COMMITTEE SUBSTITUTE
FOR
H. B. 4273
(By Delegates Foster, Palumbo, Brown and Faircloth)
(Originating in the Committee on the Judiciary)
[February 13, 2004]
A BILL to amend and reenact §44-10-3, §44-10-4, §44-10-5
and
§44-10-6 of the code of West Virginia, 1931, as amended; to
amend and reenact §51-2A-2 of said code, all relating to the
modification of procedures for the appointment of guardians
for minor children
.
Be it enacted by the Legislature of West Virginia:
That §44-10-3, §44-10-4, §44-10-5
and §44-10-6
of the code of
West Virginia, 1931, as amended, be amended and reenacted; and §51-
2A-2
of said code be amended and reenacted,
all to read as follows:
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 10. GUARDIANS AND WARDS GENERALLY.
§44-10-3.
Appointment and revocation of guardian by county
commission.
(a) The
county commission circuit court or family court of the
county in which the minor resides, or if the minor is a nonresident
of the state, the county in which the minor has an estate, may appoint as the minor's guardian a suitable person. The father or
mother shall receive priority. However, in every case, the
competency and fitness of the proposed guardian and the welfare and
best interests of the minor shall be given precedence by the court
when appointing the guardian.
(b) Within five days of the filing of a petition for the
appointment of a guardian, the circuit clerk shall notify the
court. The court shall hear the petition for the appointment of a
guardian within ten days after the petition is filed.
(b)(c)The
county commission court, the guardian, or the
minor may revoke or terminate the guardianship appointment when:
(1) The minor reaches the age of eighteen and executes a
release stating that the guardian estate was properly administered
and that the minor has received the assets of the estate from the
guardian;
(2) The guardian or the minor dies;
(3) The guardian petitions the
county commission court to
resign and the
county commission court enters an order approving
the resignation; or
(4) A petition is filed by the guardian, the minor, an
interested person or upon the motion of the
county commission court
stating that the minor is no longer in need of the assistance or
protection of a guardian.
(c)(d) A guardianship
shall may not be terminated by the
county commission court if there are any assets in the estate due
and payable to the minor:
Provided, That another guardian may be appointed upon the resignation of a guardian whenever there are
assets in the estate due and payable to the minor.
§44-10-4. Right of minor to nominate guardian.
(a) If the minor is above the age of fourteen years, he
or she
may in the presence of the
county circuit or family court, or in
writing acknowledged before any officer authorized to take the
acknowledgment of a deed, nominate his
or her own guardian, who, if
approved by the court, shall be appointed accordingly.
and if
(b) If the guardian nominated by
such the minor
shall is not
be appointed by the court, or if the minor
shall reside resides
without outside the state, or if, after being summoned,
he the
minor shall neglects to nominate a suitable person, the court may
appoint the guardian in the same manner as if the minor were under
the age of fourteen years.
§44-10-5. Bond of guardian.
(a) Every guardian, unless except in the case of a
testamentary guardian where the will otherwise directs and the
court in which the will is recorded deems it unnecessary for the
safety of the ward, shall give bond with security to be approved by
the court by whom he or she is appointed, or before whom he or she
accepts the trust, in such penalty as shall be prescribed by the
court.
(b) The bond shall be given before the clerk of the court in
which the petition is filed.
§44-10-6. Curator; bond; powers and duties.
Until a guardian shall have given gives bond, or while there
is no guardian, the circuit or family court, may, from time to
time, appoint a curator, who shall give bond as aforesaid, and
during the continuance of his or her trust, have all the powers and
perform all the duties of a guardian, and be responsible in the
same way.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2A. FAMILY COURTS.
§51-2A-2. Family court jurisdiction; exceptions; limitations.
(a) The family court shall exercise jurisdiction over the
following matters:
(1) All actions for divorce, annulment or separate maintenance
brought under the provisions of article three, four or five,
chapter forty-eight of this code except as provided in subsections
(b) and (c) of this section;
(2) All actions to obtain orders of child support brought
under the provisions of articles eleven, twelve and fourteen,
chapter forty-eight of this code;
(3) All actions to establish paternity brought under the
provisions of article twenty-four, chapter forty-eight of this code
and any dependent claims related to such actions regarding child
support, parenting plans or other allocation of custodial
responsibility or decision-making responsibility for a child;
(4) All actions for grandparent visitation brought under the
provisions of article ten, chapter forty-eight of this code;
(5) All actions for the interstate enforcement of family
support brought under article sixteen, chapter forty-eight of this
code and for the interstate enforcement of child custody brought
under the provisions of article twenty, chapter forty-eight of this
code;
(6) All actions for the establishment of a parenting plan or
other allocation of custodial responsibility or decision-making
responsibility for a child, including actions brought under the
uniform child custody jurisdiction and enforcement act, as provided
in article twenty, chapter forty-eight of this code;
(7) All petitions for writs of habeas corpus wherein the issue
contested is custodial responsibility for a child;
(8) All motions for temporary relief affecting parenting plans
or other allocation of custodial responsibility or decision-making
responsibility for a child, child support, spousal support or
domestic violence;
(9) All motions for modification of an order providing for a
parenting plan or other allocation of custodial responsibility or
decision-making responsibility for a child or for child support or
spousal support;
(10) All actions brought, including civil contempt
proceedings, to enforce an order of spousal or child support or to
enforce an order for a parenting plan or other allocation of
custodial responsibility or decision-making responsibility for a
child;
(11) All actions brought by an obligor to contest the enforcement of an order of support through the withholding from
income of amounts payable as support or to contest an affidavit of
accrued support, filed with the circuit clerk, which seeks to
collect an arrearage;
(12) All final hearings in domestic violence proceedings;
(13) Petitions for a change of name, exercising concurrent
jurisdiction with the circuit court.
(14) All proceedings for payment of attorney fees if the
family court judge has jurisdiction of the underlying action;
(15) All proceedings for property distribution brought under
article seven, chapter forty-eight of this code; and
(16) All proceedings to obtain spousal support brought under
article eight, chapter forty-eight of this code; and
(17) All proceedings relating to the appointment of guardians
or curators of minor children brought pursuant to sections three,
four and six, article ten, chapter forty-four of this code,
exercising concurrent jurisdiction with the circuit court.
(b) If an action for divorce, annulment or separate
maintenance does not require the establishment of a parenting plan
or other allocation of custodial responsibility or decision-making
responsibility for a child and does not require an award or any
payment of child support, the circuit court has concurrent
jurisdiction with the family court over the action if, at the time
of the filing of the action, the parties also file a written
property settlement agreement executed by both parties.
(c) If an action for divorce, annulment or separate maintenance is pending and a petition is filed pursuant to the
provisions of article six, chapter forty-nine of this code alleging
abuse or neglect of a child by either of the parties to the
divorce, annulment or separate maintenance action, the orders of
the circuit court in which the abuse or neglect petition is filed
shall supercede and take precedence over an order of the family
court respecting the allocation of custodial and decision-making
responsibility for the child between the parents. If no order for
the allocation of custodial and decision-making responsibility for
the child between the parents has been entered by the family court
in the pending action for divorce, annulment or separate
maintenance, the family court shall stay any further proceedings
concerning the allocation of custodial and decision-making
responsibility for the child between the parents and defer to the
orders of the circuit court in the abuse or neglect proceedings.
(d) A family court is a court of limited jurisdiction. A
family court is a court of record only for the purpose of
exercising jurisdiction in the matters for which the jurisdiction
of the family court is specifically authorized in this section and
in chapter forty-eight of this code. A family court may not
exercise the powers given courts of record in section one, article
five, chapter fifty-one of this code or exercise any other powers
provided for courts of record in this code unless specifically
authorized by the Legislature. A family court judge is not a
"judge of any court of record" or a "judge of a court of record" as
the terms are defined and used in article nine of this chapter.