Unregulated Custody Transfers of Adopted Children - West Virginia

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Definitions

Citation: Ann. Code § 48-31-102

The term 'caregiving authority' means the right to live with and care for a child on a day-to-day basis. The term includes physical custody, parenting time, right to access, and visitation.

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

'Decision-making authority' means the power to make important decisions regarding a child, including decisions regarding the child's education, religious training, health care, extracurricular activities, and travel. The term does not include the power to make decisions that necessarily accompany a grant of caregiving authority.

The term 'family member' includes a sibling, cousin, stepparent, or grandparent of a child, a parent's sibling, or an individual recognized to be in a familial relationship with a child under law of this State.

Prohibited or Required Actions Regarding Custody

Citation: Ann. Code § 49-8-3

The following shall apply only to situations where a parent or guardian of a child provides for the temporary care and custody of a child with the assistance of a qualified nonprofit organization. Nothing in this section shall be interpreted to restrict the rights of parents or guardians providing for the care of children by power of attorney in other contexts.

A parent or guardian of a child may, by a properly executed power of attorney, delegate to a person the care and custody of the child for a period not to exceed 1 year. A parent may not delegate the power to consent to the child's marriage or adoption, the performance of an abortion on the child, or the termination of parental rights to the child.

A delegation of care and custody of a child does not change or modify any parental or legal rights, obligations, or authority that was established by an existing court order or deprive the parent of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of the child.

The parent may revoke or withdraw this power of attorney at any time. Upon the termination, expiration, or revocation of the power of attorney, the child shall be returned to the custody of the parent within 48 hours. Unless the authority is revoked or withdrawn by the parent, the designee shall exercise parental or legal authority on a continuous basis without compensation for the duration of the power of attorney.

If a parent or guardian of a child wishes to utilize the power of attorney authorized by this section to delegate any powers regarding the care and custody of the child to another person, the qualified nonprofit organization shall conduct a criminal history and Federal and State background check on the person to whom powers are delegated prior to the execution of the power of attorney.

Exceptions

Citation: Ann. Code §§ 48-31-201; 48-31-202; 48-31-204

The parents of a child may enter into a temporary agreement under this article granting custodial responsibility during deployment. The agreement is temporary and terminates after the deploying parent returns from deployment unless the agreement has been terminated before that time by court order or modification under § 48-31-203. The agreement does not create an independent, continuing right to caregiving authority, decision-making authority, or limited contact in an individual to whom custodial responsibility is given.

A nonparent who has caregiving authority, decision-making authority, or limited contact by an agreement under this article has standing to enforce the agreement until it has been terminated by court order, by modification under § 48-31-203, or under other provisions of this article.

A deploying parent, by power of attorney, may delegate all or part of custodial responsibility to an adult nonparent for the period of deployment if no other parent possesses custodial responsibility under law of this State or if a court order currently in effect prohibits contact between the child and the other parent. The deploying parent may revoke the power of attorney by signing a revocation of the power.

Consequences

Citation: Ann. Code § 49-8-3

The execution of a power of attorney by a parent, guardian, or legal custodian does not, without other evidence, constitute abandonment, abuse, or neglect unless the parent, guardian, or legal custodian fails to either take custody of the child or execute a new power of attorney after the 1-year time limit has elapsed. Nothing in this article may be interpreted to prevent the Bureau for Children and Families or law enforcement from investigating allegations of abuse, abandonment, neglect, or other mistreatment of a child.