Recently I was asked about the “rights of an unmarried father”. An answer to that question must include reference to two other issues, the “rights of the unmarried mother”, and, generally, the property rights, vis-à-vis one another, of people who decide to reside together without marriage.

An unmarried couple that splits up will not fall within the jurisdiction of the Family Court if they want to divide their property. They will not have the benefit of the “equitable distribution” statute that protects married persons. https://hunterlawfirm.net/equitable-distribution-wv-divorce-property-law/

The URLs contained within this article reference my other writings related to these subjects.

Two people can pool their resources and acquire vehicles, houses, personal property, and even cash, but when things get nasty, and they part ways, they either have to figure it out for themselves or seek help in Magistrate Court or Circuit Court.

Most people can’t afford a lawyer for these cases, and usually, the person the property is titled to gets that property. So, there’s one argument for marriage! The issue of prenuptial agreements is outside of the scope of this article.

The simple fact is that being married is the way you acquire wealth together. Living together without marriage is usually very unfair for one of the parties.

Let us return to the subject my questioner posed. “What happens when the unmarried parents of a child can no longer live together?”

Initially,  this depends on the nature of their problems and the extent of their hostility or impairment. Some do it peacefully and civilly, but often they will go to law enforcement or the magistrate seeking assistance. And often they will be sent to a nonprofit agency, quasi-governmental, that focuses primarily on domestic violence such as “Hope Incorporated” or” Women’s Aid in Crisis” for help in filing a domestic violence petition. That’s not a good way to start to learn co-parenting.

The unmarried person seeking assistance, since they cannot file for a divorce, will learn that the domestic violence law is the primary tool to deal with immediate breakups and that there are primary components which I will briefly describe as inflicting physical harm or threatening to inflict physical harm, holding one against one’s will, sexual assault, or a pattern of behavior causing the other person to feel threatened.

We have all heard the “old saw”, “If the only tool you have is a hammer, every problem looks like a nail.” So, many domestic violence filings are primarily power moves to gain an advantage in the custody matter. Call it, “The law of unintended consequences.”

Domestic violence is a terrible societal problem, and many petitions filed are valid, even essential.

But why is there no “domestic squabble law” allowing the magistrate or the Family Court to settle immediate problems such as who gets the car, who gets primary or coequal time with the children, etc?

Such a law would allow a “no unwanted contact” restraining order where the Court would not have to find domestic violence but would require the parties to leave each other alone, refrain from posting to social media, and would give them a temporary framework to share their child or children until the initial hearing.

Alas, no such law exists other than a rarely used procedure called an “Ex Parte Petition or Motion ”. There is a form for such motions produced by the West Virginia Supreme Court administrative office, and available in the circuit clerk’s office, but usually a lawyer is needed to obtain emergency relief without an evidentiary hearing.

As I find myself “wandering into the weeds”, let me refer you to a recent article I wrote on child custody: Child Custody in WV: an Update of “The Maze” – Attorney J. Burton Hunter III : Attorney J. Burton Hunter III (hunterlawfirm.net)

Unmarried parents will usually have to follow procedures requiring the filing of a “Petition For Allocation of Parental Rights”, formerly known as a “Paternity Suit”.

At the very beginning of my career “paternity suits” could be “slugfests” over who had sex with whom, when, and how often, and was a virtual invitation to lie.

I recall one case in which my client was the fourth person the welfare recipient mother had accused of being of the father. Bingo!

In one whirlwind week, the blood grouping test results arrived, mother’s children were removed from her home because of the domestic violence situation unrelated to my client, and he found himself calling his mother and asking her to pick up a bassinet at the local Heck’s Department Store and other baby things because the state had just given him his new baby.

Happily, the man got married and his new wife adopted the child. Sadly, I later represented him in the divorce. Such is life. Remember that an unmarried parent can still be a great parent if they want to. 

Now that DNA testing is a swab on the inside of the cheek, it is cheap and efficient, so the drama of “he said, she said” is over.

As I mentioned in the above-referenced article, the court no longer strictly attempts to impose on the parties a caretaking sharing similar, if not identical, to what they did prior to their separation.  Sometimes, of course, they never actually were an intact couple residing with their child.

It is enough to say, for the purpose of this article, that the court will attempt to put together for the parties a parenting plan in which they will share responsibilities of time with the child or children, decision-making, and access to records in a fair and equitable manner, consistent with the welfare and best interest of that particular child.

If the parties or their counsel cannot work things out, the parties can expect to be sent to a trained “family court mediator”, on the court’s mediators’ list, and, more often than not, they will negotiate a parenting plan that the mediator will draft and submit to the court for approval. Parties with lawyers can even send in their parenting agreement and agreed final order without attending another hearing!

What is the cost of such an experience? I ask in return how much does a car cost? It depends on the options. Cases involving physical, sexual, drug or alcohol abuse can cost thousands of dollars including the appointment of a lawyer for the child called a “Guardian Ad Litem.

So the honest answer is somewhere between 1000 and $10,000. Because I am very reasonable in my billing, my fees are usually between $1500 and $5000.

I use my nearly 50 years of experience in representing individuals, thousands in Family Court matters, to provide guidance to my clients and even to the other litigant on ways to collaborate, put the child first, and “win” the child custody case by following, “The Golden Rule”, all the while keeping in mind that these children must be raised by these parents and that their future, their children’s future, and children “all the way down” will benefit or suffer depending on how good of a  job my client and I and our “adversary”  do in order to manage this difficult challenge. I’m up for it if you are!

This post was written by Burton Hunter

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