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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87229
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My daughter lived with a man for many years and has 3 children

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My daughter lived with a man for many years and has 3 children by him. They were not married but they separated in July of 2012. He was abusive towards her and she had a domestic violence case against him that was dropped months ago because she could not make the court hearing. She has had the 3 children with her until 2 weeks ago when the father realized that he had custody of one of the children and got law enforcement to go with him and took her away from my daughter. Now she has a hearing on Wednesday where he brought up contempt of court against her for the domestic violence case and she just found out today that the judge is hearing a petition that the father brought forth for custody of the other 2 children. She hasn't gotten any papers pertaining to the custody situation. Is this legal if she hasn't gotten anything? Also, what is the chance that he will get custody of the other 2 children?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. Note: there may be a slight delay between your follow ups and my replies.

I am sorry for your family's situation. Can you please tell me:

1) are both employed?
2) any history of drugs, alcohol, criminality?
3) stability of the household for both?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

The mother is not employed...not sure about the father but he was working for someone and getting paid under the table last year. My daughter had problem with drugs but has been clean for many years. My daughter had been the main care taken of the kids...the father was never around much even though they lived together. He is not married, and I think but not sure that his parents are keeping the one child that he just took from my daughter.

Expert:  Ely replied 1 year ago.
Thank you, Nancy. My apologies for the wait as I was typing out this question.

SERVICE
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

Best of luck.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating. My ultimate goal is your complete satisfaction.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87229
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 15 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Yes, could you send me the legal answer to the complaint. Thank you!

Expert:  Ely replied 1 year ago.

(ignore)

Expert:  Ely replied 1 year ago.
My pleasure. Keep in mind that this is only a template:

TITLE AND PARTIES (just copy of their filing)

RESPONDENT'S RESPONSE (centered)

NOW COMES Respondent, YOUR NAME, named Respondent in the above-entitled and numbered cause, and files this Response, and shows the Court:

GENERAL DENIAL
Respondent denies allegations in paragraph 1 of Petitioner’s pleading.

Respondent denies allegations in paragraph 2 of Petitioner’s pleading.

Respondent denies allegations in paragraph 3 of Petitioner’s pleading.

Respondent denies allegations in paragraph 4 of Petitioner’s pleading.

(etc)

Respondent denies each and every allegation of Petitioner's Complaint, and demands strict proof thereof as required by rules of evidence and procedure for the State of West Virginia.

Respondent contents that it is in the best interest of the children that the children remain with Respondent.

PRAYER
Respondent prays the Court, after notice and hearing or trial, enters judgment in favor of Respondent and awards her custody, awards Respondent the costs of court, attorney's fees, and such other and further relief as Respondent may be entitled to in law or in equity.

Respectfully submitted,
Your Signature
Your name


(NEW PAGE)

CERTIFICATE OF SERVICE (centered)

I certify that on (date filed) a true and correct copy of Respondent's Response was served to the opposing party.

Your Signature
Your name


This is very basic, and is meant AS INSPIRATION only so she should draft one herself, or, use a live attorney for best results.

Good luck!

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