H. B. 4621
(By Delegate Yost)
[Introduced February 25, 2004; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §44-10-3 of the code of West Virginia,
1931, as amended; and to amend and reenact §51-2A-2 of said
code, all relating to transferring jurisdiction from the
county commission to the family court for appointment and
revocation of guardianships of minors.
Be it enacted by the Legislature of West Virginia:
That §44-10-3 of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §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 family court.
(a) The county commission 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) The county commission family 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 family court
to resign and the county commission family 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
family court stating that the minor is no longer in need of the
assistance or protection of a guardian.
(c) A guardianship shall not be terminated by the county
commission family 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.
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 for the appointment and revocation of a
guardianship of a minor brought under section three, article ten,
chapter forty-four of this code.
(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.
NOTE: The purpose of this bill is to transfer jurisdiction
from the county commission to the family court for appointment and
revocation of guardianships of minors.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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