payable or the residence of such child's custodial parent.

§48-18-113. Disbursements of amounts collected as support.

(a) Amounts collected as child or spousal support by the Bureau for Child Support Enforcement shall be distributed within two business days after receipt from the employer or other source of periodic income. The amounts collected as child support shall be distributed by the Bureau for Child Support Enforcement in accordance with the provisions for distribution set forth in 42 U.S.C. §657. The Commissioner shall promulgate a legislative rule to establish the appropriate distribution as may be required by the federal law.

(b) Any payment required to be made under the provisions of this section to a family shall be made to the resident parent, legal guardian or caretaker relative having custody of or responsibility for the child or children.

(c) The Commissioner shall maintain methods of administration which are designed to assure that employees of the Bureau for Child Support Enforcement or any persons employed pursuant to a contract who are responsible for handling cash receipts do not participate in accounting or operating functions which would permit them to conceal in the accounting records the misuse of cash receipts: Provided, That the Commissioner may provide for exceptions to this requirement in the case of sparsely populated areas in this state where the hiring of unreasonable additional staff in the local office would otherwise be necessary.

(d) No penalty or fee may be collected by or distributed to a recipient of Bureau for Child Support Enforcement services from the state Treasury or from the Child Support Enforcement Fund when child support is not distributed to the recipient in accordance with the time frames established herein.

(e) For purposes of this section, "business day" means a day on which state offices are open for regular business.

§48-18-114. Amounts collected as support to be disbursed to person having custody; procedure for redirecting disbursement of payments where physical custody transferred to a person other than the custodial parent.

(a) Where physical custody of the child has been transferred from the custodial parent to another person, the Bureau for Child Support enforcement may redirect disbursement of support payments to such other person, on behalf of the child, in the following circumstances:

(1) Where the noncustodial parent has physical custody of the child, excluding visitation, upon filing with the Bureau for Child Support enforcement:

(A) An affidavit attesting that the noncustodial parent has obtained physical custody of the child, describing the circumstances under which the transfer of physical custody took place and stating that he or she anticipates that his or her physical custody of the child will continue for the foreseeable future; and

(B) Documentary proof that the noncustodial parent has instituted proceedings in court for a modification of legal custody or a certified copy of the custodial parent's death certificate.

(2) Where a person other than the custodial or noncustodial parent has physical custody of the child, excluding visitation, filing with the Bureau for Child Support enforcement:

(A) An affidavit attesting that the person has obtained physical custody of the child, describing the circumstances under which the transfer of physical custody took place and stating that he or she anticipates that his or her physical custody of the child will continue for the foreseeable future; and

(B) Documentary proof that the person claiming physical custody is currently the person responsible for the child by producing at least one of the following:

(i) School records demonstrating that school authorities consider the person claiming physical custody the adult responsible for the child;

(ii) Medical records demonstrating that the person claiming physical custody is empowered to make medical decisions on behalf of the child;

(iii) Documents from another public assistance agency showing that the person claiming physical custody is currently receiving other public assistance on behalf of the child;

(iv) A notarized statement from the custodial parent attesting to the fact that he or she has transferred physical custody to the person;

(v) A verifiable order of a court of competent jurisdiction transferring physical or legal custody to the person;

(vi) Documentation that the person claiming physical custody has filed a petition in court to be appointed the child's guardian;

(vii) Documentation that the child, if over the age of fourteen, has instituted proceedings in court to have the person claiming physical custody nominated as his or her guardian; or

(viii) Any other official documents of a federal, state or local agency or governing body demonstrating that the person currently has physical custody of the child and has taken action indicating that he or she anticipates such physical custody to continue in the foreseeable future.

(b) The Bureau for Child Support enforcement shall mail, by first-class mail, a copy of the affidavit and supporting documentary evidence required under subsection (a) of this section to the circuit court which issued the support order being enforced by and to the parties to the order, at their last known addresses, together with a written notice stating that any party has ten days to object to the redirection of support payments by filing an affidavit and evidence showing that the person seeking redirection of the payments does not have physical custody of the child. If no objection is received by the Bureau for Child Support enforcement by the end of the ten-day period, the bureau may order payments redirected to the person claiming physical custody for the benefit of the child. If a responsive affidavit and supporting evidence is filed within the ten-day period and, in the opinion of the Bureau for Child Support enforcement, either disproves the claim of the person seeking redirection of support payments or raises a genuine issue of fact as to whether the person has actual physical custody of the child, the Bureau for Child Support enforcement shall continue to forward support payments to the custodial parent. Any person who disagrees with the determination of the Bureau for Child Support enforcement may petition the court for modification of the child support order.

(c) Any person who files a false affidavit pursuant to this section shall be guilty of false swearing and, upon conviction thereof, shall be punished as provided by law for such offense.

§48-18-115. Payment of support to the Bureau for Child Support enforcement.

All support payments owed to an obligee who is an applicant for or recipient of the services of the Bureau for Child Support enforcement shall be paid to the Bureau for Child Support enforcement. Any other obligee owed a duty of support under the terms of a support order entered by a court of competent jurisdiction may request that the support payments be made to the Bureau for Child Support enforcement. In such case, the Bureau for Child Support enforcement shall proceed to receive and disburse such support payments to or on behalf of the obligee as provided by law.

§48-18-116. Authorization for data processing and retrieval system.

In accordance with an initial and annually updated advance data processing planning document approved by the secretary of the federal department of health and human services, the Bureau for Child Support enforcement may establish an automatic data processing and retrieval system designed effectively and efficiently to assist the commissioner in carrying out the provisions of this chapter.

§48-18-117. Obtaining support from federal tax refunds.

The Commissioner shall, by legislative rule promulgated pursuant to chapter twenty-nine-a of this code, place in effect procedures necessary for the Bureau for Child Support Enforcement to obtain payment of past due support from federal tax refunds from overpayments made to the Secretary of the Treasury of the United States. The Bureau for Child Support Enforcement shall take all steps necessary to implement and utilize such procedures.

§48-18-118. Obtaining support from state income tax refunds.

(a) The Tax Commissioner shall establish procedures necessary for the Bureau for Child Support Enforcement to obtain payment of past-due support from state income tax refunds from overpayment made to the Tax Commissioner pursuant to the provisions of article twenty-one, chapter eleven of this code.

(b) The Commissioner for the Bureau for Child Support Enforcement shall establish procedures necessary to enforce a support order through a notice to the Tax Commissioner which will cause any refund of state income tax which would otherwise be payable to an obligor to be reduced by the amount of overdue support owed by such obligor.

(1) The procedures shall, at a minimum, prescribe:

(A) The time or times at which the Bureau for Child Support Enforcement shall serve on the obligor or submit to the Tax Commissioner notices of past-due support;

(B) The manner in which such notices shall be served on the obligor or submitted to the Tax Commissioner;

(C) The necessary information which shall be contained in or accompany the notices;

(D) The amount of the fee to be paid to the Tax Commissioner for the full cost of applying the procedure whereby past-due support is obtained from state income tax refunds; and

(E) Circumstances when the Bureau for Child Support Enforcement may deduct a $25 fee from the obligor's state income tax refund. This procedure may not require a deduction from the state income tax refund of an applicant who is a recipient of assistance from the Bureau for Children and Families in the form of temporary assistance for needy families.

(2) Withholding from state income tax refunds may not be pursued unless the Bureau for Child Support Enforcement has examined the obligor's pattern of payment of support and the obligee's likelihood of successfully pursuing other enforcement actions, and has determined that the amount of past-due support which will be owed, at the time the withholding is to be made, will be $100 or more. In determining whether the amount of past-due support will be $100 or more, the Bureau for Child Support Enforcement shall consider the amount of all unpaid past-due support, including that which may have accrued prior to the time that the Bureau for Child Support Enforcement first agreed to enforce the support order.

(c) The Commissioner of the Bureau for Child Support Enforcement shall enter into agreements with the Secretary of the Treasury and the Tax Commissioner, and other appropriate governmental agencies, to secure information relating to the Social Security number or numbers and the address or addresses of any obligor, and the name or names and address or addresses of any employer or employers, in order to provide notice between such agencies to aid the Bureau for Child Support Enforcement in requesting state income tax deductions and to aid the Tax Commissioner in enforcing such deductions. In each such case, the Tax Commissioner, in processing the state income tax deduction, shall notify the Bureau for Child Support Enforcement of the obligor's home address and Social Security number or numbers. The Bureau for Child Support Enforcement shall provide this information to any other state involved in processing the support order;

(d) For the purposes of this section, "past-due support" means the amount of unpaid past-due support owed under the terms of a support order to or on behalf of a child, or to or on behalf of a minor child and the parent with whom the child is living; regardless of whether the amount has been reduced to a judgment or not.

(e) The Bureau for Child Support Enforcement may, under the provisions of this section, enforce the collection of past-due support on behalf of a child who has reached the age of majority.

(f) The procedure shall, at a minimum, provide that prior to notifying the Tax Commissioner of past-due support, a notice to the obligor as prescribed under subsection (a) of this section shall:

(1) Notify the obligor that a withholding will be made from any refund otherwise payable to such obligor;

(2) Instruct the obligor of the steps which may be taken to contest the determination of the Bureau for Child Support Enforcement that past-due support is owed or the amount of the past-due support; and

(3) Provide information with respect to the procedures to be followed, in the case of a joint return, to protect the share of the refund which may be payable to another person.

(g) If the Bureau for Child Support Enforcement is notified by the Tax Commissioner that the refund from which withholding is proposed to be made is based upon a joint return, and if the past-due support which is involved has not been assigned to the Department of Health and Human Resources, the Bureau for Child Support Enforcement may delay distribution of the amount withheld until such time as the Tax Commissioner notifies the Bureau for Child Support Enforcement that the other person filing the joint return has received his or her proper share of the refund, but such delay shall not exceed six months.

(h) In any case in which an amount is withheld by the Tax Commissioner under the provisions of this section and paid to the Bureau for Child Support Enforcement, if the Bureau for Child Support Enforcement subsequently determines that the amount certified as past due was in excess of the amount actually owed at the time the amount withheld is to be distributed, the agency shall pay the excess amount withheld to the obligor thought to have owed the past due support or, in the case of amounts withheld on the basis of a joint return, jointly to the parties filing the return.

(i) The amounts received by the Bureau for Child Support Enforcement shall be distributed in accordance with the provisions for distribution set forth in 42 U.S.C. §657.

§48-18-118a. Obtaining refunds of overpaid support from state income tax refunds.

(a) Definitions.

(1) "Obligee" means the same as that term is defined in section two hundred thirty-four, article one of this chapter.

(2) "Obligor" means the same as that term is defined in section two hundred thirty-five, article one of this chapter.

(3) "Overpaid support" means the same as that term is defined in section two hundred thirty-five, article one of this chapter.

(b) The Tax Commissioner shall cooperate with the Commissioner of the Bureau for Child Support Enforcement in establishing and implementing procedures for the collection of overpaid child support from state income tax refunds that are payable to obligees. The Tax Commissioner shall collect the refunds and send the amounts to the Bureau for Child Support Enforcement for distribution to obligors who made the overpayment.

§48-18-119. Obtaining support from unemployment compensation benefits.

(a) The Commissioner shall enter into a written agreement with the Bureau of Employment Programs for the purpose of withholding unemployment compensation from individuals with unmet support obligations being enforced by the Bureau for Child Support Enforcement. The Commissioner shall, through direct contact with the Bureau of Employment Programs, process cases through the Bureau of Employment Programs in this state, and shall process cases through support enforcement agencies in other states. The Commissioner shall receive all amounts withheld by the Bureau of Employment Programs in this state, forwarding any amounts withheld on behalf of support enforcement agencies in other states to those agencies.

(b) For the purposes of this section:

(1) "Legal process" means a writ, order, summons or other similar process in the nature of garnishment which is issued by a court of competent jurisdiction or by an authorized official pursuant to an order to such court or pursuant to state or local law.

(2) "Unemployment compensation" means any compensation under state unemployment compensation law (including amounts payable in accordance with agreements under any federal unemployment compensation law). It includes extended benefits, unemployment compensation for federal employees, unemployment compensation for ex-servicemen, trade readjustment allowances, disaster unemployment assistance, and payments under the Federal Redwood National Park Expansion Act.

§48-18-120. Statements of account.

The Bureau for Child Support enforcement shall provide monthly statements of their account to each obligor and obligee without charge. The commissioner shall establish procedures whereby an obligor or obligee can contest or correct a statement of account.

§48-18-121. Providing information to consumer reporting agencies; requesting consumer credit reports for child support purposes.

(a) For purposes of this section, the term "consumer reporting agency" means any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages, in whole or in part, in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.

(b) The Commissioner shall establish procedures whereby information regarding the amount of overdue support owed by an obligor will be reported periodically by the Bureau for Child Support Enforcement to any consumer reporting agency, after a request by the consumer reporting agency that it be provided with the periodic reports.

(1) The procedures shall provide that any information with respect to an obligor shall be made available only after notice has been sent to the obligor of the proposed action, and such obligor has been given a reasonable opportunity to contest the accuracy of the information.

(2) The procedures shall afford the obligor with procedural due process prior to making information available with respect to the obligor.

(c) The information made available to a consumer reporting agency regarding overdue support may only be made available to an entity that has furnished evidence satisfactory to the Bureau that the entity is a consumer reporting agency as defined in subsection (a) of this section.

(d) The Bureau for Child Support Enforcement may impose a fee for furnishing such information, not to exceed the actual cost thereof.

(e) The Commissioner of the Bureau for Child Support Enforcement, or her or his designee, may request a consumer reporting agency to prepare and furnish to the Bureau for Child Support Enforcement a consumer report for purposes relating to child support, by certifying to the consumer reporting agency that:

(1) The consumer report is needed for the purpose of establishing an individual's capacity to make child support payments or determining the appropriate level of payments in order to set an initial or modified child support award;

(2) The paternity of the child of the individual has been established or acknowledged by the individual in accordance with state law;

(3) The individual whose report is being requested has been given at least ten days' prior notice of the request by certified mail to his or her last known address that such report is being requested; and

(4) The consumer report will be kept confidential, will be used solely for a purpose described in subdivision (1) of this subsection and will not be used in connection with any other civil, administrative or criminal proceeding or for any other purpose.

§48-18-122. Central state case registry.

(a) The Bureau for Child Support enforcement shall establish and maintain a central state case registry of child support orders. All orders in cases when any party receives any service provided by the Bureau for Child Support enforcement shall be included in the registry. Any other support order entered or modified in this state on or after October 1, 1998, shall be included in the registry. The Bureau for Child Support enforcement, upon receipt of any information regarding a new hire provided pursuant to section 18-125 of this article shall compare information received to determine if the new hire's income is subject to wage withholding and notify the employer pursuant to that section.

(b) Each party to a child support proceeding shall, upon entry of an order awarding or modifying child support, complete and file with the clerk of the circuit court issuing the order a form, to be promulgated by the administrative office of the Supreme Court of Appeals, listing information concerning the location and identity of a party including, but not limited to: The party's social security number, residential and mailing address, telephone number and driver's license number; the child's name, birth date and social security number; and the party's employer's name, address and telephone number. The clerk shall promptly forward all such information to the state case registry. The parties are required to notify the state case registry of any change in the information contained on the form, and every order for support shall so state. All information provided to the state case registry shall be subject to the privacy and confidentiality safeguards contained in section 18-131.

(c) In any subsequent child support enforcement action between the parties, there shall be a presumption that the requirements for notice and service of process have been met upon a showing that the Bureau for Child Support enforcement has made a diligent effort to ascertain the location of a party by delivery of written notice by certified mail, return receipt requested, to the most recent employer or residential mailing address filed with the state case registry pursuant to subsection (b) of this section.

§48-18-123. Subpoenas.

In order to obtain financial and medical insurance or other information pursuant to the establishment, enforcement and modification provisions set forth in this chapter, the Bureau for Child Support enforcement or any out-of-state agency administering a program under Title IV-D of the Social Security Act may serve, by certified mail or personal service, an administrative subpoena on any person, corporation, partnership, financial institution, labor organization or state agency for an appearance or for production of financial or medical insurance or other information. In case of disobedience to the subpoena, the Bureau for Child Support enforcement may invoke the aid of any family court in requiring the appearance or production of records and financial documents. The Bureau for Child Support enforcement may assess a civil penalty of no more than $100 for the failure of any person, corporation, financial institution, labor organization or state agency to comply with requirements of this section.

§48-18-124. Liability for financial institutions providing financial records to the Bureau for Child Support enforcement; agreements for data match system; encumbrance or surrender of assets.

(a) Notwithstanding any other provision of this code, a financial institution shall not be liable under the law of this state to any person for:

(1) Disclosing any financial record of an individual to the Bureau for Child Support enforcement in response to a subpoena issued by the bureau pursuant to section 18-123 of this article;

(2) Disclosing any financial record of an individual to the Bureau for Child Support enforcement pursuant to the terms of an agreement with such financial institution pursuant to subsection (f) of this section;

(3) Encumbering or surrendering assets held by such financial institution in response to a notice of lien or levy issued by the Bureau for Child Support enforcement as provided in subsection (g) of this section; or

(4) For any other action taken in good faith to comply with the requirements of this section.

(b) The Bureau for Child Support enforcement, after obtaining a financial record of an individual from a financial institution, may disclose such financial record only for the purpose of, and to the extent necessary in, establishing, modifying or enforcing a child support obligation of such individual.

(c) The civil liability of a person who knowingly, or by reason of negligence, discloses a financial record of an individual in violation of subsection (b) of this section is governed by the provisions of federal law as set forth in 42 U.S.C. §669A.

(d) For purposes of this section, the term "financial institution" means:

(1) Any bank or savings association;

(2) A person who is an institution-affiliated party, as that term is defined in the Federal Deposit Insurance Act, 12 U.S.C. §1813(u);

(3) Any federal credit union or state-chartered credit union, including an institution-affiliated party of a credit union; and

(4) Any benefit association, insurance company, safe deposit company, money-market mutual fund, or similar entity authorized to do business in this state.

(e) For purposes of this section, the term "financial record" means an original of, a copy of, or information known to have been derived from, any record held by a financial institution pertaining to a customer's relationship with the financial institution.

(f) Notwithstanding any provision of this code to the contrary, the Bureau for Child Support enforcement shall enter into agreements with financial institutions doing business in the state to develop and operate, in coordination with such financial institutions, a data match system, using automated data exchanges, to the maximum extent feasible, in which each financial institution is required to provide for each calendar quarter the name, record address, social security number or other taxpayer identification number, and other identifying information for each obligor, as defined in section 1-235 of this chapter, who maintains an account at such institution and who owes past due support. The Bureau for Child Support enforcement will identify to the financial institution an obligor who owes past due support by his or her name and social security number or other taxpayer identification number. The Bureau for Child Support enforcement, upon written request and proof of actual costs incurred, shall pay a reasonable fee to a financial institution for conducting the data matching services not to exceed the actual costs incurred by such financial institution or $100 per institution per quarter, whichever is less.

(g) The financial institution, in response to a notice of a lien or levy, shall encumber or surrender, as the case may be, assets held by such institution on behalf of any noncustodial parent who is subject to a lien for child support.

§48-18-125. Employment and income reporting.

(a) For purposes of this section:

(1) "Employee" means an individual who is an "employee" for purposes of federal income tax withholding, as defined in 26 U.S.C. §3401;

(2) "Employer" means the person or entity for whom an individual performs or performed any service of whatever nature and who has control of the payment of the individual's wages for performance of the service or services, as defined in 26 U.S.C. §3401;

(3) "Independent Contractor" means an individual who is not an employee of the employer and who receives compensation or executes a contract for services performed for that employer. Independent contractor does not include a direct seller as defined in 26 U. S. C. §3508(b)(2).

(4) An individual is considered a "new hire" on the first day in which that individual performs services for remuneration and on which an employer begins to withhold amounts for income tax purposes.

(b) Except as provided in subsections (c) and (d) of this section, all employers doing business in the state shall report to the Bureau for Child Support enforcement:

(1) The hiring of any person who resides or works in this state to whom the employer anticipates paying earnings;

(2) The rehiring or return to work of any employee or independent contractor who resides or works in this state; and

(3) The contracting for services in the state with an independent contractor when payment for the services is $2500 or more. Payment for the services shall be reported within fourteen days of the earlier of first making payments that in the aggregate equal or exceed $2500 in any year or contracts with an independent contractor providing for payments that in the aggregate equal or exceed $2500 in any year.

(c) Employers are not required to report the hiring, rehiring or return to work of any person who is an employee or independent contractor of a federal or state agency performing intelligence or counterintelligence functions if the head of the agency has determined that reporting could endanger the safety of the employee or independent contractor or compromise an ongoing investigation or intelligence mission.

(d) An employer that has employees or independent contractors in states other than this state and that transmits reports magnetically or electronically is not required to report to the Bureau for Child Support enforcement the hiring, rehiring or return to work of any employee or independent contractor if the employer has filed with the secretary of the federal department of health and human services, as required by 42 U.S.C. §653A, a written designation of another state in which it has employees or independent contractors as the reporting state.

(e) Employers shall report by mailing the required information to the Bureau for Child Support enforcement or may transmit the information through another means if approved in writing by the Bureau for Child Support enforcement prior to the transmittal. The report shall include the employee's or independent contractor's name, address and social security number, start date, the employer's name and address, any different address of the payroll office and the employer's federal tax identification number. The employer may report other information, such as date of birth or income information, if desired.

(f) Employers shall submit a report within fourteen days of the date of the hiring, rehiring or return to work of the employee or independent contractor. However, if the employer transmits the reports magnetically or electronically by two monthly submissions, the reports shall be submitted not less than twelve days nor more than sixteen days apart.

(g) An employer shall provide to the Bureau for Child Support enforcement, upon its written request, information regarding an obligor's employment, wages or salary, medical insurance, start date and location of employment.

(h) Any employer who fails to report in accordance with the provisions of this section shall be assessed a civil penalty of no more than $25 per failure. If the failure to report is the result of a conspiracy between the employer and the employee or independent contractor not to supply the required report or to supply a false or incomplete report, the employer shall be assessed a civil penalty of no more than $500.

(i) Employers required to report under this section may assess each employee or independent contractor reported $1 for the administrative costs of reporting.

(j) Uses for the new hire information include, but are not limited to, the following:

(1) The state directory of new hires shall furnish the information to the national directory of new hires;

(2) The Bureau for Child Support enforcement shall use information received pursuant to this section to locate individuals for purposes of establishing paternity and of establishing, modifying and enforcing child support obligations and may disclose the information to any agent of the agency that is under contract with the bureau to carry out those purposes;

(3) State agencies responsible for administering a program specified in 42 U.S.C. §1320b-7(b) shall have access to information reported by employers for purposes of verifying eligibility for the program; and

(4) The Bureau of Employment Programs and the Workers' Compensation Commission shall have access to information reported by employers for purposes of administering employment security and Workers' Compensation Programs.

§48-18-126. Review and adjustment of child support orders.

(a) Either parent or, if there has been an assignment of support to the Department of Health and Human Resources, the Bureau for Child Support enforcement shall have the right to request an administrative review of the child support award in the following circumstances:

(1) Where the request for review is received thirty-six months or more after the date of the entry of the order or from the completion of the previous administrative review, whichever is later, the Bureau for Child Support enforcement shall conduct a review to determine whether the amount of the child support award in such order varies from the amount of child support that would be awarded at the time of the review pursuant to the guidelines for child support awards contained in article 13-101, et seq. If the amount of the child support award under the existing order differs by ten percent or more from the amount that would be awarded in accordance with the child support guidelines, the Bureau for Child Support enforcement shall file with the family court a motion for modification of the child support order. If the amount of the child support award under the existing order differs by less than ten percent from the amount that would be awarded in accordance with the child support guidelines, the Bureau for Child Support enforcement may, if it determines that such action is in the best interest of the child or otherwise appropriate, file with the family court a motion for modification of the child support order.

(2) Where the request for review of a child support award is received less than thirty-six months after the date of the entry of the order or from the completion of the previous administrative review, the Bureau for Child Support enforcement shall undertake a review of the case only where it is alleged that there has been a substantial change in circumstances. If the Bureau for Child Support enforcement determines that there has been a substantial change in circumstances and if it is in the best interests of the child, the bureau shall file with the family court a motion for modification of the child support order in accordance with the guidelines for child support awards contained in article 13-101, et seq., of this chapter.

(b) The Bureau for Child Support enforcement shall notify both parents at least once every three years of their right to request a review of a child support order. The notice may be included in any order granting or modifying a child support award. The Bureau for Child Support enforcement shall give each parent at least thirty days' notice before commencing any review and shall further notify each parent, upon completion of a review, of the results of the review, whether of a proposal to move for modification or of a proposal that there should be no change.

(c) When the result of the review is a proposal to move for modification of the child support order, each parent shall be given thirty days' notice of the hearing on the motion, the notice to be directed to the last known address of each party by first-class mail. When the result of the review is a proposal that there be no change, any parent disagreeing with that proposal may, within thirty days of the notice of the results of the review, file with the court a motion for modification setting forth in full the grounds therefor.

(d) For the purposes of this section, a "substantial change in circumstances" includes, but is not limited to, a changed financial condition, a temporary or permanent change in physical custody of the child which the court has not ordered, increased need of the child or other financial conditions. "Changed financial conditions" means increases or decreases in the resources available to either party from any source. Changed financial conditions includes, but is not limited to, the application for or receipt of any form of public assistance payments, unemployment compensation and workers' compensation or a fifteen percent or more variance from the amount of the existing order and the amount of child support that would be awarded according to the child support guidelines.

§48-18-127.

Repealed.

Acts, 2005 Reg. Sess., Ch. 39.

§48-18-128. Billing for fees and costs.

(a) When any filing, copying or other service is provided to the Bureau for Child Support enforcement, the state or county official or the clerk of any court providing such fee for a charge, shall bill the Bureau for Child Support enforcement monthly.

(b) When any filing, copying or other service is provided to a person, agency or entity who is providing services for the Bureau for Child Support enforcement pursuant to a contract, the state or county official or the clerk of any court providing such fee for a charge, shall bill the entity, agency, person or Bureau for Child Support enforcement monthly, in accord with the terms of the contract. The Bureau for Child Support enforcement shall provide the relevant terms of such agreement to those officials upon implementation of any agreement.

(c) A state or county official and the clerk of any court who charges a deposit, library fee, filing fee for filing and copying documents or their service, if the filing, copying or services is for the Bureau for Child Support enforcement or for a person, entity or agency providing services pursuant to a contract as described in this article, shall bill the Bureau for Child Support enforcement monthly or the person, entity or agency providing such services monthly, in accord with the terms of any contract.

§48-18-129. Acceptance of federal purposes; compliance with federal requirements and standards.

(a) The state assents to the purposes of the federal laws regarding child support and establishment of paternity and agrees to accept federal appropriations and other forms of assistance made under or pursuant thereto, and authorizes the receipt of such appropriations into the State Treasury and the receipt of other forms of assistance by the Bureau for Child Support enforcement for expenditure, disbursement and distribution by the bureau in accordance with the provisions of this chapter and the conditions imposed by applicable federal laws, rules and regulations.

(b) Insofar as such actions are consistent with the laws of this state granting authority to the bureau and the commissioner, the bureau shall comply with such requirements and standards as the secretary of the federal department of health and human services may have determined, as of the effective date of this section, to be necessary for the establishment of an effective program for locating obligors, establishing paternity, obtaining support orders and collecting support payments.

(c) The commissioner shall propose for promulgation a legislative rule in accordance with the provisions of chapter twenty-nine-a of this code, to establish time-keeping requirements to assure the maximum funding of incentive payments, grants and other funding sources available to the state for the processing of cases filed for the location of absent parents, the establishment of paternity, and the establishment, modification or enforcement of orders of child support.

§48-18-130. Publicizing child support enforcement services.

The Bureau for Child Support enforcement shall regularly and frequently publicize, through public service announcements, the availability of child support enforcement services under the provisions of this chapter and otherwise, including information as to any application fees for such services and a toll-free telephone number and a postal address at which further information may be obtained.

§48-18-131. Access to records, confidentiality.

(a) All records in the possession of the Bureau for Child Support enforcement, including records concerning an individual case of child or spousal support, are confidential and shall not be released except as follows:

(1) Records shall be disclosed or withheld as required by federal law or regulations promulgated thereunder notwithstanding other provisions of this section.

(2) Information as to the whereabouts of a party or the child shall not be released to a person against whom a protective order has been entered with respect to that party or child or where the state has reason to believe that the release of the information to the person making the request may result in physical or emotional harm to the party or the child.

(3) The phone number, address, employer and other information regarding the location of the obligor, the obligee and the child shall only be disclosed: (A) Upon his or her written consent, to the person whom the consent designates; or (B) notwithstanding subdivision (4) of this subsection, to the obligee, the obligor, the child or the caretaker or representative of the child, upon order of a court if the court finds that the disclosure is for a bona fide purpose, is not contrary to the best interest of a child and does not compromise the safety of any party: Provided, That the identity and location of the employer may be disclosed on the letters, notices and pleadings of the bureau as necessary and convenient for the determination of support amounts and the establishment, investigation, modification, enforcement, collection and distribution of support.

(4) Information and records other than the phone number, address, employer and information regarding the location of the obligor, the obligee and the child shall be disclosed to the obligor, the obligee, the child or the caretaker of the child or his or her duly authorized representative, upon his or her written request: Provided, That when the obligor requests records other than collection and distribution records, financial records relevant to the determination of the amount of support pursuant to the guidelines, or records the obligor has supplied, the bureau shall mail a notice by first-class mail to the last known address of the obligee notifying him or her of the request. The notice shall advise the obligee of his or her right to object to the release of records on the grounds that the records are not relevant to the determination of the amount of support or the establishment, modification, enforcement, collection or distribution of support. The notice shall also advise the obligee of his or her right to disclosure of records provided in this section in order to determine what records the Bureau for Child Support enforcement may have. In the event of any objection, the bureau shall determine whether or not the information shall be released.

(5) Information in specific cases may be released as necessary to determine the identity, location, employment, income and assets of an obligor.

(6) Information and records may be disclosed to the bureau of vital statistics, Bureau of Employment Programs, the workers' compensation commission, State Tax Department and the internal revenue service, or other state or federal agencies or departments that are necessary or desirable in obtaining any address, employment, wage or benefit information for the purpose of determining the amount of support or establishing, enforcing, collecting and distributing support.

(b) Any person who willfully violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000, or confined in the county or regional jail not more than six months, or both fined and confined.

§48-18-132. Access to information.

(a) All state, county and municipal agencies' offices and employers, including profit, nonprofit and governmental employers, receiving a request for information and assistance from the Bureau for Child Support Enforcement or any out-of-state agency administering a program under Title IV-D of the Social Security Act shall cooperate with the bureau or with the out-of-state agency in the location of parents who have abandoned and deserted children and shall provide the bureau or the out-of-state agency with all available pertinent information concerning the location, income and property of those parents.

(b) Notwithstanding any other provision of law to the contrary, any entity conducting business in this state or incorporated under the laws of this state shall, upon certification by the bureau or any out-of-state agency administering a program under Title IV-D of the Social Security Act that the information is needed to locate a parent for the purpose of collecting or distributing child support, provide the bureau or the out-of-state agency with the following information about the parent: Full name, Social Security number, date of birth, home address, wages and number of dependents listed for income tax purposes: Provided, That no entity may provide any information obtained in the course of providing legal services, medical treatment or medical services.

(c) (1) The Bureau for Child Support Enforcement shall have access, subject to safeguards on privacy and information security, and to the nonliability of entities that afford such access under this subdivision, to information contained in the following records, including automated access, in the case of records maintained in automated databases:

(A) Records of other state and local government agencies, including, but not limited to:

(i) Vital statistics, including records of marriage, birth and divorce;

(ii) State and local tax and revenue records, including information on residence address, employer, income and assets;

(iii) Records concerning real and titled personal property;

(iv) Records of occupational and professional licenses and records concerning the ownership and control of corporations, partnerships and other business entities;

(v) Employment security records;

(vi) Records of agencies administering public assistance programs;

(vii) Records of the Division of Motor Vehicles; and

(viii) Corrections records.

(B) Certain records held by private entities with respect to individuals who owe or are owed support or certain individuals against, or with respect to, whom a support obligation is sought, consisting of:

(i) The names and addresses of such individuals and the names and addresses of the employers of such individuals, as appearing in the customer records of public utilities, cable television companies, telephone companies and cellular telephone companies, pursuant to an administrative subpoena authorized by section one hundred twenty-three, article eighteen of this chapter; and

(ii) Information, including information on assets and liabilities, on such individuals held by financial institutions.

(2) Out-of-state agencies administering programs under Title IV-D of the Social Security Act shall, without the need for any court order, have the authority to access records in this state by making a request through the Bureau for Child Support Enforcement.

(d) All federal and state agencies conducting activities under Title IV-D of the Social Security Act shall have access to any system used by this state to locate an individual for purposes relating to motor vehicles or law enforcement.

(e) Out-of-state agencies administering programs under Title IV-D of the Social Security Act shall have the authority and right to access and use, for the purpose of establishing or enforcing a support order, the state law-enforcement and motor vehicle databases.

(f) The Bureau for Child Support Enforcement and out-of-state agencies administering programs under Title IV-D of the Social Security Act shall have the authority and right to access and use, for the purpose of establishing or enforcing a support order, interstate networks that state law-enforcement agencies and motor vehicle agencies subscribe to or participate in, such as the National Law-Enforcement Telecommunications System (NLETS) and the American Association of Motor Vehicle Administrators (AAMVA) networks.

(g) No state, county or municipal agency or licensing board required to release information pursuant to the provisions of this section to the Bureau for Child Support Enforcement or to any out-of-state agency administering programs under Title IV-D of the Social Security Act may require the Bureau for Child Support Enforcement or any out-of-state agency to obtain a court order prior to the release of the information.

(h) Any information received pursuant to the provisions of this section is subject to the confidentiality provisions set forth in section 18-131 of this chapter.

§48-18-133. Recording of social security numbers in certain family matters.

(a) The social security number, if any, of any applicant for a professional license, driver's license, occupational license, recreational license, or marriage license must be recorded on the application for such license.

(b) The social security number of any individual who is subject to a divorce decree, support order, or paternity determination or acknowledgment must be placed in the records relating to the matter.

(c) For the purposes of subsection (a) of this section, if the licensing authority allows the use of a number other than the social security number on the face of the document while the social security number is kept on file at the agency, the applicant shall be so advised by such authority.

§48-18-134.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§48-18-201. General Provisions related to requests for assistance, recalculation of support amounts, preparation of petition and proposed orders.

(a) An obligor or an obligee under a child support order may seek and obtain the assistance of the Bureau for Child Support Enforcement to perform a recalculation of the support amount and prepare and present a petition seeking modification of a child support order and the presentation of a proposed order modifying support to the family court.

(b) A request for services authorized by this section shall constitute an application for services from the Bureau for Child Support Enforcement.

(c) The duties and actions directed or authorized when a request is made pursuant to this section shall be exercised by the employees and agents of the Bureau for Child Support Enforcement under the supervision and direction of Bureau for Child Support Enforcement attorneys as part of, and in addition to, their duties as set out in section one hundred three, article nineteen of this chapter.

(d) In performing its duties under this section, the Bureau for Child Support Enforcement is authorized to issue subpoenas and subpoenas duces tecum, pursuant to the provisions of section one hundred twenty-three of this article, to require an obligor or obligee to produce and permit inspection and copying of designated books, papers, documents or tangible things pursuant to Rule 45 of the Rules of Civil Procedure or section one hundred twenty-three of this article.

(e) When the Bureau for Child Support Enforcement is authorized or required by this section to notify or give notice to a party, the notice shall be given in the same manner as required for service of a petition for modification of support filed with the family court.

(f) The procedures and forms used shall provide that one party may request that their residential address and the address and identity of the employer not be revealed to another party.

(g) The Bureau for Child Support Enforcement may refuse to accept a request or take action on a request for assistance if it determines there are existing ongoing proceedings which would create a conflict, or if it determines that the request was not in good faith based on the allegations made, a history of multiple such requests or other information. If the Bureau for Child Support Enforcement makes a determination to refuse the request for assistance, it shall notify the party making the request for assistance and if the responding party has already been notified of the request, the responding party.

(h) The Bureau for Child Support Enforcement shall prepare an explanation of the process and procedures it will use to process the request for assistance under this section. The explanation shall be made available generally to the public, given to every person who makes a request and included with the notice to the responding party.

§48-18-202. Request for assistance by party.

(a) To make a request for assistance under this article, a party shall submit the request in writing to the Bureau for Child Support Enforcement on a form provided by the bureau. The written request form shall include all of the requesting party's information known to the party that is relevant to determine the child support amount. The request shall be accompanied by:

(1) A copy of the order being modified or, in the discretion of the bureau, information sufficient to permit the bureau to retrieve or identify the order;

(2) A form containing a statement of all of the requesting party's information known to the party that is relevant to determining the amount of child support, including a general statement or argument advancing the reason the request is being made;

(3) Copies of documentation reasonably available to the requesting party setting forth all of the requesting party's information that is relevant to determine the amount of child support;

(4) A statement setting forth the relevant information pertaining to the responding party's earnings and child support that is known or believed to be true by the requesting party;

(5) Copies of any relevant documentation which the requesting party may have in its possession which would be relevant to determining the responding party's child support obligations; and

(6) A statement of all other known proceedings, pending court proceedings or other pending requests for assistance involving the parties or related to the child or children whose support is being reevaluated.

(b) Upon receipt of notification that an obligor is incarcerated in a regional jail or a state or federal correctional facility, the Bureau for Child Support Enforcement shall determine whether the expected incarceration will exceed six months. If the incarceration will exceed six months, the bureau shall file a petition to modify child support.

§48-18-203. Bureau processing of request for assistance or recalculation.

(a) Upon receipt of a request from a party pursuant to section two hundred two of this article, the Bureau for Child Support Enforcement shall notify the responding party that a request for assistance in the recalculation of the support amount and the related preparation and presentation of a petition or proposed order to modify an existing child support order has been submitted to the Bureau for Child Support Enforcement.

(b) As a part of the notification provided under subsection (a) of this section, notification provided by the Bureau for Child Support Enforcement to the responding party shall include the following:

(1) A blank information statement form, and an explanation of the form;

(2) A statement advising the responding party that if the responding party does not fill out and return the information statement with accompanying documentation, that the information contained on the requesting party's information statement and any attached documentation may be used to prepare a petition and proposed order to modify the parties' existing child support obligations and filed with the family court, if the submitted information shows a substantial change in the parties' circumstances;

(3) A copy of the information statement supplied by the requesting party in support of its request;

(4) A request that the responding party submit a statement and supply a copy of any information or documentation which the responding party may have which would challenge, contradict or supplement the information which has been previously submitted by the requesting party, to allow the Bureau for Child Support Enforcement to more accurately recalculate any modified child support obligations of the parties;

(5) An explanation that the Bureau for Child Support Enforcement may refuse to accept a request or take action on a request if it determines there are existing ongoing proceedings which would create a conflict;

(6) A request that the responding party provide a list of all other known proceedings pending court proceedings or other requests for recalculation or modification of the parties' respective child support obligations; and

(7) An explanation of the process to be followed by the Bureau for Child Support Enforcement in providing the requested assistance, recalculation of the parties' modified child support obligations, including the preparation of a petition, and proposed order to modify the parties' existing child support obligations, when appropriate.

(c) The Bureau for Child Support Enforcement may issue a subpoena or subpoena duces tecum, pursuant to the provisions of section one hundred twenty-three of this article, to require the responding party to produce and permit inspection and copying of designated books, papers, documents or tangible things which are relevant to determine child support.

(d) The Bureau for Child Support Enforcement may issue a subpoena, pursuant to the provisions of section one hundred twenty-three of this article, to produce and permit inspection and copying of designated books, papers, documents or tangible things, relevant to the determination of child support to persons other than the parties to the support order.

(e) The Bureau for Child Support Enforcement may use other information and other communications or procedures available to the Bureau for Child Support Enforcement to gather information relevant to the determination of child support.

§48-18-204. Request for meeting with the Bureau.

(a) Either party may ask for an in-person meeting with the Bureau, prior to the preparation or presentation of any petition to seek a modification of a child support order or any proposed modification order to the family court. As a part of the initial contact and notice to the parties after its receipt of an assistance request under this article, the Bureau for Child Support Enforcement shall inform the parties of their right to meet with the Bureau for Child Support Enforcement to discuss the circumstances and any relevant factors pertaining to the parties' child support obligations. If either party asks for a meeting, the responding party shall be notified that a meeting has been requested. The parties shall not meet with the Bureau at the same time except as allowed in the discretion of the Bureau. No party may be required to meet with the Bureau.

(b) A party may modify an information statement or provide additional documents at the meeting or at any time before the Bureau sends its proposed order to the family court.

§48-18-205. Bureau action on request of recalculation and presentation of proposed order.

(a) If the bureau determines that no credible information exists to establish finding of a substantial change in circumstances as required by section one hundred five, article eleven of this chapter or section one hundred six, article fourteen of this chapter, the Bureau for Child Support Enforcement shall notify the parties of that fact and notify the parties that the Bureau for Child Support Enforcement will not be preparing a petition of proposed order seeking modification of the parties' child support obligation. Under those circumstances, if the parties disagree with the Bureau for Child Support Enforcement's assessment and wish to independently file a petition for modification, the parties may still seek modification of child support by filing a petition for modification of an order for support with the family court under the provisions of section one hundred five or one hundred six, article eleven of this chapter or under the provisions of section one hundred six, article fourteen of this chapter.

(b) If the Bureau for Child Support Enforcement determines that there has been a substantial change of circumstances as required by section one hundred five, article eleven of this chapter or by section one hundred six, article fourteen of this chapter, then the Bureau for Child Support Enforcement shall prepare a petition and proposed order modifying the child support order to be filed with the clerk of the family court.

(c) Any such petition filed by the Bureau for Child Support Enforcement filed pursuant to this article shall include the following:

(1) A copy of the proposed order;

(2) A print-out of the child support guidelines calculations;

(3) A notice of the bureau's action;

(4) The documents and statements relied upon;

(5) Any statement of findings or justification the bureau is required or determines to include; and

(6) A form and instructions for filing an objection to the proposed order, should a party wish to do so, which form shall require a statement of the ground or grounds for filing the objection.

(d) The Bureau for Child Support Enforcement's proposed order shall be based on the child support guidelines: Provided, That the bureau may disregard the child support guidelines or adjust the amount as allowed by section seven hundred two, article thirteen of this chapter in the following instances:

(1) When the previous child support order disregarded the child support guidelines, the grounds for the disregarding or adjusting the guidelines are stated in the worksheet or previous order or are agreed upon by the parties, or are otherwise clear, and those grounds continue to exist and can be applied to the current circumstances; or

(2) If new grounds for the disregard or adjustment are fully explained in the proposed order.

(e) Within six months of the time that a child support obligation becomes $1,000 in arrears the Bureau for Child Support Enforcement shall notify the obligor that he or she may be in violation of section twenty-nine, article five, chapter sixty-one of this code, felony nonsupport, should the arrearage increase to $8,000. The notice shall also advise the obligor of the availability of child support modification, the amnesty program established in section three hundred two, article one of this chapter and the possibility of establishing a payment plan with the bureau: Provided, That where the monthly child support obligation is greater than $1,000, the notice shall be sent when the arrearage equals to or greater than three months child support obligation.

(1) If the obligor fails to respond within thirty days, the Bureau for Child Support Enforcement shall file a petition for contempt pursuant to section five hundred three, article fourteen of this chapter.

(2) If the obligor responds within thirty days, the Bureau for Child Support Enforcement shall review the response and file appropriate pleadings which may include a motion for modification of child support.

(3) The Bureau for Child Support Enforcement will have one year from the amendment and reenactment of this section during the two thousand eight legislative session to notify obligors who currently owe $1,000 or more in child support arrearages or, where the monthly child support obligation is greater than $1,000, the arrearage is equal to or greater than three months child support obligation, of the child support modification options available to them.

§48-18-206. Family court action on petition and proposed order prepared by Bureau for Child Support Enforcement.

(a) Upon receipt of petition for modification and proposed order prepared by the Bureau for Child Support Enforcement in accordance with the provisions of this article, the circuit clerk shall serve a copy of the petition and the proposed order upon all parties to the proceeding by personal service or by United States certified mail, return receipt requested, and direct the parties to file any objections to the proposed modified child support order within twenty days of the date of receiving such notice.

(b) Within five days of the filing of a petition for modification and proposed order, the circuit clerk shall notify the family court.

(c) If no party files timely objection to the proposed order or timely requests a hearing on the petition after receiving such notice, then the family court shall proceed to review the petition and proposed order sua sponte, and shall issue the proposed order. If the family court receives no objection, but the family court concludes that the proposed order should not be entered or should be changed, it shall set the matter for hearing.

(d) If the family court receives an objection to the petition or proposed order, the family court shall set a date and time for hearing.

(e) At any hearing on the proposed order, the family court shall treat the proposed order as a motion for modification made by the party requesting the bureau to initiate the modification. The actions of the family court at a hearing shall be de novo and shall not be an appeal from the bureau's recommended order. The family court shall notify the parties of the hearing and of the parties' rights and the procedures to be followed.

(f) The fees to be assessed for filing and service of the petition and the disbursement of the fee for petitions filed pursuant to this section shall be the same as the fee charged by the clerk for petitioning for an expedited modification of a child support order, as set forth in section eleven, article one, chapter fifty-nine of this code.

ARTICLE 19. BUREAU FOR CHILD SUPPORT ENFORCEMENT ATTORNEY.

§48-19-101. Purposes; how article to be construed.

(a) The purposes of this article are:

(1) To enumerate and describe the functions and duties of the Bureau for Child Support enforcement attorney as an employee of the Bureau for Child Support enforcement;

(2) To ensure that procedures followed by the Bureau for Child Support enforcement attorney will protect the best interests of children in domestic relations matters; and

(3) To compel the enforcement of support orders, thereby ensuring that persons legally responsible for the care and support of children assume their legal obligations and reduce the financial cost to this state of providing public assistance funds for the care of children.

(b) This article shall be construed to facilitate the resolution of domestic relations matters.

§48-19-102. Appointment of Bureau for Child Support Enforcement attorneys.

 (a) Each Bureau for Child Support Enforcement attorney shall be appointed by the Commissioner of the Bureau for Child Support Enforcement. The Bureau for Child Support Enforcement attorneys shall be duly qualified attorneys licensed to practice in the courts of this state. Bureau for Child Support Enforcement attorneys shall be exempted from the appointments in the indigent cases which would otherwise be required pursuant to article twenty-one, chapter twenty-nine of this code.

(b) Nothing contained herein shall prohibit the Commissioner from temporarily assigning, from time to time as caseload may dictate, a Bureau for Child Support Enforcement attorney from one geographical area to another geographical area.

(c) The Bureau for Child Support Enforcement attorney is an employee of the Bureau for Child Support Enforcement.

§48-19-103. Duties of the bureau for support enforcement attorneys.

Subject to the control and supervision of the commissioner:

(a) The Bureau for Child Support enforcement attorney shall supervise and direct the secretarial, clerical and other employees in his or her office in the performance of their duties as such performance affects the delivery of legal services. The Bureau for Child Support enforcement attorney will provide appropriate instruction and supervision to employees of his or her office who are nonlawyers, concerning matters of legal ethics and matters of law, in accordance with applicable state and federal statutes, rules and regulations.

(b) In accordance with the requirements of rule 5.4(c) of the rules of professional conduct as promulgated and adopted by the Supreme Court of Appeals, the Bureau for Child Support enforcement attorney shall not permit a nonlawyer who is employed by the Department of Health and Human Resources in a supervisory position over the Bureau for Child Support enforcement attorney to direct or regulate the attorney's professional judgment in rendering legal services to recipients of services in accordance with the provisions of this chapter; nor shall any nonlawyer employee of the department attempt to direct or regulate the attorney's professional judgment.

(c) The Bureau for Child Support enforcement attorney shall make available to the public an informational pamphlet, designed in consultation with the commissioner. The informational pamphlet shall explain the procedures of the court and the Bureau for Child Support enforcement attorney; the duties of the Bureau for Child Support enforcement attorney; the rights and responsibilities of the parties; and the availability of human services in the community. The informational pamphlet shall be provided as soon as possible after the filing of a complaint or other initiating pleading. Upon request, a party to a domestic relations proceeding shall receive an oral explanation of the informational pamphlet from the office of the Bureau for Child Support enforcement attorney.

(d) The Bureau for Child Support enforcement shall act to establish the paternity of every child born out of wedlock for whom paternity has not been established, when the child's caretaker is an applicant for or recipient of temporary assistance for needy families, and when the caretaker has assigned to the division of human services any rights to support for the child which might be forthcoming from the putative father: Provided, That if the Bureau for Child Support enforcement attorney is informed by the secretary of the Department of Health and Human Resources or his or her authorized employee that it has been determined that it is against the best interest of the child to establish paternity, the Bureau for Child Support enforcement attorney shall decline to so act. The Bureau for Child Support enforcement attorney, upon the request of the mother, alleged father or the caretaker of a child born out of wedlock, regardless of whether the mother, alleged father or the caretaker is an applicant or recipient of temporary assistance for needy families, shall undertake to establish the paternity of such child.

(e) The Bureau for Child Support enforcement attorney shall undertake to secure support for any individual who is receiving temporary assistance for needy families when such individual has assigned to the division of human services any rights to support from any other person such individual may have: Provided, That if the Bureau for Child Support enforcement attorney is informed by the secretary of the Department of Health and Human Resources or his or her authorized employee that it has been determined that it is against the best interests of a child to secure support on the child's behalf, the Bureau for Child Support enforcement attorney shall decline to so act. The Bureau for Child Support enforcement attorney, upon the request of any individual, regardless of whether such individual is an applicant or recipient of temporary assistance for needy families, shall undertake to secure support for the individual. If circumstances require, the Bureau for Child Support enforcement attorney shall utilize the provisions of article 16-101, et seq., of this code and any other reciprocal arrangements which may be adopted with other states for the establishment and enforcement of support obligations, and if such arrangements and other means have proven ineffective, the Bureau for Child Support enforcement attorney may utilize the federal courts to obtain and enforce court orders for support.

(f) The Bureau for Child Support enforcement attorney shall pursue the enforcement of support orders through the withholding from income of amounts payable as support:

(1) Without the necessity of an application from the obligee in the case of a support obligation owed to an obligee to whom services are already being provided under the provisions of this chapter; and

(2) On the basis of an application for services in the case of any other support obligation arising from a support order entered by a court of competent jurisdiction.

(g) The Bureau for Child Support enforcement attorney may decline to commence an action to obtain an order of support under the provisions of article 14-101, et seq., if an action for divorce, annulment or separate maintenance is pending, or the filing of such action is imminent, and such action will determine the issue of support for the child: Provided, That such action shall be deemed to be imminent if it is proposed by the obligee to be commenced within the twenty-eight days next following a decision by the Bureau for Child Support enforcement attorney that an action should properly be brought to obtain an order for support.

(h) If the Bureau for Child Support enforcement office, through the Bureau for Child Support enforcement attorney, shall undertake paternity determination services, child support collection or support collection services upon the written request of an individual who is not an applicant or recipient of assistance from the division of human services, the office may impose an application fee for furnishing such services. Such application fee shall be in a reasonable amount, not to exceed $25, as determined by the commissioner: Provided, That the commissioner may fix such amount at a higher or lower rate which is uniform for this state and all other states if the secretary of the federal department of health and human services determines that a uniform rate is appropriate for any fiscal year to reflect increases or decreases in administrative costs. Any cost in excess of the application fee so imposed may be collected from the obligor who owes the child or spousal support obligation involved.

§48-19-104. Vacancies; interim Bureau for Child Support enforcement attorney.

(a) If the position of Bureau for Child Support enforcement attorney becomes vacant for any reason, the commissioner shall appoint a person to the position of Bureau for Child Support enforcement attorney not later than six months after the vacancy occurs.

(b) If necessary, the commissioner may appoint an interim Bureau for Child Support enforcement attorney to serve for not longer than six months until a Bureau for Child Support enforcement attorney is appointed pursuant to this section.

§48-19-105. Compensation; expenses.

The salary of a Bureau for Child Support enforcement attorney shall be not less than $45,000 per year, and shall be fixed by the commissioner, who shall take into consideration ability, performance of duty and experience. The compensation and expenses of the employees of the office and all operating expenses incurred by the office shall be fixed by the commissioner and paid by the Bureau for Child Support enforcement.

ARTICLE 20. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT.

PART 1. GENERAL PROVISIONS.

§48-20-101. Short title.

This article may be cited as the "Uniform Child Custody Jurisdiction and Enforcement Act."

PART 1. GENERAL PROVISIONS.

§48-20-102. Definitions.

(a) "Abandoned" means left without provision for reasonable and necessary care or supervision.

(b) "Child" means an individual who has not attained eighteen years of age.

(c) "Child custody determination" means a judgment, decree or other order of a court providing for the legal custody, physical custody or visitation with respect to a child. The term includes a permanent, temporary, initial and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

(d) "Child custody proceeding" means a proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights and protection from domestic violence in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation or enforcement under part 20-301, et seq.

(e) "Commencement" means the filing of the first pleading in a proceeding.

(f) "Court" means an entity authorized under the law of a state to establish, enforce or modify a child custody determination. Reference to a court of West Virginia means the family court.

(g) "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

(h) "Initial determination" means the first child custody determination concerning a particular child.

(i) "Issuing court" means the court that makes a child custody determination for which enforcement is sought under this chapter.

(j) "Issuing state" means the state in which a child custody determination is made.

(k) "Modification" means a child custody determination that changes, replaces, supersedes or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.

(l) "Person" means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government, governmental subdivision, agency or instrumentality; public corporation; or any other legal or commercial entity.

(m) "Person acting as a parent" means a person, other than a parent, who:

(1) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and

(2) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.

(n) "Physical custody" means the physical care and supervision of a child.

(o) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

(p) "Tribe" means an Indian tribe or band or Alaskan Native village which is recognized by federal law or formally acknowledged by a state.

(q) "Warrant" means an order issued by a court authorizing law-enforcement officers to take physical custody of a child.

§48-20-103. Proceedings governed by other law.

This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

§48-20-104. Application to Indian tribes.

(a) A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. §1901 et seq., is not subject to this chapter to the extent that it is governed by the Indian Child Welfare Act.

(b) A court of this state shall treat a tribe as if it were a state of the United States for purposes of applying parts 1 and 2.

(c) A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under part 3.

§48-20-105. International application of chapter.

(a) A court of this state shall treat a foreign country as if it were a state of the United States for purpose of applying parts 1 and 2.

(b) Except as otherwise provided in subsection (c) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under article three of this chapter.

(c) A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.

§48-20-106. Effect of child custody determination.

A child custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this state or notified in accordance with section 20-108 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

§48-20-107. Priority.

If a question of existence or exercise of jurisdiction under this chapter is raised in a child custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously.

§48-20-108. Notice to persons outside state.

(a) Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.

(b) Proof of service may be made in the manner prescribed by the law of this state or by the law of the state in which the service is made.

(c) Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

§48-20-109. Appearance and limited immunity.

(a) A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or having been physically present for the purpose of participating, in the proceeding.

(b) A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.

(c) The immunity granted by subsection (a) of this section does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this state.

§48-20-110. Communication between courts.

(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.

(b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

(c) Communication between courts on schedules, calendars, court records and similar matters may occur without informing the parties. A record need not be made of the communication.

(d) Except as otherwise provided in subsection (c) of this section, a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record.

(e) For the purposes of this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

§48-20-111. Taking testimony in another state.

(a) In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.

(b) A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.

(c) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

§48-20-112. Cooperation between courts; preservation of records.

(a) A court of this state may request the appropriate court of another state to:

(1) Hold an evidentiary hearing;

(2) Order a person to produce or give evidence pursuant to procedures of that state;

(3) Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;

(4) Forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented and any evaluation prepared in compliance with the request; and

(5) Order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.

(b) Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in subsection (a) of this section.

(c) Travel and other necessary and reasonable expenses incurred under subsections (a) and (b) of this section may be assessed against the parties according to the law of this state.

(d) A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations and other pertinent records with respect to a child custody proceeding until the child attains eighteen years of age. Upon appropriate request by a court or law-enforcement official of another state, the court shall forward a certified copy of those records.

PART 2. JURISDICTION.

§48-20-201. Initial child custody jurisdiction.

(a) Except as otherwise provided in section 20-204, a court of this state has jurisdiction to make an initial child custody determination only if:

(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2) A court of another state does not have jurisdiction under subdivision (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 20-207 or 20-208, and:

(A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(B) Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships;

(3) All courts having jurisdiction under subdivision (1) or (2) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 20-207 or 20-208; or

(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2) or (3) of this subsection.

(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

§48-20-202. Exclusive, continuing jurisdiction.

(a) Except as otherwise provided in section 20-204, a court of this state which has made a child custody determination consistent with section 20-201 or 20-203 has exclusive, continuing jurisdiction over the determination until:

(1) A court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships; or

(2) A court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state.

(b) A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 20-201.

§48-20-203. Jurisdiction to modify determination.

Except as otherwise provided in section 20-204, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under subdivision (1) or (2), subsection (a), section 20-201 and:

(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under section 20-202 or that a court of this state would be a more convenient forum under section 20-207; or

(2) A court of this state or a court of the other state determines that the child, the child's parents and any person acting as a parent do not presently reside in the other state.

§48-20-204. Temporary emergency jurisdiction.

(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

(b) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under sections 20-201 through 20-203, inclusive, of this article, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections 20-201 through 20-203, inclusive, of this article. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 20-201 through 20-203, inclusive, of this article, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.

(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 20-201 through 20-203, inclusive, of this article, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 20-201 through 20-203, inclusive, of this article. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.

(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under sections 20-201 through 20-203, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to sections 20-201 through 20-203, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

§48-20-205. Notice; opportunity to be heard; joinder.

(a) Before a child custody determination is made under this chapter, notice and an opportunity to be heard in accordance with the standards of section 20-108, must be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated and any person having physical custody of the child.

(b) This chapter does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.

(c) The obligation to join a party and the right to intervene as a party in a child custody proceeding under this chapter are governed by the law of this state as in child custody proceedings between residents of this state.

§48-20-206. Simultaneous proceedings.

(a) Except as otherwise provided in section 20-204, a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under 20-207.

(b) Except as otherwise provided in section 20-204, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section 20-209. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

(c) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:

(1) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;

(2) Enjoin the parties from continuing with the proceeding for enforcement; or

(3) Proceed with the modification under conditions it considers appropriate.

§48-20-207. Inconvenient forum.

(a) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court's own motion or request of another court.

(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) The length of time the child has resided outside this state;

(3) The distance between the court in this state and the court in the state that would assume jurisdiction;

(4) The relative financial circumstances of the parties;

(5) Any agreement of the parties as to which state should assume jurisdiction;

(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

(d) A court of this state may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

§48-20-208. Jurisdiction declined by reason of conduct.

(a) Except as otherwise provided in section 20-204 or by other law of this state, if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:

(1) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;

(2) A court of the state otherwise having jurisdiction under sections 20-201 through 20-203, inclusive, of this article determines that this state is a more appropriate forum under section 20-207; or

(3) No court of any other state would have jurisdiction under the criteria specified in sections 20-201 through 20-203, inclusive, of this article.

(b) If a court of this state declines to exercise its jurisdiction pursuant to subsection (a) of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under sections 20-201 through 20-203, inclusive, of this article.

(c) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a) of this section, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs or expenses against this state unless authorized by law other than this chapter.

§48-20-209. Information to be submitted to court.

(a) Subject to local law providing for the confidentiality of procedures, addresses and other identifying information in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five years and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:

(1) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number and the date of the child custody determination, if any;

(2) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights and adoptions, and, if so, identify the court, the case number and the nature of the proceeding; and

(3) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.

(b) If the information required by subsection (a) of this section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.

(c) If the declaration as to any of the items described in subdivisions (1) through (3), inclusive, subsection (a) of this section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court's jurisdiction and the disposition of the case.

(d) Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.

(e) If a party alleges in an affidavit or a pleading under oath that the health, safety or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety or liberty of the party or child and determines that the disclosure is in the interest of justice.

§48-20-210. Appearance of parties and child.

(a) In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.

(b) If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to section 20-108 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.

(c) The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.

(d) If a party to a child custody proceeding who is outside this state is directed to appear under subsection (b) of this section or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.

PART 3. ENFORCEMENT.

§48-20-301. Definitions.

(a) "Petitioner" means a person who seeks enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

(b) "Respondent" means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

§48-20-302. Enforcement under Hague convention.

Under this article a court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.

§48-20-303. Duty to enforce.

(a) A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this article and the determination has not been modified in accordance with this article.

(b) A court of this state may utilize any remedy available under other law of this state to enforce a child custody determination made by a court of another state. The remedies provided in this article are cumulative and do not affect the availability of other remedies to enforce a child custody determination.

§48-20-304. Temporary visitation.

(a) A court of this state which does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing:

(1) A visitation schedule made by a court of another state; or

(2) The visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.

(b) If a court of this state makes an order under subdivision (2), subsection (a) of this section, it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in part 2 of this article. The order remains in effect until an order is obtained from the other court or the period expires.

§48-20-305. Registration of child custody determination.

(a) A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the appropriate court in this state:

(1) A letter or other document requesting registration;

(2) Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and

(3) Except as otherwise provided in section 20-209, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.

(b) On receipt of the documents required by subsection (a) of this section, the registering court shall:

(1) Cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and

(2) Serve notice upon the persons named pursuant to subdivision (3), subsection (a) of this section and provide them with an opportunity to contest the registration in accordance with this section.

(c) The notice required by subdivision (2), subsection (b) of this section must state that:

(1) A registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state;

(2) A hearing to contest the validity of the registered determination must be requested in writing to the court within twenty days after service of notice; and

(3) Failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

(d) A person seeking to contest the validity of a registered order must request a hearing within twenty days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:

(1) The issuing court did not have jurisdiction under part 2 of this article;

(2) The child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under 20-201, et seq.; or

(3) The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of section 20-108 in the proceedings before the court that issued the order for which registration is sought.

(e) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.

(f) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

§48-20-306. Enforcement of registered determination.

(a) A court of this state may grant any relief normally available under the law of this state to enforce a registered child custody determination made by a court of another state.

(b) A court of this state shall recognize and enforce, but may not modify, except in accordance with article two of this chapter, a registered child custody determination of a court of another state.

§48-20-307. Simultaneous proceedings.

If a proceeding for enforcement under this article is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under part (2) of this article, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.

§48-20-308. Expedited enforcement of child custody determination.

(a) A petition under this article must be verified. Certified copies of all orders sought to be enforced and of any order confirming registration must be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.

(b) A petition for enforcement of a child custody determination must state:

(1) Whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;

(2) Whether the determination for which enforcement is sought has been vacated, stayed or modified by a court whose decision must be enforced under this chapter and, if so, identify the court, the case number and the nature of the proceeding;

(3) Whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights and adoptions and, if so, identify the court, the case number and the nature of the proceeding;

(4) The present physical address of the child and the respondent, if known;

(5) Whether relief in addition to the immediate physical custody of the child and attorney's fees is sought, including a request for assistance from law-enforcement officials and, if so, the relief sought; and

(6) If the child custody determination has been registered and confirmed under section 20-305 of this article, the date and place of registration.

(c) Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing must be held on the judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.

(d) An order issued under subsection (c) of this section must state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs and expenses under section 20-312, and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:

(1) The child custody determination has not been registered and confirmed under section 20-305, and that:

(A) The issuing court did not have jurisdiction under part 20-201, et seq.;

(B) The child custody determination for which enforcement is sought has been vacated, stayed or modified by a court having jurisdiction to do so under part 20-201, et seq.;

(C) The respondent was entitled to notice, but notice was not given in accordance with the standards of section 20-108, in the proceedings before the court that issued the order for which enforcement is sought; or

(2) The child custody determination for which enforcement is sought was registered and confirmed under section 20-305, but has been vacated, stayed or modified by a court of a state having jurisdiction to do so under article two of this chapter; or

(3) There is credible evidence of abuse or neglect of the child or children who are the subject of the petition and the credible evidence has been reported to a child welfare agency, a law-enforcement officer, a licensed physician, a licensed social worker, or a licensed mental health professional and an investigation or other proceeding has not been concluded: Provided, That the court may continue the hearing to a day certain to monitor the investigation or proceedings or take any further action as the circumstances and the best interest of the child may warrant.

§48-20-309. Service of petition and order.

Except as otherwise provided in section 20-311, the petition and order must be served, by any method authorized by the law of this state, upon respondent and any person who has physical custody of the child.

§48-20-310. Hearing and order.

(a) Unless the court issues a temporary emergency order pursuant to section 20-204, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:

(1) The child custody determination has not been registered and confirmed under section 20-305 and that:

(A) The issuing court did not have jurisdiction under part 20-201, et seq., of this chapter;

(B) The child custody determination for which enforcement is sought has been vacated, stayed or modified by a court of a state having jurisdiction to do so under part 20-201, et seq.; or

(C) The respondent was entitled to notice, but notice was not given in accordance with the standards of section 20-108, in the proceedings before the court that issued the order for which enforcement is sought; or

(2) The child custody determination for which enforcement is sought was registered and confirmed under section 20-305, but has been vacated, stayed or modified by a court of a state having jurisdiction to do so under part 20-201, et seq.; or

(3) There is credible evidence of abuse or neglect of the child or children who are the subject of the petition and the credible evidence has been reported to a child welfare agency, a law-enforcement officer, a licensed physician, a licensed social worker, or a licensed mental health professional and an investigation or other proceeding has not been concluded: Provided, That the court may continue the hearing to a day certain to monitor the investigation or proceedings or take any further action as the circumstances and the best interest of the child may warrant.

(b) The court shall award the fees, costs and expenses authorized under section 20-312 and may grant additional relief, including a request for the assistance of law-enforcement officials, and set a further hearing to determine whether additional relief is appropriate.

(c) If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.

(d) A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this article.

§48-20-311. Warrant to take physical custody of child.

(a) Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is imminently likely to suffer serious physical harm or be removed from this state.

(b) If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. The petition must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant must include the statements required by subsection 20-308(b).

(c) A warrant to take physical custody of a child must:

(1) Recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;

(2) Direct law-enforcement officers to take physical custody of the child immediately; and

(3) Provide for the placement of the child pending final relief.

(d) The respondent must be served with the petition, warrant and order immediately after the child is taken into physical custody.

(e) A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law-enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law-enforcement officers to make a forcible entry at any hour.

(f) The court may impose conditions upon placement of a child to ensure the appearance of the child and the child's custodian.

§48-20-312. Costs, fees and expenses.

(a) The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

(b) The court may not assess fees, costs or expenses against a state unless authorized by law other than this chapter.

§48-20-313. Recognition and enforcement.

A court of this state shall accord full faith and credit to an order issued by another state and consistent with this chapter which enforces a child custody determination by a court of another state unless the order has been vacated, stayed or modified by a court having jurisdiction to do so under part 20-201, et seq.

§48-20-314. Appeals.

An appeal may be taken from a final order in a proceeding under this article in accordance with expedited appellate procedures in other civil cases. Unless the court enters a temporary emergency order under section 20-204, the enforcing court may not stay an order enforcing a child custody determination pending appeal.

§48-20-315. Role of prosecutor or public official.

(a) In a case arising under this chapter or involving the Hague Convention on the Civil Aspects of International Child Abduction, the prosecutor or other appropriate public official may take any lawful action, including resort to a proceeding under this article or any other available civil proceeding, to locate a child, obtain the return of a child or enforce a child custody determination if there is:

(1) An existing child custody determination;

(2) A request to do so from a court in a pending child custody proceeding;

(3) A reasonable belief that a criminal statute has been violated; or

(4) A reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.

(b) A prosecutor or appropriate public official acting under this section acts on behalf of the court and may not represent any party.

§48-20-316. Role of law enforcement.

At the request of a prosecutor or other appropriate public official acting under section 20-315, a law-enforcement officer may take any lawful action reasonably necessary to locate a child or a party and assist a prosecutor or appropriate public official with responsibilities under said section.

§48-20-317. Costs and expenses.

If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the prosecutor or other appropriate public official and law-enforcement officers under section 20-315 or 20-316.

PART 4. MISCELLANEOUS PROVISIONS.

§48-20-401. Application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§48-20-402. Severability clause.

If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.

§48-20-403. Effective date.

This article takes effect on July 1, 2000.

§48-20-404. Transitional provision.

A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before July 1, 2000, is governed by the law in effect at the time the motion or other request was made.

ARTICLE 21. RESERVED.
ARTICLE 22. ADOPTION.

PART 1. DEFINITIONS.

§48-22-101. Applicability of definitions.

For the purposes of this article the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them in this article. These definitions are applicable unless a different meaning clearly appears from the context.

§48-22-102. Abandonment defined.

"Abandonment" means any conduct by the birth mother, legal father, determined father, outsider father, unknown father or putative father that demonstrates a settled purpose to forego all duties and relinquish all parental claims to the child.

§48-22-103. Adoptive parents, adoptive mother or adoptive father defined.

"Adoptive parents" or "adoptive mother" or "adoptive father" means those persons who, after adoption, are the mother and father of the child.

§48-22-104. Agency defined.

"Agency" means a public or private entity, including the Department of Health and Human Resources, that is authorized by law to place children for adoption.

§48-22-105. Birth father defined.

"Birth father" means the biological father of the child.

§48-22-106. Birth mother defined.

"Birth mother" means the biological mother of the child.

§48-22-107. Birth parents defined.

"Birth parents" mean both the biological father and the biological mother of the child.

§48-22-108. Consent defined.

"Consent" means the voluntary surrender to an individual, not an agency, by a minor child's parent or guardian, for purposes of the child's adoption, of the rights of the parent or guardian with respect to the child, including the legal and physical custody of the child.

§48-22-109. Determined father defined.

"Determined father" means, before adoption, a person: (1) In whom paternity has been established pursuant to the provisions of article 24-101, et seq., and section 16-5-12, whether by adjudication or acknowledgment as set forth therein; or (2) who has been otherwise judicially determined to be the biological father of the child entitled to parental rights; or (3) who has asserted his paternity of the child in an action commenced pursuant to the provisions of article 24-101, et seq., that is pending at the time of the filing of the adoption petition.

§48-22-110. Legal father defined.

"Legal father" means, before adoption, the male person having the legal relationship of parent to a child: (1) Who is married to its mother at the time of conception; or (2) who is married to its mother at the time of birth of the child; or (3) who is the biological father of the child and who marries the mother before an adoption of the child.

§48-22-111. Marital child defined.

"Marital child" means a child born or conceived during marriage.

§48-22-112. Nonmarital child defined.

"Nonmarital child" means a child not born or conceived during marriage.

§48-22-113. Outsider father defined.

"Outsider father" means the biological father of a child born to or conceived by the mother while she is married to another man who is not the biological father of the child.

§48-22-114. Putative father defined.

"Putative father" means, before adoption, any man named by the mother as a possible biological father of the child pursuant to the provisions of section 22-502, who is not a legal or determined father.

§48-22-115. Relinquishment defined.

"Relinquishment" means the voluntary surrender to an agency by a minor child's parent or guardian, for purposes of the child's adoption, of the rights of the parent or guardian with respect to the child, including the legal and physical custody of the child.

§48-22-116. Stepparent adoption defined.

"Stepparent adoption" means an adoption in which the petitioner for adoption is married to one of the birth parents of the child or to an adoptive parent of the child.

§48-22-117. Unknown father defined.

"Unknown father" means a biological father whose identity the biological mother swears is unknown to her before adoption, pursuant to the provisions of section 22-502.

§48-22-201. Persons who may petition for decree of adoption.

Any person not married or any person, with his or her spouse’s consent, or any husband and wife jointly, may petition a circuit court of the county wherein such person or persons reside for a decree of adoption of any minor child or person who may be adopted by the petitioner or petitioners: Provided, That if the minor child to be adopted has been removed from a prior home due to an abuse or neglect proceeding, the petition may be filed in the same county as the original abuse and neglect proceeding regarding the minor child.

§48-22-301. Persons whose consent or relinquishment is required; exceptions.

(a) Subject to the limitations hereinafter set forth, consent to or relinquishment for adoption of a minor child is required of:

(1) The parents or surviving parent of a marital child, whether adult or infant;

(2) The outsider father of a marital child who has been adjudicated to be the father of the child or who has filed a paternity action which is pending at the time of the filing of the petition for adoption;

(3) The birth mother of a nonmarital child, whether adult or infant; and

(4) The determined father.

(b) Consent or relinquishment shall not be required of a parent or of any other person having custody of the adoptive child:

(1) Whose parental rights have been terminated pursuant to the provisions of §49-4-114 of this code;

(2) Whom the court finds has abandoned the child as set forth in §48-22-306 of this code; or

(3) Who, in a stepparent adoption, is the birth parent or adoptive parent of the child and is married to the petitioning adoptive parent. In such stepparent adoption, the parent must assent to the adoption by joining as a party to the petition for adoption.

(c) If the mother, legal father, or determined father is under disability, the court may order the adoption if it finds:

(1) The parental rights of the person are terminated, abandoned, or permanently relinquished;

(2) The person is incurably insane; or

(3) The disability arises solely because of age and an otherwise valid consent or relinquishment has been given.

(d) If all persons entitled to parental rights of the child sought to be adopted are deceased or have been deprived of the custody of the child by law, then consent or relinquishment is required of the legal guardian or of any other person having legal custody of the child at the time. If there is no legal guardian nor any person who has legal custody of the child, then consent or relinquishment is required from some discreet and suitable person appointed by the court to act as the next friend of the child in the adoption proceedings.

(e) If one of the persons entitled to parental rights of the child sought to be adopted is deceased, only the consent or relinquishment of the surviving person entitled to parental rights is required.

(f) If the child to be adopted is 12 years of age or over, the consent of the child is required to be given in the presence of a judge of a court of competent jurisdiction, unless for extraordinary cause, the requirement of such consent is waived by the court.

(g) Any consent to adoption or relinquishment of parental rights shall have the effect of authorizing the prospective adoptive parents or the agency to consent to medical treatment for the child, whether or not such authorization is expressly stated in the consent or relinquishment.

§48-22-302. Timing and execution of consent or relinquishment.

(a) No consent or relinquishment may be executed before the expiration of seventy-two hours after the birth of the child to be adopted.

(b) A consent or relinquishment executed by a parent or guardian as required by the provisions of section 22-301 must be signed and acknowledged in the presence of one of the following:

(1) A judge of a court of record;

(2) A person whom a judge of a court of record designates to take consents or relinquishments;

(3) A notary public;

(4) A commissioned officer on active duty in the military service of the United States, if the person executing the consent or relinquishment is in military service; or

(5) An officer of the foreign service or a consular officer of the United States in another country, if the person executing the consent or relinquishment is in that country.

§48-22-303. Content of consent or relinquishment.

(a) A consent or relinquishment as required by the provisions of section 22-301 must be written in plain English or, if the person executing the consent or relinquishment does not understand English, in the person's primary language. The form of the consent or relinquishment shall include the following, as appropriate:

(1) The date, place and time of the execution of the consent or relinquishment;

(2) The name, date of birth and current mailing address of the person executing the consent or relinquishment;

(3) The date, place of birth and the name or pseudonym ("Baby Boy _____ or Baby Girl _____") of the minor child;

(4) The fact that the document is being executed more than seventy-two hours after the birth of the child;

(5) If a consent, that the person executing the document is voluntarily and unequivocally consenting to the transfer of legal and physical custody to, and the adoption of the child by, an adoptive parent or parents whose name or names may, but need not be, specified;

(6) If a relinquishment, that the person executing the relinquishment voluntarily consents to the permanent transfer of legal and physical custody of the child to the agency for the purposes of adoption;

(7) If a consent, that it authorizes the prospective adoptive parents, or if a relinquishment, that it authorizes the agency, to consent to medical treatment of the child pending any adoption proceeding;

(8) That after the consent or relinquishment is signed and acknowledged, it is final and, unless revoked in accordance with the provisions of section 22-305, it may not be revoked or set aside for any other reason;

(9) That the adoption will forever terminate all parental rights, including any right to visit or communicate with the child and any right of inheritance;

(10) That the adoption will forever terminate all parental obligations of the person executing the consent or relinquishment;

(11) That the termination of parental rights and obligations is permanent whether or not any agreement for visitation or communication with the child is subsequently performed;

(12) That the person executing the consent or relinquishment does so of his or her own free will and the consent or relinquishment has not been obtained by fraud or duress;

(13) That the person executing the consent or relinquishment has:

(i) Received a copy of the consent or relinquishment;

(ii) Been provided the information and afforded the opportunity to participate in the voluntary adoption registry, pursuant to the provisions of article 23-101, et seq.;

(iii) Been advised of the availability of counseling;

(iv) Been advised of the consequences of misidentifying the other birth parent; and

(v) If a birth mother, been advised of the obligation to provide the information required by the provisions of section seven of this article in the case of an unknown father;

(14) That the person executing the consent or relinquishment has not received or been promised any money or anything of value for the consent or relinquishment, other than payments authorized by the provisions of section fourteen-h, article two, chapter sixty-one;

(15) Whether the child is an "Indian child" as defined in the Indian Child Welfare Act, 25 U.S.C. §1903;

(16) That the person believes the adoption of the child is in the child's best interest; and

(17) That the person who is consenting or relinquishing expressly waives notice of any proceeding for adoption unless the adoption is contested, appealed or denied.

(b) A consent or relinquishment may provide explicitly for its conditional revocation if:

(1) Another person whose consent or relinquishment is required does not execute the same within a specified period;

(2) A court determines not to terminate another person's parental relationship to the child; or

(3) In a direct placement for adoption, a petition for adoption by a prospective adoptive parent, named or described in the consent, is denied or withdrawn.

(c) A consent or relinquishment shall also include:

(1) If a consent, the name, address, telephone and facsimile numbers of the lawyer representing the prospective adoptive parents; or

(2) If a relinquishment, the name, address, telephone and facsimile numbers of the agency to which the child is being relinquished; and

(3) Specific instructions on how to revoke the consent or relinquishment.

§48-22-304. Consent or relinquishment by infants.

If a person who has executed a consent to or relinquishment for adoption is under eighteen years of age at the time of the filing of the petition, and such infant parent is a resident of the state, the consent or relinquishment shall be specifically reviewed and approved by the court and a guardian ad litem may be appointed to represent the interests of the infant parent. The guardian ad litem shall conduct a discreet inquiry regarding the consent or relinquishment given, and may inquire of any person having knowledge of the consent or relinquishment. If the guardian ad litem finds reasonable cause to believe that the consent or relinquishment was obtained by fraud or duress, the court may request the infant parent to appear before the court or at a deposition, so that inquiry may be made regarding the circumstances surrounding the execution of the consent or relinquishment. The failure of the court to appoint a guardian ad litem is not grounds for setting aside a decree of adoption.

§48-22-305. Revocation of consent or relinquishment for adoption.

(a) Parental consent or relinquishment, whether given by an adult or minor, may be revoked only if:

(1) The person who executed the consent or relinquishment and the prospective adoptive parent named or described in the consent or the lawyer for said adoptive parent, or the agency in case of relinquishment, agree to its revocation prior to the entry of an adoption order; or

(2) The person who executed the consent or relinquishment proves by clear and convincing evidence, in an action filed either within six months of the date of the execution of the consent or relinquishment or prior to the date an adoption order is final, whichever date is later, that the consent or relinquishment was obtained by fraud or duress; or

(3) The person who executed the consent or relinquishment proves by a preponderance of the evidence, prior to the entry of an adoption order, that a condition allowing revocation as expressly set forth in the consent or relinquishment has occurred; or

(4) The person who executed the consent or relinquishment proves by clear and convincing evidence, prior to the entry of an adoption order, that the consent or relinquishment does not comply with the requirements set forth in this article.

(b) If the custody of a child during the pendency of a petition to revoke a consent or relinquishment is in issue, the court shall conduct a hearing, within thirty days of service of notice upon the respondent, to determine the issue of temporary custody. The court shall award such custody based upon the best interests of the child.

§48-22-306. Conduct presumptively constituting abandonment.

(a) Abandonment of a child over the age of six months shall be presumed when the birth parent:

(1) Fails to financially support the child within the means of the birth parent; and

(2) Fails to visit or otherwise communicate with the child when he or she knows where the child resides, is physically and financially able to do so and is not prevented from doing so by the person or authorized agency having the care or custody of the child: Provided, That such failure to act continues uninterrupted for a period of six months immediately preceding the filing of the adoption petition.

(b) Abandonment of a child under the age of six months shall be presumed when the birth father:

(1) Denounces the child's paternity any time after conception;

(2) Fails to contribute within his means toward the expense of the prenatal and postnatal care of the mother and the postnatal care of the child;

(3) Fails to financially support the child within father's means; and

(4) Fails to visit the child when he knows where the child resides: Provided, That such denunciations and failure to act continue uninterrupted from the time that the birth father was told of the conception of the child until the time the petition for adoption was filed.

(c) Abandonment of a child shall be presumed when the unknown father fails, prior to the entry of the final adoption order, to make reasonable efforts to discover that a pregnancy and birth have occurred as a result of his sexual intercourse with the birth mother.

(d) Notwithstanding any provision in this section to the contrary, any birth parent shall have the opportunity to demonstrate to the court the existence of compelling circumstances preventing said parent from supporting, visiting or otherwise communicating with the child: Provided, That in no event may incarceration provide such a compelling circumstance if the crime resulting in the incarceration involved a rape in which the child was conceived.

PART 4. DELIVERY OF CHILD FOR ADOPTION.

§48-22-401. Delivery of child for adoption; written recital of circumstances.

Whenever a person delivers a child for adoption the person first receiving such child and the prospective adopting parent or parents shall be entitled to receive from such person a written recital of all known circumstances surrounding the birth, medical and family medical history of the child, and an itemization of any facts or circumstances unknown concerning the child's parentage or that may require further development in the form of an affidavit from the birth mother consistent with the provisions of section 22-502.

§48-22-501. Filing of petition for adoption.

The petition for adoption may be filed at any time after the child who is the subject of the adoption is born, the adoptive placement determined and all consents or relinquishments that can be obtained have been executed. The hearing on the petition may be held only after the child has lived with the adoptive parent or parents for a period of six months, proper notice of the petition has been given and all necessary consents or relinquishments have been executed and submitted or the rights of all nonconsenting birth parents have otherwise been terminated.

§48-22-502. Petition and appendix.

(a) The petition shall be verified and set forth:

(1) The name, age and place of residence of the petitioner or petitioners, and of the child, and the name by which the child shall be known;

(2) Whether such child is possessed of any property and a full description of the same, if any;

(3) Whether the petitioner or petitioners know the identity of the persons entitled to parental rights or, that the same are unknown to the petitioner or petitioners; and

(4) Whether and on what basis the parental rights of any birth parents should be terminated during the pendency of the adoption petition.

(b) In the case of an unknown father, an affidavit signed by the birth mother setting forth the following information must be attached to the petition:

(1) Whether the birth mother was married at the probable time of conception of the child, or at a later time, and if so, the identity and last known address of such man;

(2) Whether the birth mother was cohabiting with a man at the probable time of conception of the child, and if so, the identity of such man, his last known address and why the woman contends that such man is not the biological father of the child;

(3) Whether the birth mother has received payments or promise of support from any man with respect to the child or her pregnancy, and if so, the identity of such man, his last known address and why the birth mother contends that such man is not the biological father of the child;

(4) Whether the birth mother has named any man as the father on the birth certificate of the child or in connection with applying for or receiving public assistance, and if so, the identity of such man, his last known address and why the birth mother contends such man is not the biological father of the child;

(5) Whether the birth mother identified any man as the father to any hospital personnel, and if so, the identity of such man, his last known address, the name and address of the hospital and why the birth mother now contends such man is not the biological father of the child;

(6) Whether the birth mother has informed any man that he may be the biological father of the child, and if so, the identity of such man, his last known address and why the birth mother now contends such man is not the biological father of the child;

(7) Whether any man has formally or informally acknowledged or claimed paternity of the child in any jurisdiction at the time of the inquiry, and if so, the identity of such man, his last known address and why the birth mother contends such man is not the biological father of the child;

(8) That the birth mother has been advised that the failure to identify or the misidentification of the birth father can result in delays and disruptions in the processing of the adoption petition;

(9) That the birth mother has been informed that her statement concerning the identity of the father will be used only for the limited purposes of adoption and that once the adoption is complete, such identity will be sealed; and

(10) That the birth mother has been advised of the remedies available to her for protection against domestic violence pursuant to the provisions of article 27-101, et seq., of this chapter.

(c) In the event the birth mother is deceased or her identity or whereabouts are unknown, no such affidavit shall be required.

(d) The affidavit of the birth mother in the case of an unknown father shall be executed before any person authorized to witness a consent or relinquishment pursuant to the provisions of section 22-302. Any affidavit filed with the petition pursuant to the provisions of this section shall be sealed in the court file and may not be opened except by court order upon a showing of good cause.

(e) If the person petitioning for adoption is less than fifteen years older than the child sought to be adopted, such fact shall be set forth specifically in the petition. In such case, the court shall grant the adoption only upon a specific finding that notwithstanding the differences in age of the petitioner and the child, such adoption is in the best interest of the child: Provided, That in the case of a stepparent adoption, such specific finding shall not be required and an adoption shall not be denied on the sole basis of proximity in age.

(f) The petition shall set forth any facts concerning the circumstances of the birth of the child known to the petitioner or petitioners. An effort shall be made to obtain medical and social information, which information, along with all nonidentifying information about the birth, shall accompany the petition and be made a part of the nonidentifying information to be sealed in the court file.

(g) Either the petition, the various consents or relinquishments attached thereto or filed in the cause, the affidavit of the birth mother as set forth herein or in an appendix signed by counsel or other credible persons shall fully disclose all that is known about the parentage of the child.

PART 6. NOTICE OF PROCEEDING FOR ADOPTION.

§48-22-601. Who shall receive notice.

(a) Unless notice has been waived, notice of a proceeding for adoption of a child must be served, within twenty days after a petition for adoption is filed, upon:

(1) Any person whose consent to the adoption is required pursuant to the provisions of section 22-301, but notice need not be served upon a person whose parental relationship to the child or whose status as a guardian has been terminated;

(2) Any person whom the petitioner knows is claiming to be the father of the child and whose paternity of the child has been established pursuant to the provisions of 24-101, et seq.;

(3) Any person other than the petitioner who has legal or physical custody of the child or who has visitation rights with the child under an existing court order issued by a court in this or another state;

(4) The spouse of the petitioner if the spouse has not joined in the petition; and

(5) A grandparent of the child if the grandparent's child is a deceased parent of the child and, before death, the deceased parent had not executed a consent or relinquishment or the deceased parent's parental relationship to the child had not been otherwise terminated.

(b) The court shall require notice of a proceeding for adoption to be served upon any person the court finds, at any time during the proceeding, is:

(1) A person described in subsection (a) of this section who has not been given notice;

(2) A person who has revoked consent or relinquishment pursuant to the provisions of section 22-305; or

(3) A person who, on the basis of a previous relationship with the child, a parent, an alleged parent or the petitioner, can provide relevant information that the court, in its discretion, wants to hear.

§48-22-602. How notice is to be served.

(a) Notice shall be served on each person as required under the provisions of section 22-601, in accordance with rule 4 of the West Virginia rules of civil procedure, except as otherwise provided in this article.

(b) The notice shall inform the person, in plain language, that his or her parental rights, if any, may be terminated in the proceeding and that such person may appear and defend any such rights within the required time after such service. The notice shall also provide that if the person upon whom notice is properly served fails to respond within the required time after its service, said person may not appear in or receive further notice of the adoption proceedings.

(c) In the case of any person who is a nonresident or whose whereabouts are unknown, service shall be achieved: (1) By personal service; (2) by registered or certified mail, return receipt requested, postage prepaid, to the person's last known address, with instructions to forward; or (3) by publication. If personal service is not achieved and the person giving notice has any knowledge of the whereabouts of the person to be served, including a last known address, service by mail shall be first attempted as provided herein. Any service achieved by mail shall be complete upon mailing and shall be sufficient service without the need for notice by publication. In the event that no return receipt is received giving adequate evidence of receipt of the notice by the addressee or of receipt of the notice at the address to which the notice was mailed or forwarded, or if the whereabouts of the person is unknown, then the person required to give notice shall cause service of notice by publication as a Class II publication in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area shall be the county where the proceedings are had, and in the county where the person to be served was last known to reside, except in cases of foreign adoptions where the child is admitted to this country for purposes of adoptive placement and the United States immigration and naturalization service has issued the foreign-born child a visa or unless good cause is shown for not publishing in the county where the person was last known to reside. The notice shall state the court and its address but not the names of the adopting parents or birth mother, unless the court so orders.

(d) In the case of a person under disability, service shall be made on the person and his or her personal representative, or if there be none, on a guardian ad litem.

(e) In the case of service by publication or mail or service on a personal representative or a guardian ad litem, the person shall be allowed thirty days from the date of the first publication or mailing or of such service on a personal representative or guardian ad litem in which to appear and defend his or her parental rights.

§48-22-603. Notice to an unknown father.

(a) In the case of an unknown father, the court shall inspect the affidavit submitted pursuant to the provisions of section 22-502, consider any additional evidence that the court, in its discretion, determines should be produced, and determine whether said father can be identified. The inspection and consideration of any additional evidence by the court shall be accomplished as soon as practicable after the filing of the petition, but no later than sixty days before the final hearing on the adoption petition.

(b) If the court identifies a father pursuant to the provisions of subsection (a) of this section, then notice of the proceeding for adoption shall be served on the father so identified in accordance with the provisions of section 22-602.

(c) If after consideration of the affidavit and/or the consideration of further evidence, the court finds that proper service cannot be made upon the father because his identity is unknown, the court shall order publication of the notice only if, on the basis of all information available, the court determines that publication is likely to lead to receipt of notice by the father. If the court determines that publication or posting is not likely to lead to receipt of notice, the court may dispense with the publication or posting of a notice.

PART 7. PROCEDURES FOR ADOPTION.

§48-22-701. Proceedings.

(a) When the cause has matured for hearing but not sooner than six months after the child has resided continuously in the home of the petitioner or petitioners, the court shall decree the adoption if:

(1) It determines that no person retains parental rights in such child except the petitioner and the petitioner's spouse, or the joint petitioners;

(2) That all applicable provisions of this article have been complied with;

(3) That the petitioner is, or the petitioners are, fit persons to adopt the child; and

(4) That it is in the best interests of the child to order such adoption.

(b) The court or judge thereof may adjourn the hearing of such petition or the examination of the parties in interest from time to time, as the nature of the case may require. Between the time of the filing of the petition for adoption and the hearing thereon, the court or judge thereof shall, unless the court or judge otherwise directs, cause a discreet inquiry to be made to determine whether such child is a proper subject for adoption and whether the home of the petitioner or petitioners is a suitable home for such child. Any such inquiry, if directed, shall be made by any suitable and discreet person not related to either the persons previously entitled to parental rights or the adoptive parents, or by an agency designated by the court, or judge thereof, and the results thereof shall be submitted to the court or judge thereof prior to or upon the hearing on the petition and shall be filed with the records of the proceeding and become a part thereof. The report shall include, but not be limited to, the following:

(1) A description of the family members, including medical and employment histories;

(2) A physical description of the home and surroundings;

(3) A description of the adjustment of the child and family;

(4) Personal references; and

(5) Other information deemed necessary by the court, which may include a criminal background investigation.

(c) If it shall be necessary, under the provisions of this article, that a discreet and suitable person shall be appointed to act as the next friend of the child sought to be adopted, then and in that case the court or judge thereof shall order a notice of the petition and of the time and place when and where the appointment of next friend will be made, to be published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county where such court is located. At the time and place so named and upon due proof of the publication of such notice, the court or judge thereof shall make such appointment, and shall thereupon assign a day for the hearing of such petition and the examination of the parties interested.

(d) Upon the day so assigned, the court or judge thereof shall proceed to a final hearing of the petition and examination of the parties in interest, under oath, and of such other witnesses as the court or judge thereof may deem necessary to develop fully the standing of the petitioners and their responsibility, and the status of the child sought to be adopted; and if the court or judge thereof shall be of the opinion from the testimony that the facts stated in the petition are true, and if upon examination the court or judge thereof is satisfied that the petitioner is, or the petitioners are, of good moral character, and of respectable standing in the community, and are able properly to maintain and educate the child sought to be adopted, and that the best interests of the child would be promoted by such adoption, then and in such case the court or judge thereof shall make an order reciting the facts proved and the name by which the child shall thereafter be known, and declaring and adjudging that from the date of such order, the rights, duties, privileges and relations, theretofore existing between the child and those persons previously entitled to parental rights, shall be in all respects at an end, and that the rights, duties, privileges and relations between the child and his or her parent or parents by adoption shall thenceforth in all respects be the same, including the rights of inheritance, as if the child had been born to such adopting parent or parents in lawful wedlock, except only as otherwise provided in this article: Provided, That no such order shall disclose the names or addresses of those persons previously entitled to parental rights.

§48-22-702. Recordation of order; fees; disposition of records; names of adopting parents and persons previously entitled to parental rights not to be disclosed; disclosure of identifying and nonidentifying information; certificate for state registrar of vital statistics; birth certificate.

(a) The order of adoption shall be recorded in a book kept for that purpose, and the clerk shall receive the same fees as in other cases. All records of proceedings in adoption cases and all papers and records relating to such proceedings shall be kept in the office of the clerk of the circuit court in a sealed file, which file shall be kept in a locked or sealed cabinet, vault or other container and shall not be open to inspection or copy by anyone, except as otherwise provided in this article, or upon court order for good cause shown. No person in charge of adoption records shall disclose the names of the adopting parent or parents, the names of persons previously entitled to parental rights, or the name of the adopted child, except as otherwise provided in this article, or upon court order for good cause shown. The clerk of the court keeping and maintaining the records in adoption cases shall keep and maintain an index of such cases separate and distinct from all other indices kept or maintained by him or her, and the index of adoption cases shall be kept in a locked or sealed cabinet, vault or other container and shall not be open to inspection or copy by anyone, except as otherwise provided in this article, or upon court order for good cause shown. Nonidentifying information, the collection of which is provided for in article 23-101, et seq., of this chapter, shall be provided to the adoptive parents as guardians of the adopted child, or to the adult adoptee, by their submitting a duly acknowledged request to the clerk of the court. The clerk may charge the requesting party for copies of any documents, as provided in section eleven, article one, chapter fifty-nine of this code. Either birth parent may from time to time submit additional social, medical or genetic history for the adoptee, which information shall be placed in the court file by the clerk, who shall bring the existence of this medical information to the attention of the court. The court shall immediately transmit all such nonidentifying medical, social or genetic information to the adoptive parents or the adult adoptee.

(b) If an adoptee, or parent of a minor adoptee, is unsuccessful in obtaining identifying information by use of the mutual consent voluntary adoption registry provided for in 23-101, et seq., identifying information may be sought through the following process:

(1) Upon verified petition of an adoptee at least eighteen years of age, or, if less than eighteen, his or her adoptive parent or legal guardian, the court may also attempt, either itself, or through its designated agent, to contact the birth parents, if known, to obtain their consent to release identifying information to the adoptee. The petition shall state the reasons why the adoptee desires to contact his or her birth parents, which reasons shall be disclosed to the birth parents if contacted. The court and its agent shall take any and all care possible to assure that none but the birth parents themselves are informed of the adoptee's existence in relationship to them. The court may appoint the bureau of children and families, or a private agency which provides adoption services in accordance with standards established by law, to contact birth parents as its designated agent, the said agent shall report to the court the results of said contact.

(2) Upon the filing of a verified petition as provided in subdivision (1) of this subsection, should the court be unable to obtain consent from either of the birth parents to release identifying information, the court may release such identifying information to the adoptee, or if a minor, the adoptee's parents or guardian, after notice to the birth parents and a hearing thereon, at which hearing the court must specifically find that there exists evidence of compelling medical or other good cause for release of such identifying information.

(c) Identifying information may only be obtained with the duly acknowledged consent of the mother or the legal or determined father who consented to the adoption or whose rights were otherwise relinquished or terminated, together with the duly acknowledged consent of the adopted child upon reaching majority, or upon court order for good cause shown. Any person previously entitled to parental rights may from time to time submit additional social or medical information which, notwithstanding other provisions of this article, shall be inserted into the record by the clerk of the court.

(d) Immediately upon the entry of such order of adoption, the court shall direct the clerk thereof forthwith to make and deliver to the state registrar of vital statistics a certificate under the seal of said court, showing:

(1) The date and place of birth of the child, if known;

(2) The name of the mother of the child, if known, and the name of the legal or determined father of the child, if known;

(3) The name by which said child has previously been known;

(4) The names and addresses of the adopting parents;

(5) The name by which the child is to be thereafter known; and

(6) Such other information from the record of the adoption proceedings as may be required by the law governing vital statistics and as may enable the state registrar of vital statistics to carry out the duties imposed upon him or her by this section.

(e) Upon receipt of the certificate, the registrar of vital statistics shall forthwith issue and deliver by mail to the adopting parents at their last-known address and to the clerk of the county commission of the county wherein such order of adoption was entered a birth certificate in the form prescribed by law, except that the name of the child shown in said certificate shall be the name given him or her by the order of adoption. The clerk shall record such birth certificate in the manner set forth in section twelve, article five, chapter sixteen of this code.

§48-22-703. Effect of order as to relations of parents and child and as to rights of inheritance; intestacy of adopted child.

(a) Upon the entry of such order of adoption, any person previously entitled to parental rights, any parent or parents by any previous legal adoption, and the lineal or collateral kindred of any such person, parent or parents, except any such person or parent who is the husband or wife of the petitioner for adoption, shall be divested of all legal rights, including the right of inheritance from or through the adopted child under the statutes of descent and distribution of this state, and shall be divested of all obligations in respect to the said adopted child, and the said adopted child shall be free from all legal obligations, including obedience and maintenance, in respect to any such person, parent or parents. From and after the entry of such order of adoption, the adopted child shall be, to all intents and for all purposes, the legitimate issue of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.

(b) For the purpose of descent and distribution, from and after the entry of such order of adoption, a legally adopted child shall inherit from and through the parent or parents of such child by adoption and from or through the lineal or collateral kindred of such adopting parent or parents in the same manner and to the same extent as though said adopted child were a natural child of such adopting parent or parents, but such child shall not inherit from any person entitled to parental rights prior to the adoption nor their lineal or collateral kindred, except that a child legally adopted by a husband or wife of a person entitled to parental rights prior to the adoption shall inherit from such person as well as from the adopting parent. If a legally adopted child shall die intestate, all property, including real and personal, of such adopted child shall pass, according to the statutes of descent and distribution of this state, to those persons who would have taken had the decedent been the natural child of the adopting parent or parents.

§48-22-704. Finality of order; challenges to order of adoption.

(a) An order or decree of adoption is a final order for purposes of appeal to the Supreme Court of Appeals on the date when the order is entered. An order or decree of adoption for any other purpose is final upon the expiration of the time for filing an appeal when no appeal is filed or when an appeal is not timely filed, or upon the date of the denial or dismissal of any appeal which has been timely filed.

(b) An order or decree of adoption may not be vacated, on any ground, if a petition to vacate the judgment is filed more than six months after the date the order is final.

(c) If a challenge is brought within the six-month period by an individual who did not receive proper notice of the proceedings pursuant to the provisions of this article, the court shall deny the challenge, unless the individual proves by clear and convincing evidence that the decree or order is not in the best interest of the child.

(d) A decree or order entered under this article may not be vacated or set aside upon application of a person who waived notice, or who was properly served with notice pursuant to this article and failed to respond or appear, file an answer or file a claim of paternity within the time allowed.

(e) A decree or order entered under this article may not be vacated or set aside upon application of a person alleging there is a failure to comply with an agreement for visitation or communication with the adopted child: Provided, That the court may hear a petition to enforce the agreement, in which case the court shall determine whether enforcement of the agreement would serve the best interests of the child. The court may, in its sole discretion, consider the position of a child of the age and maturity to express such position to the court.

(f) The Supreme Court of Appeals shall consider and issue rulings on any petition for appeal from an order or decree of adoption and petitions for appeal from any other order entered pursuant to the provisions of this article as expeditiously as possible. The circuit court shall consider and issue rulings on any petition filed to vacate an order or decree of adoption and any other pleadings or petitions filed in connection with any adoption proceeding as expeditiously as possible.

(g) When any minor has been adopted, he or she may, within one year after becoming of age, sign, seal and acknowledge before proper authority, in the county in which the order of adoption was made, a dissent from such adoption, and file such instrument of dissent in the office of the clerk of the circuit court which granted said adoption. The clerk of the county commission of such county and the circuit clerk shall record and index the same. The adoption shall be vacated upon the filing of such instrument of dissent.

PART 8. MISCELLANEOUS PROVISIONS.

§48-22-801. Adoption of adults.

Any adult person who is a resident of West Virginia may petition the circuit court or any other court of record having jurisdiction of adoption proceedings for permission to adopt one who has reached the age of eighteen years or over, and, if desired, to change the name of such person. The consent of the person to be adopted shall be the only consent necessary. The order of adoption shall create the same relationship between the adopting parent or parents and the person adopted and the same rights of inheritance as in the case of an adopted minor child. If a change in name is desired, the adoption order shall so state.

§48-22-802. Contracts limiting or restraining adoptions.

Any contract, agreement or stipulation which endeavors to deny to any person or persons the right to petition for adoption of any person, or which endeavors to alter the time or manner of adoption as provided in this article, is contrary to the public policy of the state and such portion of any contract, agreement or stipulation is null and void and of no effect.

§48-22-803.

Repealed.

Acts, 2011 Reg. Sess., Ch. 51.

PART 9. INTERNATIONAL ADOPTIONS.

§48-22-901. Recognition of foreign adoption decree.

When an adoption occurs in a foreign country and the adopted child has immigrated to the United States with the permission of the United States, this state shall recognize the adoption. The rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though the adoption decree was issued by a court of this state.

§48-22-902. Filing of petition for recognition of foreign adoption decree.

(a) At any time after the child has immigrated to the United States, the adoptive parent or parents may commence proceedings with the circuit court in their county of residence to have the foreign adoption decree recognized by filing a petition for recognition of foreign adoption decree. The verified petition shall set forth the following:

(1) The name and address of the petitioner or petitioners;

(2) The name of the child adopted in a foreign country;

(3) The name by which the child shall be known henceforth;

(4) The child's country of origin and date of birth, if known;

(5) That the child has been issued a visa or other document authorizing entry into the United States and the date of entry. A copy of such a document shall be attached to the petition;

(6) That a home study of the petitioner or petitioners was prepared. A copy of the same shall be attached to the petition;

(7) The date on which the adoption was decreed in the foreign country. A copy of the foreign adoption decree or such other document or documents which evidence finalization of the adoption in the foreign country shall be attached to the petition, along with an English translation thereof.

(b) The verified petition may set forth requests for specific relief or findings to meet the best interests of the child which may be granted, in the court's discretion, specifically including, but not limited to, a revised birth date if a physician has recommended a revision of the child's birth date.

§48-22-903. Proceedings for recognition of foreign adoption decree.

The court shall review the petition and accompanying documentation and, if the court finds the petition and documentation to be satisfactory, it shall enter an order of adoption stating that the documentation required has been submitted and is satisfactory and that the adoption must be recognized in West Virginia and shall have the same force and effect as if the decree of adoption was granted in accordance with the provisions of the West Virginia adoption act. The order shall further set forth the name by which the child shall be known henceforth and such other pertinent findings of the court. The court shall enter the order without the necessity of a hearing unless it deems a hearing necessary or a hearing is requested. The provisions of subsections (a), (d) and (e), section seven hundred two of this article shall apply to all orders issued hereunder and a new birth certificate shall be issued forthwith.

ARTICLE 23. VOLUNTARY ADOPTION REGISTRY.

PART 1. GENERAL PROVISIONS.

§48-23-101. Policy regarding persons obtaining identifying information after adoption.

(a) Adoption is based upon the legal termination of parental rights and responsibilities of birth parents and the creation of the legal relationship of parent and child between an adoptee and his or her adoptive parents. These legal and social premises underlying adoption must be maintained. The Legislature recognizes that some adults who were adopted as children have a strong desire to obtain identifying information about their birth parents while other such adult adoptees have no such desire. The Legislature further recognizes that some birth parents have a strong desire to obtain identifying information about their biological children who were surrendered for adoption, while other birth parents have no such desire.

(b) The Legislature fully recognizes the right to privacy and confidentiality of:

(1) Birth parents whose children were adopted;

(2) The adoptees; and

(3) The adoptive parents.

§48-23-102. Legislative purpose.

The purpose of this article is to:

(1) Set up a mutual consent voluntary adoption registry where birth parents and adult adoptees may register their willingness to the release of identifying information to each other;

(2) To provide for the disclosure of such identifying information to birth parents or adoptees, or both, through a social worker employed by a licensed adoption agency, provided each birth parent and the adult adoptee voluntarily registers on his or her own; and

(3) To provide for the transmission of nonidentifying health and social and genetic history to the adult adoptees, birth parents and other specified persons; and

(4) To provide for disclosure of identifying information for cause shown.

PART 2. DEFINITIONS

§48-23-201. Applicability of definitions.

For the purposes of this article the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them in this article. These definitions are applicable unless a different meaning clearly appears from the context.

§48-23-202. Adoptee defined.

"Adoptee" means a person who has been legally adopted in the State of West Virginia.

§48-23-203. Adoption defined.

"Adoption" means the judicial act of creating the relationship of parent and child where it did not exist previously.

§48-23-204. Adult defined.

"Adult" means a person who is eighteen years of age or more.

§48-23-205. Agency defined.

"Agency" means any public or voluntary organization licensed or approved pursuant to the laws of any jurisdiction within the United States to place children for adoption.

§48-23-206. Genetic and social history defined.

"Genetic and social history" means a comprehensive report, when obtainable, on the birth parents, siblings to the birth parents, if any, other children of either birth parent, if any, and parents of the birth parents, which shall contain the following information:

(1) Medical history;

(2) Health status;

(3) Cause of and age at death;

(4) Height, weight, eye and hair color;

(5) Ethnic origins;

(6) Where appropriate, levels of educational and professional achievement; and

(7) Religion, if any.

§48-23-207. Health history defined.

"Health history" means a comprehensive report of the child's health status at the time of placement for adoption and medical history, including neonatal, psychological, physiological and medical care history.

§48-23-208. Mutual consent voluntary adoption registry or registry defined.

"Mutual consent voluntary adoption registry" or "registry" means a place provided for herein where eligible persons as described in section 23-501 may indicate their willingness to have their identity and whereabouts disclosed to each other under conditions specified in this article.

§48-23-209. Putative father defined.

"Putative father" means any man not deemed or adjudicated under the laws of a jurisdiction of the United States to be the father of genetic origin of a child and who claims or is alleged to be the father of genetic origin of such child.

PART 3. ESTABLISHMENT AND MAINTENANCE

OF VOLUNTARY ADOPTION REGISTRY.

§48-23-301. Division of human services to establish and maintain mutual consent voluntary adoption registry.

The division of human services, as provided for in §9-2-1, et seq. of this code, shall establish and maintain the mutual consent voluntary adoption registry, except that the division may contract out the function of establishing and maintaining the registry to a licensed voluntary agency with expertise in providing post-legal adoption services, in which case the agency shall establish and maintain the registry that would otherwise be operated by the division.

The secretary of the Department of Health and Human Resources shall promulgate and adopt such rules as are necessary for implementing this article.

PART 4. USE OF THE VOLUNTARY ADOPTION REGISTRY.

§48-23-401. Persons to whom use of the mutual consent voluntary adoption registry is available.

Use of the mutual consent voluntary adoption registry for obtaining identifying information about birth parents and adult adoptees is available to birth parents and adult adoptees, except as otherwise limited by section 23-402.

§48-23-402. Age limitations on use of the mutual consent voluntary adoption registry.

(a) A birth parent is not eligible to use the registry until his or her child who was adopted is eighteen years of age or older.

(b) An adult adoptee is not eligible to use the registry if he or she has a sibling in his or her adoptive family who is under the age of eighteen years.

§48-23-403. Registration by a birth father.

A birth father may register if:

(1) He was named as the father in the original sealed birth certificate;

(2) He legitimated or formally acknowledged the child as provided by law; or

(3) He signed a voluntary abandonment and release for the child's adoption as provided by law.

§48-23-404. Registration by a birth parent who used an alias in terminating parental rights.

If a birth parent used an alias name in terminating his or her parental rights, and the alias is listed in the original sealed birth record, that birth parent may register if the agency, organization, entity or person that placed the child for adoption, certifies to the court that the individual seeking to register used the alias name set forth in the original sealed birth certificate.

PART 5. OPERATION OF THE VOLUNTARY ADOPTION REGISTRY.

§48-23-501. Prerequisites to disclosure of identifying information.

The adult adoptee and each birth parent may voluntarily, without having been contacted by any employee or agent of the entity operating the registry, place his or her name in the appropriate registry before any disclosure or identifying information can be made. A qualified person may register by submitting a notarized affidavit to the appropriate registry stating his or her name, address and telephone number and his or her willingness to be identified solely to the other relevant persons who register. No registration may be accepted until the prospective registrant submits satisfactory proof of his or her identity in accord with the provisions specified in section 23-601 of this article. The failure of any of the three above described persons to file a notarized affidavit with the registry for any reason, including death or disability, precludes the disclosure of identifying information to those relevant persons who do register.

§48-23-502. Counseling of registrants.

Upon registering, the registrant shall participate in not less than one hour of counseling with a social worker employed by the entity that operates the registry, except if a birth parent or adult adoptee is domiciled outside the state, he or she shall obtain counseling from a social worker employed by a licensed agency in that other state selected by the entity that operates the registry. When an eligible person registers concerning an adoption that was arranged through an agency which has not merged or otherwise ceased operations, and that same agency is not operating the registry, the entity operating the registry shall notify by certified mail the agency which handled the adoption within ten business days after the date of registration.

§48-23-503. Cases where disclosure of identifying information cannot occur.

In any case where the identity of the birth father was unknown to the birth mother, or where the administrator learns that one or both of the birth parents are deceased, this information shall be shared with the adult adoptee. In these kinds of cases, the adoptee will not be able to obtain identifying information through the registry, and he or she would be told of his or her right to pursue whatever right otherwise exists by law to petition a court to release the identifying information.

§48-23-504. Matching and disclosure procedures.

(a) Each mutual consent voluntary adoption registry must be operated under the direction of an administrator.

(b) A person eligible to register may request the administrator to disclose identifying information by filing an affidavit which sets forth the following:

(1) The current name and address of the affiant;

(2) Any previous name by which the affiant was known;

(3) The original and adopted names, if known, of the adopted child;

(4) The place and date of birth of the adopted child; or

(5) The name and address of the adoption agency or other entity, organization or person placing the adopted child, if known.

(c) The affiant shall notify the registry of any change in name or location which occurs subsequent to his or her filing the affidavit. The registry has no duty to search for an affiant who fails to register his or her most recent address.

(d) The administrator of the mutual consent voluntary adoption registry shall process each affidavit in an attempt to match the adult adoptee and the birth parents. Such processing shall include research from agency records, when available, and when agency records are not available, research from court records to determine conclusively whether the affiants match.

(e) The administrator shall determine that there is a match when the adult adoptee and the birth mother or the adult adoptee and the birth father have each filed affidavits with the mutual consent voluntary adoption registry and have each received the counseling required in section 23-502.

(f) When a match has taken place, the department shall directly notify all parties through a direct and confidential contact. The contact shall be made by an employee or agent of the agency receiving the assignment and shall be made face to face, rather than by mail, telephone or other indirect means. The employee or agent shall be a trained social worker who has expertise in post-legal adoption services.

§48-23-505. Retention of data by the registry.

Any affidavits filed and other information collected shall be retained for ten years following the date of registration by any qualified person to which the information pertains. Any qualified person who registers may renew his or her registration for ten additional years within one hundred eighty days prior to the last day of ten years from the date of initial registration.

§48-23-506. Scope of information obtained by the mutual consent voluntary adoption registry.

A mutual consent voluntary adoption registry shall obtain only information necessary for identifying a birth parent or adult adoptee and in no event shall obtain information of any kind pertaining to the adoptive parents, any siblings to the adult adoptee who are children of the adoptive parents, the income of anyone and reasons for adoptive placement.

§48-23-507. Fees for operations of the mutual consent voluntary adoption registry.

All costs for establishing and maintaining a mutual consent voluntary adoption registry shall be obtained through user's fees charged to all persons who register.

PART 6. HEALTH HISTORY; SOCIAL AND GENETIC HISTORY.

§48-23-601. Compilation of nonidentifying information on health history and social and genetic history.

(a) Prior to placement for adoption, the court shall require that the licensed adoption agency or, where an agency is not involved, the person, entity or organization handling the adoption, shall compile and provide to the prospective adoptive parents a detailed written health history and genetic and social history of the child. These histories must exclude information that would identify birth parents or members of a birth parent's family. The histories must be set forth in a document that is separate from any document containing such identifying information.

(b) The court, or an agency designated by the court, or judge thereof, shall provide to an agency, person, or organization handling the adoption the forms which must be utilized in the acquisition of the above-described detailed nonidentifying written health history and genetic and social history of the child. If the records cannot be obtained, the court shall make specific findings as to why the records are unobtainable.

(c) Records containing such nonidentifying information and which are set forth on a document described in subsection (a) above, separate from any document containing identifying data:

(1) Shall be retained by the clerk of the court for ninety-nine years; and

(2) Shall be available upon request, throughout the time specified in subdivision (1) of this subsection together with any additional nonidentifying information which may have been added on health or on genetic and social history, but which excludes information identifying any birth parent or member of a birth parent's family, or the adoptee or any adoptive parent of the adoptee, to the following persons only:

(A) The adoptive parents of the child or, in the event of death of the adoptive parents, the child's guardian;

(B) The adoptee upon reaching the age of eighteen;

(C) In the event of the death of the adoptee, the adoptee's spouse if he or she is the legal parent of the adoptee's child or the guardian of any child of the adoptee;

(D) In the event of the death of the adoptee, any progeny of the adoptee who is age eighteen or older; and

(E) The birth parent of the adoptee.

(d) The person requesting nonidentifying health history and genetic and social history shall pay the actual and reasonable costs of providing that information. This provision requiring payment of costs is subject to sections of this article that provide for the adoptee to obtain information by petitioning the court.

PART 7. PROHIBITED CONDUCT.

§48-23-701. Prohibited conduct.

(a) No person, agency, entity or organization of any kind, including, but not limited to, any officer or employee of this state and any employee, officer or judge of any court of this state, may disclose any confidential information relating to an adoption except as provided in this article or pursuant to a court order. Any employer who knowingly or negligently allows any employee to disclose information in violation of this article is subject to the penalties provided in subsection (b) of this section, together with the employee who made any disclosure prohibited by this law.

(b) Any person, agency, entity or organization of any kind who discloses information in violation of this law is liable to the parties so injured in an action to recover damages in respect thereto.

PART 8. NONDISCLOSURE OF REGISTRY INFORMATION.

§48-23-801. Nondisclosure.

(a) Notwithstanding any other provision of law, the information acquired by any registry may not be disclosed under any sunshine or freedom of information legislation, rules or practice.

(b) Notwithstanding any other provision of law, no person, group of persons, or entity, including an agency, may file a class action to force the registry to disclose identifying information.

ARTICLE 24. ESTABLISHMENT OF PATERNITY.

§48-24-101. Paternity proceedings.

(a) A civil action to establish the paternity of a child and to obtain an order of support for the child may be instituted, by verified complaint, in the family court of the county where the child resides: Provided, That if such venue creates a hardship for the parties, or either of them, or if judicial economy requires, the court may transfer the action to the county where either of the parties resides.

(b) A "paternity proceeding" is a summary proceeding, equitable in nature and within the domestic relations jurisdiction of the courts, wherein a family court upon the petition of the state or another proper party may intervene to determine and protect the respective personal rights of a child for whom paternity has not been lawfully established, of the mother of the child and of the putative father of the child. The parties to a paternity proceeding are not entitled to a trial by jury.

(c) The sufficiency of the statement of the material allegations in the complaint set forth as grounds for relief and the grant or denial of the relief prayed for in a particular case shall rest in the sound discretion of the court, to be exercised by the court according to the circumstances and exigencies of the case, having due regard for precedent and the provisions of the statutory law of this state.

(d) A decree or order made and entered by a court in a paternity proceeding shall include a determination of the filial relationship, if any, which exists between a child and his or her putative father and, if such relationship is established, shall resolve dependent claims arising from family rights and obligations attendant to such filial relationship.

(e) A paternity proceeding may be brought by any of the following persons:

(1) An unmarried woman with physical or legal custody of a child to whom she gave birth;

(2) A married woman with physical or legal custody of a child to whom she gave birth, if the complaint alleges that:

(A) The married woman lived separate and apart from her husband preceding the birth of the child;

(B) The married woman did not cohabit with her husband at any time during such separation and that such separation has continued without interruption; and

(C) The respondent, rather than her husband, is the father of the child;

(3) The state of West Virginia, including the Bureau for Child Support enforcement;

(4) Any person who is not the mother of the child but who has physical or legal custody of the child;

(5) The guardian or committee of the child;

(6) The next friend of the child when the child is a minor;

(7) By the child in his or her own right at any time after the child's eighteenth birthday but prior to the child's twenty-first birthday; or

(8) A man who believes he is the father of a child born out of wedlock when there has been no prior judicial determination of paternity.

(f) If a paternity proceeding is brought that names the father of the child as being someone other than the person whose name appears on the child's birth certificate, then the person bringing the action shall cause a copy of the verified complaint to be served on the person named as the father on the birth certificate. Service must be in accordance with rule 4 of the rules of civil procedure.

(g) Blood or tissue samples taken pursuant to the provisions of this article may be ordered to be taken in such locations as may be convenient for the parties so long as the integrity of the chain of custody of the samples can be preserved.

(h) A person who has sexual intercourse in this state submits to the jurisdiction of the courts of this state for a proceeding brought under this article with respect to a child who may have been conceived by that act of intercourse. Service of process may be perfected according to the rules of civil procedure.

(i) When the person against whom the proceeding is brought has failed to plead or otherwise defend the action after proper service has been obtained, judgment by default shall be issued by the court as provided by the rules of civil procedure.

§48-24-102. Statute of limitations; prior statute of limitations not a bar to action under this article; effect of prior adjudication between husband and wife.

(a) Except for a proceeding brought by a child in his or her own right under the provisions of subdivision 24-101(e)(7), a proceeding for the establishment of the paternity of a child shall be brought prior to such child's eighteenth birthday.

(b) A proceeding to establish paternity under the provisions of this article may be brought by or on behalf of a child notwithstanding the fact that, prior to July 1, 1986, an action to establish paternity may have been barred by a prior statute of limitations set forth in this code or otherwise provided for by law.

(c) A proceeding to establish paternity under the provisions of this article may be brought for any child who was not yet eighteen years of age on August 16, 1984, regardless of the current age.

(d) A proceeding to establish paternity under the provisions of this article may be brought for any child who was not yet eighteen years of age on August 16, 1984, and for whom a paternity action was brought but dismissed because a statute of limitations of less than eighteen years was then in effect.

(e) Any other provision of law to the contrary notwithstanding, when a husband and wife or former husband and wife, in an action for divorce or an action to obtain a support order, have litigated the issue of the paternity of a child conceived during their marriage to the end that the husband has been adjudged not to be the father of such child, such prior adjudication of the issue of paternity between the husband and the wife shall not preclude the mother of such child from bringing a proceeding against another person to establish paternity under the provisions of this article.

§48-24-103. Medical testing procedures to aid in the determination of paternity.

(a) Prior to the commencement of an action for the establishment of paternity, the Bureau for Child Support enforcement may order the mother, her child and the man to submit to genetic tests to aid in proving or disproving paternity. The bureau may order the tests upon the request, supported by a sworn statement, of any person entitled to petition the court for a determination of paternity as provided in section one of this article. If the request is made by a party alleging paternity, the statement shall set forth facts establishing a reasonable possibility or requisite sexual contact between the parties. If the request is made by a party denying paternity, the statement may set forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties or other facts supporting a denial of paternity. If genetic testing is not performed pursuant to an order of the Bureau for Child Support enforcement, the court may, on its own motion or shall upon the motion of any party, order such tests. A request or motion may be made upon ten days' written notice to the mother and alleged father without the necessity of filing a complaint. When the tests are ordered, the court or the bureau shall direct that the inherited characteristics, including, but not limited to, blood types, be determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under the laws of this state or any other state and an expert qualified as an examiner of genetic markers shall analyze, interpret and report on the results to the court or to the Bureau for Child Support enforcement. The results shall be considered as follows:

(1) Blood or tissue test results which exclude the man as the father of the child are admissible and shall be clear and convincing evidence of nonpaternity and, if a complaint has been filed, the court shall, upon considering such evidence, dismiss the action.

(2) Blood or tissue test results which show a statistical probability of paternity of less than ninety-eight percent are admissible and shall be weighed along with other evidence of the respondent's paternity.

(3) Undisputed blood or tissue test results which show a statistical probability of paternity of more than ninety-eight percent shall, when filed, legally establish the man as the father of the child for all purposes and child support may be established pursuant to the provisions of this chapter.

(4) When a party desires to challenge the results of the blood or tissue tests or the expert's analysis of inherited characteristics, he or she shall file a written protest with the family court or with the Bureau for Child Support enforcement, if appropriate, within thirty days of the filing of such test results and serve a copy of such protest upon the other party. The written protest shall be filed at least thirty days prior to any hearing involving the test results. The court or the Bureau for Child Support enforcement, upon reasonable request of a party, shall order that additional tests be made by the same laboratory or another laboratory within thirty days of the entry of the order, at the expense of the party requesting additional testing. Costs shall be paid in advance of the testing. When the results of the blood or tissue tests or the expert's analysis which show a statistical probability of paternity of more than ninety-eight percent are confirmed by the additional testing, then the results are admissible evidence which is clear and convincing evidence of paternity. The admission of the evidence creates a presumption that the man tested is the father.

(b) Documentation of the chain of custody of the blood or tissue specimens is competent evidence to establish the chain of custody. A verified expert's report shall be admitted at trial unless a challenge to the testing procedures or a challenge to the results of test analysis has been made before trial. The costs and expenses of making the tests shall be paid by the parties in proportions and at times determined by the court.

(c) Except as provided in subsection (d) of this section, when a blood or tissue test is ordered pursuant to this section, the moving party shall initially bear all costs associated with the blood or tissue test unless that party is determined by the court to be financially unable to pay those costs. This determination shall be made following the filing of an affidavit pursuant to section one, article two, chapter fifty-nine of this code. When the court finds that the moving party is unable to bear that cost, the cost shall be borne by the State of West Virginia. Following the finding that a person is the father based on the results of a blood or tissue test ordered pursuant to this section, the court shall order that the father be ordered to reimburse the moving party for the costs of the blood or tissue tests unless the court determines, based upon the factors set forth in this section, that the father is financially unable to pay those costs.

(d) When a blood or tissue test is ordered by the Bureau for Child Support enforcement, the bureau shall initially bear all costs subject to recoupment from the alleged father if paternity is established.

§48-24-104. Establishment of paternity and duty of support.

(a) When the respondent, by verified responsive pleading, admits that the man is the father of the child and owes a duty of support, or if after a hearing on the merits, the court shall find, by clear and convincing evidence that the man is the father of the child, the court shall, subject to the provisions of subsection (c) of this section, order support in accordance with the support guidelines set forth in article 13-101, et seq., and the payment of incurred expenses as provided in subsection (e) of this section.

(b) Upon motion by a party, the court shall issue a temporary order for child support pending a judicial determination of parentage if there is clear and convincing evidence of paternity on the basis of genetic tests or other scientifically recognized evidence.

(c) Reimbursement support ordered pursuant to this section shall be limited to a period not to exceed thirty-six months prior to the service of notice of the commencement of paternity or support establishment, unless the court finds, by clear and convincing evidence:

(1) That the respondent had actual knowledge that he was believed to be the father of the child;

(2) That the respondent deliberately concealed his whereabouts or deliberately evaded attempts to serve process upon himself or herself; or

(3) That the respondent deliberately misrepresented relevant information which would have enabled the petitioner to proceed with the cause of action.

If the court finds by clear and convincing evidence that the circumstances in subsection (1), (2) or (3) exist, then the court shall order reimbursement support to the date of birth of the child, subject to the equitable defense of laches.

(d) The court shall give full faith and credit to a determination of paternity made by any other state, based on the laws of that state, whether established through voluntary acknowledgment or through administrative or judicial process.

(e) Bills for pregnancy, childbirth and genetic testing are admissible and constitute prima facie evidence of medical expenses incurred.

(f) The thirty-six month limitation on reimbursement support does not apply to the award of medical expenses incurred.

(g) For purposes of this section, "reimbursement support" means the amount of money awarded as child support for a period of time prior to the entry of the order which establishes the support obligation.

§48-24-105. Representation of parties.

Notwithstanding any provision of this code to the contrary, no parent in any proceeding brought pursuant to this article may have counsel appointed for them according to section one, article twenty-one, chapter twenty-nine of this code or otherwise receive legal services provided solely by the state in such action. The Bureau for Child Support enforcement providing representation to the State of West Virginia shall solely represent the State of West Virginia and does not provide any representation to any party.

§48-24-106. Establishing paternity by acknowledgment of natural father.

A written, notarized acknowledgment executed pursuant to the provisions of section ten, article five, chapter sixteen of this code legally establishes the man as the father of the child for all purposes and child support may be established in accordance with the support guidelines set forth in article 13-101, et seq.

ARTICLE 25. CHANGE OF NAME.

§48-25-101. Petition to circuit court or family court for change of name; contents thereof; notice of application.

(a) A person desiring a change of his or her own name, or that of his or her child, may apply to the circuit court or family court of the county in which he or she resides by a verified petition setting forth and affirming the following:

(1) That he or she has been a bona fide resident of the county for at least one year prior to the filing of the petition or that he or she is a nonresident of the county who was born in the county, was married in the county and was previously a resident of the county for a period of at least fifteen years;

(2) The cause for which the change of name is sought;

(3) The new name desired;

(4) The name change is not for purposes of avoiding debt or creditors;

(5) The petitioner seeking the name change is not a registered sex offender pursuant to any state or federal law;

(6) The name change sought is not for purposes of avoiding any state or federal law regarding identity;

(7) The name change sought is not for any improper or illegal purpose;

(8) The petitioner is not a convicted felon in any jurisdiction;

(9) The name change sought is not for any purpose of evading detection, identification or arrest by any local, state or federal law-enforcement agency; and

(10) Whether or not the petitioner desires to protect his or her identity for personal safety reasons.

(b) After filing the petition and at least ten days before the hearing to consider the application, the person shall cause a notice of the time and place that the application will be made to be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The petitioner shall in the notice set forth the name to which his or her name will be changed, unless as shown in the petition to the court, the name change is being requested because the petitioner desires to protect his or her identity for personal safety reasons: Provided, That upon good cause shown, there may be a closed hearing. The publication area for the publication is the county. The publication shall contain a provision that the hearing may be rescheduled without further notice or publication.

§48-25-102. Objections to change of name.

Any person who is likely to be injured by the change of name of any person so petitioning, or who knows of any reason why the name of any such petitioner should not be changed, may appear at the time and place named in the notice, and shall be heard in opposition to such change.

§48-25-103. When court may or may not order change of name.

(a) Upon the filing of the verified petition, and upon proof of the publication of the notice and of the matters set forth in the petition, and being satisfied that no injury will be done to any person by reason of the change, and upon a finding that all representations the applicant has affirmed pursuant to subsection (a), section one hundred one of this article are true and the applicant is not prohibited from obtaining a name change pursuant to this article, that reasonable and proper cause exists for changing the name of petitioner and that the change is not desired because of any fraudulent or evil intent on the part of the petitioner, the court or judge may order a change of name.

(b) The court may not grant any change of name for any person convicted of any felony during the time that the person is incarcerated.

(c) The court may not grant any change of name for any person required to register with the State Police pursuant to the provisions of article twelve, chapter fifteen of this code during the period that the person is required to register.

(d) The court may not grant a change of name for persons convicted of first degree murder in violation of section one, article two, chapter sixty-one of this code for a period of ten years after the person is discharged from imprisonment or is discharged from parole, whichever occurs later.

(e) The court may not grant a change of name of any person convicted of violating any provision of section fourteen-a, article two, chapter sixty-one of this code for a period of ten years after the person is discharged from imprisonment or is discharged from parole, whichever occurs later.

§48-25-104. Recordation of order changing name.

When such order is made the petitioner shall forthwith cause a certified copy thereof to be filed in the office of the clerk of the county commission of the county where petitioner resides, and such clerk shall record the same in a book to be kept for the purpose and index the same under both the old and the new names. For such recording and indexing the clerk shall be allowed the same fee as for a deed.

§48-25-105. When new name to be used.

When such change has been ordered and a certified copy of the order filed in the office of the county clerk, the new name shall thenceforth be used in place of the former name.

§48-25-106. Unlawful change of name.

Any person residing in this state who shall change his or her name, or assume another name, unlawfully, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not exceeding $100, and upon a repetition thereof shall be confined in the county or regional jail not exceeding sixty days.

§48-25-107. Unlawful change of name by certain felons and registrants.

(a) It is unlawful for any person convicted of first degree murder in violation of section one, article two, chapter sixty-one of this code, and for any person convicted of violating any provision of section fourteen-a, article two, chapter sixty-one of this code, for which a sentence of life imprisonment is imposed, to apply for a change of name for a period of ten years after the person is discharged from imprisonment or is discharged from parole, whichever occurs later.

(b) It is unlawful for any person required to register with the State Police pursuant to the provisions of article twelve, chapter fifteen of this code to apply for a change of name during the period that the person is required to register.

(c) It is unlawful for any person convicted of a felony to apply for a change of name during the period that such person is incarcerated.

(d) A person who violates the provisions of subsection (a), (b) or (c) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $250 nor more than $10,000 or imprisoned in the county or regional jail for not more than one year, or both fined and incarcerated.

ARTICLE 25A. MATERNAL MORTALITY REVIEW TEAM.

§48-25A-1.

Repealed.

Acts, 2013 Reg. Sess., Ch. 82.

§48-25A-2.

Repealed.

Acts, 2013 Reg. Sess., Ch. 82.

§48-25A-3.

Repealed.

Acts, 2013 Reg. Sess., Ch. 82.

ARTICLE 26. DOMESTIC VIOLENCE ACT.

PART 1. GENERAL PROVISIONS.

§48-26-101. Title.

This article shall be known as the "West Virginia Domestic Violence Act."

PART 2. DEFINITIONS.

§48-26-201. Applicability of definitions.

For purposes of this article, the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context.

PART II. DEFINITIONS.

§48-26-202. Advocacy defined.

"Advocacy" means assisting victims and survivors of domestic violence, dating violence, sexual assault, stalking or human trafficking, and their children, in securing rights, remedies and services, by directly providing for, or referring to public and private agencies to provide for, safety planning; shelter; housing; legal services; outreach; counseling; case management; information and referral; training; employment; child care; health care; transportation; financial literacy education, financial planning and related economic empowerment services; parenting and other educational services; and other support services.

§48-26-203. Batterer Intervention and Prevention Program defined.

"Batterer intervention and prevention program", previously referred to as a program of intervention for perpetrators, means a licensed educational program that provides classes to individuals who commit acts of domestic violence or abuse, offering nonviolent strategies and values that promote respect and equality in intimate partner relationships.

§48-26-204. Board defined.

"Board" means the Family Protection Services Board created pursuant to Chapter 53 of the Acts of the Legislature of 1989 and subsequently recodified by this article.

§48-26-205. Closure defined.

"Closure" means the temporary or permanent prohibition of specified services and the corresponding suspension of licensure of a program or program component that violates the standards established by the board or that threatens the health, well being or safety of its program participants or staff.

§48-26-206. Department defined.

"Department" means the Department of Health and Human Resources.

§48-26-207. Domestic Violence Legal Services Fund defined.

"Domestic Violence Legal Services Fund" means the special revenue account established by section six hundred three of this article for the purposes set forth in that section.

§48-26-208. Domestic violence program defined.

"Domestic violence program" means a licensed program of a locally controlled nonprofit organization, established primarily for the purpose of providing advocacy services, comprising both a shelter component and an outreach component, to victims of domestic violence, dating violence, sexual assault, stalking or human trafficking, and their children: Provided, That the board may temporarily or permanently close either the shelter component or the outreach component of a domestic violence program.

§48-26-209. Family Protection Fund defined.

"Family Protection Fund" means the special revenue account established by Chapter 74 of the Acts of the Legislature of 1981, held by the department, for the purpose of collecting marriage license fees pursuant to section ten, article one, chapter fifty-nine of this code, divorce surcharge fees pursuant to section twenty-eight-a, article one, chapter fifty-nine of this code, fees for failure to present a premarital education course completion certificate pursuant to section ten, article one, chapter fifty-nine of this code and any other funding source, including any source created in another section of this code, and distributed to licensed domestic violence programs, in accordance with the formula designated by the board.

§48-26-210. Intimate partner defined.

"Intimate partner" means a current or former spouse, a person with whom one shares a child in common, a person with whom one is cohabiting or has cohabited, or a person with whom one is or has been in a relationship of a romantic or intimate nature.

§48-26-211. Licenses defined.

(a) "Conditional license" means a license issued for up to ninety days, to programs that have violations of safety or accountability standards that may threaten the health, well-being or safety of its program participants or staff, or the responsible operation of the program, or that have a history or pattern of noncompliance with established standards.

(b) "Provisional license" means a license issued for up to one hundred and eighty days, to programs that are not in compliance with nonlife threatening safety, programmatic, facility or administrative standards, that may be extended for an additional six months, if the board determines that the program is making active progress toward compliance.

(c) "Full license" means a license issued for up to the maximum licensure period of three years, to programs that are in compliance with the standards established by the board and have no violations of safety or accountability standards that may threaten the health, well-being or safety of its program participants or staff, or the responsible operation of the program.

§48-26-212. Monitored parenting and exchange defined.

(a) "Monitored parenting" means the contact between a parent without custodial responsibility, guardian or other adult and one or more children, in the presence of a third person who monitors the contact to promote the safety of the participants.

(b) "Monitored exchange" means the observation of movement of a child or children from the custodial responsibility of one parent or guardian to the custodial responsibility of the other parent or other adult without allowing contact between the adults.

(c) "Monitored parenting and exchange program" means a licensed program offered by a locally controlled nonprofit organization for purposes of providing a neutral, safe and child-friendly environment to allow the child or children access to a parent or other adult without allowing contact between the adults.

§48-26-213. Outreach defined.

"Outreach" means a licensed domestic violence program's community-based activities that increase awareness and availability of services, in every county within the program's regional service area, to victims and survivors of domestic violence, dating violence, sexual assault, stalking or human trafficking, and their children.

§48-26-214. Shelter defined.

"Shelter" means residential services offered by a licensed domestic violence program on a temporary basis, to persons who are victims of domestic violence, dating violence, sexual assault, stalking or human trafficking, and their children.

PART III. FAMILY PROTECTION SERVICES BOARD.

§48-26-301. Family protection services board continued; terms.

(a) The family protection services board, is continued.

(b) Membership of the board is comprised of seven persons. The Governor, with the advice and consent of the Senate, shall appoint five members of the board who meet the following qualifications:

(1) One member must be a director of a licensed domestic violence program;

(2) One member must be a representative of the West Virginia Coalition Against Domestic Violence;

(3) One member must be a representative of a batterer intervention and prevention program licensed by the board;

(4) One member must be a representative of the West Virginia Supreme Court of Appeals who is familiar with monitored parenting and exchange program services; and

(5) One member must be a citizen who is a resident of this state and who is not employed by, under contract with or a volunteer for a program licensed by the board, and who is knowledgeable about services for victims and survivors of domestic violence;

(c) The secretary of the Department of Health and Human Resources, or his or her designee, and the chair of the Governor's Committee on Crime, Delinquency and Correction, or his or her designee shall serve as ex officio voting members.

(d) The terms of the five members appointed by the Governor are for three years, staggered in accordance with prior enactments of this act.

(e) No person who is employed by, under contract with or volunteers for an organization that is licensed to operate any program under the provisions of this article may serve on the board at the same time as another person who is employed by, under contract with or volunteers for that organization.

(f) If a member resigns or is unable to complete his or her term or ceases to be qualified, the Governor shall appoint within ninety days a person who meets the qualifications of this section to serve the remainder of the unexpired term.

PART IV. DUTIES OF FAMILY PROTECTION SERVICES BOARD.

§48-26-401. Powers and duties of board.

(a) The board shall:

(1) Propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article and any applicable federal guidelines;

(2) Receive and consider applications for licensure of domestic violence programs, batterer intervention and prevention programs and monitored parenting and exchange programs;

(3) Assess the need for domestic violence programs, batterer intervention and prevention programs and monitored parenting and exchange programs, including licensure preapplication and application processes;

(4) Conduct licensure renewal reviews of domestic violence programs, batterer intervention and prevention programs and monitored parenting and exchange programs, that will ensure the safety, well-being and health of the programs' participants and staff;

(5) For each fiscal year, expend from the Family Protection Fund a sum not to exceed fifteen percent for the costs of administering the provisions of this article, and direct the Department of Health and Human Resources to distribute one half of the remaining funds equally and the other half of the remaining funds in accordance with a formula determined by the board, to licensed domestic violence programs;

(6) Submit an annual report on the status of programs licensed under the provisions of this article to the Governor and the Joint Committee on Government and Finance;

(7) Conduct hearings as necessary under this article; and

(8) Collect data about licensed programs for use in the annual report of the board.

(b) The board may:

(1) Advise the Secretary of the Department of Health and Human Resources and the Chair of the Governor's Committee on Crime, Delinquency and Correction on matters of concern relative to their responsibilities under this article;

(2) Delegate to the Secretary of the Department of Health and Human Resources such powers and duties of the board as the board considers appropriate to delegate, including, but not limited to, the authority to approve, disapprove, revoke or suspend licenses;

(3) Advise administrators of state or federal funds of licensure violations and closures of programs; and

(4) Exercise all other powers necessary to implement the provisions of this article.

§48-26-402. Requirements, qualifications and terms of licensure; collaboration to assist programs.

(a) No domestic violence program, batterer intervention and prevention program or monitored parenting and exchange program may represent that it is licensed unless it is licensed by the board pursuant to the provisions of this article and the legislative rules promulgated pursuant to this article.

(b) The board shall establish preliminary application and full application forms for the initial licensing of domestic violence programs, batterer intervention and prevention programs and monitored parenting and exchange programs.

(1) To meet basic eligibility requirements an applicant for licensure must complete a preliminary application form to demonstrate local need for the proposed service, method of governance and accountability, administrative and programmatic design, and fiscal efficiency. The board shall respond in writing within sixty days of receipt of the preliminary application;

(2) If the board approves the preliminary application, the applicant may complete a full application form;

(3) The board shall determine whether all documentation set forth on the licensure checklist has been submitted, and may request supplemental or clarifying information or documentation; and

(4) The board shall grant or deny a license within sixty days of the receipt of the completed full application form and all supplemental or clarifying information or documentation requested by the board.

(c) Licenses may be granted or renewed for periods not to exceed three years: Provided, That the board may conduct licensure reviews at any time during the licensure period, and may downgrade, suspend or revoke a license in accordance with the provisions of this article.

(d) The license granted by the board shall be prominently displayed by the licensees.

(e) The board may grant a provisional license for up to one hundred and eighty days, to a program that is not in compliance with non-life threatening safety, programmatic, facility or administrative standards. A provisional license may be extended for up to an additional one hundred and eighty days, if the board, in its sole discretion, determines that the program is making active progress toward compliance.

(f) The board may grant a conditional license for up to ninety days to a program that has violations of safety or accountability standards that may threaten the health, well-being or safety of its participants or staff, or the responsible operation of the program, or that have a history or pattern of noncompliance with established standards. If a program does not correct the violations within the conditional license period, the board may institute closure proceedings.

(g) The Department of Health and Human Resources, the Division of Justice and Community Services, the Family Protection Services Board, the WV Coalition Against Domestic Violence, the West Virginia Supreme Court of Appeals and the Division of Corrections may, collectively or in any combination as appropriate to the program, collaborate to provide technical assistance to prevent and resolve deficiencies in a program's ability to meet the standards to operate and maintain licensure.

(h) If the board obtains information that a person or persons has engaged in, is engaging in or is about to engage in an act that constitutes or will constitute a violation of the provisions of this article or the legislative rules promulgated pursuant to this article, it may issue a notice to the person or persons to cease and desist the act, or apply to the circuit court for an order enjoining the act. Upon a showing that the person has engaged, is engaging or is about to engage in such an act, the court may order an injunction, restraining order or other order as the court considers appropriate.

§48-26-403. Legislative rules.

(a) The board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this article.

(b) The rules shall include, at a minimum:

(1) Operating procedures of the board;

(2) Minimum standards, including, but not limited to, governance, administration, safety, referral process, intake, services, financial accountability, staffing, personnel policies, communication, program participant records, service plans, confidentiality, program evaluation, facility requirements, reports, restrictions, and other requirements in this article, for licensure of:

(A) Domestic violence programs, including requirements for both shelter and outreach components;

(B) Community-based, local government and Division of Corrections batterer intervention and prevention programs; and

(C) Monitored parenting and exchange programs; and

(3) A licensure checklist to determine the ability of applicants and licensees to meet licensure standards, to determine eligibility for a full license, provisional license, conditional license or no license.

(c) The rules in effect as of the effective date of the reenactment of this section will remain in effect until modified, amended or repealed provided that they are not inconsistent with this article.

§48-26-404.

Repealed.

Acts, 2013 Reg. Sess., Ch. 81.

§48-26-405.

Repealed.

Acts, 2013 Reg. Sess., Ch. 81.

§48-26-406. Closure of programs.

(a) The board may close any program that violates the standards established under this article or that threatens the health, well-being or safety of its participants or staff: Provided, That if a shelter is closed, the governing body of the program, in conjunction with the board, shall establish a plan to place the participants in other shelters or alternative housing.

(b) In order to close a domestic violence program or one of its components, a batterer intervention and prevention program or a monitored parenting and exchange program, the board must vote unanimously in the affirmative.

(c) If either the shelter component or the outreach component of a domestic violence program is closed, the remaining component of the program may continue to be licensed and to receive funds.

§48-26-407. Domestic violence shelters not in violation of zoning rules and resolutions as to use.

Domestic violence shelters established pursuant to section four hundred two of this article, called the domestic violence act, shall not be subject to the enforcement of municipal zoning ordinances on the basis of being in noncompliance or variance with a particular use district: Provided, That as to all other provisions of those ordinances, the ordinances will control.

§48-26-408. Hearing procedures; judicial review.

(a) When a license for a program is downgraded or discontinued through permanent or temporary closure, the program's governing body is entitled to a hearing before the board.

(b) Hearings shall be held in accordance with the provisions of article five, chapter twenty-nine-a of this code.

(c) The board may conduct the hearing or elect to have a hearing examiner or an administrative law judge conduct the hearing. If the hearing is conducted by a hearing examiner or an administrative law judge:

(1) The hearing examiner or administrative law judge shall be licensed to practice law in this state and shall conform to the Code of Conduct for Administrative Law Judges as set forth by the Ethics Commission in legislative rule;

(2) At the conclusion of a hearing, the hearing examiner or administrative law judge shall prepare a proposed written order containing recommended findings of fact and conclusions of law and may include recommended sanctions, including closure, if the board so directs;

(3) The board may accept, reject, modify or amend the recommendations of the hearing examiner or administrative law judge; and

(4) If the board rejects, modifies or amends the recommendations, the board shall state in the order a reasoned, articulate justification based on the record for the rejection, modification or amendment.

(d) Pursuant to the provisions of section one, article five, chapter twenty-nine-a of this code, informal disposition may also be made by the board by stipulation, agreed settlement, consent order or default. Further, the board may suspend its decision and place a license on conditional or provisional status.

(e) A licensee adversely affected by a decision of the board entered after a hearing may seek an appeal to the Circuit Court, in accordance with the provisions of section four, article five, chapter twenty-nine-a of this code, and may appeal a decision of the Circuit Court to the West Virginia Supreme Court of Appeals, in accordance with the provisions of article six, chapter twenty-nine-a of this code.

PART 5. DUTIES OF THE BUREAU FOR PUBLIC HEALTH.

§48-26-501. Development of state public health plan for reducing domestic violence.

(a) The Bureau for Public Health of the Department of Health and Human Resources, in consultation with the family protection services board, shall:

(1) Assess the impact of domestic violence on public health; and

(2) Develop a state public health plan for reducing the incidence of domestic violence in this state.

(b) The state public health plan shall:

(1) Include, but not be limited to, public education, including the use of the various communication media to set forth the public health perspective on domestic violence;

(2) Be developed in consultation with public and private agencies that provide programs for victims of domestic violence, advocates for victims, organizations representing the interests of shelters, and persons who have demonstrated expertise and experience in providing health care to victims of domestic violence and their children; and

(3) Be completed on or before January 1, 2000.

(c) The Bureau for Public Health of the Department of Health and Human Resources shall:

(1) Transmit a copy of the state public health plan to the Governor and the Legislature; and

(2) Review and update the state public health plan annually.

§48-26-502. Notice of victims' rights, remedies and available services; required information.

(a) The Bureau for Public Health of the Department of Health and Human Resources shall make available to health care facilities and practitioners a written form notice of the rights of victims and the remedies and services available to victims of domestic violence.

(b) A health care practitioner whose patient has injuries or conditions consistent with domestic violence shall provide to the patient, and every health care facility shall make available to all patients, a written form notice of the rights of victims and the remedies and services available to victims of domestic violence.

§48-26-503. Standards, procedures and curricula.

(a) The Bureau for Public Health of the Department of Health and Human Resources shall publish model standards, including specialized procedures and curricula, concerning domestic violence for health care facilities, practitioners and personnel.

(b) The procedures and curricula shall be developed in consultation with public and private agencies that provide programs for victims of domestic violence, advocates for victims, organizations representing the interests of shelters and personnel who have demonstrated expertise and experience in providing health care to victims of domestic violence and their children.

§48-26-601.

Repealed.

Acts, 2013 Reg. Sess., Ch. 81.

§48-26-602.

Repealed.

Acts, 2013 Reg. Sess., Ch. 81.

PART VI. FUNDING.

§48-26-603. Domestic Violence Legal Services Fund.

(a) There is continued in the State Treasury a special revenue account, designated as the "Domestic Violence Legal Services Fund," that shall be an appropriated fund for receipt of grants, gifts, fees, or federal or state funds designated for legal services for domestic violence victims. Expenditures from the fund shall be limited to attorneys employed or contracted by licensed domestic violence programs, or employed or contracted by West Virginia's federally designated legal services program, its successor organization or other nonprofit organization as determined by the department, that establish a collaborative relationship with a licensed domestic violence program, to provide civil legal services to victims of domestic violence.

(b) Any court of this state may order a nonprevailing party to pay an amount equivalent to the reasonable attorney's fee to which the prevailing litigant would be entitled into the Domestic Violence Legal Services Fund, established in subsection (a) of this section, if the following circumstances occur:

(1) A prevailing litigant is entitled by statute or common law to a reasonable attorney's fee, and

(2) The prevailing litigant's legal counsel informs the court that no fee will be requested.

§48-26-604. Annual reports of licensed programs.

(a) All programs licensed pursuant to this article shall report specific information annually as required by the board.

(b) No information contained in a report may identify any person served by the program or enable any person to determine the identity of any such person.

§48-26-701. Confidentiality.

(a) A program licensed pursuant to this article may not disclose, reveal, or release or be compelled to disclose, reveal, or release, any written records or personal or personally identifying information about a program participant created or maintained in providing services, regardless of whether the information has been encoded, encrypted, hashed, or otherwise protected, pursuant to this article except:

(1) Upon written consent, or upon oral consent in emergency situations defined by legislative rule, of the person seeking or who has sought services from the program;

(2) In any proceeding brought under §9-6-4 and §9-6-5 of this code or §49-4-601 through §49-4-610 of this code;

(3) As mandated by §49-2-801 through §49-2-814 and §9-6-1 et seq. of this code;

(4) Pursuant to an order of any court based upon a finding that the information is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by this section;

(5) To protect against a clear and substantial danger of imminent injury by a person receiving services to himself or herself or another; or

(6) As authorized by the releases signed by batterer intervention and prevention program participants pursuant to the provisions of subsection (b) of this section.

(b) Batterer intervention and prevention program participants shall authorize the release of information by signing the following releases:

(1) Allowing the provider to inform the victim or alleged victim and the victim’s advocates that the batterer is participating in a batterer intervention and prevention program with the provider and to provide information to the victim or alleged victim and her or his advocates, if necessary, for the victim’s or alleged victim’s safety;

(2) Allowing prior and current service providers to provide information about the batterer to the provider;

(3) Allowing the provider, for good cause, to provide information about the batterer to relevant legal entities, including courts, parole officers, probation officers, child protective services, adult protective services, law enforcement, licensed domestic violence programs, or other referral agencies;

(4) Allowing the provider to report to the court, if the participation was court ordered, and to the victim or alleged victim, if she or he requests and provides a method of notification, and to her or his advocate, any assault, failure to comply with program requirements, failure to attend the program, threat of harm by the batterer, reason for termination, and recommendations for changes in the court order; and

(5) Allowing the provider to report to the victim or alleged victim, or her or his advocate, without the participant’s authorization, all perceived threats of harm, the participant’s failure to attend, and reason for termination.

(c) Monitored parenting and exchange programs may disclose to one parent or guardian, without the permission of the other parent or guardian, any perceived threat of harm or violation of the court order or violation of the monitored parenting and exchange program rules by the other parent or guardian.

(d) A monitored parenting and exchange program may not release information about the child without consent of the parent with custodial responsibility or guardian.

(e) In addition to the provisions set forth in this section, the release of a victim’s personally identifying information is subject to the provisions of 42 U.S.C. § 13925(b)(2).

(f) A consent or authorization for the transmission or disclosure of confidential information is not effective unless it is signed by the program participant whose information is being disclosed. Every person signing an authorization shall be given a copy.

(g) A victim of domestic violence, dating violence, sexual assault, or stalking shall not be required to provide consent to release his or her personally identifying information as a condition of eligibility for the services, nor may any personally identifying information be shared in order to comply with federal or state reporting, evaluation, or data collection requirements: Provided, That nothing in this section prohibits a program from reporting suspected abuse or neglect, as defined by law, when the program is mandated by law to report suspected abuse or neglect.

PART 8. EDUCATION CONCERNING DOMESTIC VIOLENCE.

§48-26-801. Continuing education for certain state employees.

(a)(1) Subject to the provisions of subdivision (2) of this subsection, the Department of Health and Human Resources shall provide or require continuing education concerning domestic violence for child protective services workers, adult protective services workers, social services workers, family support workers and workers in the Bureau for Child Support enforcement.

(2) Funding for the continuing education provided or required under subdivision (1) of this section may not exceed the amounts allocated for that purpose by the spending unit from existing appropriations. No provision of this section may be construed to require the Legislature to make any appropriation.

(b) The courses or requirements shall be prepared and presented in consultation with public and private agencies that provide programs for victims of domestic violence or programs of intervention for perpetrators, advocates for victims, organizations representing the interests of shelters and the family protection services board.

 §48-26-802. Continuing education for law-enforcement officers concerning domestic violence.

(a)(1) Subject to the provisions of subdivision (2) of this subsection, as a part of the initial law-enforcement officer training required before a person may be employed as a law-enforcement officer pursuant to article twenty-nine, chapter thirty of this code, all law-enforcement officers shall receive training concerning domestic violence.

(2) Funding for the training required under subdivision (1) of this section may not exceed the amounts allocated by the spending unit for that purpose from existing appropriations. No provision of this section may be construed to require the Legislature to make any appropriation.

(b) The course of instruction and the objectives in learning and performance for the education of law-enforcement officers required pursuant to this section shall be developed and presented in consultation with public and private providers of programs for victims of domestic violence and programs of intervention for perpetrators, persons who have demonstrated expertise in training and education concerning domestic violence and organizations representing the interests of shelters.

§48-26-803. Judicial education on domestic violence.

(a)(1) Subject to the provisions of subdivision (2) of this subsection, as a part of existing training for court personnel, the Supreme Court of Appeals shall develop and present courses of continuing education concerning domestic violence for magistrates assistants, and juvenile and adult probation officers.

(2) Funding for the continuing education required under subdivision (1) of this section may not exceed the amounts allocated for that purpose by the Supreme Court of Appeals from existing appropriations. No provision of this section may be construed to require the Legislature to make any appropriation.

(b) The course of instruction shall be prepared and may be presented in consultation with public and private agencies that provide programs for victims of domestic violence and programs of intervention for perpetrators, advocates for victims, persons who have demonstrated expertise in training and education concerning domestic violence, organizations representing the interests of shelters and the family protection services board.

§48-26-804. Required curricula for public education system.

(a)(1) Subject to the provisions of subdivision (2) of this subsection, the state Board of Education shall select or develop:

(A) Curricula that are appropriate for various ages for pupils concerning the dynamics of violence, prevention of violence, including domestic violence; and

(B) Curricula for school counselors, health care personnel, administrators and teachers concerning domestic violence.

(2) Funding for selecting or developing the curricula required under subdivision (1) of this section may not exceed the amounts allocated for that purpose by the spending unit from existing appropriations. No provision of this section may be construed to require the Legislature to make any appropriation.

(b) The curricula shall be selected or developed by the state Board of Education in consultation with public and private agencies that provide programs for conflict resolution, violence prevention, victims of domestic violence and programs of intervention for perpetrators of domestic violence, advocates for victims, organizations representing the interests of shelters, persons who have demonstrated expertise and experience in education and domestic violence and the family protection services board.

§48-26-805. Continuing education for school personnel who are required to report child abuse and neglect.

(a)(1) Subject to the provisions of subdivision (2) of this subsection, the state Department of Education shall provide or require courses of continuing education concerning domestic violence for employees who are required by law to report child abuse or neglect.

(2) Funding for the continuing education provided or required under subdivision (1) of this section may not exceed the amounts allocated for that purpose by the spending unit from existing appropriations. No provision of this section may be construed to require the Legislature to make any appropriation.

(b) The courses or requirements shall be prepared and presented in consultation with public and private agencies that provide programs for victims of domestic violence, persons who have demonstrated expertise in education and domestic violence, advocates for victims, organizations representing the interests of shelters and the family protection services board.

§48-26-901.

Repealed.

Acts, 2013 Reg. Sess., Ch. 81.

§48-26-902.

Repealed.

Acts, 2013 Reg. Sess., Ch. 81.

PART X . MONITORED PARENTING AND EXCHANGE PROGRAMS.

§48-26-1001. Court orders; use of monitored parenting and exchange programs without court order.

(a) Judges and magistrates may order persons to apply to a licensed monitored parenting and exchange program for monitored parenting or monitored exchange of children: Provided, That a licensed monitored parenting and exchange program may not be required to perform duties that are beyond the program's capacity or scope of services.

(b) Judges and magistrates may require a person to pay a reasonable amount based on ability to pay and other relevant criteria for any fee charged by a monitored parenting and exchange program.

(c) Licensed monitored parenting and exchange programs may receive referrals from judges, magistrates, child protective services, attorneys and other agencies, for services under the terms and conditions of those services as set forth in rules promulgated by the board.

(d) Licensed monitored parenting and exchange programs may serve self-referrals when the adult parties agree to the use of the program.

§48-26-1002. Exclusions.

The provisions of this part do not apply to therapeutic or supervised visitation or exchanges or any activity conducted by the state or others in abuse and neglect proceedings pursuant to §49-2-801 through §49-2-814 and §49-4-601 through §49-4-610 of this code in which assessment, evaluation, formulation of a treatment plan, case management, counseling, therapy, or similar activities occur.

§48-26-1003.

Repealed.

Acts, 2013 Reg. Sess., Ch. 81.

§48-26-1004. Contract by persons using program.

Every program shall require that the parent, guardian or other adult sign a written contract prior to using the program and that the use of the services provided by the program can be terminated by the program for violation of the contract.

§48-26-1005.

Repealed.

Acts, 2013 Reg. Sess., Ch. 81.

§48-26-1006.

Repealed.

Acts, 2013 Reg. Sess., Ch. 81.

§48-26-1007.

Repealed.

Acts, 2013 Reg. Sess., Ch. 81.

PART 11. MISCELLANEOUS PROVISIONS.

§48-26-1101. Referral to shelters.

Where shelters are available, the law-enforcement officer or other public authority investigating an alleged incident of domestic violence shall advise the victim of the availability of the family protection shelter to which that person may be admitted.

§48-26-1102.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.

PART 1. GENERAL PROVISIONS.

§48-27-101. Findings and purposes.

(a) The Legislature of this state finds that:

(1) Every person has a right to be safe and secure in his or her home and family and to be free from domestic violence.

(2) Children are often physically assaulted or witness violence against one of their parents or other family or household members, violence which too often ultimately results in death. These children may suffer deep and lasting emotional harm from victimization and from exposure to domestic violence;

(3) Domestic violence is a major health and law-enforcement problem in this state with enormous costs to the state in both dollars and human lives. It affects people of all racial and ethnic backgrounds and all socioeconomic classes; and

(4) Domestic violence can be deterred, prevented or reduced by legal intervention that treats this problem with the seriousness that it deserves.

(b) This article shall be liberally construed and applied to promote the following purposes:

(1) To assure victims of domestic violence the maximum protection from abuse that the law can provide;

(2) To create a speedy remedy to discourage violence against family or household members with whom the perpetrator of domestic violence has continuing contact;

(3) To expand the ability of law-enforcement officers to assist victims, to enforce the domestic violence law more effectively, and to prevent further abuse;

(4) To facilitate equal enforcement of criminal law by deterring and punishing violence against family and household members as diligently as violence committed against strangers;

(5) To recognize that domestic violence constitutes serious criminal behavior with potentially tragic results and that it will no longer be excused or tolerated; and

(6) To recognize that the existence of a former or on-going familial or other relationship should not serve to excuse, explain or mitigate acts of domestic violence which are otherwise punishable as crimes under the laws of this state.

PART 2. DEFINITIONS.

§48-27-201. Applicability of definitions.

For the purposes of this article and article 26-101, et seq., of this chapter, the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them in this section. These definitions are applicable unless a different meaning clearly appears from the context.

PART 2. DEFINITIONS.

§48-27-202. Domestic violence defined.

"Domestic violence" or "abuse" means the occurrence of one or more of the following acts between family or household members, as that term is defined in section two hundred four of this article:

(1) Attempting to cause or intentionally, knowingly or recklessly causing physical harm to another with or without dangerous or deadly weapons;

(2) Placing another in reasonable apprehension of physical harm;

(3) Creating fear of physical harm by harassment, stalking, psychological abuse or threatening acts;

(4) Committing either sexual assault or sexual abuse as those terms are defined in articles eight-b and eight-d, chapter sixty-one of this code; and

(5) Holding, confining, detaining or abducting another person against that person's will.

§48-27-203. Emergency hearing defined.

"Emergency hearing" means the hearing before a magistrate upon the filing of a petition for a protective order. An emergency hearing may be held ex parte.

PART 2. DEFINITIONS.

§48-27-204. Family or household members defined.

"Family or household members" means persons who:

(1) Are or were married to each other;

(2) Are or were living together as spouses;

(3) Are or were sexual or intimate partners;

(4) Are or were dating: Provided, That a casual acquaintance or ordinary fraternization between persons in a business or social context does not establish a dating relationship;

(5) Are or were residing together in the same household;

(6) Have a child in common regardless of whether they have ever married or lived together;

(7) Have the following relationships to another person:

(A) Parent;

(B) Stepparent;

(C) Brother or sister;

(D) Half-brother or half-sister;

(E) Stepbrother or stepsister;

(F) Father-in-law or mother-in-law;

(G) Stepfather-in-law or stepmother-in-law;

(H) Child or stepchild;

(I) Daughter-in-law or son-in-law;

(J) Stepdaughter-in-law or stepson-in-law;

(K) Grandparent;

(L) Step grandparent;

(M) Aunt, aunt-in-law or step aunt;

(N) Uncle, uncle-in-law or step uncle;

(O) Niece or nephew;

(P) First or second cousin; or

(8) Have the relationships set forth in paragraphs (A) through (P), subdivision (7) of this section to a family or household member, as defined in subdivisions (1) through (6) of this section.

§48-27-205. Final hearing defined.

"Final hearing" means the hearing before a family court judge following the entry of an order by a magistrate as a result of the emergency hearing.

§48-27-206. Law-enforcement agency defined.

(a) "Law-enforcement agency" means and is limited to:

(1) The state police and its members;

(2) A county sheriff and his or her law-enforcement deputies;

(3) A police department in any municipality as defined in section two, article one, chapter eight of this code; and

(4) Any federal agency whose purpose includes enforcement, maintenance and gathering of information of both criminal and civil records relating to domestic violence under federal law.

(b) The term "law-enforcement agency" includes, but is not limited to, the Department of Health and Human Resources in those instances of child abuse reported to the department that are not otherwise reported to any other law-enforcement agency.

§48-27-207. Program for victims of domestic violence defined.

"Program for victims of domestic violence" means a licensed program for victims of domestic violence and their children, which program provides advocacy, shelter, crisis intervention, social services, treatment, counseling, education or training.

§48-27-208. Program of intervention for perpetrators defined.

"Program of intervention for perpetrators" means a licensed program, where available, or if no licensed program is available, a program that:

(1) Accepts perpetrators of domestic violence into educational intervention groups or counseling pursuant to a court order; or

(2) Offers educational intervention groups to perpetrators of domestic violence.

§48-27-209. Protective order defined.

"Protective order" means an emergency protective order entered by a magistrate as a result of the emergency hearing or a protective order entered by a family court judge upon final hearing.

Part III. Procedure.

§48-27-301. Jurisdiction.

(a) Circuit courts, family courts and magistrate courts have concurrent jurisdiction over domestic violence proceedings as provided in this article.

(b) The Supreme Court of Appeals is authorized to assign appropriate judicial officers for five domestic violence courts in any jurisdiction chosen by the Supreme Court of Appeals.  Judicial officers so assigned have the authority and jurisdiction to preside over criminal misdemeanor crimes of domestic violence involving family or household members as defined in subdivisions (1) through (6), inclusive, and paragraphs (A), (B) and (H), subdivision (7), section two hundred four of this article, relating to offenses under subsections (b) and (c), section nine, article two, chapter sixty-one of this code, misdemeanor violations of section nine-a, article two, chapter sixty-one of this code, misdemeanor violations of section twenty-eight, article two, chapter sixty-one of this code, misdemeanor offenses under article three, chapter sixty-one of this code where the alleged perpetrator and the victim are said family or household members, subdivisions (7) and (8), section seven, article seven, chapter sixty-one of this code and civil and criminal domestic violence protective order proceedings as provided in this article. The judicial officer chosen for any domestic violence court may be a current or senior status circuit judge, family court judge, temporary family court judge or magistrate. The Supreme Court of Appeals is requested to maintain statistical data to determine the feasibility and effectiveness of any domestic violence court established by the provisions of this section.

(c) The assigned judicial officer in a domestic violence court does not have jurisdiction to preside over any felony crimes unless the assigned judicial officer is a circuit court judge.

§48-27-302. Venue.

The action may be heard in the county in which the domestic violence occurred, in the county in which the respondent is living or in the county in which the petitioner is living, either temporarily or permanently. If the parties are married to each other, the action may also be brought in the county in which an action for divorce between the parties may be brought as provided by 5-106.

§48-27-303. Effect of petitioner leaving residence.

The petitioner's right to relief under this article shall not be affected by his or her leaving a residence or household to avoid further abuse.

PART 3. PROCEDURE.

§48-27-304. Commencement of proceeding.

(a) An action under this article is commenced by the filing of a verified petition in the magistrate court.

(b) No person shall be refused the right to file a petition under the provisions of this article. No person shall be denied relief under the provisions of this article if she or he presents facts sufficient under the provisions of this article for the relief sought.

(c) Husband and wife are competent witnesses in domestic violence proceedings and cannot refuse to testify on the grounds of the privileged nature of their communications.

§48-27-305. Persons who may file petition.

A petition for a protective order may be filed by:

(1) A person seeking relief under this article for herself or himself

(2) An adult family or household member for the protection of the victim or for any family or household member who is a minor child or physically or mentally incapacitated to the extent that he or she cannot file on his or her own behalf, or

(3) A person who reported or was a witness to domestic violence and who, as a result, has been abused, threatened, harassed or who has been the subject of other actions intended to intimidate the person.

§48-27-306. Counterclaim or affirmative defenses.

(a) A respondent named in a petition alleging domestic violence may file a verified counterclaim stating any claim that the respondent has against the petitioner that would be a basis for filing a petition under this article.

(b) In response to a petition or counterclaim, the person alleged to have committed the domestic violence may assert any affirmative defense that he or she may have available.

§48-27-307. Persons accompanying petitioner.

No person accompanying a person who is seeking to file a petition under the provisions of this article is precluded from being present if his or her presence is desired by the person seeking a petition unless the person's behavior is disruptive to the proceeding.

§48-27-308. Charges for fees and costs postponed.

No fees shall be charged for the filing of petitions or other papers, service of petitions or orders, copies of orders, or other costs for services provided by, or associated with, any proceedings under this article until the matter is brought before the court for final resolution.

§48-27-309. Priority of petitions.

Any petition filed under the provisions of this article shall be given priority over any other civil action before the court, except actions in which trial is in progress, and shall be docketed immediately upon filing.

§48-27-310. Full faith and credit.

Any protective order issued pursuant to this article shall be effective throughout the state in every county. Any protection order issued by any other state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States or any Indian tribe or band that has jurisdiction to issue protection orders shall be accorded full faith and credit and enforced in accordance with the provisions of article twenty-eight of this chapter.

§48-27-311. Service of process.

A protective order may be served:

(1) On the respondent by means of a Class I legal advertisement published notice, with the publication area being the most current known county in which the respondent resides, published in accordance with the provisions of section two, article three, chapter fifty-nine of this code if personal service by law enforcement has been unsuccessful. Simultaneously with the publication, the respondent shall be served with the protective order and the order of publication by first class mail to the respondent's most current known residential address.

(2) Against nonresident persons by the manner prescribed in section thirty-three-a, article three, chapter fifty-six of this code.

Any protective order issued by the court of this state which is served in compliance with the provisions of Rule 4(f) of the West Virginia Rules of Civil Procedure served outside the boundaries of this state shall carry the same force and effect as if it had been personally served within this state's boundaries.

PART 3. PROCEDURE.

§48-27-312. Production of documents pursuant to a subpoena duces tecum.

Notwithstanding any provision of law or any procedural rule to the contrary, any record in a proceeding filed pursuant to this article shall be supplied to any person presenting a subpoena duces tecum issued by a state or federal court in any criminal action or action filed pursuant to this article. Any record in a proceeding filed pursuant to this article is not subject to disclosure pursuant to a subpoena if the subpoena was issued in a civil action. In civil proceedings a court, for good cause shown, may enter an order permitting a person who is not otherwise permitted access to a court file to examine and copy records of a proceeding filed pursuant to this article: Provided, That the court shall enter such order as may be necessary to protect any document containing the address or other contact information of a person who filed a petition under this article: Provided, however, That any records obtained pursuant to the provisions of this section shall be used only in the context of the case in which the subpoena was issued and not for any other purpose.

§48-27-401. Interaction between domestic proceedings.

 (a) During the pendency of a divorce action, a person may file for and be granted relief provided by this article until an order other than a procedural order is entered in the divorce action pursuant to Part 5-501, et seq.

(b) If a person who has been granted relief under this article should subsequently become a party to an action for divorce, separate maintenance or annulment, such person shall remain entitled to the relief provided under this article including the right to file for and obtain any further relief, so long as no temporary order other than a procedural order has been entered in the action for divorce, annulment and separate maintenance, pursuant to Part 5-501, et seq.

(c) Except as provided in section 5-509 of this chapter and section 27-402 of this article for a petition and a temporary emergency protective order, no person who is a party to a pending action for divorce, separate maintenance or annulment in which an order other than a procedural order has been entered pursuant to Part 5-501, et seq. of this chapter, shall be entitled to file for or obtain relief against another party to that action under this article until after the entry of a final order which grants or dismisses the action for divorce, annulment or separate maintenance.

(d) Notwithstanding the provisions set forth in section 27-505, when an action seeking a divorce, an annulment or separate maintenance, the allocation of custodial responsibility or a habeas corpus action to establish custody, the establishment of paternity, the establishment or enforcement of child support, or other relief under the provisions of this chapter is filed or is reopened by petition, motion or otherwise, then any order issued pursuant to this article which is in effect on the day the action is filed or reopened shall remain in full force and effect by operation of this statute until: (1) A temporary order other than a procedural order or a final order is entered pursuant to the provisions of Part 5-501, et seq. or Part 6-601 et seq., of this chapter; or (2) an order is entered modifying such order issued pursuant to this article; or (3) the entry of a final order granting or dismissing the action. The Supreme Court of Appeals shall provide by rule for notice of the extension of the Domestic Violence Order to be provided to the parties, law enforcement and the domestic violence registry by the clerk of the court, or clerks of the courts, in which the action or actions are filed.

§48-27-402. Proceedings in magistrate court when temporary divorce, annulment, separate maintenance or custody order is in effect.

(a) The provisions of this section apply where a temporary order has been entered by a family court in an action for divorce, annulment, separate maintenance or custody, notwithstanding the provisions of subsection 27-401(c) of this article.

(b) A person who is a party to an action for divorce, annulment, separate maintenance or custody in which a temporary order has been entered pursuant to section 5-501 of this chapter may petition the magistrate court for a temporary emergency protective order pursuant to this section for any violation of the provisions of this article occurring after the date of entry of the temporary order pursuant to section 5-501 of this chapter.

(c) The only relief that a magistrate may award pursuant to this section is a temporary emergency protective order:

(1) Directing the respondent to refrain from abusing the petitioner or minor children, or both;

(2) Ordering the respondent to refrain from entering the school, business or place of employment of the petitioner or household members or family members for the purpose of violating the protective order; and

 (3) Ordering the respondent to refrain from contacting, telephoning, communicating with, harassing or verbally abusing the petitioner.

(d) A temporary emergency protective order may modify an award of custody or visitation only upon a showing, by clear and convincing evidence, of the respondent’s abuse of a child, as abuse is defined in section 27-202 of this article. An order of modification shall clearly state which party has custody and describe why custody or visitation arrangements were modified.

(e) (1) The magistrate shall forthwith transmit a copy of any temporary emergency protective order, together with a copy of the petition, by mail or by facsimile machine to the family court in which the action is pending and to law-enforcement agencies. The family court shall set a hearing on the matter to be held no later than ten days following the entry of the order by magistrate. The family court shall give notice of the hearing date, time and place to the parties and shall advise them of their opportunity to appear and participate in a hearing to determine whether the order entered by the magistrate should be extended by the family court to a date certain or should be vacated. The notice shall also provide that a party’s failure to appear may result in the entry of an order extending the order entered by the magistrate to a date certain or vacating the order of the magistrate. Subsequent to the hearing, the family court shall forthwith enter an order and cause the same to be served on the parties and transmitted by mail or by facsimile machine to the issuing magistrate. The magistrate court clerk shall forward a copy of the family court order to law-enforcement agencies.

(2) If no temporary order has been entered in the pending action for divorce, annulment, separate maintenance or custody, the family court shall forthwith return the order with such explanation to the issuing magistrate. The magistrate who issued the order shall vacate the order, noting thereon the reason for termination. The magistrate court clerk shall transmit a copy of the vacated order to the parties and law-enforcement agencies.

(f) Notwithstanding any other provision of this code, if the family court extends the temporary emergency protective order entered by the magistrate or if, pursuant to the provisions of section 5-509, the family court enters a protective order as temporary relief in an action for divorce, the family court order shall be treated and enforced as a protective order issued under the provisions of this article.

§48-27-403. Emergency protective orders of court; hearings; persons present.

(a) Upon the filing of a verified petition under this article, the magistrate court may enter an emergency protective order as it may determine necessary to protect the petitioner or minor children from domestic violence and, upon good cause shown, may do so ex parte without the necessity of bond being given by the petitioner. Clear and convincing evidence of immediate and present danger of abuse to the petitioner or minor children constitutes good cause for the issuance of an emergency protective order pursuant to this section. If the respondent is not present at the proceeding, the petitioner or the petitioner’s legal representative shall certify to the court, in writing, the efforts which have been made to give notice to the respondent or just cause why notice should not be required. Copies of medical reports or records may be admitted into evidence to the same extent as though the original reports or records. The custodian of the records is not required to be present to authenticate the records for any proceeding held pursuant to this subsection. If the magistrate court determines to enter an emergency protective order, the order shall prohibit the respondent from possessing firearms.

(b) Following the proceeding, the magistrate court shall order a copy of the petition to be served immediately upon the respondent, together with a copy of any emergency protective order entered pursuant to the proceedings, a notice of the final hearing before the family court, and a statement of the right of the respondent to appear and participate in the final hearing, as provided in subsection (d) of this section. Copies of any order entered under the provisions of this section, a notice of the final hearing before the family court, and a statement of the right of the petitioner to appear and participate in the final hearing, as provided in subsection (d) of this section, shall also be delivered to the petitioner. Copies of any order entered shall also be delivered to any law-enforcement agency having jurisdiction to enforce the order, including municipal police, the county sheriff’s office and local office of the State Police, within 24 hours of the entry of the order. An emergency protective order is effective until modified by order of the family court upon hearing as provided in subsection (d) of this section. The order is in full force and effect in every county in this state.

(c) Subsequent to the entry of the emergency protective order, service on the respondent, and the delivery to the petitioner and law-enforcement officers, the court file shall be transferred to the office of the clerk of the circuit court for use by the family court.

(d) The family court shall schedule a final hearing on each petition in which an emergency protective order has been entered by a magistrate. The hearing shall be scheduled not later than 10 days following the entry of the order by the magistrate. The notice of the final hearing shall be served on the respondent and delivered to the petitioner, as provided in subsection (b) of this section, and must set forth the hearing date, time, and place and include a statement of the right of the parties to appear and participate in the final hearing. The notice must also provide that the petitioner’s failure to appear will result in a dismissal of the petition and that the respondent’s failure to appear may result in the entry of a protective order against him or her for a period of 90 or 180 days, as determined by the court. The notice must also include the name, mailing address, physical location, and telephone number of the family court having jurisdiction over the proceedings. To facilitate the preparation of the notice of final hearing required by the provisions of this subsection, the family court must provide the magistrate court with a day and time in which final hearings may be scheduled before the family court within the time required by law.

(e) Upon final hearing the petitioner must prove, by a preponderance of the evidence, the allegation of domestic violence or that he or she reported or witnessed domestic violence against another and has, as a result, been abused, threatened, harassed, or has been the subject of other actions to attempt to intimidate him or her, or the petition shall be dismissed by the family court. If the respondent has not been served with notice of the emergency protective order, the hearing may be continued to permit service to be effected. The failure to obtain service upon the respondent does not constitute a basis to dismiss the petition. Copies of medical reports may be admitted into evidence to the same extent as though the original thereof, upon proper authentication, by the custodian of the records.

(f) A person requested by a party to be present during a hearing held under the provisions of this article shall not be precluded from being present unless that person is to be a witness in the proceeding and a motion for sequestration has been made and the motion has been granted. A person found by the court to be disruptive may be precluded from being present.

(g) Upon hearing, the family court may dismiss the petition or enter a protective order for a period of 90 days or, in the discretion of the court, for a period of 180 days. The hearing may be continued on motion of the respondent, at the convenience of the court. Otherwise, the hearing may be continued by the court no more than seven days. If a hearing is continued, the family court may modify the emergency protective order as it considers necessary.

(h) Notwithstanding any other provision of this code to the contrary, a petition filed pursuant to this section that results in the issuance of an emergency protective order naming a juvenile as the respondent in which the petition for the emergency protective order is filed by or on behalf of the juvenile’s parent, guardian or custodian, or other person with whom the juvenile resides shall be treated as a petition authorized by §49-4-704 of this code, alleging the juvenile is a juvenile delinquent: Provided, That the magistrate court shall notify the prosecuting attorney in the county where the emergency protective order is issued within 24 hours of the issuance of the emergency protective order and the prosecuting attorney may file an amended verified petition to comply with the provisions of §49-4-704(a) of this code within two judicial days.

PART 5. PROTECTIVE ORDERS; VISITATION ORDERS.

§48-27-501. Issuance of protective order; modification of order.

(a) Upon final hearing, the court shall enter a protective order if it finds, after hearing the evidence, that the petitioner has proved the allegations of domestic violence by a preponderance of the evidence. If the respondent is present at the hearing and elects not to contest the allegations of domestic violence or does not contest the relief sought, the petitioner is not required to produce evidence and prove the allegations of domestic violence and the court may directly address the issues of the relief requested.

(b) The court may modify the terms of a protective order at any time upon subsequent petition filed by any party.

§48-27-502. Mandatory provisions in protective order.

(a) A protective order must order the respondent to refrain from abusing, harassing, stalking, threatening or otherwise intimidating the petitioner or the minor children, or engaging in other conduct that would place the petitioner or the minor children in reasonable fear of bodily injury.

(b) The protective order must prohibit the respondent from possessing any firearm or ammunition.

(c) The protective order must inform the respondent that he or she is prohibited from possessing any firearm or ammunition and that possession of a firearm or ammunition while subject to the court's protective order is a criminal offense under state and federal law, notwithstanding the fact that the respondent might otherwise have a right to possess a firearm.

(d) The protective order must inform the respondent that the order is in full force in every county of this state.

(e) The protective order must contain on its face the following statement, printed in bold-faced type or in capital letters:

"VIOLATION OF THIS ORDER MAY BE PUNISHED BY CONFINEMENT IN A REGIONAL JAIL FOR AS LONG AS ONE YEAR AND BY A FINE OF AS MUCH AS $2,000".

§48-27-503. Permissive provisions in protective order.

The terms of a protective order may include:

(1) Granting possession to the petitioner of the residence or household jointly resided in at the time the abuse occurred;

(2) Ordering the respondent to refrain from entering or being present in the immediate environs of the residence of the petitioner;

(3) Awarding temporary custody of or establishing temporary visitation rights with regard to minor children named in the order;

(4) Establishing terms of temporary visitation with regard to the minor children named in the order including, but not limited to, requiring third party supervision of visitations if necessary to protect the petitioner and/or the minor children;

(5) Ordering the noncustodial parent to pay to the caretaker parent a sum for temporary support and maintenance of the petitioner and children, if any;

(6) Ordering the respondent to pay to the petitioner a sum for temporary support and maintenance of the petitioner, where appropriate;

(7) Ordering the respondent to refrain from entering the school, business or place of employment of the petitioner or household or family members for the purpose of violating the protective order;

(8) Ordering the respondent to participate in an intervention program for perpetrators;

(9) Ordering the respondent to refrain from contacting, telephoning, communicating, harassing or verbally abusing the petitioner;

(10) Providing for either party to obtain personal property or other items from a location, including granting temporary possession of motor vehicles owned by either or both of the parties, and providing for the safety of the parties while this occurs, including ordering a law-enforcement officer to accompany one or both of the parties;

(11) Ordering the respondent to reimburse the petitioner or other person for any expenses incurred as a result of the domestic violence, including, but not limited to, medical expenses, transportation and shelter;

(12) Ordering the petitioner and respondent to refrain from transferring, conveying, alienating, encumbering or otherwise dealing with property which could otherwise be subject to the jurisdiction of the court or another court in an action for divorce or support, partition or in any other action affecting their interests in property;

(13) Awarding the petitioner the exclusive care, possession, or control of any animal owned, possessed, leased, kept or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent and prohibiting the respondent from taking, concealing, molesting, physically injuring, killing or otherwise disposing of the animal and limiting or precluding contact by the respondent with the animal; and

(14) Ordering any other relief the court deems necessary to protect the physical safety of petitioner or those persons for whom a petition may be filed as provided in subdivision (2), section three hundred five of this article.

§48-27-504. Provisions in protective order for person witnessing or reporting domestic violence.

When the person to be protected is a person who reported or was a witness to the domestic violence, the terms of a protective order may order:

(1) The respondent to refrain from abusing, contacting, telephoning, communicating, harassing, verbally abusing or otherwise intimidating the person to be protected;

(2) The respondent to refrain from entering the school, business or place of employment of the person to be protected for the purpose of violating the protective order; and

(3) The respondent to refrain from entering or being present in the immediate environs of the residence of the petitioner.

§48-27-505. Time period a protective order is in effect; extension of order; notice of order or extension.

(a) Except as otherwise provided in subsection (d), section four hundred one of this article, a protective order, entered by the family court pursuant to this article, is effective for either ninety days or one hundred eighty days, in the discretion of the court. Upon receipt of a written request for renewal from the petitioner prior to the expiration of the original order, the family court shall extend its order for an additional ninety-day period.

(b) Notwithstanding the provisions of subsection (a), the court may enter a protective order for a period of one year if the court finds by a preponderance of the evidence, after a hearing that any of the following aggravating factors are present:

(1) That there has been a material violation of a previously entered protective order;

(2) That two or more protective orders have been entered against the respondent within the previous five years;

(3) That respondent has one or more prior convictions for domestic battery or assault or a felony crime of violence where the victim was a family or household member;

(4) That the respondent has committed a violation of the provisions of section nine-a, article two, chapter sixty-one of this code against a person protected by an existing order of protection; or

(5) That the totality of the circumstances presented to the court require a one year period in order to protect the physical safety of the petitioner or those persons for whom a petition may be filed as provided in subdivision (2), section three hundred five of this article.

(c) The court may extend a protective order entered pursuant to subsection (b) of this section for whatever period the court considers necessary to protect the physical safety of the petitioner or those persons for whom a petition may be filed as provided in subdivision (2), section three hundred five of this article, if the court finds by a preponderance of evidence, after a hearing of which respondent has been given notice, that:

(1) A material violation of the existing protective order has occurred; or

(2) Respondent has committed a material violation of a provision of a final order entered pursuant to subsection (c), section six hundred eight, article five of this chapter has occurred.

(d) To be effective, a written request to renew a ninety or one hundred eighty-day order must be submitted to the court prior to the expiration of the original order period. A notice of the extension shall be sent by the clerk of the court to the respondent by first-class mail, addressed to the last known address of the respondent as indicated by the court file. The extension of time is effective upon mailing of the notice.

(e) Certified copies of any order entered or extension notice made under the provisions of this section shall be served upon the respondent by first class mail, addressed to the last known address of the respondent as indicated by the court file, and delivered to the petitioner and any law-enforcement agency having jurisdiction to enforce the order, including the city police, the county sheriff's office or local office of the West Virginia State Police within twenty-four hours of the entry of the order. The protective order shall be in full force and effect in every county of this state.

(f) The family court may modify the terms of a protective order upon motion of either party.

(g) The clerk of the circuit court shall cause a copy of any protective order entered by the family court pursuant to the provisions of this article or pursuant to the provisions of chapter forty-eight of this code to be forwarded to the magistrate or magistrate court clerk and the magistrate or magistrate court clerk shall forward a copy of the protective order to the appropriate state and federal agencies for registration of domestic violence offenders as required by state and federal law.

§48-27-506. Effect of protective order on real and personal property.

No order entered pursuant to this article may in any manner affect title to any real property, except as provided in section 14-301 for past due child support. The personal property of any person ordered to pay child support pursuant to the provisions of this article is subject to a lien for past due child support as provided in part 14-201, et seq.

§48-27-507. Mutual protective orders prohibited.

Mutual protective orders are prohibited unless both parties have filed a petition under part three of this article and have proven the allegations of domestic violence by a preponderance of the evidence. This shall not prevent other persons, including the respondent, from filing a separate petition. The court may consolidate two or more petitions if he or she determines that consolidation will further the interest of justice and judicial economy. The court shall enter a separate order for each petition filed: Provided, That nothing in this section shall preclude the court from entering an order restricting contact pursuant to section two-a, article two-a, chapter fifty-one of this code.

§48-27-508. Costs to be paid to family court fund.

Any person against whom a protective order is issued shall be assessed costs of $25. Such costs shall be paid to the family court fund established pursuant to section twenty-two, article two-a, chapter fifty-one of this code.

§48-27-509. Conditions of visitation in cases involving domestic violence.

(a) A court may award visitation of a child by a parent who has committed domestic violence only if the court finds that adequate provision for the safety of the child and the petitioner can be made.

(b) In a visitation order, a court may:

(1) Order an exchange of a child to occur in a protected setting;

(2) Order that supervision be provided by another person or agency;

(3) Order the perpetrator of domestic violence to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators as a condition of the visitation;

(4) Order the perpetrator of domestic violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for the twelve hours that precede the visitation;

(5) Order the perpetrator of domestic violence to pay the costs of supervised visitation, if any;

(6) Prohibit overnight visitation;

(7) Impose any other condition that the court considers necessary to provide for the safety of the child, the petitioner or any other family or household member.

(c) Regardless of whether visitation is allowed, the court may order that the address of the child and the petitioner be kept confidential.

(d) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation.

§48-27-510. Appeals.

(a) A petitioner who has been denied an emergency protective order may file a petition for appeal of the denial, within five days of the denial, to the family court.

(b) Any party who alleges that he or she will be adversely affected or aggrieved by a final protective order, or the denial or dismissal of a petition for a protective order, may file a petition for appeal with the circuit court within ten days of the entry of the order by the family court. The order shall remain in effect pending an appeal unless stayed by order of the family court sua sponte or upon motion of a party, or by order of the circuit court upon motion of a party. No bond shall be required for any appeal under this section.

(c) A petition for appeal filed pursuant to this section shall be heard by the court within ten days from the filing of the petition.

(d) The standard of review of findings of fact made by the family court is clearly erroneous and the standard of review of application of the law to the facts is an abuse of discretion standard.

§48-27-511. Purging of domestic violence files.

Two years after the entry of a final protective order, the circuit court, may, upon motion, order that the protective order and references to the order be purged from the file maintained by any law-enforcement agency and may further order that the file maintained by the court be sealed and not opened except upon order of the court when such is in the interest of justice.

PART 6. DISPOSITION OF DOMESTIC VIOLENCE ORDERS.

§48-27-601. Transmitting orders to domestic violence database; affidavit as to award of possession of real property; service of order on respondent.

(a) Upon entry of an order pursuant to section 27-403 or part 27-501, et seq., or an order entered pursuant to part 5-501, et seq., granting relief provided for by this article, a copy of the order shall be immediately transmitted electronically by the court or the clerk of the court to the domestic violence database established pursuant to the provisions of section twenty-one, article one, chapter fifty-one of this code. No later than the close of the next business day the court or the clerk of the court shall transmit the order to a local office of the municipal police, the county sheriff and the West Virginia State Police for service upon the respondent named in the order. The law-enforcement agency or agencies to which a copy of the order is supplied are not required to maintain a copy of the order after the respondent is served.

(b) A sworn affidavit may be executed by a party who has been awarded exclusive possession of the residence or household, pursuant to an order entered pursuant to section 27-503, and shall be delivered to law-enforcement agencies simultaneously with any order giving the party's consent for a law-enforcement officer to enter the residence or household, without a warrant, to enforce the protective order or temporary order.

(c) Orders shall be promptly served upon the respondent. Failure to serve a protective order on the respondent does not stay the effect of a valid order if the respondent has actual notice of the existence and contents of the order.

(d) Any law-enforcement agency in this state in possession of or with notice of the existence of an order issued pursuant to the provisions of sections 27-403 or 27-501 of this article or the provisions of section 5-509 of this chapter which is in effect or has been expired for thirty days or less that receives a report that a person protected by an order has been reported to be missing shall immediately follow its procedures for investigating missing persons. No agency or department policy delaying the beginning of an investigation has any force or effect.

(e) The provisions of subsection (d) of this section shall be applied where a report of a missing person is made which is accompanied by a sworn affidavit that the person alleged to be missing was, at the time of his or her alleged disappearance, being subjected to treatment which meets the definition of domestic battery or assault set forth in section twenty-eight, article two, chapter sixty-one of this code.

§48-27-701. Service of pleadings and orders by law-enforcement officers.

Notwithstanding any other provision of this code to the contrary, all law-enforcement officers are hereby authorized to serve all pleadings and orders filed or entered pursuant to this article on Sundays and legal holidays. No law-enforcement officer shall refuse to serve any pleadings or orders entered pursuant to this article. Law enforcement shall attempt to serve all protective orders without delay: Provided, That service of process shall be attempted within seventy-two hours of law enforcement's receipt of the order to every address provided by petitioner. Any law-enforcement agency that serves pleadings or orders pursuant to this section may receive the fee authorized therefor by Rule 4 of the Rules of Practice and Procedure for Domestic Violence Civil Proceedings. If service is not made, law enforcement shall continue to attempt service on the respondent until proper service is made.

§48-27-702. Law-enforcement officers to provide information, transportation and to report suspicions of animal cruelty.

(a) Any law-enforcement officer responding to an alleged incident of domestic violence shall inform the parties of the availability of the possible remedies provided by this article and the possible applicability of the criminal laws of this state. Any law-enforcement officer investigating an alleged incident of domestic violence shall advise the victim of such violence of the availability of the family protection shelter to which such person may be admitted.

(b) If there is reasonable cause to believe that a person is a victim of domestic violence or is likely to be a victim of domestic violence, a law-enforcement officer responding to an alleged incident of domestic violence shall, in addition to providing the information required in subsection (a) of this section, provide transportation for or facilitate transportation of the victim, upon the request of such victim, to a shelter or an appropriate court.

(c) Whenever a law-enforcement officer, pursuant to a response to an alleged incident of domestic violence, forms a reasonable suspicion that an animal is a victim of cruel or inhumane treatment, he or she shall report the suspicion and the grounds therefor to the county humane officer within twenty-four hours of the response to the alleged incident of domestic violence.

PART 8. RECORD-KEEPING BY

LAW-ENFORCEMENT OFFICERS.

§48-27-801. Reports of domestic violence to state police.

(a) Each law-enforcement agency shall maintain records on all incidents of domestic violence reported to it and shall monthly make and deliver to the West Virginia state police a report on a form prescribed by the State Police, listing all such incidents of domestic violence. Such reports shall include:

(1) The age and sex of the victim and the perpetrator of domestic violence;

(2) The relationship between the parties;

(3) The type and extent of abuse;

(4) The number and type of weapons involved;

(5) Whether the law-enforcement agency responded to the complaint and if so, the time involved, the action taken and the time lapse between the agency's action and the victim's request for assistance;

(6) Whether any prior reports have been made, received or filed regarding domestic violence on any prior occasion and if so, the number of such prior reports; and

(7) The effective dates and terms of any protective order issued prior to or following the incident to protect the victim: Provided, That no information which will permit the identification of the parties involved in any incident of domestic violence shall be included in such report.

(b) The West Virginia state police shall tabulate and analyze any statistical data derived from the reports made by law-enforcement agencies pursuant to this section and publish a statistical compilation in its annual uniform crime report, as provided for in section twenty-four, article two, chapter fifteen of this code. The statistical compilation shall include, but is not limited to, the following:

(1) The number of domestic violence complaints received;

(2) The number of complaints investigated;

(3) The number of complaints received from alleged victims of each sex;

(4) The average time lapse in responding to such complaints;

(5) The number of complaints received from alleged victims who have filed such complaints on prior occasions;

(6) The number of aggravated assaults and homicides resulting from such repeat incidents;

(7) The type of police action taken in disposition of the cases; and

(8) The number of alleged violations of protective orders.

§48-27-802. Maintenance of registry by State Police.

(a) The West Virginia State Police shall maintain a registry in which it shall enter certified copies of protective orders entered by courts from every county in this state pursuant to the provisions of this article and of protection orders issued by a jurisdiction outside of this state pursuant to its law: Provided, That the provisions of this subsection are not effective until a central automated state law-enforcement information system is developed.

(b) Effective January 2, 2010, a court which enters a protective order pursuant to this article shall immediately register such order in the domestic violence database established pursuant to the provisions of section twenty-one, article one, chapter fifty-one of this code. A protected individual who obtains a protection order from a jurisdiction outside of this state pursuant to its law or his or her representative as provided in section five, article twenty-eight of this chapter may register that order with the West Virginia Supreme Court of Appeals for entry in the domestic violence database established pursuant to the provisions of section twenty-one, article one, chapter fifty-one of this code.

(c) Failure to register an order as provided in this section shall not affect its enforceability in any county or jurisdiction.

§48-27-803.

Repealed.

Acts, 2010 Reg. Sess., Ch. 52.

PART 9. SANCTIONS.

§48-27-901. Civil contempt; violation of protective orders; order to show cause.

(a) Any party to a protective order or a legal guardian or guardian ad litem may file a petition for civil contempt alleging a violation of an order issued pursuant to the provisions of this article. The petition shall be filed in the family court, if a family court entered an order or in the circuit court, if a circuit court entered the order, in the county in which the violation occurred or the county in which the order was issued.

(b) When a petition for an order to show cause is filed, a hearing on the petition shall be held within five days from the filing of the petition. Any order to show cause which is issued shall be served upon the alleged violator.

(c) Upon a finding of contempt, the court may order the violator to comply with specific provisions of the protective order and post a bond as surety for faithful compliance with the order. The bond may not be a personal recognizance bond and shall be in an amount that does not exceed the ability of the violator to post. The bond may not be waived by a fee waiver pursuant to the provisions of section one, article two, chapter fifty-nine of this code.

§48-27-902. Violations of protective orders; criminal complaints.

(a) Any person authorized to file a petition pursuant to section three hundred five of this article, and any person authorized to file a petition for civil contempt pursuant to section nine hundred one of this article may file a criminal complaint:

(1) Against a respondent who knowingly and willfully violates a provision of an emergency or final protective order entered pursuant to:

(A) subsection (a) or (b) of section five hundred two of this article;

(B) if the court has ordered such relief; subsection (2), (7) or (9) of section five hundred three of this article;

(C) subsection (b) or (c) of section five hundred nine, article five of this chapter; or

(D) subsection (b) or (c) of section six hundred eight, article five of this chapter;.

(2) Against a person who violates a condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons;

(3) Against a respondent who knowingly and willfully violates the terms of a protection order from another jurisdiction that is required to be enforced pursuant to section three, article twenty-eight of this chapter; or

(4) Against a person who, in violation of subdivision (3), subsection (a), section seven, article twenty-eight of this chapter, knowingly and willfully violates the terms of a condition of bail, probation or parole imposed in another state which has the express intent or effect of protecting the personal safety of a particular person or persons.

(b) If the court finds probable cause upon the complaint, the court shall issue a warrant for the arrest of the person charged.

§48-27-903. Misdemeanor offenses for violation of protective order; repeat offenses; penalties.

(a) A person is guilty of a misdemeanor if the person knowingly and willfully violates:

(1) A provision of an emergency or final protective order entered pursuant to:

(A) Subsection (a) or (b), section five hundred two of this article;

(B) If the court has ordered such relief; subsection (2), (7), (9) or (14), section five hundred three of this article;

(C) Subsection (b) or (c), section five hundred nine, article five of this chapter; or

(D) Subsection (b) or (c), section six hundred eight, article five of this chapter;

(2) A condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons; or

(3) A restraining order entered pursuant to section nine-a, article two, chapter sixty-one of this code.

Upon conviction thereof the person shall be confined in jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $250 nor more than $2,000.

(b) Any person who is convicted of a second offense under subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than thirty days, and fined not less than $500 nor more than $3,000.

(c) A respondent who is convicted of a third or subsequent offense under subsection (a) of this section when the violation occurs within ten years of a prior conviction of this offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not less than six months nor more than one year, which jail term shall include actual confinement of not less than six months, and fined not less than $500 nor more than $4,000.

§48-27-1001. Arrest for violations of protective orders.

(a) When a law-enforcement officer observes any respondent abuse the petitioner or minor children or the respondent's physical presence at any location in knowing and willful violation of the terms of an emergency or final protective order issued under the provisions of this article or section 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, in knowing and willful violation of the terms of a protection order from another jurisdiction that is required to be enforced pursuant to section four, article twenty-eight of this chapter, he or she shall immediately arrest the respondent.

(b) When a family or household member is alleged to have committed a violation of the provisions of section 27-903 or 28-7, a law-enforcement officer may arrest the perpetrator for said offense where:

(1) The law-enforcement officer has observed credible corroborative evidence, as defined in subsection 27-1002(b), that the offense has occurred; and

(2) The law-enforcement officer has received, from the victim or a witness, a verbal or written allegation of the facts constituting a violation of section 27-903; or

(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.

(c) Any person who observes a violation of a protective order as described in this section, or the victim of such abuse or unlawful presence, may call a local law-enforcement agency, which shall verify the existence of a current order, and shall direct a law-enforcement officer to promptly investigate the alleged violation.

(d) Where there is an arrest, the officer shall take the arrested person before a circuit court or a magistrate and, upon a finding of probable cause to believe a violation of an order as set forth in this section has occurred, the court or magistrate shall set a time and place for a hearing in accordance with the West Virginia rules of criminal procedure.

§48-27-1002. Arrest in domestic violence matters; conditions.

(a) Notwithstanding any provision of this code to the contrary, if a person is alleged to have committed a violation of the provisions of subsection (a) or (b), section twenty-eight, article two, chapter sixty-one of this code against a family or household member, in addition to any other authority to arrest granted by this code, a law-enforcement officer has authority to arrest that person without first obtaining a warrant if:

(1) The law-enforcement officer has observed credible corroborative evidence that an offense has occurred; and either:

(2) The law-enforcement officer has received, from the victim or a witness, an oral or written allegation of facts constituting a violation of section twenty-eight, article two, chapter sixty-one of this code; or

(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.

(b) For purposes of this section, credible corroborative evidence means evidence that is worthy of belief and corresponds to the allegations of one or more elements of the offense and may include, but is not limited to, the following:

(1) Condition of the alleged victim. -– One or more contusions, scratches, cuts, abrasions, or swellings; missing hair; torn clothing or clothing in disarray consistent with a struggle; observable difficulty in breathing or breathlessness consistent with the effects of choking or a body blow; observable difficulty in movement consistent with the effects of a body blow or other unlawful physical contact.

(2) Condition of the accused. -- Physical injury or other conditions similar to those set out for the condition of the victim which are consistent with the alleged offense or alleged acts of self-defense by the victim.

(3) Condition of the scene. -- Damaged premises or furnishings; disarray or misplaced objects consistent with the effects of a struggle.

(4) Other conditions. -- Statements by the accused admitting one or more elements of the offense; threats made by the accused in the presence of an officer; audible evidence of a disturbance heard by the dispatcher or other agent receiving the request for police assistance; written statements by witnesses.

(c) Whenever any person is arrested pursuant to subsection (a) of this section, the arrested person shall be taken before a magistrate within the county in which the offense charged is alleged to have been committed in a manner consistent with the provisions of Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia.

(d) If an arrest for a violation of subsection (c), section twenty-eight, article two, chapter sixty-one of this code is authorized pursuant to this section, that fact constitutes prima facie evidence that the accused constitutes a threat or danger to the victim or other family or household members for the purpose of setting conditions of bail pursuant to section seventeen-c, article one-c, chapter sixty-two of this code.

(e) Whenever any person is arrested pursuant to the provisions of this article or for a violation of an order issued pursuant to section five hundred nine or subsections (b) and (c), of section six hundred eight, article five of this chapter the arresting officer, subject to the requirements of the Constitutions of this state and of the United States:

(1) Shall seize all weapons that are alleged to have been involved or threatened to be used in the commission of domestic violence;

(2) May seize a weapon that is in plain view of the officer or was discovered pursuant to a consensual search, as necessary for the protection of the officer or other persons; and

(3) May seize all weapons that are possessed in violation of a valid protective order.

§48-27-1003. Nonjudicial enforcement of order.

(a) A law-enforcement officer of this state, upon determining that there is probable cause to believe that a valid protective order exists and that the order has been violated, shall enforce the order pursuant to any authority to arrest under the code. Presentation of a protective order that identifies both the protected individual and the respondent and that appears, on its face, to be authentic and currently in effect constitutes probable cause to believe that a valid protective order exists. For the purposes of this section, the protective order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protective order is not required for enforcement.

(b) If a protective order is not presented, a law-enforcement officer of this state may consider other credible information in determining whether there is probable cause to believe that a valid protective order exists.

(c) If a law-enforcement officer of this state determines that an otherwise valid protective order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.

§48-27-1004. Immunity.

This state or a local governmental agency, or a law-enforcement officer, prosecuting attorney, clerk of court or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the enforcement of a protective order or the detention or arrest of an alleged violator of a protective order if the act or omission was done in good faith in an effort to comply with this article.

§48-27-1101. Rules of practice and procedure; forms to be provided; operative date.

(a) Pleadings, practice and procedure in domestic violence matters before the court are governed by the rules of practice and procedure for domestic violence civil proceedings promulgated by the West Virginia Supreme Court of Appeals.

(b) The West Virginia Supreme Court of Appeals shall prescribe forms which are necessary and convenient for proceedings pursuant to this article and the court shall distribute such forms to the clerk of the circuit court, the secretary-clerk of the family court and the clerk of magistrate court of each county within the state.

§48-27-1102. Authorization for the promulgation of legislative rules.

The Governor's committee on crime, delinquency and correction shall develop and promulgate rules for state, county and municipal law-enforcement officers, law-enforcement agencies and communications and emergency operations centers which dispatch law-enforcement officers with regard to domestic violence: Provided, That such rules and procedures must be consistent with the priority criteria prescribed by generally applicable department procedures. Prior to the publication of proposed rules, the Governor's committee on crime, delinquency and correction shall convene a meeting or meetings of an advisory committee to assist in the development of the rules. The advisory committee shall be composed of persons invited by the committee to represent state, county and local law-enforcement agencies and officers, to represent magistrates and court officials, to represent victims of domestic violence, to represent shelters receiving funding pursuant to article 26-101, et seq. of this chapter, to represent communications and emergency operations centers that dispatch law-enforcement officers and to represent other persons or organizations who, in the discretion of the committee, have an interest in the rules. The rules and the revisions thereof as provided in this section shall be promulgated as legislative rules in accordance with chapter twenty-nine-a of this code. The committee shall meet at least annually to review the rules and to propose revisions as a result of changes in law or policy.

§48-27-1103. Training of law-enforcement officers in domestic violence.

All law-enforcement officers shall receive training relating to response to calls involving domestic violence.

§48-27-1104. Judicial education on domestic violence.

All circuit court judges may and magistrates and family courts shall receive a minimum of three hours training each year on domestic violence which shall include training on the psychology of domestic violence, the battered wife and child syndromes, sexual abuse, courtroom treatment of victims, offenders and witnesses, available sanctions and treatment standards for offenders, and available shelter and support services for victims. The Supreme Court of Appeals may provide such training in conjunction with other judicial education programs offered by the supreme court.

§48-27-1105. Rule for time-keeping requirements.

The Supreme Court of Appeals shall promulgate a procedural rule to establish time-keeping requirements for magistrates, magistrate court clerks and magistrate assistants so as to assure the maximum funding of incentive payments, grants and other funding sources available to the state for the processing of cases filed for the establishment of temporary orders of child support pursuant to the provisions of this article.

ARTICLE 27A. DOMESTIC VIOLENCE FATALITY REVIEW TEAM.

§48-27A-1.

Repealed.

Acts, 2013 Reg. Sess., Ch. 82.

§48-27A-2.

Repealed.

Acts, 2013 Reg. Sess., Ch. 82.

§48-27A-3.

Repealed.

Acts, 2013 Reg. Sess., Ch. 82.

ARTICLE 28. UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE PROTECTION ORDERS ACT.

§48-28-1. Title.

This article may be cited as the "Uniform Interstate Enforcement of Domestic Violence Protection Orders Act."

§48-28-2. Definitions.

In this article:

(1) "Court" means a circuit court, family court or magistrate court which has jurisdiction over domestic violence proceedings pursuant to article twenty-seven of this chapter.

(2) "Foreign protection order" means a protection order issued by a tribunal of another state.

(3) "Issuing state" means the state whose tribunal issues a protection order.

(4) "Mutual foreign protection order" means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent.

(5) "Protected individual" means an individual protected by a protection order.

(6) "Protection order" means an injunction or other order, issued by a tribunal under the domestic violence, family violence or antistalking laws of the issuing state, to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to another individual.

(7) "West Virginia protective order" means an order issued pursuant to article twenty-seven of this chapter or to section five hundred nine, article five of this chapter.

(8) "Respondent" means the individual against whom enforcement of a protection order is sought.

(9) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders.

(10) "Tribunal" means a court, agency or other entity authorized by law to issue or modify a protection order.

§48-28-3. Judicial enforcement of order.

(a) A person authorized by the law of this state to seek enforcement of a West Virginia protective order may seek enforcement of a valid foreign protection order in a court of this state. The court shall enforce the terms of the order, including terms that provide relief that a court of this state would lack power to provide but for this section. The court shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it was issued in response to a complaint, petition or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the court shall follow the procedures of this state for the enforcement of West Virginia protective orders.

(b) A court of this state may not enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.

(c) A court of this state shall enforce the provisions of a valid foreign protection order which govern custody and visitation if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state or under federal law and with the requirements set out in subsection (d) of this section.

(d) A foreign protection order is valid if it:

(1) Identifies the protected individual and the respondent;

(2) Is currently in effect;

(3) Was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and

(4) Was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and has had or will have an opportunity to be heard within a reasonable time after the order was issued in a manner consistent with the respondent's rights to due process of law.

(e) A foreign protection order which appears authentic on its face is presumed to be valid.

(f) Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.

(g) A court of this state may enforce provisions of a mutual foreign protection order which favor a respondent only if:

(1) The respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and

(2) The tribunal of the issuing state made specific findings in favor of the respondent.

§48-28-4. Nonjudicial enforcement of order.

(a) A law-enforcement officer of this state, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were a West Virginia protective order. Presentation of a foreign protection order that identifies both the protected individual and the respondent and that appears, on its face, to be authentic and currently in effect constitutes probable cause to believe that a valid foreign protection order exists. For the purposes of this section, the protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protection order is not required for enforcement.

(b) If a foreign protection order is not presented, a law-enforcement officer of this state may consider other credible information in determining whether there is probable cause to believe that a valid foreign protection order exists.

(c) If a law-enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.

(d) Registration or filing of an order in this state is not required for the enforcement of a valid foreign protection order pursuant to this article.

§48-28-5. Registration of order.

(a) Any individual may register a foreign protection order in this state by:

Presenting a certified copy of the order to the West Virginia Supreme Court of Appeals for registration in accordance with the provisions of section eight hundred two, article twenty-seven of this chapter.

(b) An individual registering a foreign protection order shall file an affidavit by the protected individual stating that, to the best of the protected individual's knowledge, the order is currently in effect.

(c) Upon receipt of a foreign protection order for registration, the West Virginia Supreme Court of Appeals shall:

(1) Register the order in accordance with the provisions of this section and of section eight hundred two, article twenty-seven of this chapter;

(2) Furnish to the individual registering the order a copy of the proof of registration of the order.

(d) A registered foreign protection order that is shown to be inaccurate or not currently in effect must be corrected or removed from the registry.

(e) A foreign protection order registered under this article may be entered in any existing state or federal registry of protection orders in accordance with applicable law.

(f) A fee may not be charged for the registration of a foreign protection order.

§48-28-6. Immunity.

This state or a local governmental agency, or a law-enforcement officer, prosecuting attorney, clerk of court or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission was done in good faith in an effort to comply with this article.

§48-28-7. Criminal offenses and penalties.

(a) A respondent who abuses, as that term is defined in section two hundred two, article twenty-seven of this chapter, a protected individual or who is physically present at any location in knowing and willful violation of the terms of: (1) A valid foreign protection order; (2) a protection order entered in any pending foreign divorce action which enjoins the offending party from molesting or interfering with another party or interfering with the custodial or visitation rights of another person; or (3) a condition of bail, probation or parole imposed in another state which has the express intent or effect of protecting the personal safety of a particular person or persons is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $250 nor more than $2,000.

(b) A respondent who is convicted of a second or subsequent offense under subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than $500 nor more than $3,000.

§48-28-8. Other remedies.

A protected individual who pursues remedies under this article is not precluded from pursuing other legal or equitable remedies against the respondent.

§48-28-9. Uniformity of application and construction.

In applying and construing this act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§48-28-10. Transitional provision.

This article applies to:

(a) Foreign protection orders issued before the effective date of this article; and

(b) Continuing actions for enforcement of foreign protection orders commenced before the effective date of this article. A request for enforcement, made on or after the effective date of this article, of a foreign protection order based on violations which occurred before the effective date of this article is governed by this article.

ARTICLE 28A. ADDRESS CONFIDENTIALITY PROGRAM.

§48-28A-101. Purpose.

The Legislature finds that persons attempting to escape from actual or threatened domestic violence, sexual assault, or stalking frequently find it necessary to establish a new address in order to prevent their assailants or probable assailants from finding them. The purpose of this article is to enable state and local agencies to respond to requests for public records without disclosing the location of a victim of domestic abuse, sexual assault, or stalking; to enable interagency cooperation with the Secretary of State in providing address confidentiality for victims of domestic abuse, sexual assault, or stalking; and to enable state and local agencies to accept an address designated by the Secretary of State by a program participant as a substitute for a residential or mailing address.

§48-28A-102. Definitions.

As used in this article, unless the context otherwise indicates, the following terms have the following meanings.

(1) "Application assistant" means an employee of a state or local agency, or of a nonprofit program that provides counseling, referral, shelter or other specialized service to victims of domestic abuse, rape, sexual assault or stalking, and who has been designated by the respective agency or nonprofit program, and trained, accepted and registered by the Secretary of State to assist individuals in the completion of program participation applications.

(2) "Designated address" means the address assigned to a program participant by the Secretary of State pursuant to section one hundred three of this article.

(3) "Mailing address" means an address that is recognized for delivery by the United States Postal Service.

(4) "Program" means the Address Confidentiality Program established by this article.

(5) "Program participant" means a person certified by the Secretary of State to participate in the program.

(6) "Residential Address" means a residential street, school or work address of an individual, as specified on the individual's application to be a program participant under this article.

§48-28A-103. Address Confidentiality Program.

(a) On or after the effective date of the enactment of this article, the Secretary of State shall create an Address Confidentiality Program to be staffed by full time employees who have been subjected to a criminal history records search.

(b) Upon recommendation of an application assistant, an adult person, a parent or guardian acting on behalf of a minor, or a guardian acting on behalf of an incapacitated person may apply to the Secretary of State to have a designated address assigned by the Secretary of State.

(c) The Secretary of State may approve an application only if it is filed with the office of the Secretary of State in the manner established by rule and on a form prescribed by the Secretary of State. A completed application must contain the following information:

(1) The application preparation date, the applicant's signature and the signature and registration number of the application assistant who assisted the applicant in applying to be a program participant;

(2) A designation of the Secretary of State as agent for purposes of service of process and for receipt of certain first-class mail;

(3) The mailing address where the applicant may be contacted by the Secretary of State or a designee and the telephone number or numbers where the applicant may be contacted by the Secretary of State or the Secretary of State's designee; and

(4) A residential or mailing address or both types of addresses that the applicant requests not be disclosed for the reason that disclosure will jeopardize the applicant's safety or increase the risk of violence to the applicant or members of the applicant's household.

(d) Upon receipt of a properly completed application, the Secretary of State may certify the applicant as a program participant. A program participant is certified for a period of four years following the date of initial certification unless the certification is withdrawn or invalidated before that date. The Secretary of State shall send notification of a lapsing certification and a reapplication form to a program participant at least four weeks prior to the expiration of the program participant's certification.

(e) The Secretary of State shall forward to the program participant first-class mail received at the program participant's designated address.

(f)(1) An applicant may not file an application knowing that it:

(A) Contains false or incorrect information; or

(B) Falsely claims that disclosure of either the applicant's residential or mailing address or both types of addresses threatens the safety of the applicant or the applicant's children or the minor or incapacitated person on whose behalf the application is made.

(2) An application assistant may not assist or participate in the filing of an application that the application assistant knows:

(A) Contains false or incorrect information; or

(B) Falsely claims that disclosure of either the applicant's residential or mailing address or both types of addresses threatens the safety of the applicant or the applicant's children or the minor or incapacitated person on whose behalf the application is made.

(g) A person who violates the provisions of subsection (f) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of not more than one year.

§48-28A-104. Cancellation.

Certification for the program may be canceled if one or more of the following conditions apply:

(1) If the program participant obtains a name change, unless the program participant provides the Secretary of State with documentation of a legal name change within ten business days of the name change;

(2) If there is a change in the residential address of the program participant from the one listed on the application, unless the program participant provides the Secretary of State with notice of the change in a manner prescribed by the Secretary of State; or

(3) The applicant or program participant violates subsection (f), section one hundred three of this article.

§48-28A-105. Use of designated address.

(a) Upon demonstration of a program participant's certification in the program, state and local agencies and the courts of this state shall accept the designated address as a program participant's address for the purposes of creating a new public record unless the Secretary of State has determined that:

(1) The agency or court has a bona fide statutory or administrative requirement for the use of the program participant's residential or mailing address, such that the agency or court is unable to fulfill its statutory duties and obligations without the program participant's residential or mailing address; and

(2) The program participant's residential or mailing address will be used only for those statutory and administrative purposes, and shall be kept confidential, subject to the confidentiality provisions of section one hundred eight of this article.

(b) Notwithstanding the provisions of subsection (a) and upon the request of the Secretary of State, the Division of Motor Vehicles shall use the designated address for the purposes of issuing a driver's license or identification card: Provided, That the Division of Motor Vehicles shall not be prohibited from collecting and retaining a program participant's residential or mailing address or both addresses to be used only for statutory and administrative purposes. Any residential or mailing address of a program participant collected and retained pursuant to this subsection shall be kept confidential, subject to the provisions of section one hundred eight of this article.

(c) A designated address may be a post office box and may be used by a participant for voter registration purposes, as long as the Secretary of State has on file for the participant a residential and mailing address, as provided in section one hundred three of this article.

§48-28A-106. Disclosure to law enforcement and state agencies.

(a) The Secretary of State may make a program participant's residential or mailing address available for inspection or copying, under the following circumstances:

(1) Upon request of a law enforcement agency in the manner provided for by rule; or

(2) Upon request of the head of a state agency or designee in the manner provided for by rule and upon a showing of a bona fide statutory or administrative requirement for the use of the program participant's residential or mailing address, such that the agency head or designee is unable to fulfill statutory duties and obligations without the program participant's residential or mailing address.

§48-28A-107. Disclosure pursuant to court order or canceled certification.

(a) The Secretary of State shall make a program participant's residential or mailing address or both addresses available for inspection or copying to a person identified in a court order, upon receipt of a certified court order that specifically requires the disclosure of a particular program participant's residential or mailing address or both addresses and the reasons for the disclosure; or

(b) The Secretary of State may make a program participant's residential or mailing address both addresses available for inspection or copying if the program applicant or participant's certification has been canceled because the applicant or program participant has violated subsection (f), section one hundred three of this article.

§48-28A-108. Confidentiality.

A program participant's application and supporting materials are not a public record and shall be kept confidential by the Secretary of State. Any employee of any agency or court who willfully breaches the confidentiality of these records or willfully discloses the name, residential or mailing address both addresses of a program participant in violation of the provisions of this article, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than one year, or both fined and confined.

§48-28A-109. Secretary of state; liability.

This article creates no liability upon the Secretary of State for any transaction compromised by any illegal act or inappropriate uses associated with this article.

§48-28A-110. Rules.

The Secretary of State is hereby directed to propose legislative rules and emergency rules implementing the provisions of this article in accordance with the provisions of article three, chapter twenty-nine-a of this code.

ARTICLE 29. PROPERTY, RIGHTS AND LIABILITIES OF MARRIED WOMEN; HUSBAND AND WIFE.

PART 1. EMANCIPATION FROM ALL

 DISABILITIES AND INCAPACITIES.

§48-29-101. Emancipation from all disabilities under common law.

All married women, including married women who are not residents of this state to the extent that they are affected by the laws of this state, are fully emancipated from all the disabilities and relieved from all the incapacities to which they were formerly subject under common law.

§48-29-102. Emancipation from all disabilities to contract.

All married women, including married women who are not residents of this state to the extent that they are affected by the laws of this state, may make contracts of any kind and assume or stipulate for obligations of any kind, in any form or manner permitted under this code. In no case may any act, contract or obligation of a married woman require, for its validity or effectiveness, the authority of her husband or of a judge.

§48-29-103. Emancipation from all disabilities as to personal or real property.

All married women, including married women who are not residents of this state to the extent that they are affected by the laws of this state, may own in their own right, real and personal property, acquired by descent, gift or purchase and may manage, sell, convey or dispose of any real or personal property to the same extent and in the same manner a married man can property belonging to him

§48-29-104. Liability for married woman's torts.

All married women, including married women who are not residents of this state to the extent that they are affected by the laws of this state, are liable for torts that they have committed.

§48-29-105. Emancipation from liability for torts or contracts of spouse.

No married person, including married persons who are not residents of this state to the extent that they are affected by the laws of this state, is liable for the contracts or torts of his or her spouse.

PART 2. CONVEYANCES BETWEEN MARRIED PERSONS.

§48-29-201. Burden of proof.

The burden of proof in any proceeding questioning the validity or lawfulness of any conveyance or transfer of property or any interest in property from one spouse to the other spouse by the spouse making the conveyance or transfer, or his or her heir, devisee or creditor is on the spouse in whose favor the conveyance or transfer was made.

§48-29-202. Presumption of gift in certain transactions between husband and wife.

Where one spouse purchases real or personal property and pays for the real or personal property, but takes title in the name of the other spouse, the transaction, in the absence of evidence of a contrary intention, is presumed to be a gift by the spouse so purchasing to the spouse in whose name the title is taken: Provided, That in the case of an action under the provisions of article seven of this chapter wherein the court is required to determine what property of the parties constitutes marital property and equitably divide the same, the presumption created by this section does not apply, and a gift between spouses must be affirmatively proved.

PART 3. HUSBAND AND WIFE.

§48-29-301. Requirement of a writing for contract between husband and wife.

A contract between a husband and wife shall not be enforceable by way of action or defense, unless there is some writing sufficient to indicate that a contract has been made between them and signed by the spouse against whom enforcement is sought or by his or her authorized agent or broker.

§48-29-302. Loss of consortium.

A married woman may sue and recover for loss of consortium to the same extent and in all cases as a married man.

§48-29-303. Liability of husband and wife for purchases and services.

(a) A husband and wife are both liable for the reasonable and necessary services of a physician rendered to the husband or wife while residing together as husband and wife, or for reasonable and necessary services of a physician rendered to their minor child while residing in the family of its parents, and for the rental of any tenement or premises actually occupied by the husband and wife as a residence and reasonably necessary to them for such purpose.

(b) A husband and wife are liable when any article purchased by either goes to:

(1) The support of the family;

(2) The joint benefit of both;

(3) The reasonable apparel of either and their minor child residing in the family;

(4) The reasonable support of a spouse and child while abandoned by the other spouse;

(c) A husband and wife are liable for the reasonable services of any domestic, laborer or other person from which the family or both husband and wife benefit.

ARTICLE 30. PROCEEDING BEFORE A FAMILY LAW MASTER.

§§48-30-101 to 48-30-404.

Repealed.

Acts, 2001 5Ex. Sess., Ch. 5.

ARTICLE 31. UNIFORM DEPLOYED PARENTS CUSTODY AND VISITATION ACT.

§48-31-101. Short title.

This article may be cited as the Uniform Deployed Parents Custody and Visitation Act.

§48-31-102. Definitions.

In this article:

(1) “Adult” means an individual who has attained eighteen years of age or an emancipated minor.

(2) “Caretaking authority” means the right to live with and care for a child on a day-to-day basis. The term includes physical custody, parenting time, right to access, and visitation.

(3) “Child” means:

(A) An unemancipated individual who has not attained eighteen years of age; or

(B) An adult son or daughter by birth or adoption, or under law of this state other than this article, who is the subject of a court order concerning custodial responsibility.

(4) “Close and substantial relationship” means a relationship in which a significant bond exists between a child and a nonparent.

(5) “Court” means a tribunal, authorized under law of this state other than this article to make, enforce, or modify a decision regarding custodial responsibility.

(6) “Custodial responsibility” has the same meaning as in section two hundred nineteen, article one of this chapter.

(7) “Decision-making authority” means the power to make important decisions regarding a child, including decisions regarding the child’s education, religious training, health care, extracurricular activities, and travel. The term does not include the power to make decisions that necessarily accompany a grant of caretaking authority.

(8) “Deploying parent” means a service member, who is deployed or has been notified of impending deployment and is:

(A) A parent of a child under law of this state other than this article; or

(B) An individual who has custodial responsibility for a child under law of this state other than this article;

(9) “Deployment” means the movement or mobilization of a service member for more than ninety days but less than eighteen months pursuant to uniformed service orders that:

(A) Are designated as unaccompanied;

(B) Do not authorize dependent travel; or

(C) Otherwise do not permit the movement of family members to the location to which the service member is deployed.

(10) “Family member” means a sibling, aunt, uncle, cousin, step-parent or grandparent of a child or an individual recognized to be in a familial relationship with a child under law of this state other than this article.

(11) “Limited contact” means the authority of a nonparent to visit a child for a limited time. The term includes authority to take the child to a place other than the residence of the child.

(12) “Nonparent” means an individual other than a deploying parent or other parent.

(13) “Other parent” means an individual who, in common with a deploying parent, is:

(A) A parent of a child under law of this state other than this article; or

(B) An individual who has custodial responsibility for a child under law of this state other than this article.

(14) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(15) “Return from deployment” means the conclusion of a service member’s deployment as specified in uniformed service orders.

(16) “Service member” means a member of a uniformed service.

(17) “Sign” means, with present intent to authenticate or adopt a record:

(A) To execute or adopt a tangible symbol; or

(B) To attach to or logically associate with the record an electronic symbol, sound or process.

(18) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

(19) “Uniformed service” means:

(A) Active and reserve components of the Army, Navy, Air Force, Marine Corps or Coast Guard of the United States;

(B) The United States Merchant Marine;

(C) The commissioned corps of the United States Public Health Service;

(D) The commissioned corps of the National Oceanic and Atmospheric Administration of the United States; or

(E) The National Guard of a state.

§48-31-103. Remedies for noncompliance.

In addition to other remedies under law of this state other than this article, if a court finds that a party to a proceeding under this article has acted in bad faith or intentionally failed to comply with this article or a court order issued under this article, the court may assess reasonable attorney’s fees and costs against the party and order other appropriate relief.

§48-31-104. Jurisdiction.

(a) A court may issue an order regarding custodial responsibility under this article only if the court has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.
(b) If a court has issued a temporary order regarding custodial responsibility pursuant to this article, the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act during the deployment.
(c) If a court has issued a permanent order regarding custodial responsibility before notice of deployment and the parents modify that order temporarily by agreement pursuant to the provisions of this article, the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.
(d) If a court in another state has issued a temporary order regarding custodial responsibility as a result of impending or current deployment, the residence of the deploying parent is not changed because of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.
(e) This section does not prevent a court from exercising temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.

§48-31-105. Notification required of deploying parent.

(a) Except as otherwise provided in subsection (c) or (d) of this section, a deploying parent shall notify in a record the other parent of a pending deployment not later than seven days after receiving notice of deployment unless reasonably prevented from doing so by the circumstances of service. If the circumstances of service prevent giving notification within the seven days, the deploying parent shall give the notification as soon as reasonably possible.
(b) Except as otherwise provided in subsection (c) or (d) of this section, each parent shall provide in a record the other parent with a plan for fulfilling that parent’s share of custodial responsibility during deployment. Each parent shall provide the plan as soon as reasonably possible after notification of deployment is given under subsection (a) of this section.
(c) If a court order currently in effect prohibits disclosure of the address or contact information of the other parent, notification of deployment under subsection (a) of this section, or notification of a plan for custodial responsibility during deployment under subsection (b) of this section, may be made only to the issuing court. If the address of the other parent is available to the issuing court, the court shall forward the notification to the other parent. The court shall keep confidential the address or contact information of the other parent.
(d) Notification in a record under subsection (a) or (b) of this section is not required if the parents are living in the same residence and both parents have actual notice of the deployment or plan.
(e) In a proceeding regarding custodial responsibility, a court may consider the reasonableness of a parent’s efforts to comply with this section.

§48-31-106. Duty to notify of change of address.

(a) Except as otherwise provided in subsection (b) of this section, an individual to whom custodial responsibility has been granted during deployment pursuant to the provisions of this article shall notify the deploying parent and any other individual with custodial responsibility of a child of any change of the individual’s mailing address or residence until the grant is terminated. The individual shall provide the notice to any court that has issued a custody or child support order concerning the child which is in effect.
(b) If a court order currently in effect prohibits disclosure of the address or contact information of an individual to whom custodial responsibility has been granted, a notification under subsection (a) of this section may be made only to the court that issued the order. The court shall keep confidential the mailing address or residence of the individual to whom custodial responsibility has been granted.

§48-31-107. General consideration in custody proceeding of parent’s military service.

In a proceeding for custodial responsibility of a child of a service member, a court may not consider a parent’s past deployment or possible future deployment in itself in determining the best interest of the child but may consider any significant impact on the best interest of the child of the parent’s past or possible future deployment.

§48-31-201. Form of agreement addressing custodial responsibility during deployment.

(a) The parents of a child may enter into a temporary agreement under this article granting custodial responsibility during deployment.
(b) An agreement under subsection (a) of this section shall be:
(1) In writing; and
(2) Signed by both parents and any nonparent to whom custodial responsibility is granted.
(c) Subject to subsection (d) of this section, an agreement under subsection (a), if feasible, shall:
(1) Identify the destination, duration, and conditions of the deployment that is the basis for the agreement;
(2) Specify the allocation of caretaking authority among the deploying parent, the other parent, and any nonparent;
(3) Specify any decision-making authority that accompanies a grant of caretaking authority;
(4) Specify any grant of limited contact to a nonparent;
(5) If under the agreement custodial responsibility is shared by the other parent and a nonparent, or by other nonparents, provide a process to resolve any dispute that may arise;
(6) Specify the frequency, duration and means, including electronic means, by which the deploying parent will have contact with the child, any role to be played by the other parent in facilitating the contact, and the allocation of any costs of contact;
(7) Specify the contact between the deploying parent and child during the time the deploying parent is on leave or is otherwise available;
(8) Acknowledge that any party’s child-support obligation cannot be modified by the agreement, and that changing the terms of the obligation during deployment requires modification in the appropriate court;
(9) Provide that the agreement will terminate according to the procedures specified in this article after the deploying parent returns from deployment; and
(10) If the agreement must be filed pursuant to section two hundred five of this article, specify which parent is required to file the agreement.
(d) The omission of any of the items specified in subsection (c) of this section does not invalidate an agreement under this section.

§48-31-202. Nature of authority created by agreement.

(a) An agreement under this article is temporary and terminates pursuant to the provisions of this article after the deploying parent returns from deployment, unless the agreement has been terminated before that time by court order or modification under section two hundred three of this article. The agreement does not create an independent, continuing right to caretaking authority, decision-making authority or limited contact in an individual to whom custodial responsibility is given.
(b) A nonparent who has caretaking authority, decision-making authority or limited contact by an agreement under this article has standing to enforce the agreement until it has been terminated by court order, by modification under section two hundred three of this article, or under other provisions of this article.

§48-31-203. Modification of agreement.

(a) By mutual consent, the parents of a child may modify an agreement regarding custodial responsibility made pursuant to this article.
(b) If an agreement is modified under subsection (a) of this section before deployment of a deploying parent, the modification shall be in writing and signed by both parents and any nonparent who will exercise custodial responsibility under the modified agreement.
(c) If an agreement is modified under subsection (a) of this section during deployment of a deploying parent, the modification shall be agreed to in a record by both parents and any nonparent who will exercise custodial responsibility under the modified agreement.

§48-31-204. Power of attorney.

A deploying parent, by power of attorney, may delegate all or part of custodial responsibility to an adult nonparent for the period of deployment if no other parent possesses custodial responsibility under law of this state other than this article, or if a court order currently in effect prohibits contact between the child and the other parent. The deploying parent may revoke the power of attorney by signing a revocation of the power.

§48-31-205. Filing agreement or power of attorney with court.

An agreement or power of attorney under this article shall be filed within a reasonable time with any court that has entered an order on custodial responsibility or child support that is in effect concerning the child who is the subject of the agreement or power. The case number and heading of the pending case concerning custodial responsibility or child support shall be provided to the court with the agreement or power.

§48-31-301. Proceeding for temporary custody order.

(a) After a deploying parent receives notice of deployment and until the deployment terminates, a court may issue a temporary order granting custodial responsibility unless prohibited by the Service Members Civil Relief Act, 50 U.S.C. §3931 and §3932. A court may not issue a permanent order granting custodial responsibility without the consent of the deploying parent.
(b) At any time after a deploying parent receives notice of deployment, either parent may file a motion regarding custodial responsibility of a child during deployment. The motion shall be filed in a pending proceeding for custodial responsibility in a court with jurisdiction under section one hundred four of this article or, if there is no pending proceeding in a court with jurisdiction under section one hundred four of this article, in a new action for granting custodial responsibility during deployment.

§48-31-302. Expedited hearing.

If a motion to grant custodial responsibility is filed under subsection (b) of section three hundred one of this article before a deploying parent deploys, the court shall conduct an expedited hearing.

§48-31-303. Testimony by electronic means.

In a proceeding under this article, a party or witness who is not reasonably available to appear personally may appear, provide testimony and present evidence by electronic means unless the court finds good cause to require a personal appearance.

§48-31-304. Effect of prior judicial order or agreement.

In a proceeding for a grant of custodial responsibility pursuant to this article, the following rules apply:
(1) A prior judicial order, designating custodial responsibility if there is deployment, is binding on the court unless the circumstances meet the requirements of law of this state other than this article for modifying a judicial order regarding custodial responsibility.
(2) The court shall enforce a prior written agreement between the parents for designating custodial responsibility if there is deployment, including an agreement executed under section two hundred one of this article, unless the court finds that the agreement is contrary to the best interest of the child.

§48-31-305. Grant of caretaking or decision-making authority to nonparent.

(a) On motion of a deploying parent and in accordance with law of this state other than this article, if it is in the best interest of the child, a court may grant caretaking authority to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship.
(b) Unless a grant of caretaking authority to a nonparent under subsection (a) of this section is agreed to by the other parent, the grant is limited to an amount of time not greater than:
(1) The amount of time granted to the deploying parent under a permanent custody order, but the court may add unusual travel time necessary to transport the child; or
(2) In the absence of a permanent custody order that is currently in effect, the amount of time that the deploying parent habitually cared for the child before being notified of deployment, but the court may add unusual travel time necessary to transport the child.
(c) A court may grant part of a deploying parent’s decision-making authority, if the deploying parent is unable to exercise that authority, to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship. If a court grants the authority to a nonparent, the court shall specify the decision-making powers granted, including decisions regarding the child’s education, religious training, health care, extracurricular activities and travel.

§48-31-306. Grant of limited contact.

On motion of a deploying parent, and in accordance with law of this state other than this article, unless the court finds that the contact would be contrary to the best interest of the child, a court shall grant limited contact to a nonparent who is a family member of the child or an individual with whom the child has a close and substantial relationship.

§48-31-307. Nature of authority created by temporary custody order.

(a) A grant of authority under this article is temporary and terminates under the provisions of this article after the return from deployment of the deploying parent, unless the grant has been terminated before that time by court order. The grant does not create an independent, continuing right to caretaking authority, decision-making authority or limited contact in an individual to whom it is granted.
(b) A nonparent granted caretaking authority, decision-making authority or limited contact under this article may enforce the grant until it is terminated by court order or under other provisions of this article.

§48-31-308. Content of temporary custody order.

(a) An order granting custodial responsibility under this article shall:
(1) Designate the order as temporary; and
(2) Identify to the extent feasible the destination, duration and conditions of the deployment.
(b) If applicable, an order for custodial responsibility under this article shall:
(1) Specify the allocation of caretaking authority, decision-making authority or limited contact among the deploying parent, the other parent, and any nonparent;
(2) If the order divides caretaking or decision-making authority between individuals, or grants caretaking authority to one individual and limited contact to another, provide a process to resolve any dispute that may arise;
(3) Provide for liberal communication between the deploying parent and the child during deployment, including through electronic means, unless contrary to the best interest of the child, and allocate any costs of communications;
 (4) Provide for liberal contact between the deploying parent and the child during the time the deploying parent is on leave or otherwise available, unless contrary to the best interest of the child;
(5) Provide for reasonable contact between the deploying parent and the child after return from deployment until the temporary order is terminated, even if the time of contact exceeds the time the deploying parent spent with the child before entry of the temporary order; and
(6) Provide that the order will terminate pursuant to the provisions of this article after the deploying parent returns from deployment.

§48-31-309. Order for child support.

If a court has issued an order granting caretaking authority under this article, or an agreement granting caretaking authority has been executed under section two hundred one of this article, the court may enter a temporary order for child support consistent with law of this state other than this article if the court has jurisdiction under the Uniform Interstate Family Support Act.

§48-31-310. Modifying or terminating grant of custodial responsibility to nonparent.

(a) Except for an order under section three hundred four of this article, except as otherwise provided in subsection (b) of this section, and consistent with the Service Members Civil Relief Act, 50 U.S.C. §3931 and §3932, on motion of a deploying or other parent or any nonparent to whom caretaking authority, decision-making authority, or limited contact has been granted, the court may modify or terminate the grant if the modification or termination is consistent with this article and it is in the best interest of the child. A modification is temporary and terminates pursuant to the provisions of this article after the deploying parent returns from deployment, unless the grant has been terminated before that time by court order.
(b) On motion of a deploying parent, the court shall terminate a grant of limited contact.

§48-31-401. Procedure for terminating temporary grant of custodial responsibility established by agreement.

(a) At any time after return from deployment, a temporary agreement granting custodial responsibility under section two hundred one of this article may be terminated by an agreement to terminate signed by the deploying parent and the other parent.
(b) A temporary agreement under section two hundred one of this article granting custodial responsibility terminates:
(1) If an agreement to terminate under subsection (a) of this section specifies a date for termination, on that date; or
(2) If the agreement to terminate does not specify a date, on the date the agreement to terminate is signed by the deploying parent and the other parent.
(c) In the absence of an agreement under subsection (a) of this section to terminate, a temporary agreement granting custodial responsibility terminates under this article sixty days after the deploying parent gives notice to the other parent that the deploying parent returned from deployment.
(d) If a temporary agreement granting custodial responsibility was filed with a court pursuant to section two hundred five of this article, an agreement to terminate the temporary agreement also shall be filed with that court within a reasonable time after the signing of the agreement. The case number and heading of the case concerning custodial responsibility or child support shall be provided to the court with the agreement to terminate.

§48-31-402. Consent procedure for terminating temporary grant of custodial responsibility established by court order.

At any time after a deploying parent returns from deployment, the deploying parent and the other parent may file with the court an agreement to terminate a temporary order for custodial responsibility. After an agreement has been filed, the court shall issue an order terminating the temporary order effective on the date specified in the agreement. If a date is not specified, the order is effective immediately.

§48-31-403. Visitation before termination of temporary grant of custodial responsibility.

After a deploying parent returns from deployment until a temporary agreement or order for custodial responsibility established under this article is terminated, the court shall issue a temporary order granting the deploying parent reasonable contact with the child unless it is contrary to the best interest of the child, even if the time of contact exceeds the time the deploying parent spent with the child before deployment.

§48-31-404. Termination by operation of law of temporary grant of custodial responsibility established by court order.

(a) If an agreement between the parties to terminate a temporary order for custodial responsibility under this article has not been filed, the order terminates sixty days after the deploying parent gives notice to the other parent and any nonparent granted custodial responsibility that the deploying parent has returned from deployment.
(b) A proceeding seeking to prevent termination of a temporary order for custodial responsibility is governed by law of this state other than this article: Provided, That no agreement of the parties made pursuant to the provisions of this article shall be the basis for a modification of the parents’ permanent parenting plan made pursuant to section four hundred two, article nine of this chapter.

§48-31-501. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§48-31-502. Relation to Electronic Signatures in Global and National Commerce Act.

This article modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that Act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that Act, 15 U.S.C. Section 7003(b).

§48-31-503. Savings clause.

This article does not affect the validity of a temporary court order concerning custodial responsibility during deployment which was entered before the effective date of this article.

PART IV. Marriage Ceremony.

§48-2-406. Federal judges authorized to perform marriages.

Notwithstanding any provision of this code to the contrary, active and senior status judges appointed under Article III of the United States Constitution and federal magistrate-judges, who are residents of this state, are authorized to perform marriages in any county of this state.

§48-1-239a. Shared legal custody defined.

“Shared legal custody” means a continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care, and emotional, moral, and religious development consistent with the provisions of §48-9-207 of this code.

§48-1-239b. Sole legal custody defined.

“Sole legal custody” means that one parent has the right and responsibility to make major decisions regarding the child’s welfare including matters of education, non-emergency medical care, and emotional, moral, and religious development.

§48-1-241a. Shared physical custody defined.

“Shared physical custody” means a child has periods of residing with, and being under the supervision of, each parent consistent with the provisions of §48-9-206 of this code: Provided, That physical custody shall be shared by the parents in such a way as to assure a child has frequent and continuing contact with both parents. Such frequent and continuing contact with both parents is rebuttably presumed to be in the best interests of the child unless the evidence shows otherwise.

§48-1-241b. Sole physical custody defined.

“Sole physical custody” means a child resides with and is under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that the visitation would not be in the best interests of the child.

§48-9-105. Venue for custodial allocation actions independent of divorce.

(a) Venue for the initial determination of custodial allocation or child custody determination within a divorce action shall be governed by §48-5-106 or §48-20-101 et seq. of this code, or both.

(b) Venue for the initial determination of custodial allocation or child custody determination as between parties who reside in separate states shall be governed by §48-20-101 et seq. of this code.

(c) Venue for modification of custodial allocation or modification of child custody determination which was previously determined in a tribunal of a state other than West Virginia shall be governed by §48-20-101 et seq. of this code.