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.