WV Family Law Newsletter - November 2011 Edition

The Family Times

West Virginia Family Law Newsletter

November 2011 - Vol 1, Issue 9

Greetings!

Please continue to email the editor with comments, articles, newsletter ideas, & reader tips. This is your newsletter so we want to hear from you!

Mark your calendar! WV State Bar Family Law Committee Meetings

(second Friday of the month, beginning in December):

1. December 9, 2011 - 10:30 a.m. at Lyne Ranson Law Offices

2. January 13, 2012 - 10:30 a.m. at the new state bar office

3. February 10, 2012 - 10:30 a.m. at the new state bar office

*contact Kathy Henning if you'll be attending the meeting so that lunch can be ordered for you.

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Proposed Guidelines for Guardian Ad Items

in Family Court

The Supreme Court is requesting public comment on proposed guidelines related to the appointment of guardians ad items in family court, along with a proposed amendment to Trial Court Rule 21 related to compensation of guardians and other matters. The public comment period ends December 31, 2011.

Read the proposed guidelines here.

Outline Summary of new Appendix B:

GALs must take 12 CLE hours every 2 years provided by WVSC.

Court shall not routinely assign GALs unless reasonable cause to suspect parenting issues involve child's safety OR the best interest of the child warrants further investigation.

Court shall not routinely appoint GALs where both parties are represented by counsel, unless additional investigation can't be accomplished by counsel.

GAL can request clarification or modification order to clarify issues involved or functions to be performed.

GAL Investigation Duties:

Obtain & review court file

Obtain copies of relevant records (school, medical, CPS, etc.) necessary to understand and investigate the case.

Immediately contact the child and parents/caretakers upon appointment

schedule an in-person meeting with the child (+ duties during meeting, see rules).

Meet with both parents (if applicable) and/or caregivers (+ duties during meeting, see rules).

Interview relevant persons about child's needs and concerns (i.e. caseworkers, therapists, school and medical personnel)(+ duties during meeting, see rules).

Interview any necessary relatives, neighbors or other individuals with relevant knowledge.

May file a motion for child or parties to seek further evaluations. Must state reasons for evaluations and seek court order.

Must complete investigation with sufficient time between interview and court appearance to analyze information, take appropriate actions, formulate meaningful arguments and written recommendations.

GAL shall communicate child's wishes to the Court. If child's wishes are contrary to recommendation, GAL may request that an attorney be appointed to represent the child.

GAL shall provide a written report, which shall include:

# of face to face contacts

outline of all records and documents reviewed

name of each person interviewed and manner they were interviewed

full explanation of any special needs or medical conditions of the child & willingness or ability to provide for the needs of the child.

GAL may attach any necessary documents to written report.

GAL shall provide the Court with specific recommendations based on the findings of the interviews and independent investigation. If case involves parental responsibilities, GAL shall provide clear and concise requirements of both parents to accomplish the recommendation.

GAL shall be prepared to explain or advocate the recommendations in all proceedings before the Court.

GAL shall be present at all court hearings, mediation or negotiations of the parties which affect recommendations of the GAL or interests of the child.

GAL shall respond to all motions or appeals which effect recommendations or interest of the child.

GAL shall file appeals to rulings that are adverse to the best interest of the child.

GAL shall monitor the case for a reasonable period of time to ensure parties are complying with the Order set by the Court. GAL shall provide progress reports.

Outline Summary for

revised Trial Court Rules

Rule 21.04: Added definition of "Active Duty Servicemember."

Rule 21.05

Added "Active Duty Servicemember" to list of persons for whom a GAL may be appointed.

Cost of GAL for infant child may be ordered to be paid by Supreme Court regardless of whether both parties are indigent.

GAL Appointment ends for active duty servicemembers when he or she is no longer afforded protections under the Servicemembers' Relief Act.

Rule 21.06:

Increase in GAL Compensation

$80/hour for out of court services

$100/hour for in-court services

Total compensation per appointment increased to $2,200 as of March 1, 2012.

Cost of obtaining and copying court records, medical records, school records and CPS records will be reimbursed.

WV Supreme Court Opinion

Linger (now "Paugh") v. Linger (Nov. 2011)

Facts: The parties agreed parenting order gave each parent 50/50 shared decision making over major life decisions. If a dispute arose, the parties were to attempt to resolve the problem by eliciting assistance from a counselor or mediator.

Mother wanted to send the parties' children to St. Patrick School, but Father disagreed. Mother ended up enrolling the children at St. Patrick without attempting to utilize mediation or counseling and without Father's consent.

Father filed an expedited petition for relief asking that the children be reenrolled at their former school.

In response, Mother argued that as the primary residential parent she should have final decision making authority if the parents can't reach an agreement. Alternatively, she argued that the family court should consider the best interests of the children and rule on the merits of the parties' dispute.

The Family Court found that Mother violated the express terms of the parenting plan by failing to utilize mediation or counseling to resolve the dispute and refused to rule on the merits of the parties' disagreement.

Issue: Did Mother violate the parenting agreement when she enrolled the parties' children at St. Patrick school against Father's wishes, without first attempting to resolve the dispute through counseling or mediation as set forth in the parenting plan?

Holding: Mother violated the express terms of the Agreed Parenting Order by not attempting to resolve her disagreement with Father by utilizing a counselor or mediator. Therefore, Family Court had no basis to consider the underlying merits of the parties' disagreement.

Read the full opinion here

Contacts

Editor: Brittany N. Ranson, Esq.

Click here to Email the Editor with ideas, articles, CLE or other events, news, QDROs, comments or to join our mailing list.

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.

DISCLAIMER

The Family Law Times is a newsletter published monthly by the West Virginia State Bar Family Law Committee and the Kanawha County Family Law Bench Bar. Readers are welcome to submit articles or material of interest to section members by emailing Brittany Ranson, Editor at Brittany@lyneranson.com.

Publishing of an announcement or article does not imply endorsement by the West Virginia State Bar or its members. Any viewpoints presented are those of the authors and do not necessarily reflect the views of the Editor, the West Virginia State Bar Family Law Committee or the Kanawha County Family Law Bench Bar. The section expressly reserves the right to refuse any requests for publication.

All the information in this newsletter is published in good faith and is intended for general information purpose only. The information contained in the newsletters should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

The newsletter editor and publishers do make any warranties about the completeness, reliability and accuracy of the information provided. Any action you take upon the information contained herein is strictly at your own risk.

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