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.