2005 SESSION

INTRODUCED REPRINT

055448800 INTRODUCED 1 SENATE BILL NO. 1231 2 Offered January 13, 2005 3 A BILL to amend and reenact §§ 20-124.1, 20-124.2 and 20-124.3 of the Code of Virginia and to 4 amend the Code of Virginia by adding in Chapter 6.1 of Title 20 articles numbered 2 and 3, 5 consisting of sections numbered 20-124.6:1 through 20-124.6:15, relating to visitation with minor 6 child; standard order for noncustodial . 7 ±±±±±±±±±± Patrons±±Quayle; Delegate: Lingamfelter 8 ±±±±±±±±±± 9 Referred to Committee for Courts of Justice 10 ±±±±±±±±±± 11 Be it enacted by the General Assembly of Virginia: 12 1. That §§ 20-124.1, 20-124.2 and 20-124.3 of the Code of Virginia are amended and reenacted, 13 and that the Code of Virginia is amended by adding in Chapter 6.1 of Title 20 articles numbered 14 2 and 3, consisting of sections numbered 20-124.6:1 through 20-124.6:15 as follows: 15 Article 1. 16 General Provisions. 17 § 20-124.1. Definitions. 18 As used in this chapter: 19 "" means (i) joint legal custody where both retain joint responsibility for the 20 care and control of the child and joint authority to make decisions concerning the child even though the 21 child©s primary residence may be with only one parent, (ii) joint physical custody where both parents

22 share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical SB1231 23 custody which the court deems to be in the best interest of the child. 24 "Person with a legitimate interest" shall be broadly construed and includes, but is not limited to 25 grandparents, stepparents, former stepparents, blood relatives and members provided any such 26 party has intervened in the suit or is otherwise properly before the court. The term shall be broadly 27 construed to accommodate the best interest of the child. A party with a legitimate interest shall not 28 include any person (i) whose parental rights have been terminated by court order, either voluntarily or 29 involuntarily,; (ii) whose interest in the child derives from or through a person whose parental rights 30 have been terminated, either voluntarily or involuntarily, including but not limited to grandparents, 31 stepparents, former stepparents, blood relatives and family members, if the child subsequently has been 32 legally adopted, except where a final order of is entered pursuant to § 63.2-1241,; or (iii) who 33 has been convicted of a violation of subsection A of §§ 18.2-61, 18.2-63 or subsection B of § 18.2-366 34 when the child who is the subject of the petition was conceived as a result of such violation. 35 "" means that one person retains responsibility for the care and control of a child and

11:13 36 has primary authority to make decisions concerning the child. 37 "Standard visitation order" means a standard order governing custody of a minor child prepared in 38 accordance with the provisions of Article 3.

3/23/10 39 § 20-124.2. Court-ordered custody and visitation arrangements. 40 A. In any case in which custody or visitation of minor children is at issue, whether in a circuit or 41 district court, the court shall provide prompt adjudication, upon due consideration of all the facts and in 42 accordance with the requirements of the standard visitation order pursuant to Article 3, of custody and 43 visitation arrangements, including support and maintenance for the children, prior to other considerations 44 arising in the matter. The court may enter an order pending the suit as provided in § 20-103. The 45 procedures for determining custody and visitation arrangements shall insofar as practical, and consistent 46 with the ends of justice, preserve the dignity and resources of family members. Mediation shall be used 47 as an alternative to litigation where appropriate. When mediation is used in custody and visitation 48 matters, the goals may include development of a proposal addressing the child©s residential schedule and 49 care arrangements, and how disputes between the parents will be handled in the future. 50 B. In determining custody, the court shall give primary consideration to the best interests of the 51 child. The court shall assure minor children of frequent and continuing with both parents, when 52 appropriate, and encourage parents to share in the responsibilities of rearing their children. As between 53 the parents, there shall be no presumption or inference of law in favor of either. The court shall give 54 due regard to the primacy of the parent-child relationship but may upon a showing by clear and 55 convincing evidence that the best interest of the child would be served thereby award custody or 56 visitation to any other person with a legitimate interest. The court may award joint custody or sole 57 custody. 58 C. The court may order that support be paid for any child of the parties. The court shall also order SB1231 2 of 5

59 that support will continue to be paid for any child over the age of 18 who is (i) a full-time high school 60 student,; (ii) not self-supporting,; and (iii) living in the home of the party seeking or receiving child 61 support until such child reaches the age of 19 or graduates from high school, whichever first occurs. The 62 court may also order the continuation of support for any child over the age of 18 who is (i) severely 63 and permanently mentally or physically disabled, (ii) unable to live independently and support himself, 64 and (iii) resides in the home of the parent seeking or receiving . In addition, the court may 65 confirm a stipulation or agreement of the parties which extends a support obligation beyond when it 66 would otherwise terminate as provided by law. The court shall have no authority to decree support of 67 children payable by the estate of a deceased party. The court may make such further decree as it shall 68 deem expedient concerning support of the minor children, including an order that any party provide 69 health care coverage. 70 D. In any case in which custody or visitation of minor children is at issue, whether in a circuit or 71 district court, the court may order an independent mental health or psychological evaluation to assist the 72 court in its determination of the best interests of the child. The court may enter such order as it deems 73 appropriate for the payment of the costs of the evaluation by the parties. 74 E. The court shall have the continuing authority and jurisdiction to make any additional orders 75 necessary to effectuate and enforce any order entered pursuant to this section or § 20-103 including the 76 authority to punish as contempt of court any willful failure of a party to comply with the provisions of 77 the order. 78 § 20-124.3. Best interests of the child; visitation. 79 In determining best interests of a child for purposes of determining custody or visitation 80 arrangements including any pendente lite orders pursuant to § 20-103 or any standard order pursuant to 81 Article 3, the court shall consider the following: 82 1. The age and physical and mental condition of the child, giving due consideration to the child©s 83 changing developmental needs; 84 2. The age and physical and mental condition of each parent; 85 3. The relationship existing between each parent and each child, giving due consideration to the 86 positive involvement with the child©s life, the ability to accurately assess and meet the emotional, 87 intellectual and physical needs of the child; 88 4. The needs of the child, giving due consideration to other important relationships of the child, 89 including but not limited to siblings, peers and members; 90 5. The role that each parent has played and will in the future, in the upbringing and care of the 91 child; 92 6. The propensity of each parent to actively support the child©s contact and relationship with the other 93 parent, including whether a parent has unreasonably denied the other parent access to or visitation with 94 the child; 95 7. The relative willingness and demonstrated ability of each parent to maintain a close and 96 continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes 97 regarding matters affecting the child; 98 8. The reasonable preference of the child, if the court deems the child to be of reasonable 99 intelligence, understanding, age and experience to express such a preference; 100 9. Any history of family abuse as that term is defined in § 16.1-228. If the court finds such a history, 101 the court may disregard the factors in subdivision 6; and 102 10. Such other factors as the court deems necessary and proper to the determination. 103 The judge shall communicate to the parties the basis of the decision either orally or in writing. 104 Article 2. 105 Visitation by Noncustodial Parent. 106 § 20-124.6:1. Guidelines for the visitation of child by parent named as noncustodial parent. 107 The standard visitation order constitutes a presumptive minimum amount of time for visitation of a 108 child by a parent named as a noncustodial parent. 109 § 20-124.6:2 Policy and general application of guidelines. 110 A. The guidelines established for the standard visitation order pursuant to Article 3 are intended to 111 guide the courts in ordering the minimum terms and conditions for visitation of a child by a parent 112 named as a noncustodial parent. 113 B. It is the policy of the Commonwealth to encourage frequent contact between a child and each 114 parent for periods of visitation that optimize the development of a close and continuing relationship 115 between each parent and child. 116 C. It is preferable for all children in a family to be together during periods of visitation. 117 D. The standard visitation order is designed to apply to a child three years of age or older. 118 § 20-124.6:3. Rebuttable presumption. 119 In a suit, there is a rebuttable presumption that the standard visitation order (i) provides reasonable 120 minimum visitation of a child for a parent named as a noncustodial parent and (ii) is in the best 3 of 5

121 interest of the child pursuant to § 20-124.3.

122 § 20-124.6:4. Standard visitation order inappropriate or unworkable. INTRODUCED 123 The court shall render an order that grants periods of visitation of the child as similar as possible to 124 those provided by the standard visitation order if the work schedule or other special circumstances of 125 the custodial parent, the noncustodial parent, or the child, or the year-round school schedule of the 126 child, make the standard order unworkable or inappropriate. 127 § 20-124.6:5. Child less than three years of age. 128 A. The court shall render an order appropriate under the circumstances for visitation of a child less 129 than three years of age. 130 B. The court shall render a prospective order to take effect on the child©s third birthday, which 131 presumptively will be the standard visitation order. 132 § 20-124.6:6. Agreement. 133 The court may render an order for periods of visitation of a child that vary from the standard 134 visitation order based on the agreement of the parties. 135 § 20-124.6:7.Factors for court to consider. 136 In ordering the terms of visitation of a child under an order other than a standard visitation order, 137 the court shall be guided by the guidelines established by the standard visitation order and may 138 consider the age, developmental status, circumstances, needs, and best interest of the child pursuant to 139 § 20-124.3. 140 § 20-124.6:8. Means of travel. 141 In an order providing for the terms and conditions of visitation of a child, the court may restrict the 142 means of travel of the child by a legal mode of transportation only after a showing of good cause 143 contained in the record and a finding by the court that the restriction is in the best interest of the child. 144 The court shall specify the duties of the parents to provide transportation to and from the transportation

145 facilities. SB1231 146 § 20-124.6:9. Request for findings when order varies from standard order. 147 In all cases in which visitation of a child by a parent is contested and the visitation of the child by 148 the noncustodial parent is less than the standard visitation order, the court shall state in the order the 149 specific reasons for the variance from the standard order. 150 Article 3. 151 Standard Visitation Order. 152 § 20-124.6:10. Mutual agreement or specified terms for visitation. 153 The court shall specify in a standard visitation order that the parties may have visitation of the child 154 at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall 155 have visitation of the child under the specified terms set out in the standard order. 156 § 20-124.6:11. Parents who reside 100 miles or less apart. 157 A. If the noncustodial parent resides 100 miles or less from the primary residence of the child, the 158 noncustodial parent shall have the right to visitation of the child as follows: 159 1. On weekends beginning after school on the first, third, and fifth Friday of each month and ending 160 the following Monday at the start of school. 161 2. On Thursdays of each week during the regular school term beginning at the time the child©s 162 school is regularly dismissed and ending at the time the child©s school resumes. 163 B. The following provisions govern visitation of the child for vacations and certain specific holidays 164 and supersede conflicting weekend or Thursday periods of visitation. The noncustodial parent and the 165 custodial parent shall have rights of visitation of the child as follows: 166 1. During spring break the noncustodial parent shall have visitation in even-numbered years, 167 beginning at the time the child©s school is dismissed from school and ending at the time school resumes 168 after that vacation. The custodial parent shall have visitation for the same period in odd-numbered 169 years; 170 2. During summer vacation the noncustodial parent shall have visitation at 6 p.m. on the first Friday 171 after summer vacation begins until 6 p.m. the following Friday and thereafter visitation will rotate 172 between weeks for the remainder of summer vacation. The week to week rotation ends the last Friday 173 before school starts when the school year rotation begins. 174 § 20-124.6:12. Parents who reside over 100 miles apart. 175 If the noncustodial parent resides more than 100 miles from the residence of the child, the 176 noncustodial parent shall have the right to visitation of the child as follows: 177 A. Either regular weekend visitation beginning on the first, third, and fifth Friday as provided under 178 the terms applicable to parents who reside 100 miles or less apart or not more than one weekend per 179 month of the noncustodial parent©s choice beginning at 6 p.m. on the day school recesses for the 180 weekend and ending at 6 p.m. on the day before school resumes after the weekend, provided that the 181 noncustodial parent gives the custodial parent 14 days© written or telephonic notice preceding a SB1231 4 of 5

182 designated weekend, and provided that the noncustodial parent elects an option for this alternative 183 period of visitation by written notice given to the custodial parent within 90 days after the parties begin 184 to reside more than 100 miles apart, as applicable; 185 B. Each year beginning on the day the child is dismissed from school for the school©s spring 186 vacation and ending at 6 p.m. on the day before school resumes after that vacation; 187 C. If the noncustodial parent: 188 1. Gives the custodial parent written notice by April 1 of each year specifying an extended period or 189 periods of summer visitation, the noncustodial parent shall have visitation of the child for 42 days 190 beginning not earlier than the day after the child©s school is dismissed for the summer vacation and 191 ending not later than seven days before school resumes at the end of the summer vacation, to be 192 exercised in not more than two separate periods of at least seven consecutive days each; or 193 2. Does not give the custodial parent written notice by April 1 of each year specifying an extended 194 period or periods of summer visitation, the noncustodial parent shall have visitation of the child for 42 195 consecutive days beginning at 6 p.m. on June 25 and ending at 6 p.m. on August 6; 196 D. If the custodial parent gives the noncustodial parent written notice by April 15 of each year the 197 custodial parent shall have visitation of the child on one weekend beginning Friday at 6 p.m. and 198 ending at 6 p.m. on the following Sunday during one period of visitation by the noncustodial parent 199 under subsection C, provided that if a period of visitation by the noncustodial parent exceeds 30 days, 200 the custodial parent may have visitation of the child under the terms of this subdivision on two 201 nonconsecutive weekends during that time period, and further provided that the custodial parent picks 202 up the child from the noncustodial parent and returns the child to that same place; and 203 E. If the custodial parent gives the noncustodial parent written notice by April 15 of each year, the 204 custodial parent may designate 21 days beginning not earlier than the day after the child©s school is 205 dismissed for the summer vacation and ending not later than seven days before school resumes at the 206 end of the summer vacation, to be exercised in not more than two separate periods of at least seven 207 consecutive days each, during which the noncustodial parent may not have visitation of the child, 208 provided that the period or periods so designated do not interfere with the noncustodial parent©s period 209 or periods of extended summer visitation or with Father©s Day if the noncustodial parent is the father of 210 the child. 211 § 20-124.6:13. Holiday visitation unaffected by distance parents reside apart. 212 The following provisions govern visitation of the child for certain specific holidays and supersede 213 conflicting weekend or Thursday periods of visitation without regard to the distance the parents reside 214 apart. The noncustodial and the custodial parent shall have rights of visitation of the child as follows: 215 A. The noncustodial parent shall have visitation of the child in even-numbered years beginning when 216 school is dismissed on the day the child is dismissed from school for the Christmas school vacation and 217 ending at noon on December 26, and the custodial shall have visitation for the same period in 218 odd-numbered years; 219 B. The noncustodial parent shall have visitation of the child in odd-numbered years beginning at 220 noon on December 26 and ending when school resumes after that vacation, and the custodial parent 221 shall have visitation for the same period in even-numbered years; 222 C. The noncustodial parent shall have visitation of the child in odd-numbered years, when school is 223 dismissed on the day the child is dismissed from school before Thanksgiving and ending when school 224 resumes, and the custodial parent shall have visitation for the same period in even-numbered years; 225 D. The parent not otherwise entitled under this standard order to present visitation of a child on the 226 child©s birthday shall have visitation of the child beginning at 6 p.m. and ending at 8 p.m. on that day, 227 provided that the parent picks up the child from the residence of the parent entitled to visitation and 228 returns the child to that same place; 229 E. The father shall have visitation of the child beginning at 6 p.m. on the Friday preceding Father©s 230 Day and ending on Father©s Day at 6 p.m., provided that, if he is not otherwise entitled under this 231 standard order to present visitation of the child, he picks up the child from the residence of the parent 232 entitled to visitation and returns the child to that same place; and 233 F. The mother shall have visitation of the child beginning at 6 p.m. on the Friday preceding 234 Mother©s Day and ending on Mother©s Day at 6 p.m., provided that, if she is not otherwise entitled 235 under this standard order to present visitation of the child, she picks up the child from the residence of 236 the parent entitled to visitation and returns the child to that same place. 237 § 20-124.6:14. Weekend visitation extended by holiday. 238 A. If a weekend period of visitation of the noncustodial parent coincides with a school holiday 239 during the regular school term or with a federal, state, or local holiday during the summer months in 240 which school is not in session, the weekend visitation shall end on Tuesday at 9 a.m. during summer 241 vacation or when school resumes during the school year. For a Friday holiday visitation begins when 242 school ends on Thursday or at 6 p.m. Thursday during summer vacation, as applicable. 243 § 20-124.6:15. General terms and conditions. 5 of 5

244 The court shall order the following general terms and conditions of visitation of a child to apply

245 without regard to the distance between the residence of a parent and the child: INTRODUCED 246 A. The custodial parent shall surrender the child to the noncustodial parent at the beginning of each 247 period of the noncustodial parent©s visitation at the residence of the custodial parent; 248 B. If the noncustodial parent elects to begin a period of visitation at the time the child©s school is 249 regularly dismissed, the custodial parent shall surrender the child to the noncustodial parent at the 250 beginning of each period of visitation at the school in which the child is enrolled; 251 C. The noncustodial parent shall be ordered to do one of the following: 252 1. The noncustodial parent shall surrender the child to the custodial parent at the end of each period 253 of visitation at the residence of the noncustodial parent; or 254 2. The noncustodial parent shall return the child to the residence of the custodial parent at the end 255 of each period of visitation, except that the order shall provide that the noncustodial parent shall 256 surrender the child to the custodial parent at the end of each period of visitation at the residence of the 257 noncustodial parent if: 258 (a) at the time the original order or a modification of an order establishing terms and conditions of 259 visitation or access the noncustodial parent and the custodial parent lived in the same county, the 260 noncustodial parent©s county of residence remains the same after the rendition of the order, and the 261 custodial parent©s county of residence changes, effective on the date of the change of residence by the 262 custodial parent; or 263 (b) the noncustodial parent and custodial parent lived in the same residence at any time during a 264 six-month period preceding the date on which a suit for dissolution of the was filed and the 265 noncustodial parent©s county of residence remains the same and the custodial parent©s county of 266 residence changes after they no longer live in the same residence, effective on the date the order is 267 rendered;

268 D. If the noncustodial parent elects to end a period of visitation at the time the child©s school SB1231 269 resumes, the noncustodial parent shall surrender the child to the custodial parent at the end of each 270 period of visitation at the school in which the child is enrolled; 271 E. Each parent shall return with the child the personal effects that the child brought at the beginning 272 of the period of visitation; 273 F. Either parent may designate a competent adult to pick up and return the child, as applicable; a 274 parent or a designated competent adult shall be present when the child is picked up or returned; 275 G. A parent shall give notice to the person in visitation of the child on each occasion that the parent 276 will be unable to exercise that parent©s right of visitation for a specified period; 277 H. Written notice shall be deemed to have been timely made if received or postmarked before or at 278 the time that notice is due; and 279 I. If a parent©s time of visitation of a child ends at the time school resumes and for any reason the 280 child is not or will not be returned to school, the parent in visitation of the child shall immediately 281 notify the school and the other parent that the child will not be or has not been returned to school.