sb437 enr

ENROLLED
Senate Bill No. 437
(By Senators Wooton, Burnette, Fanning, Hunter, Kessler, Minard, Oliverio, Redd, Ross, Rowe, Deem, Facemyer and McKenzie)
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[Passed March 16, 2001; in effect from passage.]
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AN ACT to amend and reenact sections three and eleven, article two- a, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section ten, article two-a, chapter fifty-one of said code, all relating to extending the date circuit courts and family law masters will assume jurisdiction of full hearings in domestic violence proceedings.

Be it enacted by the Legislature of West Virginia:

That sections three and eleven, article two-a, chapter forty- eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section ten, article two-a, chapter fifty-one of said code be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 2A. PREVENTION AND TREATMENT OF DOMESTIC AND FAMILY VIOLENCE.

§48-2A-3. Jurisdiction; venue; effect of petitioner's leaving residence; priority of petitions filed under this article; who may file; full faith and credit; process.

(a) Jurisdiction. -- Circuit courts and magistrate courts, as constituted under chapter fifty of this code, have concurrent jurisdiction over proceedings under this article: Provided, That on and after the first day of September, two thousand one, magistrate court jurisdiction shall be limited, and thereafter final hearings wherein a protective order is sought shall be heard before a circuit judge or a family law master.

(b) Venue. -- The action may be heard in the county in which the domestic or family violence occurred, in the county in which the respondent is living or in the county in which the petitioner is living, either temporarily or permanently. If the parties are married to each other, the action may also be brought in the county in which an action for divorce between the parties may be brought as provided by section eight, article two of this chapter.

(c) Petitioner's rights. -- The petitioner's right to relief under this article shall not be affected by his or her leaving a residence or household to avoid further abuse.

(d) Priority of petitions. -- Any petition filed under the provisions of this article shall be given priority over any other civil action before the court, except actions in which trial is in progress, and shall be docketed immediately upon filing. Any appeal to the circuit court of a magistrate's judgment on a petition for relief under this article shall be heard within ten working days of the filing of the appeal.

(e) Full faith and credit. -- Any protective order issued pursuant to this article shall be effective throughout the state in every county. Any protective order issued by any other state, territory or possession of the United States, Puerto Rico, the District of Columbia or Indian tribe shall be accorded full faith and credit and enforced as if it were an order of this state whether or not such relief is available in this state. A protective order from another jurisdiction is presumed to be valid if the order appears authentic on its face and shall be enforced in this state. If the validity of the order is contested, the court or law enforcement to which the order is presented shall, prior to the final hearing, determine the existence, validity and terms of such order in the issuing jurisdiction. A protective order from another jurisdiction may be enforced even if the order is not entered into the state law-enforcement information system described by section twelve of this article.

(f) Service by publication. -- A protective order may be served on the respondent by means of a Class I legal advertisement published notice, with the publication area being the county in which the respondent resides, published in accordance with the provisions of section two, article three, chapter fifty-nine of this code if: (i) The petitioner files an affidavit with the court stating that an attempt at personal service pursuant to rule four of the West Virginia rules of civil procedure has been unsuccessful or evidence is adduced at the hearing for the protective order that the respondent has left the state of West Virginia; and (ii) a copy of the order is mailed by certified or registered mail to the respondent at the respondent's last known residence and returned undelivered.

§48-2A-11. Appeals.

(a) Prior to the first day of September, two thousand one, any party to a temporary or final protective order entered by a magistrate may, as a matter of right, present a petition for appeal, within five days of entry of the order in magistrate court, to the circuit court. The order shall remain in effect pending an appeal unless stayed by the circuit court.

(b) On and after the first day of September, two thousand one, any party to a temporary order entered by a magistrate or a final protective order entered by a family law master may, as a matter of right, present a petition for appeal, within five days of entry of the order by the magistrate or family law master, to the circuit court. The order shall remain in effect pending an appeal unless stayed by the circuit court.

(d) In any case where a petition for appeal is filed under this section, the petition shall be heard de novo by the circuit court within ten days from the filing of the petition for appeal.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2A. CIRCUIT COURTS; FAMILY COURT DIVISION.
§51-2A-10. Matters to be heard by a family law master.

(a) A chief judge of a circuit court shall refer to the family law master the following matters for hearing:

(1) Actions to obtain orders of support brought under the provisions of section one, article five, chapter forty-eight-a of this code;

(2) All actions to establish paternity brought under the provisions of article six, chapter forty-eight-a of this code and any dependent claims related to such action regarding child support, custody and visitation;

(3) All petitions for writs of habeas corpus wherein the issue contested is child custody;

(4) All motions for temporary relief affecting child custody, visitation, child support, spousal support or domestic or family violence, wherein either party has requested such referral or the court on its own motion in individual cases or by general order has referred such motions to the family law master: Provided, That if the family law master determines, in his or her discretion, that the pleadings raise substantial issues concerning the identification of separate property or the division of marital property which may have a bearing on an award of support, the family law master shall notify the appropriate circuit court of this fact and the circuit court may refer the case to a special commissioner chosen by the circuit court to serve in such capacity;

(5) All petitions for modification of an order involving child custody, child visitation, child support or spousal support;

(6) All actions for divorce, annulment or separate maintenance brought pursuant to article two, chapter forty-eight of this code: Provided, That an action for divorce, annulment or separate maintenance which does not involve child custody or child support shall be heard by a circuit judge if, at the time of the filing of the action, the parties file a written property settlement agreement which has been signed by both parties;

(7) All actions wherein an obligor is contesting the enforcement of an order of support through the withholding from income of amounts payable as support or is contesting an affidavit of accrued support, filed with a circuit clerk, which seeks to collect arrearage;

(8) All actions commenced under chapter forty-eight-b of this code or the interstate family support act of another state;

(9) Proceedings for the enforcement of support, custody or visitation orders;

(10) All actions to establish custody of a minor child or visitation with a minor child, including actions brought pursuant to the uniform child custody jurisdiction act and actions brought to establish grandparent visitation: Provided, That any action instituted under article six, chapter forty-nine of this code shall be heard by a circuit judge;

(11) On and after the first day of October, one thousand nine hundred ninety-nine, civil contempts and direct contempts: Provided, That criminal contempts must be heard by a circuit judge; and

(12) On and after the first day of September, two thousand one, final hearings in domestic or family violence proceedings wherein a protective order is sought.

(b) On its own motion or upon motion of a party, the circuit court may revoke the referral of a particular matter to a family law master if the family law master is recused, if the matter is uncontested, or for other good cause, or if the matter will be more expeditiously and inexpensively heard by a circuit judge without substantially affecting the rights of parties.