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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 37621
Experience:  I provide family and divorce law advice to my clients in my firm.
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As an American Citizen and a retired US Army Officer I am begging

Resolved Question:

As an American Citizen and a retired US Army Officer I am begging you for assistance in a matter which I feel is wrong. I live in Gloucester, VA and today I went to court with my daughter on a child custody hearing. My grandson has been living with me, my wife and daughter since his birth fifteen months ago. My daughter works at Rite Aid as a Pharmacy Tech and has no police record and is a great mother. The father is unemployed, has a drinking problem, and came up positive on a court order drug test for drug use. Well here is the shocker the judge (Judge Atlee) took custody away from my daughter and gave him to the father even though the father has no job, a drinking problem (past DUIs), and came up positive on a drug test and admitted in court that he uses drugs. I served my country for over 23 years as an Army Officer and never imagined something like this could happen in America. Rumor has it that the Judge (Judge Atlee) is personal friends with the other attorney (Breck). Here is another shocker the court appointed attorney who represented my grandson (Julie Churchill) told the Judge that my grandson should stay with his mother and recommended visitation for the father. My whole family was shocked as the court law enforcement personnel took our grandson away from us on the spot even though he has never spent one night with his father. Please help. We were told by our attorney that we could not appeal to the next higher court until the review process is over and Judge Atlee has sent that date for March 2011. So here we are devastated with no hope and no visitation on a child we have raised for the last 15 months since his birth. I know this sounds outrageous but I have just given you the facts and have not painted this in my favor. Please help me and my family our hearts have been ripped out by a judge and the child’s father who wanted nothing to do with this child seven months ago and tried to get my daughter to have an abortion. He even asked me to pay for the abortion for her. Please help.
Submitted: 3 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 3 years ago.

Thank you for your question.

I will do my best to assist you with your issue. While I am permitted to provide you with legal information, I am prohibited by JustAnswer.com as well as various state bar associations from giving specific legal advice, provide representation, or enter into an attorney-client relationship through this open and non-confidential forum. Do you understand and agree to these provisions as well as JustAnswer.com's disclaimer?

Sincerely,


Dimitry Alexander Kaplun, Esq.

Customer: replied 3 years ago.
Yes
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for understanding.

First of all, sir, thank you very much for your service. I salute you and I will do my very best to help.

On what grounds, if any, was custody granted to the other parent? What exactly was the rationale?
Customer: replied 3 years ago.
Really it was none in my opinion. The judge mentioned that she felt that my daughter would not allow the father to see the child even though she was taking the child to the father's house (he llives with his mother since he has no job) twice a week for visitation but my daughter did voice her concern in court about his drug and alchol use
Expert:  Dimitry K., Esq. replied 3 years ago.
Was that a valid concern--did your daughter claim that she would not grant any sort of access or custody to the other parent?
Customer: replied 3 years ago.
No. Matter of fact she presented a proposal through her attorney proposing giving the father legal custody with her and allowing him 4 hours every tuesday and 8 hours every other Sat until the child tuns 2 and then start over nights on 2 Saterdays. His attorney felt we could reach an agreement based on this and not go to court. However, when we showed upo at court for what we thought would be a visitation issue. He was granted full custody. Everyone was outraged at the judges decision-my attorney and the guardian ad liedm. It is well know that their lawyer and the judge have had a long personal freindship
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your patience.

By itself, a fear of not allowing access is not deemed important enough to cancel custody. There must be good reason for such behavior, and usually such behavior revolves around a parent's "fitness". Evidence of abuse, neglect, domestic violence, drug use, alcohol abuse, criminal history/record/parole/probation, or moral turpitude are all factors that define "fitness".

Since your daughter did not fulfill any of the criteria, but the other parent did (evidence of drug use and criminal history), your daughter should have been deemed the superior parent. Because this did not happen either means that there was additional evidence that was not introduced (unlikely from your facts), or the judge made an incorrect interpretation of the law, most probably based on his possible associations.

This gives you a few options. First is to wait and attempt to appeal. That is problematic as it will be harder to change custody, especially if the other parent shows himself to be capable within that time line. Second is to file for an appeal, request a new judge to rehear the request, and pursue this further. Your attorney may balk at this simply because attorneys who contest judges become unpopular and less likely to win in the long-term (not defending, merely pointing out). Third and something that I suggest very strongly, is that you also file for an ethics complaint against the judge via the Virginia Judicial Inquiry and Review Commission. Explain in the complaint the possible scenarios and ask for a formal investigation of the grounds. You can do this concurrently with the second option.

Here is the link as to how to file the complaint:

http://www.courts.state.va.us/agencies/jirc/home.html

Hope that helps.

Edited by Dimitry Alexander Kaplun on 9/1/2010 at 5:21 AM EST
Customer: replied 3 years ago.
Can I file for an appeal even if the judge has stated that they will review this in March 2011 and has not made a final determination? If so how do I do this?
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your question.

You absolutely can make the appeal if the child was taken away.

The best way to appeal is to get the attorney to file a motion to "set aside" the verdict, and request a "re-hearing" with the supervisory judge based on possible bias of the previous judge. Your attorney will have to also file a formal request to the current judge asking him to step aside, which will most likely be ignored, but it is standard. Then the appeal to the supervisory judge is made who may be able to hear the case "de novo", or in a brand new way, without reviewing or using the other judge's opinion.

Hope that helps.

Edited by Dimitry Alexander Kaplun on 9/1/2010 at 5:34 AM EST
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 37621
Experience: I provide family and divorce law advice to my clients in my firm.
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