West Virginia-2020-HB2460-Introduced

In making a determination on a motion or petition the court shall consider the following factors:

(1) The age of the minor child;

(2) The relationship between the minor child and the sibling;

(3) The relationship between each of the minor child's parents or the person with whom the minor child is residing and the sibling;

(4) The time which has elapsed since the minor child last had contact with the sibling;

(5) The effect that visitation will have on the relationship between the minor child and the minor child's parents or the person with whom the minor 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 minor child;

(7) The time available to the minor child and his or her parents, giving consideration to each parent's employment schedule, the minor child's schedule for home, school and community activities, and the minor child's and parents' holiday and vacation schedule;

(8) The good faith of the sibling 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 sibling;

(10) Whether the minor child has, in the past, resided with the sibling for a significant time, with or without the minor child's parent or parents;

(11) Whether the sibling has, in the past, been a significant caretaker for the minor child, regardless of whether the minor child resided inside or outside of the sibling’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 minor child.

§48-10A-601. Interview of minor child in chambers.

(a) The family court shall exercise jurisdiction over the following matters:

(1) All actions for divorce, annulment or separate maintenance brought under the provisions of §48-3-101 et seq., §48-4-101 et seq., or §48-5-101 et seq. of this code except as provided in subsections (b) and (c) of this section;

(2) All actions to obtain orders of child support brought under the provisions of §48-11-101 et seq., §48-12-101 et seq. and §48-14-101 et seq. of this code;

(3) All actions to establish paternity brought under the provisions of §48-24-101 et seq. of this code and any dependent claims related to such actions regarding child support, parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child;

(4) All actions for grandparent visitation brought under the provisions of §48-10-101 et seq. of this code;

(5) All actions for the interstate enforcement of family support brought under §48-16-101 et seq. of this code and for the interstate enforcement of child custody brought under the provisions of §48-20-101 et seq. of this code;

(6) All actions for the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, including actions brought under the Uniform Child Custody Jurisdiction and Enforcement Act, as provided in §48-20-101 et seq. of this code;

(7) All petitions for writs of habeas corpus wherein the issue contested is custodial responsibility for a child;

(8) All motions for temporary relief affecting parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child, child support, spousal support or domestic violence;

(9) All motions for modification of an order providing for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child or for child support or spousal support;

(10) All actions brought, including civil contempt proceedings, to enforce an order of spousal or child support or to enforce an order for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child;

(11) All actions brought by an obligor to contest the enforcement of an order of support through the withholding from income of amounts payable as support or to contest an affidavit of accrued support, filed with the circuit clerk, which seeks to collect an arrearage;

(12) All final hearings in domestic violence proceedings;

(13) Petitions for a change of name, exercising concurrent jurisdiction with the circuit court;

(14) All proceedings for payment of attorney fees if the family court judge has jurisdiction of the underlying action;

(15) All proceedings for property distribution brought under §48-7-101 et seq. of this code;

(16) All proceedings to obtain spousal support brought under §48-8-101 et seq. of this code;

(17) All proceedings relating to the appointment of guardians or curators of minor children brought pursuant to §44-10-3, §44-10-4, and §44-10-6 of this code, exercising concurrent jurisdiction with the circuit court; ~~and~~

(18) All proceedings relating to petitions for sibling visitation; and

(19) All actions for sibling visitation brought under the provisions of §48-10A-101 et seq. of this code.

(b) If an action for divorce, annulment or separate maintenance does not require the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child and does not require an award or any payment of child support, the circuit court has concurrent jurisdiction with the family court over the action if, at the time of the filing of the action, the parties also file a written property settlement agreement executed by both parties.

(c) If an action for divorce, annulment or separate maintenance is pending and a petition is filed pursuant to the provisions of §49-6-101 et seq. of this code alleging abuse or neglect of a child by either of the parties to the divorce, annulment or separate maintenance action, the orders of the circuit court in which the abuse or neglect petition is filed shall supersede and take precedence over an order of the family court respecting the allocation of custodial and decision-making responsibility for the child between the parents. If no order for the allocation of custodial and decision-making responsibility for the child between the parents has been entered by the family court in the pending action for divorce, annulment or separate maintenance, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility for the child between the parents and defer to the orders of the circuit court in the abuse or neglect proceedings.

(d) If a family court judge is assigned as a judicial officer of a domestic violence court then jurisdiction of all proceedings relating to criminal misdemeanor crimes of domestic violence as referenced in §48-27-301 of this code involving a family or household member as referenced in §48-27-204 subdivisions (1) through (6), inclusive, and paragraphs (A), (B), and (H), subdivision (7), of this code ~~shall be~~ is concurrent with the circuit and magistrate courts.

(e) A family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction of the family court is specifically authorized in this section and in chapter 48 of this code. A family court may not exercise the powers given courts of record in §51-5-1 of this code or exercise any other powers provided for courts of record in this code unless specifically authorized by the Legislature. A family court judge is not a “judge of any court of record” or a “judge of a court of record” as the terms are defined and used in §51-9-1 et seq. of this code.

NOTE: The purpose of this bill is to create a statutory right for siblings to petition a circuit or family court for visitation with their minor child siblings.

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