Thank you, Nancy. My apologies for the wait as I was typing out this question.
She must be served with the complaint. If she has not yet been, then she likely will be soon. The individual is supposed to be served with any complaint before the hearing. If she has not been, then technically what she can do is to file a Motion to Strike/Quash
and have the matter delayed until she is served properly. However, this is often counterproductive because (1) at best, XXXXX XXXXX then be reserved on the court steps, and (2) at worst, the Judge will state that she already knew of the complaint even without being served as she had filed a motion to strike/quash it for non-service.
Finally, of course she can simply not show up, but then he would get a default judgment and try to take the children. She would then have to file a motion to set aside the decision based on improper service, but by that time, he may already take the kids into custody...
So it is best to simply ANSWER and then show up. Please let me know if you need a sample copy of the Answer to such a complaint.
As to who has a better chance? This is hard to say, but know that the Judge will make a decision based on the following subjective factors:
(A) Stability of the child;
(B) Parental planning and agreement about the child’s custodial arrangements and upbringing;
(C) Continuity of existing parent-child attachments;
(D) Meaningful contact between a child and each parent;
(E) Caretaking relationships by adults who love the child, know how to provide for the child’s needs, and who place a high priority on doing so;
(F) Security from exposure to physical or emotional harm; and
(G) Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child’s care and control. (West Virginia Code - Sections: 48-9-102, 48-9-201, 48-11-201
The Court hates to reassign custody unless there is a real need to do so, if the current custodian has been a good parent, so unless he can show serious deficiency on her part, she is likely to maintain custody.
An attorney is recommended to insure that she has the best argument. If finances are an issue, I can recommend three resources. First, here is a list of all pro bono work in the state...http://www.abanet.org/legalservices/probono/directory/westvirginia.html
…and another list:http://www.lawhelp.org
Finally, you may call your local law school and see if they have a legal clinic place available. The legal clinic is a free service the school(s) provide to the community. While they are often overbooked, they have openings sometimes. Here is the list law schools in your state:http://www.hg.org/law-schools-west-virginia.asp
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