The Maze of WV Child Custody Issues – Just Dropping Crumbs Won’t Get You Out

They say the key to a good website is “Green Content”. So here is some.

Below, in red, two years ago, I alerted my readers that a new “initial child custody law” was passed. Well, they have done it again! “Initi(al means the stage where the Court first awards custody. (Allocation of Parental Rights).

I call it “The one size fits all, split the child down the middle (grandmother and girlfriend) custody act.”

Our WV legislature, with its “super majority” of Republicans, passed this “mens’ rights” bill with a 50%/50% presumption even where one parent previously provided 90% of all hands-on care!

(Partially) retired Legal Aid Lawyer, David McMahon, a friend and colleague, wrote an excellent analysis of the new law, including over 30 factors that might be presented to “rebut” the legal “presumption” of a 50%/50% custody plan. Here is the link to David’s article. The New 50%-50% WV Child Custody Law – Attorney J. Burton Hunter III : Attorney J. Burton Hunter III (hunterlawfirm.net)

My article, below, including the red portion, discussing the transition from “caretaking percentages” to the new law, and the other areas of child custody such as “adoption” and “abuse and neglect” may still be good in giving you perspective. I assure you child custody is still “a maze” and you must be very careful not to get lost in it. 

This article needs a major rewrite. But these comments in red will have to do for now. 

I have posted a few articles discussing the recent quiet Revolution in custody in WV. 

Here is just the tip of the iceberg. The law in initial custody determinations has changed. The requirement of a “caretaking functions” percentage determination is over.

I am talking about divorce and proceedings that used to be called “paternity suits” and are now petitions for determination and allocation of parental rights, oi “initial custody determinations”. 

With the opioid crises and the meltdown of America in its social media crisis, the legislatures and courts have been slow to adapt and overworked and even overwhelmed. 

Fit divorcing parents and even unmarried supposendly fit parents are facing a likely default to a “co-equal” or 50%-50%, parenting arrangement. I will live in the legal world I am given, but this development has huge ramifications, as does the increase in drug dependent parents.

Although the law in cases where one parent wants to relocate with the child/children to another state or too far away for the other parent to keep the same parenting role has not changed, but the way our WV Supreme Court interprets the facts has.

In a March, 2019 case, our Sup. Ct. elevated “the best interests of the child” and the actual services and time a parent spends with a child, over a simple counting of “overnights”: thus, “substantial majority of parenting” may not mean the person who has 70% of the court-ordered “overnights”, as it did in the past 

I have detected a troubling trend in some judges and lawyers, especially Legal Aid lawyers, to minimize the Court’s requirement for “an alternate dispute resolution mechanism”, i.e., mediation.

One judge told me that mediation is “only an option; not a requirement”, even when the final court order says “shall”.

And some well-intentioned lawyers told me that requiring mediation “..deprives a party of access to the courts.” ! Which, of course, it does not. 

Finally; a friend and colleague recently left the practice of family law, although she still does family law mediation.

She said, “I haven’t missed it for an instant. It had got to the point where there was hardly a family law lawyer I could trust or work with.”

My percentage is a bit higher, perhaps 50% of the time, but the other 50% really should pick another line of work. Taking on the worst traits of your client is not good lawyering! It is pandering.  

The trend of our national politics to view truth only as an option when it is helpful has begun to permeate family law.

Stay tuned. I hope to flesh-out these thoughts.

Just be aware that custody in WV is rapidly evolving. (Editor; jbh)

This isn’t going to be an easy read, but if you were going to try to get through the Amazon jungle, naked, wouldn’t you at least like to talk to a guide first?

First: some history:

1. Fast forward from the time where men controlled the lives of their wives and children. Think Job who the Old Testament Lord asked to sacrifice his son, Henry the VIII who imprisoned and beheaded his wife, and banished another, or fundamentalist Islam, the lack of rights of women,  and its revenge killings of own family members.
2. When I arrived to the practice of law, there was a presumption that children should stay with their mother, visit with Dad every other week-end or so, and receive child support. That idea came from Victorian England and the idealization of women and mothers.
3. Then our Supreme Court, followed by our legislature, came up with the “primary caretaker” rule, to the effect that the person who provided “the majority of caretaking” during the marriage “won custody”. She got “full custody”, and the “loser”, called the “absent parent”, got something called “visitation” and paid “child support”, and the “absent parent” only got access to their children’s records, juvenile, school, medical, if the “custodial parent” would sign a permission form, which of course she would not do unless taken back to court.
4. It was very comforting when the Mother had done the vast majority of caretaking, was a good Mother and person, and the Father was controlling or abusive; but not so much when Mother was a mediocre parent, vindictive, an alcoholic, drug addict, or had not bonded with the child. It was rare for a father to be named “primary caretaker”. Dad was stuck with the term “breadwinner”; certainly not “custody winner”.
5. Several years ago, 10-12?, I’ve lost track, a new rule came into being pursuant to WV Code. If both parents were fit, the court, subject to some exceptions, was expected to figure out who had performed what percentage of “caretaking functions” each parent performed. At the temporary hearing, the court was to look back one year, and at the final hearing the court was to look back two years.
6. It was, and is, still slanted in favor of a stay-at-home or part time employed parent, but this lawyer believes that more often than not in WV one parent is more nurturing and “hands on”, and it is, barring fitness issues such as drugs, alcohol, or mental illness, the Mother. That’s my experience from 44 years of being a lawyer.
7. I was startled recently when a family court announced that the caretaking functions history of the parties is the least important factor that it considers, and in spite of dangerous, felonious, and abusive behavior of one of the parents, awarded the parties 50%/50% time with a two year old female child. I have only encountered one court with this view, but perhaps that’s the wave of the future, and it scares me. It smacks of deciding a case BEFORE the evidence is presented.

You may want to stop here and come back later. zzzzzzzzzzzzzzzzzzz……

You are probably reading now because you had a nice nap, or you have a problem and are seeking a solution. Here are some of them.

The combinations are myriad.

1. Short marriage with young children;
2. Longer marriage with teenagers;
3. Unmarried couple, some who lived together for quite awhile, so the “caretaking functions” rule applies, and some who had what is known as a “one night stand”.
4. A married couple, and a biological parent who has consented to an adoption, or “abandoned” the child so the stepfather can adopt.
5. A single parent whose spouse or partner has died or become “impaired”. Now his parents want his/their “rights”.
6. A grandparent, homosexual step-parent, family friend, court approved foster parent, or relative who has raised the child for several years and who the child considers to be his/her parent. That’s called a “psychological parent”.
7. In “5.” above, the biological parent(s) can be any combination of
8. Dead;
9. Unfit because of drug abuse or alcohol addiction;
10. Homeless, or mentally impaired; or
11. A respondent in a juvenile abuse and neglect proceeding in circuit court.

Got that? Great! There are many more combinations, but these give you an idea.

Let me try to confuse you a bit more.

1. Magistrate court issues temporary domestic violence protective orders that then go to family court.
2. And they are able to start a juvenile case which is then heard by the circuit court. More on juvenile abuse and neglect later.
3. Family court “shares jurisdiction” with circuit courts, and circuit courts are the appellate court for the family courts. Got it?
4. Family court, among other things, hears the domestic violence cases that start in magistrate court. These are “restraining order” cases that activate The Federal Gun Control Act and last from 90 to 365 days. During that period, the respondent may not possess a firearm. These cases are not criminal cases, but violations of DV orders CAN result in incarceration and criminal charges. And they carry a big stigma. Think “wife beater”.
5. Misdemeanor charges of assault or battery are criminal,  and heard by magistrate court, and more serious cases, malicious wounding, attempted murder, etc. are criminal cases, heard by the circuit cases, and are not dealt with in this article.
6. Family courts also hear what used to be called “paternity cases”. Because everybody knew what a paternity case was, the wise “powers that be” decided to change the name to “petitions for allocations of parental rights”. Write that down. Thanks to dna testing, the salacious factual disputes have been eliminated. What a pain it was dealing with who did what, with whom, and how often?
7. These cases can be instituted by the mother or putative father. I know one where the mother filed “an allocation petition” against one man, and her other boyfriend filed an allocation petition against her and the respondent in the other case. She kept telling each, “You’re the guy!”
8. Family courts hear almost all divorces, including parenting issues, equitable distribution of assets and debts, children’s issues, non-domestic violence restraining orders, alimony, and attorney’s fees. When parties negotiate successfully, family court approves parenting plan agreements and property settlement agreements.

I discuss “non-domestic violence” restraining orders in previous blog articles. One is “Senate Bill 430: The Bill No One Heard of”, http://wp.me/p4utce-tH . The other is “WV Families Dodge a Metaphorical Bullet”, http://wp.me/p4utce-v7

These orders are governed by a statute that I helped to write and work through the legislature, WV Code 51-2A-2a. Our WV Supreme Court took this power from family courts in a case styled “Miller v. Riffle” which I believe would have led directly to many injuries and  deaths, so I am proud to have helped restore it in the nick of time.

There is a critter called a “guardianship action.” These involve children and are distinct from petitions for guardianship/conservatorship of incompetent or disabled adults. Infant guardianship petitions are filed in the office of the clerk of the circuit court. Contested guardianships are usually heard by circuit courts even though they “share jurisdiction” with family courts. Some circuit courts remand the cases to be heard by the family court judge.

9.Phew! Break time! ………………………

10. Circuit courts now have a huge workload of juvenile abuse and neglect cases. These cases are instituted by Child Protective Services Division of the WV Dept. of Health and Human Resources, WVDHHR/CPS, via the county prosecuting attorney.

11. Abuse and neglect cases are a world of their own. I visit there only when my family cases “spill over”. My current such case is approaching two years’ old. It involves a dreaded creature called “the MDT”! Also known and “the multidisciplinary team.

12. When one of the parents is fit, that parent can be a co-petitioner with the State. My experience is that fathers are second hand citizens in these courts, often because fathers are uninvolved parents, but also because of pre-conceptions of the people who populate this system.

Huge factors in all of these cases are:

Drugs;

Alcohol;

Drugs;

Domestic violence;

Drugs;

Poverty

Drugs

Mental Health issues, and;

did I mention drugs?

My personal observation is that in family court the presumption is a parent is fit, and in “abuse and neglect”, circuit court, the assumption is the offending parent is not. And woe be it if you piss off or become adverse to the CPS worker, the prosecutor, the court appointed lawyer for the child (guardian ad litem) or, woe of woes, all of the above! Do everything, and I mean everything you can do, to ingratiate yourself with these people if you want a good result.

Adoptions can be consensual, where biological parent(s) sign(s) a relinquishment of parental rights. But don’t think you can relinquish rights and avoid child support. One cannot relinquish until there is another parent lined up to assume those responsibilities.

“Grandparents issues” can be a simple petition for grandparent visitation, or a full blown guardianship (custody) petition including the claim the grandparent is a “psychological parent”.

In most cases, fit parents are “the deciders” relative to grandparents rights. The statute is WV Code Sec. 48-10-101. Major issues happen when the child of the grandparent dies or becomes impaired or incarcerated, and the custodial parent feels threatened or controlled by his/her parents.

The “psychological parent” case, In Re: Clifford K, defined the parameters of actions brought by people who claim to stand in the shoes of a parent. Such people are not allowed simply to file a action.  They must move to intervene in existing actions. I have a combination of allegations that I include in such cases, which an opponent recently labeled “a mishmash” of allegations.

I do whatever I can, within the law, to give the court to facts upon which to hang a decision based on the welfare of the child, which is supposed to be the “polar star” that guides the court.

I have written an article, “Digging Down: On Organizing the Facts in Your Case”, http://wp.me/p4utce-mr which describes my system for helping clients to organize the facts in their cases in order to provide me a “complete history” of relevant facts. It is a “nuts and bolts” description which I believe empowers my client to assume considerable responsibility in order to keep attorney fees within reasonable bounds.

The resources of all of these courts are finite, so presentation of the evidence must be targeted, and concise, and effective. At the early stages, “proffers” of anticipated evidence summarize effectively in just a few minutes. Presenting good proffers takes practice and experience.

Most cases are not “saved” by closing argument, as the court pretty must has it figured out by then.

A good lawyer is pragmatic and realistic. He or she must be passionate but not overly-zealous. The lawyer who helps you lie and cheat, is, well, a liar and cheater and will do the same to you.

The best lawyers care more for your children even than for you. And they “work, work, work” to help the client improve as a person and overcome personal weaknesses. One of the better compliments a court appointed “guardian ad litem”, lawyer for the child, gave me is “You give your client every opportunity to succeed.” I hope that is true and try to make sure it is.

When I see the client is going to lose, I do everything I can to limit the damage. It is stressful and emotional.

I cannot conclude without urging to have the right lawyer for the job and not to think you can handle a case of any import on your own based on your own standards of right and wrong and common sense. Do that, and even a good case can “go down the tubes”. I hope these words have given you insights into the subject that most people know as “child custody”.

This post was written by Burton Hunter