Category Archives: Court Rules

Approved Amendments to WV Rules of Procedure for Abuse & Neglect

The West Virginia Supreme Court approved the Amended WV Rules of Procedure for Child Abuse & Neglect Proceedings by order entered November 22, 2011.

Read the rules here: http://www.courtswv.gov/legal-community/court-rules/Orders/2011/11-22-2011-ChildAbuseNeglect.pdf

Proposed Rules for Guardian Ad Litems

Proposed Guidelines for Guardian Ad Items in Family Court

The Supreme Court is requesting public comment on proposed guidelines related to the appointment of guardians ad items in family court, along with a proposed amendment to Trial Court Rule 21 related to compensation of guardians and other matters. The public comment period ends December 31, 2011.

Read the proposed guidelines here.

Outline Summary of new Appendix B:

  • GALs must take 12 CLE hours every 2 years provided by WVSC.
  • Court shall not routinely assign GALs unless reasonable cause to suspect parenting issues involve child’s safety OR the best interest of the child warrants further investigation.
  • Court shall not routinely appoint GALs where both parties are represented by counsel, unless additional investigation can’t be accomplished by counsel.
  • GAL can request clarification or modification order to clarify issues involved or functions to be performed.
  • GAL Investigation Duties:
  • Obtain & review court file
  • Obtain copies of relevant records (school, medical, CPS, etc.) necessary to understand and investigate the case.
  • Immediately contact the child and parents/caretakers upon appointment
    • schedule an in-person meeting with the child (+ duties during meeting, see rules).
    • Meet with both parents (if applicable) and/or caregivers (+ duties during meeting, see rules).
    • Interview relevant persons about child’s needs and concerns (i.e. caseworkers, therapists, school and medical personnel)(+ duties during meeting, see rules).
    • Interview any necessary relatives, neighbors or other individuals with relevant knowledge.
    • May file a motion for child or parties to seek further evaluations. Must state reasons for evaluations and seek court order.
    • Must complete investigation with sufficient time between interview and court appearance to analyze information, take appropriate actions, formulate meaningful arguments and written recommendations.
    • GAL shall communicate child’s wishes to the Court. If child’s wishes are contrary to recommendation, GAL may request that an attorney be appointed to represent the child.
    • GAL shall provide a written report, which shall include:
    • # of face to face contacts
    • outline of all records and documents reviewed
    • name of each person interviewed and manner they were interviewed
    • full explanation of any special needs or medical conditions of the child & willingness or ability to provide for the needs of the child.
    • GAL may attach any necessary documents to written report.
    • GAL shall provide the Court with specific recommendations based on the findings of the interviews and independent investigation.  If case involves parental responsibilities, GAL shall provide clear and concise requirements of both parents to accomplish the recommendation.
    • GAL shall be prepared to explain or advocate the recommendations in all proceedings before the Court.
    • GAL shall be present at all court hearings, mediation or negotiations of the parties which affect recommendations of the GAL or interests of the child.
    • GAL shall respond to all motions or appeals which effect recommendations or interest of the child.
    • GAL shall file appeals to rulings that are adverse to the best interest of the child.
    • GAL shall monitor the case for a reasonable period of time to ensure parties are complying with the Order set by the Court. GAL shall provide progress reports.

Outline Summary for revised Trial Court Rules

  • Rule 21.04: Added definition of “Active Duty Servicemember.”
  • Rule 21.05
  • Added “Active Duty Servicemember” to list of persons for whom a GAL may be appointed.
  • Cost of GAL for infant child may be ordered to be paid by Supreme Court regardless of whether both parties are indigent.
  • GAL Appointment ends for active duty servicemembers when he or she is no longer afforded protections under the Servicemembers’ Relief Act.
  • Rule 21.06:
  • Increase in GAL Compensation
  • $80/hour for out of court services
  • $100/hour for in-court services
  • Total compensation per appointment increased to $2,200 as of March 1, 2011
  • Cost of obtaining and copying court records, medical records, school records and CPS records will be reimbursed 

Amendments to Rules for Domestic Violence Civil Proceedings

The WV Supreme Court approved amendments to the Rules of Practice and Procedure for Domestic Violence Civil Proceedings, following an extended period of public comment.   The rules were effective July 15, 2011.

A copy of the rules showing the amendments can be found here.

Generally, some of the key changes are as follows:

  • No court costs or fees shall be assessed against Petitioner who fails to appear or present evidence (See Rule 3(b)).
  • The Court may assess court costs and fees against a Petitioner when a protective order is denied after presentation of evidence and testimony. (See Rule 3(d)).
  • The WV Domestic Violence database shall not be open for public inspection (See Rule 6(c).
  • counterclaim filed by the Respondent is treated as a petition for a protective order (See Rule 9).
  • A party filing a Chapter 48 action or reopening a chapter 48 action must notify the circuit clerk that a protective order is in place.  Then the clerk will issue a notice of automatic extension of the protective order. (See Rule 9(b)).
  • Domestic violence proceedings are given priority on the family court docket (See Rule 10(b)).
  • See new section related to protective orders and firearms (Rule 10b)
  • Rule 10(b)(4) provides for the return of firearms when a protective order is dimissed, terminated or expired upon petition to the court.
  • See Rule 11 regarding changes to service and 11(a) regarding order of publication;
  • See Rule 23(a) regarding children and incapacitated family or household members as parties.
  • The family court in its discretion may now hold compliance hearings without a contempt action to monitor and enforce a protective order.

*Note, these are only selected summaries of the changes and do not encompass all amendments. Click here for the full version of the rules with amendments.