SECOND ENROLLMENT
COMMITTEE SUBSTITUTE
FOR
H. B. 2678
(By Delegates Amores, Doyle, Jenkins and Yeager)
[Passed March 22, 1999; in effect from passage.]
AN ACT to repeal section ten-b, article two, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty- one, as amended; to repeal sections one, two, three, four, and
six, article four, chapter forty-eight-a of said code; to
amend and reenact section one, article two, chapter forty- four-a of said code be amended and reenacted; to amend and
reenact sections one, four-a, fifteen, sixteen, thirty-two and
thirty-seven, article two, chapter forty-eight of said code;
to amend and reenact sections three and six, article two-a of
said chapter; to further amend said chapter by adding thereto
a new article, designated article eleven; to amend and reenact
section three, article one, chapter forty-eight-a of said
code; to amend and reenact section nineteen, article one-a of
said chapter; to amend and reenact sections three, six, seven,
eleven, fourteen and sixteen, article one-b of said chapter; to further amend said article by adding thereto a new section,
designated section seventeen; to amend and reenact section
thirty-four, article two of said chapter; to further amend
said article by adding thereto a new section, designated
section seventeen; to amend and reenact sections nine, twenty
and twenty-three, article four of said chapter; to amend and
reenact section fourteen, article three, chapter fifty-one of
said code; to further amend said chapter by adding thereto a
new article, designated article two-a; to amend and reenact
sections eleven and twenty-eight-a, article one, chapter
fifty-nine of said code; to further amend said article by
adding thereto a new section, designated section eleven-a; and
to amend and reenact section twenty-nine, article five,
chapter sixty-one of said code, all relating to revising the
law of domestic relations generally; increasing the filing fee
for appointment of guardians; defining terms used in divorce,
annulment and separate maintenance cases; denominating parties
in domestic actions; limiting or terminating alimony for
cohabitation; establishing burden of proof; establishing
criteria for the award of alimony; eliminating property
allocated by equitable distribution from availability for
alimony payments; disposition of marital property; entitlement
to future or contingent payments; calculation of interest;
precluding pre-judgment interest in divorce matters;
exceptions; establishing date magistrate court jurisdiction in domestic violence cases is to be limited; establishing a fee
upon issuance of a protective order; transfer of jurisdiction
to family court and circuit court judges; allocation of
custodial and decision-making responsibility for children in
divorce cases; establishing best interests of the child as
primary objective; establishing parent education programs;
parenting plans; court ordered services; court ordered
investigations; appointment of guardians; judicial interviews
of minor children; modification of parenting plans; relocation
of a parent constituting a material change of circumstances
with regard to parental rights and responsibilities;
enforcement of parenting plans; monetary sanctions for
violations; parental access to a child's records; requiring
notice to obligor; designation of custody for purposes of
other state and federal statutes; operative dates; calculation
of interest; excluding reimbursed moneys from definition of
gross income; creating updated guidelines for child support;
requiring employers of obligors to report change of
circumstance to agency; computation of child support;
promulgating worksheets for determination of support
obligations; adjustment of child support in shared physical
custody cases; modification of child support; requiring
judicial findings regarding investment of child support
moneys; establishing operative date of amendments; notice to
unemployed obligors; employment income reporting; proceedings before a family court judge; establishing family court
division of circuit courts; initial appointments; effective
dates; reporting requirements; assignment of family court
judges by regions; establishing qualifications for family
court judges; establishing terms of office of judges; schedule
of elections for judges; criteria for handling vacancies in
office; disciplinary procedures; grounds for discipline;
appeal procedures; setting compensation for judges and staff
members; applicability of rules of evidence; authorizing
promulgation of local circuit rules of practice and procedure;
jurisdiction of family court judges; establishing contempt
powers of family court judges; imposition of fees for
modification proceedings and providing for the disposition
thereof; creation of family court fund; providing for the
transfer of court security funds to the family court fund;
establishing additional fees for certain future filings; and
establishing inability to pay as an affirmative defense in
actions for past due child support and alimony.
Be it enacted by the Legislature of West Virginia:
That section ten-b, article two, chapter forty-eight of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that sections one, two, three, four and six,
article four, chapter forty-eight-a of said code be repealed; that
section one, article two, chapter forty-four-a of said code be
amended and reenacted; that sections one, four-a, fifteen,
sixteen, thirty-two and thirty-seven, article two, chapter forty-eight of said code be amended and reenacted; that sections three
and six, article two-a of said chapter be amended and reenacted;
that said chapter be further amended by adding thereto a new
article, designated article eleven; that section three, article
one, chapter forty-eight-a of said code be amended and reenacted;
that section nineteen, article one-a of said chapter be amended and
reenacted; that sections three, six, seven, eleven, fourteen and
sixteen, article one-b of said chapter be amended and reenacted;
that said article be further amended by adding thereto a new
section, designated section seventeen; that section thirty-four,
article two of said chapter be amended and reenacted; that said
article be further amended by adding thereto a new section,
designated section seventeen; that sections nine, twenty and
twenty-three, article four of said chapter be amended and
reenacted; that section fourteen, article three, chapter fifty-one
of said code be amended and reenacted; that said chapter be
further amended by adding thereto a new article, designated article
two-a; that sections eleven and twenty-eight-a, article one,
chapter fifty-nine of said code be amended and reenacted; that said
article be further amended by adding thereto a new section,
designated section eleven-a; and that section twenty-nine, article
five, chapter sixty-one of said code be amended and reenacted, all
to read as follows:
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND CONSERVATORSHIP ACT.
ARTICLE 2. PROCEDURE FOR APPOINTMENT.
§44A-2-1. Filing of petition; jurisdiction; fees.
(a) A petition for the appointment of a guardian or
conservator shall be filed with the clerk of the circuit court in
the county in which the alleged protected person resides, or, if an
alleged protected person has been admitted to a health care or
correctional facility, in the county in which that facility is
located. A petition for the appointment of a conservator for a
missing person shall be filed with the clerk of the circuit court
in the county in which the missing person last resided.
(b) The circuit court in which the proceeding is first
commenced shall have exclusive jurisdiction unless that court
determines that a transfer of venue would be in the best interests
of the person alleged to need protection.
(c) The fee for filing a petition shall be seventy dollars,
payable upon filing to the circuit clerk, all of which shall be
retained by the circuit clerk:
Provided, That effective the first
day of July, two thousand one, the fee for filing a petition shall
be one hundred twenty-five dollars. The person bringing the
petition shall be responsible for fees for filings of the petition
and other papers, for service of process, and for copies of court
documents and transcripts. In the event that a guardian and/or
conservator is appointed by the court, such fees shall be
reimbursed to the individual who filed the petition from the
protected person's estate, if funds are available. Any person who
is pecuniarily unable to pay such fees and costs as set forth in
article one, chapter fifty-nine of this code, and article two,
chapter fifty-one of this code, will not be required to pay said fees and costs.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-1. Definitions.
For the purposes of this chapter and chapter forty-eight-a of
this code, the words and phrases defined in the following
subdivisions of this section, and any variation of those words and
phrases required by the context, have the meanings ascribed to them
in this section. These definitions are applicable unless a
different meaning clearly appears from the context.
(1) "Alimony" means the allowance which a person pays to or in
behalf of the support of his or her spouse or divorced spouse while
they are separated or after they are divorced. The payment of
alimony may be required by court order or by the terms of a
separation agreement. Alimony may be paid in a lump sum or paid in
installments as periodic alimony. Alimony includes temporary
alimony as that term is used in section thirteen of this article,
as well as alimony as that term is used in section fifteen of this
article and elsewhere throughout this article.
(2) "Antenuptial agreement" or "prenuptial agreement" means an
agreement between a man and woman before marriage, but in
contemplation and generally in consideration of marriage, whereby
the property rights and interests of the prospective husband and
wife, or both of them, are determined, or where property is secured
to either or both of them, to their separate estate, or to their
children or other persons. An antenuptial agreement may include provisions which define the respective property rights of the
parties during the marriage, or in the event of the death of either
or both of the parties, and may provide for the disposition of
marital property upon an annulment of the marriage or a divorce or
separation of the parties. A prenuptial agreement is void if at
the time it is made either of the parties is a minor.
(3) "Caretaking functions" means tasks that involve
interaction with the child or care of the child, including the
direction of interaction and care by others. Caretaking functions
include the following:
(A) Feeding, bedtime and wake-up routines, care of the child
when sick or hurt, bathing, grooming, personal hygiene, dressing,
recreation and play, physical safety, transportation, and other
functions that meet the daily physical needs of the child;
(B) Direction of the child's various developmental needs,
including the acquisition of motor and language skills, toilet
training, self-confidence, and maturation;
(C) Discipline, instruction in manners, assignment and
supervision of chores, and other tasks that attend to the child's
needs for behavioral control and self-restraint;
(D) Arrangements for the child's education, including remedial
or special services appropriate to the child's needs and interests,
communication with teachers and counselors, and supervision of
homework;
(E) The development and maintenance of appropriate
interpersonal relationships with peers, siblings, and adults;
(F) Arrangements for health care, including making
appointments, communication with health-care providers, medical
follow-up, and home health care;
(G) Moral guidance; and
(H) Arrangement of alternative care by a family member, baby- sitter, or other child-care provider or facility, including
investigation of alternatives, communication with providers, and
supervision.
(4) "Custodial responsibility" refers to physical
custodianship and supervision of a child. It usually includes, but
does not necessary require, the exercise of residential or
overnight responsibility.
(5) "Decision-making responsibility" refers to authority for
making significant life decisions on behalf of a child, including,
but not limited to, the child's education, spiritual guidance, and
health care.
(6) "Earnings" means compensation paid or payable for personal
services, whether denominated as wages, salary, commission, bonus,
or otherwise, and includes periodic payments pursuant to a pension
or retirement program. "Disposable earnings" means that part of
the earnings of any individual remaining after the deduction from
those earnings of any amounts required by law to be withheld.
(7) "Family court judge" means a commissioner of the circuit
court appointed or elected pursuant to section two, article two-a,
chapter fifty-one of this code and authorized to hear certain
domestic relations actions under section ten, article two-a, chapter fifty-one of this code.
(8) "Income" includes, but is not limited to, the following:
(A) Commissions, earnings, salaries, wages, and other income
due or to be due in the future to an individual from his employer
and successor employers;
(B) Any payment due or to be due in the future to an
individual from a profit-sharing plan, a pension plan, an insurance
contract, an annuity, social security, unemployment compensation,
supplemental employment benefits, workers' compensation benefits,
state lottery winnings and prizes, and overtime pay;
(C) Any amount of money which is owing to an individual as a
debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency, this
state or any political subdivision of this state, any other state
or a political subdivision of another state, or any other legal
entity which is indebted to the obligor.
(9) "Legal parent" means an individual defined as a parent, by
law, on the basis of biological relationship, presumed biological
relationship, legal adoption, or other recognized grounds.
(10) "Marital property" means:
(A) All property and earnings acquired by either spouse during
a marriage, including every valuable right and interest, corporeal
or incorporeal, tangible or intangible, real or personal,
regardless of the form of ownership, whether legal or beneficial,
whether individually held, held in trust by a third party, or
whether held by the parties to the marriage in some form of co-ownership such as joint tenancy or tenancy in common, joint tenancy
with the right of survivorship, or any other form of shared
ownership recognized in other jurisdictions without this state,
except that marital property shall not include separate property as
defined in subdivision (16) of this section; and
(B) The amount of any increase in value in the separate
property of either of the parties to a marriage, which increase
results from (i) an expenditure of funds which are marital
property, including an expenditure of such funds which reduces
indebtedness against separate property, extinguishes liens, or
otherwise increases the net value of separate property, or (ii)
work performed by either or both of the parties during the
marriage.
The definitions of "marital property" contained in this
subsection and "separate property" contained in subdivision (16) of
this section shall have no application outside of the provisions of
this article, and the common law as to the ownership of the
respective property and earnings of a husband and wife, as altered
by the provisions of article three of this chapter and other
provisions of this code, are not abrogated by implication or
otherwise, except as expressly provided for by the provisions of
this article as such provisions are applied in actions brought
under this article or for the enforcement of rights under this
article.
(11) "Parent" means a legal parent as defined in subsection
(I) of this section, unless otherwise specified.
(12) "Parenting functions" means tasks that serve the needs of
the child or the child's residential family. Parenting functions
include caretaking functions, as defined in subdivision (3) of this
section. Parenting functions also include functions that are not
caretaking functions, including:
(A) Provision of economic support;
(B) Participation in decision-making regarding the child's
welfare;
(C) Maintenance or improvement of the family residence, home
or furniture repair, home-improvement projects, yard work, and
house cleaning;
(D) Financial planning and organization, car repair and
maintenance, food and clothing purchasing, cleaning and maintenance
of clothing, and other tasks supporting the consumption and savings
needs of the family; and
(E) Other functions usually performed by a parent or guardian
that are important to the child's welfare and development.
(13) "Parenting plan" means a temporary parenting plan as
defined in subdivision (18) of this section or a permanent
parenting plan as defined in subdivision (14) of this section.
(14) "Permanent parenting plan" means a plan for parenting a
child that is incorporated into a final order or subsequent
modification order in a domestic relations action. The plan
principally establishes, but is not limited to, the allocation of
caretaking functions and parenting functions and provisions for
resolution of subsequent disputes between the parents.
(15) "Rehabilitative alimony" means alimony payable for a
short, specific and determinable period of time, designed to cease
when the payee is, after the exercise of reasonable efforts, in a
position of self-support.
(16) "Separate property" means:
(A) Property acquired by a person before marriage; or
(B) Property acquired by a person during marriage in exchange
for separate property which was acquired before the marriage; or
(C) Property acquired by a person during marriage, but
excluded from treatment as marital property by a valid agreement of
the parties entered into before or during the marriage; or
(D) Property acquired by a party during marriage by gift,
bequest, devise, descent or distribution; or
(E) Property acquired by a party during a marriage but after
the separation of the parties and before the granting of a divorce,
annulment or decree of separate maintenance; or
(F) Any increase in the value of separate property as defined
in paragraph (A), (B), (C), (D) or (E) of this subdivision which is
due to inflation or to a change in market value resulting from
conditions outside the control of the parties.
(17) "Separation" or "separation of the parties" means the
separation of the parties next preceding the filing of an action
under the provisions of this article, which separation continues,
without the parties cohabiting or otherwise living together as
husband and wife, and without interruption.
(18) "Separation agreement" means a written agreement entered into by a husband and wife whereby they agree to live separate and
apart from each other and, in connection therewith, agree to settle
their property rights; or to provide for the custody and support of
their minor child or children, if any; or to provide for the
payment or waiver of alimony by either party to the other; or to
otherwise settle and compromise issues arising out of their marital
rights and obligations. Insofar as an antenuptial agreement as
defined in subdivision (2) of this section affects the property
rights of the parties or the disposition of property upon an
annulment of the marriage, or a divorce or separation of the
parties, such antenuptial agreement shall be regarded as a
separation agreement under the provisions of this article.
(19) "Temporary parenting plan" means a plan incorporated
into a temporary or interlocutory order that provides for the
parenting of a child pending final resolution of a domestic
relations action.
§48-2-4a. Petition instituting a domestic relations action;
answer.
(a) A domestic relations action is instituted by the filing
of a verified petition. The formal style and the caption for all
subsequent pleadings is as follows:
(1) In an action for divorce, separate maintenance or
annulment the action may be styled "In Re the marriage of ________
and ________"; and
(2) In an action to establish a child support obligation or to
allocate custodial responsibility and decision-making responsibility when the parties are not married, the action may be
styled "In Re the Child(ren) of __________ and ___________."
The parties are identified in all pleadings as "petitioner"
and "respondent".
(b) The responsive pleading to a petition instituting a
domestic relations action is denominated an answer. The form and
requisites for an answer to a petition for divorce or any other
responsive pleading shall be verified in accordance with the
provisions of section ten, article two of this code and are
governed by the rules of civil procedure for trial courts of
record.
§48-2-15. Relief upon ordering divorce or annulment or granting
decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay alimony in
the form of periodic installments, or a lump sum, or both, for the
maintenance of the other party. Payments of alimony are to be
ordinarily made from a party's income, but when the income is not
sufficient to adequately provide for those payments, the court may,
upon specific findings set forth in the order, order the party
required to make those payments to make them from the corpus of his
or her separate estate. An award of alimony shall not be
disproportionate to a party's ability to pay as disclosed by the
evidence before the court.
(b) Upon ordering the annulment of a marriage or a divorce or granting of decree of separate maintenance, the court may further
order all or any part of the following relief:
(1) The court may provide for the custody of minor children of
the parties, subject to such rights of visitation, both in and out
of the residence of the custodial parent or other person or persons
having custody, as may be appropriate under the circumstances. In
every action where visitation is awarded, the court shall specify
a schedule for visitation by the noncustodial parent:
Provided,
That with respect to any existing order which provided for
visitation but which does not provide a specific schedule for
visitation by the noncustodial parent, upon motion of any party,
notice of hearing and hearing, the court shall issue an order which
provides a specific schedule of visitation by the noncustodial
parent;
(2) When the action involves a minor child or children, the
court shall require either party to pay child support in the form
of periodic installments for the maintenance of the minor children
of the parties in accordance with support guidelines promulgated
pursuant to article one-b, chapter forty-eight-a of this code.
Payments of child support are to be ordinarily made from a party's
income, but in cases when the income is not sufficient to
adequately provide for those payments, the court may, upon specific
findings set forth in the order, order the party required to make
those payments to make them from the corpus of his or her separate
estate;
(3) When the action involves a minor child or children, the court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of alimony or
child support, the court may order either party to continue in
effect existing policies of insurance covering the costs of health
care and hospitalization of the other party:
Provided, That if the
other party is no longer eligible to be covered by such insurance
because of the granting of an annulment or divorce, the court may
require a party to substitute such insurance with a new policy to
cover the other party or may consider the prospective cost of such
insurance in awarding alimony to be paid in periodic installments.
Payments made to an insurer pursuant to this subdivision, either
directly or by a deduction from wages, shall be deemed to be
alimony or installment payments for the distribution of marital
property, in such proportion as the court shall direct:
Provided,
however, That if the court does not set forth in the order that a
portion of such payments is to be deemed installment payments for
the distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be alimony:
Provided further, That the designation of insurance coverage as
alimony under the provisions of this subdivision shall not, in and
of itself, give rise to a subsequent modification of the order to
provide for alimony other than insurance for covering the costs of
health care and hospitalization;
(5) The court may grant the exclusive use and occupancy of the
marital home to one of the parties, together with all or a portion of the household goods, furniture and furnishings reasonably
necessary for such use and occupancy. Such use and occupancy shall
be for a definite period, ending at a specific time set forth in
the order, subject to modification upon the petition of either
party. Except in extraordinary cases supported by specific
findings set forth in the order granting relief, a grant of the
exclusive use and occupancy of the marital home shall be limited to
those situations when such use and occupancy is reasonably
necessary to accommodate the rearing of minor children of the
parties. The court may require payments to third parties in the
form of home loan installments, land contract payments, rent,
property taxes and insurance coverage if the amount of such
coverage is reduced to a fixed monetary amount set forth in the
court's order. When such third party payments are ordered, the
court shall specify whether such payments or portions of payments
are alimony, child support, a partial distribution of marital
property or an allocation of marital debt:
Provided, That if the
court does not set forth in the order that a portion of such
payments is to be deemed child support or installment payments for
the distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be alimony. When
such third party payments are ordered, the court shall specify
whether such payments or portions of payments are alimony, child
support, a partial distribution of marital property or an
allocation of marital debt. If the payments are not designated in
an order and the parties have waived any right to receive alimony, the court may designate the payments upon motion by any party.
Nothing contained in this subdivision shall abrogate an existing
contract between either of the parties and a third party or affect
the rights and liabilities of either party or a third party under
the terms of such contract;
(6) As an incident to requiring the payment of alimony, the
court may grant the exclusive use and possession of one or more
motor vehicles to either of the parties. The court may require
payments to third parties in the form of automobile loan
installments or insurance coverage if available at reasonable
rates, and any such payments made pursuant to this subdivision for
the benefit of the other party shall be deemed to be alimony or
installment payments for the distribution of marital property, as
the court may direct. Nothing contained in this subdivision shall
abrogate an existing contract between either of the parties and a
third party or affect the rights and liabilities of either party or
a third party under the terms of such contract;
(7) When the pleadings include a specific request for specific
property or raise issues concerning the equitable division of
marital property as defined in section one of this article, the
court shall order such relief as may be required to effect a just
and equitable distribution of the property and to protect the
equitable interests of the parties therein;
(8) Unless a contrary disposition is ordered pursuant to other
provisions of this section, then upon the motion of either party,
the court may compel the other party to deliver to the moving party any of his or her separate estate which may be in the possession or
control of the respondent party and may make such further order as
is necessary to prevent either party from interfering with the
separate estate of the other;
(9) When allegations of abuse have been proven, the court
shall enjoin the offending party from molesting or interfering with
the other, or otherwise imposing any restraint on the personal
liberty of the other or interfering with the custodial or
visitation rights of the other. Such order may permanently enjoin
the offending party from entering the school, business or place of
employment of the other for the purpose of molesting or harassing
the other; or from contacting the other, in person or by telephone,
for the purpose of harassment or threats; or from harassing or
verbally abusing the other in a public place;
(10) The court may order either party to take necessary steps
to transfer utility accounts and other accounts for recurring
expenses from the name of one party into the name of the other
party or from the joint names of the parties into the name of one
party. Nothing contained in this subdivision shall affect the
liability of the parties for indebtedness on any such account
incurred before the transfer of such account.
(c) When an annulment or divorce is denied, the court shall
retain jurisdiction of the case and may order all or any portion of
the relief provided for in subsections (a) and (b) of this section
which has been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in this state upon constructive service of process and personal jurisdiction is
thereafter obtained of the defendant in such case, the court may
order all or any portion of the relief provided for in subsections
(a) and (b) of this section which has been demanded or prayed for
in the pleadings.
(e) After the entry of an order pursuant to the provisions of
this section, the court may revise the order concerning the
maintenance of the parties and enter a new order concerning the
same, as the circumstances of the parties may require.
The court may also from time to time afterward, upon motion of
either of the parties and upon proper service, revise such order to
grant relief pursuant to subdivision (9), subsection (b) of this
section, and enter a new order concerning the same, as the
circumstances of the parties and the benefit of children may
require. The court may also from time to time afterward, upon the
motion of either of the parties or other proper person having
actual or legal custody of the minor child or children of the
parties, revise or alter the order concerning the custody and
support of the children, and make a new order concerning the same,
issuing it forthwith, as the circumstances of the parents or other
proper person or persons and the benefit of the children may
require:
Provided, That all orders modifying child support shall
be in conformance with the requirements of support guidelines
promulgated pursuant to article one-b, chapter forty-eight-a of
this code:
Provided, however, That an order providing for child
support payments may be revised or altered for the reason, inter alia, that the existing order provides for child support payments
in an amount that is less than eighty-five percent or more than one
hundred fifteen percent of the amount that would be required to be
paid under the child support guidelines promulgated pursuant to the
provisions of said section:
Provided further, That the child
support enforcement division may review a child support order and,
if appropriate, file a motion with the circuit court for
modification of the child support order pursuant to the provisions
of section thirty-five, article two, chapter forty-eight-a of this
code.
In granting relief under this subsection, the court may, when
other means are not conveniently available, alter any prior order
of the court with respect to the distribution of marital property,
if such property is still held by the parties, and if necessary to
give effect to a modification of alimony, child support or child
custody or necessary to avoid an inequitable or unjust result which
would be caused by the manner in which the modification will affect
the prior distribution of marital property.
(f) (1) When a separation agreement is the basis for an award
of alimony, the court, in approving the agreement, shall examine
the agreement to ascertain whether it clearly provides for alimony
to continue beyond the death of the payor or the payee or to cease
in such event. When alimony is to be paid pursuant to the terms of
a separation agreement which does not state whether the payment of
alimony is to continue beyond the death of the payor or payee or is
to cease, or when the parties have not entered into a separation agreement and alimony is awarded, the court shall specifically
state as a part of its order that such payments of alimony are to
cease at the death of the payor or payee. Rehabilitative alimony
ceases with the payee's death.
(2) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the remarriage of the payee or to cease in such
event. When alimony is to be paid pursuant to the terms of a
separation agreement which does not state whether the payment of
alimony is to continue beyond the remarriage of the payee or is to
cease, or when the parties have not entered into a separation
agreement and alimony is awarded, the court shall specifically
state as a part of its order that such payments of alimony are to
cease at the remarriage of the payee. Rehabilitative alimony does
not cease upon the remarriage of the payee during a rehabilitative
period of four years or less.
(3) Unless a pertinent separation order clearly provides for
alimony to continue beyond the death of a payor or payee or beyond
the remarriage of a payee, any order awarding alimony that is
entered after the first day of July, one thousand nine hundred
ninety-nine that does not state that payments of alimony are to
cease at the death of the payor or payee or at the remarriage of
the payee shall be deemed to state that payments of alimony are to
cease at the death of the payor or payee or at the remarriage of
the payee.
(g) (1) It is a ground for suspending a payor's obligation to
pay alimony if the payee shares living quarters and cohabits with
another person for six months within a period of twelve months.
(2) It is a ground for terminating a payor's obligation to
pay alimony if the payee shares living quarters and cohabits with
another person for twenty-four months within a period of thirty- six months.
(3) A suspended obligation that has not been terminated and
that has not yet expired under its original terms may be reinstated
for the remaining portion of the original term at the termination
of the relationship upon which the suspension was based.
(4) On the issue of whether alimony should be suspended or
terminated under this subsection, the burden is on the payor to
prove by a preponderance of the evidence that the payee has shared
living quarters and cohabited for the requisite time. If such
proof is made, there is a rebuttable presumption that the payee
derives sufficient benefit from shared living quarters and
continued cohabitation, nonfinancial as well as financial, so that
compensation is no longer required for any financial losses arising
from the termination of the marital relationship upon which the
alimony is based and would, if allowed, make overcompensation of
the payee likely.
(5) If the court finds that the payor has failed to meet
burden of proof on the issue, the court may award reasonable
attorney's fees to a payee who prevails in an action to suspend or
terminate alimony on the ground of cohabitation.
(6) The court shall order that a suspension or termination of
alimony is retroactive to the date of service of the petition on
the payee unless the court finds that reimbursement of amounts
already paid would cause an undue hardship on the payee.
(h) In addition to the disclosure requirements set forth in
section thirty-three of this article, the court may order accounts
to be taken as to all or any part of marital property or the
separate estates of the parties and may direct that the accounts be
taken as of the date of the marriage, the date upon which the
parties separated or any other time in assisting the court in the
determination and equitable division of property.
(i) In determining whether alimony is to be awarded, or in
determining the amount of alimony, if any, to be awarded under the
provisions of this section, the court shall consider and compare
the fault or misconduct of either or both of the parties and the
effect of such fault or misconduct as a contributing factor to the
deterioration of the marital relationship. However, alimony shall
not be awarded when both parties prove grounds for divorce and are
denied a divorce, nor shall an award of alimony under the
provisions of this section be ordered which directs the payment of
alimony to a party determined to be at fault, when, as a grounds
granting the divorce, such party is determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime which
is a felony, subsequent to the marriage if such conviction has
become final; or
(3) To have actually abandoned or deserted his or her spouse
for six months.
(j) Whenever under the terms of this section or section
thirteen of this article a court enters an order requiring the
payment of alimony or child support, if the court anticipates the
payment of such alimony or child support or any portion thereof to
be paid out of "disposable retired or retainer pay" as that term is
defined in 10 U.S.C. §1408, relating to members or former members
of the uniformed services of the United States, the court shall
specifically provide for the payment of an amount, expressed in
dollars or as a percentage of disposable retired or retainer pay,
from the disposable retired or retainer pay of the payor party to
the payee party.
(k) Any order which provides for the custody or support of a
minor child shall include:
(1) The name of the custodian;
(2) The amount of the support payments;
(3) The date the first payment is due;
(4) The frequency of the support payments;
(5) The event or events which trigger termination of the
support obligation;
(6) A provision regarding wage withholding;
(7) The address where payments shall be sent;
(8) A provision for medical support; and
(9) When child support guidelines are not followed, a specific
written finding pursuant to section fourteen, article one-b, chapter forty-eight-a of this code.
§48-2-16. Effect of separation agreement; what considered in
awarding alimony, child support or separate maintenance.
(a) In cases where the parties to an action commenced under
the provisions of this article have executed a separation
agreement, if the court finds that the agreement is fair and
reasonable, and not obtained by fraud, duress or other
unconscionable conduct by one of the parties, and further finds
that the parties, through the separation agreement, have expressed
themselves in terms which, if incorporated into a judicial order,
would be enforceable by a court in future proceedings, then the
court shall conform the relief which it is authorized to order
under the provisions of sections thirteen and fifteen of this
article to the separation agreement of the parties. The separation
agreement may contractually fix the division of property between
the parties and may determine whether alimony shall be awarded,
whether a court shall have continuing jurisdiction over the amount
of an alimony award so as to increase or decrease the amount of
alimony to be paid, whether alimony shall be awarded as a lump sum
settlement in lieu of periodic payments, whether alimony shall
continue beyond the death of the payor party or the remarriage of
the payee party, or whether the alimony award shall be enforceable
by contempt proceedings or other judicial remedies aside from
contractual remedies. Any award of periodic payments of alimony shall be deemed to be judicially decreed and subject to subsequent
modification unless there is some explicit, well expressed, clear,
plain and unambiguous provision to the contrary set forth in the
court approved separation agreement or the order granting the
divorce. Child support shall, under all circumstances, always be
subject to continuing judicial modification.
(b) In cases where the parties to an action commenced under
the provisions of this article have not executed a separation
agreement, or have executed an agreement which is incomplete or
insufficient to resolve the outstanding issues between the parties,
or where the court finds the separation agreement of the parties
not to be fair and reasonable or clear and unambiguous, the court
shall proceed to resolve the issues outstanding between the
parties. The court shall consider the following factors in
determining the amount of alimony, child support or separate
maintenance, if any, to be ordered under the provisions of sections
thirteen and fifteen of this article, as a supplement to or in lieu
of the separation agreement:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties
actually lived together as husband and wife;
(3) The present employment income and other recurring earnings
of each party from any source;
(4) The income-earning abilities of each of the parties, based
upon such factors as educational background, training, employment
skills, work experience, length of absence from the job market and custodial responsibilities for children;
(5) The distribution of marital property to be made under the
terms of a separation agreement or by the court under the
provisions of section thirty-two of this article, insofar as the
distribution affects or will affect the earnings of the parties and
their ability to pay or their need to receive alimony, child
support or separate maintenance:
Provided, That for the purposes
of determining a spouse's ability to pay alimony, the court may not
consider the income generated by property allocated to the payor
spouse in connection with the division of marital property;
(6) The ages and the physical, mental and emotional condition
of each party;
(7) The educational qualifications of each party;
(8) Whether either party has foregone or postponed economic,
education or employment opportunities during the course of the
marriage;
(9) The standard of living established during the marriage;
(10) The likelihood that the party seeking alimony, child
support or separate maintenance can substantially increase his or
her income-earning abilities within a reasonable time by acquiring
additional education or training;
(11) Any financial or other contribution made by either party
to the education, training, vocational skills, career or earning
capacity of the other party;
(12) The anticipated expense of obtaining the education and
training described in subdivision(10) above;
(13) The costs of educating minor children;
(14) The costs of providing health care for each of the
parties and their minor children;
(15) The tax consequences to each party;
(16) The extent to which it would be inappropriate for a
party, because said party will be the custodian of a minor child or
children, to seek employment outside the home;
(17) The financial need of each party;
(18) The legal obligations of each party to support himself or
herself and to support any other person; and
(19) Such other factors as the court deems necessary or
appropriate to consider in order to arrive at a fair and equitable
grant of alimony, child support or separate maintenance.
§48-2-32. Marital property disposition.
(a) Except as otherwise provided in this section, upon every
judgment of annulment, divorce or separation, the court shall
divide the marital property of the parties equally between the
parties.
(b) In cases where the parties to an action commenced under
the provisions of this article have executed a separation
agreement, then the court shall divide the marital property in
accordance with the terms of the agreement, unless the court finds:
(1) That the agreement was obtained by fraud, duress or other
unconscionable conduct by one of the parties; or
(2) That the parties, in the separation agreement, have not
expressed themselves in terms which, if incorporated into a judicial order, would be enforceable by a court in future
proceedings; or
(3) That the agreement, viewed in the context of the actual
contributions of the respective parties to the net value of the
marital property of the parties, is so inequitable as to defeat the
purposes of this section, and such agreement was inequitable at the
time the same was executed.
(c) In the absence of a valid agreement, the court shall
presume that all marital property is to be divided equally between
the parties, but may alter this distribution, without regard to any
attribution of fault to either party which may be alleged or proved
in the course of the action, after a consideration of the
following:
(1) The extent to which each party has contributed to the
acquisition, preservation and maintenance, or increase in value of
marital property by monetary contributions, including, but not
limited to:
(A) Employment income and other earnings; and
(B) Funds which are separate property.
(2) The extent to which each party has contributed to the
acquisition, preservation and maintenance or increase in value of
marital property by nonmonetary contributions, including, but not
limited to:
(A) Homemaker services;
(B) Child care services;
(C) Labor performed without compensation, or for less than adequate compensation, in a family business or other business
entity in which one or both of the parties has an interest;
(D) Labor performed in the actual maintenance or improvement
of tangible marital property; and
(E) Labor performed in the management or investment of assets
which are marital property.
(3) The extent to which each party expended his or her efforts
during the marriage in a manner which limited or decreased such
party's income-earning ability or increased the income-earning
ability of the other party, including, but not limited to:
(A) Direct or indirect contributions by either party to the
education or training of the other party which has increased the
income-earning ability of such other party; and
(B) Foregoing by either party of employment or other
income-earning activity through an understanding of the parties or
at the insistence of the other party.
(4) The extent to which each party, during the marriage, may
have conducted himself or herself so as to dissipate or depreciate
the value of the marital property of the parties:
Provided, That
except for a consideration of the economic consequences of conduct
as provided for in this subdivision, fault or marital misconduct
shall not be considered by the court in determining the proper
distribution of marital property.
(d) After considering the factors set forth in subsection (c)
of this section, the court shall:
(1) Determine the net value of all marital property of the parties as of the date of the separation of the parties or as of
such later date determined by the court to be more appropriate for
attaining an equitable result.
Where the value of the marital
property portion of a spouse's entitlement to future payments can
be determined at the time of entering a final order in a domestic
relations action, the court may include it in reckoning the worth
of the marital property assigned to each spouse. In the absence
of an agreement between the parties, when the value of the future
payments is not known at the time of entering a final order in a
domestic relations action, if their receipt is contingent on future
events or not reasonably assured, or if for other reasons it is not
equitable under the circumstances to include their value in the
property assigned at the time of dissolution, the court may decline
to do so, and
(A) Fix the spouses' respective shares in such future payments
if and when received, or,
(B) If it is not possible and practical to fix their share at
the time of entering a final order in a domestic relations action,
reserve jurisdiction to make an appropriate order at the earliest
practical date.
If a valuation is made after a contingent or other future fee
has been earned through the personal services or skills of a
spouse, the portion that is marital property shall be in the same
proportion to the total fee that the personal services or skills
expended before the separation of the parties bears to the total
personal skills or services expended. The provisions of this subdivision apply to pending cases when the issues of contingent
fees or future earned fees have not been finally adjudicated.
(2) Designate the property which constitutes marital property,
and define the interest therein to which each party is entitled and
the value of their respective interest therein. In the case of an
action wherein there is no agreement between the parties and the
relief demanded requires the court to consider such factors as are
described in subdivisions (1), (2), (3) and (4), subsection (c) of
this section, if a consideration of factors only under said
subdivisions (1) and (2) would result in an unequal division of
marital property, and if an examination of the factors described in
said subdivisions (3) and (4) produce a finding that a party: (A)
Expended his or her efforts during the marriage in a manner which
limited or decreased such party's income-earning ability or
increased the income-earning ability of the other party; or (B)
conducted himself or herself so as to dissipate or depreciate the
value of the marital property of the parties, then the court may,
in the absence of a fair and just alimony award under the
provisions of section fifteen of this article which adequately
takes into account the facts which underlie the factors described
in subdivisions (3) and (4), subsection (c) of this section,
equitably adjust the definition of the parties' interest in marital
property, increasing the interest in marital property of a party
adversely affected by the factors considered under said
subdivisions who would otherwise be awarded less than one half of
the marital property, to an interest not to exceed one half of the marital property;
(3) Designate the property which constitutes separate property
of the respective parties or the separate property of their
children;
(4) Determine the extent to which marital property is
susceptible to division in accordance with the findings of the
court as to the respective interests of the parties therein;
(5) In the case of any property which is not susceptible to
division, ascertain the projected results of a sale of such
property;
(6) Ascertain the projected effect of a division or transfer
of ownership of income-producing property, in terms of the possible
pecuniary loss to the parties or other persons which may result
from an impairment of the property's capacity to generate earnings;
and
(7) Transfer title to such component parts of the marital
property as may be necessary to achieve an equitable distribution
of the marital property. To make such equitable distribution, the
court may:
(A) Direct either party to transfer their interest in specific
property to the other party;
(B) Permit either party to purchase from the other party their
interest in specific property;
(C) Direct either party to pay a sum of money to the other
party in lieu of transferring specific property or an interest
therein, if necessary to adjust the equities and rights of the parties, which sum may be paid in installments or otherwise, as the
court may direct;
(D) Direct a party to transfer his or her property to the
other party in substitution for property of the other party of
equal value which the transferor is permitted to retain and assume
ownership of; or
(E) Order a sale of specific property and an appropriate
division of the net proceeds of such sale:
Provided, That such
sale may be by private sale, or through an agent or by judicial
sale, whichever would facilitate a sale within a reasonable time at
a fair price.
(e) In order to achieve the equitable distribution of marital
property, the court shall, unless the parties otherwise agree,
order, when necessary, the transfer of legal title to any property
of the parties, giving preference to effecting equitable
distribution through periodic or lump sum payments:
Provided, That
the court may order the transfer of legal title to motor vehicles,
household goods and the former marital domicile without regard to
such preference where the court determines it to be necessary or
convenient. In any case involving the equitable distribution of:
(1) Property acquired by bequest, devise, descent, distribution or
gift; or (2) ownership interests in a business entity, the court
shall, unless the parties otherwise agree, give preference to the
retention of the ownership interests in such property. In the case
of such business interests, the court shall give preference to the
party having the closer involvement, larger ownership interest or greater dependency upon the business entity for income or other
resources required to meet responsibilities imposed under this
article, and shall also consider the effects of transfer or
retention in terms of which alternative will best serve to preserve
the value of the business entity or protect the business entity
from undue hardship or from interference caused by one of the
parties or by the divorce, annulment or decree of separate
maintenance:
Provided, however, That the court may, unless the
parties otherwise agree, sever the business relationship of the
parties and order the transfer of legal title to ownership
interests in the business entity from one party to the other,
without regard to the limitations on the transfer of title to such
property otherwise provided in this subsection, if such transfer is
required to achieve the other purposes of this article:
Provided
further, That in all such cases the court shall order or the
agreement of the parties shall provide for equitable payment or
transfer of legal title to other property, of fair value in money
or moneys' worth, in lieu of any ownership interests in a business
entity which are ordered to be transferred under this subsection:
And provided further, That the court may order the transfer of such
business interests to a third party (such as the business entity
itself or another principal in the business entity) where the
interests of the parties under this article can be protected and at
least one party consents thereto.
(f) In any order which divides or transfers the title to any
property, determines the ownership or value of any property, designates the specific property to which any party is entitled or
grants any monetary award, the court shall set out in detail its
findings of fact and conclusions of law, and the reasons for
dividing the property in the manner adopted.
(g) If an order entered in accordance with the provisions of
this article requires the transfer of title to property and a party
fails or refuses to execute a deed or other instrument necessary to
convey title to such property, the deed or other instrument shall
be executed by a special commissioner appointed by the court for
the purpose of effecting such transfer of title pursuant to section
seven, article twelve, chapter fifty-five of this code.
(h) As to any third party, the doctrine of equitable
distribution of marital property and the provisions of this article
shall be construed as creating no interest or title in property
until and unless an order is entered under this article judicially
defining such interest or approving a separation agreement which
defines such interest. Neither this article nor the doctrine of
equitable distribution of marital property shall be construed to
create community property nor any other interest or estate in
property except those previously recognized in this state. A
husband or wife may alienate property at any time prior to the
entry of an order under the provisions of this article or prior to
the recordation of a notice of lis pendens in accordance with the
provisions of section thirty-five of this article, and at anytime
and in any manner not otherwise prohibited by an order under this
article, in like manner and with like effect as if this article and the doctrine of equitable distribution had not been adopted:
Provided, That as to any transfer prior to the entry of an order
under the provisions of this article, a transfer other than to a
bona fide purchaser for value shall be voidable if the court finds
such transfer to have been effected to avoid the application of the
provisions of this article or to otherwise be a fraudulent
conveyance. Upon the entry of any order under this article or the
admission to record of any notice with respect to an action under
this article, restraining the alienation of property of a party, a
bona fide purchaser for value shall take such title or interest as
he or she might have taken prior to the effective date of this
section and no purchaser for value need see to the application of
the proceeds of such purchase except to the extent he or she would
have been required so to do prior to the effective date of this
section:
Provided, however, That as to third parties nothing in
this section shall be construed to limit or otherwise defeat the
interests or rights to property which any husband or wife would
have had in property prior to the enactment of this section or
prior to the adoption of the doctrine of equitable distribution by
the supreme court of appeals on the twenty-fifth day of May, one
thousand nine hundred eighty-three:
Provided further, That no
order entered under this article shall be construed to defeat the
title of a third party transferee thereof except to the extent that
the power to effect such a transfer of title or interest in such
property is secured by a valid and duly perfected lien and, as to
any personal property, secured by a duly perfected security interest.
(I) Notwithstanding the provisions of chapter eleven of this
code, no transfer of interest in or title to property under this
section shall be taxable as a transfer of property without
consideration nor, except as to alimony, create liability for
sales, use, inheritance and transfer or income taxes due the state
or any political subdivision nor require the payment of the excise
tax imposed under article twenty-two, chapter eleven of this code.
(j) Whenever under the terms of this article a court enters an
order requiring a division of property, if the court anticipates
the division of property will be effected by requiring sums to be
paid out of "disposable retired or retainer pay" as that term is
defined in 10 U.S.C. §1408, relating to members or former members
of the uniformed services of the United States, the court shall
specifically provide for the payment of an amount, expressed in
dollars or as a percentage of disposable retired or retainer pay,
from the disposable retired or retainer pay of the payor party to
the payee party.
(k) A court may not award support or order equitable
distribution of property between individuals who are not married to
one another in accordance with the provisions of article one of
this chapter.
(l) The amendments to this section effected by the reenactment
of this section during the regular session of the Legislature, one
thousand nine hundred ninety-six, are to be applied prospectively
and shall have no application to any action for annulment, divorce or separate maintenance that was commenced on or before the
effective date of this section.
§48-2-37. Calculation of interest; accumulation of simple
interest; prejudgment interest.
(a) If an obligation to pay interest arises under this
chapter and the rate is not specified, the rate is that specified
in section thirty-one, article six, chapter fifty-six of this code.
On or after the ninth day of June, one thousand nine hundred
ninety-five, interest shall accrue only upon the outstanding
principal of such obligation. This section shall be construed to
permit the accumulation of simple interest, and may not be
construed to permit the compounding of interest. Interest which
has accrued on unpaid installments accruing before the ninth day of
June, one thousand nine hundred ninety-five, may not be modified by
any court, irrespective of whether such installment accrued simple
or compound interest:
Provided, That unpaid installments upon which
interest was compounded before the ninth day of June, one thousand
nine hundred ninety-five, shall accrue only simple interest thereon
on and after the ninth day of June, one thousand nine hundred
ninety-five.
(b) Except as otherwise provided in this subsection,
prejudgment interest shall not be awarded in a domestic relations
action. The circuit court may only award prejudgment interest in
a domestic relations action against a party if the court finds, in
writing, that the party engaged in conduct that would violate
subsection (b), rule eleven of the West Virginia rules of civil procedure. If prejudgment interest is awarded, the court shall
calculate prejudgment interest from the date the offending
representation was presented to the court.
ARTICLE 2A. PREVENTION AND TREATMENT OF DOMESTIC AND FAMILY LAW
VIOLENCE.
§48-2A-3. Jurisdiction; venue; effect of petitioner's
leaving residence; priority of petitions filed under this
article; who may file; full faith and credit; process.
(a)
Jurisdiction. -- Circuit courts and magistrate courts, as
constituted under chapter fifty of this code, have concurrent
jurisdiction over proceedings under this article:
Provided, That
after the thirty-first day of December, one thousand nine hundred
ninety-nine, magistrate court jurisdiction shall be limited, and
thereafter, full hearings wherein a protective order is sought
shall be heard before a circuit judge or a family court judge.
(b)
Venue. -- The action may be heard in the county in which
the domestic or family violence occurred, in the county in which
the respondent is living or in the county in which the petitioner
is living, either temporarily or permanently. If the parties are
married to each other, the action may also be brought in the county
in which an action for divorce between the parties may be brought
as provided by section eight, article two of this chapter.
(c)
Petitioner's rights. -- The petitioner's right to relief
under this article shall not be affected by his or her leaving a
residence or household to avoid further abuse.
(d)
Priority of petitions. -- Any petition filed under the provisions of this article shall be given priority over any other
civil action before the court, except actions in which trial is in
progress, and shall be docketed immediately upon filing. Any
appeal to the circuit court of a magistrate's judgment on a
petition for relief under this article shall be heard within ten
working days of the filing of the appeal.
(e)
Full faith and credit. -- Any temporary or final
protective order issued pursuant to this article shall be effective
throughout the state in every county. Any protective order issued
by any other state, territory or possession of the United States,
Puerto Rico, the District of Columbia or Indian tribe shall be
accorded full faith and credit and enforced as if it were an order
of this state whether or not such relief is available in this
state. A protective order from another jurisdiction is presumed to
be valid if the order appears authentic on its face and shall be
enforced in this state. If the validity of the order is contested,
the court or law enforcement to which the order is presented shall,
prior to the final hearing, determine the existence, validity and
terms of such order in the issuing jurisdiction. A protective
order from another jurisdiction may be enforced even if the order
is not entered into the state law-enforcement information system
described by section twelve of this article.
(f)
Service by publication. -- A protective order may be
served on the respondent by means of a Class I legal advertisement
published notice, with the publication area being the county in
which the respondent resides, published in accordance with the provisions of section two, article three, chapter fifty-nine of
this code if: (I) The petitioner files an affidavit with the court
stating that an attempt at personal service pursuant to rule four
of the West Virginia rules of civil procedure has been unsuccessful
or evidence is adduced at the hearing for the protective order that
the respondent has left the state of West Virginia; and (ii) a copy
of the order is mailed by certified or registered mail to the
respondent at the respondent's last known residence and returned
undelivered.
§48-2A-6. Protective orders.
(a) At the conclusion of the hearing, if the petitioner has
proven the allegations of domestic or family violence, or that he
or she reported or witnessed domestic or family violence against
another and has, as a result, been abused, threatened, harassed or
has been the subject of other actions to attempt to intimidate him
or her, by a preponderance of the evidence, the court shall issue
a protective order directing the respondent to refrain from
abusing, harassing, stalking, threatening or otherwise intimidating
the petitioner, the person who reported or witnessed family or
domestic violence or the minor children, or engaging in other
conduct that would place the petitioner, the person who reported or
witnessed family or domestic violence or the minor children in
reasonable fear of bodily injury. Where the respondent is present
at the hearing and elects not to contest the allegations of
domestic or family violence or does not contest the relief sought,
the petitioner is not required to adduce evidence and prove the allegations of domestic or family violence and the court may
directly address the issues of the relief requested.
(b) Where the petitioner is the victim of domestic or family
violence, the terms of a protective order may include:
(1) Granting possession to the petitioner of the residence or
household jointly resided in at the time the abuse occurred;
(2) Awarding temporary custody of or establishing temporary
visitation rights with regard to minor children named in the order;
(3) Establishing terms of temporary visitation with regard to
the minor children named in the order including, but not limited
to, requiring third party supervision of visitations if necessary
to protect the petitioner and/or the minor children;
(4) Ordering the noncustodial parent to pay to the custodial
parent a sum for temporary support and maintenance of the
petitioner and children, if any;
(5) Ordering the respondent to pay to the petitioner a sum for
temporary support and maintenance of the petitioner, where
appropriate;
(6) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or
household or family members for the purpose of violating the
protective order;
(7) Ordering the respondent to participate in an intervention
program for perpetrators;
(8) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the petitioner;
(9) Providing for either party to obtain personal property or
other items from a location, including granting temporary
possession of motor vehicles owned by either or both of the
parties, and providing for the safety of the parties while this
occurs, including ordering a law-enforcement officer to accompany
one or both of the parties;
(10) Prohibiting the respondent from using or possessing a
firearm or other weapon, notwithstanding the fact that the
respondent has a valid license to possess such firearm or other
weapon;
(11) Informing the respondent that possession of a firearm
while subject to a protective order is a violation of federal law;
(12) Ordering the respondent to reimburse the petitioner or
other person for any expenses incurred as a result of the domestic
or family violence, including, but not limited to, medical
expenses, transportation and shelter; and
(13) Ordering the petitioner and respondent to refrain from
transferring, conveying, alienating, encumbering, or otherwise
dealing with property which could otherwise be subject to the
jurisdiction of the court or another court in an action for divorce
or support, partition or in any other action affecting their
interests in property.
(c) Where the petitioner or other person to be protected
reported or was a witness to the family or domestic violence, the
terms of a protective order may include:
(1) Ordering the respondent to refrain from abusing,
contacting, telephoning, communicating, harassing, verbally abusing
or otherwise intimidating the petitioner or other person to be
protected;
(2) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or other
person to be protected, for the purpose of violating the protective
order.
(d) Except as otherwise provided by subsection (d), section
three-a of this article, a final protective order issued by a
magistrate, family law master or circuit judge pursuant to this
article or subdivision (13), subsection (a), article two of this
chapter, is effective for either ninety days or one hundred eighty
days, in the discretion of the court. If the court enters an
order for a period of ninety days, upon receipt of a written
request from the petitioner prior to the expiration of the
ninety-day period, the court shall extend its order for an
additional ninety-day period.
(e) To be effective, a written request to extend an order from
ninety days to one hundred eighty days must be submitted to the
court prior to the expiration of the original ninety-day period.
A notice of the extension shall be sent by the clerk of the court
to the respondent by first class mail, addressed to the last known
address of the respondent as indicated by the court's case filings.
The extension of time is effective upon mailing of the notice.
(f) The court may amend the terms of a protective order at any time upon subsequent petition filed by either party. The
protective order shall be in full force and effect in every county
of this state and shall so state.
(g) No order under this article shall in any manner affect
title to any real property.
(h) Certified copies of any order or extension notice made
under the provisions of this section shall be issued to the
petitioner, the respondent and any law-enforcement agency having
jurisdiction to enforce the order, including the city police, the
county sheriff's office or local office of the West Virginia state
police within twenty-four hours of the entry of the order.
(i) Mutual protective orders are prohibited unless both
parties have filed a petition under section four of this article
and have proven the allegations of domestic or family violence by
a preponderance of the evidence. This shall not prevent other
persons, including the respondent, from filing a separate petition.
The court may consolidate two or more petitions if he or she
determines that consolidation will further the interests of justice
and judicial economy. The court shall enter a separate order for
each petition filed.
(j) Any protective order issued pursuant to this article shall
contain on its face the following statement, printed in bold faced
type or in capital letters:
"
VIOLATION OF THIS ORDER MAY BE PUNISHED BY CONFINEMENT IN A
REGIONAL OR COUNTY JAIL FOR AS LONG AS ONE YEAR AND BY A FINE OF AS
MUCH AS TWO THOUSAND DOLLARS"
(k) Any person against whom a protective order is issued
after a full hearing pursuant to this section shall be assessed a
fee of twenty-five dollars, payable to the family court fund
established pursuant to section twenty-three, article four, chapter
forty-eight-a of this code.
ARTICLE 11. ALLOCATION OF CUSTODIAL AND DECISION-MAKING
RESPONSIBILITY FOR CHILDREN.
Part 1. Scope, objectives, Definitions and Parties.
§48-11-101. Scope of article; legislative findings and
declarations.
(a) This article sets forth principles governing the
allocation of custodial and decision-making responsibility for a
minor child when the parents do not live together.
(b) The Legislature finds and declares that it is the public
policy of this state to assure that the best interest of children
is the court's primary concern in allocating custodial and
decision-making responsibilities between parents who no longer live
together. In furtherance of this policy, the Legislature declares
that a child's best interest will be served by assuring that minor
children have frequent and continuing contact with parents who have
shown the ability to act in the best interest of their children, to
educate parents on their rights and responsibilities and the effect
their separation may have on children, to encourage mediation of
disputes, and to encourage parents to share in the rights and
responsibilities of rearing their children after the parents have separated or divorced.
§48-11-102. Objectives; best interests of the child defined.
(a) The primary objective of this article is to serve the
child's best interests, by facilitating:
(1) Stability of the child;
(2) Parental planning and agreement about the child's
custodial arrangements and upbringing;
(3) Continuity of existing parent-child attachments;
(4) Meaningful contact between a child and each parent;
(5) Caretaking relationships by adults who love the child,
know how to provide for the child's needs, and who place a high
priority on doing so;
(6) Security from exposure to physical or emotional harm; and
(7) Expeditious, predictable decision-making and avoidance of
prolonged uncertainty respecting arrangements for the child's care
and control.
(b) A secondary objective of article is to achieve fairness
between the parents.
§48-11-103. Parties to an action under this article.
(1) Persons who have a right to be notified of and participate
as a party in an action filed by another are:
(a) A legal parent of the child, as defined in section one,
article two of this chapter; or
(b) An adult allocated custodial responsibility or decision- making responsibility under a parenting plan regarding the child
that is then in effect.
(2) In exceptional cases the court may, in its discretion,
grant permission to intervene to other persons or public agencies
whose participation in the proceedings under this article it
determines is likely to serve the child's best interests. The
court may place limitations on participation by the intervening
party as the court determines to be appropriate. Such persons or
public agencies do not have standing to initiate an action under
this article.
§48-11-104. Parent education classes.
(a) A circuit court shall, by administrative rule or order,
and with the approval of the supreme court of appeals, designate an
organization or agency to establish and operate education programs
designed for parents who have filed an action for divorce,
paternity, support or separate maintenance and who have minor
children. The education programs shall be designed to instruct and
educate parents about the effects of divorce and custody disputes
on their children and to teach parents ways to help their children
and minimize their trauma.
(b) The circuit court shall issue an order requiring parties
to an action for divorce involving a minor child or children to
attend parental education classes established pursuant to
subsection (a) of this section unless the court determines that
attendance is not appropriate or necessary based on the conduct or
circumstances of the parties. The court may, by order, establish
sanctions for failure to attend. The court may also order parties
to an action involving paternity, separate maintenance or modification of a divorce decree to attend such classes.
(c) The circuit court may require that each person attending
a parental education class pay a fee, not to exceed twenty-five
dollars, to the clerk of such court to defray the cost of materials
and of hiring teachers:
Provided, That where it is determined that
a party is indigent and unable to pay for such classes, the court
shall waive the payment of the fee for such party. The clerk of
the circuit court shall, on or before the tenth day of each month,
transmit all fees collected under this subsection to the state
treasurer for deposit in the state treasury to the credit of
special revenue fund to be known as the "parental education fund",
which is hereby created. All moneys collected and received under
this subsection and paid into the state treasury and credited to
the "parental education fund" shall be used by the administrative
office of the supreme court of appeals solely for reimbursing the
provider of parental education classes for the costs of materials
and of providing such classes. Such moneys shall not be treated by
the auditor and treasurer as part of the general revenue of the
state.
(d) The administrative office of the supreme court of appeals
shall submit a report to the joint committee on government and
finance summarizing the effectiveness of any program of parent
education no later than two years from the initiation of the
program.
Part 2. Parenting plans.
§48-11-201. Parental agreements.
(a) If the parents agree to one or more provisions of a
parenting plan, the court shall so order, unless it makes specific
findings that:
(1) The agreement is not knowing or voluntary, or
(2) The plan would be harmful to the child.
(b) The court, at its discretion and on any basis it deems
sufficient, may conduct an evidentiary hearing to determine whether
there is a factual basis for a finding under subdivision (1) or
(2), subsection (a) of this section. When there is credible
information that child abuse as defined by section three, article
one, chapter forty-nine of this code or domestic violence as
defined by section two, article two-a, chapter forty-eight-a of
this code has occurred, a hearing is mandatory and if the court
determines that abuse has occurred, appropriate protective measures
shall be ordered.
(c) If an agreement, in whole or in part, is not accepted by
the court under the standards set forth in subsection (a) of this
section, the court shall allow the parents the opportunity to
negotiate another agreement.
§48-11-202. Court ordered services.
(a) (1) The court shall inform the parents, or require them to
be informed, about:
(A) How to prepare a parenting plan;
(B) The impact of family dissolution on children and how the
needs of children facing family dissolution can best be addressed;
(C) The impact of domestic abuse on children, and resources for addressing domestic abuse; and
(D) Mediation or other nonjudicial procedures designed to help
them achieve an agreement.
(2) The court shall require the parents to attend parental
education classes.
(3) If parents are unable to resolve issues and agree to a
parenting plan, the court shall require mediation.
(b) The court shall not order services under subsection (a) of
this section that require a parent to have face-to-face meetings
with the other parent if credible evidence of domestic violence
exists.
(c) A mediator shall not conduct a mediation, even by parental
agreement, without first screening for domestic violence. If
credible evidence thereof exists, the mediator shall take steps:
(1) To ensure the voluntary consent of the victim of the abuse
to participate in the mediation, and to any agreement reached as a
result of the mediation; and
(2) To protect the safety of the victim.
(d) A mediator shall not make a recommendation to the court
and may not reveal information that either parent has disclosed
during mediation under a reasonable expectation of confidentiality,
except that a mediator may reveal to the court credible information
that he or she has received concerning domestic violence or child
abuse.
(e) Services authorized under subsection (a) of this section
shall be ordered at a cost that is reasonable in light of the financial circumstances of each parent. Where one parent's ability
to pay for such services is significantly greater than the other,
the court may order that parent to pay some or all of the expenses
of the other.
§48-11-203. Proposed temporary parenting plan; temporary order;
amendment; vacation of order.
(a) A parent seeking a temporary order relating to parenting
shall file and serve a proposed temporary parenting plan by motion.
The other parent, if contesting the proposed temporary parenting
plan, shall file and serve a responsive proposed parenting plan.
Either parent may move to have a proposed temporary parenting plan
entered as part of a temporary order. The parents may enter an
agreed temporary parenting plan at any time as part of a temporary
order. The proposed temporary parenting plan may be supported by
relevant evidence and shall be verified and shall state at a
minimum the following:
(1) The name, address and length of residence with the person
or persons with whom the child has lived for the preceding twelve
months;
(2) The performance by each parent during the last twelve
months of the parenting functions relating to the daily needs of
the child;
(3) The parents' work and child-care schedules for the
preceding twelve months;
(4) The parents' current work and child-care schedules; and
(5) Any of the circumstances set forth in section two hundred nine of this article that are likely to pose a serious risk to the
child and that warrant limitation on the award to a parent of
temporary residence or time with the child pending entry of a
permanent parenting plan.
(b) At the hearing, the court shall enter a temporary
parenting order incorporating a temporary parenting plan which
includes:
(1) A schedule for the child's time with each parent when
appropriate;
(2) Designation of a temporary residence for the child;
(3) Allocation of decision-making authority, if any. Absent
allocation of decision-making authority consistent with section two
hundred seven of this article, neither party shall make any
decision for the child other than those relating to day-to-day or
emergency care of the child, which shall be made by the party who
is present with the child;
(4) Provisions for temporary support for the child; and
(5) Restraining orders, if applicable.
(c) A parent may make a motion for an order to show cause and
the court may enter a temporary order, including a temporary
parenting plan, upon a showing of necessity.
(d) A parent may move for amendment of a temporary parenting
plan, and the court may order amendment to the temporary parenting
plan, if the amendment conforms to the limitations of section two
hundred nine of this article and is in the best interest of the
child.
§48-11-204. Criteria for temporary parenting plan.
(a) After considering the affidavit required by section two
hundred three of this article and other relevant evidence
presented, the court shall make a temporary parenting plan that is
in the best interest of the child. In making this determination,
the court shall give particular consideration to:
(1) Which parent has taken greater responsibility during the
last twelve months for performing caretaking functions relating to
the daily needs of the child; and
(2) Which parenting arrangements will cause the least
disruption to the child's emotional stability while the action is
pending.
(b) The court shall also consider the factors used to
determine residential provisions in the permanent parenting plan.
§48-11-205. Permanent parenting plan.
(a) A party seeking a judicial allocation of custodial
responsibility or decision-making responsibility under this article
shall file a proposed parenting plan with the court. Parties may
file a joint plan. A proposed plan shall be verified and shall
state, to the extent known or reasonably discoverable by the filing
party or parties:
(1) The name, address and length of residence of any adults
with whom the child has lived for one year or more, or in the case
of a child less than one year old, any adults with whom the child
has lived since the child's birth;
(2) The name and address of each of the child's parents and any other individuals with standing to participate in the action
under section one hundred three of this article;
(3) A description of the allocation of caretaking and other
parenting responsibilities performed by each person named in
subdivisions (1) and (2) of this subsection during the twenty-four
months preceding the filing of an action under this article;
(4) A description of the work and child-care schedules of any
person seeking an allocation of custodial responsibility, and any
expected changes to these schedules in the near future;
(5) A description of the child's school and extracurricular
activities;
(6) A description of any of the limiting factors as described
in two hundred nine of this article that are present, including any
restraining orders against either parent to prevent domestic or
family violence, by case number and jurisdiction;
(7) Required financial information; and
(8) A description of the known areas of agreement and
disagreement with any other parenting plan submitted in the case.
The court shall maintain the confidentiality of any
information required to be filed under this section when the person
giving that information has a reasonable fear of domestic abuse and
disclosure of the information would increase that fear.
(b) The court shall develop a process to identify cases in
which there is credible information that child abuse or neglect, as
defined in section three, article one, chapter forty-nine of this
code, or domestic or family violence as defined in section one hundred twenty-one, article two of this chapter has occurred. The
process shall include assistance for possible victims of domestic
abuse in complying with subdivision (6), subsection (a) of this
section, and referral to appropriate resources for safe shelter,
counseling, safety planning, information regarding the potential
impact of domestic abuse on children, and information regarding
civil and criminal remedies for domestic abuse. The process shall
also include a system for ensuring that jointly submitted parenting
plans that are filed in cases in which there is credible
information that child abuse or domestic abuse has occurred receive
the court review that is mandated by subdivision (b), section two
hundred one of this article.
(c) Upon motion of a party and after consideration of the
evidence, the court shall order a parenting plan consistent with
the provisions of section two hundred six through two hundred nine
of this article, containing:
(1) A provision for the child's living arrangements and each
parent's custodial responsibility, which shall include either:
(A) A custodial schedule that designates in which parent's
home each minor child will reside on given days of the year; or
(B) A formula or method for determining such a schedule in
sufficient detail that, if necessary, the schedule can be enforced
in subsequent proceedings by the court;
(2) An allocation of decision-making responsibility as to
significant matters reasonably likely to arise with respect to the
child; and
(3) A provision consistent with section two hundred two of
this article for resolution of disputes that arise under the plan,
and remedies for violations of the plan.
(d) A parenting plan may, at the court's discretion, contain
provisions that address matters that are expected to arise in the
event of a party's relocation, or provide for future modifications
in the parenting plan if specified contingencies occur.
(e) The court may order a temporary allocation of custodial
responsibility or decision-making responsibility as the court
determines is in the child's best interests, considering the
factors in section two hundred six and two hundred seven of this
article. Such an order ordinarily should not preclude access to
the child by a parent who has been exercising a reasonable share of
parenting functions. Upon credible evidence of one or more of the
circumstances set forth in subsection (a) section two hundred nine
of this article, the court shall issue a temporary order limiting
or denying access to the child as required by that section, in
order to protect the child or the other party, pending adjudication
of the underlying facts.
(f) Expedited procedures shall be instituted to facilitate the
prompt issuance of a parenting plan.
§48-11-206. Allocation of custodial responsibility.
(a) Unless otherwise resolved by agreement of the parents
under section two hundred one of this article or unless manifestly
harmful to the child, the court shall allocate custodial
responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each
parent spent performing caretaking functions for the child prior to
the parents' separation or, if the parents never lived together,
before the filing of the action, except to the extent required
under section two hundred nine of this article or necessary to
achieve any of the following objectives:
(1) To permit the child to have a relationship with each
parent who has performed a reasonable share of parenting functions;
(2) To accommodate the firm and reasonable preferences of a
child who is fourteen years of age or older, and with regard to a
child under fourteen years of age, but sufficiently matured that he
or she can intelligently express a voluntary preference for one
parent, to give that preference such weight as circumstances
warrant;
(3) To keep siblings together when the court finds that doing
so is necessary to their welfare;
(4) To protect the child's welfare when, under an otherwise
appropriate allocation, the child would be harmed because of a
gross disparity in the quality of the emotional attachments between
each parent and the child or in each parent's demonstrated ability
or availability to meet a child's needs;
(5) To take into account any prior agreement of the parents
that, under the circumstances as a whole including the reasonable
expectations of the parents in the interest of the child, would be
appropriate to consider;
(6) To avoid an allocation of custodial responsibility that would be extremely impractical or that would interfere
substantially with the child's need for stability in light of
economic, physical, or other circumstances, including the distance
between the parents' residences, the cost and difficulty of
transporting the child, the parents' and child's daily schedules,
and the ability of the parents to cooperate in the arrangement; and
(7) To apply the principles set forth in subsection (d),
section four hundred three of this article if one parent relocates
or proposes to relocate at a distance that will impair the ability
of a parent to exercise the amount of custodial responsibility that
would otherwise be ordered under this section.
(b) In determining the proportion of caretaking functions each
parent previously performed for the child under subsection (a) of
this section, the court shall not consider the divisions of
functions arising from temporary arrangements after separation,
whether those arrangements are consensual or by court order. The
court may take into account information relating to the temporary
arrangements in determining other issues under this section.
(c) If the court is unable to allocate custodial
responsibility under subsection (a) of this section because the
allocation under that subsection would be manifestly harmful to the
child, or because there is no history of past performance of
caretaking functions, as in the case of a newborn, or because the
history does not establish a pattern of caretaking sufficiently
dispositive of the issues of the case, the court shall allocate
custodial responsibility based on the child's best interest, taking into account the factors in considerations that are set forth in
this section and in section two hundred nine and subsection (d),
section four hundred three of this article and preserving to the
extent possible this section's priority on the share of past
caretaking functions each parent performed.
(d) In determining how to schedule the custodial time
allocated to each parent, the court shall take account of the
economic, physical and other practical circumstances such as those
listed in subdivision (6), subsection (a) of this section.
§48-11-207. Allocation of significant decision-making
responsibility.
(a) Unless otherwise resolved by agreement of the parents
under section two hundred one of this article, the court shall
allocate responsibility for making significant life decisions on
behalf of the child, including the child's education and health
care, to one parent or to two parents jointly, in accordance with
the child's best interest, in light of:
(1) The allocation of custodial responsibility under section
two hundred six of this article;
(2) The level of each parent's participation in past decision- making on behalf of the child;
(3) The wishes of the parents;
(4) The level of ability and cooperation the parents have
demonstrated in decision-making on behalf of the child;
(5) Prior agreements of the parties; and
(6) The existence of any limiting factors, as set forth in section two hundred nine of this article.
(b) If each of the child's legal parents has been exercising
a reasonable share of parenting functions for the child, the court
shall presume that an allocation of decision-making responsibility
to both parents jointly is in the child's best interests. The
presumption is overcome if there is a history of domestic abuse, or
by a showing that joint allocation of decision-making
responsibility is not in the child's best interest.
(c) Unless otherwise provided or agreed by the parents, each
parent who is exercising custodial responsibility shall be given
sole responsibility for day-to-day decisions for the child, while
the child is in that parent's care and control, including emergency
decisions affecting the health and safety of the child.
(d) Even if a legal parent is not allocated decision-making
responsibility under this section, a legal parent shall have access
to school and health-care records concerning the child to which
legal parents have access by other law, except insofar as access is
not in the child's best interests or where the provision of such
information might endanger a parent who has been the victim of
domestic abuse.
§48-11-208. Criteria for parenting plan; dispute resolution.
(a) If provisions for resolving parental disputes are not
ordered by the court pursuant to parental agreement under section
two hundred one of this article, the court shall order a method of
resolving disputes that serves the child's best interest in light
of:
(1) The parents' wishes and the stability of the child;
(2) Circumstances, including, but not limited to, financial
circumstances, that may affect the parents ability to participate
in a prescribed dispute resolution process; and
(3) The existence of any limiting factor, as set forth in
section two hundred nine of this article.
(b) The court may order a nonjudicial process of dispute
resolution, by designating with particularity the person or agency
to conduct the process or the method for selecting such a person or
agency. The disposition of a dispute through a non-judicial method
of dispute resolution that has been ordered by the court without
prior parental agreement is subject to de novo judicial review. If
the parents have agreed in a parenting plan or by agreement
thereafter to a binding resolution of their dispute by nonjudicial
means, a decision by such means is binding upon the parents and
must be enforced by the court, unless it is shown to be contrary to
the best interests of the child, beyond the scope of the parents'
agreement, or the result of fraud, misconduct, corruption or other
serious irregularity.
(c) This section is subject to the limitations imposed by
section two hundred two of this article.
§48-11-209. Parenting plan; limiting factors.
(a) If either of the parents so requests, or upon receipt of
credible information thereof, the court shall determine whether a
parent who would otherwise be allocated responsibility under a
parenting plan:
(1) Has abused, neglected, or abandoned a child, as defined by
state law;
(2) Has inflicted domestic violence, as defined in section
two, article two-a, chapter forty-eight of this code;
(3) Has interfered persistently with the other parent's access
to the child, except in the case of actions taken for the purpose
of protecting the safety of the child or the interfering parent or
another family member, pending adjudication of the facts underlying
that belief; or
(4) Has made a false report of domestic violence or child
abuse.
(b) If a parent is found to have engaged in any activity
specified by subsection (a) of this section, the court shall impose
limits that are reasonably calculated to protect the child or
child's parent from harm. The limitations that the court shall
consider include, but are not limited to:
(1) An adjustment of the custodial responsibility of the
parents, including the allocation of exclusive custodial
responsibility to one of them;
(2) Supervision of the custodial time between a parent and the
child;
(3) Exchange of the child between parents through an
intermediary, or in a protected setting;
(4) Restraints on the parent from communication with or
proximity to the other parent or the child;
(5) A requirement that the parent abstain from possession or consumption of alcohol or nonprescribed drugs while exercising
custodial responsibility and in the twenty-four hour period
immediately preceding such exercise;
(6) Denial of overnight custodial responsibility;
(7) Restrictions on the presence of specific persons while the
parent is with the child;
(8) A requirement that the parent post a bond to secure return
of the child following a period in which the parent is exercising
custodial responsibility or to secure other performance required by
the court;
(9) A requirement that the parent complete a program of
intervention for perpetrators of domestic violence, for drug or
alcohol abuse, or program designed to correct another factor; or
(10) Any other constraints or conditions that the court deems
necessary to provide for the safety of the child, a child's parent,
or any person whose safety immediately affects the child's welfare.
(c) If a parent is found to have engaged in any activity
specified in subsection (a) of this section, the court may not
allocate custodial responsibility or decision-making responsibility
to that parent without making special written findings that the
child and other parent can be adequately protected from harm by
such limits as it may impose under subsection (b) of this section.
The parent found to have engaged in the behavior specified in
subsection (a) of this section has the burden of proving that an
allocation of custodial responsibility or decision-making
responsibility to that parent will not endanger the child or the other parent.
Part 3. Fact finding.
§48-11-301. Court-ordered investigation.
(a) In its discretion, the court may order a written
investigation and report to assist it in determining any issue
relevant to proceedings under this article. The investigation and
report may be made by the guardian ad litem, the staff of the
court, or other professional social service organization
experienced in counseling children and families. The court shall
specify the scope of the investigation or evaluation and the
authority of the investigator.
(b) In preparing the report concerning a child, the
investigator may consult any person who may have information about
the child and the potential parenting or custodian arrangements.
Upon order of the court, the investigator may refer the child to
professional personnel for diagnosis. The investigator may consult
with and obtain information from medical, psychiatric or other
expert persons who have served the child in the past without
obtaining the consent of the parent or the child's custodian; but
the child's consent must be obtained if the child has reached the
age of twelve, unless the court finds that the child lacks mental
capacity to consent. If the requirements of subsection (c) of this
section are fulfilled, the investigator's report may be received in
evidence at the hearing.
(c) The investigator shall mail the investigator's report to
counsel and to any party not represented by counsel at least ten days prior to the hearing unless a shorter time is ordered by the
court for good cause shown. The investigator shall make available
to counsel and to any party not represented by counsel the
investigator's file of underlying data and reports, complete texts
of diagnostic reports made to the investigator pursuant to the
provisions of subsection (b) of this section, and the names and
addresses of all persons whom the investigator has consulted. Any
party to the proceeding may call the investigator and any person
whom the investigator has consulted for cross-examination. A party
may not waive the right of cross-examination prior to the hearing.
(e) Services and tests ordered under this section shall be
ordered only if at no cost to the individuals involved, or at a
cost that is reasonable in light of the available financial
resources.
§48-11-302. Appointment of guardian.
(a) In its discretion, the court may appoint a guardian ad
litem to represent the child's best interests. The court shall
specify the terms of the appointment, including the guardian's
role, duties and scope of authority.
(b) In its discretion, the court may appoint a lawyer to
represent the child, if the child is competent to direct the terms
of the representation and court has a reasonable basis for finding
that the appointment would be helpful in resolving the issues of
the case. The court shall specify the terms of the appointment,
including the lawyer's role, duties and scope of authority.
(c) When substantial allegations of domestic abuse have been made, the court shall order an investigation under section three
hundred one of this article or make an appointment under subsection
(a) or (b) of this section, unless the court is satisfied that the
information necessary to evaluate the allegations will be
adequately presented to the court without such an order or
appointment.
(d) Subject to whatever restrictions the court may impose or
that may be imposed by the attorney-client privilege or by
subsection (d), section two hundred two of this article, the court
may require the child or parent to provide information to an
individual or agency appointed by the court under section three
hundred one of this article or subsection (a) or (b) of this
section, and it may require any person having information about the
child or parent to provide that information, even in the absence of
consent by a parent or by the child, except if the information is
otherwise protected by law.
(e) The investigator who submits a report or evidence to the
court that has been requested under section three hundred one of
this article and a guardian ad litem appointed under subsection (a)
of this section who submits information or recommendations to the
court are subject to cross-examination by the parties. A lawyer
appointed under subsection (b) of this section may not be a witness
in the proceedings, except as allowed under standards applicable in
other civil proceedings.
(f) Services and tests ordered under this section shall be
ordered only if at no cost to the individuals involved, or at a cost that is reasonable in light of the available financial
resources.
§48-11-303. Interview of the child by the court.
The court, in its discretion, may interview the child in
chambers or direct another person to interview the child, in order
to obtain information relating to the issues of the case. A parent
or counsel for a parent or for the child shall be permitted to
submit questions to the court that may be asked of the child if the
court approves. A transcript, videotape or other reliable means of
recording the complete interview shall be made part of the record
of the proceedings, and shall be confidential except for purposes
of appeal of the court's order.
Part 4. Modification of parenting plan.
§48-11-401. Modification upon showing of changed circumstances or
harm.
(a) Except as provided in section four hundred two or four
hundred three of this article, a court shall modify a parenting
plan order if it finds, on the basis of facts that were not known
or have arisen since the entry of the prior order and were not
anticipated therein, that a substantial change has occurred in the
circumstances of the child or of one or both parents and a
modification is necessary to serve the best interests of the child.
(b) In exceptional circumstances, a court may modify a
parenting plan if it finds that the plan is not working as
contemplated and in some specific way is manifestly harmful to the
child, even if a substantial change of circumstances has not occurred.
(c) Unless the parents have agreed otherwise, the following
circumstances do not justify a significant modification of a
parenting plan except where harm to the child is shown:
(1) Circumstances resulting in an involuntary loss of income,
by loss of employment or otherwise, affecting the parents economic
status;
(2) A parent's remarriage or cohabitation; and
(3) Choice of reasonable caretaking arrangements for the child
by a legal parent, including the child's placement in day care.
(d) For purposes of subsection (a) of this section, the
occurrence or worsening of a limiting factor, as defined in
subsection (a), section two hundred nine of this article, after a
parenting plan has been ordered by the court, constitutes a
substantial change of circumstances and measures shall be ordered
pursuant to section two hundred nine of this article to protect the
child or the child's parent.
§48-11-402. Modification without showing of changed circumstances.
(a) The court shall modify a parenting plan in accordance with
a parental agreement, unless it finds that the agreement is not
knowing and voluntary or that it would be harmful to the child.
(b) The court may modify any provisions of the parenting plan
without the showing of change circumstances required by subsection
(a), section four hundred one of this article if the modification
is in the child's best interests, and the modification:
(1) Reflects the de facto arrangements under which the child has been receiving care from the petitioner, without objection, in
substantial deviation from the parenting plan, for the preceding
six months before the petition for modification is filed, provided
the arrangement is not the result of a parent's acquiescence
resulting from the other parent's domestic abuse;
(2) Constitutes a minor modification in the plan; or
(3) Is necessary to accommodate the reasonable and firm
preferences of a child who has attained the age of fourteen.
(c) Evidence of a false report of domestic violence or child
abuse is admissible in a domestic relations action between the
involved parties when the allocation of custodial responsibilities
is in issue, and the false accusation may be a factor considered by
the court in making the allocation of custodial responsibilities.
§48-11-403. Relocation of a parent.
(a) The relocation of a parent constitutes a substantial
change in the circumstances under subsection (a) section four
hundred one of this article of the child only when it significantly
impairs either parent's ability to exercise responsibilities that
the parent has been exercising.
(b) Unless otherwise ordered by the court, a parent who has
responsibility under a parenting plan who changes, or intends to
change, residences for more than ninety days must give a minimum of
sixty days advance notice, or the most notice practicable under the
circumstances, to any other parent with responsibility under the
same parenting plan. Notice shall include:
(1) The relocation date;
(2) The address of the intended new residence;
(3) The specific reasons for the proposed relocation;
(4) A proposal for how custodial responsibility shall be
modified, in light of the intended move; and
(5) Information for the other parent as to how he or she may
respond to the proposed relocation or modification of custodial
responsibility.
Failure to comply with the notice requirements of this section
without good cause may be a factor in the determination of whether
the relocation is in good faith under subsection (d) of this
section, and is a basis for an award of reasonable expenses and
reasonable attorneys fees to another parent that are attributable
to such failure.
The supreme court of appeals shall make available through the
offices of the circuit clerks and the family court judges a form
notice that complies with the provisions of this subsection. The
supreme court of appeals shall promulgate procedural rules that
provide for an expedited hearing process to resolve issues arising
from a relocation or proposed relocation.
(c) When changed circumstances are shown under subsection (a)
of this section, the court shall, if practical, revise the
parenting plan so as to both accommodate the relocation and
maintain the same proportion of custodial responsibility being
exercised by each of the parents.
(d) When the relocation constituting changed circumstances
under subsection (a) of this section renders it impractical to maintain the same proportion of custodial responsibility as that
being exercised by each parent, the court shall modify the
parenting plan in accordance with the child's best interests and in
accordance with the following principles:
(1) A parent who has been exercising a significant majority of
the custodial responsibility for the child should be allowed to
relocate with the child so long as that parent shows that the
relocation is in good faith for a legitimate purpose and to a
location that is reasonable in light of the purpose. The
percentage of custodial responsibility that constitutes a
significant majority of custodial responsibility is seventy percent
or more. A relocation is for a legitimate purpose if it is to be
close to significant family or other support networks, for
significant health reasons, to protect the safety of the child or
another member of the child's household from significant risk of
harm, to pursue a significant employment or educational
opportunity, or to be with one's spouse who is established, or who
is pursuing a significant employment or educational opportunity, in
another location. The relocating parent has the burden of proving
of the legitimacy of any other purpose. A move with a legitimate
purpose is reasonable unless its purpose is shown to be
substantially achievable without moving, or by moving to a location
that is substantially less disruptive of the other parent's
relationship to the child.
(2) If a relocation of the parent is in good faith for
legitimate purpose and to location that is reasonable in light of the purpose, and if neither has been exercising a significant
majority of custodial responsibility for the child, the court shall
reallocate custodial responsibility based on the best interest of
the child, taking into account all relevant factors including the
effects of the relocation on the child.
(3) If a parent does not establish that the purpose for that
parent's relocation is in good faith for a legitimate purpose into
a location that is reasonable in light of the purpose, the court
may modify the parenting plan in accordance with the child's best
interests and the effects of the relocation on the child. Among
the modifications the court may consider is a reallocation of
primary custodial responsibility, effective if and when the
relocation occurs, but such a reallocation shall not be ordered if
the relocating parent demonstrates that the child's best interests
would be served by the relocation.
(4) The court shall attempt to minimize impairment to a
parent-child relationship caused by a parent's relocation through
alternative arrangements for the exercise of custodial
responsibility appropriate to the parents' resources and
circumstances and the developmental level of the child.
(e) In determining the proportion of caretaking functions
each parent previously performed for the child under the parenting
plan before relocation, the court shall not consider a division of
functions arising from any arrangements made after a relocation but
before a modification hearing on the issues related to relocation.
Part 5. Enforcement of parenting plans.
§48-11-501. Enforcement of parenting plans.
(a) If, upon a parental complaint, the court finds a parent
intentionally and without good cause violated a provision of the
court-ordered parenting plan, it shall enforce the remedy specified
in the plan or, if no remedies are specified or they are clearly
inadequate, it shall find the plan has been violated and order an
appropriate remedy, which may include:
(1) In the case of interference with the exercise of custodial
responsibility for a child by the other parent, substitute time for
that parent to make up for time missed with the child;
(2) In the case of missed time by a parent, costs in
recognition of lost opportunities by the other parent, in child
care costs and other reasonable expenses in connection with the
missed time;
(3) A modification of the plan, if the requirements for a
modification are met under sections two hundred nine, four hundred
one, four hundred two or four hundred three of this article,
including an adjustment of the custodial responsibility of the
parents or an allocation of exclusive custodial responsibility to
one of them;
(4) An order that the parent who violated the plan obtain
appropriate counseling;
(5) A civil penalty, in an amount of not more than one
hundred dollars for a first offense, not more than five hundred
dollars for a second offense, or not more than one thousand dollars
for a third or subsequent offense, to be paid to the parental education fund as established under section one hundred four of
this article;
(6) Court costs, reasonable attorney's fees, and any other
reasonable expenses in enforcing the plan; and
(7) Any other appropriate remedy.
(b) Except as provided in a jointly submitted plan that has
been ordered by the court, obligations established in a parenting
plan are independent obligations, and it is not a defense to an
action under this section by one parent that the other parent
failed to meet obligations under a parenting plan or child support
order.
(c) An agreement between the parents to depart from the
parenting plan can be a defense to a claim that the plan has been
violated, even though the agreement was not made part of a court
order, but only as to acts or omissions consistent with the
agreement that occur before the agreement is disaffirmed by either
parent.
Part 6. Miscellaneous provisions.
§48-11-601. Access to a child's records.
(a) (1) Each parent has full and equal access to a child's
educational records absent a court order to the contrary. Neither
parent may veto the access requested by the other parent.
Educational records are academic, attendance, and disciplinary
records of public and private schools in all grades kindergarten
through twelve and any form of alternative school. Educational
records are any and all school records concerning the child that would otherwise be properly released to the primary custodial
parent, including, but not limited to, report cards and progress
reports, attendance records, disciplinary reports, results of the
child's performance on standardized tests and statewide tests and
information on the performance of the school that the child attends
on standardized statewide tests; curriculum materials of the class
or classes in which the child is enrolled; names of the appropriate
school personnel to contact if problems arise with the child;
information concerning the academic performance standards,
proficiencies, or skills their child is expected to accomplish;
school rules, attendance policies, dress codes, and procedures for
visiting the school; and information about any psychological
testing the school does involving their child;
(2) In addition to the right to receive school records, the
nonresidential parent has the right to participate as a member of
a parent advisory committee or any other organization comprised of
parents of children at the school that the child attends.
(3) The nonresidential parent or noncustodial parent has the
right to question anything in the child's record that the parent
feels is inaccurate or misleading or is an invasion of privacy and
to receive a response from the school.
(4) Each parent has a right to arrange appointments for
parent-teacher conferences absent a court order to the contrary.
Neither parent can be compelled against their will to exercise this
right by attending conferences jointly with the other parent.
(b) (1) Each parent has full and equal access to a child's medical records absent a court order to the contrary. Neither
parent may veto the access requested by the other parent. If
necessary, either parent is required to authorize medical providers
to release to the other parent copies of any and all information
concerning medical care provided to the child which would otherwise
be properly released to either parent.
(2) If the child is in the actual physical custody of one
parent, that parent is required to promptly inform the other parent
of any illness of the child which requires medical attention.
(3) Each parent is required to consult with the other parent
prior to any elective surgery being performed on the child; and in
the event emergency medical procedures are undertaken for the child
which require the parental consent of either parent, if time
permits, the other parent shall be consulted, or if time does not
permit such consultation, the other parent shall be promptly
informed of the emergency medical procedures:
Provided, That
nothing contained herein alters or amends the law of this state as
it otherwise pertains to physicians or health care facilities
obtaining parental consent prior to providing medical care or
performing medical procedures.
(c) Each parent has full and equal access to a child's
juvenile court records, process and pleadings, absent a court order
to the contrary. Neither parent may veto any access requested by
the other parent. Juvenile court records are limited to those
records which are normally available to a parent of a child who is
a subject of the juvenile justice system.
§48-11-602. Designation of custody for the purpose of other state
and federal statutes.
Solely for the purposes of all other state and federal
statutes which require a designation or determination of custody,
a parenting plan shall designate the parent with whom the child is
scheduled to reside the majority of the time as the custodian of
the child. However, this designation shall not affect either
parent's rights and responsibilities under a parenting plan. In
the absence of such as designation, the parent with whom the child
is scheduled to reside the majority of the time shall be deemed to
be the custodian of the child for the purposes of such federal and
state statutes.
§48-11-603. Effect of enactment; operative dates.
(a) The enactment of this article during the regular session
of the Legislature, one thousand nine hundred ninety-nine, is
prospective in operation unless otherwise expressly indicated.
(b) The provisions of subsection two hundred two of this
article, insofar as they make parental education and mediation
mandatory, become operative on the first day of January, two
thousand. Until that date, parental education and mediation with
regard to custody issues are not mandatory unless made so under a
particular program or pilot project by rule or direction of the
supreme court of appeals or a circuit court.
(c) The provisions of this article that authorize a circuit
court in the absence of an agreement of the parents to order an
allocation of custodial responsibility and an allocation of significant decision-making responsibility, become operative on the
first day of January, two thousand, at which time the primary
caretaker doctrine shall be replaced with a system that allocates
custodial and decision-making responsibility to the parents in
accordance with this article.
(d) Persons who are parties to child custody order in
existence on the thirty-first day of December, one thousand nine
hundred ninety-nine, even without a change of circumstances, may
move for a modification of the order if the motion for modification
is made before the first day of January, two thousand one.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 1. GENERAL PROVISIONS.
§48A-1-3. Calculation of interest.
(a) If an obligation to pay interest arises under this chapter
, the rate of interest is that specified in section thirty-one,
article six, chapter fifty-six of this code. Interest shall accrue
only upon the outstanding principal of such obligation. On and
after the ninth day of June, one thousand nine hundred ninety-five,
this section shall be construed to permit the accumulation of
simple interest, and may not be construed to permit the compounding
of interest. Interest which accrued on unpaid installments
accruing before the ninth day of June, one thousand nine hundred
ninety-five, may not be modified by any court, irrespective of
whether such installment accrued simple or compound interest:
Provided, That unpaid installments upon which interest was
compounded before the effective date of this section shall accrue only simple interest thereon on and after the ninth day of June,
one thousand nine hundred ninety-five.
(b) Except as otherwise provided in this subsection,
prejudgment interest shall not be awarded in a domestic relations
action. The circuit court may only award prejudgment interest in
a domestic relations action against a party if the court finds, in
writing, that the party engaged in conduct that would violate
subsection (b), rule eleven of the West Virginia rules of civil
procedure. If prejudgment interest is awarded, the court shall
calculate prejudgment interest from the date the offending
representation was presented to the court.
ARTICLE 1A. DEFINITIONS.
§48A-1A-19. Gross income.
(a) "Gross income" means all earned and unearned income. The
word "income" means gross income unless the word is otherwise
qualified or unless a different meaning clearly appears from the
context. When determining whether an income source should be
included in the child support calculation, the court shall consider
the income source if it would have been available to pay child- rearing expenses had the family remained intact or, in cases
involving a nonmarital birth, if a household had been formed.
(b) "Gross income" includes, but is not limited to, the
following:
(1) Earnings in the form of salaries, wages, commissions,
fees, bonuses, profit sharing, tips and other income;
(2) Any payment from a pension plan, an insurance contract, an annuity, social security benefits, unemployment compensation,
supplemental employment benefits, workers' compensation benefits
and state lottery winnings and prizes;
(3) Interest, dividends or royalties;
(4) In kind payments such as business expense accounts,
business credit accounts, and tangible property such as automobiles
and meals, to the extent that they provide the parent with property
or services he or she would otherwise have to provide:
Provided,
That reimbursement of actual expenses incurred and documented shall
not be included as gross income.
(5) Attributed income of the parent, calculated in accordance
with the provisions of section three, article one-a of this
chapter;
(6) An amount equal to fifty percent of the average
compensation paid for personal services as overtime compensation
during the preceding thirty-six months:
Provided, That overtime
compensation may be excluded from gross income if the parent with
the overtime income demonstrates to the court that the overtime
work is voluntarily performed and that he or she did not have a
previous pattern of working overtime hours prior to separation or
the birth of a nonmarital child;
(7) Income from self-employment or the operation of a
business, minus ordinary and necessary expenses which are not
reimbursable, and which are lawfully deductible in computing
taxable income under applicable income tax laws, and minus FICA and
medicare contributions made in excess of the amount that would be paid on an equal amount of income if the parent was not
self-employed:
Provided, That the amount of monthly income to be
included in gross income shall be determined by averaging the
income from such employment during the previous thirty-six-month
period or during a period beginning with the month in which the
parent first received such income, whichever period is shorter;
(8) Income from seasonal employment or other sporadic sources:
Provided, That the amount of monthly income to be included in gross
income shall be determined by averaging the income from seasonal
employment or other sporadic sources received during the previous
thirty-six-month period or during a period beginning with the month
in which the parent first received such compensation, whichever
period is shorter; and
(9) Alimony and separate maintenance receipts.
(c) Depending on the circumstances of the particular case, the
court may also include severance pay, capital gains and net
gambling, gifts or prizes as gross income.
(d) "Gross income" does not include:
(1) Income received by other household members such as a new
spouse;
(2) Child support received for the children of another
relationship;
(3) Means-tested assistance such as aid to families with
dependent children, supplemental security income and food stamps;
and
(4) A child's income unless the court determines that the child's income substantially reduces the family's living expenses.
ARTICLE 1B . GUIDELINES FOR CHILD SUPPORT AWARDS.
§48A-1B-3. Basic child support obligation.
(a) The basic child support obligation is determined from the
following table of monthly basic child support obligations:
14891645178319087750887127714961653179219177800891128315031661180019267850895128915101669180919357900899129515171676181719447950903130015241684182619548000907130615311692183419638050911131215381700184319728100915131815451708185119818150919132415531716186019908200923133015601723186819998250927133615671731187720088300931134215741739188520178350935134815811747189420268400939135315881755190220358450943135915951763191120448500947136516021770191920538550951137116091778192820628600954137716161786193620728650958138316231794194420818700962138916301802195320908750966139516381809196120998800970140116451817197021088850974140616521825197821178900978141216591833198721268950982141816661840199521359000985142316721847200221429050989142816781854201021509100992143316841861201721589150996143816901867202421669200999144316961874203221749250100314481702188120392182930010061453170818882046218993501010145817141894205321979400101314631720190120612205945010161469172719082068221395001020147417331915207522219550102314791739192120832228960010271484174519282090223696501030148917511935209722449700103414941757194221052252975010371499176319482112226098001041150417691955211922689850104415091775196221272275990010471514178119692134228399501051151917881975214122911000010541524179419822148229910050105815291800198921562307101001061153418061995216323151015010651539181220022170232210200106815451818200921782330102501072155018242016218523381030010751555183020222192234610350107815601836202922002354104001082156518422036220723611045010861570184920432215237010500108915761855205022222378105501093158118612057223023861060010971586186820642237239410650110115921874207122452402107001104159718802078225224101075011081602188720852260241810800111216081893209222682426108501115161318992099227524341090011191619190621062283244310950112316241912211322902451110001127162919182120229824591105011301635192521272306246711100113416401931213423132475111501138164519372141232124831120011421651194421482328249111250114516561950215523362499113001149166219562162234325071135011531667196321692351251611400115616721969217623592524114501160167819752183236625321150011631682198121892373253911550116716871987219623802547116001170169219932202238725541165011741697199922082394256111700117717022004221524012569117501180170720102221240825761180011841712201622282415258411850118717172022223424222591119001191172220272240242825981195011931725203122452433260412000119517292035224924382609120501198173220392254244326141210012001735204322582448261912150120217392047226224522624122001205174220512267245726291225012071746205522712462263412300121017492059227624672640123501212175220632280247226451240012141756206722852476265012450121717592071228924812655125001219176320752293248626601255012211766207922982491266512600122417702083230224962670126501226177320882307250026751270012281776209223112505268112750123117802096231625102686128001233178321002320251526911285012361787210423242520269612900123817902108232925242701129501240179321122333252927061300012431797211623382534271113050124518002120234225392717131001247180421242347254427221315012501807212823512548272713200125218112132235525532732132501255181421362360255827371330012571817214023642563274213350125918212144236925682747134001262182421482373257227531345012641828215223782577275813500126618312156238225822763135501269183421602386258727681360012711838216423912592277313650127418412168239525962778137001276184521722400260127831375012781848217624042606278913800128118522180240926112794138501283185521842413261627991390012851858218824172620280413950128818622192242226252809140001290186521962426263028141405012921869220024312635281914100129518722204243526402824141501297187522082440264528301420013001879221224442649283514250130218822216244826542840143001304188622202453265928451435013071889222424572664285014400130918932228246226692855144501311189622322466267328601450013141899223624712678286614550131619032240247526832871146001319190622442479268828761465013211910224824842693288114700132319132252248826972886147501326191622562493270228911480013281920226024972707289614850133019232264250227122902149001333192722682506271729071495013351930227225102721291215000133819342276251527262917
West Virginia
Monthly Basic Child Support Obligations
(Adjusted for West Virginia's Income Relative to U.S. Averages)
|
COMBINED
|
|
GROSS
|
ONE
|
TWO
|
THREE
|
FOUR
|
FIVE
|
SIX
|
MONTHLY
|
CHILD
|
CHILDREN
|
CHILDREN
|
CHILDREN
|
CHILDREN
|
CHILDREN
|
INCOME
|
|
|
|
|
|
|
550
|
127
|
185
|
219
|
242
|
263
|
281
|
600
|
137
|
200
|
237
|
262
|
284
|
304
|
650
|
147
|
214
|
253
|
280
|
303
|
325
|
700
|
156
|
227
|
268
|
296
|
321
|
344
|
750
|
163
|
238
|
282
|
311
|
337
|
361
|
800
|
171
|
249
|
295
|
326
|
353
|
378
|
850
|
179
|
261
|
309
|
341
|
370
|
395
|
900
|
188
|
273
|
323
|
357
|
387
|
414
|
950
|
197
|
286
|
338
|
374
|
405
|
433
|
1000
|
205
|
299
|
353
|
390
|
423
|
452
|
1050
|
214
|
311
|
368
|
406
|
440
|
471
|
1100
|
223
|
324
|
382
|
423
|
458
|
490
|
1150
|
231
|
336
|
397
|
439
|
476
|
509
|
1200
|
240
|
349
|
412
|
455
|
493
|
528
|
1250
|
248
|
361
|
426
|
471
|
511
|
547
|
1300
|
257
|
373
|
441
|
487
|
528
|
565
|
1350
|
265
|
386
|
456
|
503
|
546
|
584
|
1400
|
274
|
398
|
470
|
519
|
563
|
602
|
1450
|
282
|
410
|
484
|
534
|
579
|
620
|
1500
|
291
|
422
|
498
|
550
|
596
|
638
|
1550
|
299
|
434
|
512
|
565
|
613
|
656
|
1600
|
307
|
446
|
526
|
581
|
630
|
674
|
1650
|
316
|
458
|
540
|
596
|
646
|
692
|
1700
|
324
|
470
|
554
|
612
|
663
|
709
|
1750
|
332
|
482
|
568
|
627
|
680
|
727
|
1800
|
341
|
494
|
581
|
643
|
697
|
745
|
1850
|
349
|
506
|
595
|
658
|
713
|
763
|
1900
|
357
|
517
|
609
|
673
|
730
|
781
|
1950
|
366
|
529
|
623
|
689
|
747
|
799
|
2000
|
373
|
540
|
636
|
703
|
762
|
816
|
2050
|
381
|
551
|
649
|
717
|
778
|
832
|
2100
|
388
|
562
|
662
|
731
|
793
|
848
|
2150
|
395
|
573
|
674
|
745
|
808
|
864
|
2200
|
403
|
583
|
687
|
759
|
823
|
881
|
2250
|
410
|
594
|
700
|
773
|
838
|
897
|
2300
|
417
|
605
|
712
|
787
|
853
|
913
|
2350
|
425
|
616
|
725
|
801
|
869
|
929
|
2400
|
432
|
626
|
738
|
815
|
884
|
946
|
2450
|
440
|
637
|
750
|
829
|
899
|
962
|
2500
|
447
|
648
|
763
|
843
|
914
|
978
|
2550
|
454
|
658
|
776
|
857
|
929
|
994
|
2600
|
460
|
667
|
786
|
868
|
941
|
1007
|
2650
|
465
|
674
|
794
|
877
|
951
|
1018
|
2700
|
471
|
682
|
803
|
887
|
962
|
1029
|
2750
|
475
|
688
|
810
|
895
|
970
|
1038
|
2800
|
479
|
694
|
816
|
902
|
978
|
1046
|
2850
|
484
|
700
|
823
|
909
|
986
|
1055
|
2900
|
488
|
705
|
830
|
917
|
994
|
1063
|
2950
|
492
|
711
|
836
|
924
|
1002
|
1072
|
3000
|
496
|
717
|
843
|
931
|
1010
|
1080
|
3050
|
500
|
723
|
850
|
939
|
1018
|
1089
|
3100
|
504
|
729
|
856
|
946
|
1026
|
1097
|
3150
|
509
|
735
|
863
|
953
|
1033
|
1106
|
3200
|
513
|
740
|
869
|
961
|
1041
|
1114
|
3250
|
517
|
746
|
876
|
968
|
1049
|
1123
|
3300
|
521
|
752
|
882
|
975
|
1057
|
1131
|
3350
|
524
|
757
|
888
|
981
|
1064
|
1138
|
3400
|
527
|
761
|
893
|
987
|
1070
|
1145
|
3450
|
531
|
766
|
899
|
993
|
1077
|
1152
|
3500
|
534
|
771
|
904
|
999
|
1083
|
1159
|
3550
|
537
|
775
|
910
|
1006
|
1090
|
1166
|
3600
|
541
|
780
|
916
|
1012
|
1097
|
1173
|
3650
|
544
|
785
|
921
|
1018
|
1103
|
1180
|
3700
|
547
|
790
|
927
|
1024
|
1110
|
1187
|
3750
|
550
|
794
|
932
|
1030
|
1116
|
1194
|
3800
|
554
|
799
|
937
|
1036
|
1123
|
1201
|
3850
|
557
|
803
|
943
|
1041
|
1129
|
1208
|
3900
|
560
|
808
|
948
|
1047
|
1135
|
1215
|
3950
|
563
|
812
|
953
|
1053
|
1142
|
1222
|
4000
|
566
|
817
|
959
|
1059
|
1148
|
1229
|
4050
|
570
|
822
|
964
|
1065
|
1155
|
1236
|
4100
|
574
|
828
|
972
|
1074
|
1164
|
1245
|
4150
|
579
|
834
|
979
|
1082
|
1172
|
1254
|
4200
|
583
|
841
|
986
|
1090
|
1181
|
1264
|
4250
|
588
|
847
|
993
|
1098
|
1190
|
1273
|
4300
|
592
|
853
|
1001
|
1106
|
1199
|
1283
|
4350
|
597
|
860
|
1008
|
1114
|
1207
|
1292
|
4400
|
601
|
866
|
1015
|
1122
|
1216
|
1301
|
4450
|
606
|
873
|
1023
|
1130
|
1225
|
1311
|
4500
|
610
|
879
|
1030
|
1138
|
1234
|
1320
|
4550
|
615
|
885
|
1037
|
1146
|
1242
|
1329
|
4600
|
619
|
892
|
1044
|
1154
|
1251
|
1339
|
4650
|
624
|
898
|
1052
|
1162
|
1260
|
1348
|
4700
|
628
|
904
|
1059
|
1170
|
1269
|
1357
|
4750
|
633
|
911
|
1066
|
1178
|
1277
|
1367
|
4800
|
637
|
917
|
1074
|
1186
|
1286
|
1376
|
4850
|
642
|
924
|
1082
|
1195
|
1296
|
1386
|
4900
|
647
|
931
|
1090
|
1204
|
1305
|
1397
|
4950
|
651
|
938
|
1098
|
1213
|
1315
|
1407
|
5000
|
656
|
945
|
1106
|
1222
|
1325
|
1418
|
5050
|
661
|
951
|
1114
|
1231
|
1335
|
1428
|
5100
|
666
|
958
|
1123
|
1240
|
1345
|
1439
|
5150
|
670
|
965
|
1131
|
1249
|
1354
|
1449
|
5200
|
675
|
972
|
1139
|
1259
|
1364
|
1460
|
5250
|
680
|
979
|
1147
|
1268
|
1374
|
1470
|
5300
|
685
|
986
|
1155
|
1277
|
1384
|
1481
|
5350
|
689
|
993
|
1163
|
1285
|
1393
|
1491
|
5400
|
694
|
999
|
1171
|
1294
|
1403
|
1501
|
5450
|
698
|
1006
|
1179
|
1302
|
1412
|
1511
|
5500
|
703
|
1012
|
1186
|
1311
|
1421
|
1521
|
5550
|
707
|
1019
|
1194
|
1319
|
1430
|
1530
|
5600
|
712
|
1025
|
1201
|
1328
|
1439
|
1540
|
5650
|
716
|
1031
|
1208
|
1335
|
1447
|
1548
|
5700
|
719
|
1036
|
1214
|
1341
|
1454
|
1556
|
5750
|
723
|
1042
|
1220
|
1348
|
1462
|
1564
|
5800
|
727
|
1047
|
1226
|
1355
|
1469
|
1572
|
5850
|
731
|
1052
|
1233
|
1362
|
1477
|
1580
|
5900
|
735
|
1058
|
1239
|
1369
|
1484
|
1588
|
5950
|
739
|
1063
|
1245
|
1376
|
1492
|
1596
|
6000
|
743
|
1069
|
1251
|
1383
|
1499
|
1604
|
6050
|
747
|
1074
|
1258
|
1390
|
1506
|
1612
|
6100
|
751
|
1080
|
1265
|
1397
|
1515
|
1621
|
6150
|
755
|
1086
|
1272
|
1405
|
1523
|
1630
|
6200
|
760
|
1093
|
1279
|
1413
|
1531
|
1639
|
6250
|
764
|
1099
|
1286
|
1420
|
1540
|
1648
|
6300
|
768
|
1105
|
1292
|
1428
|
1548
|
1657
|
6350
|
773
|
1111
|
1299
|
1436
|
1556
|
1665
|
6400
|
777
|
1117
|
1306
|
1444
|
1565
|
1674
|
6450
|
781
|
1123
|
1313
|
1451
|
1573
|
1683
|
6500
|
785
|
1129
|
1320
|
1459
|
1582
|
1692
|
6550
|
789
|
1135
|
1327
|
1467
|
1590
|
1701
|
6600
|
793
|
1140
|
1334
|
1474
|
1598
|
1710
|
6650
|
797
|
1146
|
1341
|
1482
|
1607
|
1719
|
6700
|
801
|
1152
|
1348
|
1490
|
1615
|
1728
|
6750
|
806
|
1158
|
1355
|
1498
|
1623
|
1737
|
6800
|
810
|
1164
|
1362
|
1505
|
1632
|
1746
|
6850
|
814
|
1170
|
1369
|
1513
|
1640
|
1755
|
6900
|
818
|
1176
|
1376
|
1521
|
1649
|
1764
|
6950
|
822
|
1182
|
1383
|
1529
|
1657
|
1773
|
7000
|
826
|
1188
|
1390
|
1536
|
1665
|
1782
|
7050
|
830
|
1194
|
1397
|
1544
|
1674
|
1791
|
7100
|
834
|
1200
|
1404
|
1552
|
1682
|
1800
|
7150
|
838
|
1206
|
1411
|
1560
|
1691
|
1809
|
7200
|
842
|
1212
|
1418
|
1567
|
1699
|
1818
|
7250
|
847
|
1218
|
1425
|
1575
|
1707
|
1827
|
7300
|
851
|
1224
|
1432
|
1583
|
1716
|
1836
|
7350
|
855
|
1230
|
1439
|
1591
|
1724
|
1845
|
7400
|
859
|
1236
|
1446
|
1598
|
1733
|
1854
|
7450
|
863
|
1242
|
1453
|
1606
|
1741
|
1863
|
7500
|
867
|
1248
|
1460
|
1614
|
1749
|
1872
|
7550
|
871
|
1253
|
1468
|
1622
|
1758
|
1881
|
7600
|
875
|
1259
|
1475
|
1629
|
1766
|
1890
|
7650
|
879
|
1265
|
1482
|
1637
|
1775
|
1899
|
7700
|
883
|
1271
|
(b) This subsection provides for incomes below table. If
combined adjusted gross income is below five hundred fifty dollars
per month, which is the lowest amount of income considered in the
table of monthly basic child support obligations set forth in
subsection (a) of this section, the basic child support obligation
shall be set at fifty dollars per month or a discretionary amount
determined by the court based on the resources and living expenses
of the parents and the number of children due support.
(c) This subsection provides for incomes above table. If
combined adjusted gross income is above fifteen thousand dollars
per month, which is the highest amount of income considered in the
table of monthly basic child support obligations set forth in
subsection (a) of this section, the basic child support obligation
shall not be less than it would be based on a combined adjusted
gross income of fifteen thousand dollars. The court may also compute the basic child support obligation for combined adjusted
gross incomes above fifteen thousand dollars by the following:
(1) One child -- $1,338 + 0.088 x combined adjusted gross
income above fifteen thousand dollars per month;
(2) Two children -- $1,934 + 0.129 x combined adjusted gross
income above fifteen thousand dollars per month;
(3) Three children -- $2,276 + 0.153 x combined adjusted
gross income above fifteen thousand dollars per month;
(4) Four children -- $2,515 + 0.169 x combined adjusted
gross income above fifteen thousand dollars per month;
(5) Five children -- $2,726 + 0.183 x combined adjusted
gross income above fifteen thousand dollars per month; and
(6) Six children -- $2,917 + 0.196 x combined adjusted gross
income above fifteen thousand dollars per month.
§48A-1B-6. Computation of child support order in sole custody
cases.
(a) For sole custody cases, the total child support obligation
consists of the basic child support obligation plus the child's
share of any unreimbursed health care expenses, work-related child
care expenses and any other extraordinary expenses agreed to by the
parents or ordered by the court less any extraordinary credits
agreed to by the parents or ordered by the court.
(b) In a sole custody case, the total basic child support
obligation is divided between the parents in proportion to their
income. From this amount is subtracted the obligor's direct
expenditures of any items which were added to the basic child support obligation to arrive at the total child support obligation.
(c) Child support for sole custody cases shall be calculated
using the following worksheet:
Worksheet A: Sole Physical Custody
IN THE CIRCUIT COURT OF __________ COUNTY, WEST VIRGINIACASE
NO.________
Mother: ____________________SS No.: ________________ Primary Custodial
parent? ? Yes ? No
Father: ____________________SS No.: ________________Primary Custodial
parent? ? Yes ?No
|
|
|
|
|
Children
|
SSN
|
Date of
Birth
|
Children
|
SSN
|
Date of Birth
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PART I. CHILD SUPPORT ORDER
|
Mother
|
Father
|
Combine d
|
1. MONTHLY GROSS INCOME (Exclusive of overtime
compensation)
|
$
|
$
|
|
a. Minus preexisting child support payment
|
-
|
-
|
|
b. Minus maintenance paid
|
-
|
-
|
|
c. Plus overtime compensation, if not excluded,
and not to exceed 50%, pursuant to W. Va. Code §
48A-1A-19(6)
|
+
|
+
|
|
2. MONTHLY ADJUSTED GROSS INCOME
|
$
|
$
|
$
|
3. PERCENTAGE SHARE OF INCOME
(Each parent's income from line 2 divided by
Combined Income)
|
%
|
%
|
100%
|
4. BASIC OBLIGATION
(Use Line 2 combined to find amount from
schedule.)
|
|
|
$
|
5. ADJUSTMENTS (Expenses paid directly by each
parent)
a. Work-Related Child Care Costs Adjusted for
Federal Tax Credit (0.75 x actual work-related child
care costs.)
|
$
|
$
|
|
b. Extraordinary Medical Expenses (Uninsured
only) and Children's Portion of Health Insurance
Premium Costs.
|
$
|
$
|
|
c. Extraordinary Expenses (Agreed to by parents
or by order of the court.)
|
$
|
$
|
|
d. Minus Extraordinary Adjustments (Agreed to
by parents or by order of court.)
|
|
|
|
e. Total Adjustments (For each column, add 5a,
5b, and 5c. Subtract Line 5d. Add the parent's
totals together for Combined amount.)
|
$
|
$
|
$
|
6. TOTAL SUPPORT OBLIGATION
(Add line 4 and line 5e Combined.)
|
|
|
$
|
7. EACH PARENT'S SHARE OF THE TOTAL CHILD SUPPORT
OBLIGATION (Line 3 x line 6 for each parent.)
|
$
|
$
|
|
8. NONCUSTODIAL PARENT ADJUSTMENT
(Enter noncustodial parent's line 5e.)
|
$
|
$
|
|
9. RECOMMENDED CHILD SUPPORT ORDER
(Subtract line 8 from line 7 for the
noncustodial parent only. Leave custodial parent
column blank.)
|
$
|
$
|
|
PART II. ABILITY TO PAY CALCULATION
(Complete if the noncustodial parent's adjusted monthly gross income is below
$1,550.)
|
10. Spendable Income
(0.75 x line 2 for noncustodial parent only.)
|
|
|
|
11. Self Support Reserve
|
$500
|
$500
|
|
12. Income Available for Support
(Line 10 - line 11. If less than $50, then $50)
|
|
|
|
13. Adjusted Child Support Order
(Lessor of Line 9 and Line 12.)
|
|
|
|
Comments, calculations, or rebuttals to schedule or adjustments if noncustodial
parent directly pays extraordinary expenses.
|
PREPARED BY:
|
Date:
|
(d) In cases where the noncustodial parent's adjusted gross
income is below one thousand five hundred fifty dollars per month,
an additional calculation in Worksheet A, Part II shall be made.
This additional calculation sets the child support order at
whichever is lower: (I) Child support at the amount determined in
Part I; or (ii) the difference between seventy-five percent of the
noncustodial parent's adjusted gross income and five hundred
dollars, or fifty dollars, whichever is more.
§48A-1B-7. Shared physical custody adjustment.
(a) Child support for cases with shared physical custody shall
be calculated using Worksheet B. The following method should be
used only for shared physical custody as defined in section
twenty-six, article one-a of this chapter: That is, cases where
each parent has the child for more than one hundred twenty-seven
days per year (thirty-five percent).
(b) The basic child support obligation shall be multiplied by
1.5 to arrive at a shared custody basic child support obligation.
The shared custody basic child support obligation is apportioned to
each parent according to his or her income. In turn, a child support obligation is computed for each parent by multiplying that
parent's portion of the shared custody child support obligation by
the percentage of time the child spends with the other parent. The
respective basic child support obligations are then offset, with
the parent owing more basic child support paying the difference
between the two amounts. The transfer for the basic obligation for
the parent owing less basic child support shall be set at zero
dollars.
(c) Adjustments for each parent's additional direct expenses
on the child are made by apportioning the sum of the parent's
direct expenditures on the child's share of any unreimbursed child
health care expenses, work-related child care expenses and any
other extraordinary expenses agreed to by the parents or ordered by
the court or master less any extraordinary credits agreed to by the
parents or ordered by the court or master to each parent according
to their income share. In turn each parent's net share of
additional direct expenses is determined by subtracting the
parent's actual direct expenses on the child's share of any
unreimbursed child health care expenses, work-related child care
expenses and any other extraordinary expenses agreed to by the
parents or by the court or master less any extraordinary credits
agreed to by the parents or ordered by the court or master from
their share. The parent with a positive net share of additional
direct expenses owes the other parent the amount of his or her net
share of additional direct expenses. The parent with zero or a
negative net share of additional direct expenses owes zero dollars for additional direct expenses.
(d) The final amount of the child support order is determined
by summing what each parent owes for the basic support obligation
and additional direct expenses as defined in subsections (b) and
(c) of this section. The respective sums are then offset, with the
parent owing more paying the other parent the difference between
the two amounts.
(e) Child support for shared physical custody cases shall be
calculated using the following worksheet:
Worksheet B: Shared Physical Custody
IN THE CIRCUIT COURT OF ______________ COUNTY, WEST VIRGINIA
CASE NO. _____
Mother: ______________________________ SS No.: __________ Primary Custodial
parent? ? Yes ? No
Father: _______________________________ SS No.: __________ Primary Custodial
parent? ? Yes ? No
|
|
|
|
|
|
Children
|
SSN
|
Date of
Birth
|
Children
|
SSN
|
Date of
Birth
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PART I. BASIC OBLIGATION
|
Mother
|
Fathe r
|
Combin ed
|
1. MONTHLY GROSS INCOME (Exclusive of overtime
compensation)
|
$
|
$
|
|
a. Minus preexisting child support payment
|
-
|
-
|
|
b. Minus maintenance paid
|
-
|
-
|
|
c. Plus overtime compensation, if not excluded,
and not to exceed 50%, pursuant to W. Va.
Code § 48A-1A-19(6)
|
+
|
+
|
|
2. MONTHLY ADJUSTED GROSS INCOME
|
$
|
$
|
$
|
3. PERCENTAGE SHARE OF INCOME (Each parent's income
from line 2 divided by Combined
Income)
|
%
|
%
|
100%
|
4. BASIC OBLIGATION (Use line 2 Combined to find
amount from Child Support Schedule.)
|
|
|
$
|
PART II. SHARED CUSTODY ADJUSTMENT
|
5. Shared Custody Basic Obligation (line 4 x 1.50)
|
|
|
$
|
6. Each Parent's Share (Line 5 x each parent's line 3)
|
$
|
$
|
|
7. Overnights with Each Parent (must total 365)
|
|
|
365
|
8. Percentage with Each Parent (Line 7 divided by 365)
|
%
|
%
|
100%
|
9. Amount Retained (Line 6 x line 8 for each parent)
|
$
|
$
|
|
10. Each Parent's Obligation (Line 6 - line 9)
|
$
|
$
|
|
11. AMOUNT TRANSFERRED FOR BASIC OBLIGATION (Subtract
smaller amount on line 10 from larger amount on line 10.
Parent with larger amount on line 10 owes the other
parent the difference. Enter $0 for other parent.
|
$
|
$
|
|
PART III. ADJUSTMENTS FOR ADDITIONAL EXPENSES (Expenses paid directly by each
parent.)
|
12a. Work-Related Child Care Costs Adjusted for Federal
Tax Credit (0.75 x actual work-related child care
costs.)
|
$
|
$
|
|
12b. Extraordinary Medical Expenses (Uninsured only)
and Children's Portion of Health Insurance Premium
Costs.
|
$
|
$
|
|
12c. Extraordinary Additional Expenses (Agreed to by
parents or by order of the court or master.)
|
$
|
$
|
|
12d. Minus Extraordinary Adjustments (Agreed to by
parents or by order of the court or master.)
|
$
|
$
|
|
12e. Total Adjustments (For each column, add 11a, 11b,
and 11c. Subtract line 11d. Add the parent's totals
together for Combined amount.)
|
$
|
$
|
$
|
13. Each Parent's Share of Additional Expenses (Line 3
x line 12e Combined.)
|
$
|
$
|
|
14. Each parent's Net Share of Additional direct
expenses (Each parent's line 13-line 12e. If negative
number, enter $0)
|
$
|
$
|
|
15. AMOUNT TRANSFERRED FOR ADDITIONAL EXPENSES
(Subtract smaller amount on line 14 from larger amount
on line 14. Parent with larger amount on line 14 owes
the other parent the difference. Enter $0 for other
parent.
|
$
|
$
|
|
PART IV. RECOMMENDED CHILD SUPPORT ORDER
|
16. TOTAL AMOUNT TRANSFERRED (Line 11 + line 15)
|
$
|
$
|
|
17. RECOMMENDED CHILD SUPPORT ORDER (Subtract smaller
amount on line 16 from larger amount on line 16. Parent
with larger amount on line 16 owes the other parent the
difference.
|
$
|
$
|
|
Comments, calculations, or rebuttals to schedule or adjustments
|
PREPARED BY:
|
Date:
|
§48A-1B-11. Modification.
(a) The provisions of a child support order may be modified if
there is a substantial change of circumstances. If application of
the guideline would result in a new order that is more than fifteen
percent different, then the circumstances are considered to be a
substantial change.
(b) An expedited process for modification of a child support
order may be utilized if an obligor experiences a substantial
decrease in income due to loss of employment or other involuntary
cause. The party seeking the recalculation of support and
modification of the support order shall file a description of the
decrease in income and an explanation of the cause of the decrease
on a standardized form to be provided by the secretary-clerk or
other employee of the family court. Any available documentary
evidence may be filed with the standardized form. Based upon the
filing and information available in the case record, the amount of
support shall be tentatively recalculated. The secretary-clerk
shall cause a notice of the filing, a copy of the standardized
form, and the support calculations to be mailed to the support
obligee by first class mail. The notice shall fix a date fourteen
days from the date of mailing, and inform the support obligee that
unless the recalculation is contested and a hearing request is made
on or before the date fixed, the modification will be made
effective. If the filing is contested, the proposed modification
shall be set for hearing; otherwise, the family court judge shall
prepare a default order for entry by the circuit judge as provided for in section one hundred four of this article. After a
modification has been made through this expedited process, based
upon a substantial decrease in income, the same expedited process
is available to a support obligee if the support obligor
experiences a substantial increase in income due to reemployment or
other cause.
§48A-1B-14. Disregard of formula.
(a) If the court finds that the guidelines are inappropriate in
a specific case, the court may either disregard the guidelines or
adjust the guidelines-based award to accommodate the needs of the
child or children or the circumstances of the parent or parents.
In either case, the reason for the deviation and the amount of the
calculated guidelines award must be stated on the record
(preferably in writing on the worksheet or in the order). Such
findings clarify the basis of the order if appealed or modified in
the future.
(b) These guidelines do not take into account the economic impact
of the following factors and can be possible reasons for deviation:
(1) Special needs of the child or support obligor;
(2) Educational expenses for the child or the parent (i.e. those
incurred for private, parochial, or trade schools, other secondary
schools, or post-secondary education where there is tuition or
costs beyond state and local tax contributions);
(3) Families with more than six children;
(4) Long distance visitation costs;
(5) The child resides with third party;
(6) The needs of another child or children to whom the obligor
owes a duty of support;
(7) The extent to which the obligor's income depends on
nonrecurring or nonguaranteed income; or
(8) Whether the total of alimony, child support and child care
costs subtracted from an obligor's income reduces that income to
less than the federal poverty level and conversely, whether
deviation from child support guidelines would reduce the income of
the child's household to less than the federal poverty level.
§48A-1B-16. Investment of child support.
(a) A circuit judge has the discretion, in appropriate cases, to
direct that a portion of child support be placed in trust and
invested for future educational or other needs of the child. The
family court judge may recommend and the circuit judge may order
such investment when all of the child's day-to-day needs are being
met such that, with due consideration of the age of the child, the
child is living as well as his or her parents.
(b) If the amount of child support ordered for a child exceeds
the sum of two thousand dollars per month, the court is required to
make a finding, in writing, as to whether investments shall be made
as provided for in subsection (a) of this section.
(c) A trustee named by the court shall use the judgment and care
under the circumstances then prevailing that persons of prudence,
discretion and intelligence exercise in the management of their own
affairs, not in regard to speculation but in regard to the
permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. A trustee
shall be governed by the provisions of the uniform prudent investor
act as set forth in article six-c, chapter forty-four of this code.
The court may prescribe the powers of the trustee and provide for
the management and control of the trust. Upon petition of a party
or the child's guardian or next friend and upon a showing of good
cause, the court may order the release of funds in the trust from
time to time.
§48A-1B-17. Operative date of certain amendments.
The amendments to this article made during the regular session of
the Legislature, one thousand nine hundred ninety-nine, are
operable after the thirtieth day of June, one thousand nine hundred
ninety-nine.
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND
ORGANIZATION.
§48A-2-17. Notice to unemployed obligor.
Upon receipt of a report from an employer in accordance with
section thirty-four of this article, stating that a support obligor
has been discharged or laid off or has resigned or voluntarily
quit, the child support enforcement division shall send a notice to
the obligor, informing the obligor of the availability of a
modification of the support award and of the services that may be
available to him or her from the division. The division shall also
inform the obligor of his or her possible entitlement to a
reduction in court-ordered support payments; that a failure to obtain a modification will result in the previously-ordered award
remaining in effect; and that substantial arrearage might
accumulate and remain as judgments against him or her.
§48A-2-34. Employment and income reporting.
(a) For purposes of this section:
(1) "Employee" means an individual who is an "employee" for
purposes of federal income tax withholding, as defined in 26 U.S.C.
§3401;
(2) "Employer" means the person or entity for whom an
individual performs or performed any service of whatever nature and
who has control of the payment of the individual's wages for
performance of such service or services, as defined in 26 U.S.C.
§3401;
(3) An individual is considered a "new hire" on the first day
in which that individual performs services for remuneration and on
which an employer begins to withhold amounts for income tax
purposes.
(b) Except as provided in subsections (c) and (d) of this
section, all employers doing business in the state shall report to
the child support enforcement division:
(1) The hiring of any person who resides or works in this
state to whom the employer anticipates paying earnings;
(2) The rehiring or return to work of any employee who resides
or works in this state;
(3) The discharge or layoff of any employee who resides or
works in this state; and
(4) The resignation or voluntary quitting of any employee who
resides or works in this state.
(c) Employers are not required to report the hiring, rehiring
or return to work of any person who is an employee of a federal or
state agency performing intelligence or counterintelligence
functions if the head of such agency has determined that reporting
could endanger the safety of the employee or compromise an ongoing
investigation or intelligence mission.
(d) An employer that has employees in states other than this
state and that transmits reports magnetically or electronically is
not required to report to the child support enforcement division
the hiring, rehiring or return to work of any employee if the
employer has filed with the secretary of the federal department of
health and human services, as required by 42 U.S.C. §653A, a
written designation of another state in which it has employees as
the reporting state.
(e) Employers shall report by mailing to the child support
enforcement division a copy of the employee's W-4 form; however, an
employer may transmit such information through another means if
approved in writing by the child support enforcement division prior
to the transmittal. The report shall include the employee's name,
address and social security number, the employer's name and
address, any different address of the payroll office and the
employer's federal tax identification number. The employer may
report other information, such as date of birth or income
information, if desired.
(f) Employers shall submit a report within fourteen days of
the date of the hiring, rehiring or return to work of the employee.
However, if the employer transmits the reports magnetically or
electronically by two monthly submissions, the reports shall be
submitted not less than twelve days nor more than sixteen days
apart.
(g) An employer shall provide to the child support enforcement
division, upon its written request, information regarding an
obligor's employment, wages or salary, medical insurance, and
location of employment.
(h) Any employer who fails to report in accordance with the
provisions of this section shall be assessed a civil penalty of no
more than twenty-five dollars per failure. If the failure to
report is the result of a conspiracy between the employer and the
employee not to supply the required report or to supply a false or
incomplete report, the employer shall be assessed a civil penalty
of no more than five hundred dollars.
(I) Employers required to report under this section may assess
each employee so reported one dollar for the administrative costs
of reporting.
(j) Uses for the new hire information include, but are not
limited to, the following:
(1) The state directory of new hires shall furnish the
information to the national directory of new hires;
(2) The child support enforcement division shall use
information received pursuant to this section to locate individuals for purposes of establishing paternity and of establishing,
modifying and enforcing child support obligations, and may disclose
such information to any agent of the agency that is under contract
with the division to carry out such purposes;
(3) State agencies responsible for administering a program
specified in 42 U.S.C. §1320b-7(b) shall have access to information
reported by employers for purposes of verifying eligibility for the
program; and
(4) The bureau of employment programs shall have access to
information reported by employers for purposes of administering
employment security and workers' compensation programs.
ARTICLE 4. PROCEEDING BEFORE A FAMILY COURT JUDGE.
§48A-4-9. Hearing procedures.
(a) This section applies, according to the provisions thereof,
to hearings required by section ten, article two-a, chapter fifty- one of this code to be conducted by a family court judge.
(b) A family court judge to whom a matter is referred pursuant
to the provisions of section ten, article two-a, chapter fifty-one
of this code shall preside at the taking of evidence.
(c) A family court judge presiding at a hearing under the
provisions of this chapter may:
(1) Administer oaths and affirmations, compel the attendance
of witnesses and the production of documents, examine witnesses and
parties and otherwise take testimony, receive relevant evidence and
establish a record;
(2) Rule on motions for discovery and offers of proof;
(3) Take depositions or have depositions taken when the ends
of justice may be served;
(4) Regulate the course of the hearing;
(5) Hold pre-trial conferences for the settlement or
simplification of issues and enter time frame orders which shall
include, but not be limited to, discovery cut-offs, exchange of
witness lists and agreements on stipulations, contested issues, and
hearing schedules;
(6) Make and enter temporary orders on procedural matters,
including, but not limited to, substitution of counsel, amendment
of pleadings, requests for hearings and other similar matters;
(7) Accept voluntary acknowledgments of support liability or
paternity;
(8) Accept stipulated agreements;
(9) Prepare default orders for entry if the person against
whom an action is brought does not respond to notice or process
within the time required;
(10) Recommend orders in accordance with the provisions of
section thirteen of this article;
(11) Require the issuance of subpoenas and subpoenas duces
tecum, issue writs of attachment, hold hearings in aid of execution
and propound interrogatories in aid of execution and fix bond or
other security in connection with an action for enforcement in a
child or spousal support matter; and
(12) Take other action authorized by general order of the circuit court or the chief judge thereof consistent with the
provisions of this chapter.
(d) Except as otherwise provided by law, a moving party has
the burden of proof on a particular question presented. Any oral
or documentary evidence may be received, but the family court judge
shall exclude irrelevant, immaterial or unduly repetitious
evidence. A party is entitled to present his or her case or
defense by oral or documentary evidence, to submit rebuttal
evidence and to conduct such cross-examination as may be required
for a full and true disclosure of the facts. In determining claims
for money due or the amount of payments to be made, when a party
will not be prejudiced thereby, the family court judge may adopt
procedures for the submission of all or part of the evidence in
written form.
(e) Hearings before a family court judge shall be recorded
electronically. A magnetic tape or other electronic recording
medium on which a hearing is recorded shall be indexed and securely
preserved by the secretary-clerk of the family court judge and
shall not be placed in the case file in the office of the circuit
clerk: Provided, That upon the request of the family court judge,
such magnetic tapes or other electronic recording media shall be
stored by the clerk of the circuit court. When requested by either
of the parties, a family court judge shall provide a duplicate copy
of the tape or other electronic recording medium of each hearing
held. For evidentiary purposes, a duplicate of such electronic
recording prepared by the secretary-clerk shall be a "writing" or "recording" as those terms are defined in rule 1001 of the West
Virginia rules of evidence, and unless the duplicate is shown not
to reflect the contents accurately, it shall be treated as an
original in the same manner that data stored in a computer or
similar data is regarded as an "original" under such rule. The
party requesting the copy shall pay to the family court judge an
amount equal to the actual cost of the tape or other medium or the
sum of five dollars, whichever is greater. Unless otherwise
ordered by the court, the preparation of a transcript and the
payment of the cost thereof shall be the responsibility of the
party requesting the transcript.
(f) The recording of the hearing or the transcript of
testimony, as the case may be, and the exhibits, together with all
papers and requests filed in the proceeding, constitute the
exclusive record for recommending an order in accordance with
section one hundred five of this article, and on payment of
lawfully prescribed costs, shall be made available to the parties.
When a family court judge's final recommended order rests on
official notice of a material fact not appearing in the evidence in
the record, a party is entitled, on timely request, to an
opportunity to show the contrary.
(g) After a temporary parenting plan has been agreed to by
the parties or ordered by the family court judge, or after a
temporary support order has been entered by the court, a scheduled
final evidentiary hearing cannot be continued without the
agreement of the parties or without a review of the temporary parenting plan and the temporary support order.
§48A-4-20. Circuit court review of family court judge's
recommended order.
(a) The circuit court shall proceed to a review of the
recommended order of the family court judge when:
(1) No petition has been filed within the time allowed, or the
parties have expressly waived the right to file a petition;
(2) A petition and an answer in opposition have been filed, or
the time for filing an answer in opposition has expired, or the
parties have expressly waived the right to file an answer in
opposition, as the case may be.
(b) To the extent necessary for decision and when presented,
the circuit court shall decide all relevant questions of law,
interpret constitutional and statutory provisions and determine the
appropriateness of the terms of the recommended order of the family
court judge.
(c) The circuit court shall examine the recommended order of
the family court judge, along with the findings and conclusions of
the family court judge, and may enter the recommended order, may
recommit the case, with instructions, for further hearing before
the master or may, in its discretion, enter an order upon different
terms, as the ends of justice may require. Conclusions of law of
the family law master shall be subject to de novo review by the
circuit court. The circuit court shall be held to the clearly
erroneous standard in reviewing findings of fact. The circuit
court shall not follow the recommendation, findings and conclusions of a master found to be:
(1) Arbitrary, capricious, an abuse of discretion or otherwise
not in conformance with the law;
(2) Contrary to constitutional right, power, privilege or
immunity;
(3) In excess of statutory jurisdiction, authority or
limitations or short of statutory right;
(4) Without observance of procedure required by law;
(5) Unsupported by substantial evidence; or
(6) Unwarranted by the facts.
(d) In making its determinations under this section, the
circuit court shall review the whole record or those parts of it
cited by a party. If the circuit court finds that a family court
judge's recommended order is deficient as to matters which might be
affected by evidence not considered or inadequately developed in
the family court judge's recommended order, the court may recommit
the recommended order to the family court judge, with instructions
indicating the court's opinion, or the circuit court may proceed to
take such evidence without recommitting the matter.
(e) The order of the circuit court entered pursuant to the
provisions of subsection (d) of this section shall be entered not
later than ten days after the time for filing pleadings or briefs
has expired or after the filing of a notice or notices waiving the
right to file such pleading or brief.
(f) If a case is recommitted by the circuit court, the family
court judge shall retry the matter within twenty days.
(g) At the time a case is recommitted, the circuit court shall
enter appropriate temporary orders awarding custody, visitation,
child support, spousal support or such other temporary relief as
the circumstances of the parties may require.
§48A-4-23. Family court fund.
The office and the clerks of the circuit courts shall, on or
before the tenth day of each month, transmit all fees and costs
received for the services of the office under this chapter to the
state treasurer for deposit in the state treasury to the credit of
a special revenue fund to be known as the "family court fund",
which is hereby created. All moneys collected and received under
this chapter and paid into the state treasury and credited to the
"family court fund" shall be used by the administrative office of
the supreme court of appeals solely for paying the costs associated
with the duties imposed upon the family court judges under the
provisions of this chapter which require activities by the family
court judges which are not subject to being matched with federal
funds or subject to reimbursement by the federal government. Such
moneys shall not be treated by the auditor and treasurer as part of
the general revenue of the state.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2A. CIRCUIT COURTS; FAMILY COURT DIVISION.
§51-2A-1. Family court division established in circuit court;
designation of division.
There is hereby created in the circuit court of each county in
this state, a division of the circuit court to be designated as "The Family Court of County, West Virginia."
§51-2A-2. Appointment of commissioners to be designated as family
court judges; administrative and judicial functions of family
court judge.
(a) In each of the family court circuits, as provided in
section three of this article, the circuit judges whose courts are
served by that circuit shall constitute the "Circuit Court Family
Law Panel. "A majority of the judges of the circuit court family
law panel shall appoint the initial commissioners to serve, as
allocated to that circuit by the provisions of said section three.
(b) A commissioner appointed under subsection (a) of this
section may be designated by the name "Family Court Judge" by
administrative rule of the supreme court of appeals upon
notification from the secretary of the department of health and
human resources that the department has received adequate written
assurances from the appropriate federal authorities that the state
will not be denied or become ineligible for federal funds as the
result of the designation of the commissioner by the name "Family
Court Judge." Until an administrative rule is issued as provided
in this subsection, a commissioner appointed under subsection (a)
of this section shall be designated by the name "Family Law
Master", and the term "Family Court Judge" as used in this article
or any other provision of this code enacted during one thousand
nineteen hundred ninety-nine shall mean "Family Law Master."
(c) The family court judge will conduct hearings in family
court cases, take testimony, hear the parties, enter orders of a temporary or interlocutory nature, make findings of fact and
conclusions of law on the record, formulate recommendations, and
report to the circuit court. The family court judge will exercise
any other power or authority provided for in this article or
article four, chapter forty-eight-a of this code.
(d) The family court judge, as a commissioner of the circuit
court, has both administrative and judicial functions to perform,
as described in subsections (e) and (f) of this section.
(e) The family court judge has responsibility for the
administration of the family court division of the circuit court.
The circuit court family law panel must monitor the administration
of the family court divisions within the family court circuit and
regulate those activities, including naming one or more circuit
judges to serve as administrative supervisor of the family court
judge, through appropriate administrative orders. The
administrative orders of the administrative supervisor regarding
the family court division will be compiled and indexed in the
office of the circuit clerk and be available for public inspection.
(f) In exercising the judicial function of the family court,
the family court judge, free of direct oversight by a circuit
judge, is responsible for the preparation or preliminary
consideration of issues requiring judicial decision, subject only
to a subsequent review by a circuit judge. Conclusions of law of
the family court judge are subject to de novo review by the circuit
court. In reviewing the findings of fact of a family court judge,
the circuit court is held to the clearly erroneous standard.
(g) A family court judge shall not be eligible to participate
in the judges retirement system under the provisions of article
nine, chapter fifty-one of this code.
(h) Beginning the first day of January, two thousand, each
family law judge is required to file a quarterly activity report
with the supreme court of appeals and the joint committee on
government and finance. The report shall include, but is not
limited to, the number of cases heard before the family law judge,
the date the case was heard, the date the case was filed and the
number and types of hearings held before the family law judge in a
particular case.
§51-2A-3. Assignment of judges by family court regions.
(a) A total of thirty-one family court judges will serve
throughout the state. The state will be divided into twenty family
court circuits with the number of family court judges allocated as
follows:
The counties of Brooke, Hancock, Marshall and Ohio shall
constitute the first family court circuit and shall have two
judges; the counties of Pleasants, Ritchie, Tyler, Wetzel and Wirt
shall constitute the second family court circuit and shall have one
judge; the county of Wood shall constitute the third family court
circuit and shall have one judge; the counties of Calhoun, Gilmer,
Jackson and Roane shall constitute the fourth family court circuit
and shall have one judge; the counties of Cabell, Mason and Putnam
shall constitute the fifth family court circuit and shall have
three judges; the county of Kanawha shall constitute the sixth family court circuit and shall have four judges; the counties of
Lincoln and Wayne shall constitute the seventh family court circuit
and shall have one judge; the counties of Boone, Logan and Mingo
shall constitute the eighth family court circuit and shall have two
judges; the counties of McDowell and Mercer shall constitute the
ninth family court circuit and shall have two judges; the counties
of Raleigh, Summers and Wyoming shall constitute the tenth family
court circuit and shall have two judges; the counties of Greenbrier
and Monroe shall constitute the eleventh family court circuit and
shall have one judge; the counties of Braxton, Clay and Lewis shall
constitute the twelfth family court circuit and shall have one
judge; the counties of Fayette, Nicholas, Pocahontas and Webster
shall constitute the thirteenth family court circuit and shall have
two judges; the counties of Pendleton, Randolph, Tucker and Upshur
shall constitute the fourteenth family court circuit and shall have
one judge; the counties of Doddridge and Harrison shall constitute
the fifteenth family court circuit and shall have one judge; the
counties of Barbour, Preston and Taylor shall constitute the
sixteenth family court circuit and shall have one judge; the county
of Marion shall constitute the seventeenth family court circuit and
shall have one judge; the county of Monongalia shall constitute the
eighteenth family court circuit and shall have one judge; the
counties of Grant, Hampshire, Hardy and Mineral shall constitute
the nineteenth family court circuit and shall have one judge; the
counties of Berkeley, Jefferson and Morgan shall constitute the
twentieth family court circuit and shall have two judges.
(b) The chief justice of the supreme court of appeals may
temporarily assign a family court judge from one family court
circuit to another family court circuit, as caseload,
disqualification, recusal, vacation or illness may dictate. In
each case of temporary assignment, the chief justice shall appoint
only a family court judge appointed pursuant to section two of this
article who is actually serving at the time of such appointment.
§51-2A-4. Qualifications of family court judges
.
(a) An individual appointed to serve as a family court judge
prior to the general election held in the year two thousand must be
a member in good standing of the West Virginia state bar. An
individual elected to serve in the general election in the year two
thousand and thereafter, or appointed thereafter, must be a member
in good standing of the West Virginia state bar and must have at
least five years experience as a practicing attorney prior to
taking office.
(b) Upon assuming his or her duties, a family court judge with
no prior experience as a family law master or family court judge
shall, as soon as is practicable, attend and complete a course of
instruction in principles of family law and procedure that is given
in accordance with the supervisory rules of the supreme court of
appeals. All family court judges shall attend courses of
continuing educational instruction as may be required by
supervisory rule of the supreme court of appeals. Failure to
attend the required courses of continuing educational instruction
without good cause constitutes neglect of duty. Persons attending such courses outside of the county of their residence will be
reimbursed by the supreme court of appeals for expenses actually
incurred in accordance with the supervisory rules of the supreme
court of appeals.
(c) A family court judge may not engage in any other business,
occupation or employment inconsistent with the expeditious, proper
and impartial performance of his or her duties as a judicial
officer. A family court judge is not permitted to engage in the
outside practice of law and shall devote full time to his or her
duties as a judicial officer.
§51-2A-5. Term of office of family court judge; elections.
(a) Before the first day of September, one thousand nine
hundred ninety-nine, each circuit court family law panel shall
appoint family court judges to serve in the family court circuits
as provided for in section three of this article. The initial term
of office for the family court judges first appointed shall
commence on the first day of October, one thousand nine hundred
ninety-nine and end on the thirty-first day of December, two
thousand.
(b) Beginning with the primary and general elections to be
conducted in the year two thousand, family court judges shall be
elected at large from the entire family court circuit. In
accordance with the numbers designated for each family court
circuit pursuant to the provisions of section three of this
article, the candidate or candidates receiving the highest votes
cast shall be nominated or elected to serve as family court judge, as the case may be.
(c) The term of office for all family court judges elected in
two thousand shall be for four years, commencing on the first day
of January, two thousand one and ending on the thirty-first day of
December, two thousand four. Subsequent terms of office for family
court judges elected thereafter shall be for four years.
§51-2A-6. Vacancy in the office of family court judge.
If a vacancy occurs in the office of family court judge, the
circuit court family law panel shall, within thirty days after the
vacancy occurs, fill the vacancy by appointment for the unexpired
term. If the circuit court family law panel fails to act timely to
fill a vacancy, the chief justice of the supreme court of appeals
may fill the vacancy for the unexpired term.
§51-2A-6a. Terms of family law masters continued.
The family law masters holding office on the first day of
June, one thousand nine hundred ninety-nine, by virtue of
appointments made under the prior enactments of article four,
chapter forty-eight-a of this code are continued in their term of
office through the thirtieth day of September, one thousand nine
hundred ninety-nine.
§51-2A-7. Procedure for removal, suspension or discipline of family
court judge; appeal; grounds.
(a) A family court judge appointed pursuant to section two of
this article may be removed from office in the manner provided in
this section for official misconduct, malfeasance in office,
incompetence, neglect of duty, gross immorality or inability to serve.
(b) Charges may be preferred by:
(1) A circuit judge of a county that constitutes all or a part
of the family court judge's region;
(2) By the administrative director of the supreme court of
appeals; or
(3) By any person as provided in rule two of the rules of
judicial disciplinary procedure. If a formal charge is filed by
the judicial investigation commission, such charge may recommend
removal and the convening of a three judge court as provided for in
this section.
(c) The charges must be reduced to writing in the form of a
petition, duly verified by the charging party, and filed with the
supreme court of appeals. The petition must request the impaneling
or convening of a three-judge court consisting of three circuit
judges of the state. The chief justice of the supreme court of
appeals shall, without delay, designate and appoint three circuit
judges within the state, none of whom is from the region in which
the family court judge serves. In the order of appointment, the
chief justice shall designate the date, time and place for the
convening of the three-judge court. The date and time of hearing
on the petition must be more than twenty days from the date of the
filing of the petition.
The three-judge court shall, without a jury, hear the charges
and all evidence offered in support thereof or in opposition
thereto and upon satisfactory proof of the charges shall remove the family court judge from office and place the records, papers and
property of his or her office in the possession of some other
officer or person for safekeeping or in the possession of the
person appointed as hereinafter provided to fill the office
temporarily. Final orders shall set out the court's decision to
dismiss the charges or to suspend or remove the family court judge,
with or without recommendations to refer the matter for
investigation by the office of disciplinary counsel under the rules
of judicial disciplinary procedure, or to provide other disposition
appropriate to the case.
(d) An appeal from a final order of a three-judge court
removing or refusing to remove a family court judge from office
pursuant to this section may be taken to the supreme court of
appeals within thirty days from the date of entry of the order from
which the appeal is to be taken. The supreme court of appeals
shall consider and decide the appeal upon the original papers and
documents, without requiring the same to be printed and shall
enforce its findings by proper writ. From the date of any order of
the three-judge court removing an officer under this section until
the expiration of thirty days thereafter, and, if an appeal be
taken, until the date of suspension of such order, if suspended by
the three-judge court and if not suspended, until the final
adjudication of the matter by the supreme court of appeals, the
circuit court family law panel having power to fill a vacancy in
such office may fill the same by a temporary appointment until a
final decision of the matter, and if a final decision is made by the supreme court of appeals affirming the removal of the family
court judge, shall fill the vacancy in the manner provided by law
for such office.
(e) For purposes of subsections (a) through (d) of this
section, "neglect of duty" includes, but is not limited to, failure
to make findings of fact and conclusions of law either on the
record or in writing to be filed as part of the record.
(f) Notwithstanding any other provision, the conduct of
family court judges who begin serving terms of office on the first
day of January, two thousand one and thereafter, shall be governed
by the code of judicial conduct adopted by the supreme court of
appeals and any complaint of violation of the code of judicial
conduct against a family law judge shall be filed and considered in
accordance with the rules of judicial disciplinary procedure
adopted by the supreme court of appeals.
§51-2A-8. Compensation and expenses of family court judges and
their staffs.
(a) Beginning the first day of October, one thousand nine
hundred ninety-nine, a family court judge is entitled to receive as
compensation for his or her services an annual salary of sixty-five
thousand dollars.
(b) The secretary-clerk of the family court judge is appointed
by the family court judge and serves at his or her will and
pleasure. The secretary-clerk of the family court judge is
entitled to receive an annual salary of twenty-two thousand three
hundred eight dollars. In addition, beginning the first day of October, one thousand nine hundred ninety-nine, any secretary-clerk
who is employed by a family law master on the effective date of
this section who has been so employed for at least two years prior
to such effective date, shall receive an additional five hundred
dollars per year up to ten years of such prior employment. Further,
the secretary-clerk will receive such percentage or proportional
salary increases as may be provided for by general law for other
public employees and is entitled to receive the annual incremental
salary increase as provided for in article five, chapter five of
this code.
(c) After the first day of October, one thousand nine hundred
ninety-nine, the family court judge may employ not more than one
family case coordinator who serves at his or her will and pleasure:
Provided, That for purposes of the initial employment of family
case coordinators, the administrative director of the supreme court
of appeals shall designate sixteen family court judges who are
authorized to employ family case coordinators, and the additional
fifteen family case coordinators may only be employed when
authorized by the administrative director of the supreme court of
appeals. The annual salary of the family case coordinator of the
family court judge shall be established by the administrative
director of the supreme court of appeals but may not exceed thirty- five thousand dollars. The family case coordinator will receive
such percentage or proportional salary increases as may be provided
for by general law for other public employees and is entitled to
receive the annual incremental salary increase as provided for in article five, chapter five of this code.
(d) Subject to the approval of the chief judge of the circuit,
the sheriff or his or her designated deputy, shall serve as a
bailiff for a family court judge. The sheriff of each county shall
serve or designate persons to serve so as to assure that a bailiff
is available when a family court judge determines the same is
necessary for the orderly and efficient conduct of the business of
the family court division of the circuit court.
(e) A special commissioner of the court appointed pursuant to
subdivision (4), subsection (a) section ten of this article is
entitled to be compensated by the supreme court of appeals at an
hourly rate not to exceed the hourly rate paid to panel attorneys
for performing work in court pursuant to the provisions of section
thirteen-a, article twenty-one, chapter twenty-nine of this code.
(f) Disbursement of salaries for family court judges and
members of their staffs are made by or pursuant to the order of the
director of the administrative office of the supreme court of
appeals.
(g) Family court judges, members of their staffs and special
commissioners of the court are allowed their actual and necessary
expenses incurred in the performance of their duties. The expenses
and compensation will be determined and paid by the director of the
administrative office of the supreme court of appeals under such
guidelines as he or she may prescribe, as approved by the supreme
court of appeals.
§51-2A-9. Rules of practice and procedure; applicability of rules of evidence; local administrative rules.
(a) Pleading, practice and procedure in matters before a
family court judge are governed by rules of practice and procedure
for family law promulgated by the supreme court of appeals pursuant
to section four, article one of this chapter.
(b) The West Virginia rules of evidence apply to proceedings
before a family court judge.
(c) The chief judge of a circuit court may promulgate local
administrative rules governing the conduct and administration of
family courts serving the circuit court. Local administrative
rules are subordinate and subject to the rules of the supreme court
of appeals or the orders of the chief justice. Rules promulgated
by the chief judge of a circuit court are made by order entered
upon the order book of the circuit court, and are effective when
filed with the clerk of the supreme court of appeals.
§51-2A-10. Matters to be heard by a family court judge.
(a) A chief judge of a circuit court shall refer to the family
court judge the following matters for hearing:
(1) Actions to obtain orders of support brought under the
provisions of section one, article five, chapter forty-eight-a of
this code;
(2) All actions to establish paternity brought under the
provisions of article six of chapter forty-eight-a of this code,
and any dependent claims related to such action regarding child
support, custody and visitation;
(3) All petitions for writs of habeas corpus wherein the issue contested is child custody;
(4) All motions for temporary relief affecting child custody,
visitation, child support, spousal support or domestic or family
violence, wherein either party has requested such referral or the
court on its own motion in individual cases or by general order has
referred such motions to the family court judge:
Provided, That if
the family court judge determines, in his or her discretion, that
the pleadings raise substantial issues concerning the
identification of separate property or the division of marital
property which may have a bearing on an award of support, the
family court judge shall notify the appropriate circuit court of
this fact and the circuit court may refer the case to a special
commissioner chosen by the circuit court to serve in such capacity;
(5) All petitions for modification of an order involving child
custody, child visitation, child support or spousal support;
(6) All actions for divorce, annulment or separate maintenance
brought pursuant to article two, chapter forty-eight of this code:
Provided, That an action for divorce, annulment or separate
maintenance which does not involve child custody or child support
shall be heard by a circuit judge if, at the time of the filing of
the action, the parties file a written property settlement
agreement which has been signed by both parties;
(7) All actions wherein an obligor is contesting the
enforcement of an order of support through the withholding from
income of amounts payable as support or is contesting an affidavit
of accrued support, filed with a circuit clerk, which seeks to collect arrearage;
(8) All actions commenced under chapter forty-eight-b of this
code or the interstate family support act of another state;
(9) Proceedings for the enforcement of support, custody or
visitation orders;
(10) All actions to establish custody of a minor child or
visitation with a minor child, including actions brought pursuant
to the uniform child custody jurisdiction act and actions brought
to establish grandparent visitation:
Provided, That any action
instituted under article six, chapter forty-nine shall be heard by
a circuit judge;
(11) Civil contempt and direct contempts:
Provided, That
criminal contempts must be heard by a circuit judge; and
(12) After the thirty-first day of December, one thousand nine
hundred ninety-nine, full hearings in domestic or family violence
proceedings wherein a protective order is sought.
(b) On its own motion or upon motion of a party, the circuit
court may revoke the referral of a particular matter to a family
court judge if the family court judge is recused, if the matter is
uncontested, or for other good cause, or if the matter will be more
expeditiously and inexpensively heard by a circuit judge without
substantially affecting the rights of parties.
§51-2A-11. Contempt powers of family court judge.
(a) A family court judge, acting in his or her capacity as a
commissioner of the circuit court, may:
(1) Sanction persons through civil contempt proceedings when necessary to preserve and enforce the rights of private parties or
to administer remedies granted by the court;
(2) Regulate all proceedings in a hearing before the family
court judge;
(3) Punish direct contempts that are offered in the presence
of the court or that obstruct or corrupt the proceedings of the
court.
(b) A family court judge may enforce compliance with his or
her lawful orders with remedial or coercive sanctions designed to
compensate a complainant for losses sustained and to coerce
obedience for the benefit of the complainant. Sanctions must give
the contemnor an opportunity to purge himself. In selecting
sanctions, the court must use the least possible power adequate to
the end proposed. A person who lacks the present ability to comply
with the order of the court may not be confined for a civil
contempt. Sanctions may include, but are not limited to, seizure
or impoundment of property to secure compliance with a prior order.
Ancillary relief may provide for an award of attorney's fees.
§51-2A-12. Effects of certain repealers or reenactments.
The repeal or reenactment of sections in article four,
chapter forty-eight of this code effected during the regular
session of the Legislature, one thousand nine hundred ninety-nine
become operable on the first day of July, one thousand nine hundred
ninety-nine. It is intended that the family law master system in
existence on the twenty-first day of March, one thousand nine
hundred ninety-nine will continue to function under the prior enactment of article four, chapter forty-eight-a of this code,
notwithstanding the repeal or the amendment and reenactment of
sections of that article, until the first day of October, one
thousand nine hundred ninety-nine when the family law master system
is replaced with the system of family court judges provided for in
this article.
ARTICLE 3. COURTS IN GENERAL.
§51-3-14. Court security fund.
(a) The offices and the clerks of the magistrate courts and
the circuit courts shall, on or before the tenth day of each month,
transmit all fees and costs received for the court security fund in
accordance with the provisions of sections one and two, article
three, chapter fifty of this code and section eleven, article one,
chapter fifty-nine of this code for deposit in the state treasury
to the credit of a special revenue fund to be known as the "Court
Security Fund", which is hereby created under the department of
military affairs and public safety. The court security fund may
receive any gifts, grants, contributions or other money from any
source which is specifically designated for deposit in the fund.
All moneys collected and received and paid into the state treasury
and credited to the court security fund shall be expended by the
board exclusively to implement the improvement measures agreed upon
in accordance with the security plans submitted pursuant to section
sixteen of this article and in accordance with an appropriation by
the Legislature:
Provided, That for the fiscal year ending the
thirtieth day of June, one thousand nine hundred ninety-seven, expenditures are authorized from collections rather than pursuant
to an appropriation by the Legislature. Amounts collected which
are found from time to time to exceed the funds needed for the
purposes set forth in this article may be transferred to other
accounts or funds and redesignated for other purposes upon
appropriation by the Legislature.
(b) Notwithstanding the provisions of subsection (a) of this
section, during the fiscal year two thousand, all fees and costs
received for the court security fund in accordance with the
provisions of sections one and two, article three, chapter fifty of
this code and section eleven, article one, chapter fifty-nine of
this code for deposit in the state treasury to the credit of a
special revenue fund to be known as the "Court Security Fund" shall
not be deposited in the court security fund, but such fees and
costs shall be transferred to the family court fund as established
under section twenty-three, article four, chapter forty-eight-a of
this code. The fees and costs that are transferred are hereby
redesignated for the purposes set forth in said section twenty- three.
(c) Notwithstanding any other provisions of this code, during
the fiscal year two thousand, all fees and costs received for the
court security fund in accordance with the provisions of this code
in addition to those specified in subsection (a) of this section
for deposit in the state treasury to the credit of a special
revenue fund to be known as the court security fund shall not be
deposited in the court security fund, but such fees and costs shall be transferred to the family court fund as established under
section twenty-three, article four, chapter forty-eight-a of this
code. The fees and costs that are transferred are hereby
redesignated for the purposes set forth in said section twenty- three.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11. Fees to be charged by clerk of circuit court.
(a) The clerk of a circuit court shall charge and collect for
services rendered as such clerk the following fees, and such fees
shall be paid in advance by the parties for whom such services are
to be rendered:
(1) For instituting any civil action under the rules of civil
procedure, any statutory summary proceeding, any extraordinary
remedy, the docketing of civil appeals, or any other action, cause,
suit or proceeding, seventy-five dollars:
Provided, That the fee
for instituting an action for divorce shall be one hundred five
dollars; and
(2) Beginning the first day of April , one thousand nine
hundred ninety-nine, for petitioning for the modification of an
order involving child custody, child visitation, child support or
spousal support, seventy-five dollars.
(b) In addition to the foregoing fees, the following fees
shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for
use in any other court or otherwise to go out of the office, for
each page, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) For issuing or renewing a suggestee execution, including
copies, postage, registered or certified mail fees and the fee
provided by section four, article five-a, chapter thirty-eight of
this code, three dollars;
(6) For vacation or modification of a suggestee execution, one
dollar;
(7) For docketing and issuing an execution on a transcript of
judgment from magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of
error, appeal or removal to any other court, five dollars:
(9) For postage and express and for sending or receiving
decrees, orders or records, by mail or express, three times the
amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or
defendant, to be paid by the party requesting the same, fifty
cents;
(11) For additional service (plaintiff or appellant) where any
case remains on the docket longer than three years, for each
additional year or part year, twenty dollars.
(c) The clerk shall tax the following fees for services in any
criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five dollars;
(2) In the case of any felony, sixty-five dollars.
(d) No such clerk shall be required to handle or accept for
disbursement any fees, cost or amounts, of any other officer or
party not payable into the county treasury, except it be on order
of the court or in compliance with the provisions of law governing
such fees, costs or accounts.
§59-1-11a. Fees to be charged by clerk of circuit court beginning
the first day of July, two thousand one.
The following fees shall be charged by the clerk of the
circuit court effective the first day of July, two thousand one:
(a) The clerk of a circuit court shall charge and collect for
services rendered as such clerk the following fees, and such fees
shall be paid in advance by the parties for whom such services are
to be rendered:
(1) For instituting any civil action under the rules of civil
procedure, any statutory summary proceeding, any extraordinary
remedy, the docketing of civil appeals, or any other action, cause,
suit or proceeding, one hundred twenty-five dollars; and
(2) For petitioning for the modification of an order involving
child custody, child visitation, child support or spousal support,
seventy-five dollars.
(b) In addition to the foregoing fees, the following fees
shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for use in any other court or otherwise to go out of the office, for
each page, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) For issuing or renewing a suggestee execution, including
copies, postage, registered or certified mail fees and the fee
provided by section four, article five-a, chapter thirty-eight of
this code, three dollars;
(6) For vacation or modification of a suggestee execution, one
dollar;
(7) For docketing and issuing an execution on a transcript of
judgment from magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of
error, appeal or removal to any other court, five dollars;
(9) For postage and express and for sending or receiving
decrees, orders or records, by mail or express, three times the
amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or
defendant, to be paid by the party requesting the same, fifty
cents;
(11) For additional service (plaintiff or appellant) where any
case remains on the docket longer than three years, for each
additional year or part year, twenty dollars.
(c) The clerk shall tax the following fees for services in any
criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five dollars;
(2) In the case of any felony, sixty-five dollars.
(d) No such clerk shall be required to handle or accept for
disbursement any fees, costs or amounts, of any other officer or
party not payable into the county treasury, except it be on order
of the court or in compliance with the provisions of law governing
such fees, costs or accounts.
(e) Notwithstanding any provisions of this code, the increase
in fees authorized pursuant to subdivision (1), subsection (a) of
this section and the fee authorized pursuant to subdivision (2),
subsection (a) of this section pursuant to the enactment of this
section shall be appropriated by the Legislature to the family
court fund established pursuant to the provisions of section
twenty-three, article four, chapter forty-eight-a of this code or
to the domestic violence legal services fund established pursuant
to the provisions of section four-c, article two-c, chapter forty- eight of this code.
§59-1-28a. Disposition of filing fees in divorce and other civil
actions and fees for services in criminal cases.
(a) Except for those payments to be made from amounts equaling
filing fees received for the institution of divorce actions as
prescribed in subsection (b) of this section, for each civil action
instituted under the rules of civil procedure, any statutory
summary proceeding, any extraordinary remedy, the docketing of
civil appeals, or any other action, cause, suit or proceeding in
the circuit court, the clerk of the court shall, at the end of each
month, pay into the funds or accounts described in this subsection an amount equal to the amount set forth in this subsection of every
filing fee received for instituting such action as follows:
(1) Into the regional jail and correctional facility
development fund in the state treasury established pursuant to the
provisions of section ten, article twenty, chapter thirty-one of
this code, the amount of sixty dollars;
(2) Into the court security fund in the state treasury
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code, the amount of five dollars.
(b) For each divorce action instituted in the circuit court,
the clerk of the court shall, at the end of each month, pay into
the funds or accounts in this subsection an amount equal to the
amount set forth in this subsection of every filing fee received
for instituting such divorce action as follows:
(1) Into the regional jail and correctional facility
development fund in the state treasury established pursuant to the
provisions of section ten, article twenty, chapter thirty-one of
this code, the amount of ten dollars;
(2) Into the special revenue account of the state treasury,
established pursuant to section twenty-four, article one, chapter
forty-eight of this code, an amount of thirty dollars;
(3) Into the family court fund in the state treasury,
established pursuant to section twenty-three, article four, chapter
forty-eight-a of this code, an amount of fifty dollars; and
(4) Into the court security fund in the state treasury,
established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
(c) For each action instituted in the circuit court
petitioning for modification of an order involving child custody,
child visitation, child support or spousal support, the clerk of
the court shall, at the end of each month, pay into the family
court fund in the state treasury, established pursuant to section
twenty-three, article four, chapter forty-eight-a of this code, an
amount equal to the amount of every filing fee received for
instituting such modification proceeding. The family law masters
fund established pursuant to section twenty-three, article four,
chapter forty-eight-a of this code will hereafter be known as "the
family court fund".
(e) The clerk of each circuit court shall, at the end of each
month, pay into the regional jail and prison development fund in
the state treasury an amount equal to forty dollars of every fee
for service received in any criminal case against any defendant
convicted in such court and shall pay an amount equal to five
dollars of every such fee into the court security fund in the state
treasury established pursuant to the provisions of section
fourteen, article three, chapter fifty-one of this code.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-29. Failure to meet an obligation to provide support to a
minor; penalties.
(1) A person who: (a) Persistently fails to provide support
which he or she can reasonably provide and which he or she knows he or she has a duty to provide to a minor; or (b) is subject to court
order to pay any amount for the support of a minor child and is
delinquent in meeting the full obligation established by the order
and has been delinquent for a period of at least six months'
duration, is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than one
thousand dollars, or imprisoned in the county jail for not more
than one year, or both fined and imprisoned.
(2) A person who persistently fails to provide support which
he or she can reasonably provide and which he or she knows he or
she has a duty to provide to a minor by virtue of a court or
administrative order and the failure results in: (a) An arrearage
of not less than eight thousand dollars; or (b) twelve consecutive
months without payment of support, is guilty of a felony and, upon
conviction thereof, shall be fined not less than one hundred
dollars nor more than one thousand dollars, or imprisoned for not
less than one year nor more than three years, or both fined and
imprisoned.
(3) In a prosecution under this section, the defendant's
alleged inability to reasonably provide the required support may be
raised only as an affirmative defense, after reasonable notice to
the state.