Bill Text: WV HB4923 | 2024 | Regular Session | Introduced
Bill Title: Establishing parental requirements regarding gender reassignment surgery or gender altering medications for minor child
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced) 2024-01-19 - To House Health and Human Resources [HB4923 Detail]
Download: West_Virginia-2024-HB4923-Introduced.html
WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced
House Bill 4923
By Delegate Forsht
[Introduced January 19, 2024; Referred
to the Committee on Health and Human Resources then Judiciary ]
A BILL to amend and reenact §48-9-203 and §48-9-207 of the Code of West Virginia, 1931, as amended; and to amend and reenact §49-1-201 of said code, all relating to establishing parental requirements regarding gender reassignment surgery or gender altering medications for minor children.
Be it enacted by the Legislature of West Virginia:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.
§48-9-203. Proposed temporary parenting plan; temporary order; amendment.
(a) A parent seeking a temporary order relating to parenting shall file and serve a proposed temporary parenting plan by motion. The other parent, if contesting the proposed temporary parenting plan, shall file and serve a responsive proposed parenting plan. Either parent may move to have a proposed temporary parenting plan entered as part of a temporary order. The parents may enter an agreed temporary parenting plan at any time as part of a temporary order. The proposed temporary parenting plan may be supported by relevant evidence and shall be verified and shall state at a minimum the following:
(1) The name, address, and length of residence with the person or persons with whom the child has lived for the preceding 12 months;
(2) The performance by each parent during the last 12 months of the parenting functions relating to the daily needs of the child;
(3) The parents’ current work and child-care schedules; and
(4) Any of the criteria set forth in §48-9-209 of this code that are likely to pose a serious risk to the child or that otherwise warrant limitation on the award to a parent of temporary residence or time with the child pending entry of a permanent parenting plan.
(b) At the hearing, the court shall enter a temporary parenting order incorporating a temporary parenting plan which includes:
(1) A schedule for the child’s time with each parent when appropriate;
(2) Designation of a temporary residence or residences for the child;
(3) Allocation of decision-making authority, if any. Absent allocation of decision-making authority consistent with §48-9-207 of this code, neither party shall make any decision for the child other than those relating to day-to-day or emergency care of the child, which shall be made by the party who is present with the child. All temporary parenting orders shall contain language that establishes that a child, that is the subject to the temporary order, who is moved out of state by a custodial parent or guardian, shall not be exposed to any medical practices prohibited by §30-3-20 of this code without the express written consent of the non-custodial parent or guardian, unless the court makes specific written findings of fact and conclusions of law that the required permission of the non-custodial parent is not in the best interest of the child;
(4) Provisions for temporary support for the child; and
(5) Restraining orders, if applicable.
(c) If the parents have not agreed upon the allocation of physical custody of the child, then the allocation shall be made by the court upon the evidence presented at the hearing unless the parties have agreed to proceed by proffer.
(d) Upon request of either parent for an equal (50-50) allocation of physical custody, the presumption provided in §48-9-102a of this code applies.
(f) A parent who has sought and been denied equal (50-50) physical custody, or who has been denied any physical custody, may file an interlocutory appeal with the West Virginia Intermediate Court of Appeals as to the temporary custodial allocation of the child or children, and the Intermediate Court of Appeals shall provide an expedited review of the order: Provided, That no stay shall be granted pending resolution of the appeal, and the filing of an interlocutory appeal shall not be the basis of a continuance of any subsequent or final hearing.
(g) A parent may move for amendment of a temporary parenting plan, and the court may order amendment to the temporary parenting plan, if the amendment conforms to the limitations of and considerations required by §48-9-209 of this code and is in the best interest of the child. The court’s order modifying the plan shall be in writing and contain specific findings of fact upon which the court bases its determinations.
§48-9-207. Allocation of significant decision-making responsibility at temporary or final hearing.
(a) Unless otherwise resolved by agreement of the parents under §48-9-201 of this code, the court shall allocate responsibility for making significant life decisions on behalf of the child, including the child’s education and health care, to one parent or to both parents jointly, in accordance with the child’s best interest, in light of the ability or inability of the parents, based upon the evidence before the court, to work collaboratively and in cooperation with each other in decisionmaking on behalf of the child, and the existence of any criteria as set forth in §48-9-209 of this code.
(1) The level of each parent’s participation in past decision making on behalf of the child;
(2) The wishes of the parents; and
(3) The level of ability and cooperation the parents have demonstrated in decisionmaking on behalf of the child.
(b) If each of the child’s parents has been exercising a reasonable share of the parenting functions for the child, there shall be a rebuttable presumption that an allocation of decision-making responsibility to both parents jointly is in the child’s best interests. The presumption may be rebutted by a showing that joint allocation of decision-making responsibility is not in the child’s best interest upon proof by a preponderance of the evidence of relevant factors under §48-9-209 of this code. 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 agreed to by the parents or ordered by the court, 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.
(d) All final parenting orders or final divorce orders which contain provisions relating to allocation of significant decision-making responsibility shall contain language that establishes that a child, that is the subject to the final order, who is moved out of state by a custodial parent or guardian, shall not be exposed to any medical practices prohibited by §30-3-20 of this code without the express written consent of the non-custodial parent or guardian, unless the court makes specific written findings of fact and conclusions of law that the required permission of the non-custodial parent is not in the best interest of the child
CHAPTER 49. CHILD WELFARE.
Article 1. general provisions and definitions.
§49-1-201. Definitions related, but not limited, to child abuse and neglect.
When used in this chapter, terms defined in this section have the meanings ascribed to them that relate to, but are not limited to, child abuse and neglect, except in those instances where a different meaning is provided or the context in which the word is used clearly indicates that a different meaning is intended.
"Abandonment" means any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child;
"Abused child" means:
(1) A child whose health or welfare is being harmed or threatened by:
(A) A parent, guardian, or custodian who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home. Physical injury may include an injury to the child as a result of excessive corporal punishment;
(B) Sexual abuse or sexual exploitation;
(C) The sale or attempted sale of a child by a parent, guardian, or custodian in violation of §61-2-14h of this code;
(D) Domestic violence as defined in §48-27-202 of this code; or
(E) Human trafficking or attempted human trafficking, in violation of §61-14-2 of this code;
(F) A parent, guardian, or custodian who knowingly transports, or allows for the transport, of a child to an out-of-state healthcare facility for the purpose of allowing the commission of any medical act upon a child that is expressly prohibited by §30-3-20 of this code.
(2) A child conceived as a result of sexual assault, as that term is defined in this section, or as a result of the violation of a criminal law of another jurisdiction which has the same essential elements: Provided, That no victim of sexual assault may be determined to be an abusive parent, as that term is defined in this section, based upon being a victim of sexual assault.
"Abusing parent" means a parent, guardian, or other custodian, regardless of his or her age, whose conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in the petition charging child abuse or neglect.
"Battered parent" for the purposes of §49-4-601 et seq. of this code means a respondent parent, guardian, or other custodian who has been adjudicated by the court to have not condoned the abuse or neglect and has not been able to stop the abuse or neglect of the child or children due to being the victim of domestic violence as defined by §48-27-202 of this code, which was perpetrated by the same person or persons determined to have abused or neglected the child or children.
"Child abuse and neglect" or "child abuse or neglect" means any act or omission that creates an abused child or a neglected child as those terms are defined in this section.
"Child abuse and neglect services" means social services which are directed toward:
(A) Protecting and promoting the welfare of children who are abused or neglected;
(B) Identifying, preventing, and remedying conditions which cause child abuse and neglect;
(C) Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems which could lead to a removal of children and a breakup of the family;
(D) In cases where children have been removed from their families, providing time-limited reunification services to the children and the families so as to reunify those children with their families, or some portion of the families;
(E) Placing children in suitable adoptive homes when reunifying the children with their families, or some portion of the families, is not possible or appropriate; and
(F) Assuring the adequate care of children or juveniles who have been placed in the custody of the department or third parties.
"Condition requiring emergency medical treatment" means a condition which, if left untreated for a period of a few hours, may result in permanent physical damage; that condition includes, but is not limited to, profuse or arterial bleeding, dislocation or fracture, unconsciousness, and evidence of ingestion of significant amounts of a poisonous substance.
"Imminent danger to the physical well-being of the child" means an emergency situation in which the welfare or the life of the child is threatened. These conditions may include an emergency situation when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited, or reasonable cause to believe that the following conditions threaten the health, life, or safety of any child in the home:
(A) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling, babysitter or other caretaker;
(B) A combination of physical and other signs indicating a pattern of abuse which may be medically diagnosed as battered child syndrome;
(C) Nutritional deprivation;
(D) Abandonment by the parent, guardian, or custodian;
(E) Inadequate treatment of serious illness or disease;
(F) Substantial emotional injury inflicted by a parent, guardian, or custodian;
(G) Sale or attempted sale of the child by the parent, guardian, or custodian;
(H) The parent, guardian, or custodian’s abuse of alcohol or drugs or other controlled substance as defined in §60A-1-101 of this code, has impaired his or her parenting skills to a degree as to pose an imminent risk to a child’s health or safety; or
(I) Any other condition that threatens the health, life or safety of any child in the home.
"Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education, when that refusal, failure, or inability is not due primarily to a lack of financial means on the part of the parent, guardian, or custodian;
(B) Who is presently without necessary food, clothing, shelter, medical care, education, or supervision because of the disappearance or absence of the child’s parent or custodian; or
(C) "Neglected child" does not mean a child whose education is conducted within the provisions of §18-8-1 et seq. of this code.
"Petitioner or copetitioner" means the department or any reputable person who files a child abuse or neglect petition pursuant to §49-4-601 et seq. of this code.
"Permanency plan" means the part of the case plan which is designed to achieve a permanent home for the child in the least restrictive setting available.
"Respondent" means all parents, guardians, and custodians identified in the child abuse and neglect petition who are not petitioners or copetitioners.
"Sexual abuse" means:
(A) Sexual intercourse, sexual intrusion, sexual contact, or conduct proscribed by §61-8c-3 of this code, which a parent, guardian, or custodian engages in, attempts to engage in, or knowingly procures another person to engage in, with a child notwithstanding the fact that for a child who is less than 16 years of age, the child may have willingly participated in that conduct or the child may have suffered no apparent physical, mental or emotional injury as a result of that conduct or, for a child 16 years of age or older, the child may have consented to that conduct or the child may have suffered no apparent physical injury or mental or emotional injury as a result of that conduct;
(B) Any conduct where a parent, guardian, or custodian displays his or her sex organs to a child, or procures another person to display his or her sex organs to a child, for the purpose of gratifying the sexual desire of the parent, guardian, or custodian, of the person making that display, or of the child, or for the purpose of affronting or alarming the child; or
(C) Any of the offenses proscribed in §61-8b-7, §61-8b-8, or §61-8b-9 of this code.
"Sexual assault" means any of the offenses proscribed in §61-8b-3, §61-8b-4, or §61-8b-5 of this code.
"Sexual contact" means sexual contact as that term is defined in §61-8b-1 of this code.
"Sexual exploitation" means an act where:
(A) A parent, custodian, or guardian, whether for financial gain or not, persuades, induces, entices or coerces a child to engage in sexually explicit conduct as that term is defined in §61-8c-1 of this code;
(B) A parent, guardian, or custodian persuades, induces, entices or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian or a third person, or to display his or her sex organs under circumstances in which the parent, guardian, or custodian knows that the display is likely to be observed by others who would be affronted or alarmed; or
(C) A parent, guardian, or custodian knowingly maintains or makes available a child for the purpose of engaging the child in commercial sexual activity in violation of §61-14-5 of this code.
"Sexual intercourse" means sexual intercourse as that term is defined in §61-8b-1 of this code.
"Sexual intrusion" means sexual intrusion as that term is defined in §61-8b-1 of this code.
"Serious physical abuse" means bodily injury which creates a substantial risk of death, causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.
NOTE: The purpose of this bill is to establish parental requirements regarding gender reassignment surgery or gender altering medications for minor children.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
