At
a Regular Term of the Supreme Court of Appeals continued and held at Charleston,
Kanawha County, on the 27th day of November, 2001, the following order was
made and entered:
IN RE: RULES OF PRACTICE AND PROCEDURE FOR DOMESTIC VIOLENCE
CIVIL PROCEEDINGS
On
a former day, to-wit, February 26, 2001, the Supreme Court of Appeals provisionally
adopted the Rules of Practice and Procedure for Domestic Violence Civil
Proceedings on an interim basis, effective on the 1st day of April, 2001.
Thereafter,
on the 27th day of March, 2001, came the Court on its own motion and proceeded
to consider an amendment to the Rules of Practice and Procedure for Domestic
Violence Civil Proceedings, amending the effective date of said rules
from the 1st day of April, 2001, to the 1st day of September, 2001, in light
of the passage of Enrolled Senate Bill No. 437, signed into law on the 23rd
day of March, 2001.
Thereafter,
on the 25th day of July, 2001, came this Court and proceeded to adopt amended
interim Rules of Practice and Procedure for Domestic Violence Civil Proceedings,
effective on the 1st day of September, 2001.
Finally,
on this day came the Court and proceeded to consider amendments to the aforesaid
rules. Upon consideration whereof, the Court is of opinion to and doth hereby
adopt the following amended rules on an interim basis, effective on the 1st
day of January, 2002. The Court doth hereby approve a period for public comment
on these amended interim rules, said comment period to conclude on the 1st day of March, 2002, with comments to be filed with
the Clerk of this Court. Deletions are indicated by strike-throughs and additions
are indicated by highlighting.
These rules shall take effect on the first day of September 2001,
January 2002 and shall govern all domestic violence civil proceedings
after that date.
Rule 4. Fees.
(a) Assessment of court costs and fees when emergency
protective order “denied.” -- If the petition is denied, by
the magistrate during the emergency hearing, court costs and fees
shall be assessed by the magistrate against the petitioner at the conclusion
of the emergency hearing, and shall be paid to the magistrate clerk as follows,
unless an affidavit of indigency has been filed:
(1) Magistrate Court Fund: $10.00;
(2)
Court Security Fund: $5.00; and
(3) Regional Jail
Authority: $10.00.
Costs and fees may not be assessed against a prevailing party. Partial payments
of costs and fees shall be applied by the magistrate clerk in the following
order: Magistrate Court Fund, Court Security Fund, Regional Jail Fund, and
other costs, if any. If the denial of the petition is appealed, payment of
costs shall be stayed until resolution of the appeal.
(b) Assessment of court costs and fees when domestic violence
protective order “granted” or “denied” by family or circuit
court. -- Except as in subsection (a) of this rule, court costs and fees
shall be assessed by the family court during the hearing
or by a circuit court at the conclusion of a proceeding(s)
before it, and shall be paid to the circuit clerk as follows,
unless an affidavit of indigency has been filed:
(1)
Family Court Fund: $25.00;
(2) Magistrate Court Fund:
$10.00;
(3) Court Security Fund: $5.00; and
(4)
Regional Jail Authority: $10.00.
Court costs and fees may not be assessed against a prevailing party.
Partial payments of costs and fees shall be applied by the circuit clerk in
the following order: Family Court Fund, Magistrate Court Fund, Court Security
Fund, Regional Jail Fund, and other costs, if any.
(c ) Assessment of court costs and fees when petitioner moves to terminate
protective order. - - No court costs or fees shall be assessed against
a petitioner who moves to terminate a protective order, whether the court
grants or denies the motion.
Rule 5. Waiver of fees and costs for indigents.
A person seeking waiver of fees, costs, or
security pursuant to W. Va. Code, §59-2-1, shall execute before
the clerk where the matter is pending an affidavit of indigency which shall be kept confidential.
An additional affidavit of indigency shall be filed whenever the financial
condition of the person no longer conforms to the financial condition established
by the supreme court of appeals for determining indigency or whenever an order
has been entered directing the filing of a new affidavit.
Rule 6. Confidentiality of court files.
Rule 6 of the Rules of Practice and Procedure for Family Court shall govern
the confidentiality of court files in domestic violence civil proceedings.
Rule 7. Persons allowed to be present during hearing.
No person accompanying a person who is seeking to file a petition is precluded
from being present if his or her presence is desired by the person seeking
a petition, W. Va. Code, §48-27-307, and no person requested
by a party to be present during a hearing on a petition for a protective order
shall be precluded from being present unless such person is a witness in the
proceeding and a motion for sequestration has been made and such motion has
been granted. A person found by the court to be disruptive may be precluded
from being present. W. Va. Code, §48-27-403(f). Rule 8
of the Rules of Practice and Procedure for Family Court shall govern the unofficial
recording of domestic violence civil proceedings.
Rule 8. Filing of petitions and other pleadings.
(a) Commencement of action. -- To commence an action for a protective order, a verified petition shall be filed in the magistrate court.
(b) Petition. -- The petition shall contain
a short and plain statement of the facts showing that the petitioner is entitled
to relief, and a demand for the relief the petitioner seeks.
(c) Petitions for contempt or modification of a protective order.
-- A petition for contempt or modification of a protective order shall be
filed with the circuit clerk.
(c) Pleadings filed after original petition. -- All pleadings filed
after the original petition shall be filed with the circuit clerk.
(d) Other required documents. -- The original petition
and petitions for contempt or modification of a protective order shall be
accompanied by a completed domestic relations civil case information statement.
In cases which may involve spousal support, child support, allocation
of custodial responsibility, visitation or paternity, the petition shall be
accompanied by a IV-D application.
(e) Petitioner's contact information. -- At a
petitioner's request, the magistrate court shall immediately seal within the
file the domestic relations civil case information statement the IV-D
application, and any other document containing the address or other
contact information for the petitioner such as the petitioner's phone number,
facsimile fax number, or E-mail address until further order.
Rule 9. Answer.
An answer and/or a counterclaim, which need not
be verified, may be filed and served by the respondent prior to the family
court hearing. If the answer is filed thereafter, it shall be filed with the
circuit clerk pursuant to Rule 8(c) of these
rules. Filing of an answer
does not constitute a request for a hearing pursuant to W. Va. Code,
48-27-403(d). The respondent shall not be denied the right to request a hearing
if no request for hearing is made in the answer.
Rule 10. Request for family court hearing.
(a) Time requirements. -- Any party to an emergency protective
order may, as a matter of right, request a family court hearing within 10 days
of service of the order to the respondent, or delivery of the order to the petitioner.
If the request is made within 10 days, the hearing shall be held by the family
court within 10 days following the request. The emergency protective order shall
remain in effect pending the hearing unless stayed by the family court.
(b) Telephonic requests. _- A telephonic request
for a family court hearing shall be made by calling the number listed on the
emergency protective order between the hours of 9:00 a.m. and 4:00 p.m., Monday
through Friday, excluding legal holidays, during the 10-day period for requesting a hearing. Telephonic requests for
hearings made to a telephone number other than the one listed on the emergency
protective order, or left on an answering machine, are not valid and shall
not be acted upon.
(c ) Facsimile requests. -- A facsimile
request for a family court hearing shall be made by fax transmission of a
written request to the FAX number listed on the emergency protective order,
at any time during the 10-day period for requesting a hearing.
Rule 10. Notice of family court final hearing.
(a) Magistrate court shall serve notice of family court final hearing.
-- At the conclusion of the hearing during which an emergency protective order
or a temporary emergency protective order has been granted, the magistrate
court shall cause the parties to be served with notice of the family court
final hearing. If personal service is unsuccessful, the circuit clerk shall
cause service to be made in accordance with Rule 11(a).
(b) Scheduling information. -- The family court shall provide the
magistrate court with dates and times during which family court final hearings
may be scheduled.
Rule 11. Service.
(a) Service of the petition and emergency protective
order. -- If the respondent is present at the emergency hearing, the order
shall be served by the magistrate upon the respondent at the conclusion of the
hearing. If the respondent is not present at the hearing, the petition and emergency
protective order shall be immediately served by law enforcement. If personal
service has been unsuccessful, the respondent shall be served in accordance
with W. Va. Code, §48-27-311.
(b) Service of family court domestic violence protective
order. -- If a party is present at the family court hearing where a domestic
violence protective order has been entered, the domestic violence protective
order shall be served by the family court judge upon the party at the conclusion
of the final hearing. If a party is not present at the
final hearing, then the
domestic violence protective order shall be immediately served by law enforcement
upon the party who was not present. If personal service of the domestic violence
protective order upon a party has been unsuccessful, the party shall be served
in accordance with W. Va. Code, §48-27-311.
(c ) Service of an extension of a protective order, a petition
for the contempt or modification of a protective order. -- An extension
of a protective order for an additional ninety days, and a petition for the
contempt or modification of a protective order, shall be served immediately
by the sheriff or by certified mail, restricted
delivery, return receipt requested.
upon movant's payment of the fee to the circuit clerk, if an application
for indigency has not been filed.
(d ) Service of order terminating protective order. -- An order terminating
a protective order shall be served on the parties in person or by first class
mail.
(d )(e) Service of
other documents.--
other than the original petition, emergency or domestic violence
protective orders, or petitions for the contempt or modification
of a protective order. -- Every document other than the original
petition, emergency or domestic violence protective orders, petitions for
the contempt or modification of a protective order, or an order extending
or terminating a protective order, shall be served upon each party as follows:
If a party is represented by an attorney, service shall be made upon the attorney
pursuant to Rule 5(b) of the West Virginia Rules of Civil Procedure. Otherwise,
service shall be made by mailing a copy by certified mail, restricted delivery,
return receipt requested, to the party's last-known address. If personal service
has been unsuccessful, the respondent shall be served by publication in accordance
with W. Va. Code, §48-27-311. by any other means permitted
by Rule 4 of the West Virginia Rules of Civil Procedure.
(e) (f) Service by respondent when petitioner's
contact information has been sealed in the file. -- When the petitioner's
address and other contact information have been sealed in the file pursuant
to these rules, and the respondent needs to make service on the petitioner,
the respondent shall direct the circuit clerk to make service upon the petitioner.
Service shall be made by the circuit clerk if the petitioner's contact information
is sealed in the case file. No court employee shall reveal to anyone other
than a court official or law enforcement officer the petitioner's address
or other contact information.
(f) (g) Service allowing direct
contact between the parties is strictly prohibited.
Rule 12. Filing and service by facsimile transmission.
Pleadings and other documents, including requests for hearings, may be filed
with the clerk and served upon law enforcement authorities by facsimile transmission
in accordance with Rules 12.03, 12.04 and
12.05 of the Trial Court Rules for
Trial Courts of Record.
Rule 13. Judicial economy and consolidation.
(a) Transfer by magistrate to family court judge before whom the parties
have a case pending. _If the petitioner indicates that the parties to
the protective order proceeding are also parties in a case pending before
one of the family court judges, then the magistrate shall notice the final
hearing before that family court judge.
(b) Transfer by family court judge to another family court judge before
whom the parties have a family court case pending. -- If a family court
judge learns that the parties to a protective order proceeding have a family court case pending before another family
court judge, then the family court judge before whom the domestic violence
proceeding is pending shall transfer the case to the family court judge before
whom the family court case is pending, if venue is proper.
(c) Consolidation-- If a family court judge learns that the parties
to a protective order proceeding have a second protective order proceeding
pending before another family court judge, then the family court in which
the first such action was commenced shall order all family court actions transferred
before it or any other family court in which any such action is pending. The
court to which the actions are transferred may order a joint hearing of the
matters in issue, and may make such other orders as may tend to avoid unnecessary
cost or delay.
Rule 14 13. Continuances.
(a) Filing of motion for continuance . --
A movant may file a motion for continuance with the circuit clerk, or with
the family law master court judge, at the convenience of the court.
if the family law master consents.
(b) Requirements for a continuance. -- A continuance
may be granted upon a showing of good cause.
(c ) Notice requirements. -- A motion for continuance
may be heard after such reasonable notice to the opposing party as required
by the family court judge law master.
(d) Continuance of a final hearing. -- A final hearing may be continued
on motion of the respondent at the convenience of the court. Otherwise, the
final hearing may be continued by the court no more than seven days. If a
hearing is continued, the family court may modify the emergency protective
order as it deems necessary.
Rule 15 14. Amended pleadings.
Upon request by any party and at any stage of the
proceedings, a pleading may be amended for good cause shown upon such terms
as the court may require.
Rule 16 15. Transfer of case file from magistrate to
circuit court when emergency protective order granted.
(a) Transfer to the circuit clerk. -- Following
the emergency hearing, the magistrate clerk shall cause the court file to
be delivered to the circuit clerk pursuant to W. Va. Code, §48-27-
403(c).
(b) The IV-D application. -- The IV-D application shall be
immediately faxed to the local child support enforcement office.
(b) (c ) Facsimile fax
machine. -- The circuit clerk and all family court staff shall maintain
a facsimile machine within the office of the clerk as provided in T.C.R. 12.01,
and shall leave the facsimile machine on 24-hours per day everyday.
Rule 17. Termination of emergency protective order.
An emergency protective order is terminated by the entry of a domestic violence
protective order or an order denying a domestic violence protective order.
Rule 18 16. Appeal of denial of emergency order.
A person whose petition was denied by the magistrate court may, as
a matter of right, present a notice of petition for appeal
to the family court within 5 days of entry of the order denying the petition
in the magistrate court. The petition for appeal shall be heard by the family
court within ten days from the date of filing of the petition. No bond shall
be required to appeal.
Rule 19 18. Review Appeal of family court
order decision.
(a) Time periods.
-- Within 10 days following
the entry of a domestic violence protective order by the family court, any
party may file a petition for appeal review to the
circuit court. The family court order shall remain in effect pending
the circuit court's consideration unless stayed by the circuit court.
The circuit court shall hear the petition for appeal review
within 10 days after the petition is filed.
(b) Order in effect pending appeal. -- The family court order shall remain
in effect pending an appeal unless stayed by order of the family court sua
sponte or upon motion of a party, or by order of the circuit court upon motion
of a party.
(c ) (b) Bond. -- No bond shall be required for a petition
for appeal review.
Rule 18. Confirmation of domestic violence protective order.
(a) Confirmation. -- If no request
for review is filed within 10 days following the entry of the domestic violence
protective order, the circuit judge shall consider the order as soon as practicable
and confirm the order if the court finds it to be proper. The domestic violence
protective order shall remain in effect pending the circuit court's confirmation.
(b) Procedure for obtaining confirmation. --
Ten days after a domestic violence protective order was signed by the family
court, the circuit clerk shall determine whether or not a request for circuit
court review has been filed. If no request for review has been filed, the
circuit clerk shall within one judicial day send a form confirmation order
to the circuit judge, along with a copy of the order, for the court's consideration.
Rule 20. Disqualification of Family Court Judge
Motions to disqualify family court judges shall proceed
in accordance with the Rules of Practice and Procedure for Domestic Violence
Civil Proceedings which govern disqualification procedures. Disqualification
appointments in domestic violence civil proceedings shall be handled on an
emergency basis.
Rule 18. Confirmation of domestic violence protective order.
(a) Confirmation. -- If no request for review
is filed within 10 days following the entry of the domestic violence protective
order, the circuit judge shall consider the order as soon as practicable and
confirm the order if the court finds it to be proper. The domestic violence
protective order shall remain in effect pending the circuit court's confirmation.
(b) Procedure for obtaining confirmation. --
Ten days after a domestic violence protective order was signed by the family
court,
the circuit clerk shall determine whether or not a request for circuit
court review has been filed. If no request for review has been filed, the
circuit clerk shall within one judicial day send a form confirmation order
to the circuit judge, along with a copy of the order, for the court's consideration.
Rule 21 19.
Domestic violence registry.
Disposition
of Orders.
By the next judicial day following the entry of
any order by the family or circuit court, the circuit clerk shall provide
a copy of the order to the magistrate clerk. The magistrate clerk shall cause
the order to be entered in the domestic violence registry.
Rule 22 20. Domestic violence support orders.
(a) When a case is dismissed in which an order of support has been entered.
-- When a case is dismissed in which an order of child and/or spousal support
has been entered, an order shall be entered by the next judicial day stating
the date that the support obligation shall end.
(b) Documentation to local child support enforcement office.
-- Any family or circuit court order imposing, modifying, or terminating child
and/or spousal support shall be delivered, along with a copy of the
completed IV-D application, by hand or by facsimile fax to
the local child support enforcement office by the next judicial day following
the hearing at which the order was made. The order shall state the date that
the support obligation shall end.
Rule 23 21. Testimony of children.
Rules 8 and 9 of the West Virginia Rules of Procedure for Child Abuse and
Neglect Proceedings shall govern the taking of testimony of children.
Rule 24 22. Domestic violence civil contempt
bond.
Rule 23 of the Rules of Civil Procedure
for the Magistrate Courts of West Virginia shall govern domestic violence
civil contempt bond proceedings, in accordance with W. Va. Code §48-27-
901.
(a) W.Va. Code, §48-27-901 shall govern domestic violence civil
contempt bond proceedings.
(b) Personal recognizance bond. -- If granted a waiver pursuant to W.Va.
Code, § 59-2-1, a respondent held in contempt for violation of a
domestic violence protective order may post a personal recognizance bond.
(c) Forfeiture of a bond. -- Bond posted pursuant to these rules may be forfeited
upon the court's finding that a party has failed to comply with a contempt
order. In that case, the court shall render a judgment of default and order
forfeiture of the bond amount. Upon collection, the circuit clerk shall deposit the proceeds with
the state auditor, unless the Court orders that the amount forfeited shall
be paid to the party not held in contempt. If payment of a bond is not made
within 20 days of entry of the forfeiture order, the clerk shall undertake
execution against the obligor(s) for recovery of the judgment amount.
Rule 25 23. Concurrent jurisdiction.
The circuit courts may assist family court judges
law masters in the disposition of their case loads when
and where the circuit courts deem appropriate during the period of
transition addressed by these interim rules by utilizing the provisions
of: (a) W.Va. Code, §48-27-301 to conduct protective order proceedings;
or (b) W.Va. Code, §51-2A-2(b) 10(b)
to conduct actions for divorce, annulment or separate maintenance which do
not require the establishment of a parenting plan or other allocation of custodial
responsibility or decision-making responsibility for a child and do not require
an award or any payment of child support and, at the time of the filing of
the action, the parties also file a written property settlement agreement
executed by both parties; or (c) W.Va. Code, §48- 8-102 to
conduct actions for spousal support only. to conduct family court
protective order proceedings or other domestic law proceedings referred to
family law masters.”
A True Copy
Attest: //s// Rory L. Perry
Clerk, Supreme Court of Appeals