GAPS IN WV FAMILY LAW
Published to: Divorce, Family Law, harrison, Harrison County, Mediation, Perspectives of a Small Town Lawyer, Randolph County, Restraining Order, upshur
on October 17, 2018 10:07 pm
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This is just a short observation based on a discussion I had today with our family law mediator. Here is Burt’s concise list of some gaps we have in our family law in West Virginia:
1. When an unmarried parent of an infant seeks child support, the Bureau of Child Support Enforcement Attorney prepares most orders, and even where the court assumes jurisdiction and awards a parent child support, it routinely fails to include a “conclusion of law” that the parent receiving child support has actual custody. Inevitably, somewhere down the line, someone withholds the child and causes “all hell to break loose” because neither parent has an order establishing this simple fact. I have encountered this problem twice in the last month.
2. It is perfectly legal, even when a couple has lived together in one county for years, where no court-ordered parenting plan exists, for one of those parents to move out, relocate to a county other than the child’s home county, withhold the child, and file an “allocation petition” in the new county, even when the child has attended school in her home county for years. In those cases, it is a simple “race to the courthouse”, and “venue” as it is very simply set out in the WV divorce statute, does not apply.
3. In this age of “hooking” up, the rights of children are not protected as a mother can have the child, fail to establish paternity, and raise the child in poverty, and the biological father can walk away “scott-free,” ready to “spread his seed” elsewhere. In short, society is falling apart.
4. Although an attorney with proper staff and office must be able to charge $200 an hour or more to make a decent living, the “sliding scale” for court-approved mediators can be as low as $95, $65, or even $45 an hour, much below that attorney’s overhead.
5. If an attorney wants to be on the “court-approved” list, they must be willing to take these cases and work “below cost”. Before you assume too much about the opulent lifestyle of a small town attorney, please consider that a monthly budge for a sole practitioner of $20,000 for operating expenses, insurance, marketing, hardware, and software is completely routine. Some attorneys work with little or no staff. That’s a prescription for disaster.
6. There is no simple fix. Non-lawyer mediators exist, w/little or no overhead. They don’t understand the law, so they mediate “only children’s issues”, as if knowing the law isn’t critical. And they prefer NOT to have lawyers attend mediation. Sigh.
7. It is not yet considered “standard practice” for a family law attorney to attend mediation with her or his client. Burt calls failure to attend “malpractice”.
8. There is no significant movement in West Virginia to promote “expedited mediation”, “streamlined mediation rules”, “unbundling of legal services”, or “collaborative law”.
IN SUMMARY, family law in West Virginia stumbles along with perhaps 70% of the litigants unrepresented, overburdened courts, limited funds for mediators and guardians ad litem, and an “adversarial mentality”.
This post was written by Burton Hunter