ENROLLED
Senate Bill No. 5007
(By Senators Wooton, Burnette, Caldwell, Hunter, Kessler, Minard, Oliverio,
Redd, Ross, Rowe, Snyder, Deem and Facemyer)
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[Passed September 19, 2001; in effect from passage.]
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AN ACT 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 eight, article five,
chapter three of said code; to amend and reenact section
three, article ten of said chapter; 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
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; 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 sections
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 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; 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 sections 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, three hundred four, four hundred two, four
hundred three, five hundred one, five hundred five, five
hundred eight 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; 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 eight, article five, chapter three of said code be amended and reenacted; that section three, article ten of
said chapter 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
be amended and reenacted; 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 two, 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, three hundred four, four hundred two, four hundred
three, five hundred one, five hundred five, five hundred eight 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; 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 5.
PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-8. Filing fees and their disposition.
Every person who becomes a candidate for nomination for or
election to office in any primary election shall, at the time of
filing the certificate of announcement as required in this article,
pay a filing fee as follows:
(a) A candidate for president of the United States, for vice
president of the United States, for United States senator, for
member of the United States House of Representatives, for governor
and for all other state elective offices shall pay a fee equivalent
to one percent of the annual salary of the office for which the
candidate announces;
(b) A candidate for the office of judge of a circuit court and
judge of a family court shall pay a fee equivalent to one percent
of the total annual salary of the office for which the candidate
announces;
(c) A candidate for member of the House of Delegates shall pay
a fee of one-half percent of the total annual salary of the office
and a candidate for state senator shall pay a fee of one percent of
the total annual salary of the office;
(d) A candidate for sheriff, prosecuting attorney, circuit
clerk, county clerk, assessor, member of the county commission and
magistrate shall pay a fee equivalent to one percent of the annual
salary of the office for which the candidate announces. A
candidate for county board of education shall pay a fee of twenty-
five dollars. A candidate for any other county office shall pay a
fee of ten dollars;
(e) Delegates to the national convention of any political
party shall pay the following filing fees:
A candidate for delegate-at-large shall pay a fee of twenty
dollars; and a candidate for delegate from a congressional district
shall pay a fee of ten dollars;
(f) Candidates for members of political executive committees
and other political committees shall pay the following filing fees:
A candidate for member of a state executive committee of any
political party shall pay a fee of twenty dollars; a candidate for
member of a county executive committee of any political party shall
pay a fee of ten dollars; and a candidate for member of a congressional, senatorial or delegate district committee of any
political party shall pay a fee of five dollars.
Candidates filing for an office to be filled by the voters of
one county shall pay the filing fee to the clerk of the circuit
court and candidates filing for an office to be filled by the
voters of more than one county shall pay the filing fee to the
secretary of state at the time of filing their certificates of
announcement and no certificate of announcement shall be received
until the filing fee is paid.
All moneys received by such clerk from such fees shall be
credited to the general county fund. Moneys received by the
secretary of state from fees paid by candidates for offices to be
filled by all the voters of the state shall be deposited in a
special fund for that purpose and shall be apportioned and paid by
him to the several counties on the basis of population and that
received from candidates from a district or judicial circuit of
more than one county shall be apportioned to the counties
comprising the district or judicial circuit in like manner. When
such moneys are received by sheriffs, it shall be credited to the
general county fund.
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, judge of a circuit court or judge of a family
court is filled by the governor of the state by appointment. If
the unexpired term of a judge of the supreme court of appeals, a
judge of the circuit court or judge of a family court is for less
than two years or if the unexpired term of any other office named
in this section is for a period of less than two years and six
months, the appointment to fill the vacancy is for the unexpired
term. If the unexpired term of any office is for a longer period
than above specified, the appointment 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 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, must be published
prior to 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 the publication is each
county of the state. If the election is to fill a vacancy in the
office of judge of a circuit court or judge of a family court, the
proclamation must be published prior to 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 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 numbers 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 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 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
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 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 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 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.
(c) As used in this section, the term "legal dependents"
means:
(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 underperforming assets.
Income may be attributed to a parent if the court 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 finds that the
obligor has nonperforming or underperforming 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 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 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
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 makes a written finding that other circumstances
exist which would make the attribution of income inequitable:
Provided, That in such case, the court may decrease the amount of
attributed income to an extent required to remove such inequity.
(d) The court 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 determines is reasonable.
§48-1-216. Court defined.
"Court" means a 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 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 court judge" means a family court judge appointed or
elected and authorized to hear certain domestic relations actions
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,
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 or family 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. Upon motion and for good cause
shown, the court 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 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 circuit judge or the
family 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 article three, four, five,
eight, nine, eleven, twelve, fourteen 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 article three, four, five, eight, nine, eleven,
twelve, fourteen 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
chapter, 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. An order for temporary relief
awarding attorney's 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's 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 4. MARRIAGE CEREMONY.
§48-2-401. Persons authorized to perform marriages.
A religious representative who has complied with the
provisions of section 2-402, a family court judge, a circuit judge
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 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
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. 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 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 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.
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. 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 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.
(e) The supreme court of appeals shall develop and provide
forms for petitions filed pursuant to this section and for answers
filed pursuant to section 5-403. The forms shall be made available
for distribution in the offices of the clerks of the circuit courts and in the offices of the secretary-clerks to the family court
judges.
§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.
(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) 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) 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.
(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. An order for temporary relief
awarding attorney's 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.
(c) When it appears to the court that a party has incurred
attorney's 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's fees and costs to the other party.
§48-5-702. Revision of order enjoining abuse.
After entering an order enjoining abuse in accordance with the
provisions of section 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
a standard form for the disclosure of assets and liabilities
required by this part. 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
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.
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) 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) 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 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) The family court shall, by 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 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 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 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;
(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 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 court 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 attorney's 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 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, became operative on the first
day of January, two thousand. Until that date, parent education and
mediation with regard to custody issues 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 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) 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 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 or 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 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 court shall enter an order for a judgment
by default. Either party may move to set aside a judgment by
default, 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 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 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 court; and
(2) Subtract any extraordinary credits agreed to by the
parents or ordered by the court.
§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 basic shared parenting
arrangement. Worksheet B is used for 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 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 deems appropriate, such
information may be presented in such other forms as the court
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 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 payee parent except in cases of extended shared
parenting. In extended shared 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 need
make no allocation to that party. However, the tax exemptions for
the minor child or children should be granted to the payor parent
only if the total of the payee parent's income and child support is
greater when the exemption is awarded to the payor parent.
§48-13-902. Investment of child support.
(a) 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
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 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
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 or her 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 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 court of such fact, and the 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
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 family court;
(11) That if the obligor desires to contest the withholding,
the obligor may petition the 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 1-304
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 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 court 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: