Browsing Posts in Legal Information

Navigating West Virginia’s New Custody Law:

West Virginia Legislators have made a few changes to custody law that started on June 10, 2022.  In cases dealing with custody, the Family Court now has a presumption, or belief, that there should be 50/50 shared equal custody between parents.  This means Judges will equally split custody 50/50 between parents.  This new law does not create a substantial change in circumstances.  This means it cannot be used as the only reason to change an existing parenting plan.

This belief of 50/50 custody is “rebuttable” or challengeable.  To challenge it, a parent must prove “by a preponderance of the evidence” that the other parent should not have 50/50 custody.  This means there is over a 50% chance that what you are saying is true.  At your first hearing if you have not already reached an agreement on custody with the other parent, you can bring in evidence to help your case.  This includes photographs, text messages, witnesses, etc.    

At the first hearing, the Family Court is going to decide on temporary custody for the child.  If the parents have already agreed on a parenting plan, then the Family Court will likely use that agreement. If a parent disagrees with the temporary custody plan they can file an appeal with the West Virginia Intermediate Court of Appeals.  This is a new court will conduct a quick review of the Family Court’s decision.

If a person chooses to appeal that does not stop the Family Court decision from being followed for the time being.  The Family Court also will not pause future hearings in your custody case. This applies even if the Intermediate Court has not yet heard your appeal.  Since the Intermediate Court of Appeals is a brand-new court system, it is not clear how fast a review will be done.

The Family Court will consider many factors when deciding custody.  The Court can consider the actions of significant others, friends, and family that often spend time at your home. This is to see if any of those people will do something harmful or if there are concerns with their past behavior.  The Court also looks at the travel distance between parents’ homes. Also, the amount of time each child spends with the parent or a third party, and if the child has siblings. The Court can also consider whether a child, or parent, has a serious medical condition that can make care difficult.  The Court can also consider if a parent has a past history of domestic violence or any current domestic violence cases.  The Court will want to know if a parent has any felonies on their criminal record. In addition, the Court may also want to know where the children want to live if they are over 14 years old. If the child is not yet 14 years old, the Court will evaluate if they seem mature enough to have a preference.

If a parent wants to challenge 50/50 shared custody they should bring evidence to their hearings. The evidence should show any of these kinds of behavior.  At the hearing, the judge will hear both sides and consider all the evidence and factors. Then the judge will make a decision on what custody arrangement is best for the child. 

There is an option to “modify” or change, the parenting plan in the future.  To modify, a parent must show a “substantial change in circumstances” since the current plan was entered. The parent must also show that the change is in the best interest of the child.  Examples of a substantial change include things like unstable housing conditions, not giving the child medical care, or a disruption in the child’s education. If you cannot show a substantial change, you can still modify it for a few reasons.  Please see our custody modification article for more information.

Mediation through LAWV

Legal Aid of West Virginia has started a mediation program to help families affected by drug use. One of our goals is to help people in recovery reconnect with their children. Another goal is to help lower the burden on relatives caring for children while their parent is recovering.

Mediation can help families:

  • Communicate easily
  • Pass information about children
  • Lower trauma to children

You can learn more about mediation/alternative dispute resolution here.

Contact Legal Aid’s mediator:

Emily Neely
Mediation@lawv.net
(304) 263-8871

This program is sponsored by Equal Justice Works and the Foundation for Opioid Response Efforts.

FREE COVID Testing Information

As of Wednesday, January 19, 2022, the federal government is providing four free at-home COVID-19 tests per household. These can be ordered through an online form at https://www.covidtests.gov/. If you do not have internet access or experience a problem with the online application, you can call 1-800-232-0233.

There is a TTY option for text telephone device users to order the tests at 1-888-720-7489.

Tests are free and will be delivered by the United States Postal Service.

OTHER TEST OPTIONS (Heading)

Many insurance providers are covering the cost of at-home testing due to a federal rule for private insurance. If you purchase in-home COVID tests, you may be eligible for reimbursement or to have the tests paid upon purchase. Contact your private insurance provider to find out their policy on covering the cost of these tests.

If you have Medicaid, your at-home tests are also covered. You can reach out to your Medicaid provider to find out more about how to get your testing costs covered when you purchase.

In West Virginia, free in-person COVID-19 testing is still available for the public and conducted at sites around the state daily. You can see the closest testing site to your location, as well as the full schedule at https://dhhr.wv.gov/covid-19/pages/testing.aspx.

Family Rights for Children in DHHR Custody

Has the DHHR taken custody of your grandchildren or minor relatives? What rights do you have?

the foster and kinship parent bill of rights as written in West Virginia Code, section 49-4-601. full text below image.
  • Grandparents are given a preference for placement and are entitled to have a homestudy completed on their home to determine if their home is appropriate [WV Code 49-4-114(3)].  West Virginia Code §49-4-601(a) provides that “[w]hen a child is removed from his or her home, placement preference is to be given to relatives or fictive kin of the child.” 
  •  Foster and Kinship Care Providers have rights (WV Code 49-2-127)including:
    • The right to be notified of any hearing or review where the case plan or permanency of the child is an issue.
    • The right to move to intervene in the pending case, without fear of retaliation, once parental rights have been terminated.
    • The right to receive written notice if a child is removed from your home as a foster or kinship care provider.  (WV Code 49-4-111(a)).
  • Foster and Kinship Care Providers can contact the Foster Care Ombudsman if they feel like their rights are being violated.  The foster care ombudsman can be reached at:  Telephone: (304) 558-1117 or Email:  fostercareombudsman@wv.gov.


The Foster and Kinship Care Bill of Rights Text:

A Bill of Rights that acknowledges the integral and vital role you provide for our State’s children!

The West Virginia Legislature established a Bill of Rights for Foster and Kinship Parent Families that includes, but is not limited, to the following:

  • The right to be treated professionally and ethically as a provider.
  • The right to maintain your own family believes and beliefs, when possible. The right to receive training.
  • The right to have an emergency contact 24/7.
  • The right to learn safety issues about the child prior to placement. The right to learn background about the child prior to placement. The right to be provided a copy of treatment and service plans.
  • The right to participate and be notified of permanency planning.
  • The right to communicate with other professionals regarding the child. The right to be notified of all Court hearings.
  • The right to be notified of the final outcome of an investigation concerning foster home and explanation of corrective  action  plan or policy  violation. The right to contact the Foster Care Ombudsman.
  • The right to submit a letter or report to the Court.

HOW TO CONNECT WITH  THE FOSTER CARE OMBUDSMAN (FCO) OFFICE:

State Capitol Complex Building 6, Room 817-B Charleston, WV 25305

Telephone: (304) 558-1117 fostercareombudsman@wv.gov

What is the FCO?

The FCO advocates for rights of foster children and foster families, investigates and resolves complaints by foster children and foster families, and monitors the development of regulations, policies, and procedures related to the child welfare system.

Veterans Services at LAWV

This and every Veterans Day, we thank our veterans for their service. What many may not know is Legal Aid of WV provides services directly to veterans with legal problems.

Our veterans services, like our other services, have eligibility requirements, but we are able to provide services to a more diverse group of people under our veterans services umbrella because we have more flexibility with income eligibility.

Our current veteran attorney is Phillip Pham. He is based out of the Clarksburg office in Harrison County but can serve veterans statewide. Phillip can assist qualified veterans on legal issues such as adoption, guardianship, housing, unemployment compensation, expungement, driver license, name changes, bankruptcy, and veterans benefit cases. Phillip can also provide general legal information, legal forms, phone advice, and referral to other resources such as the WVU Law School Legal Clinics. Legal Aid also partners with the WVU College of Law Veterans Clinic to assist veterans who must appear in Court for petty offenses committed on federal property (also known as the petty offense docket).

Although we cannot assist in all cases or issues, we encourage any veterans facing current or potential legal matters to contact us for a no-charge consultation. Any veterans qualified for our services will not be charged for our services. 

Another exciting opportunity for us to assist veterans will be coming in the form of assistance for tax filing. Phillip will be working as an IRS’s Volunteer Income Tax Assistance preparer to assist veterans with tax filing. 

Due to Covid, we are currently unable to provide walk-in clinics at your local VA hospitals, but you can ask the social workers working there to put you in touch with Legal Aid of WV. Phillip can also meet you at any of the Legal Aid offices statewide, at the VA, or at another off-site location through appointment to discuss your case.  

If you would like to apply for services, please call 866-255-4370 to complete intake. If you would like to speak with Phillip before applying, please call 304-623-6649, extension 2311.

How Title IX (9) Protects Victims of Sexual Assault in Schools

Title IX protects people from discrimination based on sex in education programs or activities that receive federal financial assistance. Title IX states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  Nearly all of the schools in West Virginia have a Title IX program that ensures the university or college complies with federal law. Schools are required to implement policies consistent with Title IX that applies to both students and faculty. One area of Title IX that directly involves Legal Aid is the handling of reports of sexual assault.

Sexual assault is a form of sex-discrimination. Each school has its own policies that defines sexual assault, and it may be different than the criminal definition of sexual assault used in local criminal law.  However, the process amongst the schools in reporting and handling sexual assault allegations on educational campuses are very similar.  A report of a sexual assault involving students will trigger Title IX. A person reporting an incident of sexual assault, usually the victim, is called the Complainant.  The person alleged to have perpetrated the sexual assault is called the Respondent. Each school has a Title IX coordinator who ensures that steps are taken to ensure the safety of the Complainant and rights of Respondent.  Both parties have the rights to have an attorney represent them. Legal Aid has provided services to Complainants in guiding them through the Title IX process and help them make critical decision that are in their best interest. 

Once a Complainant reports a sexual assault, an investigation is conducted. The investigation is completed by an investigator who is responsible for interviewing all persons involved and gathering evidence and producing a final report.  Both parties have the opportunity to review and propose amendments to the report before it is finalized.  Amendments can include providing other witness for the investigator to interview, offering additional evidence, or clarifying their own statement.  Title IX complaint can be resolved in two ways: formal and informal resolution.  Informal resolution requires the consent of both parties. The goal of the informal resolution is to mediate an agreement between the parties.  Informal resolution agreements can include almost anything so long as it is consistent with Title IX and that school’s policies. 

However, a formal resolution process is like a court trial. During the formal process, both sides present their case in front of a hearing officer. The hearing officer is usually a lawyer that is hired by the school. Evidence and testimony are presented by both sides and, like a bench trial, the hearing officer will decide if the complainant has proven that the respondent committed an act of sexual assault as defined by the school.  If the respondent is found responsible, then adverse administrative action is taken, which can mean suspension or expulsion. However, if he is not found responsible, then no further action is taken, and the complaint is dismissed. 

If you or a loved one has been the victim of sexual assault in local schools, colleges, or universities, please know that there are resources available for you. First, it would be a good idea to contact your local sexual assault help center. If you do not know how to contact your local sexual assault help center, contact Legal Aid of West Virginia at 1-866-255-4370 or complete an intake online at www.lawv.net, and we can guide you to resources in your area while also offering insight, advice, and possible representation in your Title IX hearings.

Help for Renters During COVID-19 – Rental Assistance

Because of COVID-19 some people have lost income or work. That means some people haven’t been able to pay their rent. The government has implemented programs to help renters and landlords. If you are behind on rent or utilities or may get behind soon, consider these steps because help is available!

Step 1: Apply for Emergency Financial Help

  • The Mountaineer Rental Assistance Program (MRAP) can help low-income renters with back rent, future rent, and utilities. Apply online and learn more at www.wvrentalassistance.com. Call 1-866-623-6284 for a paper application or with questions.
  • Call 211 or go to www.wv211.org to learn about local resources that may be able to help.

Step 2: Reach Out

  • Talk to your landlord. Tell your landlord why you are having problems paying. Pay what you can. Explain your plans. Landlords are more likely to cooperate with renters who are trying.
  • If you need legal help, apply for services from Legal Aid of West Virginia.

Step 3: Get Informed

  • Read any court notices or paperwork carefully. Make sure to respond to all deadlines and timeframes in court cases.
  • Find Legal Information about the court eviction process and renter’s rights on our website.

Step 4: Claim all the help available to you

You can find more information in our COVID-19 and Eviction article. Or if you need legal assistance, apply for help.

CDC Eviction Order Ending, Rental Help Available Now

On July 31, 2021, the CDC Order to stop evictions for non-payment of rent will end. The CDC will not extend the order past July 31st.

Even if you have not been evicted, your rent is still due if you have not paid it. When the CDC Order ends, you will have to pay all unpaid rent due at that time or you could face eviction.

If you are behind on rent, you may be eligible for help. The Mountaineer Rental Assistance Program (MRAP) helps West Virginia renters who:

  • Have lost income, suffered economic hardship, or qualify for unemployment related to COVID-19;
  • Meet income requirements; and
  • Have household member who has experienced homelessness or housing instability since March 13, 2020.

If you are eligible, MRAP can pay for:

  • past-due rent and utilities dating back to April 1, 2020;
  • up to three future rental payments; and
  • a one-time internet payment.

More information is available online, along with the application. If you can’t apply online, call the MRAP Call Center at 866-623-6284 to ask for a paper application. If you need help filling out the MRAP application, Legal Aid’s Community Navigators may be able to help.

You should apply for help with your rent now, before the CDC Order ends. You can apply for help even if your landlord hasn’t filed court paperwork to evict you. If you are eligible, the funds will generally be paid directly to your landlord or utility company.

If you are being evicted and need legal help, you can apply for Legal Aid by calling 1-866-255-4370 or complete our Online Application and we will contact you.

School Clothing Vouchers 2021

It’s that time of year again. Students and families are preparing to head back to school in just a few weeks. 

Applications for the School Clothing Allowance Program are now being accepted by DHHR from July 1- July 31, 2021 for eligible kids enrolled in West Virginia Schools. Go to WVPATH to apply online. Or call your local DHHR office or 1-877-716-1212 to request a paper application.

Eligible kids will receive a $200 benefit that can be used to purchase school clothing.

Some families will automatically get the benefit, like families who get WV Works or families who get food stamps and have a certain income. Parents or guardians of kids in foster care will automatically get the benefit too.  Other families will have to apply. 

Eligibility is based on having kids in school and income limits. Income limits for 2021 are on DHHR’s website.

If your family is eligible, instead of a traditional paper voucher, you will get an electronic benefit transfer (EBT) card. The EBT card can be used for online purchases. The EBT card will work like a debit card. It can be used at any retailer who can process debit/credit card transactions. Parents or guardians of kids in foster care will get the school clothing allowance as a check.

Don’t forget to get your application in by July 31, 2021!  If you are denied, you can apply for help from Legal Aid to learn more about your rights.

For more information read our article: https://legalaidwv.org/legal-information/school-clothing-vouchers-information-how-to-apply/

Child Tax Credit Payments- New Online Tools

New online tools now exist to help get the 2021 Child Tax Credit.

You may have heard in the news that the Child Tax Credit has been expanded in 2021 so that:

  • more people qualify (you don’t need income to claim the credit this year),
  • the credit is larger ($3,600 for kids 0-5 and $3,000 for kids 6-17), and
  • some people can get advance payments of the credit, starting in July 2021.

For more information read  COVID-19: Expanded Child Tax Credit to Help Families in 2021.

Have questions about how to get the credit? Or want to know if you qualify? The IRS has just developed some online tools that might help you. 

  • Don’t normally file a tax return but want to get the credit? If you did not file a tax return for 2019 or 2020, you can use the IRS Child Tax Credit Non-Filer Sign Up Tool to give the IRS the basic information needed to issue the advance Child Tax Credit payments.
  • Don’t know if you qualify for the credit? The Child Tax Credit Eligibility Assistant allows families to answer questions to quickly determine whether they qualify for the advance credit. 
  • Don’t want the advance payments? The Child Tax Credit Update Portal allows families to unenroll, or opt out from receiving the monthly payments so they can receive a lump sum when they file their 2021 tax return next year in 2022.

Haven’t gotten all your stimulus payments? The IRS Non-Filer Sign Up Tool can also help people who don’t normally file tax returns register for stimulus payments (Economic Impact Payments) they may have missed.