Senate Bill No. 382
(By Senators Cookman, Stollings, Unger, Plymale and Palumbo)
[Introduced February 27, 2013; referred to the Committee on the
A Bill to amend and reenact §44-10-3 of the Code of West Virginia,
1931, as amended, relating generally to clarifying and
modifying the process of appointing and terminating guardians
Be it enacted by the Legislature of West Virginia:
That §44-10-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 10. GUARDIANS AND WARDS GENERALLY.
§44-10-3. Appointment and termination of guardian for a minor.
(a) The circuit court and family court have concurrent
jurisdiction to appoint a guardian for a minor.
(b) Venue for a petition for appointment of guardianship is in
the county in which the minor has resided for the past six months
unless the court finds extraordinary circumstances for a sooner filing. If the child is a nonresident of this state and only the
guardianship of the estate is sought the petition may be filed in
the county in which the child has an estate.
(c) Any responsible person with knowledge of the facts
regarding the welfare and best interests of a minor may petition
for an appointment of a guardian except a parent or other person
whose rights to the minor have been terminated. No guardianship
petition may be considered if the child who is the subject of the
petition is involved in another court proceeding relating to
custody or guardianship or if the petitioner is a parent seeking
custodial rights adverse to the other parent.
(d) Within five days of the filing of a petition for the
appointment of a guardian, the circuit clerk shall notify the
court. The court shall hold a hearing upon the petition for the
appointment of a guardian within ten days after the petition is
filed. If all persons entitled to service have not been served at
least five days prior to the hearing or have not waived service the
court shall continue the hearing but may appoint a temporary
guardian pursuant to subsection (f) below.
(e) The court may appoint a guardian for a minor if the court
finds by clear and convincing evidence that the appointment is in
the minor's best interest and:
(1) The parents consent;
(2) The parents' rights have been previously terminated;
(3) The parents are unwilling or unable to exercise their
(4) The parents have abandoned their rights by a material
failure to exercise them for a period of more than six months; or
(5) There are extraordinary circumstances that would, in all
reasonable likelihood, result in serious detriment to the child if
the petition is denied.
(f) Whether or not one or more of the conditions of subsection
(e) have been established, the court may appoint a temporary
guardian for a minor upon a showing that an immediate need exists
or that a period of transition into the custody of a parent is
needed so long as the appointment is in the best interest of the
minor. The temporary guardian has the authority of a guardian
appointed pursuant to subsection (e) but the duration of the
temporary guardianship may not exceed six months. A temporary
guardianship may be extended beyond six months upon further order
of the court finding continued need in the best interest of the
(g) Any suitable person may be appointed as the minor's
guardian. The father or mother shall receive priority subject only
to the provisions of subsections (c) and (e) above. However, in
every case the competency and fitness of the proposed guardian must be established and a determination made that the appointment is in
the best interest of the child.
(h) The court, the guardian or the minor may revoke or
terminate the guardianship appointment when:
(1) The minor reaches the age of eighteen and executes a
release stating that the guardian's estate was properly
administered and that the minor has received the assets of the
estate from the guardian;
(2) The guardian or the minor dies;
(3) The guardian petitions the court to resign and the court
enters an order approving the resignation; or
(4) A petition is filed by the guardian, the minor, a parent
or an interested person or upon the motion of the court stating
that the minor is no longer in need of the assistance or protection
of a guardian due to changed circumstances and the termination of
the guardianship would be in the minor's best interest.
(i) For a petition to revoke or terminate a guardianship filed
by a parent, the burden of proof is on the moving party to show by
a preponderance of the evidence that there has been a material
change of circumstances and that a revocation or termination is in
the child's best interest.
(j) A guardianship may not be terminated by the court if there
are any assets in the estate due and payable to the minor. Another guardian may be appointed upon the resignation of a guardian
whenever there are assets in the estate due and payable to the
(k) Other than court orders and case indexes, all other
records of a guardian proceeding involving a minor are confidential
and shall not be disclosed to anyone who is not a party to the
proceeding, counsel of record for the proceeding, the court
presiding over the proceeding or other family or circuit court
presiding over another proceeding involving the minor absent a
court order permitting examination of such records.
This bill is recommended for passage by the Court Improvement
Board of the Supreme Court of Appeals. It proposes a comprehensive
overhaul of W.Va. Code §44-10-3, Appointment and revocation of guardian
by county commission. This section has been mostly unchanged since
jurisdiction changed from county commissions to circuit and family courts
in 2004. The new language is more consistent with W.Va. Code §48-9-101
et. seq. (custody of children) and recent case law, including In re
Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011). It elaborates on or
makes clarification regarding who may file a petition, venue, interaction
with other court cases, service requirements, circumstances that may
warrant appointment of a guardian, who may be appointed as a guardian,
standard of evidence for appointment (clear and convincing) and burden
of proof for revocation or terminations of guardianship (preponderance
of the evidence on moving party).
This section has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.