West Virginia Judiciary

Rules of Practice and Procedure for Family Court

Rules 47-60

SPECIAL PROCEEDINGS AND PROCEDURES

Rule 47. Guardians ad Litem and attorneys for children (NOTICE: Rule change effective July 1, 2012 - click here for more information)

(a) Appointed attorney. - A court-appointed attorney’s services are provided to the child. An appointed attorney acts as an independent legal advocate for the best interests of the child and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted.

(b) Appointment of guardian ad litem. - Rule 21 of the West Virginia Trial Court Rules for Trial Courts of Record, Rule 47 of the Rules of Practice and Procedure for Family Court and the Guidelines for Guardians Ad Litem in Family Court set forth in Appendix B of these rules shall govern the appointment of guardians ad litem in family court cases. The order appointing a guardian ad litem shall specify the terms of the appointment, including the guardian’s role, duties and scope of authority, as well as the specific reasons for the appointment and the expectations of the court for the guardian ad litem’s report, including the date by which the written report is due. If the Guidelines for Guardians Ad Litem in Family Court conflict with other rules or statutes, the Guidelines shall apply.

(c) Guardians ad litem. - A guardian ad litem shall be an attorney licensed to practice law. A court-appointed guardian ad litem’s services are provided to the court on behalf of the child. The guardian ad litem acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The guardian ad litem submits a written report to the court and is available to testify.

(d) Investigations by guardians ad litem. - West Virginia Code § 48-9-301, § 48-9-302, and the Guidelines for Guardians Ad Litem in Family Court set forth in Appendix B of these rules shall govern investigations by guardians ad litem. If the Guidelines for Guardians Ad Litem in Family Court conflict with other rules or statutes, the Guidelines shall apply.

(e) Timing of written report. - A guardian ad litem shall submit a written report to the court and a copy to all parties on the date specified by the court not to exceed sixty (60) days from the date of entry of the order appointing the guardian ad litem. Upon proper petition of the guardian ad litem, the court, in its discretion, may seal the report or redact information that may place a child or other individual in danger.

(f) Training of guardians ad litem. – On or after January 1, 2013, the court shall only appoint a guardian ad litem that has completed the required training provided by the West Virginia Supreme Court.

[Amended by order adopted April 20, 2012, effective July 1, 2012; by order adopted October 4, 2001, effective October 4, 2001; by order adopted November 27, 2001, effective January 1, 2002; by order adopted June 9, 2005, effective June 9, 2005;  by order entered and effective December 1, 2005; and by order adopted May 22, 2007, effective July 1, 2007. ]

Rule 48. Child abuse and neglect

(a) Reports by Family Court. - If a family court has reasonable cause to suspect any minor child involved in family court proceedings has been abused or neglected, that family court shall immediately report the suspected abuse or neglect to the state child protective services agency, pursuant to W. Va. Code §§ 49-6A-2, and the circuit court.

(b) Written Referrals. - In addition to any oral communication made by the family court to the state child protective services agency pursuant to subdivision (a), the family court shall forthwith prepare and submit a written referral to the agency office in the county where the family court proceeding is pending and, at the same time, transmit copies of the referral to the appropriate circuit court in that county, as determined by the chief judge, and to the prosecuting attorney. Such written referral shall set forth the specific allegations or information that led to the family court’s determination of reasonable cause to suspect that a child or children involved in family court proceedings has been abused or neglected.

(c) Reports of Investigations of Child Abuse and Neglect. - The state child protective services agency shall promptly provide the family court, and the circuit court, and the prosecuting attorney copies of any report of any investigation regarding the abuse and neglect of any minor child involved in family court proceedings, including those investigations conducted pursuant to subsection (b) above and Rule 3a of the Rules of Procedure for Child Abuse and Neglect Proceedings.

(d) Jurisdiction of Proceedings. - The family court shall retain full jurisdiction of proceedings until an abuse or neglect petition is filed. If an abuse or neglect petition is filed and the family court has entered an order regarding the allocation of custodial and decision-making responsibility between the parents, orders of the circuit court shall supercede and take precedence over any order of the family court regarding the allocation of custodial and decision-making responsibility between the parents. If the family court has not entered an order for the allocation of custodial and decision-making responsibility between the parents, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility between the parents and defer to the orders of the circuit court.

(e) Material Change of Circumstances Reports. - While the Department of Health and Human Resources is under no duty to monitor cases for family courts, the Department shall advise the family court of any material change of circumstances involving the child or services to the child's family in any pending family court case in which the Department is involved but has not filed a petition pursuant to W. Va. Code §§ 49-6-1, et seq. The family court shall notify the Department of the closure or pendency of any such cases.

[Amended by order adopted November 27, 2001, effective January 1, 2002; by order entered and effective December 1, 2005; by order entered and effective April 3, 2006;  and by order entered and effective November 7, 2007. ]

Rule 48a. Infant Guardianship Proceedings

(a) Removal by family court to circuit court of infant guardianship cases involving child abuse and neglect. - If a family court learns that the basis, in whole or part, of a petition for infant guardianship brought pursuant to W. Va. Code §§ 44-10-3, is an allegation of child abuse and neglect as defined in W. Va. Code §§ 49-1-3, then the family court before whom the guardianship proceeding is pending shall remove the case to the circuit court for hearing. Should the family court learn of such allegations of child abuse and neglect during the hearing, then the family court shall continue the hearing, subject to an appropriate temporary guardianship order, and remove the case to the circuit court for hearing to be conducted within 10 days, for determination of all issues. Once removed, the case (or any portion) shall not be remanded to family court. At the circuit court hearing, allegations of child abuse and neglect must be proven by clear and convincing evidence. Immediately upon removal, the circuit clerk shall forthwith send the removal notice to the circuit court. Upon receipt of the removal notice, the circuit court shall forthwith cause notice to be served in accordancewith W. Va. Code §§ 44-10-3 and to the Department of Health and Human Resources who shall be served with notice of the petition, including a copy of the petition, and of the final hearing to be conducted before the circuit court. Such notice to the Department of Health and Human Resources shall constitute a report by the family and circuit courts pursuant to W. Va. Code §§ 49-6A-2.

(b) Investigation of Abuse and Neglect. - Upon removal of the infant guardianship petition, the circuit court may utilize the investigative and mandamus process and related procedures set forth in Rule 3a of the Rules of Procedure for Child Abuse and Neglect Proceedings if the court deems it necessary or appropriate under the circumstances presented. The circuit court shall allow the petitioner for infant guardianship to appear as a co-petitioner on the petition filed by the Department of Health and Human Services pursuant to W. Va. Code §§ 49-6-1, et seq., if both so agree. Nothing herein shall be construed as either a requirement that the petitioner for infant guardianship be a co-petitioner under W. Va. Code §§ 49-6-1, et seq., or a prohibition against the filing of a W. Va. Code §§ 49-6-1, et seq., petition by the petitioner for infant guardianship should the Department show cause why it will not file such a petition."

[Amended by order entered and effective November 7, 2007. ]

Rule 49. Paternity

(a) Commencement of action. - A paternity action shall be instituted by filing and serving a petition in the manner provided by these rules. If the action was not instituted by the child support enforcement agency, within five days of filing the circuit clerk shall send a copy of the case information statement to the local child support enforcement office.

(b) Case management conference/hearing. - Upon receipt of the petitioner's case information statement the court shall set a case management conference/hearing for a date certain. If paternity is not admitted prior to or during the case management conference/hearing, the court shall order the parties and the subject child to undergo genetic blood testing within a stated time period. Within three days of the conclusion of the case management conference/hearing the court shall enter a scheduling order setting a final paternity hearing for a date certain.

(c) Denial of paternity in specified cases. - In cases in which there is no paternity affidavit on record acknowledging the respondent's paternity of the child or in which the child was not conceived or born during the parties' marriage, if there is a denial of paternity in the responsive pleading, an order requiring the parties to submit to genetic blood testing shall be entered. In such cases, any hearing set pursuant to these rules may be continued until genetic blood test results are available. Within five days of the filing with the clerk of the genetic blood testing results an order shall be entered setting the case for a date certain.

(d) Actions required by respondent. - If genetic blood tests do not exclude the respondent, or if the respondent admits paternity, the respondent shall provide a completed financial statement for all years subsequent to the birth of the child, up to a maximum of three years preceding the filing of the paternity petition; and shall provide the information required by Rule 12(a)(1)-(3). Financial statements and other required information shall be filed with the circuit clerk and sent to all parties no later than 14 days before the final hearing. If the respondent fails to provide or timely provide the required information the court may impose the sanctions provided by Rule 13(b).

(e) Paternity established by default. - If the respondent has been properly served and has failed to appear, answer, or otherwise defend within the time required, paternity shall be established by default.

(f) Appointment of guardian ad litem. - A guardian ad litem shall be appointed for the child if paternity is contested, and: (1)there is a paternity affidavit on record acknowledging the respondent's paternity of the child; or (2)the child was conceived or born during the parties' marriage.

(g) Parent education required. - If a determination of paternity is made, each parent or custodian shall be ordered to complete parent education by a date certain and file a certificate of completion with the circuit clerk.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]

Rule 50. Petitions for modification

Leave of court shall not be required for filing a petition for modification. A petition for modification shall be in writing, specify facts which demonstrate good cause for relief, be filed with the circuit clerk, and sent to all parties. Within five days of the filing of a petition for modification the circuit clerk shall notify the family court. If a petition for modification is filed in a closed case, the petition shall be filed with three copies of a case information statement, and served on all parties. Within five days of receipt of a petition for modification the family court shall send a scheduling order to all parties.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]

Rule 51. Expedited modification of child support

(a) Filing procedure. - An expedited modification petition, any supporting documents, a completed Bureau for Child Support Enforcement A Information Worksheet Form, and a case information statement shall be filed with the circuit clerk. The circuit clerk shall collect the filing fee, provide the filing party with a copy of the current child support order and the child support calculations accompanying that order, and within five days of filing shall send a copy of the case information statement to the family court. After filing the petition with the circuit clerk the filing party shall take or mail to the family court a copy of the petition, any supporting documents, and a copy of the current child support order together with the child support calculations accompanying that order.

(b) Actions by family court upon receipt of petition. - The family court shall review the petition and any supporting documents, and tentatively recalculate the amount of support by application of current child support guidelines. The family court shall summarily deny the petition unless the tentative recalculation results in a support change of at least 15%. If the tentative recalculation results in a support change of at least 15%, but the circumstances set forth in the petition fail to meet the other expedited modification requirements in W. Va. Code, § 48-11-106, the family court may treat the petition as a non-expedited petition for modification. If the petition for expedited modification meets all of the requirements in W. Va. Code, § 48-11-106, the family court shall prepare a notice on the required form; and upon receipt of satisfactory proof that the fee for service by certified mail has been paid or waived, shall serve copies of the notice, the petition, and any supporting documents on the other parent and the local child support enforcement office by certified mail, return receipt requested.

(c) Time allowed to request a hearing. - A party receiving notice has 14 days from the date of the certified mailing to provide the family court judge with a written request for a hearing.

(d) Hearing requested; preparation of scheduling order. - Within five days of receiving a timely request for a hearing the family court judge shall enter a scheduling order setting a hearing for a date and time certain.

(e) No hearing requested; preparation of default order. - If no party makes a timely request for a hearing, the family court judge shall enter an order for a judgment by default setting child support at the recalculated amount.

(f) Fees for certified mail service. - Fees for certified mail service required by this rule shall be paid to the circuit clerk, and the circuit clerk shall pay all such fees into the Family Court Fund.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]

Rule 52. Relocation of a parent

A parent with responsibilities under a court ordered parenting plan who changes or intends to change residence for more than 90 days shall file with the circuit clerk and provide to the other parent a notice of relocation which complies with the requirements of W. Va. Code, § 48-9-403. Either parent may request a hearing on the relocation by filing a written request with the circuit clerk and sending a copy of the request to the family court. Within five days of receiving the request for hearing, the family court shall send the parties a scheduling order setting a relocation hearing. Either party may request an expedited hearing, which shall have priority over matters not designated by rule or statute as expedited matters.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]

Rule 53. Bifurcation

The court shall not bifurcate a divorce proceeding unless there is a compelling reason to grant the divorce prior to resolving issues related to spousal support, child support, and distribution of property; no party will be prejudiced by the bifurcation; and a temporary order has been entered granting spousal support, child support, and any other necessary relief. If a case is bifurcated, the final order shall be entered within six months of the entry of the bifurcation order.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]

Rule 54. Authority to accept waivers

The court may accept a written waiver or an oral waiver made on the record of the appointment of a committee for a convict, or the application of the Soldier's and Sailor's Civil Relief Act.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]

Rule 55. Agreements

Agreements between parties shall be reduced to writing, signed by all parties, and incorporated in an order. Agreements reached on the date of a hearing, if not in writing, shall be dictated into the record at the hearing in the presence of all parties. The court shall hold a hearing to review all agreements with child support provisions.

[Amended by order adopted November 27, 2001, effective January 1, 2002. ]

Rule 56. Interpreters

The court may appoint an interpreter of its own selection and may fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law.

[ Added by order entered and effective December 1, 2005. ]

Rule 57. Withdrawal and substitution of counsel

(a) Withdrawal of counsel. - Rule 4.03(b) of the Trial Court Rules shall govern the withdrawal of counsel.

(b) Substitution of counsel. - Rule 4.04 of the Trial Court Rules shall govern the substitution of counsel by stipulation.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]

DISQUALIFICATION OF FAMILY COURT JUDGES

Rule 58. Motions to disqualify

(a) The procedure for disqualification of family court judges shall be the same as that set forth in Trial Court Rules for Trial Courts of Record, Rule17.

(b) Assignments to hear emergency matters pending a ruling; assignments in the event of disqualification. The chief justice of the Supreme Court of Appeals may assign another family court judge, a former family law master or family court judge, circuit court judge or senior status circuit court judge to hear emergency matters pending a ruling. In the event a disqualification motion is granted the chief justice shall promptly assign another family court judge, a former family law master or family court judge, circuit court judge or senior status circuit court judge to preside over the case.”

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]

Rule 59. Compliance with Time Standards

(a) Purpose. - The time standards contained in these rules are intended to ensure that “justice shall be administered without sale, denial or delay,” in accordance with Article III, Section 17 of the West Virginia Constitution; that judges “dispose of all judicial matters promptly, efficiently, and fairly,” in accordance with Canon 3B(8) of the Code of Judicial Conduct; and that “the court, not the lawyers or litigants, should control the pace of litigation,” in accordance with Section 2.50 of the American Bar Association Standards Relating to Court Delay Reduction.

(b) Time for completion of all cases. - For cases filed after July 1, 2007 a final order shall be entered in every case within 240 days of filing of the initial pleading. All cases filed prior to July 1, 2007 shall have a final order entered by July 1, 2008.

(c) Implementation. - By July 1, 2008, the percentage of cases that each circuit shall have in compliance with section (b) above is seventy-five (75) percent.

(d) Reporting. - The Administrative Director of Courts shall receive a monthly report from the circuit clerk in each county on compliance with section (b) above.

[Added by order adopted May 22, 2007, effective July 1, 2007. ]

Rule 60. Peer Review Board

(a) Non-compliance with time standards. - Failure to comply with these standards may result in the Administrative Director of Courts making a referral to the peer review board, which shall submit a report with recommendations for remedial actions to the Administrative Director of Courts within forty-five (45) days of the referral. Following receipt of the peer review board report, the Administrative Director of Courts, with the approval of the Chief Justice of the Supreme Court of Appeals, shall take action as necessary to bring the court into compliance with these rules, including, but not limited to, recall of senior status judges, the reassignment of judges from other circuits, and/or the implementation of case management procedures, in accordance with W. Va. Code §51-2A- 19. In his or her discretion, the Administrative Director of Courts may report repeated non-compliance with these standards to the Judicial Investigation Commission.

(b) Impaneling peer review board. - The Administrative Director of Courts shall select three family court judges to serve on the peer review board. In order to stagger the terms of the peer review board members, the first set of three judges selected shall serve one-year, two-year, and three-year terms, respectively. Thereafter, each family court judge selected shall serve a two-year term.

(c) Duties and authority of peer review board. - The peer review board shall promptly investigate referrals from the Administrative Director of Courts and make a written report, including its findings and recommendations, within forty-five (45) days of the referral. The Board shall have the authority: to review the docket and cases of the Judge, interview the Judge and Judge's staff; and obtain records and documents from the circuit clerk and/or the Judge.

(d) Failure to cooperate with the peer review board may result in a complaint to the Judicial Investigation Commission.

(e) Confidentiality. - The referral of the Administrative Director of Courts, investigation, documents obtained and recommendations of the peer review board shall be confidential.

(f) Privilege and immunity. - All information provided, documents filed or testimony given with respect to any investigation or proceeding under Rules 59 and 60 herein shall be privileged in any action for defamation. All members of the peer review board, and their employees, shall be absolutely immune from civil suit in the same manner as members of the judiciary in this state for any conduct in the course of their official duties.

[Added by order adopted May 22, 2007, effective July 1, 2007. ]

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