Senate Bill No. 147

(By Senators Wagner and Yoder)

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[Introduced January 23, 1995; referred to the

Committee on the Judiciary.]

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A BILL to amend and reenact section two, article twenty- one, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section two, article two, chapter forty-eight-a of said code, all relating to public defenders services and the child advocate's office providing legal representation to parents at child custody proceedings.

Be it enacted by the Legislature of West Virginia:

That section two, article twenty-one, chapter twenty-nine of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted; and that section two, article two, chapter forty-eight-a of said code be amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.

§29-21-2. Definitions.

As used in this article, the following words and phrases are hereby defined:
(1) "Eligible client": Any person who meets the requirements established by this article to receive publicly funded legal representation in an eligible proceeding as defined herein;
(2) "Eligible proceeding": Criminal charges which may result in incarceration, juvenile proceedings, proceedings to revoke parole or probation if the revocation may result in incarceration, contempts of court, child abuse and neglect proceedings which may result in a termination of parental rights, mental hygiene commitment proceedings, paternity proceedings which include findings regarding child support and child custody that follow from the paternity determination with the eligible proceeding being limited to the pendency of the initial paternity proceeding, extradition proceedings, proceedings brought in aid of an eligible proceeding, and appeals from or post conviction challenges to the final judgment in an eligible proceeding. Legal representation provided pursuant to the provisions of this article is limited to the court system of the state of West Virginia, but does not include representation in municipal courts unless the accused is at risk of incarceration;
(3) "Legal representation": The provision of any legal services or legal assistance consistent with the purposes and provisions of this article;
(4) "Private practice of law": The provision of legal representation by a public defender or assistant public defender to a client who is not entitled to receive legal representation under the provisions of this article, but does not include, among other activities, teaching;
(5) "Public defender": The staff attorney employed on a full- time basis by a public defender corporation who, in addition to providing direct representation to eligible clients, has administrative responsibility for the operation of the public defender corporation. The public defender may be a part-time employee if the board of directors of the public defender corporation finds efficient operation of the corporation does not require a full-time attorney and the executive director approves such part-time employment;
(6) "Assistant public defender": A staff attorney providing direct representation to eligible clients whose salary and status as a full-time or part-time employee are fixed by the board of directors of the public defender corporation;
(7) "Public defender corporation": A corporation created under section eight of this article for the sole purpose of providing legal representation to eligible clients; and
(8) "Public defender office": An office operated by a public defender corporation to provide legal representation under the provisions of this article.
§48A-2-2. Legislative purpose and intent; responsibility of the child advocate office.

(a) This article is enacted for the purpose of creating a child advocate office which will focus on the vital issues of child support, spousal support, and the establishment of paternity, inasmuch as such issues are properly within the jurisdiction of the state of West Virginia. The Legislature of the state of West Virginia, in creating the child advocate office, recognizes the seriousness of family law issues as they affect the health and welfare of the children of this state. The Legislature intends, by the enactment of this article and through the creation of this office, to specifically assign the highest priority to these issues. It is the sense of the Legislature that there must be a state office which, as its primary function, protects and promotes the best interests of children; which recognizes the rights and obligations of all persons involved in family law issues; and which has the authority and the means to resolve family law issues fairly and efficiently. Through the establishment of the child advocate office the Legislature intends to create an impetus and a mechanism for dealing with the varied problems associated with support enforcement, thereby enhancing the health and welfare of our state's children and their families.
(b) In order to carry out the purposes and intent of the Legislature, the child advocate office shall have, as its primary responsibilities, the following:
(1) The enforcement of support obligations owed by a parent to his or her child or children;
(2) The enforcement of support obligations owed by an individual to his or her spouse or former spouse;
(3) Locating parents or spouses who owe a duty to pay support;
(4) Establishing paternity on behalf of minors whose paternal parentage has not been acknowledged by the father or otherwise established by law and representing the previously acknowledged parent for child support and child custody findings that immediately follow the paternity determination, with the eligible proceeding for representation of the previously acknowledged parent being limited to the pendency of the initial paternity proceeding;
(5) Obtaining court orders for child and spousal support; and
(6) Assuring that the assistance and services of the office required to be provided under the provisions of this chapter will be available to all individuals for whom such assistance is required or requested.

Note: The purpose of this bill is to require that Public Defenders Services and the Child Advocates Office provide representation during the initial paternity proceeding to both parents for the purposes of child support and child custody determinations.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicated new language that would be added.

This bill was recommended for passage at the 1995 legislative session by the Joint Standing Committee on the Judiciary.