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STATE OF OKLAHOMA Oklahoma House of Representatives

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STATE OF OKLAHOMA Oklahoma House of Representatives Powered By Docstoc
					1                                STATE OF OKLAHOMA

2                    2nd Session of the 50th Legislature (2006)

3 COMMITTEE SUBSTITUTE
  FOR
4 HOUSE BILL NO. 2561                       By: Peters, Askins and
                                                Morrissette of the House
5
                                                        and
6
                                                Riley of the Senate
7

8

9

10                              COMMITTEE SUBSTITUTE

11          An Act relating to domestic violence; amending 10
            O.S. 2001, Section 7003-3.7, which relates to the
12          Oklahoma Children’s Code; requiring annual,
            specialized training for certain persons; providing
13          for the development of certain manual; requiring
            certification; requiring public access to manual;
14          requiring annual review and periodic revisions to
            manual; amending 12 O.S. 2001, Section 1633, which
15          relates to change of name; providing exception for
            publication of notice for domestic violence victims;
16          amending 21 O.S. 2001, Section 644, as last amended
            by Section 9, Chapter 348, O.S.L. 2005 (21 O.S. Supp.
17          2005, Section 644), which relates to domestic abuse;
            modifying scope of treatment or counseling
18          requirement; amending 22 O.S. 2001, Section 1602, as
            amended by Section 17, Chapter 348, O.S.L. 2005 (22
19          O.S. Supp. 2005, Section 1602), which relates to the
            Domestic Violence Fatality Review Board; modifying
20          membership of Board; amending 43 O.S. 2001, Sections
            107.3, as last amended by Section 20, Chapter 3,
21          O.S.L. 2003, 109, 111.1 and Section 8, Chapter 400,
            O.S.L. 2002 (43 O.S. Supp. 2005, Sections 107.3 and
22          112.3), which relate to custody of children;
            requiring annual, specialized training for guardian
23          ad litem; providing for the development of certain
            manual; requiring certification; requiring public
24          access to manual; requiring annual review and
            periodic revisions to manual; providing for
25          determination of domestic violence; providing for
            admissibility of certain convictions and orders;
26          defining term; authorizing visitation under certain
            circumstances; providing guidelines for visitation
27          order; stating factors to be considered by the court;
            requiring termination of visitation under certain
28          circumstances; requiring address be kept confidential
            upon request; prohibiting access to certain records;
29          providing for finding of domestic violence; and
            providing an effective date.
30

31

32


     Req. No. 9604                                                    Page 1
1 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

2        SECTION 1.       AMENDATORY      10 O.S. 2001, Section 7003-3.7, is

3 amended to read as follows:

4        Section 7003-3.7

5        A. 1. a.     If the parents, legal guardian or custodian of the

6                     child requests an attorney and is found to be without

7                     sufficient financial means, counsel shall be appointed

8                     by the court if a petition has been filed alleging

9                     that the child is a deprived child or if termination

10                    of parental rights is a possible remedy; provided that

11                    the court may appoint counsel without such request, if

12                    it deems representation by counsel necessary to

13                    protect the interest of the parents, legal guardian or

14                    custodian.

15            b.      The court shall not be required to appoint an attorney

16                    for any person other than for the parents, legal

17                    guardian or custodian of the child pursuant to the

18                    provisions of this paragraph.

19       2.   a.      Whenever a petition is filed pursuant to the

20                    provisions of this part, the court shall appoint a

21                    separate attorney, who shall not be a district

22                    attorney, regardless of any attempted waiver by the

23                    parent, legal guardian or custodian of the child of

24                    the right of the child to be represented by counsel.

25                    The parent, legal guardian or custodian shall not

26                    select the child’s attorney.    If financially capable,

27                    the parent, legal guardian or custodian shall

28                    reimburse the Court Fund for the services of a court-

29                    appointed attorney for the child.

30            b.      The attorney appointed for the child shall make

31                    arrangements to meet with the child as soon as

32                    possible after receiving notification of the


     Req. No. 9604                                                       Page 2
1                    appointment.   Except for good cause shown, the

2                    attorney shall meet with the child not less than

3                    twenty-four (24) hours prior to any hearing in such

4                    proceeding.    The attorney may speak with the child

5                    over the telephone if a personal visit is not possible

6                    due to exigent circumstances.   If a meaningful

7                    attorney-client relationship between the child and the

8                    attorney is prohibited due to age or disability of the

9                    child, the attorney shall contact the custodian or

10                   caretaker of the child prior to the hearing.

11            c.     The attorney shall be given access to all reports,

12                   records and other information relevant to the case and

13                   to any reports of examination of the child's parents,

14                   legal guardian or custodian made pursuant to this

15                   section.   The attorney shall represent the child and

16                   any expressed interests of the child.    The attorney

17                   shall make such further inquiry as the attorney deems

18                   necessary to ascertain the facts, to interview

19                   witnesses, examine and cross-examine witnesses, make

20                   recommendations to the court and participate further

21                   in the proceedings to the degree appropriate for

22                   adequately representing the interests of the child.

23       3.   The attorney shall be allowed a reasonable fee for such

24 services as determined by the court, as authorized by law.

25       B.   1.   Whenever a petition is filed alleging that a child is a

26 deprived child, the court may appoint a guardian ad litem for the

27 child at any time subsequent to the filing of the petition or for

28 any other action related to the child.

29       2.   The court shall appoint a guardian ad litem upon the request

30 of the child, the attorney of the child, the Department of Human

31 Services, a licensed child-placing agency, or any other party to the

32 action.


     Req. No. 9604                                                      Page 3
1        3.   A guardian ad litem shall not be a district attorney, an

2 employee of the office of the district attorney, the child's

3 attorney, an employee of the court, an employee of a juvenile

4 bureau, or an employee of any public agency having duties or

5 responsibilities towards the child.

6        4.   The guardian ad litem shall be appointed to objectively

7 advocate on behalf of the child and act as an officer of the court

8 to investigate all matters concerning the best interests of the

9 child.      In addition to other duties required by the court and as

10 specified by the court, a guardian ad litem shall have the following

11 responsibilities:

12             a.    review documents, reports, records and other

13                   information relevant to the case, meet with and

14                   observe the child in appropriate settings, and

15                   interview parents, foster parents, health care

16                   providers, child protective services workers and any

17                   other person with knowledge relevant to the case,

18             b.    advocate for the child's best interests by

19                   participating in the case, attending any hearings in

20                   the matter and advocating for appropriate services for

21                   the child when necessary,

22             c.    maintain the confidentiality of information related to

23                   a case as required by Article 7 of the Oklahoma

24                   Children's Code,

25             d.    monitor the child's best interests throughout any

26                   judicial proceeding, and

27             e.    present written reports on the child's best interests

28                   that include conclusions and recommendations and the

29                   facts upon which they are based.

30       5.   The guardian ad litem shall be given access to the court

31 files and agency files and access to all documents, reports, records

32 and other information relevant to the case and to any records and


     Req. No. 9604                                                     Page 4
1 reports of examination of the child's parent or other custodian,

2 made pursuant to the laws relating to child abuse and neglect

3 including reports generated by service providers.

4        6.   Any person, except a court-appointed special advocate, who

5 is appointed as a guardian ad litem shall obtain six (6) hours of

6 specialized training every year in the fields of child abuse, child

7 development, domestic abuse, sexual abuse, and parent and child

8 behavioral health and management.

9        7.   On or before December 31, 2007, the Administrative Director

10 of the Courts shall develop a standard operating manual for guardian

11 ad litems which shall include, but not be limited to, legal

12 obligations and responsibilities, information concerning child

13 abuse, child development, domestic abuse, sexual abuse, and parent

14 and child behavioral health and management including best practices.

15 After publication of the manual, all guardian ad litems shall

16 certify to the court in which he or she is appointed as a guardian

17 ad litem that the manual has been read and all provisions contained

18 therein are understood.     The guardian ad litem shall also certify

19 that he or she agrees to follow the best practices described within

20 the standard operating manual.     The Administrative Director of the

21 Courts shall provide public access to the standard operating manual

22 and shall periodically review and revise the manual as deemed

23 necessary.

24       C.   1.   Whenever a court-appointed special advocate program is

25 available to the court to serve as a guardian ad litem, priority

26 shall be given to appointment of the court-appointed special

27 advocate to serve as guardian ad litem for the child regardless of

28 whether a guardian ad litem has been requested pursuant to the

29 provisions of this subsection.

30       2.   A Court-Appointed Special Advocate Program shall be made

31 available to each judicial district.

32


     Req. No. 9604                                                   Page 5
1        3.   For purposes of the Oklahoma Children's Code, the terms

2 "court-appointed special advocate" and “guardian ad litem” shall

3 have the same function.      In like manner, a court-appointed special

4 advocate, except as specifically otherwise provided by law or by the

5 court, shall have the same power, duties and responsibilities as

6 assigned to a guardian ad litem by law and shall have such other

7 qualifications, duties and responsibilities as may be prescribed by

8 rule by the Supreme Court.

9        4.   A court-appointed special advocate shall serve without

10 compensation.

11       D.   1.   Any person participating in a judicial proceeding as a

12 court-appointed special advocate shall be presumed prima facie to be

13 acting in good faith and in so doing shall be immune from any civil

14 liability that otherwise might be incurred or imposed.

15       2.   Any person serving in a management position of a court-

16 appointed special advocate organization, including a member of the

17 Board of Directors acting in good faith, shall be immune from any

18 civil liability or any vicarious liability for the negligence of any

19 court-appointed special advocate organization advocates, managers,

20 or directors.

21       E.   If a person is appointed as a parenting coordinator, the

22 person shall obtain six (6) hours of specialized training every year

23 in the fields of child abuse, child development, domestic abuse,

24 sexual abuse, and parent and child behavioral health and management.

25 The person shall attend at least one (1) hour of such training in

26 each of these five fields each year and shall attend and demonstrate

27 attendance of at least three (3) hours of such training in each of

28 the fields prior to accepting further appointments as a parenting

29 coordinator.

30       F.   The provisions of this section shall not apply to adoption

31 proceedings and actions to terminate parental rights which do not

32 involve a petition for deprived status of the child.     Such


     Req. No. 9604                                                     Page 6
1 proceedings and actions shall be governed by the Oklahoma Adoption

2 Code.

3        SECTION 2.      AMENDATORY       12 O.S. 2001, Section 1633, is

4 amended to read as follows:

5        Section 1633.    A.   Notice of filing of such the petition shall

6 be given, in the manner provided for publication notice in civil

7 cases, by publishing the same one time at least ten (10) days prior

8 to the date set for hearing in some newspaper authorized by law to

9 publish legal notices printed in the county where the petition is

10 filed if there be any printed in such county, and if there be none,

11 then in some such newspaper printed in this state of general

12 circulation in that county.       The notice shall contain the style and

13 number of the case, the time, date and place where the same is to be

14 heard, and that any person may file a written protest in the case

15 prior to the date set for the hearing.       The hearing date may be any

16 day after completion of the publication.       The court or judge, for

17 cause, may continue the matter to a later date.

18       B.   The court may waive the publication requirements of this

19 section for good cause which includes, but is not limited to, cases

20 of domestic violence in which the court proceedings are sealed.

21       SECTION 3.      AMENDATORY       21 O.S. 2001, Section 644, as last

22 amended by Section 9, Chapter 348, O.S.L. 2005 (21 O.S. Supp. 2005,

23 Section 644), is amended to read as follows:

24       Section 644.    A.    Assault shall be punishable by imprisonment in

25 a county jail not exceeding thirty (30) days, or by a fine of not

26 more than Five Hundred Dollars ($500.00), or by both such fine and

27 imprisonment.

28       B.   Assault and battery shall be punishable by imprisonment in a

29 county jail not exceeding ninety (90) days, or by a fine of not more

30 than One Thousand Dollars ($1,000.00), or by both such fine and

31 imprisonment.

32


     Req. No. 9604                                                     Page 7
1        C.   Any person who commits any assault and battery against a

2 current or former spouse, a present spouse of a former spouse,

3 parents, a foster parent, a child, a person otherwise related by

4 blood or marriage, a person with whom the defendant is in a dating

5 relationship as defined by Section 60.1 of Title 22 of the Oklahoma

6 Statutes, an individual with whom the defendant has had a child, a

7 person who formerly lived in the same household as the defendant, or

8 a person living in the same household as the defendant shall be

9 guilty of domestic abuse.     Upon conviction, the defendant shall be

10 punished by imprisonment in the county jail for not more than one

11 (1) year, or by a fine not exceeding Five Thousand Dollars

12 ($5,000.00), or by both such fine and imprisonment.    Upon conviction

13 for a second or subsequent offense, the person shall be punished by

14 imprisonment in the custody of the Department of Corrections for not

15 more than four (4) years, or by a fine not exceeding Five Thousand

16 Dollars ($5,000.00), or by both such fine and imprisonment.       The

17 provisions of Section 51.1 of this title shall not apply to any

18 second or subsequent offense.

19       D.   Any person convicted of domestic abuse as defined in

20 subsection C of this section that results in great bodily injury to

21 the victim shall be guilty of a felony and punished by imprisonment

22 in the custody of the Department of Corrections for not more than

23 ten (10) years, or by imprisonment in the county jail for not more

24 than one (1) year.    The provisions of Section 51.1 of this title

25 shall apply to any second or subsequent conviction of a violation of

26 this subsection.

27       E.   Any person convicted of domestic abuse as defined in

28 subsection C of this section that was committed in the presence of a

29 child shall be punished by imprisonment in the county jail for not

30 less than six (6) months nor more than one (1) year, or by a fine

31 not exceeding Five Thousand Dollars ($5,000.00), or by both such

32 fine and imprisonment.    Any person convicted of a second or


     Req. No. 9604                                                    Page 8
1 subsequent domestic abuse as defined in subsection C of this section

2 that was committed in the presence of a child shall be punished by

3 imprisonment in the custody of the Department of Corrections for not

4 less than one (1) year nor more than five (5) years, or by a fine

5 not exceeding Seven Thousand Dollars ($7,000.00), or by both such

6 fine and imprisonment.      The provisions of Section 51.1 of this title

7 shall not apply to any second or subsequent offense.        For every

8 conviction of domestic abuse, the court shall:

9        1.   Specifically order as a condition of a suspended sentence or

10 probation that a defendant participate in counseling or undergo

11 treatment to bring about the cessation of domestic abuse as

12 specified in paragraph 2 of this subsection;

13       2.   a.     The court shall require the defendant to participate

14                   in counseling or undergo treatment for domestic abuse

15                   by an individual licensed practitioner or a domestic

16                   abuse counseling program approved by the court or a

17                   domestic abuse treatment program certified by the

18                   Attorney General.   If the defendant is ordered to

19                   participate in a domestic abuse counseling or

20                   treatment program, the order shall require the

21                   defendant to attend the program for a minimum of

22                   fifty-two (52) weeks, complete the program, and be

23                   evaluated before and after attendance of the program

24                   by a program counselor or a private counselor.

25            b.     A program for anger management, couples counseling, or

26                   family and marital counseling shall not solely qualify

27                   for the counseling or treatment requirement for

28                   domestic abuse pursuant to this subsection.   The

29                   counseling may be ordered in addition to counseling

30                   specifically for the treatment of domestic abuse or

31                   per evaluation as set forth below.   If, after

32                   sufficient evaluation and attendance at required


     Req. No. 9604                                                       Page 9
1                    counseling sessions, the domestic violence treatment

2                    program or licensed professional determines that the

3                    defendant does not evaluate as a perpetrator of

4                    domestic violence or does evaluate as a perpetrator of

5                    domestic violence and should complete other programs

6                    of treatment simultaneously or prior to domestic

7                    violence treatment, including but not limited to

8                    programs related to the mental health, apparent

9                    substance or alcohol abuse or inability or refusal to

10                   manage anger, the defendant shall be ordered to

11                   complete the counseling as per the recommendations of

12                   the domestic violence treatment program or licensed

13                   professional;

14       3.   a.     The court shall set a review hearing no more than one

15                   hundred twenty (120) days after the defendant is

16                   ordered to participate in a domestic abuse counseling

17                   program or undergo treatment for domestic abuse to

18                   assure the attendance and compliance of the defendant

19                   with the provisions of this subsection and the

20                   domestic abuse counseling or treatment requirements.

21            b.     The court shall set a second review hearing after the

22                   completion of the counseling or treatment to assure

23                   the attendance and compliance of the defendant with

24                   the provisions of this subsection and the domestic

25                   abuse counseling or treatment requirements.     The court

26                   shall retain continuing jurisdiction over the

27                   defendant during the course of ordered counseling

28                   through the final review hearing;

29       4.   The court may set subsequent or other review hearings as the

30 court determines necessary to assure the defendant attends and fully

31 complies with the provisions of this subsection and the domestic

32 abuse counseling or treatment requirements;


     Req. No. 9604                                                     Page 10
1        5.   At any review hearing, if the defendant is not

2 satisfactorily attending individual counseling or a domestic abuse

3 counseling or treatment program or is not in compliance with any

4 domestic abuse counseling or treatment requirements, the court may

5 order the defendant to further or continue counseling, treatment, or

6 other necessary services.     The court may revoke all or any part of a

7 suspended sentence, deferred sentence, or probation pursuant to

8 Section 991b of Title 22 of the Oklahoma Statutes and subject the

9 defendant to any or all remaining portions of the original sentence;

10       6.   At the first review hearing, the court shall require the

11 defendant to appear in court.    Thereafter, for any subsequent review

12 hearings, the court may accept a report on the progress of the

13 defendant from individual counseling, domestic abuse counseling, or

14 the treatment program.    There shall be no requirement for the victim

15 to attend review hearings; and

16       7.   If funding is available, a referee may be appointed and

17 assigned by the presiding judge of the district court to hear

18 designated cases set for review under this subsection.      Reasonable

19 compensation for the referees shall be fixed by the presiding judge.

20 The referee shall meet the requirements and perform all duties in

21 the same manner and procedure as set forth in Sections 7003-8.6 and

22 7303-7.5 of Title 10 of the Oklahoma Statutes pertaining to referees

23 appointed in juvenile proceedings.

24       The defendant may be required to pay all or part of the cost of

25 the counseling or treatment, in the discretion of the court.

26       F.   As used in subsection E of this section, “in the presence of

27 a child” means in the physical presence of a child; or having

28 knowledge that a child is present and may see or hear an act of

29 domestic violence.    For the purposes of subsections C and E of this

30 section, “child” may be any child whether or not related to the

31 victim or the defendant.

32


     Req. No. 9604                                                  Page 11
1        G.   For the purposes of subsections C and E of this section, any

2 conviction for assault and battery against a current or former

3 spouse, a present spouse of a former spouse, parents, a foster

4 parent, a child, a person otherwise related by blood or marriage, a

5 person with whom the defendant is in a dating relationship as

6 defined by Section 60.1 of Title 22 of the Oklahoma Statutes, an

7 individual with whom the defendant has had a child, a person who

8 formerly lived in the same household as the defendant, or any person

9 living in the same household as the defendant, shall constitute a

10 sufficient basis for a felony charge:

11       1.   If that conviction is rendered in any state, county or

12 parish court of record of this or any other state; or

13       2.   If that conviction is rendered in any municipal court of

14 record of this or any other state for which any jail time was

15 served; provided, no conviction in a municipal court of record

16 entered prior to November 1, 1997, shall constitute a prior

17 conviction for purposes of a felony charge.

18       H.   Any person who commits any assault and battery with intent

19 to cause great bodily harm by strangulation or attempted

20 strangulation against a current or former spouse, a present spouse

21 of a former spouse, parents, a foster parent, a child, a person

22 otherwise related by blood or marriage, a person with whom the

23 defendant is in a dating relationship as defined by Section 60.1 of

24 Title 22 of the Oklahoma Statutes, an individual with whom the

25 defendant has had a child, a person who formerly lived in the same

26 household as the defendant, or a person living in the same household

27 as the defendant shall, upon conviction, be guilty of domestic abuse

28 by strangulation and shall be punished by imprisonment in the State

29 Penitentiary custody of the Department of Corrections for a period

30 of not less than one (1) year nor more than three (3) years, or by a

31 fine of not more than Three Thousand Dollars ($3,000.00), or by both

32 such fine and imprisonment.    Upon a second or subsequent conviction,


     Req. No. 9604                                                 Page 12
1 the defendant shall be punished by imprisonment in the State

2 Penitentiary custody of the Department of Corrections for a period

3 of not less than three (3) years nor more than ten (10) years, or by

4 a fine of not more than Twenty Thousand Dollars ($20,000.00), or by

5 both such fine and imprisonment.      As used in this subsection,

6 “strangulation” means a form of asphyxia characterized by closure of

7 the blood vessels or air passages of the neck as a result of

8 external pressure on the neck.

9        I.   Any district court of this state and any judge thereof shall

10 be immune from any liability or prosecution for issuing an order

11 that requires a defendant to:

12       1.   Attend a treatment program for domestic abusers certified by

13 the Attorney General;

14       2.   Attend counseling or treatment services ordered as part of

15 any suspended or deferred sentence or probation; and

16       3.   Attend, complete, and be evaluated before and after

17 attendance by a treatment program for domestic abusers, certified by

18 the Attorney General.

19       J.   There shall be no charge of fees or costs to any victim of

20 domestic violence, stalking, or sexual assault in connection with

21 the prosecution of a domestic violence, stalking, or sexual assault

22 offense in this state.

23       K.   In the course of prosecuting any charge of domestic abuse,

24 stalking, harassment, rape, or violation of a protective order, the

25 prosecutor shall provide the court, prior to sentencing or any plea

26 agreement, a local history and any other available history of past

27 convictions of the defendant within the last ten (10) years relating

28 to domestic abuse, stalking, harassment, rape, violation of a

29 protective order, or any other violent misdemeanor or felony

30 convictions.

31       L.   For purposes of subsection D of this section, “great bodily

32 injury” means bone fracture, protracted and obvious disfigurement,


     Req. No. 9604                                                    Page 13
1 protracted loss or impairment of the function of a body part, organ

2 or mental faculty, or substantial risk of death.

3        SECTION 4.       AMENDATORY       22 O.S. 2001, Section 1602, as

4 amended by Section 17, Chapter 348, O.S.L. 2005 (22 O.S. Supp. 2005,

5 Section 1602), is amended to read as follows:

6        Section 1602.     A.   The Domestic Violence Fatality Review Board

7 shall be composed of seventeen (17) eighteen (18) members, or their

8 designees, as follows:

9        1.   Eight of the members shall be:

10             a.     the Chief Medical Examiner,

11             b.     a designee of the Attorney General.   The designee

12                    shall be a person assigned to the Victims Services

13                    Unit of the Office of the Attorney General,

14             c.     the State Commissioner of Health,

15             d.     the Director of the Criminal Justice Resource Center,

16             e.     the Chief of Injury Prevention Services of the State

17                    Department of Health,

18             f.     a member of the Oklahoma Council on Violence

19                    Prevention Director of the Department of Human

20                    Services,

21             g.     the Director of the Oklahoma State Bureau of

22                    Investigation, and

23             h.     the Commissioner of the Department of Mental Health

24                    and Substance Abuse Services; and

25       2.   Nine Ten of the members shall be appointed by the Attorney

26 General, shall serve for terms of two (2) years and shall be

27 eligible for reappointment.       The members shall be persons having

28 training and experience in matters related to domestic violence.

29 The appointed members shall include:

30             a.     a county sheriff selected from a list submitted by the

31                    executive board of the Oklahoma Sheriff's Association,

32


     Req. No. 9604                                                     Page 14
1             b.     a chief of a municipal police department selected from

2                    a list submitted by the Oklahoma Association of Chiefs

3                    of Police,

4             c.     an attorney licensed in this state who is in private

5                    practice selected from a list submitted by the Board

6                    of Governors of the Oklahoma Bar Association,

7             d.     a district attorney selected from a list submitted by

8                    the District Attorneys Council,

9             e.     a physician selected from a list submitted by the

10                   Oklahoma State Medical Association,

11            f.     a physician selected from a list submitted by the

12                   Oklahoma Osteopathic Association,

13            g.     a nurse selected from a list submitted by the Oklahoma

14                   Nurses Association, and

15            h.     two individuals, at least one of whom shall be a

16                   survivor of domestic violence, selected from lists

17                   submitted by the Oklahoma Coalition Against Domestic

18                   Violence and Sexual Assault, and

19            i.     a member of the Judiciary selected by the Oklahoma

20                   Supreme Court.

21       B.   Every two (2) years the Board shall elect from among its

22 membership a chair and a vice-chair.        The Board shall meet at least

23 quarterly and may meet more frequently as necessary as determined by

24 the chair.      Members shall serve without compensation but may be

25 reimbursed for necessary travel out of funds available to the

26 Oklahoma Criminal Justice Resource Center pursuant to the State

27 Travel Reimbursement Act; provided, that the reimbursement shall be

28 paid in the case of state employee members by the agency employing

29 the member.

30       C.   With funds appropriated or otherwise available for that

31 purpose, the Criminal Justice Resource Center shall provide

32


     Req. No. 9604                                                    Page 15
1 administrative assistance and services to the Domestic Violence

2 Fatality Review Board.

3        SECTION 5.       AMENDATORY        43 O.S. 2001, Section 107.3, as

4 last amended by Section 20, Chapter 3, O.S.L. 2003 (43 O.S. Supp.

5 2005, Section 107.3), is amended to read as follows:

6        Section 107.3     A.   1.   In any proceeding when the custody or

7 visitation of a minor child or children is contested by any party,

8 the court may appoint an attorney at law as guardian ad litem on the

9 court's upon motion of the court or upon application of any party to

10 appear for and represent the minor children.

11       2.   The guardian ad litem may be appointed to objectively

12 advocate on behalf of the child and act as an officer of the court

13 to investigate all matters concerning the best interests of the

14 child.     In addition to other duties required by the court and as

15 specified by the court, a guardian ad litem shall have the following

16 responsibilities:

17             a.     review documents, reports, records and other

18                    information relevant to the case, meet with and

19                    observe the child in appropriate settings, and

20                    interview parents, caregivers and health care

21                    providers and any other person with knowledge relevant

22                    to the case including, but not limited to, teachers,

23                    counselors and child care providers,

24             b.     advocate for the child's best interests of the child

25                    by participating in the case, attending any hearings

26                    in the matter and advocating for appropriate services

27                    for the child when necessary,

28             c.     monitor the child's best interests of the child

29                    throughout any judicial proceeding,

30             d.     present written reports to the parties and court prior

31                    to trial or at any other time as specified by the

32                    court on the child's best interests of the child that


     Req. No. 9604                                                      Page 16
1                    include conclusions and recommendations and the facts

2                    upon which they are based, and

3             e.     the guardian ad litem shall, as much as possible,

4                    maintain confidentiality of information related to the

5                    case and is not subject to discovery pursuant to the

6                    Oklahoma Discovery Code.

7        3.   Expenses, costs, and attorney's attorney fees for the

8 guardian ad litem may be allocated among the parties as determined

9 by the court.

10       4.   Any person, except a court-appointed special advocate, who

11 is appointed as a guardian ad litem shall obtain six (6) hours of

12 specialized training every year in the fields of child abuse, child

13 development, domestic abuse, sexual abuse and parent and child

14 behavioral health and management.

15       5.   On or before December 31, 2007, the Administrative Director

16 of the Courts shall develop a standard operating manual for guardian

17 ad litems which shall include, but not be limited to, legal

18 obligations and responsibilities, information concerning child

19 abuse, child development, domestic abuse, sexual abuse, and parent

20 and child behavioral health and management including best practices.

21 After publication of the manual, all guardian ad litems shall

22 certify to the court in which he or she is appointed as a guardian

23 ad litem that the manual has been read and all provisions contained

24 therein are understood.     The guardian ad litem shall also certify

25 that he or she agrees to follow the best practices described within

26 the standard operating manual.     The Administrative Director of the

27 Courts shall provide public access to the standard operating manual

28 and shall periodically review and revise the manual as deemed

29 necessary.

30       B.   When property, separate maintenance, or custody is at issue,

31 the court:

32


     Req. No. 9604                                                    Page 17
1        1.   May refer the issue or issues to mediation if feasible

2 unless a party asserts or it appears to the court that domestic

3 violence or child abuse has occurred, in which event the court shall

4 halt or suspend professional mediation unless the court specifically

5 finds that:

6             a.     the following three conditions are satisfied:

7                    (1)   the professional mediator has substantial

8                          training concerning the effects of domestic

9                          violence or child abuse on victims,

10                   (2)   a party who is or alleges to be the victim of

11                         domestic violence is capable of negotiating with

12                         the other party in mediation, either alone or

13                         with assistance, without suffering an imbalance

14                         of power as a result of the alleged domestic

15                         violence, and

16                   (3)   the mediation process contains appropriate

17                         provisions and conditions to protect against an

18                         imbalance of power between parties resulting from

19                         the alleged domestic violence or child abuse, or

20            b.     in the case of domestic violence involving parents,

21                   the parent who is or alleges to be the victim requests

22                   mediation and the mediator is informed of the alleged

23                   domestic violence; and

24       2.   When custody is at issue, the court may order, in addition

25 to or in lieu of the provisions of paragraph 1 of this subsection,

26 that each of the parties undergo individual counseling in a manner

27 that the court deems appropriate, if the court finds that the

28 parties can afford the counseling.

29       C.   As used in this section:

30       1.   "Child abuse or neglect" shall have the same meaning as such

31 term is defined by the Oklahoma Child Abuse Reporting and Prevention

32 Act or shall mean the child has been adjudicated deprived as a


     Req. No. 9604                                                      Page 18
1 result of the actions or omission of either parent pursuant to the

2 Oklahoma Children’s Code; and

3        2.   "Domestic violence" or “domestic abuse” shall have the same

4 meaning as such term is terms are defined by the Protection from

5 Domestic Abuse Act in paragraph 1 of subsection I of Section 109 of

6 this title.

7        D.   During any proceeding concerning child custody, should it be

8 determined by the court that a party has intentionally made a false

9 or frivolous accusation to the court of child abuse or neglect

10 against the other party, the court shall proceed with any or all of

11 the following:

12       1.   Find the accusing party in contempt for perjury and refer

13 for prosecution;

14       2.   Consider the false allegations in determining custody; and

15       3.   Award the obligation to pay all court costs and legal

16 expenses encumbered by both parties arising from the allegations to

17 the accusing party.

18       SECTION 6.      AMENDATORY      43 O.S. 2001, Section 109, is

19 amended to read as follows:

20       Section 109.   A.   In awarding the custody of a minor unmarried

21 child or in appointing a general guardian for said child, the court

22 shall consider what appears to be in the best interests of the

23 physical and mental and moral welfare of the child.

24       B.   The court, pursuant to the provisions of subsection A of

25 this section, may grant the care, custody, and control of a child to

26 either parent or to the parents jointly.

27       For the purposes of this section, the terms joint custody and

28 joint care, custody, and control mean the sharing by parents in all

29 or some of the aspects of physical and legal care, custody, and

30 control of their children.

31       C.   If either or both parents have requested joint custody, said

32 parents shall file with the court their plans for the exercise of


     Req. No. 9604                                                    Page 19
1 joint care, custody, and control of their child.      The parents of the

2 child may submit a plan jointly, or either parent or both parents

3 may submit separate plans.      Any plan shall include but is not

4 limited to provisions detailing the physical living arrangements for

5 the child, child support obligations, medical and dental care for

6 the child, school placement, and visitation rights.      A plan shall be

7 accompanied by an affidavit signed by each parent stating that said

8 parent agrees to the plan and will abide by its terms.      The plan and

9 affidavit shall be filed with the petition for a divorce or legal

10 separation or after said petition is filed.

11       D.   The court shall issue a final plan for the exercise of joint

12 care, custody, and control of the child or children, based upon the

13 plan submitted by the parents, separate or jointly, with appropriate

14 changes deemed by the court to be in the best interests of the

15 child.     The court also may reject a request for joint custody and

16 proceed as if the request for joint custody had not been made.

17       E.   The parents having joint custody of the child may modify the

18 terms of the plan for joint care, custody, and control.      The

19 modification to the plan shall be filed with the court and included

20 with the plan.     If the court determines the modifications are in the

21 best interests of the child, the court shall approve the

22 modifications.

23       F.   The court also may modify the terms of the plan for joint

24 care, custody, and control upon the request of one parent.     The

25 court shall not modify the plan unless the modifications are in the

26 best interests of the child.

27       G.   1.   The court may terminate a joint custody decree upon the

28 request of one or both of the parents or whenever the court

29 determines said decree is not in the best interests of the child.

30       2.   Upon termination of a joint custody decree, the court shall

31 proceed and issue a modified decree for the care, custody, and

32


     Req. No. 9604                                                    Page 20
1 control of the child as if no such joint custody decree had been

2 made.

3        H.   In the event of a dispute between the parents having joint

4 custody of a child as to the interpretation of a provision of said

5 plan, the court may appoint an arbitrator to resolve said dispute.

6 The arbitrator shall be a disinterested person knowledgeable in

7 domestic relations law and family counseling.     The determination of

8 the arbitrator shall be final and binding on the parties to the

9 proceedings until further order of the court.

10       If a parent refuses to consent to arbitration, the court may

11 terminate the joint custody decree.

12       I.   In every proceeding where there is at issue a dispute as to

13 the custody of a minor child, a determination by the court or by a

14 previous court in a civil or criminal action that domestic violence

15 has occurred raises a rebuttable presumption that it is detrimental

16 to the child and not in the best interest of the child to be placed

17 in the sole custody, joint legal or physical custody, or any shared

18 parenting plan with the perpetrator of domestic violence and that it

19 is in the best interest of a child to reside with the parent who is

20 not a perpetrator of domestic violence.    The requirements of this

21 subsection are in addition to the requirements and mandatory

22 considerations in Section 112.2 of this title.    Further, evidence of

23 any conviction of the parent who is alleged to be a perpetrator of

24 any domestic violence or sexual assault crime committed against any

25 person within the last ten (10) years including, but not limited to,

26 domestic assault and battery, domestic assault and battery in the

27 presence of a minor child, domestic assault and battery resulting in

28 great bodily harm, domestic assault and battery resulting in great

29 bodily harm by strangulation, violation of protective order,

30 stalking, rape, rape by instrumentation, sexual molestation of a

31 child, abuse or neglect of a child, shall be admissible in every

32 proceeding concerning custody, visitation, or guardianship of a


     Req. No. 9604                                                 Page 21
1 minor child.       Evidence that a protective order has been issued

2 against the perpetrator to protect a victim, a minor child, or

3 another person shall also be admissible.

4        1.   For purposes of this section, “domestic violence” or

5 “domestic abuse” means the threat of the infliction of physical

6 injury, or any act of physical harm or the creation of a reasonable

7 fear thereof, or the intentional infliction of emotional distress by

8 a parent or a present or former member of the household, against the

9 child or another member of the household.

10       2.   If a parent is absent or relocates because of an act of

11 domestic abuse by the other parent, the absence or relocation shall

12 not be a factor that weighs against the parent in determining

13 custody, visitation or guardianship.

14       3.   If a parent chooses to file a petition for a protective

15 order to protect the parent or minor child or both, such an action

16 shall not be a factor that weighs against the parent in determining

17 custody, visitation or guardianship unless there is a showing that

18 the parent has knowingly, frivolously, and intentionally filed a

19 petition for a protective order as prohibited in subsection H of

20 Section 60.4 of Title 22 of the Oklahoma Statutes.

21       4.   The court shall consider as primary the safety and well-

22 being of the child and of the parent who is the victim of domestic

23 violence, in addition to other facts regarding the best interest of

24 the child.

25       5.   The court shall consider the history of the perpetrator in

26 causing physical harm, bodily injury, assault, or causing the fear

27 of physical harm, bodily injury, or assault to another person,

28 including the minor child, the other parent, and any other person,

29 in determining issues regarding custody, visitation and

30 guardianship.

31       SECTION 7.       AMENDATORY     43 O.S. 2001, Section 111.1, is

32 amended to read as follows:


     Req. No. 9604                                                   Page 22
1        Section 111.1    A.   1.   Any order providing for the visitation of

2 a noncustodial parent with any of the children of such noncustodial

3 parent shall provide a specified minimum amount of visitation

4 between the noncustodial parent and the child unless the court

5 determines otherwise.

6        2.   Except for good cause shown and when in the best interests

7 of the child, the order shall encourage additional visitations of

8 the noncustodial parent and the child and in addition encourage

9 liberal telephone communications between the noncustodial parent and

10 the child.      A court may award visitation by a parent who committed

11 domestic violence, as defined in paragraph 1 of subsection I of

12 Section 109 of this title, only if the court finds that adequate

13 provisions for the safety of the child and the parent, who is a

14 victim of domestic violence, can be made.

15       3.   In a visitation order, a court shall provide for the safety

16 of the minor child and victim of domestic violence and may:

17            a.     order the exchange of a child to be facilitated by a

18                   third party where the parents do not have any contact

19                   with each other with any costs of such exchange to be

20                   paid by the perpetrator of the violence,

21            b.     order the exchange of a child to occur in a protected

22                   setting with any costs of such exchange to be paid by

23                   the perpetrator of the violence,

24            c.     order visitation supervised by another person or

25                   agency with any costs of such exchange to be paid by

26                   the perpetrator of the violence,

27            d.     order the perpetrator of domestic violence to pay a

28                   fee to help defray the costs of supervised visitation

29                   or other costs of child exchanges, including

30                   compensating third parties,

31            e.     order the perpetrator of domestic violence to attend

32                   and complete, to the satisfaction of the court, a


     Req. No. 9604                                                    Page 23
1                    program of intervention for perpetrators of domestic

2                    violence, certified by the Office of the Attorney

3                    General,

4             f.     prohibit unsupervised or overnight visitation until

5                    the perpetrator of domestic violence has successfully

6                    completed a specialized program for abusers and the

7                    perpetrator has neither threatened nor exhibited

8                    violence toward any minor child, the other party or

9                    any other person for a substantial period of time,

10            g.     order the perpetrator of domestic violence to abstain

11                   from the possession or consumption of alcohol or

12                   controlled substances during the visitation and for

13                   twenty-four (24) hours preceding the visitation, and

14            h.     impose any other condition that is deemed necessary to

15                   provide for the safety of the child, the victim of

16                   domestic violence, or other household member.

17       4.   Visitation shall be terminated in any of the following

18 situations:

19            a.     when there are repeated violations by the perpetrator

20                   of domestic violence of the terms and conditions of

21                   visitation,

22            b.     if the child becomes severely distressed in response

23                   to visitation, including the determination by a mental

24                   health professional or certified domestic violence

25                   specialist that visitation with the perpetrator of

26                   domestic violence is causing the child severe

27                   distress, and

28            c.     if there are clear indications that the perpetrator of

29                   domestic violence has threatened to either harm or

30                   flee with the child.

31       5.   Whether or not visitation is allowed, the court shall order

32 the address of the child and the victim to be kept confidential if


     Req. No. 9604                                                   Page 24
1 requested.       An abusing noncustodial parent may be denied access to

2 the medical and educational records of the child if the records

3 might be used to determine the location of the child.

4        B.   1.   Except for good cause shown, when a noncustodial parent

5 who is ordered to pay child support and who is awarded visitation

6 rights fails to pay child support, the custodial parent shall not

7 refuse to honor the noncustodial parent's visitation rights.

8        2.   When a custodial parent refuses to honor a noncustodial

9 parent's visitation rights, the noncustodial parent shall not fail

10 to pay any ordered child support or alimony.

11       C.   1.   Violation of an order providing for the payment of child

12 support or providing for the visitation of a noncustodial parent

13 with any of the children of such noncustodial parent may be

14 prosecuted as indirect civil contempt pursuant to Section 566 of

15 Title 21 of the Oklahoma Statutes or as otherwise deemed appropriate

16 by the court.

17       2.   Unless good cause is shown for the noncompliance, the

18 prevailing party shall be entitled to recover court costs and

19 attorney fees expended in enforcing the order and any other

20 reasonable costs and expenses incurred in connection with the denied

21 child support or denied visitation as authorized by the court.

22       SECTION 8.      AMENDATORY      Section 8, Chapter 400, O.S.L.

23 2002 (43 O.S. Supp. 2005, Section 112.3), is amended to read as

24 follows:

25       Section 112.3    A.   As used in this section:

26       1.   “Change of residence address” means a change in the primary

27 residence of an adult;

28       2.   “Child” means a child under the age of eighteen (18) who has

29 not been judicially emancipated;

30       3.   “Person entitled to custody of or visitation with a child”

31 means a person so entitled by virtue of a court order or by an

32 express agreement that is subject to court enforcement;


     Req. No. 9604                                                    Page 25
1        4.   “Principal residence of a child” means:

2             a.     the location designated by a court to be the primary

3                    residence of the child,

4             b.     in the absence of a court order, the location at which

5                    the parties have expressly agreed that the child will

6                    primarily reside, or

7             c.     in the absence of a court order or an express

8                    agreement, the location, if any, at which the child,

9                    preceding the time involved, lived with the child’s

10                   parents of the child, a parent, or a person acting as

11                   parent for at least six (6) consecutive months and, in

12                   the case of a child less than six (6) months old, the

13                   location at which the child lived from birth with any

14                   of the persons mentioned.   Periods of temporary

15                   absence of any of the named persons are counted as

16                   part of the six-month or other period; and

17       5.   “Relocation” means a change in the principal residence of a

18 child over seventy-five (75) miles from the child's principal

19 residence of the child for a period of sixty (60) days or more, but

20 does not include a temporary absence from the principal residence.

21       B.   1.   Except as otherwise provided by this section, a person

22 who has the right to establish the principal residence of the child

23 shall notify every other person entitled to visitation with the

24 child of a proposed relocation of the child’s principal residence of

25 the child as required by this section.

26       2.   Except as otherwise provided by this section, an adult

27 entitled to visitation with a child shall notify every other person

28 entitled to custody of or visitation with the child of an intended

29 change in the primary residence address of the adult as required by

30 this section.

31       C.   1.   Except as provided by this section, notice of a proposed

32 relocation of the principal residence of a child or notice of an


     Req. No. 9604                                                      Page 26
1 intended change of the primary residence address of an adult must be

2 given:

3              a.    by mail to the last-known address of the person to be

4                    notified, and

5              b.    no later than:

6                    (1)   the sixtieth day before the date of the intended

7                          move or proposed relocation, or

8                    (2)   the tenth day after the date that the person

9                          knows the information required to be furnished

10                         pursuant to this subsection, if the person did

11                         not know and could not reasonably have known the

12                         information in sufficient time to comply with the

13                         sixty-day notice, and it is not reasonably

14                         possible to extend the time for relocation of the

15                         child.

16       2.   Except as provided by this section, the following

17 information, if available, must be included with the notice of

18 intended relocation of the child or change of primary residence of

19 an adult:

20             a.    the intended new residence, including the specific

21                   address, if known,

22             b.    the mailing address, if not the same,

23             c.    the home telephone number, if known,

24             d.    the date of the intended move or proposed relocation,

25             e.    a brief statement of the specific reasons for the

26                   proposed relocation of a child, if applicable,

27             f.    a proposal for a revised schedule of visitation with

28                   the child, if any, and

29             g.    a warning to the nonrelocating parent that an

30                   objection to the relocation must be made within thirty

31                   (30) days or the relocation will be permitted.

32


     Req. No. 9604                                                      Page 27
1        3.   A person required to give notice of a proposed relocation or

2 change of residence address under this subsection has a continuing

3 duty to provide a change in or addition to the information required

4 by this subsection as that information becomes known.

5        D.   After the effective date of this act, an order issued by a

6 court directed to a person entitled to custody of or visitation with

7 a child shall include the following or substantially similar terms:

8        “You, as a party in this action, are ordered to notify every

9 other party to this action of a proposed relocation of the child,

10 change of your primary residence address, and the following

11 information:

12       1.   The intended new residence, including the specific address,

13 if known;

14       2.   The mailing address, if not the same;

15       3.   The home telephone number, if known;

16       4.   The date of the intended move or proposed relocation;

17       5.   A brief statement of the specific reasons for the proposed

18 relocation of a child, if applicable; and

19       6.   A proposal for a revised schedule of visitation with the

20 child, if any.

21       You are further ordered to give notice of the proposed

22 relocation or change of residence address on or before the sixtieth

23 day before a proposed change.    If you do not know and could not have

24 reasonably known of the change in sufficient time to provide a

25 sixty-day notice, you are ordered to give notice of the change on or

26 before the tenth day after the date that you know of the change.

27       Your obligation to furnish this information to every other party

28 continues as long as you, or any other person, by virtue of this

29 order, are entitled to custody of or visitation with a child covered

30 by this order.

31       Your failure to obey the order of this court to provide every

32 other party with notice of information regarding the proposed


     Req. No. 9604                                                    Page 28
1 relocation or change of residence address may result in further

2 litigation to enforce the order, including contempt of court.

3        In addition, your failure to notify of a relocation of the child

4 may be taken into account in a modification of custody of,

5 visitation with, possession of or access to the child.         Reasonable

6 costs and attorney fees also may be assessed against you if you fail

7 to give the required notice.

8        If you, as the nonrelocating parent, do not file a proceeding

9 seeking a temporary or permanent order to prevent the relocation

10 within thirty (30) days after receipt of notice of the intent of the

11 other party to relocate the residence of the child, relocation is

12 authorized.”

13       E.   1.   On a finding by the court that the health, safety, or

14 liberty of a person or a child would be unreasonably put at risk by

15 the disclosure of the required identifying information in

16 conjunction with a proposed relocation of the child or change of

17 residence of an adult, the court may order that:

18            a.     the specific residence address and telephone number of

19                   the child or of the adult and other identifying

20                   information shall not be disclosed in the pleadings,

21                   other documents filed in the proceeding, or the final

22                   order, except for an in camera disclosure,

23            b.     the notice requirements provided by this article be

24                   waived to the extent necessary to protect

25                   confidentiality and the health, safety or liberty of a

26                   person or child, and

27            c.     any other remedial action that the court considers

28                   necessary to facilitate the legitimate needs of the

29                   parties and the best interest of the child.

30       2.   If appropriate, the court may conduct an ex parte hearing

31 pursuant to this subsection.

32


     Req. No. 9604                                                     Page 29
1        3.   A finding by the court that domestic violence exists creates

2 a presumption that the custodial parent and child will be put at

3 risk by the disclosure of information required by this section and

4 is sufficient to waive all requirements of this section.      It is the

5 policy of this state that a child should reside with a nonviolent

6 parent and that the nonviolent parent should be free to make a

7 choice about a safe, secure place of residence, even if it means

8 relocation to another city or state without disclosure to the

9 violent parent.

10       F.   1.   The court may consider a failure to provide notice of a

11 proposed relocation of a child as provided by this section as:

12            a.     a factor in making its determination regarding the

13                   relocation of a child,

14            b.     a factor in determining whether custody or visitation

15                   should be modified,

16            c.     a basis for ordering the return of the child if the

17                   relocation has taken place without notice, and

18            d.     sufficient cause to order the person seeking to

19                   relocate the child to pay reasonable expenses and

20                   attorney fees incurred by the person objecting to the

21                   relocation.

22       2.   In addition to the sanctions provided by this subsection,

23 the court may make a finding of contempt if a party violates the

24 notice requirement required by this section and may impose the

25 sanctions authorized for contempt of a court order.

26       G.   1.   The person entitled to custody of a child may relocate

27 the principal residence of a child after providing notice as

28 provided by this section unless a parent entitled to notice files a

29 proceeding seeking a temporary or permanent order to prevent the

30 relocation within thirty (30) days after receipt of the notice.

31       2.   A parent entitled by court order or written agreement to

32 visitation with a child may file a proceeding objecting to a


     Req. No. 9604                                                     Page 30
1 proposed relocation of the principal residence of a child and seek a

2 temporary or permanent order to prevent the relocation.

3        3.   If relocation of the child is proposed, a nonparent entitled

4 by court order or written agreement to visitation with a child may

5 file a proceeding to obtain a revised schedule of visitation, but

6 may not object to the proposed relocation or seek a temporary or

7 permanent order to prevent the relocation.

8        4.   A proceeding filed pursuant to this subsection must be filed

9 within thirty (30) days of receipt of notice of a proposed

10 relocation.

11       H.   1.   The court may grant a temporary order restraining the

12 relocation of a child, or ordering return of the child if a

13 relocation has previously taken place, if the court finds:

14            a.     the required notice of a proposed relocation of a

15                   child as provided by this section was not provided in

16                   a timely manner and the parties have not presented an

17                   agreed-upon revised schedule for visitation with the

18                   child for the court’s approval by the court,

19            b.     the child already has been relocated without notice,

20                   agreement of the parties, or court approval, or

21            c.     from an examination of the evidence presented at the

22                   temporary hearing there is a likelihood that on final

23                   hearing the court will not approve the relocation of

24                   the primary residence of the child.

25       2.   The court may grant a temporary order permitting the

26 relocation of the child pending final hearing if the court:

27            a.     finds that the required notice of a proposed

28                   relocation of a child as provided by this section was

29                   provided in a timely manner and issues an order for a

30                   revised schedule for temporary visitation with the

31                   child, and

32


     Req. No. 9604                                                     Page 31
1             b.     finds from an examination of the evidence presented at

2                    the temporary hearing there is a likelihood that on

3                    final hearing the court will approve the relocation of

4                    the primary residence of the child.

5        I.   A proposed relocation of a child may be a factor in

6 considering a change of custody.

7        J.   1.   In reaching its decision regarding a proposed

8 relocation, the court shall consider the following factors:

9             a.     the nature, quality, extent of involvement, and

10                   duration of the child’s relationship of the child with

11                   the person proposing to relocate and with the

12                   nonrelocating person, siblings, and other significant

13                   persons in the child’s life of the child,

14            b.     the age, developmental stage, needs of the child, and

15                   the likely impact the relocation will have on the

16                   child’s physical, educational, and emotional

17                   development of the child, taking into consideration

18                   any special needs of the child,

19            c.     the feasibility of preserving the relationship between

20                   the nonrelocating person and the child through

21                   suitable visitation arrangements, considering the

22                   logistics and financial circumstances of the parties,

23            d.     the child’s preference of the child, taking into

24                   consideration the age and maturity of the child,

25            e.     whether there is an established pattern of conduct of

26                   the person seeking the relocation, either to promote

27                   or thwart the relationship of the child and the

28                   nonrelocating person,

29            f.     whether the relocation of the child will enhance the

30                   general quality of life for both the custodial party

31                   seeking the relocation and the child, including but

32


     Req. No. 9604                                                     Page 32
1                    not limited to financial or emotional benefit or

2                    educational opportunity,

3             g.     the reasons of each person for seeking or opposing the

4                    relocation, and

5             h.     any other factor affecting the best interest of the

6                    child.

7        2.   The court may not:

8             a.     give undue weight to the temporary relocation as a

9                    factor in reaching its final decision, if the court

10                   has issued a temporary order authorizing a party

11                   seeking to relocate a child to move before final

12                   judgment is issued, or

13            b.     consider whether the person seeking relocation of the

14                   child has declared that he or she will not relocate if

15                   relocation of the child is denied.

16       K.   The relocating person has the burden of proof that the

17 proposed relocation is made in good faith.     If that burden of proof

18 is met, the burden shifts to the nonrelocating person to show that

19 the proposed relocation is not in the best interest of the child.

20       L.   1.   After notice and a reasonable opportunity to respond,

21 the court may impose a sanction on a person proposing a relocation

22 of the child or objecting to a proposed relocation of a child if it

23 determines that the proposal was made or the objection was filed:

24            a.     to harass a person or to cause unnecessary delay or

25                   needless increase in the cost of litigation,

26            b.     without being warranted by existing law or was based

27                   on frivolous argument, or

28            c.     based on allegations and other factual contentions

29                   which had no evidentiary support or, if specifically

30                   so identified, could not have been reasonably believed

31                   to be likely to have evidentiary support after further

32                   investigation.


     Req. No. 9604                                                  Page 33
1        2.   A sanction imposed under this subsection shall be limited to

2 what is sufficient to deter repetition of such conduct or comparable

3 conduct by others similarly situated.       The sanction may include

4 directives of a nonmonetary nature, an order to pay a penalty into

5 court, or, if imposed on motion and warranted for effective

6 deterrence, an order directing payment to the other party of some or

7 all of the reasonable attorney fees and other expenses incurred as a

8 direct result of the violation.

9        M.   If the issue of relocation is presented at the initial

10 hearing to determine custody of and visitation with a child, the

11 court shall apply the factors set forth in this section in making

12 its initial determination.

13       N.   1.   The provisions of this section apply to an order

14 regarding custody of or visitation with a child issued:

15            a.      after the effective date of this act, and

16            b.      before the effective date of this act, if the existing

17                    custody order or enforceable agreement does not

18                    expressly govern the relocation of the child or there

19                    is a change in the primary residence address of an

20                    adult affected by the order.

21       2.   To the extent that a provision of this section conflicts

22 with an existing custody order or enforceable agreement, this

23 section does not apply to the terms of that order or agreement that

24 govern relocation of the child or a change in the primary residence

25 address of an adult.

26       SECTION 9.    This act shall become effective November 1, 2006.

27

28       50-2-9604        GRS     03/02/06

29

30

31

32


     Req. No. 9604                                                      Page 34

				
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