WV Family Law Newsletter - June 2011 Edition

The Family Times

West Virginia Family Law Newsletter

June 2011 - Vol 1, Issue 5

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State Bar Family Law Committee meeting Friday, June 10, at the State Bar Office from 11am to 1pm, with lunch served after. Please notify WV State Bar Executive Secretary Kathy Henning by email or phone at (304) 558-1044 if you will be attending.

Response from the Bench:

By: Judge Mary Ellen Griffith,

12th Circuit Family Court

In response to: Little Known Code Section (Vol. 1, Issue 1)

The Family court is a court of limited jurisdiction and has only the power and authority given it by the legislature. W.Va. Code �51-2A-2 sets out and enumerates the powers and jurisdiction of family court. While this statute does confer jurisdiction upon the family court to modify final orders relating to custody, child support and spousal support, it does not provide authority to modify final orders of property distribution.

Further, West Virginia Code �48-5-706 does not authorize family court to modify final orders of property distribution. This section when read in pari materia with ��48-5-701 to 48-5-705, provides that family court may only modify final orders of property distribution to give effect to orders modifying child custody, child support or spousal support or if such modification results in an inequitable property distribution.

In the case of Segal V. Beard, 380 S.E.2d 444 (W Va 1989) the West Virginia Supreme Court of Appeals construed W.Va. Code �48-2-15(e))to require that � 3 of the statute (now �48-5-706) must be read in context with the preceding section permitting modification of property rights only as it relates to alimony, child support or child custody. (Note: Segal v. Beard was decided prior to the recodification of the domestic relations law in 2001. See also Zikos v. Clark, 588 S.E. 2d 400 (WV 2003).

Response from the Bench:

By: Judge Jeffrey L. Hall,

Webster & Pocahontas County Family Court

In response to: "Effect of Child Preferences on Custodial Litigation", By: James W. Douglas, Esq.

In his guest article, Mr. Douglas states that "the relevant statute in West Virginia states that family courts shall allocate primary responsibility and decision making to a parent in correlation to the parenting percentages each parent discharged with the applicable offspring in the two (2) years prior to separation. W.Va. Code �� 48-9-205 and 48-9-206.

Neither section 205 nor 206 states that a court is limited to allocating custody in the percentages each party discharged their parental responsibilities during the two years prior to separation. Section 205 provides that parties submitting a permanent parenting plan shall provide a description of the duties they performed within two years of separation, but 205 clearly does not limit the court thereby. More importantly, section 206 is wholly devoid of any two year limitation, and provides that courts shall allocate custody in the proportions the parents enjoyed with their children prior to separation.

Memorial Day

Little Known Code Section:

�48-9-404. Modification of a parenting plan due to military service.

(a) If a military parent is required to be separated from a child due to military service, Court cannot enter a final order modifying the terms of an existing parenting plan until 90 days after the military parent is released from military service.

A military parent's absence or relocation because of military service must not be the sole factor supporting change in circumstance or grounds sufficient to support a permanent modification of an existing parenting plan.

(b) A parenting plan in place at the time a military parent is called to service may be temporarily modified to make reasonable accommodation for the parties because of the military parent's service.

(c) A temporary parenting plan under this section shall provide that the military parent has at least substantial custodial responsibility of the child during a period of leave granted to the military parent during their military service, unless the court determines that it is not in the best interest of the child.

If a temporary parenting plan is not issued pursuant to this section, the nonmilitary custodial parent shall make the child(ren) reasonably available to the military parent when the military parent has leave to ensure that the military parent has reasonable custodial responsibility and is able to exercise custodial responsibility of the child or children.

(d) If there is no existing parenting plan or order and it appears that military service is imminent, upon motion by either parent, the court shall expedite a temporary hearing to establish a temporary parenting plan to ensure the military parent has access to the child, to establish support, and provide other appropriate relief.

Read the full statute

Palmer v. Justice (May 4, 2011)

Relating to Duties of a Guardian Ad Litem

New Syllabus Points:

Syl. Pt. 5 A guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding and make recommendations to the court by testimony or in writing, unless otherwise ordered by the court.

FACTS OF THE CASE: On July 2, 2005, the child at issue in this case was prematurely born to Ms. Lacy (Mother) and Mr. Justice (Father). The child suffered from health problems and was characterized as "special needs". Mother and Father were never married, however, paternity was never disputed. On or around September 9, 2005, a Complaint to Establish Paternity and Child Support was served on Father, to which he filed an Answer and Counter Petition asserting custodial rights as a father. During the May 5, 2006 hearing, the parties agreed, and the Family Court ordered that Father would take training classes from the Birth to Three program on proper care of the special needs child, and that the parties would work to establish a parenting plan permitting Father to have overnight parenting time once he had concluded said classes.

Upon completion of his Birth to Three sessions and upon the entry of several orders denying his Petitions to modify the parenting plan so that he could have overnight parenting time with the child, Father appealed the Family Court's Order entered on November 9, 2009 denying Father's Petition to modify the parenting plan. The family court entered this order in part based on the testimony and report of the guardian ad litem. The Circuit Court affirmed the Family Court. Father appealed to the West Virginia Supreme Court.

HOLDING: Reversed and Remanded. The WV Supreme Court held that the orders of the family court were so unclear as to what was precisely required of Father to achieve overnight parenting time with the child that the requested overnight parenting time could never be achieved. The Court based this holding partially on a lack of sufficient objective evidence regarding what the child's needs and limitations were, and on the fact that Father had demonstrated an effort to comply with the family court's orders.

The Court also found that that the guardian ad litem failed to make a full and independent investigation into the facts of the case by failing to interview the minor child; failing to review the child's medical and treatment records; and failing to visit the parties' home environments. The Court directed the Division of Family Court Services to submit proposed comprehensive guidelines for guardian ad litems appointed in family court cases.

To view the majority opinion in this case, go to:

http://www.state.wv.us/wvsca/docs/spring11/35633.pdf

Note: Summary provided by Sarah Reid, Esq.

Contacts

Editor: Brittany N. Ranson, Esq.

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WV State Bar Family Law Committee

Chair Lyne Ranson, Esq.
2006 Kanawha Boulevard, East
Charleston, West Virginia 25311

Kanawha County Family Law Bench Bar

Chair Andrew S. Nason, Esq.