COMMITTEE SUBSTITUTE
FOR
H. B. 509
(By Delegates Amores, Wills, Fleischauer,
R. Thompson and Webb)

(Originating in the Committee on the Judiciary)
[September 12, 2001]

A BILL to repeal article thirty, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section three, article ten, chapter three of said code; to amend and reenact section twelve, article five, chapter sixteen of said code; to amend and reenact section ten, article two, chapter seventeen-b of said code; to amend and reenact section five, article one, chapter forty-two of said code; to amend and reenact section two hundred two, two hundred five, two hundred sixteen, two hundred seventeen, two hundred twenty-one, two hundred twenty- five, two hundred twenty-six, three hundred three, three hundred four and three hundred five, article one, chapter forty-eight of said code; to amend and reenact sections four hundred one and four hundred four, article two of said chapter; to amend and reenact section one hundred one, article four of said chapter; to amend and reenact section one hundred two, one hundred three, one hundred seven, two hundred one, four hundred two, four hundred three, six hundred four, six hundred five, six hundred eleven and seven hundred two, article five of said chapter; to amend and reenact section two hundred three, article seven of said chapter; to amend and reenact sections one hundred two and one hundred five, article eight of said chapter; to amend and reenact sections one hundred four, two hundred two, four hundred three and six hundred three, article nine of said chapter; to amend and reenact sections one hundred five and one hundred six, article eleven of said chapter; to amend and reenact section one hundred one, two hundred two, two hundred four, two hundred five, seven hundred one, nine hundred one and nine hundred two, article thirteen of said chapter; to amend and reenact sections one hundred one, one hundred six, two hundred four, four hundred two, four hundred five, five hundred one and eight hundred two, article fourteen of said chapter; to amend and reenact sections two hundred five, two hundred seven and two hundred eight, article fifteen of said chapter; to amend and reenact section one hundred one, one hundred two and three hundred five, article sixteen of said chapter; to amend and reenact sections one hundred eight, one hundred eleven, one hundred fourteen, one hundred twenty-three and one hundred twenty-six, article eighteen of said chapter; to amend and reenact section one hundred two, article twenty of said chapter; to amend and reenact sections one hundred one and one hundred three, article twenty-four of said chapter; to amend and reenact sections two hundred four, two hundred five, two hundred nine, four hundred two, four hundred three, five hundred one, five hundred five and five hundred ten, article twenty-seven of said chapter; to amend and reenact article two-a, chapter fifty-one of said code; to amend and reenact section one-a, article nine of said chapter; to amend and reenact article four, chapter fifty-eight of said code; and to amend and reenact section twenty-eight-a, article one, chapter fifty-nine of said code, all relating generally to creating a family court system.

Be it enacted by the Legislature of West Virginia:

That article thirty, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section three, article ten, chapter three of said code be amended and reenacted; that section twelve, article five, chapter sixteen of said code be amended and reenacted; that section ten, article two, chapter seventeen-b of said code be amended and reenacted; that section five, article one, chapter forty-two of said code be amended and reenacted; that sections two hundred two, two hundred five, two hundred sixteen, two hundred seventeen, two hundred twenty-one, two hundred twenty-five, two hundred twenty-six, three hundred three, three hundred four and three hundred five, article one, chapter forty-eight of said code; that sections four hundred one and four hundred four, article two of said chapter be amended and reenacted; that section one hundred one, article four of said chapter be amended and reenacted; that sections one hundred two, one hundred three, one hundred seven, two hundred one, four hundred three, six hundred four, six hundred five, six hundred eleven and seven hundred two, article five of said chapter be amended and reenacted; that section two hundred three, article seven of said chapter be amended and reenacted; that sections one hundred two and one hundred five, article eight of said chapter be amended and reenacted; that sections one hundred four, two hundred two, four hundred three and six hundred three, article nine of said chapter be amended and reenacted; that sections one hundred five and one hundred six, article eleven of said chapter be amended and reenacted; that sections one hundred one, two hundred two, two hundred four, two hundred five, seven hundred one, nine hundred one and nine hundred two, article thirteen of said chapter be amended and reenacted; that sections one hundred one, one hundred six, two hundred four, four hundred two, four hundred five, five hundred one and eight hundred two, article fourteen of said chapter be amended and reenacted; that sections two hundred five, two hundred seven and two hundred eight, article fifteen of said chapter be amended and reenacted; that sections one hundred one, one hundred two and three hundred five, article sixteen of said chapter be amended and reenacted; that sections one hundred eight, one hundred eleven, one hundred fourteen, one hundred twenty-three and one hundred twenty- six, article eighteen of said chapter be amended and reenacted; that section one hundred two, article twenty of said chapter be amended and reenacted; that sections one hundred one and one hundred three, article twenty-four of said chapter be amended and reenacted; that sections two hundred four, two hundred five, two hundred nine, four hundred two, four hundred three, five hundred one, five hundred five and five hundred ten, article twenty-seven of said chapter be amended and reenacted; that article two-a, chapter fifty-one of said code be amended and reenacted; that section one-a, article nine of said chapter be amended and reenacted; that article four, chapter fifty-eight of said code be amended and reenacted; and that section twenty-eight-a, article one, chapter fifty-nine of said code be amended and reenacted, all to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 10. FILLING VACANCIES.

§3-10-3. Vacancies in offices of state officials, United States senators and judges.

Any vacancy occurring in the office of secretary of state, auditor, treasurer, attorney general, commissioner of agriculture, United States senator, judge of the supreme court of appeals, or in any office created or made elective, to be filled by the voters of the entire state, or judge of a circuit court, or judge of a family court ~~shall be~~ is filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, or a judge of the circuit court, or judge of a family court be is for less than two years, or if the unexpired term of any other office named in this section be is for a period of less than two years and six months, the appointment to fill the vacancy ~~shall be~~ is for the unexpired term. If the unexpired term of any office be is for a longer period than above specified, the appointment ~~shall be~~ is until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term. Proclamation of any election to fill an unexpired term ~~shall be~~ is made by the governor of the state, and, in the case of an office to be filled by the voters of the entire state, ~~shall~~ must be published prior to ~~such~~ the election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for ~~such~~ the publication ~~shall be~~ is each county of the state. If the election be is to fill a vacancy in the office of judge of a circuit court or judge of a family court, the proclamation ~~shall~~ must be published prior to ~~such~~ the election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication ~~shall be~~ is each county in the judicial or family court circuit.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 5. VITAL STATISTICS.

§16-5-12. Birth registration generally; acknowledgment of paternity.

(a) A certificate of birth for each live birth which occurs in this state shall be filed with the local registrar of the district in which the birth occurs within seven days after the birth and shall be registered by the registrar if it has been completed and filed in accordance with this section. When a birth occurs in a moving conveyance, a birth certificate shall be filed in the district in which the child is first removed from the conveyance. When a birth occurs in a district other than where the mother resides, a birth certificate shall be filed in the district in which the child is born and in the district in which the mother resides.

(b) When a birth occurs in an institution, the person in charge of the institution or his or her designated representative shall obtain the personal data, prepare the certificate, secure the signatures required for the certificate and file it with the local registrar. The physician in attendance shall certify to the facts of birth and provide the medical information required for the certificate within five days after the birth.

(c) When a birth occurs outside an institution, the certificate shall be prepared and filed by one of the following in the indicated order of priority:

(1) The physician in attendance at or immediately after the birth, or in the absence of such a person;

(2) Any other person in attendance at or immediately after the birth, or in the absence of such a person; or

(3) The father, the mother, or, in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred.

(d) Either of the parents of the child shall sign the certificate of live birth to attest to the accuracy of the personal data entered thereon, in time to permit its filing within the seven days prescribed above.

(e) In order that each county may have a complete record of the births occurring in said county, the local registrar shall transmit each month to the county clerk of his or her county the copies of the certificates of all births occurring in said county, from which copies the clerk shall compile a record of such births and shall enter the same in a systematic and orderly way in a well-bound register of births, which said register shall be a public record: Provided, That such copies and register shall not state that any child was either legitimate or illegitimate. The form of said register of births shall be prescribed by the state registrar of vital statistics.

(f) In addition to the personal data furnished for the certificate of birth issued for a live birth in accordance with the provisions of this section, a person whose name is to appear on such certificate of birth as a parent shall contemporaneously furnish to the person preparing and filing the certificate of birth the social security account number (or numbers, if the parent has more than one such number) issued to the parent. A record of the social security number or numbers shall be filed with the local registrar of the district in which the birth occurs within seven days after such birth, and the local registrar shall transmit such number or numbers to the state registrar of vital statistics in the same manner as other personal data is transmitted to the state registrar.

(g) If the mother was married either at the time of conception or birth, the name of the husband shall be entered on the certificate as the father of the child unless paternity has been determined otherwise by a court of competent jurisdiction pursuant to the provisions of article twenty-four, chapter forty-eight of this code or other applicable law, in which case the name of the father as determined by the court shall be entered.

(h) If the mother was not married either at the time of conception or birth, the name of the father shall not be entered on the certificate of birth without the written consent of the mother and of the person to be named as the father unless a determination of paternity has been made by a court of competent jurisdiction pursuant to the provisions of article twenty-four, chapter forty- eight of this code or other applicable law, in which case the name of the father as determined by the court shall be entered.

(i) A written, notarized acknowledgment of both the man and the woman that the man is the father of a named child legally establishes the man as the father of the child for all purposes, and child support may be established pursuant to the provisions of chapter forty-eight of this code.

(1) The written acknowledgment shall include filing instructions, the parties' social security number and addresses and a statement, given orally and in writing, of the alternatives to, the legal consequences of, and the rights and obligations of acknowledging paternity, including, but not limited to, the duty to support a child. If either of the parents is a minor, the statement shall include an explanation of any rights that may be afforded due to the minority status.

(2) The failure or refusal to include all information required by subdivision (1) of this subsection shall not affect the validity of the written acknowledgment, in the absence of a finding by a court of competent jurisdiction that the acknowledgment was obtained by fraud, duress or material mistake of fact, as provided in subdivision (4) of this subsection.

(3) The original written acknowledgment should be filed with the state registrar of vital statistics. Upon receipt of any acknowledgment executed pursuant to this section, the registrar shall forward the copy of the acknowledgment to the bureau for child support enforcement and the parents, if the address of the parents is known to the registrar. If a birth certificate for the child has been previously issued which is incorrect or incomplete, a new birth certificate shall be issued.

(4) An acknowledgment executed under the provisions of this subsection may be rescinded as follows:

(A) The parent wishing to rescind the acknowledgment shall file with the clerk of the circuit court of the county in which the child resides a verified complaint stating the name of the child, the name of the other parent, the date of the birth of the child, the date of the signing of the affidavit, and a statement that he or she wishes to rescind the acknowledgment of the paternity. If the complaint is filed more than sixty days from the date of execution or the date of an administrative or judicial proceeding relating to the child in which the signatory is a party, the complaint shall include specific allegations concerning the elements of fraud, duress or material mistake of fact.

(B) The complaint shall be served upon the other parent as provided in rule 4 of the West Virginia rules of civil procedure.

(C) The family ~~law master~~ court judge shall hold a hearing within sixty days of the service of process upon the other parent. If the complaint was filed within sixty days of the date the acknowledgment of paternity was executed, the court shall order the acknowledgment to be rescinded without any requirement of a showing of fraud, duress, or material mistake of fact. If the complaint was filed more than sixty days from the date of execution or the date of an administrative or judicial proceeding relating to the child in which the signatory is a party, the court may only set aside the acknowledgment upon a finding, by clear and convincing evidence, that the acknowledgment was executed under circumstances of fraud, duress or material mistake of fact. The circuit clerk shall forward a copy of any order entered pursuant to this proceeding to the state registrar of vital statistics by certified mail.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.

§17B-2-10. Restricted licenses.

(a) The division upon issuing a driver's license shall have authority whenever good cause appears to impose restrictions suitable to the licensee's driving ability with respect to the type of or special mechanical control devices required on a motor vehicle which the licensee may operate or such other restrictions applicable to the licensee as the division may determine to be appropriate to assure the safe operation of a motor vehicle by the licensee.

(b) The division shall issue a restricted license to a person who has failed to pay overdue child support or comply with subpoenas or warrants relating to paternity or child support proceedings, if a ~~circuit~~ court orders restrictions of the person's license as provided in article fifteen, chapter forty-eight of this code.

(c) The division may either issue a special restricted license or may set forth such restrictions upon the usual license form.

(d) The division may upon receiving satisfactory evidence of any violation of the restrictions of such license suspend or revoke the same but the licensee shall be entitled to a hearing as upon a suspension or revocation under this chapter.

(e) It is a misdemeanor for any person to operate a motor vehicle in any manner in violation of the restrictions imposed in a restricted license issued to such person.
CHAPTER 42. DESCENT AND DISTRIBUTION.
ARTICLE 1. DESCENT.
§42-1-5. From whom children born out of wedlock inherit.

(a) Children born out of wedlock shall be capable of inheriting and transmitting inheritance on the part of their mother and father.

(b) Prior to the death of the father, paternity shall be established by:

(1) Acknowledgment that he is the child's father;

(2) Adjudication on the merits pursuant to the provisions of ~~section four, article six, chapter forty-eight-a~~ article twenty- four, chapter forty-eight of this code; or

(3) By order of a court of competent jurisdiction issued in another state.

(c) After the death of the father, paternity shall be established if, after a hearing on the merits, the court shall find, by clear and convincing evidence that the man is the father of the child. The civil action shall be filed in the ~~circuit~~ family court of the county where the administration of the decedent's estate has been filed or could be filed:

(1) Within six months of the date of the final order of the county commission admitting the decedent's will to probate or commencing intestate administration of the estate; or

(2) If none of the above apply, within six months from the date of decedent's death.

(d) Any putative child who at the time of the decedent's death is under the age of eighteen years, a convict or a mentally incapacitated person may file such civil action within six months after he or she becomes of age or the disability ceases.

(e) The provisions of this section do not apply where the putative child has been lawfully adopted by another man and stands to inherit property or assets through his adopted father.

(f) The provisions of this section do not apply where the father or putative father has expressly disinherited the child in a provision of his will.

CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.

Part 2. Definitions.
§48-1-202. Adjusted gross income defined.

(a) "Adjusted gross income" means gross income less the payment of previously ordered child support, spousal support or separate maintenance.

(b) A further deduction from gross income for additional dependents may be allowed by the court ~~or master~~ if the parent has legal dependents other than those for whom support is being determined. An adjustment may be used in the establishment of a child support order or in a review of a child support order. However, in cases where a modification is sought, the adjustment should not be used to the extent that it results in a support amount lower than the previously existing order for the children who are the subject of the modification. The court ~~or master~~ may elect to use the following adjustment because it allots equitable shares of support to all of the support obligor's legal dependents. Using the income of the support obligor only, determine the basic child support obligation (from the table of basic child support obligations in section 13-301 of this chapter) for the number of additional legal dependents living with the support obligor. Multiply this figure by 0.75 and subtract this amount from the support obligor's gross income.

(1) Minor natural or adopted children who live with the parent; and

(2) Natural or adopted adult children who are totally incapacitated because of physical or emotional disabilities and for whom the parent owes a duty of support.
§48-1-205. Attributed income defined.

(a) "Attributed income" means income not actually earned by a parent, but which may be attributed to the parent because he or she is unemployed, is not working full time, or is working below full earning capacity, or has nonperforming or under-performing assets. Income may be attributed to a parent if the court ~~or master~~ evaluates the parent's earning capacity in the local economy (giving consideration to relevant evidence that pertains to the parent's work history, qualifications, education and physical or mental condition) and determines that the parent is unemployed, is not working full time, or is working below full earning capacity. Income may also be attributed to a parent if the court ~~or master~~ finds that the obligor has nonperforming or under-performing assets.

(b) If an obligor: (1) Voluntarily leaves employment or voluntarily alters his or her pattern of employment so as to be unemployed, underemployed or employed below full earning capacity; (2) is able to work and is available for full-time work for which he or she is fitted by prior training or experience; and (3) is not seeking employment in the manner that a reasonably prudent person in his or her circumstances would do, then an alternative method for the court ~~or master~~ to determine gross income is to attribute to the person an earning capacity based on his or her previous income. If the obligor's work history, qualifications, education or physical or mental condition cannot be determined, or if there is an inadequate record of the obligor's previous income, the court ~~or master~~ may, as a minimum, base attributed income on full-time employment (at forty hours per week) at the federal minimum wage in effect at the time the support obligation is established.

(c) Income shall not be attributed to an obligor who is unemployed or underemployed or is otherwise working below full earning capacity if any of the following conditions exist:

(1) The parent is providing care required by the children to whom the parties owe a joint legal responsibility for support, and such children are of preschool age or are handicapped or otherwise in a situation requiring particular care by the parent;

(2) The parent is pursuing a plan of economic self-improvement which will result, within a reasonable time, in an economic benefit to the children to whom the support obligation is owed, including, but not limited to, self-employment or education: Provided, That if the parent is involved in an educational program, the court ~~or master~~ shall ascertain that the person is making substantial progress toward completion of the program;

(3) The parent is, for valid medical reasons, earning an income in an amount less than previously earned; or

(4) The court ~~or master~~ makes a written finding that other circumstances exist which would make the attribution of income inequitable: Provided, That in such case, the court ~~or master~~ may decrease the amount of attributed income to an extent required to remove such inequity.

(d) The court ~~or master~~ may attribute income to a parent's nonperforming or under-performing assets, other than the parent's primary residence. Assets may be considered to be nonperforming or under-performing to the extent that they do not produce income at a rate equivalent to the current six-month certificate of deposit rate, or such other rate that the court ~~or master~~ determines is reasonable.
§48-1-216. Court defined.

"Court" means a ~~circuit~~ family court of this state, unless the context in which such term is used clearly indicates that reference to some other court is intended.

§48-1-217. Court of competent jurisdiction defined.

"Court of competent jurisdiction" means a circuit court or family court within this state or a court or administrative agency of another state having jurisdiction and due legal authority to deal with the subject matter of the establishment and enforcement of support obligations. Whenever in this chapter reference is made to an order of a court of competent jurisdiction, or similar wording, such language shall be interpreted so as to include orders of an administrative agency entered in a state where enforceable orders may by law be properly made and entered by such administrative agency.
§48-1-221. Divorce defined.

"Divorce" means the judicial termination of a marriage contract. The termination of a marriage contract must be based on misconduct or other statutory cause arising after the marriage. A divorce is established by the order of a family court or circuit court that changes the status of a husband and wife from a state of marriage to that of single persons.
§48-1-225. Extraordinary medical expenses defined.

"Extraordinary medical expenses" means uninsured medical expenses in excess of two hundred fifty dollars per year per child which are recurring and can reasonably be predicted by the court ~~or master~~ at the time of establishment or modification of a child support order. Such expenses shall include, but not be limited to, insurance copayments and deductibles, reasonable costs for necessary orthodontia, dental treatment, asthma treatments, physical therapy, vision therapy and eye care, and any uninsured chronic health problem.

§48-1-226. Family court judge defined.

"Family ~~law master~~ court judge" means a ~~commissioner of the circuit~~ family court judge appointed or elected and authorized to hear certain domestic relations actions ~~under section 51-2A-10~~ as provided in article two-a, chapter fifty-one of this code.
PART 3. MISCELLANEOUS PROVISIONS RELATING TO DOMESTIC RELATIONS.

§48-1-303. Confidentiality of domestic relations court files.

(a) All orders in domestic relations actions entered in the civil order books by circuit clerks are public records.

(b) Upon the filing of a domestic relations action, all pleadings, exhibits or other documents, other than orders, that are contained in the court file are confidential and not open for public inspection either during the pendency of the case or after the case is closed.

(c) When sensitive information has been disclosed during a hearing or in pleadings, evidence, or documents filed in the record, ~~a circuit judge or family law master~~ the court may, sua sponte or upon motion of a party, order such information sealed in the court file. Sealed documents or court files can only be opened by order of a circuit ~~judge~~ or family ~~law master~~ court judge.

(d) The parties, their designees, their attorneys, a duly appointed guardian ad litem or any other person who has standing to seek modification or enforcement of a support order, has the right to examine and copy any document in a confidential court file that has not been sealed by court order ~~of a circuit judge or family law master~~. Upon motion and for good cause shown, the ~~circuit~~ court ~~or family law master~~ may permit a person who is not a party to the action to examine and copy any documents that are necessary to further the interests of justice.

(e) The clerk of the circuit court shall keep a written log of all persons who examine confidential documents as provided for in this section. Every person who examines confidential documents shall first sign the clerk's written log, except for a circuit judge or family ~~law master~~ court judge before whom the case is pending, or court personnel acting within the scope of their duties. The clerk shall record the time and date of every examination of confidential documents. The log must be retained by the clerk and must be available upon request for inspection by the ~~court~~ circuit judge or the family ~~law master~~ court judge.
§48-1-304. Proceedings in contempt.

(a) Upon a verified petition for contempt, notice of hearing and hearing, if the petition alleges criminal contempt or the court informs the parties that the matter will be treated and tried as a criminal contempt, the matter shall be tried in the circuit court before a jury, unless the party charged with contempt shall knowingly and intelligently waive the right to a jury trial with the consent of the court and the other party. If the jury, or the circuit court sitting without a jury, shall find the defendant in contempt for willfully failing to comply with an order of the court made pursuant to the provisions of articles three, four, five, eight, nine, eleven, twelve, fourteen ~~and~~ or fifteen of this chapter, as charged in the petition, the court may find the person to be in criminal contempt and may commit such person to the county jail for a determinate period not to exceed six months.

(b) If trial is had under the provisions of subsection (a) of this section and the court elects to treat a finding of criminal contempt as a civil contempt, and the matter is not tried before a jury and the court finds the defendant in contempt for willfully failing to comply with an order of the court made pursuant to the provisions of articles three, four, five, eight, nine, eleven, twelve, fourteen ~~and~~ or fifteen of this chapter, and if the court further finds the person has the ability to purge himself of contempt, the court shall afford the contemnor a reasonable time and method whereby he may purge himself of contempt. If the contemnor fails or refuses to purge himself of contempt, the court may confine the contemnor to the county jail for an indeterminate period not to exceed six months or until such time as the contemnor has purged himself, whichever shall first occur. If the petition alleges civil contempt, the matter shall be heard by the family court. The family court has the same power and authority as the circuit court under the provisions of this section for criminal contempt proceedings which the circuit court elects to treat as civil contempt.

(c) In the case of a charge of contempt based upon the failure of the defendant to pay alimony, child support or separate maintenance, if the court or jury finds that the defendant did not pay because he was financially unable to pay, the defendant may not be imprisoned on charges of contempt of court.

(d) Regardless of whether the court or jury finds the defendant to be in contempt, if the court shall find that a party is in arrears in the payment of alimony, child support or separate maintenance ordered to be paid under the provisions of this article, the court shall enter judgment for such arrearage and award interest on such arrearage from the due date of each unpaid installment. Following any hearing wherein the court finds that a party is in arrears in the payment of alimony, child support or separate maintenance, the court may, if sufficient assets exist, require security to ensure the timely payment of future installments.

(e) At any time during a contempt proceeding, the court may enter an order to attach forthwith the body of, and take into custody, any person who refuses or fails to respond to the lawful process of the court or to comply with an order of the court. Such order of attachment shall require the person to be brought forthwith before the court or the judge thereof in any county in which the court may then be sitting.
§48-1-305. Suit money, counsel fees and costs.

(a) Costs may be awarded to either party as justice requires, and in all cases the court, in its discretion, may require payment of costs at any time, and may suspend or withhold any order until the costs are paid.

(b) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action ~~in the trial court~~. An order for temporary relief awarding attorney fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of such fees and costs was previously ordered. If an appeal is taken or an intention to appeal is stated, the court may further order either party to pay attorney fees and costs on appeal.

(c) When it appears to the court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.
ARTICLE 2. MARRIAGE.
PART IV. MARRIAGE CEREMONY.
§48-2-401. Persons authorized to perform marriages.

A religious representative who has complied with the provisions of section 2-402, or a family court judge, a circuit judge ~~of any court of record in this state~~ or a justice of the supreme court of appeals, is authorized to celebrate the rites of marriage in any county of this state. Celebration or solemnization of a marriage means the performance of the formal act or ceremony by which a man and woman contract marriage and assume the status of husband and wife.

For purposes of this chapter, the term "religious representative" means a minister, priest, or rabbi and includes, without being limited to, a leader or representative of a generally recognized spiritual assembly, church, or religious organization which does not formally designate or recognize persons as ministers, priests or rabbis.

§48-2-404. Ritual for ceremony of marriage by a judge or justice.

The ritual for the ceremony of marriages by ~~judges of courts of record in this state~~ a family court judge, a circuit judge or a justice of the supreme court of appeals may be as follows: At the time appointed, the persons to be married, being qualified according to the law of the state of West Virginia, standing together facing the judge, the man at the judge's left hand and the woman at the right, the judge shall say:

"We are gathered here, in the presence of these witnesses, to join together this man and this woman in matrimony. It is not to be entered into unadvisedly but discreetly, sincerely, and in dedication of life.

(Then shall the judge say to the man, using his christian name:)

"N., wilt thou have this woman to be thy wedded wife, to live together in the bonds of matrimony? Wilt thou love her, comfort her, honor and keep her in sickness and in health?

(Then the man shall answer:)

"I will.

(Then the judge shall say to the woman, using her christian name:)

"N., wilt thou have this man to be thy wedded husband, to live together in the bonds of matrimony? Wilt thou love him, comfort him, honor and keep him in sickness and health?

(The woman shall answer:)

"I will.

(Then may the judge say:)

"Who giveth this woman to be married to this man?

(The father of the woman, or whoever giveth her in marriage, shall answer:)

"I do.

(Then the judge shall ask the man to say after him:)

"I, N., take thee, N., to be my wedded wife, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love, and to cherish, as long as life shall last, and thereto I pledge thee my faith.

(Then the judge shall ask the woman to repeat after him:)

"I, N., take thee, N., to be my wedded husband, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, as long as life shall last, and thereto I pledge thee my faith.

(Then, if there be a ring, the judge shall say:)

"The wedding ring is an outward and visible sign--signifying unto all, the uniting of this man and this woman in matrimony.

(The judge then shall deliver the ring to the man to put on the third finger of the woman's left hand. The man shall say after the judge:)

"In token and pledge of the vow between us made, with this ring, I thee wed.

(Then, if there be a second ring, the judge shall deliver it to the woman to put upon the third finger of the man's left hand; and the woman shall say after the judge:)

"In token and pledge of the vow between us made, with this ring, I thee wed.

(Then shall the judge say:)

"Forasmuch as N. and N. have consented together in wedlock, and have witnessed the same each to the other and before these witnesses, and thereto have pledged their faith each to the other, and have declared the same by giving (and receiving) a ring, by virtue of the authority vested in me as judge of this court, I pronounce that they are husband and wife together."
ARTICLE 4. SEPARATE MAINTENANCE.

§48-4-101. Where an action for separate maintenance may be brought.

An action for separate maintenance may be brought in the ~~circuit~~ family court of any county where an action for divorce between the parties could be brought. An action for separate maintenance may be brought whether or not a divorce is prayed for.
ARTICLE 5. DIVORCE.

Part 1. General provisions.

§48-5-102. Subject matter jurisdiction.

(a) The Legislature hereby finds and declares that it has the authority to establish, by general law, the jurisdiction of circuit courts and family courts over domestic relations matters.

(b) The circuit courts and family courts of this state, by act of the Legislature, are vested with concurrent jurisdiction over the subject matter of divorce. ~~A circuit~~ Generally, a family court has the right and authority to adjudicate actions for divorce, and the power to carry its judgment and order into execution. Circuit courts have limited jurisdiction in divorce actions, as provided in section two, article two-a, chapter fifty-one of this code and as otherwise specifically provided in this chapter. Jurisdiction of the subject matter of divorce embraces the power to determine every issue or controverted question in an action for divorce, according to the court's view of the law and the evidence.

§48-5-103. Jurisdiction of parties; service of process.

(a) In an action for divorce, it is immaterial where the marriage was celebrated, where the parties were domiciled at the time the grounds for divorce arose, or where the marital offense was committed. If one or both of the parties is domiciled in this state at the time the action is commenced, the circuit courts and family courts of this state have jurisdiction to grant a divorce for any grounds fixed by law in this state, without any reference to the law of the place where the marriage occurred or where the marital offense was committed.

(b) A judgment order may be entered upon service of process in the manner specified in the ~~Rules of Civil Procedure~~ rules of civil procedure for the service of process upon individuals.
§48-5-107. Parties to a divorce action.

(a) Either or both of the parties to a marriage may initiate an action for divorce.

(b) A spouse who is under the age of majority has standing in a divorce action to sue, answer, or plead by a next friend.

(c) An incompetent or insane person shall sue, answer or plead by his or her committee. If a person has not been adjudicated incompetent or insane and has not been divested of the power to act on his or her own behalf, it is presumed that the person has the capacity to bring the action or be made a party respondent. This presumption may be rebutted by evidence which shows that the person cannot reasonably understand the nature and purpose of the action and the effect of his or her acts with reference to the action.

(d) The appointment of a guardian ad litem for a minor, an incompetent or an insane party is not required unless specifically ordered by the judge ~~or law master~~ hearing the action.

(e) Anyone charged as a particeps criminis shall be made a party to a divorce action, upon his or her application to the court, subject to such terms and conditions as the court may prescribe.

(f) In a divorce action where the interests of the minor children of the parties are or may be substantially different from those of either or both of the parents, and the best interests of the children may be in conflict with the desires of either or both parents, the court may make the children parties respondent and appoint a guardian ad litem to advocate and protect their rights and welfare.

Part 2. Grounds for divorce.

§48-5-201. Grounds for divorce; irreconcilable differences.

~~A circuit judge~~ The court may order a divorce if the complaint alleges that irreconcilable differences exist between the parties and an answer is filed admitting that allegation. A complaint alleging irreconcilable differences shall set forth the names of any dependent children of either or both of the parties. A divorce on this ground does not require corroboration of the irreconcilable differences or of the issues of jurisdiction or venue. The court may approve, modify or reject any agreement of the parties and make orders concerning spousal support, custodial responsibility, child support, visitation rights or property interests.

Part 4. Practice and procedure.

§48-5-402. Petition for divorce.

(a) An action for divorce is instituted by a verified petition, and the formal style and the caption for all pleadings is "In Re the marriage of ________ and ________". The parties shall be identified in all pleadings as "petitioner" and "respondent".

(b) The petition must set forth the ground or grounds for divorce. It is not necessary to allege the facts constituting a ground relied on, and a petition or counter-petition is sufficient if a ground for divorce is alleged in the language of the statute as set forth in this article. ~~A judge or law master~~ The court has the discretionary authority to grant a motion to require a more definite and certain statement, set forth in ordinary and concise language, alleging facts and not conclusions of law.

(c) If the jurisdiction of the ~~circuit~~ court to grant a divorce depends upon the existence of certain facts, including, but not limited to, facts showing domicil or domicil for a certain length of time, the petition must allege those facts. It is not necessary that allegations showing requisite domicil be in the language of the statute, but they should conform substantially thereto so that everything material to the fact of requisite domicil can be ascertained therefrom.

(d) A petition shall not be taken for confessed, and whether the respondent answers or not, the case shall be tried and heard independently of the admissions of either party in the pleadings or otherwise. No judgment order shall be granted on the uncorroborated testimony of the parties or either of them, except for a proceeding in which the grounds for divorce are irreconcilable differences.

§48-5-403. Answer to petition.

(a) The responsive pleading to a petition for divorce is denominated an answer. The form and requisites for an answer to a petition for divorce are governed by the rules of civil procedure ~~for trial courts of record~~.

(b) Except as provided in subsection (c) of this section, an allegedly guilty party who relies upon an affirmative defense must assert such defense by both pleadings and proof. Affirmative defenses include, but are not limited to, condonation, connivance, collusion, recrimination, insanity, and lapse of time.

(c) In an action in which a party seeks a divorce based on an allegation that the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year, the affirmative defenses including, but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, shall not be raised.

Part 6. Judgment Ordering Divorce.

§48-5-604. Use and occupancy of marital home.

(a) ~~A circuit~~ The court may award the exclusive use and occupancy of the marital home to a party. An order granting use and occupancy of the marital home shall include the use of any necessary household goods, furniture and furnishings. The order shall establish a definite period for the use and occupancy, ending at a specific time set forth in the order, subject to modification upon the petition of either party.

(b) Generally, an award of the exclusive use and occupancy of the marital home is appropriate when necessary to accommodate rearing minor children of the parties. Otherwise, the court may award exclusive use and occupancy only in extraordinary cases supported by specific findings set forth in the order that grants relief.

(c) An order awarding the exclusive use and occupancy of the marital home may also require payments to third parties for home loan installments, land contract payments, rent, property taxes and insurance coverage. When requiring third-party payments, the court shall reduce them to a fixed monetary amount set forth in the order. The court shall specify whether third-party payments or portions of payments are spousal support, child support, a partial distribution of marital property or an allocation of marital debt. Unless the court identifies third party payments as child support payments or as installment payments for the distribution of marital property, then such payments are spousal support. If the court does not identify the payments and the parties have waived any right to receive spousal support, the court may identify the payments upon motion by any party.

(d) This section is not intended to abrogate a contract between either party and a third party or affect the rights and liabilities of either party or a third party under the terms of a contract.

§48-5-605. Use and possession of motor vehicles.

(a) ~~A circuit~~ The court may award the exclusive use and possession of a motor vehicle or vehicles to either of the parties.

(b) The court may require payments to third parties in the form of automobile loan installments or insurance coverage, if coverage is available at reasonable rates. When requiring third-party payments, the court shall reduce them to a fixed monetary amount set forth in the order. The court shall specify whether third-party payments or portions of payments are spousal support or installment payments for the distribution of marital property.

(c) This section is not intended to abrogate a contract between either party and a third party or affect the rights and liabilities of either party or a third party under the terms of a contract.
§48-5-611. Suit money, counsel fees and costs.

(b) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action ~~in the trial court~~. An order for temporary relief awarding attorney fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of such fees and costs was previously ordered. If an appeal be taken or an intention to appeal be stated, the court may further order either party to pay attorney fees and costs on appeal.

After entering an order enjoining abuse in accordance with the provisions of section ~~5-508~~ 5-509, the court may from time to time afterward, upon motion of either of the parties and upon proper service, revise the order and enter a new order concerning the same, as the circumstances of the parties and the benefit of children may require.
ARTICLE 7. EQUITABLE DISTRIBUTION OF PROPERTY.

Part 2. Disclosure of Assets Required.

§48-7-203. Forms for disclosure of assets.

The supreme court of appeals shall prepare and make available ~~to the circuit courts~~ a standard form for the disclosure of assets and liabilities required by this part 2. The clerk of the circuit court and the secretary-clerk of the family court shall make these forms available to all parties in any divorce action or other action involving child support. All disclosure required by this part two shall be on a form that substantially complies with the form promulgated by the supreme court of appeals. The form used shall contain a statement in conspicuous print that complete disclosure of assets and liabilities is required by law and deliberate failure to provide complete disclosure as ordered by the court constitutes false swearing.
ARTICLE 8. SPOUSAL SUPPORT.
§48-8-102. Jurisdiction to award spousal support.
~~Jurisdiction to make a judicial award of spousal support is vested in the circuit courts of this state. A circuit court has jurisdiction to~~ The family courts and circuit courts, as provided in this chapter, have jurisdiction to award spousal support. A court may provide for the maintenance of a spouse during the pendency of an appeal to the circuit court or to the supreme court of appeals.
§48-8-105. Rehabilitative spousal support.

(a) ~~A circuit~~ The court may award rehabilitative spousal support for a limited period of time to allow the recipient spouse, through reasonable efforts, to become gainfully employed. When awarding rehabilitative spousal support, the court shall make specific findings of fact to explain the basis for the award, giving due consideration to the factors set forth in section 8-103 of this article. An award of rehabilitative spousal support is appropriate when the dependent spouse evidences a potential for self-support that could be developed through rehabilitation, training or academic study.

(b) ~~A circuit~~ The court may modify an award of rehabilitative spousal support if a substantial change in the circumstances under which rehabilitative spousal support was granted warrants terminating, extending or modifying the award or replacing it with an award of permanent spousal support. In determining whether a substantial change of circumstances exists which would warrant a modification of a rehabilitative spousal support award, the ~~trial~~ court may consider a reassessment of the dependent spouse's potential work skills and the availability of a relevant job market, the dependent spouse's age, health and skills, the dependent spouse's ability or inability to meet the terms of the rehabilitative plan, and other relevant factors as provided for in section 8-103 of this article.

ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION- MAKING RESPONSIBILITY OF CHILDREN.

Part 1. Scope; Objectives; Parties and Parent Education classes.
§48-9-104. Parent education classes.

(a) ~~A circuit~~ The family 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, separate maintenance or other custody proceeding 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~~ family court shall issue an order requiring parties to an action for divorce involving a minor child or children to attend parent 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~~ family court may require that each person attending a parent education class pay a fee, not to exceed twenty-five dollars, to the clerk of ~~such~~ the circuit 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 "parent education fund", which is hereby created. All moneys collected and received under this subsection and paid into the state treasury and credited to the parent education fund shall be used by the administrative office of the supreme court of appeals solely for reimbursing the provider of parent 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.
§48-9-202. 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;

(D) Mediation or other nonjudicial procedures designed to help them achieve an agreement.

(2) The court shall require the parents to attend parent education classes.

(3) If parents are unable to resolve issues and agree to a parenting plan, the court shall require mediation, unless application of the procedural rules promulgated pursuant to the provisions of subsection (b) of this section indicates that mediation is inappropriate in the particular case.

(b) The supreme court of appeals shall make and promulgate rules that will provide for premediation screening procedures to determine whether domestic violence, child abuse or neglect, acts or threats of duress or coercion, substance abuse, mental illness or other such elements would adversely affect the safety of a party, the ability of a party to meaningfully participate in the mediation, or the capacity of a party to freely and voluntarily consent to any proposed agreement reached as a result of the mediation. Such rules shall authorize a family ~~law master or~~ judge to consider alternatives to mediation which may aid the parties in establishing a parenting plan. Such rules shall not establish a per se bar to mediation if domestic violence, child abuse or neglect, acts or threats of duress or coercion, substance abuse, mental illness or other such elements exist, but may be the basis for the court, in its discretion, not to order services under subsection (a) of this section, or not to require a parent to have face-to-face meetings with the other parent.

(c) 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.

(d) Mediation services authorized under subsection (a) of this section shall be ordered at an hourly cost that is reasonable in light of the financial circumstances of each parent, assessed on a uniform sliding scale. 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. State revenues shall not be used to defray the costs for the services of a mediator: Provided, That the supreme court of appeals may use a portion of its budget to pay administrative costs associated with establishing and operating mediation programs: Provided, however, That grants and gifts to the state that may be used to fund mediation are not to be considered as state revenues for purposes of this subsection.

(e) The supreme court of appeals shall establish standards for the qualification and training of mediators.
Part 4. Modification of Parenting Plan.

§48-9-403. Relocation of a parent.

(a) The relocation of a parent constitutes a substantial change in the circumstances under subsection 9-401(a) 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 law masters~~ secretary- clerks of the family courts 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. In making such revision, the court may consider the additional costs that a relocation imposes upon the respective parties for transportation and communication, and may equitably allocate such costs between the parties.

(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 a 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 may 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.

(f) In determining the effect of the relocation or proposed relocation on a child, any interviewing or questioning of the child shall be conducted in accordance with the provisions of rule 17 of the rules of practice and procedure for family law, as promulgated by the supreme court of appeals.
Part 6. Miscellaneous Provisions.
§48-9-603. Effect of enactment; operative dates.

(a) The enactment of this article, formerly enacted as article eleven of this chapter during the second extraordinary session of the Legislature, one thousand nine hundred ninety-nine, is prospective in operation unless otherwise expressly indicated.

(b) The provisions of section 9-202, insofar as they provide for parent education and mediation, ~~become~~ became operative on the first day of January, two thousand. Until that date, parent education and mediation with regard to custody issues ~~are~~ were discretionary unless made mandatory 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~~ the 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, became operative on the first day of January, two thousand, at which time the primary caretaker doctrine was replaced with a system that allocates custodial and decision-making responsibility to the parents in accordance with this article. Any order entered prior to the first day of January, two thousand, based on the primary caretaker doctrine remains in full force and effect until modified by a court of competent jurisdiction.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-105. Modification of child support order.

(a) ~~A circuit~~ The court may modify a child support order, for the benefit of the child, when a motion is made that alleges a change in the circumstances of a parent or another proper person or persons. A motion for modification of a child support order may be brought by a custodial parent or any other lawful custodian or guardian of the child, by a parent or other person obligated to pay child support for the child, or by the bureau for child support enforcement of the department of health and human resources of this state.

(b) The provisions of the order may be modified if there is a substantial change in circumstances. If application of the guideline would result in a new order that is more than fifteen percent different, then the circumstances are considered a substantial change.

(c) An order that modifies the amount of child support to be paid shall conform to the support guidelines set forth in article 13-101, et seq. of this chapter unless the court disregards the guidelines or adjusts the award as provided for in section 13-702.

(d) The supreme court of appeals shall make available to the courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should be altered or revised because of a loss or change of employment or other substantial change affecting income, or that the amount of support required to be paid is not within fifteen percent of the child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court shall make the forms available to persons desiring to ~~file a motion pro se for a~~ represent themselves in filing a motion for modification of the support award.
§48-11-106. Expedited process for modification.

(a) An expedited process for modification of a child support order may be utilized if:

(1) Either parent experiences a substantial change of circumstances resulting in a decrease in income due to loss of employment or other involuntary cause;

(2) An increase in income due to promotion, change in employment, reemployment; or

(3) Other such change in employment status.

(b) The party seeking the recalculation of support and modification of the support order shall file a description of the decrease or increase in income and an explanation of the cause of the decrease or increase on a standardized form to be provided by the secretary-clerk or other employee of the family court. The standardized form shall be verified by the filing party. Any available documentary evidence shall 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.

(c) The secretary-clerk shall serve a notice of the filing, a copy of the standardized form, and the support calculations upon the other party by certified mail, return receipt requested, with delivery restricted to the addressee, in accordance with rule 4(d)(1)(D) of the West Virginia rules of civil procedure. The secretary-clerk shall also mail a copy, by first-class mail, to the local office of the bureau for child support enforcement for the county in which the ~~circuit~~ family court is located in the same manner as original process under rule 4(d) of the rules of civil procedure.

(d) The notice shall fix a date fourteen days from the date of mailing, and inform the party that unless the recalculation is contested and a hearing request is made on or before the date fixed, the proposed modification will be made effective. If the filing is contested, the proposed modification shall be set for hearing; otherwise, the ~~family law master shall prepare a recommended default order for entry by the circuit judge~~ court shall enter an order for a judgment by default. Either party may move to set aside ~~a default entered by the circuit clerk or~~ a judgment by default ~~entered by the clerk or the court~~, pursuant to the provisions of rule 55 or rule 60(b) of the rules of civil procedure.

(e) If an obligor uses the provisions of this section to expeditiously reduce his or her child support obligation, the order that effected the reduction shall also require the obligor to notify the obligee of reemployment, new employment or other such change in employment status that results in an increase in income. If an obligee uses the provisions of this section to expeditiously increase his or her child support obligation, the order that effected the increase shall also require the obligee to notify the obligor of reemployment, new employment or other such change in employment status that results in an increase in income of the obligee.

(f) The supreme court of appeals shall develop the standardized form required by this section.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.

Part 1. General Provisions.

§48-13-101. Guidelines to ensure uniformity and increase predictability; presumption of correctness.

This article establishes guidelines for child support award amounts so as to ensure greater uniformity by those persons who make child support recommendations and enter child support orders and to increase predictability for parents, children and other persons who are directly affected by child support orders. There is a rebuttable presumption, in any proceeding before a ~~family law master or circuit court judge~~ court for the award of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded.
Part 2. Calculation of Child Support Order.

§48-13-202. Application of expenses and credits in determining child support.

In determining the total child support obligation, the ~~judge or master~~ court shall:

(1) Add to the basic child support obligation 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 ~~judge or master,~~ court; and

(2) Subtract any extraordinary credits agreed to by the parents or ordered by the court ~~or master~~.
§48-13-204. Use of worksheets.

The calculation of the amount awarded by the support order requires the use of one of two worksheets which must be completed for each case. Worksheet A is used for a ~~sole physical custody~~ basic shared parenting arrangement. Worksheet B is used for ~~a shared physical custody~~ an extended shared parenting arrangement.

§48-13-205. Present income as monthly amounts.

To the extent practicable, all information relating to income shall be presented to the court ~~or master~~ based on monthly amounts. For example, when a party is paid wages weekly, the pay should be multiplied by fifty-two and divided by twelve to arrive at a correct monthly amount. If the court ~~or master~~ deems appropriate, such information may be presented in such other forms as the court ~~or master~~ directs.

Part 7. Application of Child Support Guidelines.

§48-13-701. Rebuttable presumption that child support award is correct.

The guidelines in child support awards apply as a rebuttable presumption to all child support orders established or modified in West Virginia. The guidelines must be applied to all actions in which child support is being determined including temporary orders, interstate (URESA and UIFSA), domestic violence, foster care, divorce, nondissolution, public assistance, nonpublic assistance and support decrees arising despite nonmarriage of the parties. The guidelines must be used by the court ~~or master~~ as the basis for reviewing adequacy of child support levels in uncontested cases as well as contested hearings.

Part 9. Miscellaneous provisions relating to Child Support Orders.

§48-13-901. Tax exemption for child due support.

Unless otherwise agreed to by the parties, the court shall allocate the right to claim dependent children for income tax purposes to the ~~custodial~~ payee parent except in cases of extended shared ~~custody~~ parenting. In extended shared ~~custody~~ parenting cases, these rights shall be allocated between the parties in proportion to their adjusted gross incomes for child support calculations. In a situation where allocation would be of no tax benefit to a party, the court ~~or master~~ need make no allocation to that party. However, the tax exemptions for the minor child or children should be granted to the ~~noncustodial~~ payor parent only if the total of the ~~custodial~~ payee parent's income and child support is greater when the exemption is awarded to the ~~noncustodial~~ payor parent.

§48-13-902. Investment of child support.

(a) ~~A circuit judge~~ The court 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 law master may recommend and the circuit judge~~ court 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 per 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.

ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.

Part 1. Action to obtain an order for support of minor child.

§48-14-101. When action may be brought for child support order.

An action may be brought in ~~circuit~~ family court to obtain an order for the support of a minor child when:

(1) The child has a parent and child relationship with an obligor;

(2) The obligor is not meeting an obligation to support the child;

(3) An enforceable order for the support of the child by the obligor has not been entered by a court of competent jurisdiction; and

(4) There is no pending action for divorce, separate maintenance or annulment in which the obligation of support owing from the obligor to the child is at issue.
§48-14-106. Modification of support order.

(a) At any time after the entry of an order for support, the court may, upon the verified petition of an obligee or the obligor, revise or alter such order, and make a new order, as the altered circumstances or needs of a child, an obligee, or the obligor may render necessary to meet the ends of justice.

(b) The supreme court of appeals shall make available to the ~~circuit~~ family courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should be altered or revised because of a loss or change of employment or other substantial change affecting income, or that the amount of support required to be paid is not within fifteen percent of the child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court shall make such forms available to persons desiring to petition the court pro se for a modification of the support award.

Part 2. Liens Against Personal property for overdue support.

§48-14-204. Execution and notice.

(a) Upon receipt of the affidavit, the clerk shall issue a writ of execution, suggestion or suggestee execution, and shall mail a copy of the affidavit and a notice of the filing of the affidavit to the obligor, at his last known address. If the bureau for child support enforcement is not acting on behalf of the obligee in filing the affidavit, the clerk shall forward a copy of the affidavit and the notice of the filing to the bureau for child support enforcement.

(b) The notice provided for in subsection (a) of this section must inform the obligor that if he or she desires to contest the affidavit on the grounds that the amount claimed to be in arrears is incorrect or that a writ of execution, suggestion or suggestee execution is not proper because of mistakes of fact, he or she must, within fourteen days of the date of the notice: (1) Inform the bureau for child support enforcement in writing of the reasons why the affidavit is contested and request a meeting with the bureau for child support enforcement; or (2) where a court of this state has jurisdiction over the parties, obtain a date for a hearing before the ~~circuit court or the family law master~~ court and mail written notice of such hearing to the obligee and to the bureau for child support enforcement on a form prescribed by the administrative office of the supreme court of appeals and made available through the office of the clerk of the circuit court.

(c) Upon being informed by an obligor that he or she desires to contest the affidavit, the bureau for child support enforcement shall inform the ~~circuit~~ court of such fact, and the ~~circuit~~ court shall require the obligor to give security, post a bond, or give some other guarantee to secure payment of overdue support.

Part 4. Withholding from income of amounts payable as support.

§48-14-402. Commencement of withholding from income without further court action.

(a) Except as otherwise provided in section 14-403, a support order as described in section 14-401 must contain or must be deemed to contain language requiring automatic income withholding for both current support and for any arrearages to commence without further court action on the date the support order is entered.

(b) The supreme court of appeals shall make available to the ~~circuit~~ family courts standard language to be included in all such orders, so as to conform such orders to the applicable requirements of state and federal law regarding the withholding from income of amounts payable as support.
§48-14-405. Information required in notice to obligor.

When income withholding is required, the bureau for child support enforcement shall send by first class mail or electronic means to the obligor notice that withholding has commenced. The notice shall inform the obligor of the following:

(1) The amount owed;

(2) That a withholding from the obligor's income of amounts payable as support has commenced;

(3) That the amount withheld will be equal to the amount required under the terms of the current support order, plus amounts for any outstanding arrearage;

(4) The definition of "gross income" as defined in section 1- 228 of this chapter;

(5) That the withholding will apply to the obligor's present source of income, and to any future source of income and, therefore, no other notice of withholding will be sent to the obligor. A copy of any new or modified withholding notice will be sent to the obligor at approximately the same time the original is sent to the source of income;

(6) That any action by the obligor to purposefully minimize his or her income will result in the enforcement of support being based upon potential and not just actual earnings;

(7) That payment of the arrearage after the date of the notice is not a bar to such withholding;

(8) That the obligor may request a review of the withholding by written request to the bureau for child support enforcement when the obligor has information showing an error in the current or overdue support amount or a mistake as to the identity of the obligor;

(9) That a mistake of fact exists only when there is an error in the amount of current or overdue support claimed in the notice, or there is a mistake as to the identity of the obligor;

(10) That matters such as lack of visitation, inappropriateness of the support award, or changed financial circumstances of the obligee or the obligor will not be considered at any hearing held pursuant to the withholding, but may be raised by the filing of a separate petition in ~~circuit~~ family court;

(11) That if the obligor desires to contest the withholding, the obligor may petition the ~~circuit~~ family court for a resolution; and

(12) That while the withholding is being contested through the court, the income withholding may not be stayed, but may be modified.

Part 5. Enforcement of support orders by contempt proceedings.

§48-14-501. Commencement of contempt action.

In addition to or in lieu of the other remedies provided by this article for the enforcement of support orders, the bureau for child support enforcement may commence a civil or criminal contempt proceeding in accordance with the provisions of section ~~1-305~~ 1-304 against an obligor who is alleged to have willfully failed or refused to comply with the order of a court of competent jurisdiction requiring the payment of support. Such proceeding shall be instituted by filing ~~with the circuit court~~ a petition for an order to show cause why the obligor should not be held in contempt.

Part 8. Increase in payments to satisfy arrearage.

§48-14-802. Notice of increase in monthly payments to satisfy overdue support.

Notice of the increase shall be sent to the obligor at the time such increase is implemented. If the obligor disagrees with the increase in payments, he or she may file, within thirty days of the date of the notice, a motion with the ~~circuit~~ court ~~in which the case is situated~~ for a determination of whether there should be an increase in monthly payments and the amount of that increase, if any.

ARTICLE 15. ENFORCEMENT OF SUPPORT ORDER THROUGH ACTION AGAINST LICENSE.

Part 2. Action Against License.

§48-15-205. Form of notice of action against a license.

The notice shall be substantially in the following form: