Rule 2. Terminology.

   (a) “Emergency protective order” refers to the temporary protective order entered after a W.Va. Code, § 48-27-203 emergency hearing.
     (b) “Domestic violence protective order” refers to the 90 or 180-day order entered after a W.Va. Code, § 48-27-205 final hearing.

[Amended by order adopted November 27, 2001, effective January 1, 2002]

Rule 3. Effective date.

These rules shall take effect on the first day of January 2002, and shall govern all domestic violence civil proceedings.
[Amended by order adopted November 27, 2001, effective January 1, 2002]

Rule 4. Fees.

     (a) Assessment of court costs and fees when emergency protective order "denied.” -- If the petition is denied, court costs and fees shall be assessed by the magistrate against the petitioner at the conclusion of the emergency hearing, and shall be paid to the magistrate clerk as follows, unless a fee waiver affidavit has been filed:
     (1) Magistrate Court Fund: $10.00;  
    (2) Court Security Fund: $5.00; and 
    (3) Regional Jail Authority: $10.00. 

Costs and fees may not be assessed against a prevailing party. Partial payments of costs and fees shall be applied by the magistrate clerk in the following order: Magistrate Court Fund, Court Security Fund, Regional Jail Fund, and other costs, if any. If the denial of the petition is appealed, payment of costs shall be stayed until resolution of the appeal.
   
  (b) Assessment of court costs and fees when protective order “granted” by family or circuit court. -- Except as in subsection (a) of this rule, court costs and fees shall be assessed by the family or circuit court at the conclusion of a proceeding, and shall be paid to the circuit clerk as follows, unless a fee waiver affidavit has been filed:
     (1) Family Court Fund: $25.00; 
    (2) Magistrate Court Fund: $10.00;
     (3) Court Security Fund: $5.00; and
     (4) Regional Jail Authority: $10.00. 

Court costs and fees may not be assessed against a prevailing party. Partial payments of costs and fees shall be applied by the circuit clerk in the following order: Family Court Fund, Magistrate Court Fund, Court Security Fund, Regional Jail Fund, and other costs, if any.

(c) Assessment of court costs and fees when petitioner moves to terminate protective order. - - No court costs or fees shall be assessed against a petitioner who moves to terminate a protective order, whether the court grants or denies the motion.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered December 4, 2002]


Rule 5. Waiver of fees and costs for indigents.

A person seeking waiver of fees, costs, or security pursuant to W. Va. Code §59-2-1, shall execute before the clerk where the matter is pending a fee waiver affidavit which shall be kept confidential. An additional fee waiver affidavit shall be filed whenever the financial condition of the person no longer conforms to the financial condition established by the Supreme Court of Appeals for determining inability to pay fees or whenever an order has been entered directing the filing of a new affidavit.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered December 4, 2002]


Rule 6. Confidentiality of court files.

(a) Rule 6 of the Rules of Practice and Procedure for Family Court shall govern the
confidentiality of court files in domestic violence civil proceedings.

(b) Subpoena Duces Tecum Orders Permitting Examination or Copying of File Contents . _ Pursuant to W. Va. Code §48-27-312, any record in a domestic violence civil proceeding shall be supplied to any person presenting a subpoena duces tecum issued by a state or federal court in any criminal action or any domestic violence civil proceeding. Any record obtained under this rule shall be used only in the context of the case in which the subpoena was issued and not for any other purpose.

[Amended by order entered December 4, 2002]


Rule 7. Persons allowed to be present during hearing; unofficial recording of domestic violence civil proceeding prohibited.

No person accompanying a person who is seeking to file a petition is precluded from being present if his or her presence is desired by the person seeking a petition, W. Va. Code, §48-27-307, and no person requested by a party to be present during a hearing on a petition for a protective order shall be precluded from being present unless such person is a witness in the proceeding and a motion for sequestration has been made and such motion has been granted. A person found by the court to be disruptive may be precluded from being present. W. Va. Code, §48-27-403(f). Rule 8 of the Rules of Practice and Procedure for Family Court shall govern the unofficial recording of domestic violence civil proceedings.
[Amended by order entered December 4, 2002]

Rule 8. Filing of petitions and other pleadings.

(a) Commencement of action. -- To commence an action for a protective order, a verified petition shall be filed in the magistrate court.
(b) Petition. -- The petition shall contain a short and plain statement of the facts showing that the petitioner is entitled to relief, and a demand for the relief the petitioner seeks.

(c) Pleadings filed after original petition. -- All pleadings filed after the original petition, including petitions for criminal contempt, shall be filed with the circuit clerk. Misdemeanor complaints for violation of protective orders shall be filed in the magistrate court.
    (d) Other required documents. -- The original petition and petitions for contempt or modification of a protective order shall be accompanied by a completed domestic relations civil case information statement.
    (e) Petitioner's identifying information. -- At a petitioner's request, the magistrate court shall immediately seal within the file the domestic relations civil case information statement and any other document containing the address or other identifying information for the petitioner such as the petitioner's phone number, facsimile number, or E-mail address until further order.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered December 4, 2002 and by order entered and effective April 3, 2006.]

Rule 9. Answer.

An answer and/or a counterclaim, which need not be verified, may be filed and served by the respondent prior to the family court hearing or filed with the family court judge and served at the hearing. If the answer is filed thereafter, it shall be filed with the circuit clerk pursuant to Rule 8(c) of these rules.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered December 4, 2002]


Rule 10. Notice of family court final hearing.
        
(a) Magistrate court shall serve notice of family court final hearing. -- At the conclusion of the hearing during which an emergency protective order or a temporary emergency protective order has been granted, the magistrate court shall cause the parties to be served with notice of the family court final hearing. If personal service is unsuccessful, the circuit clerk shall cause service to be made in accordance with Rule 11(a).

(b) Scheduling information. -- The family court shall provide the magistrate court with dates and times during which family court final hearings may be scheduled.

[Amended by order adopted November 27, 2001, effective January 1, 2002]


Rule 11. Service.

    (a) Service of the petition and emergency protective order or temporary emergency protective order. _ If the respondent is present at the emergency hearing, the order shall be served by the magistrate upon the respondent at the conclusion of the hearing. If the respondent is not present at the hearing, the petition and emergency protective order or temporary emergency protective order shall be immediately served by law enforcement. If personal service has been unsuccessful, the respondent shall be served in accordance with W.Va. Code, §48-27-311.

(b) Service of domestic violence protective order. -- If a party is present at the family court hearing where a domestic violence protective order has been entered, the domestic violence protective order shall be served by the family court judge upon the party at the conclusion of the final hearing. If a party is not present at the final hearing, then the domestic violence protective order shall be immediately served by law enforcement upon the party who was not present. If personal service of the domestic violence protective order upon a party has been unsuccessful, the party shall be served in accordance with W. Va. Code §48-27-311.
 
 (c) Service of an order continuing an emergency protective order, an extension of a protective order, a petition for the contempt or modification of a protective order. -- An order continuing an emergency protective order, an order extending a protective order for an additional ninety days, and a petition for the contempt or modification of a protective order, shall be served immediately by the sheriff or by certified mail, restricted delivery, return receipt requested.
(d) Service of order terminating protective order. -- An order terminating a protective order shall be served on the parties in person or by first class mail.

    (e) Service of other documents. -- Every document other than the original petition, emergency, temporary emergency, or domestic violence protective orders, petitions for the contempt or modification of a protective order, or an order extending or terminating a protective order, shall be served upon each party as follows: If a party is represented by an attorney, service shall be made upon the attorney pursuant to Rule 5(b) of the West Virginia Rules of Civil Procedure. Otherwise, service shall be made by mailing a copy by certified mail, restricted delivery, return receipt requested, to the party's last-known address. If personal service has been unsuccessful, the respondent shall be served by publication in accordance with W. Va. Code, §48-27-311.

(f) Service by respondent when petitioner's identifying information has been sealed in the file. -- When the petitioner's address and other identifying information have been sealed in the file pursuant to these rules, and the respondent needs to make service on the petitioner, the respondent shall direct the circuit clerk to make service upon the petitioner. Service shall be made by the circuit clerk if the petitioner's identifying information is sealed in the case file. No court employee shall reveal to anyone other than a court official or law enforcement officer the petitioner's address or other identifying information.

(g) Service allowing direct contact between the parties is strictly prohibited.

(h) Service by law enforcement may properly be accomplished by a process server employed by a sheriff's office, or by a process server, both of whom shall provide returns on forms to be provided by the Supreme Court of Appeals.

(i) Out-of-state service is permissible in accordance with Rule 4 of the Rules of Civil Procedure.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered December 4, 2002]


Rule 12. Filing and service by facsimile transmission.

Pleadings and other documents, including requests for hearings, may be filed with the clerk and served upon law enforcement authorities by facsimile transmission in accordance with Rules 12.03, 12.04 and 12.05 of the Trial Court Rules for Trial Courts of Record.

[Amended by order adopted November 27, 2001, effective January 1, 2002]


Rule 13. Judicial economy and consolidation.

(a) Transfer by magistrate to family court judge before whom the parties have a case pending. If the petitioner indicates that the parties to the protective order proceeding are also parties in a case pending before a family court judge in the same county, then the magistrate shall notice the final hearing before that family court judge.

(b) Transfer by family court judge to another family court judge before whom the parties have a family court case pending. -- If a family court judge learns that the parties to a protective order proceeding have a family court case pending before another family court judge, then the family court judge before whom the domestic violence proceeding is pending shall transfer the case to the family court judge before whom the family court case is pending, if venue is proper.

(c) Consolidation _ If a family court judge learns that the parties to a protective order proceeding have a second protective order proceeding pending before another family court judge, then the family court in which the first such action was commenced shall order both protective order proceedings transferred before it or any other family court in which another protective order proceeding is pending. The court to which the actions are transferred may order a joint hearing of the matters in issue, and may make such other orders as may tend to avoid unnecessary cost or delay.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered December 4, 2002]


Rule 14. Continuances.

    (a) Filing of motion for continuance . -- A movant may file a motion for continuance with the circuit clerk, or with the court, at the convenience of the court.
    (b) Requirements for a continuance. -- A continuance may be granted upon a
showing of good cause.
    (c) Notice requirements. -- A motion for continuance may be heard after such reasonable notice to the opposing party as required by the court.
(d) Continuance of a final hearing. -- A final hearing may be continued on motion of the respondent at the convenience of the court. Otherwise, the final hearing may be continued by the court no more than seven days. If a hearing is continued, the court may modify the emergency protective order as it deems necessary.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective April 3, 2006]

Rule 15. Amended pleadings.

    Upon request by any party and at any stage of the proceedings, a pleading may be amended for good cause shown upon such terms as the court may require.
[Amended by order adopted November 27, 2001, effective January 1, 2002]


Rule 16. Transfer of case file from magistrate to circuit court when emergency protective order granted.
    (a) Transfer to the circuit clerk . -- Following the emergency hearing, the magistrate clerk shall cause the court file to be delivered to the circuit clerk forthwith.

    (b) Facsimile machine. The circuit clerk and all family court staff shall maintain a facsimile machine within the office of the clerk as provided in Rule 12.01 of the Trial Court Rules for Trial Courts of Record, and shall leave the facsimile machine on 24-hours per day everyday.

[Amended by order adopted November 27, 2001, effective January 1, 2002]

Rule 16a. Child Abuse and Neglect.

      At any stage of domestic violence proceedings, if a family court judge has reasonable cause to suspect any minor child involved in the proceedings has been abused or neglected, in addition to mandatory reporting duties the judge shall follow the written referral procedures set forth in Rule 47(b) of the Rules of Practice and Procedure for Family Court.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective April 3, 2006]

Rule 17. Termination of emergency protective order.

An emergency protective order is terminated by the entry of a domestic violence protective order or an order denying a domestic violence protective order.

[Added by order adopted November 27, 2001, effective January 1, 2002]
        

Rule 18. Appeal of denial of emergency order.

(a) A person whose petition was denied by the magistrate court may, as a matter of right, present a petition for appeal to the family court by filing a petition for appeal in the magistrate court clerk's office within 5 days of entry of the order denying the petition in the magistrate court, which petition shall be transferred to the family court forthwith. The petition for appeal shall be heard by the family court within ten days from the date of filing of the petition. No bond shall be required to appeal.

(b) At the family court hearing on the petition for appeal, the family court judge shall enter an order either affirming the magistrate's denial of an emergency protective order, or grant an emergency protective order. If an emergency protective order is granted, the family court judge shall set the matter for final hearing within ten days of the date of entry of the emergency protective order.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered December 4, 2002]

Rule 19. Appeal of family court order.

(a) Time periods.   -  Within 10 days following the entry of a a family court order granting or refusing a domestic violence protective order, any party may file a petition for appeal to the circuit court. The circuit court shall hear the petition for appeal within 10 days after the petition is filed.

(b) Order in effect pending appeal. -- The family court order shall remain in effect pending an appeal unless stayed by the circuit court .

(c) Bond. -- No bond shall be required for a petition for appeal.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered December 4, 2002]


Rule 20. Disqualification of Family Court Judge

      Motions to disqualify family court judges shall proceed in accordance with the Trial Court Rules for Trial Court of Record which govern disqualification procedures. Disqualification appointments in domestic violence civil proceedings may be handled on an emergency basis.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered December 4, 2002]


Rule 21. Domestic violence registry.

      By the next judicial day following the entry of any order by the family or circuit court, the circuit clerk shall provide a copy of the order to the magistrate clerk. The magistrate clerk shall cause the order to be entered in the domestic violence registry.

[Amended by order adopted November 27, 2001, effective January 1, 2002]


Rule 22. Domestic violence support orders.

(a) When a case is dismissed in which an order of support has been entered. -- When a case is dismissed in which an order of child and/or spousal support has been entered, an order shall be entered by the next judicial day stating the date that the support obligation shall end.

   (b) Documentation to local child support enforcement office. -- Any family or circuit court order imposing, modifying, or terminating child and/or spousal support shall be delivered, along with a copy of the completed IV-D application, by hand or by facsimile to the local child support enforcement office by the next judicial day following the hearing at which the order was made. The order shall state the date that the support obligation shall end.

[Amended by order adopted November 27, 2001, effective January 1, 2002]

Rule 23. Testimony of children.

Rules 8 and 9 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings shall govern the taking of testimony of children.

Rule 24. Domestic violence civil contempt bond.

(a) W.Va. Code § 48-27-901 shall govern domestic violence civil contempt bond proceedings.

(b) Personal recognizance bond. - If granted a fee waiver pursuant to W.Va. Code, § 59-2-1, a respondent held in contempt for violation of a domestic violence protective order may post a personal recognizance bond.

(c) Forfeiture of a bond. - Bond posted pursuant to these rules may be forfeited upon the court's finding that a party has failed to comply with a contempt order. In that case, the court shall render a judgment of default and order forfeiture of the bond amount. Upon collection, the circuit clerk shall deposit the proceeds with the state auditor, unless the Court orders that the amount forfeited shall be paid to the party not held in contempt. If payment of a bond is not made within 20 days of entry of the forfeiture order, the clerk shall undertake execution against the obligor(s) for recovery of the judgment amount.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered December 4, 2002]


Rule 25. Concurrent jurisdiction.

      The circuit courts may assist family court judges in the disposition of their case loads when and where the circuit courts deem appropriate by utilizing the provisions of: (a) W.Va.Code, §48-27-301 to conduct protective order proceedings; (b) W.Va. Code, §51-2A-2(b) to conduct actions for divorce, annulment or separate maintenance which do not require the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child and do not require an award or any payment of child support and, at the time of the filing of the action, the parties also file a written property settlement agreement executed by both parties; or (c) W.Va. Code, §48-8-102 to conduct actions for spousal support only.

[Amended by order adopted November 27, 2001, effective January 1, 2002]

Rule 25a. Child Protection Investigations.

       (a) Administrative Order Regarding Investigation. Upon receiving a written referral of possible child abuse and neglect from a family court pursuant to Rule 47(b) of the Rules of Practice and Procedure for Family Courts, a circuit court shall forthwith cause to be entered and served an administrative order in the name of and regarding the affected child or children directing the Department of Health and Human Resources to submit to the court an investigation report or appear before the court in not more than 45 days, at a scheduled hearing, to show cause why the Department's investigation report has not been submitted to the circuit court and referring family court. If a circuit court, based upon a review of the written referral from family court, determines that the allegations or other information present reason to believe a child may be in imminent danger, the circuit court may shorten the time for the Department to act upon the referral and appear before the circuit court. The scheduled hearing may be mooted by the Department's earlier submission of the investigation report or, in the alternative, the filing of an abuse and neglect petition under Chapter 49 of the West Virginia Code relating to the matters which were the subject of the family court referral and circuit court administrative order. The duties of the Department under this rule shall be in addition to the Department's obligations pursuant to W. Va. Code § 49-6A-2a regarding
notification of disposition to persons mandated to report suspected child abuse and neglect.

      (b) Mandamus Relief. Following review of an investigation report in which the Department concludes that a child abuse and neglect petition is unnecessary, if the circuit court believes that the information in the family court's written referral and the Department's investigation report, considered together, suggest circumstances upon which the Department would have a duty to file a such a petition, the court shall treat the written referral as a petition for a writ of mandamus in the name of and regarding the affected child or children. A show-cause order shall issue by the court setting a prompt hearing to determine whether the respondent Department has a duty to file a child abuse and neglect petition under the particular circumstances set forth in the written referral and investigation report. If it is determined by the court that the Department has a nondiscretionary duty pursuant to W. Va. Code § 49-6-5b to file a petition seeking to terminate parental rights, the Department shall be directed by writ to file a child abuse and neglect petition within a time period set by the court. If it is determined that the circumstances bring the filing decision within the Department's discretionary authority, no such writ shall issue unless the court specifically finds aggravated circumstances, consistent with the meaning and usage of that term in W. Va. Code § 49-6-3(d)(1), and that the Department acted arbitrarily and capriciously in the exercise of its discretion.

      (c) Service and Notice. Orders issued pursuant to this rule shall be served on the Department by mail or facsimile transmission directed to the Department's local child protective services office. Copies of such orders shall also be delivered to the prosecuting attorney.

       (d) Confidentiality. All orders and other documents pertaining to matters arising under this rule, and docket entries regarding the same, shall be treated as confidential records concerning a child consistent with W. Va. Code § 49-7-1; and any hearings conducted pursuant to this rule may be attended by those persons provided notice under subsection (c) above, but shall be closed to the general public except that persons whom the circuit court determines have a legitimate interest in the proceedings may attend. If the case in family court that gave rise to the referral to the department was a domestic violence proceeding, staff from any involved licensed family protection program is entitled access to circuit court proceedings under this rule to the same extent such access is afforded under statutes and rules pertaining to domestic violence proceedings.

       (e) Abuse and Neglect Co-Petitions for Child Protection. The petitioner for the protective order may appear as a co-petitioner on the child abuse and neglect petition filed by the Department pursuant to W. Va. Code § 49-6-1, et seq., if both so agree. Nothing herein shall be construed as either a requirement that the petitioner for the protective order be a co-petitioner under W. Va. Code § 49-6-1, et seq., or a prohibition against the filing of a petition pursuant to W. Va. Code § 49-6-1, et seq. by the petitioner for the protective order should the Department show cause why it will not file such a petition.

      (f) Transfer of Administrative Proceedings. Within 10 days following service of an administrative order issued by a circuit court pursuant to subdivision (a), the Department may file a motion with the issuing court seeking transfer of the administrative proceedings to the circuit court of another county based upon reasons relating to a more appropriate venue for the administrative proceedings and any abuse and neglect case which may result from such proceedings. Unless the court finds the basis for the motion to be clearly unreasonable under the particular circumstances presented, the administrative proceedings shall be transferred as requested. If the administrative proceedings are transferred, the Department's obligations pursuant to W. Va. Code § 49-6A-2a and Rule 48(c) of the Rules of Practice and Procedure for Family Court regarding the investigation and providing a copy of any investigative report remain applicable to the referring family court. The circuit clerk shall send certified copies of the order granting or denying the transfer motion to the referring family court and the prosecuting attorney. If the order grants the motion, certified copies shall also be sent to the circuit court and prosecuting attorney in the county where the administrative proceeding is transferred.

[Amended by order entered and effective November 7, 2007]


Rule 26. Appointments of guardians ad litem.

Rule 21 of the West Virginia Trial Court Rules for Trial Courts of Record shall govern the appointment of guardians ad litem in domestic violence civil proceedings.

[Established by order entered December 4, 2002; and amended by order effective June 9, 2005.]