Home | Opinions | Site Map | Law Library | Rules | Staff | Site Search
RULES OF PRACTICE AND PROCEDURE FOR FAMILY COURT
GENERAL PROVISIONS.
Rule 1. Scope; conflicts.
These rules shall govern all proceedings in Family Court with the exception of
domestic violence civil proceedings unless specifically referenced in these rules. If these
rules conflict with other rules or statutes, these rules shall apply.
[Amended by order adopted
November 27, 2001, effective January 1, 2002. ]
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 or the family court; 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; family court final order refers to an appealable order entered by a family court
judge; memorandum of law refers to a brief as in W. Va. Code, § 51-2A-11; and the use of
the plural indicates the singular if appropriate, and the use of the singular indicates the plural
if appropriate.
[Amended by order adopted
November 27, 2001, effective January 1, 2002; and by order entered and
effective December 1, 2005. ]
Rule 3. Effective date.
(a) Effective Date. The rules shall take effect on the 1st day of January, 2002, and
shall govern all Family Court proceedings after this date.
(b) Transfer of Cases to Family Court. Effective January 1, 2002, all family court
cases pending before the circuit court, whether on review of recommended order or
otherwise, shall be transferred to the jurisdiction of the family court. In those cases where
a recommended order has been previously filed, the family court shall enter a final order as
soon as practical after transfer; provided, however, that if the parties have previously filed
objections to a recommended order, the family court judge shall consider those objections
and rule upon them as part of the family court final order. Where a circuit court has
conducted evidentiary proceedings in a case prior to January 1, 2002, the circuit court may
request, by January 31, 2002, pursuant to W. Va. Code § 51-2A-19(b), and taking into
account the circumstances of the case, that the circuit court judge be appointed as a family
court judge in such case.
[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005. ]
[Amended by order adopted November 27,
2001, effective January 1, 2002. ]
Rule 5. Records; transcripts; fees; costs; forms.
(a) Records filed with the circuit clerk. All case files, and evidence, 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. Electronic records shall be
indexed by the secretary-clerk of the family court, and shall be securely stored by the family
court unless stored by the circuit clerk pursuant to the request of a family court judge. A
party may obtain a copy of a recording of the proceedings in the party's 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 required cost. The family court shall provide the copy within ten
days. The family 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 court judge, 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 family 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, which fee shall not exceed ten cents ($.10) per page or ten dollars ($10.00) total.
Circuit clerks, and their staffs, and the staffs of family courts shall not be required or
permitted to provide legal advice regarding such forms, or any other matter.
(g) Local rules. - Rule 1.03. of the Trial Court Rules shall apply to Family Court
and govern the procedure for enacting local rules and procedures.
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December
1, 2005; and by order adopted May 22, 2007, effective July 1, 2007. ]
Rule 6. Court files; confidentiality; access; proceedings.
(a) General provisions. All orders are public records. All pleadings, recordings,
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 by the parties, attorneys of record, guardians ad litem, designees
authorized by a party in writing, and any person with standing to modify or enforce a support
order. A family court judge or circuit judge may open and inspect the entire contents of the
court file in any case pending before the judge's 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) Family court proceedings are not open to the public.
(c) 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.
(d) 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.
[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005. ]
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.
Unless prior permission is granted by the family 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.
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December
1, 2005. ]
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December
1, 2005; and by order adopted May 22, 2007, effective July 1, 2007. ]
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,
telephone number and state bar identification number of counsel; or if the party is self-
represented, the party's contact information such as name, address, and a telephone number
at which the party can be reached during normal business hours. Upon the filing of an
affidavit asserting that 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) Service when a party's identifying information has been sealed in the file. When
a party's identifying information has been sealed in the case file, and the opposing party
needs to make service on the party whose identifying information has been sealed in the case
file, the party seeking to serve a pleading shall direct the circuit clerk to make service.
Service shall be made by the circuit clerk upon a party whose identifying information has
been sealed in the case file.
(d) Proposed parenting plans. Parenting plans proposed by the parties are pleadings.
(e) 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.
(f) 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 (a)-(p), and 12.04.
[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005. ]
Rule 11. Signing of pleadings, motions and other papers; representations to court;
sanctions.
(a) Signature. Every pleading, motion and other paper shall be signed by at least one
attorney of record in the attorney's individual name, or if the party is not represented by an
attorney shall be signed by the party. Each paper shall state the signer's address and phone
number, if any, and The West Virginia State Bar identification number, if any. Except when
otherwise specifically provided by rule or statute, pleadings need not be verified or
accompanied by affidavit. An unsigned paper shall be stricken unless omission of the
signature is corrected promptly after being called to the attention of the attorney or party.
(b) Representations to court. By presenting to the court (whether by signing, filing,
submitting, or later advocating) a pleading, written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of the person's knowledge, information, and
belief formed after an inquiry reasonable under the circumstances,
(1) it is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing
law or by a nonfrivolous argument for the extension, modification, or reversal of existing
law or the establishment of new law;
(3)the allegations and other factual contentions have evidentiary support or, of
specifically so identified, are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically
so identified, are reasonably based on a lack of information or belief.
(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court
determines that subdivision (b) has been violated, the court may, subject to the conditions
stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that
have violated subdivision (b) or are responsible for the violation.
(1) How initiated. (A) By motion. A motion for sanctions under this rule shall be
made separately from other motions or requests and shall describe the specific conduct
alleged to violate subdivision (b). It shall be served as provided in Rule 5, Rules of Civil
Procedure, but shall not be filed with or presented to the court unless, within 21 days after
service of the motion (or such other period as the court may prescribe), the challenged paper,
claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
If warranted, the court may award to the party prevailing on the motion the reasonable
expenses and attorney's fees incurred in presenting or opposing the motion. Absent
exceptional circumstances, a law firm shall be held jointly responsible for violations
committed by its partners, associates, and employees.
(B) On court's initiative. On its own initiative, the court may enter an order
describing the specific conduct that appears to violate subdivision (b) and directing an
attorney, law firm, or party to show cause why it has not violated subdivision (b) with
respect thereto.
(2) Nature of sanction; limitations. A sanction imposed for violation of this rule shall
be limited to what is sufficient to deter repetition of such conduct or comparable conduct by
others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the
sanction may consist of, or include, directives of a nonmonetary nature, and order to pay a
penalty into court, or, if imposed on motion and warranted for effective deterrence, and
order directing payment to the movant of some or all of the reasonable attorney's fees and
other expenses incurred as a direct result of the violation.
(A) Monetary sanctions may not be awarded against a represented party for a
violation of subdivision (b)(2).
(B) Monetary sanctions may not be awarded on the court's initiative unless the court
issues its order to show cause before a voluntary dismissal or settlement of the claims made
by or against the party which is, or who's attorneys are, to be sanctioned.
(3) Order. When imposing sanction, the court shall describe the conduct determined
to constitute a violation of this rule and explain the basis for the sanction imposed.
(d) In applicability to discovery. Subdivisions (a) through (c) of this rule do not apply
to discovery requests, discovery responses, discovery objections, and discovery motions.
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December
1, 2005. ]
Rule 12. 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.
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December
1, 2005. ]
Rule 13. Financial disclosure.
(a) Required financial information on motions for relief.- The petitioner and
respondent shall file completed financial statements with the circuit clerk as provided in
Rule 9 herein. Any updates or amendments to financial statements shall be filed with the
circuit clerk and served on all parties pursuant to the date specified by the scheduling
order of the Court or no later than five days prior to any hearing, whichever first occurs,
that deals with the establishment or modification of support. In
cases which may involve spousal support, child support, allocation of custodial
responsibility, visitation, or paternity, the petitioner and respondent shall file the following
documentation in support of the required financial statement pursuant to the date specified by the scheduling order of the Court or no later than five
days prior to any scheduled hearing, whichever first occurs:
(1) A copy of the party's three (3) 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
and supporting documentation;
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.
[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005; and by order adopted May 22, 2007, effective July 1, 2007. ]
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December 1,
2005; and by order adopted May 22, 2007, effective July 1, 2007. ]
Rule 15. Temporary support orders.
(a) Temporary support orders.- 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. A temporary support order is not subject to appeal.
(b) All other temporary relief orders.- A temporary order addressing temporary
relief other than support shall be entered by the Court within 20 days of the temporary
hearing. The temporary order is not subject to appeal.
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December 1,
2005; and by order adopted May 22, 2007, effective July 1, 2007. ]
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. The Court has the discretion
to limit the duration of temporary relief hearings.
[Amended by order adopted May 22, 2007,
effective July 1, 2007. ]
[Amended by order entered and effective December 1, 2005. ]
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, scheduling conflicts and consolidation.
(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. A motion for continuance filed with the court less than seven days before the
hearing shall be granted only in exigent circumstances that could not have been anticipated
prior to 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, except that a party shall not be granted more than one continuance.
The order granting a continuance shall set the continued proceeding for a date certain,
within 75 days from the date of the hearing being continued.
(c) Continuances on court's initiative.- A court may continue a hearing on its own
motion for good cause. The court shall issue the order of such continuance for a date
certain, no more than 75 days from the date of the hearing being continued. In addition
to setting the hearing date, the order of continuance must state the following: that the cause
of continuance is lack of service and the steps that will be taken to try to effect service (if
applicable); or the specific grounds for the continuance.
(d) 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.
(e) Resolution of scheduling conflicts.- Scheduling conflicts shall be resolved
pursuant to Rule 5 of the Trial Court Rules.
(f) Consolidation of simultaneous proceedings.- When two or more family court
actions between the same two parties are pending before different family court judges, the
court in which the first action was commenced shall order all of the actions transferred to
it or any other family court in which such action is pending. The court to which the actions
are transferred may order a joint hearing or trial of any or all of the matters in issue in any
of the actions; it may order all of the actions consolidated; and it may make such other
orders concerning proceedings as may tend to avoid unnecessary costs or delay.
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December 1,
2005; and by order adopted May 22, 2007, effective July 1, 2007. ]
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. Contempt, modification and final hearings.
(a) Contempt/show cause and modification petitions and hearings.- A party may
file a petition for contempt/order to show cause or modification of any order of the court.
If grounds pled warrant a contempt/show cause and modification hearing, the hearing shall
take place within 45 days of the filing of a petition for contempt/order to show cause or
modification. If grounds pled not warrant a hearing then the court shall enter a dismissal
order within 20 days.
(b) 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.
(c) 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. A final hearing must take place
within 220 days from the date of the filing of the initial pleading. The Court has the
discretion to limit the duration of final hearings.
[Amended by order adopted May 22, 2007,
effective July 1, 2007. ]
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December 1,
2005; and by order adopted May 22, 2007, effective July 1, 2007. ]
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) Scheduling orders.- An initial scheduling order shall be entered within
45 days after the filing of the initial pleading.
(b) Content of scheduling orders.- A scheduling order shall
contain a notice
that any hearing may be converted to a final hearing, and shall include dates for the
temporary hearing, if applicable, final hearing, and 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; updated financial disclosures completed on the form
approved by the supreme court of appeals; updated and/or proposed parenting plans;
separation agreements; witness and exhibit lists; discovery, investigations, appraisals,
tests, or evaluations; premediation screening; parent education
courses; and such other matters as the Court shall deem appropriate.
(c) Any final hearing held by the Court that is not a hearing resolving all issues in
the case shall require a subsequent scheduling order to be entered within 20 days of the
hearing. The content of the scheduling order shall comply with subsection (b) of this rule.
(d) Sanctions for noncompliance with orders.- If a party or attorney fails to
comply with an 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.
[Amended by order adopted May 22, 2007,
effective July 1, 2007. ]
Rule 25. Motion for reconsideration of family court order.
Any party may file a motion for reconsideration of a family court order as provided
in W. Va. Code, § 51-2A-10. If an appeal has been filed within the time period for filing
a motion for reconsideration, the time for filing a motion for reconsideration will be
suspended during the pendency of the appeal.
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December 1,
2005. ]
[Added by order adopted November 27,
2001, effective January 1, 2002. ]
Rule 27. Stay of proceedings pending appeal.
(a) Motion for Stay. Any person desiring to file a petition for appeal from a final
order of the family court may file a motion for a stay of proceedings in the family court in
which the order was entered. The motion for a stay shall be filed with the circuit clerk and
served upon the respondent in accordance with Rule 5 of the Rules of Civil Procedure.
(b) Effect of Stay. Either on its own motion or upon motion by a party, the family
court may order a stay of all or part of a final order, for the period of time allowed for filing
of a petition for appeal to the circuit court or for any additional period of time pending
disposition of the appeal. Provided, however, that an order granting a motion for stay may
not include a stay of an award for the payment of spousal support or child support pending
the appeal, except that an award of past-due child support may be stayed pending disposition
of the appeal.
(c) Application in Circuit Court. If the family court should refuse to grant a stay, or
if the relief afforded is not acceptable, the party desiring to file the petition for appeal in the
circuit court may file a motion for a stay of the proceedings in the circuit court. The motion
for a stay shall be filed with the circuit clerk and served upon the respondent in accordance
with Rule 5 of the Rules of Civil Procedure. The circuit court may order a stay of all or part
of a final order, for the period of time allowed for filing of a petition for appeal to the circuit
court, or for any additional period of time pending disposition of the appeal. Provided,
however, that an order granting a motion for stay may not include a stay of an award for the
payment of spousal support or child support pending the appeal, except that an award of
past-due child support may be stayed pending disposition of the appeal.
(d) Effect of Order Refusing Petition for Appeal. If the circuit court enters an order
refusing the petition for appeal, any stay of the family court final order is vacated. A party
desiring an additional stay must make an application for stay in the supreme court of appeals
as provided in Rule 6 of the Rules of Appellate Procedure.
[Added by order adopted November 27, 2001, effective January 1, 2002. ]
Rule 28. Petition for appeal to circuit court.
(a) Time for petition. A party aggrieved by a final order of a family court may file a
petition for appeal to the circuit court no later than thirty days after the family court final
order was entered in the circuit clerk's office. If a motion for reconsideration has been filed
within the time period to file an appeal, the time period for filing an appeal is suspended
during the pendency of the motion for reconsideration.
(b) Filing with clerk. An original and two copies of the petition for appeal shall be
filed in the office of the circuit clerk where the final order being appealed was entered. The
circuit clerk shall note clearly on each copy the date on which the petition for appeal was
filed.
(c) Form of petition. The petition for appeal shall be prepared in the same or
substantially similar form as that set forth in Appendix A of these rules. The party filing the
petition for appeal may file a memorandum of law in support of the petition for appeal at the
time the petition is filed. Except by permission of the circuit court, the petition for appeal,
together with the memorandum of law in support, if any, shall not exceed fifty pages,
inclusive of any addendum.
(d) Service of petition. The petition for appeal and memorandum of law, if any, shall
be served in accordance with Rule 5 of the Rules of Civil Procedure.
(e) Response to petition. The respondent may file an original and two copies of a
response to the petition for appeal with the circuit clerk within fifteen days after the filing
of the petition for appeal. Except by permission of the circuit court, the response shall not
exceed fifty pages, inclusive of any addendum.
(f) Cross-petition for appeal. Within fifteen days after the filing of the petition for
appeal, the respondent may file a cross-petition for appeal. The cross-petition may be filed
in addition to any response. The cross-petition for appeal shall be prepared in the same or
substantially similar form as that set forth in Appendix A of these rules. The party filing the
cross-petition for appeal may file a memorandum of law in support of the cross- petition for
appeal at the time the cross-petition is filed. Except by permission of the circuit court, the
cross-petition for appeal, together with the memorandum of law in support, if any, shall not
exceed fifty pages, inclusive of any addendum.
(g) Reply to response. No reply to a response to a petition for appeal shall be filed.
[Added by order adopted November 27,
2001, effective January 1, 2002 and amended by order entered and effective
December 1, 2005. ]
Rule 29. Insufficient record for appeal.
If essential portions of the recording of proceedings before a family court are
inaudible or unavailable, the circuit court may recommit the case to the family court. The
family court may then take evidence; and/or may accept from any party a proposed statement
of the pertinent facts. 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 family court within ten days of the date of service of the statement upon
them.
[Added by order entered and effective December 1, 2005. ]
Rule 30. Motions to Dismiss the Appeal.
(a) By party. At any time following the filing of a petition for appeal, either party to
an appeal may move the circuit court to dismiss an appeal on any of the following grounds:
(1) a joint agreement of the parties to the dismissal; (2) failure to properly perfect the appeal;
(3) failure to obey an order of the family court or circuit court; (4) lack of an appealable
order; or (5) lack of jurisdiction. Such motion shall be filed with the circuit clerk and served
in accordance with Rule 5 of the Rules of Civil Procedure.
(b) Hearing. No oral argument shall be held on a motion to dismiss unless requested
by the circuit court.
[Added by order adopted November 27,
2001, effective January 1, 2002 and amended by order entered and effective
December 1, 2005. ]
Rule 31. Granting or refusing the appeal.
(a) Review by circuit court. As soon as practical after the last day a response to a
petition for appeal is filed, if any, the circuit court shall enter an order granting or refusing
the petition for appeal.
(b) Refusal order. If a petition for appeal is refused, the circuit court shall enter an
order refusing the petition for appeal within 60 days from the last day a response to the
petition for appeal could have been filed. A refusal order shall explicitly inform the parties
that it is a final order disposing of the appeal. Motions for reconsideration of a refusal order,
or renewal of a petition for appeal that has been refused, are not permitted.
(c) Granting order. If a petition for appeal is granted, the circuit court shall enter an
order granting the petition for appeal. If oral argument was requested in writing by either of
the parties, or if the circuit court desires oral argument, the granting order shall set forth a
date and time for oral argument. The clerk of the circuit court shall immediately serve the
granting order upon the parties by mailing a copy to counsel of record for each party via
first-class mail, or if there is no counsel of record, to the party at the last known address for
that party. Service shall be complete upon mailing.
[Added by order adopted November 27,
2001, effective January 1, 2002 and amended by order entered and effective
December 1, 2005. ]
Rule 32. Extensions of time.
The circuit court may, for good cause shown in a written motion, extend the time
prescribed by these rules for doing any act related to the appeal before it, or may permit an
act to be done after the expiration of such time. Provided, however, that any extension of
time granted by the circuit court may not exceed a period of ten days.
[Added by order adopted November 27,
2001, effective January 1, 2002 and amended by order entered and effective
December 1, 2005. ]
Rule 33. Oral argument.
(a) Scheduling argument. If requested in writing by either party, or if the circuit court
wishes to hold argument without request, the circuit court shall set forth a date and time for
oral argument in the granting order as required by Rule 31(c).
(b) Argument. Counsel for appellant, or appellant unrepresented by counsel, shall be
entitled to open and close the argument, and shall be allotted twenty minutes to open and ten
minutes to close. Counsel for appellee, or appellee unrepresented by counsel, shall be
allotted twenty minutes. A party is not obliged to use all of the time allotted, and the circuit
court may terminate argument whenever in its judgment further argument is unnecessary.
The family court judge shall not be required to attend oral argument. Oral argument
proceedings shall not be open to the public.
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
Rule 34. Final decisions.
(a) Entry of final decision. The circuit court shall enter a final decision order within
60 days from the last day a response to the petition for appeal could have been filed, or shall
enter an order stating just cause why a final decision has not been timely entered. The circuit
clerk shall notify the family court judge of the entry of a final decision.
(b) Contents of final decision. A final decision may refuse the petition for appeal, may
affirm or reverse the family court final order, or may affirm or reverse in part. A circuit
court's final decision may be appealed to the Supreme Court of Appeals in the manner set
forth in the Rules of Appellate Procedure. A remand order entered pursuant to Rule 35(a)
is not a final decision for purposes of appeal.
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
Rule 35. Remand to family court judge.
(a) Remand orders. An order remanding a case to a family court judge shall be
entered within 60 days from the last day a response to the petition for appeal could have
been filed. A remand order shall particularly identify any inadequacies in the evidentiary
record; and shall indicate the specific actions to be taken by the family court judge upon
remand, including the particular evidence to be taken. At the time a case is remanded the
circuit court shall enter such temporary orders as the circumstances require. All remand
orders shall direct the circuit clerk to provide a copy to the family court judge.
(b) Proceedings on remand. All proceedings in cases remanded to a family court
judge shall be concluded within 30 days of the date of the remand order.
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
Rule 36. Motions.
(a) Content of motions; response; reply. Unless another form is elsewhere prescribed
by these rules, a motion for an order or other relief from the circuit court shall be made by
filing a written motion for such order or relief with the circuit clerk, with service upon the
other party in accordance with Rule 5 of the Rules of Civil Procedure. The motion shall state
with particularity the grounds on which it is based, and shall set forth the order or relief
sought. If a motion is supported by a memorandum of law, affidavits or other papers, they
shall be served along with the motion. A party may file a response to a motion. A reply to
a response to a motion may not be filed.
(b) Determination of motions for procedural orders. Notwithstanding the provisions
of the preceding paragraph as to motions generally, motions for procedural orders may be
acted upon by the circuit court at any time, without awaiting a response. Any party adversely
affected by such action may request reconsideration, vacation, or modification of such
action.
(c) Hearing. No oral argument shall be held on such motion, unless requested and
scheduled by the circuit court.
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
Rule 39. Premediation screening.
(a) Orders requiring premediation screening.- No later than five days after
the
scheduling conference or other hearing at which the court first determines
that the parties do not have an agreed parenting plan, the court shall
order both parties to complete a premediation screening process for the purposes set forth
in W. Va. Code, § 48-9-202(b). The order shall require the parties to undergo
premediation screening within 14 days of the date of the conference or hearing;
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 W. Va. Code, § 49-6A- 2 and shall so inform the party being
screened prior to the commencement of screening. Other than the abbreviated premediation
screening report, no notes or other documents used in premediation screening are part of
the record.
(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 and the parties. The report shall be made on the required
form; identify the existence of any of the elements listed in W. Va. Code, §
48-9-11--202(b); and set forth the screener's recommendations.
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December 1,
2005; and by order adopted May 22, 2007, effective July 1, 2007. ]
Rule 40. 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 (1) set the mediation fees in
accord with the approved sliding scale; (2) require the mediator to contact the parties and
arrange for mediation to begin by a date certain; (3) require that parties subject to
court-ordered mediation discuss only matters relating to the development of a parenting
plan; (4) set the next hearing date; (5) set the date all mediation
related to the development of a parenting plan shall be completed the
date should be within 45 days of the assignment order or before the next hearing date,
whichever is sooner; (6) direct that each party be provided a copy of the approved
mediation process document; and (7) 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. The assignment order shall not order the parties
to discuss matters related to distribution of property, spousal support, child support (other
than the effect of the parenting plan on the choice of child support formula) or any other
financial matters.
(b) Subsequent mediation for parties assigned to mediation.- Once a parenting plan
or a partial parenting plan has been presented to the court, or the court-appointed mediator
notifies the court that the parties have failed through mediation to develop a parenting plan,
the parties may, of their own accord, attend subsequent mediation sessions related to the
distribution of property, spousal support, child support or other financial matters. The
parties shall select their own mediator. That mediator shall not be subject to the Supreme
Court's approved sliding fee scale for mediators.
(c) Parties screened out of mediation.- If the abbreviated premediation screening
report reveals the existence of any of the elements listed in W. Va. Code, § 48-9-202(b),
and/or recommends that the screened parties should not be required to mediate, the court
shall dispense with mediation; but as provided in section 202(b), the court 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 premediation and mediation procedures and all time limits
shall apply. If the court dispenses with mediation, within five days a scheduling order shall
be entered and sent to the parties informing the parties that they have been screened out
of mediation, and setting a date certain for the next hearing.
[Amended by order adopted November 27,
2001, effective January 1, 2002; and by order entered and effective December 1,
2005; and by order adopted May 22, 2007, effective July 1, 2007. ]
Rule 41. 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.
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
Rule 42. 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.
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
Rule 43. 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 them, the mediator shall read the document to that party and require the party 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 W. Va. Code, § 4-6A-2.
(c) Procedure upon conclusion of mediation. If a mediated agreement is reached, the
mediator shall inform the parties that 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 exception 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.
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
Rule 44. 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
W. Va. Code, §§ 48-13-401 to 404, 501, and 502. 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.
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
Rule 45. 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.
[Amended by order adopted November 27,
2001, effective January 1, 2002 and by order entered and effective December 1,
2005. ]
Rule 46. Immunity.
Mediators and premediation screeners shall have immunity in the same manner and
to the same extent as a family court judge.
[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]
[Amended by order adopted October 4,
2001, effective October 4, 2001; by order adopted November 27, 2001, effective
January 1, 2002; by order adopted June 9, 2005, effective June 9,
2005; by order entered and effective December 1,
2005; and by order adopted May 22, 2007, effective July 1, 2007. ]
Rule 48. Child abuse and neglect.
(a) Reports by Family Court. If a family court has reasonable cause to suspect any minor child involved in family court proceedings has been abused or neglected, that family court shall immediately report the suspected abuse or neglect to the state child protective services agency, pursuant to W. Va. Code §§ 49-6A-2, and the circuit court.
(b) Written Referrals. In addition to any oral communication made by the family court to the state child protective services agency pursuant to subdivision (a), the family court shall forthwith prepare and submit a written referral to the agency office in the county where the family court proceeding is pending and, at the same time, transmit copies of the referral to the appropriate circuit court in that county, as determined by the chief judge, and to the prosecuting attorney. Such written referral shall set forth the specific allegations or information that led to the family court’s determination of reasonable cause to suspect that a child or children involved in family court proceedings has been abused or neglected.
(c) Reports of Investigations of Child Abuse and Neglect. The state child protective services agency shall promptly provide the family court, and the circuit court, and the prosecuting attorney copies of any report of any investigation regarding the abuse and neglect of any minor child involved in family court proceedings, including those investigations conducted pursuant to subsection (b) above and Rule 3a of the Rules of Procedure for Child Abuse and Neglect Proceedings.
(d) Jurisdiction of Proceedings. The family court shall retain full jurisdiction of proceedings until an abuse or neglect petition is filed. If an abuse or neglect petition is filed and the family court has entered an order regarding the allocation of custodial and decision-making responsibility between the parents, orders of the circuit court shall supercede and take precedence over any order of the family court regarding the allocation of custodial and decision-making responsibility between the parents. If the family court has not entered an order for the allocation of custodial and decision-making responsibility between the parents, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility between the parents and defer to the orders of the circuit court.
(e) Material Change of Circumstances Reports. While the Department of Health and Human Resources is under no duty to monitor cases for family courts, the Department shall advise the family court of any material change of circumstances involving the child or services to the child's family in any pending family court case in which the Department is involved but has not filed a petition pursuant to W. Va. Code §§ 49-6-1, et seq. The family court shall notify the Department of the closure or pendency of any such cases.
[Amended by order adopted November 27,
2001, effective January 1, 2002; by order entered and effective December 1,
2005; by order entered and effective April 3, 2006; and by order entered
and effective November 7, 2007. ]
Rule 48a. Infant Guardianship Proceedings.
(a) Removal by family court to circuit court of infant guardianship cases
involving child abuse and neglect. If a family court learns that the basis,
in whole or part, of a petition for infant guardianship brought pursuant to W.
Va. Code §§ 44-10-3, is an allegation of child abuse and neglect as defined in
W. Va. Code §§ 49-1-3, then the family court before whom the guardianship
proceeding is pending shall remove the case to the circuit court for hearing.
Should the family court learn of such allegations of child abuse and neglect
during the hearing, then the family court shall continue the hearing, subject to
an appropriate temporary guardianship order, and remove the case to the circuit
court for hearing to be conducted within 10 days, for determination of all
issues. Once removed, the case (or any portion) shall not be remanded to
family court. At the circuit court hearing, allegations of child abuse and
neglect must be proven by clear and convincing evidence. Immediately upon
removal, the circuit clerk shall forthwith send the removal notice to the
circuit court. Upon receipt of the removal notice, the circuit court shall
forthwith cause notice to be served in accordance with W. Va. Code §§ 44-10-3
and to the Department of Health and Human Resources who shall be served with
notice of the petition, including a copy of the petition, and of the final
hearing to be conducted before the circuit court. Such notice to the Department
of Health and Human Resources shall constitute a report by the family and
circuit courts pursuant to W. Va. Code §§ 49-6A-2.
(b) Investigation of Abuse and Neglect. Upon removal of the infant guardianship petition, the circuit court may utilize the investigative and mandamus process and related procedures set forth in Rule 3a of the Rules of Procedure for Child Abuse and Neglect Proceedings if the court deems it necessary or appropriate under the circumstances presented. The circuit court shall allow the petitioner for infant guardianship to appear as a co-petitioner on the petition filed by the Department of Health and Human Services 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 infant guardianship be a co-petitioner under W. Va. Code §§ 49-6-1, et seq., or a prohibition against the filing of a W. Va. Code §§ 49-6-1, et seq., petition by the petitioner for infant guardianship should the Department show cause why it will not file such a petition."
[Amended by order entered
and effective November 7, 2007. ]
[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]
Rule 50. 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 court. If a petition for
modification is filed in 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 court shall send a scheduling order to all parties.
[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]
Rule 51. Expedited modification of child support.
(a) Filing procedure. _ An expedited modification petition, any supporting
documents, a completed Bureau for Child Support Enforcement A Information Worksheet
Form, 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 court. After filing the
petition with the circuit clerk the filing party shall take or mail to the family court 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 court upon receipt of petition. _ The family court shall review
the petition and any supporting documents, and tentatively recalculate the amount of support
by application of current child support guidelines. The family court 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 W. Va.
Code, § 48-11-106, the family court may treat the petition as a non-expedited petition for
modification. If the petition for expedited modification meets all of the requirements in W.
Va. Code, § 48-11-106, the family court shall prepare a notice on the required form; and
upon receipt of satisfactory proof that 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 court judge 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 court judge 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 court judge shall enter an order for a judgment by default
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.
[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]
Rule 52. 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
W. Va. Code, § 48-9-403. 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 court.
Within five days of receiving the request for hearing, the family court 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.
[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]
Rule 53. 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.
[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]
Rule 54. Authority to accept waivers.
The court may accept a written waiver or an oral waiver made on the record of the
appointment of a committee for a convict, or the application of the Soldier's and Sailor's
Civil Relief Act.
[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]
Rule 55. 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.
[Amended by order adopted November 27, 2001, effective January 1, 2002. ]
Rule 56. Interpreters.
The court may appoint an interpreter of its own selection and may fix the interpreter's
reasonable compensation. The compensation shall be paid out of funds provided by law or
by one or more of the parties as the court may direct and may be taxed ultimately as costs,
in the discretion of the court.
[ Added by order entered and effective December 1,
2005. ]
Rule 57. Withdrawal and substitution of counsel.
(a) Withdrawal of counsel. Rule 4.03(b) of the Trial Court Rules shall govern the
withdrawal of counsel.
(b) Substitution of counsel. Rule 4.04 of the Trial Court Rules shall govern the
substitution of counsel by stipulation.
[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]
[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005. ]
Rule 59. Compliance with Time Standards.
(a) Purpose.- The time standards contained in these rules are intended to ensure
that “justice shall be administered without sale, denial or delay,” in accordance with
Article III, Section 17 of the West Virginia Constitution; that judges “dispose of all
judicial matters promptly, efficiently, and fairly,” in accordance with Canon 3B(8) of the
Code of Judicial Conduct; and that “the court, not the lawyers or litigants, should control
the pace of litigation,” in accordance with Section 2.50 of the American Bar Association
Standards Relating to Court Delay Reduction.
(b) Time for completion of all cases. - For cases filed after July 1, 2007 a final
order shall be entered in every case within 240 days of filing of the initial pleading. All
cases filed prior to July 1, 2007 shall have a final order entered by July 1, 2008.
(c) Implementation. - By July 1, 2008, the percentage of cases that each circuit shall
have in compliance with section (b) above is seventy-five (75) percent. (d) Reporting.- The Administrative Director of Courts shall receive a monthly
report from the circuit clerk in each county on compliance with section (b) above.
[Added by order adopted May 22, 2007, effective July 1, 2007. ]
Rule 60. Peer Review Board.
(a) Non-compliance with time standards.- Failure to comply with these standards
may result in the Administrative Director of Courts making a referral to the peer review
board, which shall submit a report with recommendations for remedial actions to the
Administrative Director of Courts within forty-five (45) days of the referral. Following
receipt of the peer review board report, the Administrative Director of Courts, with the
approval of the Chief Justice of the Supreme Court of Appeals, shall take action as
necessary to bring the court into compliance with these rules, including, but not limited
to, recall of senior status judges, the reassignment of judges from other circuits, and/or the
implementation of case management procedures, in accordance with W. Va. Code §51-2A-
19. In his or her discretion, the Administrative Director of Courts may report repeated
non-compliance with these standards to the Judicial Investigation Commission.
(b) Impaneling peer review board.- The Administrative Director of Courts shall
select three family court judges to serve on the peer review board. In order to stagger the
terms of the peer review board members, the first set of three judges selected shall serve
one-year, two-year, and three-year terms, respectively. Thereafter, each family court
judge selected shall serve a two-year term.
(c) Duties and authority of peer review board.- The peer review board shall
promptly investigate referrals from the Administrative Director of Courts and make a
written report, including its findings and recommendations, within forty-five (45) days of
the referral. The Board shall have the authority: to review the docket and cases of the
Judge, interview the Judge and Judge's staff; and obtain records and documents from the
circuit clerk and/or the Judge.
(d) Failure to cooperate with the peer review board may result in a complaint to the
Judicial Investigation Commission.
(e) Confidentiality.- The referral of the Administrative Director of Courts,
investigation, documents obtained and recommendations of the peer review board shall be
confidential.
(f) Privilege and immunity.- All information provided, documents filed or
testimony given with respect to any investigation or proceeding under Rules 59 and 60
herein shall be privileged in any action for defamation. All members of the peer review
board, and their employees, shall be absolutely immune from civil suit in the same manner
as members of the judiciary in this state for any conduct in the course of their official
duties.
[Added by order adopted May 22, 2007, effective July 1, 2007. ]
Home | Opinions | Site Map | Law Library | Rules | Staff | Site Search