Some of you reading this blog might be hesitant to condemn a judge’s ruling. What is universally accepted, however, is that when serving on the bench the judge must obey the law. Below are laws the judge has violated in this case. These are not procedural irregularities – they have had a real effect on the judge’s ability to make a judgment in the best interests of the child. As a result, the mother is forced to hand over the baby to a man who has been abusive and neglectful.
- Rules of family court: Time for final hearing. A final hearing must take place within 220 days from the date of the filing of the initial pleading. The Court has the discretion to limit the duration of final hearings.
Violated by judge: The date of the filing of the initial pleading was: May 14th, 2015 The judge has not set a final hearing date and has declared the case open indefinitely.
- Rules of family court: Family court proceedings are not open to the public.
Violated by judge:
1. Permitted the bureau of Child Support Enforcement attorney to sit in on the part of the hearing that the judge already said did not concern the Bureau.
2. Called into the hearing the person who the father had hired to drive him to the hearing to ask about the father’s general character. The mother was not notified beforehand that this person would become party to the hearing, and was not allowed to cross-examine her.
3. Without any prior notification or consultation with or agreement of either of the parties, telephoned the mother’s parents, who are not parties to the case, and kept them on speaker phone for the entire hearing. The judge also asked them to speak without any proper procedure to treat them as witnesses.
- West Virginia code regarding venue: CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 1. VENUE. [set of specific conditions under which the court venue can be changed].
Violated by judge: The judge changed the venue from the county in which the original petition was filed to his court in another county, without any procedures or reasons for change of venue being invoked. Neither of the parties lives or has ever lived in the county to which the venue was changed.
- WV code: §48-20-106. Effect of child custody determination.
A child custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this state or notified in accordance with section 20-108 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.
§48-20-205. Notice; opportunity to be heard; joinder.
(a) Before a child custody determination is made under this chapter, notice and an opportunity to be heard in accordance with the standards of section 20-108, must be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated and any person having physical custody of the child.
Violated by judge: The judge has refused to view any evidence the mother has presented, and has stated the intention to issue future orders without a hearing to silence her further.
- Rules of family court: Financial disclosure
1. Required financial information on motions for relief. In cases which may involve spousal support, child support, allocation of custodial responsibility, visitation, or paternity, the petitioner and respondent shall file the following documentation in support of the required financial statement pursuant to the date specified by the scheduling order of the Court or no later than five days prior to any scheduled hearing, whichever first occurs:
1. A copy of the party’s three (3) most recent wage or salary stub showing gross pay, deductions for taxes and other items, and net pay for a normal pay period, and for the year-to-date;
2. Copies of the party’s complete income tax returns for the two years immediately preceding the date the petition was filed, together with copies of the federal Form W-2 for those years; and a copy of the Form W-2 for the most recent year for which that form is available, even if a tax return has not yet been filed for that year;
3. For a self-employed party, a copy of a current financial statement showing gross income, expenses, and net income;
4. Copies of any invoices or receipts showing the cost of any extraordinary medical expenses for the party or the children, of any child care expenses, and of any expenses necessitated by the special needs of the children.
Violated by judge: the judge joked about the father’s failure to comply with this rule, and did not order him to do it, but proceeded to make orders without this rule being followed by the father.
- Rules of family court: Contempt, modification and final hearings
1. Contempt/show cause and modification petitions and hearings. — A party may file a petition for contempt/order to show cause or modification of any order of the court. If grounds pled warrant a contempt/show cause and modification hearing, the hearing shall take place within 45 days of the filing of a petition for contempt/order to show cause or modification. If grounds pled not warrant a hearing then the court shall enter a dismissal order within 20 days.
Violated by judge: the judge put the mother’s petition for contempt against the father for non-payment of child support into abeyance until the final trial, which he put off indefinitely, leaving the case open.
- Rules of family court: Retroactivity of child support and spousal support orders
Except for good cause shown, orders granting relief in the form of spousal support or child support shall make such relief retroactive to the date of service of the motion for relief
Violated by judge: without stating any cause, the judge ordered child support paid only from the date of the first hearing, rather than from the date that the father and Bureau of Child Support Enforcement filed the petition.
- Rules of family court: Taxation of costs, fees, and attorney fees. — Costs and fees, including attorney fees, may be taxed against a party who is financially able to pay.
Violated by judge: During the hearing, the judge taxed a guardian ad litem fee against the mother, who has presented and filed all her financial information, which shows clearly that she is unable to pay. He has set this fee at $5000, and let the father off from paying it, without any of the father’s financial information in the record.
- West Virginia Trial Court Rules | Chapter 2: Civil Matters, Rules 20-29
A guardian ad litem shall be selected independently of any nomination by the parties or counsel.
Appointed guardians ad litem may (a) serve on a voluntary basis without compensation, (b) be paid by a litigant or a litigant-parent of an infant for whom the appointment is made if the litigant or litigant-parent is not an indigent person, or (c) be paid by the Supreme Court of Appeals as provided in rule 21.05.
Violated by judge: the Judge ordered the mother to pay $5000, before the guardian ad litem was appointed, even though the mother is indigent.
- West Virginia trial court rules: Compensation for a Supreme Court-Paid Guardian Ad Litem Payment shall be made from Supreme Court funds. Supreme Court-paid guardians ad litem shall be compensated at $80 per hour for out-of-court services, and $100 per hour for in-court services. The total compensation paid to a guardian ad litem appointed pursuant to the provisions of this rule shall not exceed $3,000 (“Three Thousand”) per appointment as of July 1, 2012.
Violated by judge: Even though when compensated by the Supreme Court, the GAL cannot charge more that $3000, the judge ordered the mother or her parents to deposit $5000, and said that this was just the beginning of what they would be paying.
- WV code: §48-22-306. Conduct presumptively constituting abandonment.
(b) Abandonment of a child under the age of six months shall be presumed when the birth father:
(1) Denounces the child’s paternity any time after conception;
(2) Fails to contribute within his means toward the expense of the prenatal and postnatal care of the mother and the postnatal care of the child;
(3) Fails to financially support the child within father’s means; and
(4) Fails to visit the child when he knows where the child resides.
Violated by judge: The WV definition of abandonment fits the actions of the father in this case. The father’s actions constituting the legal definition of abandonment should have been relevant in considering his fitness to have custody as well as unsupervised visitation. But the judge made rulings without looking at any evidence that had been entered into the court record.
- IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 1997 Term No. 23557 . Case law citations also defined what an unwed father needs to do to assert his rights to custody of a child: Unwed biological father’s parental interest will be preserved only where he has exercised statutory “parental rights and duties toward the child,” which include “contributing to the support of the mother during the pregnancy and contributing to the support of the child after its birth…”
From the same case: “The best interests of the child is the polar star by which decisions must be made which affect children… It is well settled in this state that the welfare of the child is of paramount importance in determining who is entitled to its custody, and that the welfare of the child is to be regarded more than the technical rights of the parent.”
Violated by judge: In none of the hearings did the judge address the safety of the child, much less the best interests of the child. This question was not even raised, mentioned, or discussed.
Please sign this petition to have this judge investigated.