Family Court

CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 2A. CIRCUIT COURTS; FAMILY COURT DIVISION.

§51-2A-1. Family court division established in circuit court; designation of division.

There is hereby created in the circuit court of each county in this state, a division of the circuit court to be designated as "The Family Court of ______________County, West Virginia."

§51-2A-2. Appointment of commissioners to be designated as family law masters; administrative and judicial functions of family court master.

(a) In each of the family court circuits, family law masters shall be appointed as follows:
(1) If a family law master serves a single judicial circuit that has one circuit judge, the circuit judge shall appoint the family law master;
(2) If a family law master serves a single judicial circuit that has two or more circuit court judges, the chief judge of the circuit shall appoint the family law master or masters;
(3) If a family law master serves more than one judicial circuit, the chief judges of the judicial circuits shall appoint the family law master or masters;
(4) If the chief judge or chief judges of the judicial circuits cannot agree, all of the circuit judges of the affected judicial circuits shall appoint the family law master or masters; or
(5) If the circuit judges of the affected judicial circuits cannot agree, the supreme court of appeals shall appoint the family law master or masters.

(b) A commissioner appointed under subsection (a) of this section may be designated by the name "family law master."

(c) The family law master will conduct hearings in family court cases, take testimony, hear the parties, enter orders of a temporary or interlocutory nature, make findings of fact and conclusions of law on the record, formulate recommendations, and report to the circuit court. The family law master will exercise any other power or authority provided for in this article or article four, chapter forty-eight-a of this code.

(d) The family law master, as a commissioner of the circuit court, has both administrative and judicial functions to perform, as described in subsections (e) and (f) of this section.

(e) The family law master has responsibility for the administration of the family court division of the circuit court. A circuit court judge or judges whose circuit is served by a family law master or masters must monitor the administration of the family court divisions within the judicial circuit and regulate those activities, including naming one or more circuit judges to serve as administrative supervisor of the family law master, through appropriate administrative orders. The administrative orders of the administrative supervisor regarding a family court division will be compiled and indexed in the office of the circuit clerk and be available for public inspection.

(f) In exercising the judicial function of the family court, the family law master, free of direct oversight by a circuit judge, is responsible for the preparation or preliminary consideration of issues requiring judicial decision, subject only to a subsequent review by a circuit judge. Conclusions of law of the family law master are subject to de novo review by the circuit court. In reviewing the findings of fact of a family law master, the circuit court is held to the clearly erroneous standard.

(g) A family law master shall not be eligible to participate in the judges retirement system under the provisions of article nine, chapter fifty-one of this code.

(h) Beginning the first day of January, two thousand, each family law master is required to file a quarterly activity report with the supreme court of appeals and the joint committee on government and finance. The report shall include, but is not limited to, the number of cases heard before the family law master, the date the case was heard, the date the case was filed and the number and types of hearings held before the family law master in a particular case.

(i) The supreme court of appeals shall promulgate a procedural rule to establish time-keeping requirements for family law masters, family case coordinators and secretary-clerks of family law masters 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-3. Assignment of family law masters by family court regions.

(a) A total of thirty-three family law masters will serve throughout the state. The state will be divided into twenty-four family court circuits with the number of family law masters allocated as follows: The counties of Brooke, Hancock, and Ohio shall constitute the first family court circuit and shall have two family law masters; the counties of Marshall, Wetzel and Tyler shall constitute the second family court circuit and shall have one family law master; the counties of Pleasants, Wood, Wirt, Ritchie and Doddridge shall constitute the third family court circuit and shall have two family law masters; the counties of Jackson, Roane, Calhoun and Gilmer shall constitute the fourth family court circuit and shall have one family law master; the counties of Mason and Putnam shall constitute the fifth family court circuit and shall have one family law master; the county of Cabell shall constitute the sixth family court circuit and shall have two family law masters; the county of Wayne shall constitute the seventh family court circuit and shall have one family law master; the county of Mingo shall constitute the eighth family court circuit and shall have one family law master; the county of Logan shall constitute the ninth family court circuit and shall have one family law master; the counties of Lincoln and Boone shall constitute the tenth family court circuit and shall have one family law master; the county of Kanawha shall constitute the eleventh family court circuit and shall have four family law masters; the counties of McDowell and Mercer shall constitute the twelfth family court circuit and shall have two family law masters; the counties of Raleigh and Wyoming shall constitute the thirteenth family court circuit and shall have two family law masters; the counties of and Fayette and Summers shall constitute the fourteenth family court circuit and shall have one family law master; the counties of Greenbrier, Monroe and Pocahontas shall constitute the fifteenth family court circuit and shall have one family law master; the counties of Clay, Nicholas and Webster shall constitute the sixteenth family court circuit and shall have one family law master; the counties of Braxton, Lewis and Upshur shall constitute the seventeenth family court circuit and shall have one family law master; the county of Harrison shall constitute the eighteenth family court circuit and shall have one family law master; the county of Marion shall constitute the nineteenth family court circuit and shall have one family law master; the county of Monongalia shall constitute the twentieth family court circuit and shall have one family law master; the counties of Barbour, Preston and Taylor shall constitute the twenty-first family court circuit and shall have one family law master; the counties of Grant, Tucker and Randolph shall constitute the twenty-second family court circuit and shall have one family law master; the counties of Mineral, Hampshire, Hardy and Pendleton shall constitute the twenty-third family court circuit and shall have one family law master; the counties of Berkeley, Jefferson and Morgan shall constitute the twenty-fourth family court circuit and shall have two family law masters.

(b) The chief justice of the supreme court of appeals may temporarily assign a family law master from one family court circuit to another family court circuit, as caseload, disqualification, recusal, vacation or illness may dictate. In each case of temporary assignment, the chief justice shall appoint only a family law master who is actually serving at the time of such appointment.

§51-2A-4. Qualifications of family law masters.

(a) An individual serving as a family law master prior to the initial election of family law masters, as set forth in section five of this article, must be a member in good standing of the West Virginia state bar and must have at least five years experience as a practicing attorney prior to taking office. An individual elected as a family law master at the initial election of family law masters or at any subsequent election of family law masters, as set forth in section five of this article, or an individual appointed as a family law master at any time after the initial election of family law masters must be a member in good standing of the West Virginia state bar, must have at least five years experience as a practicing attorney prior to taking office, and must, at the time he or she takes office, and thereafter during his or her continuance in office, be a resident of the state of West Virginia.

(b) Upon assuming his or her duties, a family law master with no prior experience as a family law master shall, as soon as is practicable, attend and complete a course of instruction in principles of family law and procedure that is given in accordance with the supervisory rules of the supreme court of appeals. All family law masters shall attend courses of continuing educational instruction as may be required by supervisory rule of the supreme court of appeals. Failure to attend the required courses of continuing educational instruction without good cause constitutes neglect of duty. Persons attending such courses outside of the county of their residence will be reimbursed by the supreme court of appeals for expenses actually incurred in accordance with the supervisory rules of the supreme court of appeals. (c) A family law master may not engage in any other business, occupation or employment inconsistent with the expeditious, proper and impartial performance of his or her duties as a judicial officer. A family law master is not permitted to engage in the outside practice of law and shall devote full time to his or her duties as a judicial officer.

§51-2A-5. Term of office of family law master; elections.

(a) Before the first day of September, one thousand nine hundred ninety-nine, family law masters shall be appointed to serve in the family court circuits as provided for in section three of this article. The initial term of office for the family law masters first appointed shall commence on the first day of October, one thousand nine hundred ninety-nine 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 law masters shall be elected. In family court circuits having two or more family law master there shall be, for election purposes, numbered divisions corresponding to the number of family law masters in each area. Each family law master shall be elected at large by the entire family court area. In each numbered division of a judicial 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 division within the family court area. 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 law masters elected in two thousand two shall be for four years, commencing on the first day of January, two thousand three and ending on the thirty-first day of December, two thousand six. Subsequent terms of office for family law masters elected thereafter shall be for four years.

§51-2A-6. Vacancy in the office of family law master.

If a vacancy occurs in the office of family law master, the chief judge or judges of the affected circuit courts, as the case may be, shall, within thirty days after the vacancy occurs, fill the vacancy by appointment for the unexpired term. If the chief judge or judges of the affected circuit court fail to act timely to fill a vacancy, the chief justice of the supreme court of appeals may fill the vacancy for the unexpired term.

§51-2A-6a. Terms of family law masters continued.

The family law masters holding office on the first day of June, one thousand nine hundred ninety-nine, by virtue of appointments made under the prior enactments of article four, chapter forty-eight-a of this code are continued in their term of office through the thirtieth day of September, one thousand nine hundred ninety-nine.

§51-2A-7. Procedure for removal, suspension or discipline of family law master; appeal; grounds.

(a) A family law master appointed pursuant to section two of this article may be removed from office in the manner provided in this section for official misconduct, malfeasance in office, incompetence, neglect of duty, gross immorality or inability to serve.

(b) Charges may be preferred by:
(1) A circuit judge of a county that constitutes all or a part of the family law master's region;
(2) By the administrative director of the supreme court of appeals; or
(3) By any person as provided in rule two of the rules of judicial disciplinary procedure. If a formal charge is filed by the judicial investigation commission, such charge may recommend removal and the convening of a three judge court as provided for in this section.

(c) The charges must be reduced to writing in the form of a petition, duly verified by the charging party, and filed with the supreme court of appeals. The petition must request the impaneling or convening of a three-judge court consisting of three circuit judges of the state. The chief justice of the supreme court of appeals shall, without delay, designate and appoint three circuit judges within the state, none of whom is from the region in which the family law master serves. In the order of appointment, the chief justice shall designate the date, time and place for the convening of the three-judge court. The date and time of hearing on the petition must be more than twenty days from the date of the filing of the petition. The three-judge court shall, without a jury, hear the charges and all evidence offered in support thereof or in opposition thereto and upon satisfactory proof of the charges shall remove the family law master from office and place the records, papers and property of his or her office in the possession of some other officer or person for safekeeping or in the possession of the person appointed as hereinafter provided to fill the office temporarily. Final orders shall set out the court's decision to dismiss the charges or to suspend or remove the family law master, with or without recommendations to refer the matter for investigation by the office of disciplinary counsel under the rules of judicial disciplinary procedure, or to provide other disposition appropriate to the case.

(d) An appeal from a final order of a three-judge court removing or refusing to remove a family law master from office pursuant to this section may be taken to the supreme court of appeals within thirty days from the date of entry of the order from which the appeal is to be taken. The supreme court of appeals shall consider and decide the appeal upon the original papers and documents, without requiring the same to be printed and shall enforce its findings by proper writ. From the date of any order of the three-judge court removing an officer under this section until the expiration of thirty days thereafter, and, if an appeal be taken, until the date of suspension of such order, if suspended by the three-judge court and if not suspended, until the final adjudication of the matter by the supreme court of appeals, the circuit court judge or judges having power to fill a vacancy in such office may fill the same by a temporary appointment until a final decision of the matter, and if a final decision is made by the supreme court of appeals affirming the removal of the family law master, shall fill the vacancy in the manner provided by law for such office.

(e) For purposes of subsections (a) through (d) of this section, "neglect of duty" includes, but is not limited to, failure to make findings of fact and conclusions of law either on the record or in writing to be filed as part of the record.

(f) Notwithstanding any other provision, the conduct of family law masters who begin serving terms of office on the first day of January, two thousand three and thereafter, shall be governed by the code of judicial conduct adopted by the supreme court of appeals and any complaint of violation of the code of judicial conduct against a family law judge shall be filed and considered in accordance with the rules of judicial disciplinary procedure adopted by the supreme court of appeals.

§51-2A-8. Compensation and expenses of family law masters and their staffs.

(a) Beginning the first day of October, one thousand nine hundred ninety-nine, until the thirty-first day of December, two thousand two, a family law master 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 law master 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 law master is appointed by the family law master and serves at his or her will and pleasure. The secretary-clerk of the family law master 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 is employed by a family law master on the effective date of this section who has been so employed for at least two years prior to such effective date, shall receive an additional five hundred dollars per year up to ten years of such prior employment. 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) After the first day of October, one thousand nine hundred ninety-nine, the family law master may employ not more than one family case coordinator who serves at his or her will and pleasure: Provided, That for purposes of the initial employment of family case coordinators, the administrative director of the supreme court of appeals shall designate twenty family law masters who are authorized to employ family case coordinators, and the additional thirteen family case coordinators may only be employed when authorized by the administrative director of the supreme court of appeals. The annual salary of the family case coordinator of the family law master 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) Subject to the approval of the chief judge of the circuit, the sheriff or his or her designated deputy, shall serve as a bailiff for a family law master. The sheriff of each county shall serve or designate persons to serve so as to assure that a bailiff is available when a family law master determines the same is necessary for the orderly and efficient conduct of the business of the family court division of the circuit court.

(e) A special commissioner of the court appointed pursuant to subdivision (4), subsection (a) section ten of this article is entitled to be compensated by the supreme court of appeals at an hourly rate not to exceed the hourly rate paid to panel attorneys for performing work in court pursuant to the provisions of section thirteen-a, article twenty-one, chapter twenty-nine of this code.

(f) Disbursement of salaries for family law masters 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.

(g) Family law masters, members of their staffs and special commissioners of the court 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.

§51-2A-9. Rules of practice and procedure; applicability of rules of evidence; local administrative rules.

(a) Pleading, practice and procedure in matters before a family law master are governed by rules of practice and procedure for family law promulgated by the supreme court of appeals pursuant to section four, article one of this chapter.

(b) The West Virginia rules of evidence apply to proceedings before a family law master.

(c) The chief judge of a circuit court may promulgate local administrative rules governing the conduct and administration of family courts serving the circuit court. Local administrative rules are subordinate and subject to the rules of the supreme court of appeals or the orders of the chief justice. Rules promulgated by the chief judge of a circuit court are made by order entered upon the order book of the circuit court, and are effective when filed with the clerk of the supreme court of appeals.

§51-2A-10. Matters to be heard by a family law master.

(a) A chief judge of a circuit court shall refer to the family law master the following matters for hearing:
(1) Actions to obtain orders of support brought under the provisions of section one, article five, chapter forty-eight-a of this code;
(2) All actions to establish paternity brought under the provisions of article six of chapter forty-eight-a of this code, and any dependent claims related to such action regarding child support, custody and visitation;
(3) All petitions for writs of habeas corpus wherein the issue contested is child custody;
(4) All motions for temporary relief affecting child custody, visitation, child support, spousal support or domestic or family violence, wherein either party has requested such referral or the court on its own motion in individual cases or by general order has referred such motions to the family law master: Provided, That if the family law master determines, in his or her discretion, that the pleadings raise substantial issues concerning the identification of separate property or the division of marital property which may have a bearing on an award of support, the family law master shall notify the appropriate circuit court of this fact and the circuit court may refer the case to a special commissioner chosen by the circuit court to serve in such capacity;
(5) All petitions for modification of an order involving child custody, child visitation, child support or spousal support;
(6) All actions for divorce, annulment or separate maintenance brought pursuant to article two, chapter forty-eight of this code: Provided, That an action for divorce, annulment or separate maintenance which does not involve child custody or child support shall be heard by a circuit judge if, at the time of the filing of the action, the parties file a written property settlement agreement which has been signed by both parties;
(7) All actions wherein an obligor is contesting the enforcement of an order of support through the withholding from income of amounts payable as support or is contesting an affidavit of accrued support, filed with a circuit clerk, which seeks to collect arrearage;
(8) All actions commenced under chapter forty-eight-b of this code or the interstate family support act of another state;
(9) Proceedings for the enforcement of support, custody or visitation orders;
(10) All actions to establish custody of a minor child or visitation with a minor child, including actions brought pursuant to the uniform child custody jurisdiction act and actions brought to establish grandparent visitation: Provided, That any action instituted under article six, chapter forty-nine shall be heard by a circuit judge;
(11) On and after October first, one thousand nine hundred ninety-nine, civil contempt and direct contempts: Provided, That criminal contempts must be heard by a circuit judge; and
(12) On and after the first day of April, two thousand one, full hearings in domestic or family violence proceedings wherein a protective order is sought.

(b) On its own motion or upon motion of a party, the circuit court may revoke the referral of a particular matter to a family law master if the family law master is recused, if the matter is uncontested, or for other good cause, or if the matter will be more expeditiously and inexpensively heard by a circuit judge without substantially affecting the rights of parties.

§51-2A-11. Contempt powers of family law master.

(a) A family law master, acting in his or her capacity as a commissioner of the circuit court, 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 law master;
(3) Punish direct contempts that are offered in the presence of the court or that obstruct or corrupt the proceedings of the court.

(b) A family law master 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-12. Effects of certain repealers or reenactments.

The repeal or reenactment of sections in article four, chapter forty-eight of this code effected during the second extraordinary session of the Legislature, one thousand nine hundred ninety-nine become operable on the first day of July, one thousand nine hundred ninety-nine. It is intended that the family law master system in existence on the eighteenth day of May, one thousand nine hundred ninety-nine will continue to function under the prior enactment of article four, chapter forty-eight-a of this code, notwithstanding the repeal or the amendment and reenactment of sections of that article, until the first day of October, one thousand nine hundred ninety-nine when the family law master system is replaced with the system of family law masters provided for in this article.

ARTICLE 3. COURTS IN GENERAL.

§51-3-14. Court security fund.

(a) The offices and the clerks of the magistrate courts and the circuit courts shall, on or before the tenth day of each month, transmit all fees and costs received for the court security fund in accordance with the provisions of sections one and two, article three, chapter fifty of this code and section eleven, article one, chapter fifty-nine of this code for deposit in the state treasury to the credit of a special revenue fund to be known as the "Court Security Fund", which is hereby created under the department of military affairs and public safety. The court security fund may receive any gifts, grants, contributions or other money from any source which is specifically designated for deposit in the fund. All moneys collected and received and paid into the state treasury and credited to the court security fund shall be expended by the board exclusively to implement the improvement measures agreed upon in accordance with the security plans submitted pursuant to section sixteen of this article and in accordance with an appropriation by the Legislature: Provided, That for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-seven, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature. Amounts collected which are found from time to time to exceed the funds needed for the purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes upon appropriation by the Legislature.

(b) Notwithstanding any provision of this code to the contrary, during fiscal year two thousand, all fees and costs received for the court security fund in accordance with the provisions of sections one and two, article three, chapter fifty of this code, section eleven, article one, chapter fifty-nine of this code, and any other provision of this code, for deposit in the state treasury to the credit of the court security fund shall not be deposited in the court security fund, but shall instead be transmitted by the offices and the clerks of the magistrate courts and the circuit courts, on or before the tenth day of each month, for deposit in the state treasury to the credit of the family court fund established under section twenty-three, article four, chapter forty-eight-a of this code. The fees and costs that are deposited in the family court fund under the provisions of this subsection shall be expended for the purposes set forth in said section twenty-three.

(c) Notwithstanding any provision of this code to the contrary, after the thirtieth day of June, two thousand, the court security board shall transfer such amounts from the court security fund as may from time to time be directed by the Legislature in an appropriation act to the domestic violence legal services fund created in section four-c, article two-c, chapter forty-eight of this code. Any monies transferred to the domestic violence legal services fund pursuant to the provisions of this section shall be expended for the purposes specified in said section four-c.