AN ACT to repeal article thirty, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section eight, article five, chapter three of said code; to amend and reenact section three, article ten of said chapter; to amend and reenact section twelve, article five, chapter sixteen of said code; to amend and reenact section ten, article two, chapter seventeen- b of said code; to amend and reenact section five, article one, chapter forty-two of said code; to amend and reenact sections two hundred two, two hundred five, two hundred sixteen, two hundred seventeen, two hundred twenty-one, two hundred twenty-five, two hundred twenty-six, three hundred three, three hundred four and three hundred five, article one,

chapter forty-eight of said code; to amend and reenact sections four hundred one and four hundred four, article two of said chapter; to amend and reenact section one hundred one, article four of said chapter; to amend and reenact sections one hundred two, one hundred three, one hundred seven, two hundred one, four hundred two, four hundred three, six hundred four, six hundred five, six hundred eleven and seven hundred two, article five of said chapter; to amend and reenact section two hundred three, article seven of said chapter; to amend and reenact sections one hundred two and one hundred five, article eight of said chapter; to amend and reenact sections one hundred four, two hundred two, four hundred three and six hundred three, article nine of said chapter; to amend and reenact sections one hundred five and one hundred six, article eleven of said chapter; to amend and reenact sections one hundred one, two hundred two, two hundred four, two hundred five, seven hundred one, nine hundred one and nine hundred two, article thirteen of said chapter; to amend and reenact sections one hundred one, one hundred six, two hundred four, four hundred two, four hundred five, five hundred one and eight hundred two, article fourteen of said chapter; to amend and reenact sections two hundred five, two hundred seven

and two hundred eight, article fifteen of said chapter; to amend and reenact sections one hundred one, one hundred two and three hundred five, article sixteen of said chapter; to amend and reenact sections one hundred eight, one hundred eleven, one hundred fourteen, one hundred twenty-three and one hundred twenty-six, article eighteen of said chapter; to amend and reenact section one hundred two, article twenty of said chapter; to amend and reenact sections one hundred one and one hundred three, article twenty-four of said chapter; to amend and reenact sections two hundred four, two hundred five, two hundred nine, three hundred four, four hundred two, four hundred three, five hundred one, five hundred five, five hundred eight and five hundred ten, article twenty-seven of said chapter; to amend and reenact article two-a, chapter fifty-one of said code; to amend and reenact section one-a, article nine of said chapter; and to amend and reenact section twenty-eight-a, article one, chapter fifty-nine of said code, all relating generally to creating a family court system.
Be it enacted by the Legislature of West Virginia:
    That article thirty, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section eight, article five, chapter three of said

code be amended and reenacted; that section three, article ten of said chapter be amended and reenacted; that section twelve, article five, chapter sixteen of said code be amended and reenacted; that section ten, article two, chapter seventeen-b of said code be amended and reenacted; that section five, article one, chapter forty-two of said code be amended and reenacted; that sections two hundred two, two hundred five, two hundred sixteen, two hundred seventeen, two hundred twenty-one, two hundred twenty-five, two hundred twenty-six, three hundred three, three hundred four and three hundred five, article one, chapter forty-eight of said code be amended and reenacted; that sections four hundred one and four hundred four, article two of said chapter be amended and reenacted; that section one hundred one, article four of said chapter be amended and reenacted; that sections one hundred two, one hundred three, one hundred seven, two hundred one, four hundred two, four hundred three, six hundred four, six hundred five, six hundred eleven and seven hundred two, article five of said chapter be amended and reenacted; that section two hundred three, article seven of said chapter be amended and reenacted; that sections one hundred two and one hundred five, article eight of said chapter be amended and reenacted; that sections one hundred four, two hundred two, four hundred three and six hundred three, article nine of said

chapter be amended and reenacted; that sections one hundred five and one hundred six, article eleven of said chapter be amended and reenacted; that sections one hundred one, two hundred two, two hundred four, two hundred five, seven hundred one, nine hundred one and nine hundred two, article thirteen of said chapter be amended and reenacted; that sections one hundred one, one hundred six, two hundred four, four hundred two, four hundred five, five hundred one and eight hundred two, article fourteen of said chapter be amended and reenacted; that sections two hundred five, two hundred seven and two hundred eight, article fifteen of said chapter be amended and reenacted; that sections one hundred one, one hundred two and three hundred five, article sixteen of said chapter be amended and reenacted; that sections one hundred eight, one hundred eleven, one hundred fourteen, one hundred twenty-three and one hundred twenty- six, article eighteen of said chapter be amended and reenacted; that section one hundred two, article twenty of said chapter be amended and reenacted; that sections one hundred one and one hundred three, article twenty-four of said chapter be amended and reenacted; that sections two hundred four, two hundred five, two hundred nine, three hundred four, four hundred two, four hundred three, five hundred one, five hundred five, five hundred eight and five hundred ten, article twenty-seven of said chapter be amended

and reenacted; that article two-a, chapter fifty-one of said code be amended and reenacted; that section one-a, article nine of said chapter be amended and reenacted; and that section twenty-eight-a, article one, chapter fifty-nine of said code be amended and reenacted, all to read as follows:

congressional, senatorial or delegate district committee of any political party shall pay a fee of five dollars.
    Candidates filing for an office to be filled by the voters of one county shall pay the filing fee to the clerk of the circuit court and candidates filing for an office to be filled by the voters of more than one county shall pay the filing fee to the secretary of state at the time of filing their certificates of announcement and no certificate of announcement shall be received until the filing fee is paid.
    All moneys received by such clerk from such fees shall be credited to the general county fund. Moneys received by the secretary of state from fees paid by candidates for offices to be filled by all the voters of the state shall be deposited in a special fund for that purpose and shall be apportioned and paid by him to the several counties on the basis of population and that received from candidates from a district or judicial circuit of more than one county shall be apportioned to the counties comprising the district or judicial circuit in like manner. When such moneys are received by sheriffs, it shall be credited to the general county fund.
ARTICLE 10. FILLING VACANCIES.
        §3-10-3. Vacancies in offices of state officials, United States

senators and judges.
    Any vacancy occurring in the office of secretary of state, auditor, treasurer, attorney general, commissioner of agriculture, United States senator, judge of the supreme court of appeals or in any office created or made elective to be filled by the voters of the entire state, judge of a circuit court or judge of a family court is filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, a judge of the circuit court or judge of a family court is for less than two years or if the unexpired term of any other office named in this section is for a period of less than two years and six months, the appointment to fill the vacancy is for the unexpired term. If the unexpired term of any office is for a longer period than above specified, the appointment is until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term. Proclamation of any election to fill an unexpired term is made by the governor of the state and, in the case of an office to be filled by the voters of the entire state, must be published prior to the election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine

of this code and the publication area for the publication is each county of the state. If the election is to fill a vacancy in the office of judge of a circuit court or judge of a family court, the proclamation must be published prior to the election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication is each county in the judicial or family court circuit.

resides.
    (b) When a birth occurs in an institution, the person in charge of the institution or his or her designated representative shall obtain the personal data, prepare the certificate, secure the signatures required for the certificate and file it with the local registrar. The physician in attendance shall certify to the facts of birth and provide the medical information required for the certificate within five days after the birth.
    (c) When a birth occurs outside an institution, the certificate shall be prepared and filed by one of the following in the indicated order of priority:
    (1) The physician in attendance at or immediately after the birth or in the absence of such a person;
    (2) Any other person in attendance at or immediately after the birth or in the absence of such a person; or
    (3) The father, the mother or, in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred.
    (d) Either of the parents of the child shall sign the certificate of live birth to attest to the accuracy of the personal data entered thereon, in time to permit its filing within the seven days prescribed above.

same manner as other personal data is transmitted to the state registrar.
    (g) If the mother was married either at the time of conception or birth, the name of the husband shall be entered on the certificate as the father of the child unless paternity has been determined otherwise by a court of competent jurisdiction pursuant to the provisions of article twenty-four, chapter forty-eight of this code or other applicable law, in which case the name of the father as determined by the court shall be entered.
    (h) If the mother was not married either at the time of conception or birth, the name of the father shall not be entered on the certificate of birth without the written consent of the mother and of the person to be named as the father unless a determination of paternity has been made by a court of competent jurisdiction pursuant to the provisions of article twenty-four, chapter forty- eight of this code or other applicable law, in which case the name of the father as determined by the court shall be entered.
    (i) A written, notarized acknowledgment of both the man and the woman that the man is the father of a named child legally establishes the man as the father of the child for all purposes and child support may be established pursuant to the provisions of chapter forty-eight of this code.

of an administrative or judicial proceeding relating to the child in which the signatory is a party, the court may only set aside the acknowledgment upon a finding, by clear and convincing evidence, that the acknowledgment was executed under circumstances of fraud, duress or material mistake of fact. The circuit clerk shall forward a copy of any order entered pursuant to this proceeding to the state registrar of vital statistics by certified mail.

as provided in article fifteen, chapter forty-eight of this code.
    (c) The division may either issue a special restricted license or may set forth such restrictions upon the usual license form.
    (d) The division may upon receiving satisfactory evidence of any violation of the restrictions of such license suspend or revoke the same but the licensee shall be entitled to a hearing as upon a suspension or revocation under this chapter.
    (e) It is a misdemeanor for any person to operate a motor vehicle in any manner in violation of the restrictions imposed in a restricted license issued to such person.

another state.
    (c) After the death of the father, paternity shall be established if, after a hearing on the merits, the court shall find, by clear and convincing evidence, that the man is the father of the child. The civil action shall be filed in the family court of the county where the administration of the decedent's estate has been filed or could be filed:
    (1) Within six months of the date of the final order of the county commission admitting the decedent's will to probate or commencing intestate administration of the estate; or
    (2) If none of the above apply, within six months from the date of decedent's death.
    (d) Any putative child who at the time of the decedent's death is under the age of eighteen years, a convict or a mentally incapacitated person may file such civil action within six months after he or she becomes of age or the disability ceases.
    (e) The provisions of this section do not apply where the putative child has been lawfully adopted by another man and stands to inherit property or assets through his adopted father.
    (f) The provisions of this section do not apply where the father or putative father has expressly disinherited the child in a provision of his will.

subtract this amount from the support obligor's gross income.
    (c) As used in this section, the term "legal dependents" means:
    (1) Minor natural or adopted children who live with the parent; and
    (2) Natural or adopted adult children who are totally incapacitated because of physical or emotional disabilities and for whom the parent owes a duty of support.
§48-1-205. Attributed income defined.
    (a) "Attributed income" means income not actually earned by a parent but which may be attributed to the parent because he or she is unemployed, is not working full time or is working below full- earning capacity or has nonperforming or underperforming assets. Income may be attributed to a parent if the court evaluates the parent's earning capacity in the local economy (giving consideration to relevant evidence that pertains to the parent's work history, qualifications, education and physical or mental condition) and determines that the parent is unemployed, is not working full time or is working below full-earning capacity. Income may also be attributed to a parent if the court finds that the obligor has nonperforming or underperforming assets.
    (b) If an obligor: (1) Voluntarily leaves employment or

voluntarily alters his or her pattern of employment so as to be unemployed, underemployed or employed below full-earning capacity; (2) is able to work and is available for full-time work for which he or she is fitted by prior training or experience; and (3) is not seeking employment in the manner that a reasonably prudent person in his or her circumstances would do, then an alternative method for the court to determine gross income is to attribute to the person an earning capacity based on his or her previous income. If the obligor's work history, qualifications, education or physical or mental condition cannot be determined, or if there is an inadequate record of the obligor's previous income, the court may, as a minimum, base attributed income on full-time employment (at forty hours per week) at the federal minimum wage in effect at the time the support obligation is established.
    (c) Income shall not be attributed to an obligor who is unemployed or underemployed or is otherwise working below full- earning capacity if any of the following conditions exist:
    (1) The parent is providing care required by the children to whom the parties owe a joint legal responsibility for support and such children are of preschool age or are handicapped or otherwise in a situation requiring particular care by the parent;
    (2) The parent is pursuing a plan of economic self-improvement

which will result, within a reasonable time, in an economic benefit to the children to whom the support obligation is owed, including, but not limited to, self-employment or education: Provided, That if the parent is involved in an educational program, the court shall ascertain that the person is making substantial progress toward completion of the program;
    (3) The parent is, for valid medical reasons, earning an income in an amount less than previously earned; or
    (4) The court makes a written finding that other circumstances exist which would make the attribution of income inequitable: Provided, That in such case, the court may decrease the amount of attributed income to an extent required to remove such inequity.
    (d) The court may attribute income to a parent's nonperforming or under-performing assets, other than the parent's primary residence. Assets may be considered to be nonperforming or under-performing to the extent that they do not produce income at a rate equivalent to the current six-month certificate of deposit rate or such other rate that the court determines is reasonable.
§48-1-216. Court defined.
    "Court" means a family court of this state unless the context in which such term is used clearly indicates that reference to some other court is intended.

the time of establishment or modification of a child support order. Such expenses shall include, but not be limited to, insurance copayments and deductibles, reasonable costs for necessary orthodontia, dental treatment, asthma treatments, physical therapy, vision therapy and eye care and any uninsured chronic health problem.
§48-1-226. Family court judge defined.
    "Family court judge" means a family court judge appointed or elected and authorized to hear certain domestic relations actions as provided in article two-a, chapter fifty-one of this code.

information sealed in the court file. Sealed documents or court files can only be opened by order of a circuit or family court judge.
    (d) The parties, their designees, their attorneys, a duly appointed guardian ad litem or any other person who has standing to seek modification or enforcement of a support order has the right to examine and copy any document in a confidential court file that has not been sealed by court order. Upon motion and for good cause shown, the court may permit a person who is not a party to the action to examine and copy any documents that are necessary to further the interests of justice.
    (e) The clerk of the circuit court shall keep a written log of all persons who examine confidential documents as provided for in this section. Every person who examines confidential documents shall first sign the clerk's written log, except for a circuit judge or family court judge before whom the case is pending, or court personnel acting within the scope of their duties. The clerk shall record the time and date of every examination of confidential documents. The log must be retained by the clerk and must be available upon request for inspection by the circuit judge or the family court judge.
§48-1-304. Proceedings in contempt.

contempt, the court shall afford the contemnor a reasonable time and method whereby he may purge himself of contempt. If the contemnor fails or refuses to purge himself of contempt, the court may confine the contemnor to the county jail for an indeterminate period not to exceed six months or until such time as the contemnor has purged himself, whichever shall first occur. If the petition alleges civil contempt, the matter shall be heard by the family court. The family court has the same power and authority as the circuit court under the provisions of this section for criminal contempt proceedings which the circuit court elects to treat as civil contempt.
    (c) In the case of a charge of contempt based upon the failure of the defendant to pay alimony, child support or separate maintenance, if the court or jury finds that the defendant did not pay because he was financially unable to pay, the defendant may not be imprisoned on charges of contempt of court.
    (d) Regardless of whether the court or jury finds the defendant to be in contempt, if the court shall find that a party is in arrears in the payment of alimony, child support or separate maintenance ordered to be paid under the provisions of this chapter, the court shall enter judgment for such arrearage and award interest on such arrearage from the due date of each unpaid

installment. Following any hearing wherein the court finds that a party is in arrears in the payment of alimony, child support or separate maintenance, the court may, if sufficient assets exist, require security to ensure the timely payment of future installments.
    (e) At any time during a contempt proceeding the court may enter an order to attach forthwith the body of, and take into custody, any person who refuses or fails to respond to the lawful process of the court or to comply with an order of the court. Such order of attachment shall require the person to be brought forthwith before the court or the judge thereof in any county in which the court may then be sitting.
§48-1-305. Suit money, counsel fees and costs.
    (a) Costs may be awarded to either party as justice requires and in all cases the court, in its discretion, may require payment of costs at any time and may suspend or withhold any order until the costs are paid.
    (b) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action. An order for temporary relief awarding attorney's fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the

case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of such fees and costs was previously ordered. If an appeal is taken or an intention to appeal is stated, the court may further order either party to pay attorney's fees and costs on appeal.
    (c) When it appears to the court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.
ARTICLE 2. MARRIAGE.

the formal act or ceremony by which a man and woman contract marriage and assume the status of husband and wife.
    For purposes of this chapter, the term “religious representative” means a minister, priest or rabbi and includes, without being limited to, a leader or representative of a generally recognized spiritual assembly, church or religious organization which does not formally designate or recognize persons as ministers, priests or rabbis.
        §48-2-404. Ritual for ceremony of marriage by a judge or justice.
    The ritual for the ceremony of marriages by a family court judge, a circuit judge or a justice of the supreme court of appeals may be as follows: At the time appointed, the persons to be married, being qualified according to the law of the state of West Virginia, standing together facing the judge, the man at the judge's left hand and the woman at the right, the judge shall say:
    “We are gathered here, in the presence of these witnesses, to join together this man and this woman in matrimony. It is not to be entered into unadvisedly but discreetly, sincerely and in dedication of life.”
    (Then shall the judge say to the man, using his christian name:)
    “N., wilt thou have this woman to be thy wedded wife, to live

together in the bonds of matrimony? Wilt thou love her, comfort her, honor and keep her in sickness and in health?”
    (Then the man shall answer:)
    “I will.”
    (Then the judge shall say to the woman, using her christian name:)
    “N., wilt thou have this man to be thy wedded husband, to live together in the bonds of matrimony? Wilt thou love him, comfort him, honor and keep him in sickness and health?”
    (The woman shall answer:)
    “I will.”
    (Then may the judge say:)
    “Who giveth this woman to be married to this man?”
    (The father of the woman, or whoever giveth her in marriage, shall answer:)
    “I do.”
    (Then the judge shall ask the man to say after him:)
    “I, N., take thee, N., to be my wedded wife, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, as long as life shall last, and thereto I pledge thee my faith.”
    (Then the judge shall ask the woman to repeat after him:)

virtue of the authority vested in me as judge of this court, I pronounce that they are husband and wife together.”
ARTICLE 4. SEPARATE MAINTENANCE.
        §48-4-101. Where an action for separate maintenance may be brought.
    An action for separate maintenance may be brought in the family court of any county where an action for divorce between the parties could be brought. An action for separate maintenance may be brought whether or not a divorce is prayed for.
ARTICLE 5. DIVORCE.

the subject matter of divorce embraces the power to determine every issue or controverted question in an action for divorce, according to the court's view of the law and the evidence.
         §48-5-103. Jurisdiction of parties; service of process.
    (a) In an action for divorce, it is immaterial where the marriage was celebrated, where the parties were domiciled at the time the grounds for divorce arose or where the marital offense was committed. If one or both of the parties is domiciled in this state at the time the action is commenced, the circuit courts and family courts of this state have jurisdiction to grant a divorce for any grounds fixed by law in this state, without any reference to the law of the place where the marriage occurred or where the marital offense was committed.
    (b) A judgment order may be entered upon service of process in the manner specified in the rules of civil procedure for the service of process upon individuals.
§48-5-107. Parties to a divorce action.
    (a) Either or both of the parties to a marriage may initiate an action for divorce.
    (b) A spouse who is under the age of majority has standing in a divorce action to sue, answer or plead by a next friend.
    (c) An incompetent or insane person shall sue, answer or plead

by his or her committee. If a person has not been adjudicated incompetent or insane and has not been divested of the power to act on his or her own behalf, it is presumed that the person has the capacity to bring the action or be made a party respondent. This presumption may be rebutted by evidence which shows that the person cannot reasonably understand the nature and purpose of the action and the effect of his or her acts with reference to the action.
    (d) The appointment of a guardian ad litem for a minor, an incompetent or an insane party is not required unless specifically ordered by the judge hearing the action.
    (e) Anyone charged as a particeps criminis shall be made a party to a divorce action, upon his or her application to the court, subject to such terms and conditions as the court may prescribe.
    (f) In a divorce action where the interests of the minor children of the parties are or may be substantially different from those of either or both of the parents and the best interests of the children may be in conflict with the desires of either or both parents, the court may make the children parties respondent and appoint a guardian ad litem to advocate and protect their rights and welfare.

authority to grant a motion to require a more definite and certain statement, set forth in ordinary and concise language, alleging facts and not conclusions of law.
    (c) If the jurisdiction of the court to grant a divorce depends upon the existence of certain facts, including, but not limited to, facts showing domicil or domicil for a certain length of time, the petition must allege those facts. It is not necessary that allegations showing requisite domicil be in the language of the statute, but they should conform substantially thereto so that everything material to the fact of requisite domicil can be ascertained therefrom.
    (d) A petition shall not be taken for confessed and whether the respondent answers or not, the case shall be tried and heard independently of the admissions of either party in the pleadings or otherwise. No judgment order shall be granted on the uncorroborated testimony of the parties or either of them, except for a proceeding in which the grounds for divorce are irreconcilable differences.
    (e) The supreme court of appeals shall develop and provide forms for petitions filed pursuant to this section and for answers filed pursuant to section 5-403. The forms shall be made available for distribution in the offices of the clerks of the circuit courts

and in the offices of the secretary-clerks to the family court judges.
         §48-5-403. Answer to petition.
    (a) The responsive pleading to a petition for divorce is denominated an answer. The form and requisites for an answer to a petition for divorce are governed by the rules of civil procedure.
    (b) Except as provided in subsection (c) of this section, an allegedly guilty party who relies upon an affirmative defense must assert such defense by both pleadings and proof. Affirmative defenses include, but are not limited to, condonation, connivance, collusion, recrimination, insanity and lapse of time.
    (c) In an action in which a party seeks a divorce based on an allegation that the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year, the affirmative defenses, including, but not limited to, condonation, connivance, collusion, recrimination, insanity and lapse of time, shall not be raised.

goods, furniture and furnishings. The order shall establish a definite period for the use and occupancy, ending at a specific time set forth in the order, subject to modification upon the petition of either party.
    (b) Generally, an award of the exclusive use and occupancy of the marital home is appropriate when necessary to accommodate rearing minor children of the parties. Otherwise, the court may award exclusive use and occupancy only in extraordinary cases supported by specific findings set forth in the order that grants relief.
    (c) An order awarding the exclusive use and occupancy of the marital home may also require payments to third parties for home loan installments, land contract payments, rent, property taxes and insurance coverage. When requiring third-party payments, the court shall reduce them to a fixed monetary amount set forth in the order. The court shall specify whether third-party payments or portions of payments are spousal support, child support, a partial distribution of marital property or an allocation of marital debt. Unless the court identifies third-party payments as child support payments or as installment payments for the distribution of marital property, then such payments are spousal support. If the court does not identify the payments and the parties have waived any

right to receive spousal support, the court may identify the payments upon motion by any party.
    (d) This section is not intended to abrogate a contract between either party and a third party or affect the rights and liabilities of either party or a third party under the terms of a contract.
§48-5-605. Use and possession of motor vehicles.
    (a) The court may award the exclusive use and possession of a motor vehicle or vehicles to either of the parties.
    (b) The court may require payments to third parties in the form of automobile loan installments or insurance coverage, if coverage is available at reasonable rates. When requiring third-party payments, the court shall reduce them to a fixed monetary amount set forth in the order. The court shall specify whether third-party payments or portions of payments are spousal support or installment payments for the distribution of marital property.
    (c) This section is not intended to abrogate a contract between either party and a third party or affect the rights and liabilities of either party or a third party under the terms of a contract.
§48-5-611. Suit money, counsel fees and costs.

reasonable attorney's fees and costs to the other party.
§48-5-702. Revision of order enjoining abuse.
    After entering an order enjoining abuse in accordance with the provisions of section 5-509, the court may, from time to time afterward, upon motion of either of the parties and upon proper service, revise the order and enter a new order concerning the same as the circumstances of the parties and the benefit of children may require.
ARTICLE 7. EQUITABLE DISTRIBUTION OF PROPERTY.

false swearing.
ARTICLE 8. SPOUSAL SUPPORT.
§48-8-102. Jurisdiction to award spousal support.
    The family courts and circuit courts, as provided in this chapter, have jurisdiction to award spousal support. A court may provide for the maintenance of a spouse during the pendency of an appeal to the circuit court or to the supreme court of appeals.
§48-8-105. Rehabilitative spousal support.
    (a) The court may award rehabilitative spousal support for a limited period of time to allow the recipient spouse, through reasonable efforts, to become gainfully employed. When awarding rehabilitative spousal support, the court shall make specific findings of fact to explain the basis for the award, giving due consideration to the factors set forth in section 8-103 of this article. An award of rehabilitative spousal support is appropriate when the dependent spouse evidences a potential for self-support that could be developed through rehabilitation, training or academic study.
    (b) The court may modify an award of rehabilitative spousal support if a substantial change in the circumstances under which rehabilitative spousal support was granted warrants terminating, extending or modifying the award or replacing it with an award of

permanent spousal support. In determining whether a substantial change of circumstances exists which would warrant a modification of a rehabilitative spousal support award, the court may consider a reassessment of the dependent spouse's potential work skills and the availability of a relevant job market, the dependent spouse's age, health and skills, the dependent spouse's ability or inability to meet the terms of the rehabilitative plan and other relevant factors as provided for in section 8-103 of this article.
        ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION- MAKING RESPONSIBILITY OF CHILDREN.

an action for divorce involving a minor child or children to attend parent education classes established pursuant to subsection (a) of this section unless the court determines that attendance is not appropriate or necessary based on the conduct or circumstances of the parties. The court may, by order, establish sanctions for failure to attend. The court may also order parties to an action involving paternity, separate maintenance or modification of a divorce decree to attend such classes.
    (c) The family court may require that each person attending a parent education class pay a fee, not to exceed twenty-five dollars, to the clerk of the circuit court to defray the cost of materials and of hiring teachers: Provided, That where it is determined that a party is indigent and unable to pay for such classes, the court shall waive the payment of the fee for such party. The clerk of the circuit court shall, on or before the tenth day of each month, transmit all fees collected under this subsection to the state treasurer for deposit in the state treasury to the credit of special revenue fund to be known as the "parent education fund" which is hereby created. All moneys collected and received under this subsection and paid into the state treasury and credited to the parent education fund shall be used by the administrative office of the supreme court of appeals solely for

reimbursing the provider of parent education classes for the costs of materials and of providing such classes. Such moneys shall not be treated by the auditor and treasurer as part of the general revenue of the state.
    (d) The administrative office of the supreme court of appeals shall submit a report to the joint committee on government and finance summarizing the effectiveness of any program of parent education no later than two years from the initiation of the program.

the relocation is in good faith under subsection (d) of this section and is a basis for an award of reasonable expenses and reasonable attorney's fees to another parent that are attributable to such failure.
    The supreme court of appeals shall make available through the offices of the circuit clerks and the secretary-clerks of the family courts a form notice that complies with the provisions of this subsection. The supreme court of appeals shall promulgate procedural rules that provide for an expedited hearing process to resolve issues arising from a relocation or proposed relocation.
    (c) When changed circumstances are shown under subsection (a) of this section, the court shall, if practical, revise the parenting plan so as to both accommodate the relocation and maintain the same proportion of custodial responsibility being exercised by each of the parents. In making such revision, the court may consider the additional costs that a relocation imposes upon the respective parties for transportation and communication, and may equitably allocate such costs between the parties.
    (d) When the relocation constituting changed circumstances under subsection (a) of this section renders it impractical to maintain the same proportion of custodial responsibility as that being exercised by each parent, the court shall modify the

parenting plan in accordance with the child's best interests and in accordance with the following principles:
    (1) A parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose. The percentage of custodial responsibility that constitutes a significant majority of custodial responsibility is seventy percent or more. A relocation is for a legitimate purpose if it is to be close to significant family or other support networks, for significant health reasons, to protect the safety of the child or another member of the child's household from significant risk of harm, to pursue a significant employment or educational opportunity or to be with one's spouse who is established, or who is pursuing a significant employment or educational opportunity, in another location. The relocating parent has the burden of proving of the legitimacy of any other purpose. A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving or by moving to a location that is substantially less disruptive of the other parent's relationship to the child.

county in which the family court is located in the same manner as original process under rule 4(d) of the rules of civil procedure.
    (d) The notice shall fix a date fourteen days from the date of mailing and inform the party that unless the recalculation is contested and a hearing request is made on or before the date fixed, the proposed modification will be made effective. If the filing is contested, the proposed modification shall be set for hearing; otherwise, the court shall enter an order for a judgment by default. Either party may move to set aside a judgment by default, pursuant to the provisions of rule 55 or rule 60(b) of the rules of civil procedure.
    (e) If an obligor uses the provisions of this section to expeditiously reduce his or her child support obligation, the order that effected the reduction shall also require the obligor to notify the obligee of reemployment, new employment or other such change in employment status that results in an increase in income. If an obligee uses the provisions of this section to expeditiously increase his or her child support obligation, the order that effected the increase shall also require the obligee to notify the obligor of reemployment, new employment or other such change in employment status that results in an increase in income of the obligee.

any other extraordinary expenses agreed to by the parents or ordered by the court; and
    (2) Subtract any extraordinary credits agreed to by the parents or ordered by the court.
§48-13-204. Use of worksheets.
     The calculation of the amount awarded by the support order requires the use of one of two worksheets which must be completed for each case. Worksheet A is used for a basic shared parenting arrangement. Worksheet B is used for an extended shared parenting arrangement.
§48-13-205. Present income as monthly amounts.
    To the extent practicable, all information relating to income shall be presented to the court based on monthly amounts. For example, when a party is paid wages weekly, the pay should be multiplied by fifty-two and divided by twelve to arrive at a correct monthly amount. If the court deems appropriate, such information may be presented in such other forms as the court directs.

presumption to all child support orders established or modified in West Virginia. The guidelines must be applied to all actions in which child support is being determined including temporary orders, interstate (URESA and UIFSA), domestic violence, foster care, divorce, nondissolution, public assistance, nonpublic assistance and support decrees arising despite nonmarriage of the parties. The guidelines must be used by the court as the basis for reviewing adequacy of child support levels in uncontested cases as well as contested hearings.

cause, the court may order the release of funds in the trust from time to time.
         ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.

render necessary to meet the ends of justice.
    (b) The supreme court of appeals shall make available to the family courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should be altered or revised because of a loss or change of employment or other substantial change affecting income, or that the amount of support required to be paid is not within fifteen percent of the child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court shall make such forms available to persons desiring to petition the court pro se for a modification of the support award.

must inform the obligor that if he or she desires to contest the affidavit on the grounds that the amount claimed to be in arrears is incorrect or that a writ of execution, suggestion or suggestee execution is not proper because of mistakes of fact, he or she must, within fourteen days of the date of the notice: (1) Inform the bureau for child support enforcement in writing of the reasons why the affidavit is contested and request a meeting with the bureau for child support enforcement; or (2) where a court of this state has jurisdiction over the parties, obtain a date for a hearing before the court and mail written notice of such hearing to the obligee and to the bureau for child support enforcement on a form prescribed by the administrative office of the supreme court of appeals and made available through the office of the clerk of the circuit court.
    (c) Upon being informed by an obligor that he or she desires to contest the affidavit, the bureau for child support enforcement shall inform the court of such fact, and the court shall require the obligor to give security, post a bond or give some other guarantee to secure payment of overdue support.

228 of this chapter;
    (5) That the withholding will apply to the obligor's present source of income and to any future source of income and, therefore, no other notice of withholding will be sent to the obligor. A copy of any new or modified withholding notice will be sent to the obligor at approximately the same time the original is sent to the source of income;
    (6) That any action by the obligor to purposefully minimize his or her income will result in the enforcement of support being based upon potential and not just actual earnings;
    (7) That payment of the arrearage after the date of the notice is not a bar to such withholding;
    (8) That the obligor may request a review of the withholding by written request to the bureau for child support enforcement when the obligor has information showing an error in the current or overdue support amount or a mistake as to the identity of the obligor;
    (9) That a mistake of fact exists only when there is an error in the amount of current or overdue support claimed in the notice or there is a mistake as to the identity of the obligor;
    (10) That matters such as lack of visitation, inappropriateness of the support award or changed financial

circumstances of the obligee or the obligor will not be considered at any hearing held pursuant to the withholding, but may be raised by the filing of a separate petition in family court;
    (11) That if the obligor desires to contest the withholding, the obligor may petition the family court for a resolution; and
    (12) That while the withholding is being contested through the court, the income withholding may not be stayed but may be modified.

there is proof that service on the person was effective, the bureau for child support enforcement shall file a certification with the court setting forth the person's noncompliance with the support order or failure to comply with a subpoena or warrant and the person's failure to respond to the written notice of the potential action against his or her license. If the court is satisfied that service of the notice on the person was effective as set forth in this section, it shall, without need for further due process or hearing, enter an order suspending or restricting any licenses held by the person. Upon the entry of the order, the bureau for child support enforcement shall forward a copy to the person and to any appropriate agencies responsible for the issuance of a license.
§48-15-208. Request and petition for hearing.
    If the person requests a hearing, the bureau for child support enforcement shall file a petition for a hearing before the family court. The hearing shall occur within forty-two days of the receipt of the person's request. If, prior to the hearing, the person pays the full amount of the child support arrearage or medical support arrearage or provides health insurance as ordered, the action against a license shall be terminated. No action against a license shall be initiated if the bureau for child support enforcement has received notice that the person has pending

a motion to modify the child support order if that motion was filed prior to the date that the notice of the action against the license was sent by the bureau for child support enforcement. The court shall consider the bureau for child support enforcement's petition to deny, refuse to renew, suspend or restrict a license in accordance with section 15-209.
ARTICLE 16. UNIFORM INTERSTATE FAMILY SUPPORT ACT.

months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
    (5) "Income" includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this state.
    (6) "Income-withholding order" means an order or other legal process directed to an obligor's source of income as defined by section 1-240 of this chapter to withhold support from the income of the obligor.
    (7) "Initiating state" means a state from which a proceeding is forwarded or in which a proceeding is filed for forwarding to a responding state under this article or a law or procedure substantially similar to this article, the uniform reciprocal enforcement of support act or the revised uniform reciprocal enforcement of support act.
    (8) "Initiating tribunal" means the authorized tribunal in an initiating state.
    (9) "Issuing state" means the state in which a tribunal issues a support order or renders a judgment determining parentage.

initiating state under this article or a law or procedure substantially similar to this article, the uniform reciprocal enforcement of support act or the revised uniform reciprocal enforcement of support act.
    (17) "Responding tribunal" means the authorized tribunal in a responding state.
    (18) "Spousal support order" means a support order for a spouse or former spouse of the obligor.
    (19) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes: (i) An Indian tribe; or (ii) a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this article, the uniform reciprocal enforcement of support act or the revised uniform reciprocal enforcement of support act.
    (20) "Support enforcement agency" means a public official or agency authorized to seek: (i) Enforcement of support orders or laws relating to the duty of support; (ii) establishment or modification of child support; (iii) determination of parentage; or (iv) to locate obligors or their assets.

or render a judgment to determine parentage; (2) order an obligor to comply with a support order, specifying the amount and the manner of compliance; (3) order income withholding; (4) determine the amount of any arrearages and specify a method of payment; (5) enforce orders by civil contempt; (6) set aside property for satisfaction of the support order; (7) place liens and order execution on the obligor's property; (8) order an obligor to keep the tribunal informed of the obligor's current residential address, telephone number, employer, address of employment and telephone number at the place of employment; (9) issue a capias for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the capias in any local and state computer systems for criminal warrants; (10) order the obligor to seek appropriate employment by specified methods; (11) award reasonable attorney's fees and other fees and costs; and (12) grant any other available remedy.
    (c) A responding tribunal of this state shall include in a support order issued under this article, or in the documents accompanying the order, the calculations on which the support order is based.
    (d) A responding tribunal of this state may not condition the payment of a support order issued under this article upon

compliance by a party with provisions for visitation.
    (e) If a responding tribunal of this state issues an order under this article, the tribunal shall send a copy of the order to the petitioner and the respondent and to the initiating tribunal, if any.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-108. Fees.
    (a) When the bureau for child support enforcement provides child support collection services either to a public assistance recipient or to a party who does not receive public assistance, the bureau for child support enforcement shall, upon written notice to the obligor, charge a monthly collection fee equivalent to the full monthly cost of the services, in addition to the amount of child support which was ordered by the court. The fee shall be deposited in the child support enforcement fund. The service fee assessed may not exceed ten percent of the monthly court-ordered child support and may not be assessed against any obligor who is current in payment of the monthly court-ordered child support payments: Provided, That this fee may not be assessed when the obligor is also a recipient of public assistance.
    (b) Except for those persons applying for services provided by the bureau for child support enforcement who are applying for or

receiving public assistance from the division of human services or persons for whom fees are waived pursuant to a legislative rule promulgated pursuant to this section, all applicants shall pay an application fee of twenty-five dollars.
    (c) Fees imposed by state and federal tax agencies for collection of overdue support shall be imposed on the person for whom these services are provided. Upon written notice to the obligee, the bureau for child support enforcement shall assess a fee of twenty-five dollars to any person not receiving public assistance for each successful federal tax interception. The fee shall be withheld prior to the assistance for each successful federal tax interception. The fee shall be withheld prior to the release of the funds received from each interception and deposited in the child support enforcement fund established pursuant to section 18-107.
    (d) In any action brought by the bureau for child support enforcement, the court shall order that the obligor shall pay attorney fees for the services of the attorney representing the bureau for child support enforcement in an amount calculated at a rate similar to the rate paid to court-appointed attorneys paid pursuant to section thirteen-a, article twenty-one, chapter twenty- nine of this code and all court costs associated with the action:

Provided, That no such award shall be made when the court finds that the award of attorney's fees would create a substantial financial hardship on the obligor or when the obligor is a recipient of public assistance. Further, the bureau for child support enforcement may not collect such fees until the obligor is current in the payment of child support. No court may order the bureau for child support enforcement to pay attorney's fees to any party in any action brought pursuant to this chapter.
    (e) This section shall not apply to the extent it is inconsistent with the requirements of federal law for receiving funds for the program under Title IV-A and Title IV-D of the Social Security Act, United States Code, article three, Title 42, Sections 601 to 613 and United States Code, Title 42, Sections 651 to 662.
    (f) The commission shall, by legislative rule promulgated pursuant to chapter twenty-nine-a of this code, describe the circumstances under which fees charged by the bureau for child support enforcement may be modified or waived and such rule shall provide for the waiver of any fee, in whole or in part, when such fee would otherwise be required to be paid under the provisions of this chapter. Further, such rule shall initially be promulgated as an emergency rule pursuant to section fifteen, article three, chapter twenty-nine-a of this code.

support enforcement; (2) a family or circuit court judge or any agent thereof; or (3) a resident parent, legal guardian, attorney or agent for a child. The bureau for child support enforcement shall charge a reasonable fee sufficient to cover the costs to the state and to the federal department of health and human services incurred by reason of such requests and shall transfer to that department, from time to time, so much of the fees collected as are attributable to the costs incurred by that department.
    (c) The information obtained by the bureau for child support enforcement from the federal parent locator service shall be used for, but not limited to, the following purposes:
    (1) Establishing parentage and establishing, setting the amount of, modifying or enforcing child support obligations;
    (2) Obtaining and transmitting information to any family or circuit court or agent thereof or to an attorney or employee of the United States or of any state responsible for enforcing any federal or state law with respect to the unlawful taking or restraint of a child or making or enforcing a child custody or visitation determination.
    (d) The bureau for child support enforcement may request from the federal parent locator service information:
    (1) About, or which will facilitate the discovery of

information about, the location of any individual: (A) Who is under an obligation to pay child support; (B) against whom such an obligation is sought; or (C) to whom such an obligation is owed, including the individual's social security number, or numbers, most recent address and the name, address and employer identification number of the individual's employer;
    (2) Concerning the individual's wages or other income from, and benefits of, employment, including rights to or enrollment in group health care coverage; and
    (3) Concerning the type, status, location and amount of any assets of, or debts owed by or to, any such individual.
    (e) The family court shall have jurisdiction to hear and determine, upon a petition by an authorized person as defined in subsection (b) of this section, whether the release of information from the federal parent locator service to that person could be harmful to the custodial parent or the child.
        §48-18-114. Amounts collected as support to be disbursed to person having custody; procedure for redirecting disbursement of payments where physical custody transferred to a person other than the custodial parent.
    (a) Where physical custody of the child has been transferred from the custodial parent to another person, the bureau for child

support enforcement may redirect disbursement of support payments to such other person, on behalf of the child, in the following circumstances:
    (1) Where the noncustodial parent has physical custody of the child, excluding visitation, upon filing with the bureau for child support enforcement:
    (A) An affidavit attesting that the noncustodial parent has obtained physical custody of the child, describing the circumstances under which the transfer of physical custody took place and stating that he or she anticipates that his or her physical custody of the child will continue for the foreseeable future; and
    (B) Documentary proof that the noncustodial parent has instituted proceedings in court for a modification of legal custody or a certified copy of the custodial parent's death certificate.
    (2) Where a person other than the custodial or noncustodial parent has physical custody of the child, excluding visitation, filing with the bureau for child support enforcement:
    (A) An affidavit attesting that the person has obtained physical custody of the child, describing the circumstances under which the transfer of physical custody took place and stating that he or she anticipates that his or her physical custody of the child

will continue for the foreseeable future; and
    (B) Documentary proof that the person claiming physical custody is currently the person responsible for the child by producing at least one of the following:
    (i) School records demonstrating that school authorities consider the person claiming physical custody the adult responsible for the child;
    (ii) Medical records demonstrating that the person claiming physical custody is empowered to make medical decisions on behalf of the child;
    (iii) Documents from another public assistance agency showing that the person claiming physical custody is currently receiving other public assistance on behalf of the child;
    (iv) A notarized statement from the custodial parent attesting to the fact that he or she has transferred physical custody to the person;
    (v) A verifiable order of a court of competent jurisdiction transferring physical or legal custody to the person;
    (vi) Documentation that the person claiming physical custody has filed a petition in court to be appointed the child's guardian;
    (vii) Documentation that the child, if over the age of fourteen, has instituted proceedings in court to have the person

claiming physical custody nominated as his or her guardian; or
    (viii) Any other official documents of a federal, state or local agency or governing body demonstrating that the person currently has physical custody of the child and has taken action indicating that he or she anticipates such physical custody to continue in the foreseeable future.
    (b) The bureau for child support enforcement shall mail, by first-class mail, a copy of the affidavit and supporting documentary evidence required under subsection (a) of this section to the circuit court which issued the support order being enforced by and to the parties to the order, at their last known addresses, together with a written notice stating that any party has ten days to object to the redirection of support payments by filing an affidavit and evidence showing that the person seeking redirection of the payments does not have physical custody of the child. If no objection is received by the bureau for child support enforcement by the end of the ten-day period, the bureau may order payments redirected to the person claiming physical custody for the benefit of the child. If a responsive affidavit and supporting evidence is filed within the ten-day period and, in the opinion of the bureau for child support enforcement, either disproves the claim of the person seeking redirection of support payments or raises a genuine

issue of fact as to whether the person has actual physical custody of the child, the bureau for child support enforcement shall continue to forward support payments to the custodial parent. Any person who disagrees with the determination of the bureau for child support enforcement may petition the court for modification of the child support order.
    (c) Any person who files a false affidavit pursuant to this section shall be guilty of false swearing and, upon conviction thereof, shall be punished as provided by law for such offense.
§48-18-123. Subpoenas.
    In order to obtain financial and medical insurance or other information pursuant to the establishment, enforcement and modification provisions set forth in this chapter, the bureau for child support enforcement or any out-of-state agency administering a program under Title IV-D of the Social Security Act may serve, by certified mail or personal service, an administrative subpoena on any person, corporation, partnership, financial institution, labor organization or state agency for an appearance or for production of financial or medical insurance or other information. In case of disobedience to the subpoena, the bureau for child support enforcement may invoke the aid of any family court in requiring the appearance or production of records and financial documents. The

bureau for child support enforcement may assess a civil penalty of no more than one hundred dollars for the failure of any person, corporation, financial institution, labor organization or state agency to comply with requirements of this section.
§48-18-126. Review and adjustment of child support orders.
    (a) Either parent or, if there has been an assignment of support to the department of health and human resources, the bureau for child support enforcement shall have the right to request an administrative review of the child support award in the following circumstances:
    (1) Where the request for review is received thirty-six months or more after the date of the entry of the order or from the completion of the previous administrative review, whichever is later, the bureau for child support enforcement shall conduct a review to determine whether the amount of the child support award in such order varies from the amount of child support that would be awarded at the time of the review pursuant to the guidelines for child support awards contained in article 13-101, et seq. If the amount of the child support award under the existing order differs by ten percent or more from the amount that would be awarded in accordance with the child support guidelines, the bureau for child support enforcement shall file with the family court a motion for

modification of the child support order. If the amount of the child support award under the existing order differs by less than ten percent from the amount that would be awarded in accordance with the child support guidelines, the bureau for child support enforcement may, if it determines that such action is in the best interest of the child or otherwise appropriate, file with the family court a motion for modification of the child support order.
    (2) Where the request for review of a child support award is received less than thirty-six months after the date of the entry of the order or from the completion of the previous administrative review, the bureau for child support enforcement shall undertake a review of the case only where it is alleged that there has been a substantial change in circumstances. If the bureau for child support enforcement determines that there has been a substantial change in circumstances and if it is in the best interests of the child, the bureau shall file with the family court a motion for modification of the child support order in accordance with the guidelines for child support awards contained in article 13-101, et seq., of this chapter.
    (b) The bureau for child support enforcement shall notify both parents at least once every three years of their right to request

a review of a child support order. The notice may be included in any order granting or modifying a child support award. The bureau for child support enforcement shall give each parent at least thirty days' notice before commencing any review and shall further notify each parent, upon completion of a review, of the results of the review, whether of a proposal to move for modification or of a proposal that there should be no change.
    (c) When the result of the review is a proposal to move for modification of the child support order, each parent shall be given thirty days' notice of the hearing on the motion, the notice to be directed to the last known address of each party by first-class mail. When the result of the review is a proposal that there be no change, any parent disagreeing with that proposal may, within thirty days of the notice of the results of the review, file with the court a motion for modification setting forth in full the grounds therefor.
    (d) For the purposes of this section, a "substantial change in circumstances" includes, but is not limited to, a changed financial condition, a temporary or permanent change in physical custody of the child which the court has not ordered, increased need of the child or other financial conditions. "Changed financial conditions" means increases or decreases in the resources available

to either party from any source. Changed financial conditions includes, but is not limited to, the application for or receipt of any form of public assistance payments, unemployment compensation and workers' compensation or a fifteen percent or more variance from the amount of the existing order and the amount of child support that would be awarded according to the child support guidelines.
        ARTICLE 20. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT.

legal custody, physical custody or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights and protection from domestic violence in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation or enforcement under part 20-301, et seq.
    (e) "Commencement" means the filing of the first pleading in a proceeding.
    (f) "Court" means an entity authorized under the law of a state to establish, enforce or modify a child custody determination. Reference to a court of West Virginia means the family court.
    (g) "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
    (h) "Initial determination" means the first child custody determination concerning a particular child.

of a child.
    (o) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.
    (p) "Tribe" means an Indian tribe or band or Alaskan Native village which is recognized by federal law or formally acknowledged by a state.
    (q) "Warrant" means an order issued by a court authorizing law-enforcement officers to take physical custody of a child.
ARTICLE 24. ESTABLISHMENT OF PATERNITY.
§48-24-101. Paternity proceedings.
    (a) A civil action to establish the paternity of a child and to obtain an order of support for the child may be instituted, by verified complaint, in the family court of the county where the child resides: Provided, That if such venue creates a hardship for the parties, or either of them, or if judicial economy requires, the court may transfer the action to the county where either of the parties resides.
    (b) A "paternity proceeding" is a summary proceeding, equitable in nature and within the domestic relations jurisdiction of the courts, wherein a family court upon the petition of the

state or another proper party may intervene to determine and protect the respective personal rights of a child for whom paternity has not been lawfully established, of the mother of the child and of the putative father of the child. The parties to a paternity proceeding are not entitled to a trial by jury.
    (c) The sufficiency of the statement of the material allegations in the complaint set forth as grounds for relief and the grant or denial of the relief prayed for in a particular case shall rest in the sound discretion of the court, to be exercised by the court according to the circumstances and exigencies of the case, having due regard for precedent and the provisions of the statutory law of this state.
    (d) A decree or order made and entered by a court in a paternity proceeding shall include a determination of the filial relationship, if any, which exists between a child and his or her putative father, and, if such relationship is established, shall resolve dependent claims arising from family rights and obligations attendant to such filial relationship.
    (e) A paternity proceeding may be brought by any of the following persons:
    (1) An unmarried woman with physical or legal custody of a child to whom she gave birth;

of this article may be ordered to be taken in such locations as may be convenient for the parties so long as the integrity of the chain of custody of the samples can be preserved.
    (g) A person who has sexual intercourse in this state submits to the jurisdiction of the courts of this state for a proceeding brought under this article with respect to a child who may have been conceived by that act of intercourse. Service of process may be perfected according to the rules of civil procedure.
    (h) When the person against whom the proceeding is brought has failed to plead or otherwise defend the action after proper service has been obtained, judgment by default shall be issued by the court as provided by the rules of civil procedure.
        §48-24-103. Medical testing procedures to aid in the determination of paternity.
    (a) Prior to the commencement of an action for the establishment of paternity, the bureau for child support enforcement may order the mother, her child and the man to submit to genetic tests to aid in proving or disproving paternity. The bureau may order the tests upon the request, supported by a sworn statement, of any person entitled to petition the court for a determination of paternity as provided in section one of this article. If the request is made by a party alleging paternity, the

statement shall set forth facts establishing a reasonable possibility or requisite sexual contact between the parties. If the request is made by a party denying paternity, the statement may set forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties or other facts supporting a denial of paternity. If genetic testing is not performed pursuant to an order of the bureau for child support enforcement, the court may, on its own motion or shall upon the motion of any party, order such tests. A request or motion may be made upon ten days' written notice to the mother and alleged father without the necessity of filing a complaint. When the tests are ordered, the court or the bureau shall direct that the inherited characteristics, including, but not limited to, blood types, be determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under the laws of this state or any other state and an expert qualified as an examiner of genetic markers shall analyze, interpret and report on the results to the court or to the bureau for child support enforcement. The results shall be considered as follows:
    (1) Blood or tissue test results which exclude the man as the father of the child are admissible and shall be clear and

convincing evidence of nonpaternity and, if a complaint has been filed, the court shall, upon considering such evidence, dismiss the action.
    (2) Blood or tissue test results which show a statistical probability of paternity of less than ninety-eight percent are admissible and shall be weighed along with other evidence of the respondent's paternity.
    (3) Undisputed blood or tissue test results which show a statistical probability of paternity of more than ninety-eight percent shall, when filed, legally establish the man as the father of the child for all purposes and child support may be established pursuant to the provisions of this chapter.
    (4) When a party desires to challenge the results of the blood or tissue tests or the expert's analysis of inherited characteristics, he or she shall file a written protest with the family court or with the bureau for child support enforcement, if appropriate, within thirty days of the filing of such test results and serve a copy of such protest upon the other party. The written protest shall be filed at least thirty days prior to any hearing involving the test results. The court or the bureau for child support enforcement, upon reasonable request of a party, shall order that additional tests be made by the same laboratory or

another laboratory within thirty days of the entry of the order, at the expense of the party requesting additional testing. Costs shall be paid in advance of the testing. When the results of the blood or tissue tests or the expert's analysis which show a statistical probability of paternity of more than ninety-eight percent are confirmed by the additional testing, then the results are admissible evidence which is clear and convincing evidence of paternity. The admission of the evidence creates a presumption that the man tested is the father.
    (b) Documentation of the chain of custody of the blood or tissue specimens is competent evidence to establish the chain of custody. A verified expert's report shall be admitted at trial unless a challenge to the testing procedures or a challenge to the results of test analysis has been made before trial. The costs and expenses of making the tests shall be paid by the parties in proportions and at times determined by the court.
    (c) Except as provided in subsection (d) of this section, when a blood test is ordered pursuant to this section, the moving party shall initially bear all costs associated with the blood test unless that party is determined by the court to be financially unable to pay those costs. This determination shall be made following the filing of an affidavit pursuant to section one,

article two, chapter fifty-nine of this code. When the court finds that the moving party is unable to bear that cost, the cost shall be borne by the state of West Virginia. Following the finding that a person is the father based on the results of a blood test ordered pursuant to this section, the court shall order that the father be ordered to reimburse the moving party for the costs of the blood tests unless the court determines, based upon the factors set forth in this section, that the father is financially unable to pay those costs.
    (d) When a blood test is ordered by the bureau for child support enforcement, the bureau shall initially bear all costs subject to recoupment from the alleged father if paternity is established.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.

context does not establish a dating relationship;
    (5) Are or were residing together in the same household;
    (6) Have a child in common regardless of whether they have ever married or lived together;
    (7) Have the following relationships to another person:
    (A) Parent;
    (B) Stepparent;
    (C) Brother or sister;
    (D) Half-brother or half-sister;
    (E) Stepbrother or stepsister;
    (F) Stepfather-in-law or stepmother-in-law;
    (G) Child or stepchild;
    (H) Daughter-in-law or son-in-law;
    (I) Stepdaughter-in-law or stepson-in-law;
    (J) Grandparent;
    (K) Stepgrandparent;
    (L) Aunt, aunt-in-law or stepaunt;
    (M) Uncle, uncle-in-law or stepuncle;
    (N) Niece or nephew;
    (O) First or second cousin; or
    (8) Have the relationships set forth in paragraphs (A) through (O), inclusive, subdivision (7) of this section to a family or

household member, as defined in subdivisions (1) through (6), inclusive, of this section.
§48-27-205. Final hearing defined.
    “Final hearing” means the hearing before a family court judge following the entry of an order by a magistrate as a result of the emergency hearing.
§48-27-209. Protective order defined.
    “Protective order” means an emergency protective order entered by a magistrate as a result of the emergency hearing or a protective order entered by a family court judge upon final hearing.

the privileged nature of their communications.

the protective order; and
     (3) Ordering the respondent to refrain from contacting, telephoning, communicating with, harassing or verbally abusing the petitioner.
    (d) A temporary emergency protective order may modify an award of custody or visitation only upon a showing, by clear and convincing evidence, of the respondent's abuse of a child, as abuse is defined in section 27-202 of this article. An order of modification shall clearly state which party has custody and describe why custody or visitation arrangements were modified.
    (e) (1) The magistrate shall forthwith transmit a copy of any temporary emergency protective order, together with a copy of the petition, by mail or by facsimile machine to the family court in which the action is pending and to law-enforcement agencies. The family court shall set a hearing on the matter to be held no later than ten days following the entry of the order by magistrate. The family court shall give notice of the hearing date, time and place to the parties and shall advise them of their opportunity to appear and participate in a hearing to determine whether the order entered by the magistrate should be extended by the family court to a date certain or should be vacated. The notice shall also provide that a party's failure to appear may result in the entry of an order

extending the order entered by the magistrate to a date certain or vacating the order of the magistrate. Subsequent to the hearing, the family court shall forthwith enter an order and cause the same to be served on the parties and transmitted by mail or by facsimile machine to the issuing magistrate. The magistrate court clerk shall forward a copy of the family court order to law-enforcement agencies.
    (2) If no temporary order has been entered in the pending action for divorce, annulment or separate maintenance, the family court shall forthwith return the order with such explanation to the issuing magistrate. The magistrate who issued the order shall vacate the order, noting thereon the reason for termination. The magistrate court clerk shall transmit a copy of the vacated order to the parties and law-enforcement agencies.
    (f) Notwithstanding any other provision of this code, if the family court extends the temporary emergency protective order entered by the magistrate or if, pursuant to the provisions of section 5-509, the family court enters a protective order as temporary relief in an action for divorce, the family court order shall be treated and enforced as a protective order issued under the provisions of this article.
        §48-27-403. Emergency protective orders of court; hearings;

persons present.
    (a) Upon the filing of a verified petition under this article, the magistrate court may enter an emergency protective order as it may deem necessary to protect the petitioner or minor children from domestic violence and, upon good cause shown, may do so ex parte without the necessity of bond being given by the petitioner. Clear and convincing evidence of immediate and present danger of abuse to the petitioner or minor children shall constitute good cause for the issuance of an emergency protective order pursuant to this section. If the respondent is not present at the proceeding, the petitioner or the petitioner's legal representative shall certify to the court, in writing, the efforts which have been made to give notice to the respondent or just cause why notice should not be required. Copies of medical reports or records may be admitted into evidence to the same extent as though the original thereof. The custodian of such records shall not be required to be present to authenticate such records for any proceeding held pursuant to this subsection. If the magistrate court determines to enter an emergency protective order, the order shall prohibit the respondent from possessing firearms.
    (b) Following the proceeding, the magistrate court shall order a copy of the petition to be served immediately upon the

respondent, together with a copy of any emergency protective order entered pursuant to the proceedings, a notice of the final hearing before the family court and a statement of the right of the respondent to appear and participate in the final hearing, as provided in subsection (d) of this section. Copies of any order entered under the provisions of this section, a notice of the final hearing before the family court and a statement of the right of the petitioner to appear and participate in the final hearing, as provided in subsection (d) of this section, shall also be delivered to the petitioner. Copies of any order entered shall also be delivered to any law-enforcement agency having jurisdiction to enforce the order, including municipal police, the county sheriff's office and local office of the state police, within twenty-four hours of the entry of the order. An emergency protective order is effective until modified by order of the family court upon hearing as provided in subsection (d) of this section. The order is in full force and effect in every county in this state.
    (c) Subsequent to the entry of the emergency protective order, service on the respondent and the delivery to the petitioner and law-enforcement officers, the court file shall be transferred to the office of the clerk of the circuit court for use by the family court.

or that he or she reported or witnessed domestic violence against another and has, as a result, been abused, threatened, harassed or has been the subject of other actions to attempt to intimidate him or her, or such petition shall be dismissed by the family court. If the respondent has not been served with notice of the emergency protective order, the hearing may be continued to permit service to be effected. The failure to obtain service upon the respondent does not constitute a basis to dismiss the petition. Copies of medical reports may be admitted into evidence to the same extent as though the original thereof, upon proper authentication, by the custodian of such records.
    (f) No person requested by a party to be present during a hearing held under the provisions of this article shall be precluded from being present unless such person is to be 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.
    (g) Upon hearing, the family court may dismiss the petition or enter a protective order for a period of ninety days or, in the discretion of the court, for a period of one hundred eighty days. The hearing may be continued on motion of the respondent, at the convenience of the court. Otherwise, the hearing may be continued

by the court no more than seven days. If a hearing is continued, the family court may modify the emergency protective order as it deems necessary.

a written request from the petitioner prior to the expiration of the ninety-day period, the family court shall extend its order for an additional ninety-day period.
    (b) To be effective, a written request to extend an order from ninety days to one hundred eighty days must be submitted to the court prior to the expiration of the original ninety-day period. A notice of the extension shall be sent by the clerk of the court to the respondent by first-class mail, addressed to the last known address of the respondent as indicated by the court file. The extension of time is effective upon mailing of the notice.
    (c) Certified copies of any order entered or extension notice made under the provisions of this section shall be served upon the respondent by first class mail, addressed to the last known address of the respondent as indicated by the court file, and delivered to the petitioner and any law-enforcement agency having jurisdiction to enforce the order, including the city police, the county sheriff's office or local office of the West Virginia state police within twenty-four hours of the entry of the order. The protective order shall be in full force and effect in every county of this state.
    (d) The family court may modify the terms of a protective order upon motion of either party.

this code;
    (3) All actions to establish paternity brought under the provisions of article twenty-four, chapter forty-eight of this code, and any dependent claims related to such actions regarding child support, parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child;
    (4) All actions for grandparent visitation brought under the provisions of article ten, chapter forty-eight of this code;
    (5) All actions for the interstate enforcement of family support brought under article sixteen, chapter forty-eight of this code and for the interstate enforcement of child custody brought under the provisions of article twenty, chapter forty-eight of this code;
    (6) All actions for the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, including actions brought under the uniform child custody jurisdiction and enforcement act, as provided in article twenty, chapter forty-eight of this code;
    (7) All petitions for writs of habeas corpus wherein the issue contested is custodial responsibility for a child;
    (8) All motions for temporary relief affecting parenting plans or other allocation of custodial responsibility or decision-making

responsibility for a child, child support, spousal support or domestic violence;
    (9) All motions for modification of an order providing for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child or for child support or spousal support;
    (10) All actions brought, including civil contempt proceedings, to enforce an order of spousal or child support or to enforce an order for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child;
    (11) All actions brought by an obligor to contest the enforcement of an order of support through the withholding from income of amounts payable as support or to contest an affidavit of accrued support, filed with the circuit clerk, which seeks to collect an arrearage; and
    (12) All final hearings in domestic violence proceedings.
    (b) If an action for divorce, annulment or separate maintenance does not require the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child and does not require an award or any payment of child support, the circuit court has concurrent

jurisdiction with the family court over the action if, at the time of the filing of the action, the parties also file a written property settlement agreement executed by both parties.
    (c) If an action for divorce, annulment or separate maintenance is pending and a petition is filed pursuant to the provisions of article six, chapter forty-nine of this code alleging abuse or neglect of a child by either of the parties to the divorce, annulment or separate maintenance action, the orders of the circuit court in which the abuse or neglect petition is filed shall supercede and take precedence over an order of the family court respecting the allocation of custodial and decision-making responsibility for the child between the parents. If no order for the allocation of custodial and decision-making responsibility for the child between the parents has been entered by the family court in the pending action for divorce, annulment or separate maintenance, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility for the child between the parents and defer to the orders of the circuit court in the abuse or neglect proceedings.
    (d) A family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction

of the family court is specifically authorized in this section and in chapter forty-eight of this code. A family court may not exercise the powers given courts of record in section one, article five, chapter fifty-one of this code or exercise any other powers provided for courts of record in this code unless specifically authorized by the Legislature. A family court judge is not a “judge of any court of record” or a “judge of a court of record” as the terms are defined and used in article nine of this chapter.
         §51-2A-3. Number of family court judges; assignment of family court judges by family court circuits.
    (a) A total of thirty-five family court judges shall serve throughout the state.
    (b) The state is divided into twenty-six family court circuits with the family court judges allocated as follows:
    (1) The counties of Brooke, Hancock and Ohio constitute the first family court circuit and have two family court judges;
    (2) The counties of Marshall, Wetzel and Tyler constitute the second family court circuit and have one family court judge;
    (3) The counties of Pleasants, Ritchie, Wood and Wirt constitute the third family court circuit and have two family court judges;
    (4) The counties of Doddridge, Roane, Calhoun and Gilmer

constitute the fourth family court circuit and have one family court judge;
    (5) The counties of Mason and Jackson constitute the fifth family court circuit and have one family court judge;
    (6) The county of Cabell constitutes the sixth family court circuit and has two family court judges;
    (7) The county of Wayne constitutes the seventh family court circuit and has one family court judge;
    (8) The county of Mingo constitutes the eighth family court circuit and has one family court judge;
    (9) The county of Logan constitutes the ninth family court circuit and has one family court judge;
    (10) The counties of Lincoln and Boone constitute the tenth family court circuit and have one family court judge;
    (11) The county of Kanawha constitutes the eleventh family court circuit and has four family court judges;
    (12) The counties of McDowell and Mercer constitute the twelfth family court circuit and have two family court judges;
    (13) The counties of Raleigh and Wyoming constitute the thirteenth family court circuit and have two family court judges;
    (14) The counties of Fayette and Summers constitute the fourteenth family court circuit and have one family court judge;

judges;
    (25) The counties of Hardy, Pendleton and Pocahontas constitute the twenty-fifth family court circuit and have one family court judge; and
    (26) The county of Putnam constitutes the twenty-sixth family court circuit and has one family court judge.
    (c) The Legislature has the authority and may determine to realign the family court circuits and has the authority and may determine to increase or decrease the number of family court judges within a family court circuit, from time to time. Any person appointed or elected to the office of family court judge acknowledges the authority of the Legislature to realign family court circuits and the authority of the Legislature to increase or decrease the number of family court judges within a family court circuit.
§51-2A-4. Qualifications of family court judges.
    (a) A family court judge must be a resident of this state, a member in good standing of the West Virginia state bar, admitted to practice law in this state for at least five years prior to election, and must, at the time he or she takes office, and thereafter during his or her continuance in office, reside in the family court circuit for which he or she is a judge.

persons except as may be provided for in this subsection may be admitted to the judges retirement system existing upon the effective date of the final judicial determination. A circuit judge or justice of the supreme court of appeals who is a member of the existing judges retirement system whose employment continues beyond the final judicial determination shall continue to contribute to and participate in the existing judges retirement system without a change in plan provisions or benefits. Any person who was previously a member of the judges retirement system and who later returns to participating employment as a circuit judge or justice of the supreme court of appeals after the final judicial determination has the right to elect to return to the existing judges retirement system and participate during the judge's or justice's term or terms of office.
        §51-2A-5. Term of office of family court judge; initial appointment; elections.
    (a) Before the first day of December, two thousand one, family court judges shall be appointed by the governor to serve in the family court circuits as provided for in section three of this article. The initial term of office for the family court judges first appointed shall commence on the first day of January, two thousand two, and end on the thirty-first day of December, two

thousand two.
    (b) Beginning with the primary and general elections to be conducted in the year two thousand two, family court judges shall be elected. In family court circuits having two or more family court judges there shall be, for election purposes, numbered divisions corresponding to the number of family court judges in each area. Each family court judge shall be elected at large by the entire family court circuit. In each numbered division of a family court circuit, the candidates for nomination or election shall be voted upon and the votes cast for the candidates in each division shall be tallied separately from the votes cast for candidates in other numbered divisions within the family court circuit. The candidate or candidates receiving the highest number of the votes cast within a numbered division shall be nominated or elected, as the case may be.
    (c) The term of office for all family court judges elected in two thousand two shall be for six years, commencing on the first day of January, two thousand three, and ending on the thirty-first day of December, two thousand eight. Subsequent terms of office for family court judges elected thereafter shall be for eight years.
§51-2A-6. Compensation and expenses of family court judges and

    their staffs.
    (a) Until the thirty-first day of December, two thousand two, a family court judge is entitled to receive as compensation for his or her services an annual salary of sixty thousand dollars. Beginning the first day of January, two thousand three, a family court judge is entitled to receive as compensation for his or her services an annual salary of sixty-two thousand five hundred dollars.
    (b) The secretary-clerk of the family court judge is appointed by the family court judge and serves at his or her will and pleasure. The secretary-clerk of the family court judge is entitled to receive an annual salary of twenty-two thousand three hundred eight dollars. In addition, beginning the first day of October, one thousand nine hundred ninety-nine, any secretary-clerk who was employed by a family law master on the twentieth day of May, one thousand nine hundred ninety-nine, and who was so employed for at least two years prior to such date, is entitled to receive an additional five hundred dollars per year up to ten years of such prior employment, as provided in the prior enactment of section eight of this article during the second extraordinary session of the Legislature in the year one thousand nine hundred ninety-nine. Further, the secretary-clerk will receive such percentage or

proportional salary increases as may be provided for by general law for other public employees and is entitled to receive the annual incremental salary increase as provided for in article five, chapter five of this code.
    (c) The family court judge may employ not more than one family case coordinator who serves at his or her will and pleasure. The annual salary of the family case coordinator of the family court judge shall be established by the administrative director of the supreme court of appeals but may not exceed thirty-five thousand dollars. The family case coordinator will receive such percentage or proportional salary increases as may be provided for by general law for other public employees and is entitled to receive the annual incremental salary increase as provided for in article five, chapter five of this code.
    (d) The sheriff or his or her designated deputy shall serve as a bailiff for a family court judge. The sheriff of each county shall serve or designate persons to serve so as to assure that a bailiff is available when a family court judge determines the same is necessary for the orderly and efficient conduct of the business of the family court.
    (e) Disbursement of salaries for family court judges and members of their staffs are made by or pursuant to the order of the

director of the administrative office of the supreme court of appeals.
    (f) Family court judges and members of their staffs are allowed their actual and necessary expenses incurred in the performance of their duties. The expenses and compensation will be determined and paid by the director of the administrative office of the supreme court of appeals under such guidelines as he or she may prescribe, as approved by the supreme court of appeals.
    (g) Notwithstanding any other provision of law, family court judges are not eligible to participate in the retirement system for judges under the provisions of article nine of this chapter.
        §51-2A-7. Powers; administrative and judicial functions of family court judge.
    (a) The family court judge will exercise any power or authority provided for in this article, in chapter forty-eight of this code or as otherwise provided by general law. Additionally, the family court judge has the authority to:
    (1) Manage the business before them;
    (2) Summon witnesses and compel their attendance in court;
    (3) Exercise reasonable control over discovery;
    (4) Compel and supervise the production of evidence;
    (5) Discipline attorneys;

family court as the supreme court of appeals deems warranted or necessary to improve the family court.
    (d) The supreme court of appeals shall promulgate a procedural rule to establish time-keeping requirements for family court judges, family case coordinators and secretary-clerks of family court judges so as to assure the maximum funding of incentive payments, grants and other funding sources available to the state for the processing of cases filed for the location of absent parents, the establishment of paternity and the establishment, modification and enforcement of child support orders.
        §51-2A-8. Rules of practice and procedure; applicability of rules of evidence; record of hearings; duties of clerk of circuit court.
    (a) Pleading, practice and procedure in matters before a family court judge are governed by rules of practice and procedure for family law promulgated by the supreme court of appeals.
    (b) The West Virginia rules of evidence apply to proceedings before a family court judge.
    (c) Hearings before a family court shall be recorded electronically. A magnetic tape or other electronic recording medium on which a hearing is recorded shall be indexed and securely preserved by the secretary-clerk of the family court judge and

shall not be placed in the case file in the office of the circuit clerk: Provided, That upon the request of the family court judge, the magnetic tapes or other electronic recording media shall be stored by the clerk of the circuit court. When requested by either of the parties, a family court judge shall provide a duplicate copy of the tape or other electronic recording medium of each hearing held. For evidentiary purposes, a duplicate of such electronic recording prepared by the secretary-clerk shall be a "writing" or "recording" as those terms are defined in rule 1001 of the West Virginia rules of evidence and unless the duplicate is shown not to reflect the contents accurately, it shall be treated as an original in the same manner that data stored in a computer or similar data is regarded as an "original" under such rule. The party requesting the copy shall pay an amount equal to the actual cost of the tape or other medium or the sum of five dollars, whichever is greater. Unless otherwise ordered by the court, the preparation of a transcript and the payment of the cost thereof shall be the responsibility of the party requesting the transcript.
    (d) The recording of the hearing or the transcript of testimony, as the case may be, and the exhibits, together with all documents filed in the proceeding, constitute the exclusive record and, on payment of lawfully prescribed costs, shall be made

available to the parties.
    (e) In any proceeding in which a party has filed an affidavit that he or she is financially unable to pay the fees and costs, the family court judge shall determine whether either party is financially able to pay the fees and costs based on the information set forth in the affidavit or on any evidence submitted at the hearing. If a family court judge determines that either party is financially able to pay the fees and costs, the family court judge shall assess the payment of such fees and costs accordingly as part of an order. The provisions of this subsection do not alter or diminish the provisions of section one, article two, chapter fifty- nine of this code.
    (f) The clerks of the circuit court shall have, within the scope of the jurisdiction of family courts, all the duties and powers prescribed by law that clerks exercise on behalf of circuit courts: Provided, That a family court judge may not require the presence or attendance of a circuit clerk or deputy circuit clerk at any hearing before the family court.
§51-2A-9. Contempt powers of family court judge.
    (a) In addition to the powers of contempt established in chapter forty-eight of this code, a family court judge may:
    (1) Sanction persons through civil contempt proceedings when

necessary to preserve and enforce the rights of private parties or to administer remedies granted by the court;
    (2) Regulate all proceedings in a hearing before the family court judge; and
    (3) Punish direct contempts that are committed in the presence of the court or that obstruct, disrupt or corrupt the proceedings of the court.
    (b) A family court judge may enforce compliance with his or her lawful orders with remedial or coercive sanctions designed to compensate a complainant for losses sustained and to coerce obedience for the benefit of the complainant. Sanctions must give the contemnor an opportunity to purge himself or herself. In selecting sanctions, the court must use the least possible power adequate to the end proposed. A person who lacks the present ability to comply with the order of the court may not be confined for a civil contempt. Sanctions may include, but are not limited to, seizure or impoundment of property to secure compliance with a prior order. Ancillary relief may provide for an award of attorney's fees.
§51-2A-10. Motion for reconsideration of family court order.
    (a) Any party may file a motion for reconsideration of a temporary or final order of the family court for the following

reasons: (1) Mistake, inadvertence, surprise, excusable neglect or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been available at the time the matter was submitted to the court for decision; (3) fraud, misrepresentation or other misconduct of an adverse party; (4) clerical or other technical deficiencies contained in the order; or (5) any other reason justifying relief from the operation of the order.
    (b) A motion for reconsideration must be filed with the clerk of the circuit court within a reasonable time and for reasons set forth in subdivisions (1), (2) or (3), subsection (a) of this section, not more than one year after the order was entered and served on the other party in accordance with rule 5 of the rules of civil procedure. The family court must enter an order ruling on the motion within thirty days of the date of the filing of the motion.
§51-2A-11. Petition for appeal.
    (a) Within thirty days following the entry of a final order of a family court judge or the entry of a final order of any senior status circuit judge, circuit judge or other judicial officer appointed to serve pursuant to the provisions of section nineteen of this article, any party may file a petition for appeal with the circuit court. No appeal may be had under the provisions of this

article from any order of a family court judge or from any order of another judicial officer temporarily serving as a family court judge other than a final order.
    (b) A petition for appeal of a final order of the family court shall be filed in the office of the clerk of the circuit court. At the time of filing the petition, a copy of the petition for appeal must be served on all parties to the proceeding in the same manner as pleadings subsequent to an original complaint are served under rule 5 of the rules of civil procedure.
    (c) The circuit judge may require, or a party may choose to submit with the petition for appeal, a brief in support of the petition.
    (d) A respondent shall have fifteen days after the filing of a petition to file a reply to the petition for appeal. The reply must be served on all parties to the proceeding in the same manner required for service of the petition. The circuit judge may require, or a party may choose to submit with the reply, a brief in opposition to the petition.
    (e) In addition to the reply, the respondent may file a cross- petition to the petition for appeal within fifteen days after the filing of the petition. The respondent to the cross-petition shall have fifteen days after the filing of the cross-petition to file a

reply. The cross-petition and any reply must be served in the same manner required for service of the original petition. The circuit judge may require or either party may choose to submit a brief on the cross-petition.
    (f) The supreme court of appeals shall develop and provide forms for appeals filed pursuant to this section. The forms shall be made available for distribution in the offices of the clerks of the circuit courts and in the offices of the secretary-clerks to the family court judges.
    (g) The supreme court of appeals shall promulgate a supervisory rule setting forth educational requirements in domestic relations matters for circuit court judges.
    (h) An appeal from the final order of any judicial officer assigned or appointed pursuant to the provisions of section nineteen of this article shall be perfected and treated in all respects as an appeal from an order of the family court. The terms “family court” or “family court judge” as provided in this section and in sections twelve, thirteen, fourteen and fifteen of this article mean the judicial officer who entered the final order which is the subject of an appeal.
§51-2A-12. Stay of proceedings pending appeal.
    (a) 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 to the family court in which the order was entered. The motion for a stay shall be filed with the clerk of the circuit court and served on the respondent in accordance with rule 5 of the rules of civil procedure. The family court may, sua sponte, order a stay of all or part of a final order pending appeal. Subject to the provisions of subsection (c) of this section, the family court may order a stay for the period of time allowed for the filing of a petition for appeal to the circuit court or for any additional period of time pending disposition of the appeal. If the circuit court refuses to consider the petition for appeal, the stay is vacated.
    (b) If the family court judge denies a motion for a stay of the proceedings pending appeal, or if the relief afforded is not acceptable, the person desiring to file the petition for appeal may file a motion for a stay of the proceedings to the circuit court. The motion for stay shall be filed with the clerk of the circuit court and served upon the other party in accordance with rule five of the rules of civil procedure. Subject to the provisions of subsection (c) of this section, the circuit court may order a stay for the period of time allowed for the filing of a petition for appeal to the circuit court or for any additional period of time

pending disposition of the appeal. If the circuit court refuses to consider the petition for appeal, the stay is vacated.
    (c) An order granting a motion for a stay under the provisions of this section 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 an appeal.
§51-2A-13. Motion to dismiss appeal.
    At any time following the filing of a petition for appeal of a final order of a family court, either party may move the circuit court to dismiss the 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 clerk of the circuit court and served on the respondent in accordance with rule 5 of the rules of civil procedure. No oral argument shall be held on such motion unless requested by the court.
        §51-2A-l4. Review by circuit court; record; standard of review; temporary order upon remand.
    (a) The circuit court may refuse to consider the petition for appeal, may affirm or reverse the order, may affirm or reverse the order in part or may remand the case with instructions for further

hearing before the family court judge.
    (b) In considering a petition for appeal, the circuit court may only consider the record as provided in subsection (d), section eight of this article. The circuit court shall review the findings of fact made by the family court judge under the clearly erroneous standard and shall review the application of law to the facts under an abuse of discretion standard.
    (c) If the circuit court agrees to consider a petition for appeal, the court shall provide the parties an opportunity to appear for oral argument, upon the request of either party or in the discretion of the court. The provisions of this subsection are effective until the adoption of rules by the supreme court of appeals governing the appellate procedures of family courts.
    (d) If the proceeding is remanded to the family court, the circuit court must enter appropriate temporary orders for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, child support, spousal support or such other temporary relief as the circumstances of the parties may require.
    (e) The circuit court must enter an order ruling on a petition for appeal within sixty days from the last day a reply to the petition for appeal could have been filed. If the circuit court

does not enter the order within the sixty-day period or does not, within the sixty-day period, enter an order stating just cause why the order has not been timely entered, the circuit clerk shall send a written notice to the parties that unless the parties both file an objection within fourteen days of the date of the notice, the appeal will be transferred to the supreme court of appeals as provided in section fifteen of this article due to the failure of the circuit court to timely enter an order. The appeal shall be transferred without the necessity of the filing of any petition or further document by the petitioner.
        §51-2A-15. Review by supreme court of appeals; assistance for pro se appellants.
    (a) If both of the parties file, either jointly or separately, within fourteen days following the entry of the final order of a family court judge, a notice of intent to file an appeal from the final order of the family court directly to the supreme court of appeals and to waive their right to file a petition for appeal with the circuit court, the petition for appeal of the final order of the family court may be filed with the supreme court of appeals in accordance with the provisions of article five, chapter fifty-eight of this code and the rules of appellate procedure, except that the standard of review for any such appeal is the same as set forth in

subsection (b), section fourteen of this article.
    (b) If a circuit court judge refuses to consider a petition for appeal or if a party is adversely affected by the order entered by the circuit court upon review of the final order of the family court, the party may seek review of the order of the circuit court by the supreme court of appeals. If a petition for appeal to the circuit court is transferred to the supreme court of appeals pursuant to the provisions of subsection (d), section fourteen of this article, the petition for appeal filed in the circuit court will be considered as a petition for appeal to the supreme court of appeals. The supreme court of appeals has jurisdiction to hear and entertain an appeal from an order of a circuit court or the transfer of an appeal to the supreme court of appeals as provided in this article in the same manner provided for civil appeals in article five, chapter fifty-eight of this code and in the rules of appellate procedure, except that the standard of review for any such appeal is the same as set forth in subsection (b), section fourteen of this article.
    (c) The supreme court of appeals shall promulgate rules to assist pro se litigants in the filing and processing of family court appeals to the circuit court and to the supreme court. Such rules may address, but are not limited to, expedited means of

transcribing family court records, use of asynchronous data communication network or other alternate forms of transmission for conducting appellate hearings, alternate requirements for the number of copies to be provided to the supreme court of appeals and other appropriate measures which will provide meaningful appellate access to the courts pursuant to section seventeen, article III of the West Virginia constitution.
        §51-2A-16. Expiration of appellate procedures; exceptions; report requirements.
    (a) The provisions of sections eleven, twelve, thirteen, fourteen and fifteen of this article shall expire and be of no force and effect after the thirtieth day of June, two thousand five, except as otherwise provided by subsection (b) of this section.
    (b) Appeals that are pending before a circuit court or the supreme court of appeals on the thirtieth day of June, two thousand five, but not decided before the first day of July, two thousand five, shall proceed to resolution in accordance with the provisions of sections eleven, twelve, thirteen, fourteen and fifteen of this article, notwithstanding the provisions of subsection (a) of this section that provide for the expiration of those sections. The supreme court of appeals shall, by rule, provide procedures for

those appeals that are remanded but not concluded prior to the first day of July, two thousand five, in the event that the appeals process set forth in sections eleven, twelve, thirteen, fourteen and fifteen of this article is substantially altered as of the first day of July, two thousand five.
    (c) Prior to the two thousand three regular session of the Legislature and annually thereafter, the supreme court of appeals shall report to the joint committee on government and finance the number of appeals from final orders of the family court filed in the various circuit courts and in the supreme court of appeals, the number of pro se appeals filed, the subject matter of the appeals, the time periods in which appeals are concluded, the number of cases remanded upon appeal and such other detailed information so as to enable the Legislature to study the appellate procedures for family court matters and to consider the possible necessity and feasibility of creating an intermediate appellate court or other system of appellate procedure.
§51-2A-17. Disciplinary proceedings for family court judges.
    A family court judge may be censured, temporarily suspended or retired as provided for in section eight, article VIII of the West Virginia constitution. A family court judge may be removed from office only by impeachment in accordance with the provisions of

section nine, article IV of the West Virginia constitution.
§51-2A-18. Vacancy in the office of family court judge.
    If a vacancy occurs in the office of family court judge, the governor shall fill the vacancy by appointment as provided in section three, article ten, chapter three of this code.
§51-2A-19. Temporary assignment of family court judges.
    (a) Upon the occurrence of a vacancy in the office of family court judge, the disqualification of a family court judge or the inability of a family court judge to attend to his or her duties because of illness, temporary absence or any other reason, the chief justice of the supreme court of appeals may assign the family court judge of any other family court circuit, or any senior status circuit judge or circuit judge of any judicial circuit, to hear and determine any and all matters then or thereafter pending in the family court to which the family court judge is assigned. While so assigned, the family court judge, senior status circuit judge or circuit judge has all of the powers of the regularly elected family court judge of the family court circuit.
    (b) When, in the discretion of the chief justice of the supreme court of appeals, the urgency or volume of cases in a family court circuit so requires, the chief justice may assign a senior status circuit judge, a circuit judge of any judicial

circuit or a family court judge of any family court division to serve temporarily in a family court circuit. When a senior status circuit judge or other circuit judge is so assigned, he or she has all of the powers of a regularly elected family court judge.
    (c) The chief justice of the supreme court of appeals may appoint a person who has previously served as a family law master or family court judge to serve as a temporary family court judge as disqualification, recusal, vacation, illness or the ends of justice may dictate.
    (d) The supreme court of appeals shall promulgate a supervisory rule setting forth educational requirements for persons assigned to serve temporarily as family court judges pursuant to the provision of this section.
         §51-2A-20. County commissions required to furnish offices for the family court judges.
    Each county commission of this state has a duty to provide premises for the family court which are adequate for the conduct of the duties required of the court under the provisions of this article and of chapter forty-eight of this code and which conform to standards established by rules promulgated by the supreme court of appeals. The administrative office of the supreme court of appeals shall pay to the county commission a reasonable amount as

rent for the premises furnished by the county commission to the family court and his or her staff pursuant to the provisions of this section.
§51-2A-21. Budget of the family court.
    The budget for the payment of the salaries and benefits of the family court judges and clerical and secretarial assistants shall be included in the appropriation for the supreme court of appeals. The family court administration fund, heretofore created as the family law master administration fund, is continued as a special account in the state treasury. The fund shall operate as a special fund administered by the state auditor which shall be appropriated by line item by the Legislature for payment of administrative expenses of family courts. All agencies or entities receiving federal matching funds for the services of family court judges and their staff, including, but not limited to, the commissioner of the bureau for child support enforcement and the secretary of the department of health and human resources, shall enter into an agreement with the administrative office of the supreme court of appeals whereby all federal matching funds paid to and received by said agencies or entities for the activities by family court judges and the program staff shall be paid into the family court administration fund. Said agreement shall provide for advance

payments into the fund by such agencies, from available federal funds pursuant to Title IV-D of the Social Security Act and in accordance with federal regulations.
§51-2A-22. Family court fund.
    The office and the clerks of the circuit courts shall, on or before the tenth day of each month, transmit all amounts directed to be paid to the family court fund under any provision of this code to the state treasurer for deposit in the state treasury to the credit of a special revenue fund known as the “family court fund” and created by prior enactment of former section twenty- three, article four, chapter forty-eight-a of this code. All moneys paid into the state treasury and credited to the “family court fund” shall be used by the administrative office of the supreme court of appeals solely for paying the costs associated with the duties imposed upon the family courts under the provisions of this article or under chapter forty-eight of this code which require activities by the family court judges or members of their staff which are not subject to being matched with federal funds or subject to reimbursement by the federal government. Such moneys shall not be treated by the auditor and treasurer as part of the general revenue of the state. Expenditures from the fund shall be for the purposes set forth in this section and are not authorized

from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand two, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature.
§51-2A-23. Operative dates; terminology.
    (a) Except as provided in subsection (b) of this section, the provisions of Enrolled Senate Bill No. 5007, passed during the fifth extraordinary session of the Legislature, two thousand one, become operable on the first day of January, two thousand two. It is intended that the family law master system in existence on the first day of July, two thousand one, will continue to function under the prior enactment of this article, notwithstanding the passage of Enrolled Senate Bill No. 5007, until the first day of January, two thousand two, when the existing family law master system is replaced with the system of family court judges provided for in this article.
    (b) Notwithstanding the provisions of subsection (a) of this section, the provisions of section five of this article providing

for the initial appointment of family judges by the governor become operable on the first day of October, two thousand one.
    (c) After the effective date of this article, whenever the terms “master”, “law master” or “family law master” appear in this code, the terms shall have the same meaning as “family court judge”.
ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.
§51-9-1a. Definitions.
    (a) As used in this article, the term "judge", "judge of any court of record" or "judge of any court of record of this state" shall mean, refer to and include judges of the several circuit courts and justices of the supreme court of appeals. For purposes of this article, such terms do not mean, refer to or include family court judges.
    (b) "Beneficiary" means any person, except a member, who is entitled to an annuity or other benefit payable by the retirement system.
    (c) "Board" means the consolidated public retirement board created pursuant to article ten-d, chapter five of this code.
    (d) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended.
    (e) "Member" means a judge participating in this system.

actions and fees for services in criminal cases.
    (a) Except for those payments to be made from amounts equaling filing fees received for the institution of actions for divorce, separate maintenance and annulment as prescribed in subsection (b) of this section, for each civil action instituted under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals or any other action, cause, suit or proceeding in the circuit court, the clerk of the court shall, at the end of each month, pay into the funds or accounts described in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting the action as follows:
    (1) Into the regional jail and correctional facility authority fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of sixty dollars; and
    (2) Into the court security fund in the state treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
    (b) For each action for divorce, separate maintenance or annulment instituted in the circuit court, the clerk of the court shall, at the end of each month, report to the supreme court of

appeals the number of actions filed by persons unable to pay and pay into the funds or accounts in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting the divorce action as follows:
    (1) Into the regional jail and correctional facility authority fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of ten dollars;
    (2) Into the special revenue account of the state treasury, established pursuant to section six hundred four, article two, chapter forty-eight of this code, an amount of thirty dollars;
    (3) Into the family court fund established under section twenty-two, article two-a, chapter fifty-one of this code, an amount of seventy dollars; and
    (4) Into the court security fund in the state treasury, established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
    (c) Notwithstanding any provision of subsection (a) or (b) of this section to the contrary, the clerk of the court shall, at the end of each month, pay into the family court fund established under section twenty-two, article two-a, chapter fifty-one of this code an amount equal to the amount of every fee received for petitioning

for the modification of an order involving child custody, child visitation, child support or spousal support as determined by subdivision (3), subsection (a), section eleven of this article and for petitioning for an expedited modification of a child support order as provided in subdivision (4), subsection (a), section eleven of this article.
    (d) The clerk of the court from which a protective order is issued shall, at the end of each month, pay into the family court fund established under section twenty-two, article two-a, chapter fifty-one of this code an amount equal to every fee received pursuant to the provisions of section five hundred eight, article twenty-seven, chapter forty-eight of this code.
    (e) The clerk of each circuit court shall, at the end of each month, pay into the regional jail and correctional facility authority fund in the state treasury an amount equal to forty dollars of every fee for service received in any criminal case against any respondent convicted in such court and shall pay an amount equal to five dollars of every such fee into the court security fund in the state treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code.