WEST VIRGINIA RECORD

By ROBIN JEAN DAVIS

CHARLESTON -- The new millennium has brought significant changes to West Virginia family law, including a shift from court awards of "custody" and "visitation" to a presumption of shared decision-making authority for parents, and a departure from standard schedules of parenting time in favor of detailed parenting plans tailored to the specific needs of each family.

In enacting these changes, the Legislature found in W.Va. Code §48-9-101, that:

(A) child's best interest will be served by assuring that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children, to educate parents on their rights and responsibilities and the effect their separation may have on the children, to encourage mediation of disputes, and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or divorced.

Recognizing that the children's best interest is the paramount concern in awards of parenting time and decision-making authority has been a long-standing principle in West Virginia case law. The West Virginia Supreme Court of Appeals found that "(i)n a contest involving the custody of an infant, the welfare of the child is the polar star by which the discretion of the court will be guided" in Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948).

However, the new century's legislation and corresponding West Virginia Supreme Court rules add an emphasis on resolving parental disputes in the least adversarial way possible by educating parents on the effects of conflict, parenting plans and mediation through mandatory, one-time parent education classes and by having certain parents attend mediation.

The changes also give parents abundant opportunities to make their own parenting decisions. The rules respect the parents' fundamental liberty interest and presume that a fit parent will act in the best interest of his or her child, in accord with the Due Process Clauses of Article III, Section 10 of the Constitution of West Virginia and the Fourteenth Amendment of the Constitution of the United States and opinions of the West Virginia Supreme Court of Appeals.

Pursuant to West Virginia Code §48-9-202, the West Virginia Supreme Court of Appeals has established a structured family mediation procedure in Rules 38 to 46 of the Rules of Practice and Procedure for Family Court. Parents who attend their initial hearing before Family Court without an agreed parenting plan are referred to mediation screening. Each parent then attends an individual, confidential appointment with the Family Court Case Coordinator, who determines whether the parents are appropriate candidates to attend court-ordered mediation. Parents may be screened out, or found inappropriate, for court-ordered mediation because of issues that might prevent a safe, power-balanced mediation. Such issues could be a history of domestic violence, child abuse or neglect, acts or threats of duress or coercion, substance abuse, mental illness, or there could be some other concern.

If the parents are found to be appropriate candidates for mediation, then the Family Court issues an order requiring the parents to attend a mediation session with a Supreme Court-approved family mediator to negotiate a parenting plan. The mediation session is confidential.

Neither parent may be compelled to reach an agreement in mediation, and either party may withdraw from an agreement reached in mediation prior to the Family Court's adoption of the agreement. The mediator reduces the agreed parenting plan to writing and sends a "Mediation Outcome Report" to the Family Court, which adopts the agreement of the parties if it finds the plan to be voluntary and in the child or children's best interests.

To become an approved Family Court mediator, a person submits an application to the Administrative Office of the West Virginia Supreme Court of Appeals indicating that he or she has met certain requirements.

Mediators must have a minimum of a bachelor degree, have completed a 40-hour training on family mediation and possess sufficient liability insurance. Before they can conduct sessions on their own, mediators must observe two family mediation sessions conducted by an approved family mediator and co-mediate three sessions with an approved family mediator.

Approved mediators must attend continuing education conferences sponsored by the Supreme Court every two years. The next continuing education conference will take place on April 21-22 in Charleston.

An application form and a list of approved mediators by county are available on the West Virginia Supreme Court of Appeals' Web site at http://www.state.wv.us/wvsca/familyct/cover.htm.

Davis is Chief Justice of the West Virginia Supreme Court of Appeals.