STATE OF WEST VIRGINIA
“RULES
OF PRACTICE AND PROCEDURE FOR FAMILY COURT”
Rule
1. Scope; conflicts.
Rule 2. Terminology.
Rule 3. Effective date.
Rule 4. Security.
Rule 5. Records; transcripts; fees; costs; forms.
Rule 6. Court files; confidentiality; access.
Rule 7. Exhibits.
Rule 8. Unofficial recording of proceedings.
Rule 9. Commencement of actions.
Rule 10. Pleadings.
Rule 11. Discovery.
Rule 12. Financial disclosure.
Rule 13. Filing and service by facsimile transmission.
Rule 14. Temporary relief motions.
Rule 15. Temporary orders.
Rule 16. Presentation of evidence by proffer.
Rule 17. Testimony of children.
Rule 18. Telephonic and videoconference hearings.
Rule 19. Continuances and scheduling conflicts.
Rule 20. Presentation of evidence by proffer; limitation.
Rule 21. Final hearings.
Rule 22. Orders; general provisions.
Rule 23. Retroactivity of child support and spousal support orders.
Rule 24. Scheduling orders.
Rule 25. Extension of time to file petition for review.
Rule 26. Oral argument on petition for review.
Rule 27. Final orders.
Rule 28. Insufficient record for review.
Rule 29. Recommitment of cases to family law master.
Rule 30. Parent education; course content; mandatory attendance; information
reporting.
Rule 31. Mediator panels; training and qualifications; information reporting.
Rule 32. Premediation screening.
Rule 33. Procedure following receipt of abbreviated premediation screening
report.
Rule 34. Mediation fees.
Rule 35. Procedure for mediator disqualification.
Rule 36. Mediation procedures.
Rule 37. Court's consideration of mediated agreement.
Rule 38. Prohibition of dual relationships in mediation and parent education.
Rule 39. Immunity.
Rule 40. Appointments of guardians ad litem and attorneys for children.
Rule 41. Child abuse and neglect.
Rule 42. Paternity.
Rule 43. Petitions for modification.
Rule 44. Expedited modification of child support.
Rule 45. Relocation of a parent.
Rule 46. Bifurcation.
Rule 47. Authority to accept waivers.
Rule 48. Agreements.
Rule 49. Obtaining confidential records.
Rule 50. Withdrawal and substitution of counsel.
Rule 51. Motions to disqualify.
Rule 52. Voluntary disqualification.
Rule 53. Conduct of proceedings following disqualification.
GENERAL PROVISIONS.
Rule 1. Scope; conflicts.
These
rules shall govern proceedings in Family Court. If these rules conflict with
other rules or statutes, these rules shall apply.
Rule 2. Terminology.
Unless
otherwise indicated: “the Code” refers to the Code of West Virginia; any
reference to a rule without identification of a set of rules, e.g., "Rule
6,” refers to a rule of the West Virginia Rules of Practice and Procedure for
Family Court; any reference to a set of rules, e.g., the “Rules of Civil
Procedure,” refers to the West Virginia rules of that title; “supreme court of
appeals” refers to the Supreme Court of Appeals of West Virginia; "court”
refers to the circuit court and the family law master; “approved” or “required”
refers to a form, fee scale, order, or procedure approved or required by the
supreme court of appeals; “case information statement” refers to a case
information statement for domestic relations cases; “service,” “served,” or “service
of process,” refers to service of process pursuant to the Rules of Civil
Procedure; “party” indicates a self-represented party, a represented party,
and/or the attorney for a party, as appropriate to the particular usage; “child
support enforcement agency” refers to the state agency charged with child
support enforcement; “local child support enforcement office” refers to the
appropriate local office of the child support enforcement agency; the use of
the plural indicates the singular if appropriate, and the use of the singular
indicates the plural if appropriate.
Rule 3. Effective date.
The rules shall take effect on the 27th day of
September, 2000, and shall govern all Family Court proceedings after this date.
Back to Index Back to Legal Resources Back to Home Page
ADMINISTRATIVE PROVISIONS.
Rule 4. Security.
Upon
a family law master's request the sheriff shall provide a bailiff for any
family court proceeding. Except for such bailiffs, or persons authorized by
order of the circuit court, no person shall carry or permit another person to
carry any weapon to a family court proceeding or upon any premises of family
court. These premises shall include, but are not limited to courtrooms,
offices, and associated public areas such as conference rooms, waiting rooms,
hallways, and parking areas.
Rule 5. Records; transcripts; fees;
costs; forms.
(a)
Records filed with the circuit clerk. _ All case files, evidence, and
recordings of proceedings shall be filed with and stored by the circuit clerk.
(b) Recordings of proceedings. _ Proceedings in
family court shall be recorded electronically on tapes or other electronic
recording media. A party may obtain a copy of a recording of the proceedings in
his/her case by filing with the circuit clerk a written request identifying the
style of the action and the date of the hearing, and paying the amount required
by chapter 48A, article 4, section 9(e) of the Code. The family law master
shall provide the copy within ten days. The court may refuse to provide a copy
of any part of a recording which includes the testimony of a child. No person
except a circuit clerk, a family law master, a circuit judge, or a member of
their staffs shall have access to an original recording.
(c) Transcripts. _ A party may have a transcript
of a hearing prepared by an independent court reporter or transcription
service. The court may refuse to permit the transcription of any testimony by a
child. The costs of such transcriptions shall be paid by the party for whom the
transcript is prepared. The transcriber shall verify the transcript as a true
and accurate record, and shall state whether the transcript includes all or
part of the proceeding. The party for whom the transcript is prepared shall
give notice of the transcript's preparation to all other parties, and may file
a copy of the transcript with the circuit clerk. When the parties are unable to
agree as to the accuracy of a transcript, the court may resolve the matter.
(d) Fees and costs. _ All fees and costs shall
be paid to and collected by the circuit clerk.
(e) Taxation of costs, fees, and attorney fees. _
Costs and fees, including attorney fees, may be taxed against a party who is
financially able to pay.
(f) Forms. _ All forms approved or required by
the supreme court of appeals shall be available in every circuit clerk's
office. The circuit clerk may charge a duplication fee for such forms. Circuit
clerks, family law masters, and their staffs shall not be required or permitted
to provide legal advice regarding such forms, or any other matter.
Rule 6. Court files; confidentiality; access.
(a)
General provisions. _ All orders are public records. All pleadings,
exhibits, transcripts, or other documents contained in a court file are
confidential, and shall not be available for public inspection; but unless the
file is sealed pursuant to this rule or access is otherwise prohibited by
order, any document in the file shall be available for inspection and copying
without an order by the parties, attorneys of record, guardians ad litem, and any
person with standing to modify or enforce a support order. A family law master
or circuit judge may open and inspect the entire contents of the court file in
any case pending before his/her court. When sensitive information has been
disclosed in a hearing, pleading, or document filing, the court may order such
information sealed in the court file. Sealed court files shall be opened only
by order.
(b) Orders permitting examination or copying of file
contents. _ Upon written motion, for good cause shown, the court may enter
an order permitting a person who is not permitted access to a court file under
section (a) of this rule to examine and/or copy documents in a file. Such
orders shall set forth specific findings which demonstrate why the interests of
justice necessitate the examination and/or copying, and shall specify the
particular documents to be examined and/or copied and the arrangements under
which such examination and/or copying shall take place.
Rule 7. Exhibits.
By
order, the court may make special provisions for the secure custody and
disposition of any exhibit. Such orders shall provide specific instructions for
custody and disposition.
Rule 8. Unofficial recording of proceedings.
Family
court proceedings are not open to the public. Unless prior permission is
granted by the court, no person shall be permitted to make photographs, video
recordings, sound recordings, or any other form of recording of proceedings, or
any sound, video, or other form of transmission or broadcast of proceedings;
and unless prior permission is granted by the court, such activities are not
permitted in areas immediately adjacent to the courtroom. With prior approval
of the court, photographs, video recordings, sound recordings, other forms of
recordings, and sound, video, or other forms of transmissions or broadcasts may
be made of ceremonial proceedings in the courtroom.
Back to Index Back to Legal Resources Back to Home Page
PREHEARING PROCEDURES.
Rule 9. Commencement of actions.
(a)
Commencement of actions. _ A domestic relations proceeding shall be
commenced by filing a verified petition with the circuit clerk. The petition
shall be accompanied by three copies of a completed case information statement.
In cases which may involve spousal support, child support, allocation of
custodial responsibility, visitation, or paternity, the petition shall be
accompanied by a completed application for child support enforcement services
pursuant to the Social Security Act, Title 42, Chapter 7, Subchapter IV, Part D
of the United States Code, hereafter referred to as a “Section IV-D
application.” Within five days of the filing of a petition the circuit clerk
shall send the family law master a copy of the case information statement.
(b) Service on respondent. _ The circuit clerk
shall forthwith issue a summons to be served as directed by the petitioner. If
the respondent is the parent of minor children subject to the action, a parent
education notice shall be served with the summons.
(c) Respondent's answer. _ The respondent shall
serve his/her answer within the time required by Rule 12 of the Rules of Civil
Procedure. In cases which may involve spousal support, child support,
allocation of custodial responsibility, visitation, or paternity the answer
shall be accompanied by a completed Section IV-D application. The respondent
shall file his/her answer with the circuit clerk within a reasonable time after
service; and shall file with the answer all documents served on the opposing
party, and three copies of a completed case information statement. Within five
days of the filing of the answer the circuit clerk shall send the family law
master a copy of the case information statement.
(d) Payment of parent education fees. _ All
parents with minor children subject to the action shall pay to the circuit
clerk a parent education fee as provided by chapter 48, article 11, section
104(c) of the Code.
(e) Requirements relating to Section IV-D
applications for child support enforcement services. _ In all cases in
which a Section IV-D application is filed with a petition or answer, within
five days of the filing the circuit clerk shall send a copy of the application
and the filing party's case information statement to the local child support
enforcement office.
Rule 10. Pleadings.
(a)
All pleadings filed in office of the circuit clerk. _ All pleadings
shall be filed in the office of the circuit clerk. The filing of pleadings
prepared without the assistance of counsel, including legible handwritten
pleadings, shall be permitted.
(b) Identifying information required; circumstances
in which identifying information may be withheld. _ All pleadings, forms,
and document filings shall include the name, address, and telephone number of
counsel; or if the party is self-represented, the party's name, address, and a
telephone number at which he/she can be reached during normal business hours.
Upon the filing of an affidavit asserting the health, safety, or liberty of a
party or child would be put at risk by the disclosure of identifying
information, or upon a finding by the court, which may be made ex parte, that
such a risk may exist, such information shall be withheld from all persons
except court personnel.
(c) Proposed parenting plans. _ Parenting plans
proposed by the parties are pleadings.
(d) Effect of service on child support enforcement
agency. _ Service on the child support enforcement agency shall not
constitute service on or notice to any other party.
Rule 11. Discovery.
As the interest of justice requires, discovery
pursuant to Rules 26 through 37 of the Rules of Civil Procedure may be ordered
by the court at any time, or may be allowed by the court upon motion
demonstrating a particular need.
Rule 12. Financial disclosure.
(a)
Required financial information on motions for temporary relief. _ The
petitioner and respondent shall file completed financial statements with the
circuit clerk no later than five days prior to the initial hearing. In cases
which may involve spousal support, child support, allocation of custodial
responsibility, visitation, or paternity, the petitioner and respondent shall
file the following information with the required financial statement:
(1) A copy of the party's most
recent wage or salary stub showing gross pay, deductions for taxes and other
items, and net pay for a normal pay period, and for the year-to-date;
(2) Copies of the party's
complete income tax returns for the two years immediately preceding the date
the petition was filed, together with copies of the federal Form W-2 for those
years; and a copy of the Form W-2 for the most recent year for which that form
is available, even if a tax return has not yet been filed for that year;
(3) For a self-employed party,
a copy of a current financial statement showing gross income, expenses, and net
income;
(4) Copies of any invoices or
receipts showing the cost of any extraordinary medical expenses for the party
or the children, of any child care expenses, and of any expenses necessitated
by the special needs of the children.
(b) Failure to file required financial information;
sanctions. _ The failure to file or untimely filing of any required
financial information shall not be grounds for a continuance. If a party fails
to file or untimely files any required financial information, the court may
refuse to grant requested relief to that party, and/or may accept the financial
information of the other party as accurate.
Rule 13. Filing and service by facsimile
transmission.
Pleadings
and other documents may be filed and served by facsimile transmission pursuant
to Trial Court Rule 12.02(b)-(f), 12.03(b)-(p), and 12.04.
Back to Index Back to Legal Resources Back to Home Page
TEMPORARY RELIEF.
Rule 14. Temporary relief motions.
A
motion for temporary relief shall be served on all parties unless ex parte
relief is sought pursuant to chapter 48, article 2, section 13(e) of the Code.
Any motion for temporary relief relating to the allocation of custodial or
decision making responsibility for minor children shall be accompanied by a
proposed temporary parenting plan.
Rule 15. Temporary orders.
A
family law master may grant temporary relief without approval of a circuit
judge. At the conclusion of every hearing in which temporary support is granted
or modified the court shall enter an order by the next business day, which
order shall not be subject to a petition for review or appeal.
Rule 16. Presentation of evidence by proffer.
Unless
otherwise ordered by the court, all temporary relief hearings shall be
conducted by the presentation of evidence by proffer. When evidence is
presented by proffer the parties shall be present, or may participate as
provided by Rule 18, and may be placed under oath to confirm or modify the
evidence proffered in their behalf. Parties shall be given an opportunity to
proffer rebuttal evidence.
Back to Index Back to Legal Resources Back to Home Page
HEARINGS.
Rule 17. Testimony
of children.
(a) Procedures for taking the testimony of children. _ Rules 8
and 9 of the Rules of Procedure for Child Abuse and Neglect Proceedings shall
govern the taking of testimony of children.
(b) Motion to offer the testimony of a child. _
A motion to offer the testimony of a child under the age of 14 shall be in
writing; and shall be filed with the circuit clerk, provided to the court, and
served on all parties not less than 20 days before the hearing. The court shall
rule on the motion no later than five days prior to the hearing.
Rule 18. Telephonic and videoconference hearings.
The
court may conduct any hearing, including an evidentiary hearing, telephonically
or by videoconference, and may permit any witness to testify or be deposed by
such methods. In telephonically conducted proceedings the official record shall
be made in the manner prescribed by the court. Videoconference proceedings
shall be conducted in accordance with the requirements established by the
supreme court of appeals.
Rule 19. Continuances and scheduling conflicts.
(a)
Requirements for motion for continuance. _ A motion for a continuance
shall be in writing and shall concisely state the grounds. The motion shall be
filed with the circuit clerk, and provided to the court and served on all
parties not less than seven days before the hearing.
(b) Action on the motion. _ No continuance shall
be granted except for good cause shown, and absent exigent circumstances no
motion for a continuance shall be granted unless all parties have been accorded
an opportunity to respond. The failure of a client to adhere to financial
arrangements with an attorney does not constitute good cause for a continuance.
The grant or denial of a motion for a continuance rests with the sound
discretion of the court. An order granting a continuance shall set the
continued proceeding for a date certain.
(c) Sanctions. _ Costs, expenses, and attorney's
fees may be assessed against the moving party if good cause is not shown for a
continuance, if the motion is filed late, or if the party has moved to continue
any hearing more than once.
(d) Resolution of scheduling conflicts. _
Scheduling conflicts shall be resolved pursuant to Rule 5 of the Trial Court
Rules.
Rule 20. Presentation of evidence by proffer; limitation.
With
the exception of hearings on temporary relief, no hearing shall be conducted
exclusively by the presentation of evidence by proffer.
Rule 21. Final hearings.
(a) Conversion of hearing to final hearing. _
By agreement of all parties placed on the record, any hearing may be converted
to a final hearing if sufficient evidence is presented to sustain the cause of
action and resolve all issues.
(b) Restriction on time for final hearing. _
Except for good cause shown and placed on the record, a final hearing shall not
be conducted prior to expiration of the time in which the respondent is
required to serve an answer.
Back to Index Back to Legal Resources Back to Home Page
ORDERS.
Rule 22. Orders; general provisions.
(a)
Requirements for timeliness and content. _ All orders shall be promptly
entered, and shall contain a provision directing the circuit clerk to provide
certified copies to all parties.
(b) Preparation of orders and findings. _ In
proceedings in which both parties are self-represented, the court shall prepare
all orders and findings of fact. In proceedings in which one or both parties
are represented by attorneys, the court may assign one or more attorneys to
prepare an order or proposed findings of fact. An attorney assigned to prepare
an order or proposed findings shall deliver the order or findings to the court
no later than ten days after the conclusion of the hearing giving rise to the
order or findings. Except for final recommended orders, within the same time
period the attorney shall send all parties copies of the order or findings
together with a notice which informs the recipients that they have five days to
send written objections to the court and all parties. If no objections are
received, the court shall enter the order and findings no later than three days
following the conclusion of the objection period. If objections are received,
the court shall enter an order and findings no later than ten days after the
receipt of the objections.
(c) Sanctions against attorneys for untimely
preparation of orders. _ If an attorney assigned to prepare an order or
proposed findings fails to prepare the order or findings in a timely manner, or
otherwise fails to comply with the provisions of this rule, the court may
direct one or more attorneys for other parties to prepare the order or
findings; and may require the attorney initially assigned to prepare the order
or findings to pay the reasonable attorney fees.
Rule 23. Retroactivity of child support and spousal support orders.
Except
for good cause shown, orders granting relief in the form of spousal support or
child support shall make such relief retroactive to the date of service of the
motion for relief.
Rule 24. Scheduling orders.
(a)
Initial scheduling orders. _ An initial scheduling order shall be entered
within 90 days after the filing of the initial pleading. The order shall set a
case management conference/hearing for a date and time certain, and shall
notify the parties whether this proceeding will be conducted by the court as a
hearing, or by a case coordinator as a conference.
(b) Subsequent scheduling orders. _ A scheduling
order shall be entered no later than five days after any hearing or conference.
Such orders shall contain a notice that any hearing may be converted to a final
hearing, and shall include dates for the submission and/or completion of any of
the following matters which have not been submitted or completed at the time
the order is entered: statements of the issues; financial disclosures;
separation agreements; witness and exhibit lists; discovery, investigations,
appraisals, tests, or evaluations; estimates of time necessary for hearings;
proposed temporary and permanent parenting plans; parenting classes.
(c) Sanctions for noncompliance with scheduling
orders. _ If a party or attorney fails to comply with a scheduling order,
fails to attend a scheduled hearing/conference, is substantially unprepared to
participate in a scheduled hearing/conference, or fails to participate in good
faith, the court may make any of the orders or impose any of the sanctions
provided by Rule 16 of the Rules of Civil Procedure.
Back to Index Back to Legal Resources Back to Home Page
REVIEW OF RECOMMENDED ORDERS.
Rule 25. Extension of time to file petition for
review.
Any
party shall be allowed one ten day extension of the time for filing a petition
for review. To obtain an extension a party shall file a notice of extension
with the circuit clerk prior to the expiration of the time provided for filing
the petition, serve copies on all parties, and send copies to the family law
master and presiding circuit judge.
Rule 26. Oral argument on petition for review.
Any
party may request oral argument on a petition for review, or the circuit court
may hold argument without a request. A request for oral argument shall be in
writing; and shall be filed with the circuit clerk, provided to the circuit
court and family law master, and served on all parties no later than 15 days
after the date the notice and recommended order was served on the requesting
party. Rulings on requests for oral argument rest with the discretion of the
circuit court. The family law master shall not be required to attend oral
argument.
Rule 27. Final orders.
The
circuit court shall enter a final order no later than 35 days after the
petition for review filing deadline date set forth in the notice of recommended
order, or no later than 50 days after that date if the circuit court takes
additional evidence or holds oral argument. The circuit clerk shall notify the
family law master of the entry of a final order.
Rule 28. Insufficient record for review.
If
essential portions of the recording of proceedings before a family law master
are inaudible or unavailable, the circuit court may recommit the case to the
family law master; may take evidence; and/or may accept from any party a
proposed statement of the pertinent facts presented below. Such statements
shall include the maker's certification the facts are accurately presented to
the best of that person's knowledge and belief, and shall be served on all
parties. Any party may object to a proposed statement of facts by filing
written objections with the circuit court within ten days of the date of
service of the statement upon them.
Rule 29. Recommitment of cases to family law master.
(a) Recommitment orders. _ An order
recommitting a case to a family law master shall be entered no later than 50
days after the petition for review filing deadline date set forth in the notice
of recommended order. A recommitment order shall particularly identify any
inaudible or unavailable portions of the recording of proceedings; shall
particularly identify any inadequacies in the evidentiary record; and shall
indicate the specific actions to be taken by the family law master upon
recommitment, including the particular evidence to be taken. At the time a case
is recommitted the circuit court shall enter such temporary orders as the
circumstances require. All recommitment orders shall direct the circuit clerk
to provide a copy to the family law master.
(b) Proceedings on recommitment. _ All
proceedings in cases recommitted to a family law master shall be concluded
within 30 days of the date of the order of recommitment; and within 50 days the
family law master shall present to the circuit court a recommended order,
findings of fact, and conclusions of law.
Back to Index Back to Legal Resources Back to Home Page
PARENT EDUCATION.
Rule 30. Parent education; course content;
mandatory attendance; information reporting.
(a)
Course content. _ All parent education courses shall be subject to
approval by the supreme court of appeals, and shall educate and instruct
parents about the following matters: (1)how to prepare a parenting plan;
(2)mediation and other non-judicial methods available to assist parents in
achieving agreement on a parenting plan; (3)the negative effects on children of
divorce and family dissolution, and the ways in which parents can lessen those
negative effects; (4)the negative effects on children of domestic abuse;
(5)resources available for dealing with domestic abuse.
(b) Mandatory attendance. _ In proceedings involving
minor children the parents shall be required to complete parent education, and
shall file with the circuit clerk a certificate of completion. For good cause
shown, parent education may be waived if the court places on the record a
finding attendance is not necessary, and states the specific reasons for the
finding. Excepting such waivers, parent education shall be completed by both
parents prior to any mediation or other non-judicial dispute resolution
undertaken to achieve agreement on a parenting plan. If mediation or other
non-judicial dispute resolution is not required, parent education shall be
completed by both parents prior to the final hearing. If one or both parents
have failed to timely complete parent education, the court may halt proceedings,
and in such circumstances shall enter a scheduling order setting the next
hearing for a date certain and requiring the parents to complete parent
education prior to that hearing. For good cause shown the court may conduct
proceedings despite the failure of one or both parents to timely complete
parent education.
(c) Information reporting. _ All court
personnel and providers of parent education shall provide the supreme court of
appeals such information as the court determines necessary for assessing these
programs.
Back to Index Back to Legal Resources Back to Home Page
MEDIATION.
Rule 31. Mediator panels; training and qualifications;
information reporting.
(a)
Panels; training and qualifications. _ Each family court shall establish
a panel of mediators meeting the qualifications and training requirements
established by the supreme court of appeals. All panel members shall be subject
to approval by the supreme court of appeals.
(b) Information reporting. _ All court personnel
and all persons providing premediation screening or mediation shall provide the
supreme court of appeals such information as the court determines necessary for
assessing these programs.
Rule 32. Premediation screening.
(a)
Orders requiring premediation screening. _ No later than five days after
a hearing or conference at which the court first determines the parties have
not agreed on a parenting plan, the court shall order both parties to complete
a premediation screening process for the purposes set forth in chapter 48,
article 11, section 202(b) of the Code. The order shall require the parties to
undergo premediation screening within 14 days of the date of the order; inform
the parties of the dates, times, and places at which premediation screening
will be held; and require the parties to meet separately and privately with a
screener.
(b) Premediation screening procedures. _ All
premediation screening shall employ the required premediation screening forms;
and shall be conducted by individuals, who may be family court personnel,
meeting the qualifications and training requirements established by the supreme
court of appeals. Screeners may report suspected child abuse or neglect as
provided by chapter 49, article 6A, section 2 of the Code, and shall so inform
the party being screened prior to the commencement of screening.
(c) Report of premediation screening. _ No later
than five days after the conclusion of premediation screening the screener
shall send a copy of the abbreviated premediation screening report to the
court. The report shall be made on the required form; identify the existence of
any of the elements listed in chapter 48, article 11, section 202(b) of the
Code; and set forth the screener's recommendations.
Rule 33. Procedure following receipt of abbreviated premediation screening report.
(a)
Parties assigned to mediation. _ Within five days of receiving the
abbreviated premediation screening report the court shall enter an order
assigning a mediator to parties recommended for mediation. The assignment order
shall set the mediation fees in accord with the approved sliding scale; require
the mediator to contact the parties and arrange for mediation to begin by a
date certain; set the next hearing for a date certain; require all mediation to
be completed before that date; direct that each party be provided a copy of the
approved mediation process document; and notify the parties they are required
to read that document or have it read to them, sign the acknowledgment, and
bring the acknowledged document to the first mediation session.
(b) Parties screened out of mediation. _ If the
abbreviated premediation screening report reveals the existence of any of the
elements listed in chapter 48, article 11, section 202(b) of the Code, and/or
recommends the screened parties should not be required to mediate, the court
shall dispense with mediation; but as provided in section 202(b), may consider
alternatives which may aid the parties in establishing a parenting plan. The
court shall not order the parties to participate in any alternative which is
not conveniently available and affordable to the parties. If the court orders
the parties participation in any such alternative it shall follow the
procedures and time requirements provided in these rules for the conduct of
premediation screening and mediation. If the court dispenses with mediation,
within five days a scheduling order shall be entered and sent to the parties
informing them they have been screened out of mediation, and setting a date
certain for the next hearing.
Rule 34. Mediation fees.
Mediation
services shall be ordered at hourly fees which are affordable to the parties
and consistent with the approved sliding scale. The court may apportion the
costs of mediation between the parties based on their abilities to pay. No mediator
may charge a fee for court ordered mediation greater than the fee provided by
the approved sliding scale.
Rule 35. Procedure for mediator disqualification.
All
mediators shall be subject to Canon 3 of the Code of Judicial Conduct regarding
disqualification. Any party may file a written motion to disqualify a mediator
for good cause. The court shall rule on the motion within ten days of the date
the motion was filed. If the motion is granted, the court shall enter an order
within five days which assigns another mediator.
Rule 36. Mediation procedures.
(a)
General provisions. _ All parties shall be prepared to negotiate.
Counsel may attend mediation. No party shall be compelled to consent to a
mediated agreement.
(b) Procedure prior to the commencement of
mediation. _ If a party arrives at the first mediation session without
having read the mediation process document, or having had it read to him/her,
the mediator shall read the document to that party and require him/her to sign
an acknowledgment to that effect. Prior to the commencement of mediation the
mediator shall inform the parties the mediator may report suspected child abuse
or neglect as provided by chapter 49, article 6A, section 2 of the Code.
(c) Procedure upon conclusion of mediation. _ If
a mediated agreement is reached, the mediator shall inform the parties the
agreement has no binding legal effect until it is adopted by court order, and
that either party may withdraw from the agreement prior to the court's adoption
of the agreement. Within five days of the conclusion of mediation, the mediator
shall reduce any mediated agreement to writing on the required form; prepare a
Mediation Outcome Report on the required form; file the agreement with the
circuit clerk; send copies of the agreement to the parties; and send a copy of
the report to the court.
(d) Confidentiality. _ All mediation
proceedings, including premediation screening, are confidential settlement
negotiations subject to Rule 25.12 of the Trial Court Rules. All persons
involved in premediation screening and mediation shall preserve the
confidentiality of negotiations, of all written materials utilized in the
processes, of all information obtained in the processes, and of all agreements;
and with the exceptions of the abbreviated premediation screening report, the
Mediation Outcome Report, and any mediated agreement, shall keep such matters
confidential from the court. No premediation screener or mediator may be
subpoenaed, called to testify, or otherwise be subject to process requiring
disclosure of confidential information in any proceeding relating to or arising
out of the dispute mediated.
Rule 37. Court's consideration of mediated
agreement.
Upon
receipt of a mediated agreement the court shall review the agreement to
determine if it is knowing, voluntary, and in the best interests of the
parties' children. The court shall cause the child support formula to be
calculated based on the allocation of custodial responsibility in the parenting
plan contained in the mediated agreement; and by way of comparison, shall cause
the child support formula to be calculated in accordance with chapter 48A,
article 1B, sections 6 and 7 of the Code. After being informed on the record of
the mediated agreement's child support implications, if the parties assent to
the agreement on the record, and if the court determines there is no impediment
to the validity of the agreement, the court shall incorporate the mediated
agreement in an order.
Rule 38. Prohibition of dual relationships
in mediation and parent education.
No
individual may serve in the same case in more than one of the following roles:
parent educator, attorney, guardian ad litem, screener, mediator, custody
investigator. An organization may provide more than one of these services in
the same case if the services are provided by different individuals, the
organization has established written procedures to prohibit the exchange of
information between such individuals, and the court approves of these procedures;
however, no organization may provide more than one of these services in the
same case if the arrangement violates the code of ethics, conduct, or
professional responsibility of the organization or the individuals providing
the services.
Rule 39. Immunity.
Mediators
and premediation screeners shall have immunity in the same manner and to the
same extent as a circuit court judge.
Back to Index Back to Legal Resources Back to Home Page
SPECIAL
PROCEEDINGS AND PROCEDURES
Rule 40. Appointments of guardians ad litem and attorneys
for children.
As
provided by chapter 48, article 11, section 302 [48- 11-302] of the Code, the
court may appoint a guardian ad litem to represent a child's best interest, or
and an attorney for to represent a child. Such The appointments shall be made
independently of any nomination by of the parties. The court shall specify the
terms of the appointment, including the guardian's or attorney's roles, duties,
scope of authority, and method of payment, if any.
Appointed
guardians may (a) serve on a voluntary basis without compensation, (b) be paid
by a litigant-parent of the child for whom the appointment is made who has the
ability to pay, or (c) in some circumstances, be paid by the Supreme Court of
Appeals. The court may appoint any attorney to serve as a guardian ad litem.
Eligibility
for Supreme Court payment for court-appointed guardians ad litem or attorneys
shall be determined by the family court using guidelines established by the
Administrative Director of the Courts. Payment shall be made from court funds
appropriated for that purpose, or from grant funds designated for that purpose,
at the rates established for compensation of attorneys pursuant to W. Va. Code,
29-21-1 to 22. The total compensation paid to guardians or attorneys from court
or grant funds shall not exceed five hundred dollars ($500.00) per appointment.
Requests for payment shall be made on forms provided by the Administrative
Director of the Courts. Requests for payment shall be reviewed and approved by
order of the court prior to submission to the Administrative Director of the
Courts for payment.
As
circumstances may warrant, at any time during the proceedings, the family court
or the circuit court, in its discretion, may tax the costs of the appointment
of a guardian ad litem or an attorney to either of the parties and require that
any compensation previously paid from court funds or grant funds be refunded to
the Administrative Director of the Courts.
The
Administrative Director of the Courts shall have the authority to approve and
pay compensation in excess of the five hundred dollars ($500.00) per
appointment in exceptional cases and for good cause shown.”
Rule 41. Child abuse and neglect.
(a)
Reports by family law masters. _ If a family law master has reasonable
cause to suspect any minor child involved in family court proceedings has been
abused or neglected, the family law master shall immediately report to the
state child protective services agency and the circuit court.
(b) Reports of investigations of child abuse and
neglect. _ The state child protective services agency shall promptly
provide the family law master and the circuit court copies of any report of any
investigation regarding the abuse or neglect of any minor child involved in
family court proceedings.
(c) Jurisdiction of proceedings. _ The family
law master shall retain full jurisdiction of proceedings until an abuse or
neglect petition is filed, or the circuit court orders proceedings held in
abeyance.
Rule 42. Paternity.
(a)
Commencement of action. _ A paternity action shall be instituted by
filing and serving a petition in the manner provided by these rules. If the
action was not instituted by the child support enforcement agency, within five
days of filing the circuit clerk shall send a copy of the case information
statement to the local child support enforcement office.
(b) Case management conference/hearing. _ Upon
receipt of the petitioner's case information statement the court shall set a
case management conference/hearing for a date certain. If paternity is not
admitted prior to or during the case management conference/hearing, the court
shall order the parties and the subject child to undergo genetic blood testing
within a stated time period. Within three days of the conclusion of the case
management conference/hearing the court shall enter a scheduling order setting
a final paternity hearing for a date certain.
(c) Actions required by respondent. _ If genetic
blood tests do not exclude the respondent, or if the respondent admits
paternity, the respondent shall provide a completed financial statement for all
years subsequent to the birth of the child, up to a maximum of three years
preceding the filing of the paternity petition; and shall provide the
information required by Rule 12(a)(1)-(3). Financial statements and other
required information shall be filed with the circuit clerk and sent to all
parties no later than 14 days before the final hearing. If the respondent fails
to provide or timely provide the required information the court may impose the
sanctions provided by Rule 12(b).
(d) Paternity established by default. _ If the
respondent has been properly served and has failed to appear, answer, or
otherwise defend within the time required, paternity shall be established by
default.
(e) Appointment of guardian ad litem. _ A
guardian ad litem shall be appointed for the child if paternity is contested,
and: (1)there is a paternity affidavit on record acknowledging the respondent's
paternity of the child; or (2)the child was conceived or born during the
parties' marriage.
(f) Parent education required. _ If a
determination of paternity is made, each parent or custodian shall be ordered
to complete parent education by a date certain and file a certificate of
completion with the circuit clerk.
Rule 43. Petitions for modification.
Leave
of court shall not be required for filing a petition for modification. A
petition for modification shall be in writing, specify facts which demonstrate
good cause for relief, be filed with the circuit clerk, and sent to all
parties. Within five days of the filing of a petition for modification the
circuit clerk shall notify the family law master. If a petition for
modification reopens a closed case, the petition shall be filed with three
copies of a case information statement, and served on all parties. Within five
days of receipt of a petition for modification the family law master shall send
a scheduling order to all parties.
Rule 44. Expedited modification of child support.
(a)
Filing procedure. _ An expedited modification petition, any supporting
documents, a completed section IV-D application, and a case information
statement shall be filed with the circuit clerk. The circuit clerk shall
collect the filing fee, provide the filing party with a copy of the current
child support order and the child support calculations accompanying that order,
and within five days of filing shall send a copy of the case information
statement to the family law master. After filing the petition with the circuit
clerk the filing party shall take or mail to the family law master office a
copy of the petition, any supporting documents, and a copy of the current child
support order together with the child support calculations accompanying that
order.
(b) Actions by family law master upon receipt of
petition. _ The family law master shall review the petition and any
supporting documents, and tentatively recalculate the amount of support by
application of current child support guidelines. The family law master shall
summarily deny the petition unless the tentative recalculation results in a
support change of at least 15%. If the tentative recalculation results in a
support change of at least 15%, but the circumstances set forth in the petition
fail to meet the other expedited modification requirements in chapter 48A,
article 1B, section 11 of the Code, the family law master may treat the
petition as a non-expedited petition for modification. If the petition for
expedited modification meets all of the requirements in chapter 48A, article
1B, section 11 of the Code, the family law master shall prepare a notice on the
required form; and upon receipt of satisfactory proof the fee for service by
certified mail has been paid or waived, shall serve copies of the notice, the
petition, and any supporting documents on the other parent and the local child
support enforcement office by certified mail, return receipt requested.
(c) Time allowed to request a hearing. _ A party
receiving notice has 14 days from the date of the certified mailing to provide
the family law master with a written request for a hearing.
(d) Hearing requested; preparation of scheduling
order. _ Within five days of receiving a timely request for a hearing the
family law master shall enter a scheduling order setting a hearing for a date
and time certain.
(e) No hearing requested; preparation of default
order. _ If no party makes a timely request for a hearing, the family law
master shall prepare a recommended default order setting child support at the
recalculated amount.
(f) Fees for certified mail service. _ Fees for
certified mail service required by this rule shall be paid to the circuit
clerk, and the circuit clerk shall pay all such fees into the Family Court
Fund.
Rule 45. Relocation of a parent.
A
parent with responsibilities under a court ordered parenting plan who changes
or intends to change residence for more than 90 days shall file with the
circuit clerk and provide to the other parent a notice of relocation which
complies with the requirements of chapter 48, article 11, section 403 of the
Code. Either parent may request a hearing on the relocation by filing a written
request with the circuit clerk and sending a copy of the request to the family
law master. Within five days of receiving the request for hearing the family
law master shall send the parties a scheduling order setting a relocation
hearing. Either party may request an expedited hearing, which shall have
priority over matters not designated by rule or statute as expedited matters.
Rule 46. Bifurcation.
The
court shall not bifurcate a divorce proceeding unless there is a compelling
reason to grant the divorce prior to resolving issues related to spousal
support, child support, and distribution of property; no party will be
prejudiced by the bifurcation; and a temporary order has been entered granting
spousal support, child support and any other necessary relief. If a case is
bifurcated, the final order shall be entered within six months of the entry of
the bifurcation order.
Rule 47. Authority to accept waivers.
The
court may accept a written waiver or an oral waiver made on the record of the right
to petition for review of a recommended order, the appointment of a committee
for a convict, or the application of the Soldier's and Sailor's Civil Relief
Act.
Rule 48. Agreements.
Agreements between parties shall be reduced to writing , signed
by all parties, and incorporated in an order. Agreements reached on the date of
a hearing, if not in writing, shall be dictated into the record at the hearing
in the presence of all parties. The court shall hold a hearing to review all
agreements with child support provisions.
Rule 49. Obtaining confidential records.
Unless
the person who is the subject of confidential records waives confidentiality in
writing, such records may not be obtained by subpoena; but only by court order
and upon full compliance with statutory and case law requirements. Such records
include, but are not limited to: confidential medical and educational records;
and confidential records of the West Virginia Department of Health and Human
Resources; the Office of Social Services; the Office of Economic Services; the
child support enforcement agency; West Virginia juvenile court proceedings;
mental health treatment and counseling; substance abuse treatment; and domestic
violence shelters.
Rule 50. Withdrawal and substitution of counsel.
(a)
Withdrawal of counsel. _ Rule 4.03(b) of the Trial Court Rules shall
govern the withdrawal of counsel. Family law masters shall have authority to
enter withdrawal orders without approval of a circuit judge.
(b) Substitution of counsel. _ Rule 4.04 of the
Trial Court Rules shall govern the substitution of counsel by stipulation.
Back to Index Back to Legal Resources Back to Home Page
DISQUALIFICATION OF FAMILY LAW MASTERS.
Rule 51. Motions to disqualify.
(a)
Requirements for motion. _ Any party may move to disqualify a family law
master. The motion shall be in writing, be verified, and state facts and
reasons supporting the disqualification. The motion shall be filed with the
circuit clerk, and provided to the family law master and served on all parties
no later than 21 days before the next scheduled hearing.
(b) Duties of family law master in response to
disqualification motion. _ Upon the filing of a disqualification motion the
family law master shall immediately halt all proceedings in the case, and shall
promptly send the presiding circuit judge a copy of the motion and the family
law master's written response stating whether good cause exists for voluntary
disqualification.
(c) Emergency proceedings pending circuit court's
consideration of motion. _ While a disqualification motion is pending, any
matters of an emergency nature in the case shall be heard by the presiding
circuit judge.
(d) Circuit court rulings. _ The presiding
circuit judge shall rule on disqualification motions within ten days of
receiving the motion. Rulings on disqualification motions rest with the
discretion of the presiding circuit judge, and are interlocutory rulings not
subject to appeal.
Rule 52. Voluntary disqualification.
A
family law master who believes he/she may be disqualified from hearing a matter
shall send the presiding circuit judge a written request for voluntary
disqualification. The filing of a disqualification motion, in and of itself,
shall not constitute grounds for voluntary disqualification. The presiding
circuit judge shall rule on voluntary disqualification requests within ten days
of receiving the request.
Rule 53. Conduct of proceedings following
disqualification.
In
the event a family law master is disqualified, the presiding circuit judge may
hear the matter, or may assign the matter to another family law master in the
same family court circuit. Such assignments may be made pursuant to a standing
administrative order of the circuit court. If another family law master is not
available in the same family court circuit, the presiding circuit judge may
request that the chief justice of the supreme court of appeals appoint a
special family law master to hear the matter.”
Back to Index Back to Legal Resources Back to Home Page