Running Head: Family Law

Family Law
Jessica Kessler-Milam
Professor Juste Sanchez
Strayer University
March 11, 2012

Abstract This paper defines the area of law entitled family law; what it means and does along with a problem area in which I am here to provide a solution to. The problem area within family is that of the child custody and support; judges do not look out for the best interest of the children. My solution is that judges need to be more managed by the Supreme Court, rotated or moved in and out of the job every two years or removed from the position altogether.

Family Law
Family law is a very complex and diverse legal part of the entire legal field. Family law courts handle cases of divorce, annulment, separate maintenance, paternity, grandparent visitation, allocation of custodial parents (non-married parents), child support, domestic violence; anything involving family support proceedings except abuse and neglect cases. In West Virginia there are 45 judges for each 27 circuits, usually amounts to one judge per county unless it is a large county in which there will be 2-3 judges or a small county which one judge will be assigned for two counties (Courtswv, 2010).
Rules of civil procedure apply to all parties including attorneys and/or non-represented persons. All orders are public record but all pleadings, recordings, exhibits, transcripts or other documents contained in the court file will not be available for public inspection except by the involved parties, their attorney’s and/or Guardian Ad Litem’s in the case. (WVCode 49-7-1, 2012). Guardian Ad Litem’s are state appointed attorney’s to represent the children and their best interest (WV Code 37 - 1 - 3, 2012). The presiding judge can inspect and open any case file pending before them at any time they need to. The only way for a confidential case to be opened is if the subjects involved wave confidentiality in writing; they cannot be obtained by a subpoena only by a court order in compliance with statutory and case law requirements (Courtswv, 2010).
Anything and everything filed in family law cases are filed within the Circuit Clerk’s office in the county courthouse. Parties have the opportunity to hire an attorney to represent them or they can remain unrepresented and be referred to as “Pro se” (WV Code 8-27-10, 2012). Any represented party must have their attorney file a “Notice of Representation” to be able to gain any and all documents contained in the case (Courtswv, 2010).
In family court the commencement of actions is fairly simple you file whatever case you will be needing (divorce, child support, paternity, etc.) at the Circuit Clerk’s office or have your attorney does so if you hire one. Once the opposing party is served with the paperwork you filed he or she will have 20 days to file an answer within the same office. Then there comes the opportunity for a hearing or pleadings, discovery, financial disclosures, and any other pertinent information needed for the case to be heard before the judge (Courtswv, 2010).
Once you are before a judge the judge will have both parties present and attorneys if applicable and give both parties the chance to present their case as to why the judge should rule in one or the others favor. Depending on the type of case testimony of children over the age of 14 will be taken any child under that age usually has to go through the Guardian Ad Litem for their opinions to be voiced (WV Code 37 - 1 - 3). Children age 14 and over are considered in West Virginia to be able to have the freedom to choose which parent they want to live with (Courtswv, 2010).
With that being said it brings me to the area in which I want to discuss that needs improvement and that is Child Custody. I worked in the family court system for two and a half years and learned that the children are the ones who suffer when it comes to divorce, custody and support. The court system has lost its integrity for the children involved in their case load. The judges do not have the children’s best interest in mind when ordering visitation with one parent or the other. I can say this from personal experience both in my upbringing as a child and from what I see in my step-daughter. I grew up with my father never being in my life period, never called, never wrote, never paid his child support, nothing and the court system did nothing to him. To this day he owes my mother $35,000 or more in back child support and not to mention abandoning us right after I was born. My step-daughter is four years old and she has equal time with us and her mother and she does much better than I thought she would, the only problem is her mother does not have a stable home life she moves from place to place all the time and we never know where she really lives at. It really hurts the children when there is no stability in their life they can suffer from anxiety, speech issues, discipline issues and many other things. But you cannot get a Family court Judge to take a child away from a parent in West Virginia it just simply does not happen no matter how bad the parent is. Judges and parents need to quit thinking about themselves and thinking about the child and how their decisions and actions affect them directly. Judges seem to get in a rut and rule the same way for almost every case without even listening to evidence presented by the parties (Kessler-Milam, 2010).
This affects not only the families involved but it can affect the judges case load because if they keep ruling not in the favor of either party appeals, modifications, contempt, and even emergency petitions are going to be filed until something is done. This causes a bigger workload on the judge’s office staff and the Circuit Clerk’s office and they do not like that. In today’s society their workload is already overloaded due to the amount of people having children out of wedlock, divorces, adoptions, etc. This has been going on for far too long and something needs to be done.
Family law being as complex and diverse as it is has many internal and external stakeholders that can affect the way it is handled. Internal stakeholders are considered employees of the court system both in each county and the Supreme Court located in Charleston, West Virginia. External stakeholders are attorney’s and/or parties to the cases pending before the court. Not all parties can afford or hire an attorney so both are considered external depending on the situation that applies (Courtswv, 2011).
For each judge and/or county there are at a minimum two employees below them a secretary and case coordinator; each with different responsibilities and tasks. The secretary is responsible for scheduling, answer the phone, receiving the mail, certain orders from hearings and does not require any special degree just secretarial experience. The case coordinator is responsible for all Domestic Violence paperwork, Pro-Se (No attorney) divorce paperwork and meeting with parties on an individual basis as to whether or not they need to be recommended for mediation on coming to an agreement as to a parenting plan for their child(ren) and requires a Bachelor’s Degree in Management or some related field (State of WV, 2011).
Employees can affect the situation because they know exactly what goes on in the court room, the paperwork, having to speak with the parties as they come to court, call on the telephone, etc. Employees know the other employees from other counties and can compare how the court room is being conducted. Employees can influence each other from county to county and the higher up powers in the Supreme Court office. They have more power than they realize, they just choose not to use it 99% of the time (Kessler-Milam, 2008).
When I worked in the family court judges office the case manager was very good at her job and had a lot more influence on the external stakeholders than she realized. She could take them into agreement in no time and would keep the docket that day for the court moving quickly and efficiently. She could use her influence for good or bad by helping the parties without attorney’s voice their issues when the judge does not give them the chance or understand. The case coordinator is in the court room 98% of the time with the judge for any and all hearings. There is also a problem with that that the judge does not allow that and does not care she is just simply there to enforce the law and make sure it is being fair; and that is not wrong it is true (Kessler-Milam, 2008).
Attorneys and parties can affect the court system also when they are presenting their case before the judge. Attorneys are hired by the parties to the cases if they can afford to and feel like they need one to represent them, but if they do not hire one and choose to represent themselves are considered Pro Se. The attorney has been to law school and knows the law better than the average person and presents the case before the judge on behalf of his client. He can influence the judge because the judge has to have also been to law school and practiced law for at least five years so they can speak on an equivalency level so to speak. He can speak with the judge both in and outside the court room and tell him the situation and have more of an influence than a Pro Se party would on them. Attorneys can have a tremendous amount of positive influence on the court system but choose not to 98% of the time (State of WV & Kessler-Milam, 2011 & 2008).
Pro Se parties (non-attorney) can have some influence on the system if they present themselves and their cases well and by word of mouth. Word of mouth has a huge impact on the legal system, people talk and word spreads quickly. My current employer who is an attorney is a prime example of how fast and quickly word of mouth spreads he had hip replacement surgery a year ago and almost died because of complications from the surgery and the amount of people who would call in and check on him every day, send cards, flowers, etc. was amazing. I always thought when people talked people paid very little attention to it but I was wrong (Kessler-Milam, 2008).
The three stakeholders mentioned previously could hinder or help the problem and solution to the court system and doing justice by children because if the employees are forced and/or choose to keep quiet and do their jobs and go home like most do then nothing will ever change for them or anyone else. They have the least influence on the situation.
Attorneys are the ones who really could help or hinder the situation the most because they are usually known in their communities in which they practice law in and people listen when they talk because they think they know how the court system is ran. People respect their opinions and ideas because of their profession (State of WV, 2011).
Pro Se parties have a medium size influence on the situation because most people do not pay them in any mind because other people think they are just complaining about the court system due to the fact they do not want to pay child support or their husband or wife filed a domestic violence petition against them under false pretenses. Too many people have complained and talked trash and it reflects a negative view on their opinions (Kessler-Milam, 2008).
I would motivate people to buy into my solution of hiring attorneys at all costs, scrape, borrow, work overtime whatever it takes to hire a very good attorney when going to court in the family law system in West Virginia otherwise you will be wronged. Attorneys need to be more aggressive in fighting for their clients and quit doing what they can to get by in hopes of pleasing the client so they will not file a complaint against them or fire them. This would help attorneys and their business tremendously as well and not have to worry about their own bills getting paid.
Pro Se parties, attorney’s, judges, employees of the court, etc. do not realize how much easier it would make their jobs if the attorneys would be more aggressive and present their cases in a way the judge would know he or she is making the right decision in which parent the child is better off with and no just giving each one 50/50 when one is a unstable parent to the child. If later on the parent straightens up and there is proof that then let them have some more time with the child but do it in steps. For example supervised visits then one or two days with no supervision, and gradually move it to 50/50 if both parents are okay with that. Children do need both parents but sometimes when one or the other parents are not willing to straighten up and raise the child to the best of his or her ability then they do not need to be an influence to the child.
Family Law and information systems and technology can work very well together given the opportunity. Technology and computers can help lighten the load on a lot of the employees of the family law system. Employees can use the computers to type up orders, subpoenas, domestic violence petitions, child support formulas, and access the circuit clerk’s office records of all files relating to family law. The family court employees are given log in information to log onto the magistrate, circuit and family law systems of filing to where they are able to access all pleadings, notice of hearings, and paperwork filed in cases they are involved in.
Computers are becoming the way of the future and all records are kept on them. When typing orders and paperwork for the court everything is saved on the computer. The Child Support Formula uses both parties income on a monthly basis, day-care and if either parent has another child he or she supports (AllLaw.com, 2011).
Computers can help people locate other people through social networks like Facebook, Twitter, MySpace, etc. Facebook, yellowpages.com, Google maps, even the county clerks records are accessible online so if someone has their name on property it will show up. Social networks have proven to get divorce and child custody clients in trouble for information they put on there. It is not always hard evidence but some family law judges allow it to be used, it depends on the circumstances.
Computers can also help when finding out employer information because some people lie to the judges when they come to court about employment. Most employers keep records of payroll, addresses, phone numbers, etc on computer files. Most small business employers have a program they use to actually do their payroll on. Therefore the court can find out specific employer information needed for calculating child support formulas and mailing the parties information regarding their case.
West Virginia case law and West Virginia Code is available online as well and can help judges in deciding pending cases before them. They can look up case law on similar cases and find guidance as to how to rule on them (WVCode, 2011).
Information technology is useful when parties have to see a mediator when they cannot agree on a parenting plan for the child(ren). A mediator is someone who is appointed by the court to mediate between the two parties an agreement as to how the child custody will be carried out. They meet with both parties and discuss how each of them wishes the visitation and custody to be and try to accommodate both of their needs somewhere in the middle. The Mediators can get a real understanding of how each party really feels about the custody and visitation and why each party feels the way they do (Legalinformatics, 2010).
A lot of people going through family court cannot afford attorney’s and file proceedings on their own and can go online to the West Virginia Supreme Court page and search for any and all paperwork they will need and print them off and fill them out to turn into the Circuit Clerk’s office. This makes it easier for people who cannot afford an attorney and those parties who can agree to everything when it comes to divorce, child custody and child support (West Virginia, 2011).
When I worked in the family court judges officer all hearings were recorded onto a DVD, so nothing could be said about the court being unfair or unlawful. Everything was put into record and there was no doubt of what was said and what happened at each and every court hearing. This protects the judges, attorney’s (if applicable) and the parties (Kessler-Milam, 2010).
With all of that being said technology and information technology can help family court employees ease their case load and make wiser decisions when it comes to child custody. They can use the computer to research different case laws, codes, similar cases to see what other judges have ruled in them. This helps new family court judges due to their inexperience and uncertainty as to whether they feel certain they are cut out for the job. Computers can help keep better records of case filings, procedures, child support formulas, etc. Information technology can help the case load of family court judges because unless mediators can get some cases moving by getting parties to compromise and agree to parenting plans they are just going to sit on their docket and the higher up in the Supreme Court do not like it when cases go stale. The Supreme Court prefers cases to be finalized within a year of the date of filing (West Virginia Supreme Court, 2011). Both technology and information technology are an ever changing business and can help family court judges if they will take advantage of what is out there instead of getting in a bad habit of ruling the same day in and day out and not taking into account some of the background of cases. It would help solve a lot of complaint problems, contempt and modification problems and keep their case load much less overloaded.
According to the CWLA (Child Welfare League of America) in West Virginia there were 34,051 total referrals for child abuse and neglect. Of those, 22,249 reports were referred for investigation. Of those 22,249, 3,283 children were substantiated or indicated as abused or neglected; 56% were neglected, 30% were physically abused, and 4.9% were sexually abuse (CLWA, 2011).
According to the State Justice Institute of West Virginia family court judges in 2005 had a caseload of 12,307 divorce cases, 14,821 domestic violence cases, 9,816 modification cases, and lastly all other domestic cases totaled at 18,041; altogether totaling at 55,085 Courtswv, 2006).
This information only supports my theory that there is a problem with the caseload of family law and the way things are being carried out in and outside of the courtroom. Judges and their staff feel like they are overworked due to the overwhelming cases they hear on a daily basis. When I worked at the Family Law office on a Child Custody/Child Support day we would have a docket starting at 9:00a.m and ending at 4:30p.m with at least 20+ cases to be heard that day; this leaves very little time for evidence to be presented and heard appropriately and make a well-reasoned judgment (Kessler-Milam, 2008).
All of the information I have read online, researched and collected from my experience working at the family law office have only further supported the fact that children suffer from the overloading dockets of the family court judges. The statistics in the first paragraph alone proves children are being neglected, abused and forgotten by parents and judges both. Judges have the last say when it comes to parenting time with the child, but after that it is the parents who need to take responsibility and raise the children appropriately. However if they do not the judge needs to realize there is a problem and take action on the child’s behalf before it comes to the level of abuse, neglect, harm or even death of a child.
My solution would be a good house cleaning of the judges and their staff and get people who have been in there too long out. When someone is in a position for a long period of time they tend to get bored and do not think about anything but getting through the day. When someone gets in that kind of mind set they do not need to be making decisions that affect people’s lives. People expect judges to be fair and orderly when deciding their case outcomes and if they do not get that they are not going to be satisfied and complaints will be filed.
Another solution is the higher ups above the judges are usually clueless as to what really goes in the day to day offices of the judges and should become more involved in the judges case loads and offer them help or assistance in some way. They should make monthly visits to their offices and observe the amount of work they do and find solutions to help them and the people involved in the case loads.
I know neither of my solutions offered will ever happen because in this world people are always too busy to care about anyone but themselves. The judges are not there to care about the people anymore they are there to collect their pay check and go home. I do not think there will ever be a fair solution to this problem because no one thinks there is a problem. They ignore people’s complaints and do not have time to deal with it. It is too busy of a world for anything to change.
To make sure the judges are doing their jobs of looking out for what is best for the children I would conduct surveys monthly of litigants who have been in front of the judges and see what they say and if they still receive complaints on them. I would make it a mandatory rule that if a judge receives three or more complaints a month they need to be brought in for review and counseling so that they are aware that there is a problem and they are taking it very serious. Make sure the judges know there will consequences if they do not comply with the rules set before them if not they will be removed from the position.

References
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