Current through December 29, 2025 · Last verified July 8, 2026
In one sentenceRule 48a requires a family court to remove an infant guardianship case to circuit court once child abuse and neglect is alleged, and bars sending it back.
(a)Removal by family court to circuit court of infant guardianship cases involving child abuse and neglect. — If a family court learns that the basis, in whole or part, of a petition for infant guardianship brought under W.Va. Code §§ 44-10-3, is an allegation of child abuse and neglect as defined in W.Va. Code §§ 49-1-3, then the family court before whom the guardianship proceeding is pending shall remove the case to the circuit court for hearing. Should the family court learn of such allegations of child abuse and neglect during the hearing, then the family court shall continue the hearing, subject to an appropriate temporary guardianship order, and remove the case to the circuit court for hearing to be conducted within 10 days, for determination of all issues. Once removed, the case (or any portion) shall not be remanded to family court. At the circuit court hearing, allegations of child abuse and neglect must be proven by clear and convincing evidence. Immediately upon removal, the circuit clerk shall forthwith send the removal notice to the circuit court. Upon receipt of the removal notice, the circuit court shall forthwith cause notice to be served in accordance with W. Va. Code §§ 44-10-3 and to the Department of Health and Human Resources who shall be served with notice of the petition, including a copy of the petition, and of the final hearing to be conducted before the circuit court. Such notice to the Department of Health and Human Resources shall constitute a report by the family and circuit courts under W. Va. Code § 49-2-803.
(b)Investigation of Abuse and Neglect. — Upon removal of the infant guardianship petition, the circuit court may utilize the investigative and mandamus process and related procedures set forth in Rule 3a of the Rules of Procedure for Child Abuse and Neglect Proceedings if the court deems it necessary or appropriate under the circumstances presented. The circuit court shall allow the petitioner for infant guardianship to appear as a co-petitioner on the petition filed by the Department of Health and Human Services under W. Va. Code §§ 49-4-601, et seq., if both so agree. Nothing herein shall be construed as either a requirement that the petitioner for infant guardianship be a co-petitioner under W. Va. Code §§ 49-4-601, et seq., or a prohibition against the filing of a W. Va. Code §§ 49-4-601, et seq., petition by the petitioner for infant guardianship should the Department show cause why it will not file such a petition.
End
Amendment History
[Amended by order entered and effective November 7, 2007.]
Plain-English Summary
Where a family court learns that a petition for infant guardianship rests, in whole or part, on an allegation of child abuse and neglect as the Code defines it, the court before which the guardianship is pending must remove the case to circuit court for hearing.
If that emerges mid-hearing, the family court continues the hearing — subject to an appropriate temporary guardianship order — and removes the case for a circuit court hearing within 10 days on all issues. Once removed, the case or any part of it shall not be remanded to family court. At the circuit court hearing, allegations of abuse and neglect must be proven by clear and convincing evidence.
The mechanics follow immediately: the circuit clerk sends the removal notice to the circuit court forthwith, and on receipt the circuit court causes notice to be served under the guardianship statute and on the Department, which must be served with the petition and notice of the final hearing. That notice to the Department counts as a report by both courts under the abuse reporting statute.
On removal, the circuit court may use the investigative and mandamus process in the abuse and neglect rules where it thinks it necessary or appropriate. It must allow the guardianship petitioner to appear as a co-petitioner on any Department petition if both agree — while the rule is explicit that this neither requires the guardianship petitioner to be a co-petitioner nor prevents them filing their own petition should the Department show cause why it will not.
Frequently Asked Questions
When must an infant guardianship case leave family court?
Where the family court learns that the basis of the guardianship petition, in whole or part, is an allegation of child abuse and neglect as defined by the Code.
What if the allegation surfaces during the hearing?
The family court continues the hearing, subject to an appropriate temporary guardianship order, and removes the case to circuit court for a hearing within 10 days on all issues.
Can the case go back to family court?
No. Once removed, the case or any portion of it shall not be remanded to family court.
What standard of proof applies in circuit court?
Allegations of child abuse and neglect must be proven by clear and convincing evidence.
Can the guardianship petitioner join the Department's petition?
Yes, as a co-petitioner if both agree. The rule neither requires it nor prevents the petitioner filing their own petition should the Department show cause why it will not file one.
Source & verification. The rule text is reproduced verbatim from the
official West Virginia Rules of Practice and Procedure for Family Court (W. Va. R. Prac. & P. Fam. Ct. 48a). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. ·
Official source
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