What rights does a father have after he has voluntarily relinquished parental rights to a child, years after the fact?
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What rights does a father have after he has voluntarily relinquished parental rights to a child, years after the fact?
I have been searching rights to a child after informed relinquishment of parental rights and duties. I have been unable to find anything in the state of West Virginia, that adresses the topic separate from relinquishment for adoption purposes. Is there a distinguishment of the two, on either the State or Federal level?
Quote:
Originally Posted by wvmomma
There is considerable case law but the decision is based on the various circumstances. Do you have a specific situation? Otherwise the question is almost too broad to answer.
What are you looking to find out?
(I trust this is not homework - ?)
You have posted the same question twice - should be combined.
This thread answers the questions I had about the other thread.
They are 2 separate questions. The first is what right does a father have to a child after giving informed consent in a Court of Law to voluntarily waive any and all parental rights, duties and visitation. The second is, is there a distinguishment between relinquishment of rights constituting abandonment ( as stated by the Judge during the hearing) and relinquishment for adoption. My daughter's father had never had a relationship with her, and at age 6 proposed to waive any and all parental rights, duties, and visitation, in exchange for me waiving child support. I agreed to it, and the Judge and Guardian-Ad-Litem felt that it was in her best interest. There was no one waiting to adopt my daughter. She is also disabled. She has an uncontrolled seizure disorder. I have literally been through Hell with my baby, trying to get diagnosis, treatment, and living with her disability. I have shouldered all the responsibility, work, and so forth her entire life. I am not complaining about it, at all. I am just glad that I could be with her through it. After 3 years her father took me to Court and gained custody of her, and filed for a restraining order against me. Based on her inability to attend school on a regular basis. He was awarded custody, and I have 2 weekends per month with my daughter now. He has still not been the one to care for my daughter, even having custody. It was first his wife, then his girl friend that "cares" for her needs. Her health is not addressed properly, nor is she happy. He refuses to inform me of anything that goes on with her, or to even let me speak to her on the phone. He has even kept her from our visitations. All of this has happened in front of the same Judge, and the Orders are prepared by his attorney, are not complete nor correct. This makes it impossible for me to have assistance from Law Enforcement or to even file for contempt in asserting my Parental Rights and Duties. Let alone my visitation. He has even relinquished rights to his older son for adoption. I am filing all this with a higher Court, and need answers to my questions. Is there a permanent relinquishment with out adoption? Can some one "accept back" their rights after "Legal abandonment"? Did the Judge afford him rights that he didn't have? They are very similar, but to me have a separate significance. Hopefully that makes sense, as it may just be my emotions speaking.
I don't know if he CAN reclaim his rights under WV law but it certainly appears that he HAS. Where is your Attorney during all of this? Incomplete/incorrect Orders are very easy to take back to Court because there is a transcript of the proceeding. That should be done.
I don't understand how/why you lost custody - if your child is being neglected or abused you must report it to your local Child Welfare Office and keep that child safe.
The Law as I find it is: " Even if it might be properly said that the natural father “relinquished” his rights and that those rights were “terminated,” it simply is not and never has been the law in West Virginia that a relinquishment or termination of parental rights completely severs the parent/child relationship. Despite the impressive string cite of authority from other jurisdictions that the majority relies upon to support this proposition, numerous laws arising under both statutes and the common law prevent such a holding from being valid in this state. "
I think that's your answer - in WV, no, termination or relinquishment does not completely or permanently sever the child/parent relationship.
This is what we have said here in so many threads. Courts do not want to terminate a parent's rights. In the infrequent times that they do, its to clear the way for adoption or because the parent represents a danger to the child.
It sounds like the judge agreed to let the father abandon the children, but not permantly relinquish his rights as in an adoption. Why you would give up support, I can't fathom.
But it seems that the courts overturned the abandonment and allowed him not only to resume his rights but to get physical custody. I find this hard to understand as well, but I suspect he had a good lawyer and you didn't.
Your best bet without all the legal jargon is to foster a healthy relationship to the child's mother (or guardian) and if that's not possible begin writing to your child and stick to letting that child know you want to be involved.
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Originally Posted by l341972
Sorry, but this does not answer the question whether relinquishment is permanent - perhaps it's good advice but it's not legal advice.
Something that I have found at another site, was from a Missouri Court of Appeals Judge, states the following: The term "abandonment" and "neglect" are used in the disjunctive and therefore either ground, if supported by substantial evidence, if supported by substantial evidence, will support an adoption. The terms "neglect" and "abandonment" embody different, but not mutually exclusive concepts. Neglect focuses on physical deprivation or harm, and has been characterized as a "failure to preform the duty with wich the parent is charged by the law and conscience." "Neglect" is ultimately a question of an intent to forego "parental duties" wich includes both an obligation to provide financial support of a minor child, as well as an obligation to maintain meaningful contact with the child. "Abandonment" is defined as the voluntary and intentional relinquishment of custody of the child with the intent to never again claim the rights or duties of a parent, or, the intentional withholding by the parent of his or her care, love, protection and presence, without just cause or excuse. In both neglect and abandonment the issue turns on intent, wich generally inferred fact, determined by conduct within the statutory period, combined with the relevant conduct both before and after this period. This was referring to a case he had where a husband wanted to adopt the wife's child from a previous marriage, and the father had agreed to no visitation, and relinquishment of rights. From what I have found a parent has the right to object to an adoption after termination of rights, but I have found nothing about him being able to simply change his mind and take custody of a 9 yr old child he had "legally abandoned", to use the Judge's own words from a 2003 hearing. It seems to me that he was willing for some one else to adopt both of his children as long as he didn't have to pay child support, for either. Then the State stepped in and took him to Court for child support, not me, and she started receiving Disability payments. That is when he used her disability ( that he does not know how to properly care for, nor aknowledge the severity of) to gain custody. He did not seek child support from me until he found he makes too much money to receive any type of State or Federal benefits for her. That is also when he applied for a Restraining Order against me, and has repeatedly interfered with my Parental Rights. I was in Court on my own, only 1 time was my Attorney present, and that was after I had lost custody. His attorney again pulled a dirty trick in delaying paper work, so that I could not file an Appeal with Circuit Court. I am trying to find out what was "right" and what was not, so that I can file with the Supreme Court.
It might help if you read the thread before replying. The OP IS the mother. Apparently she lost custody to the father after he had previously relinquished his rights. What she really needs IS legal advice that would help her regain custody. And with this situation, she really needs an attorney to help.Quote:
Originally Posted by l341972
My daughter is fully aware of how much she is loved and still wanted by me. The little time we have is spent together doing things like cooking, the drive in, renting movies, playing games, visiting family and friends, going to church, bike rides, etc.. She is very depressed on the day that I have to return her to her father. She is constantly expressing her wish to live and remain with me, and not her father. I do not coax her to say that, it is how she feels. I do my best not to let her see how much the whole situation upsets me. Being the bright little girl she is, she knows that it does. I also refrain from being negative about him in front of her, but, he does not afford me the same curtesy. She tells me how much it hurts her to hear him talk bad about me. The whole situation is difficult at best.
You still haven't answered where your attorney is in all this. Because you NEED an attorney. What you claim happened appears to be counter to the best interests of the child and maybe even the law. So, I have to assume that the father got a good attorney to twist the law in his favor. Without an attorney to represent you, you are really swimming upstream.
My attorney now works for the State, and cannot represent any individual. I am now on unemployment, and can't afford another attorney at this time. Also my time limit for action is fast approaching. I would rather get something going without the help of an attorney, than to just simply let time run out. I have called Legal Aid, and they will not help me because I am not a victim of domestic violence nor a recipient of Welfare benefits. I am trying to find an attorney that is willing to work with me on the aspect of payment. As well as, I look at it as if, I can have information to present to an attorney, it will show that I am serious about taking action, and not wasting anyone's time on something frivolous.
You can't afford not to have an attorney. You need someone who know your local laws and the local court system.
Yes, I do need one. I also don't want to allow my time to act to expire while I am trying to attain representation. I hope that you can understand my plight. I feel damned if I do, and damned if I don't. But, like I said, I can't just sit around and wait.
Quote:
Originally Posted by wvmomma
You can't do anything without an Attorney including filing in a superior Court - I still don't know how "he" used your child's disability to obtain custody of her.
Don't mean to sound as harsh as this is going to sound but while the Missouri case is fascinating you are not in Missouri. I already gave you the WV law.
If someone pulled a "dirty trick" so you could not file an appeal, then report that person to the Bar Association.
I missed this. You applied for public assistance so the state went after him for support. So he turned around and went for custody. Doesn't quite explain how he got it, but it does make a little more sense now.Quote:
Originally Posted by wvmomma
I realize that what works there will not necessarily work here. I am trying to find some sort of Federal guideline. I am filing complaints against the attorneys, and Judge. I had written a letter to The Epilepsy Foundation looking for legal help for my daughter, and it was forwarded to the Governor's Office. I was then contacted by that office, and I am following the advice of that office, and the attorneys that I have spoken with, in filing. The way that I understand it, I need to have proof of the misconduct, supporting evidence, and all pertinent information, etc. when filing.
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Originally Posted by wvmomma
Right, same as any other legal proceeding.
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Originally Posted by ScottGem
I'm lost here - I don't get the connection between the State going after him for support and the OP losing custody - ?
I had received 1 check from the State, and the amount of $130. That was enough for them to pursue him for child support. After that went through, he filed for custody, stating that I was refusing to send my daughter to school. I had filed and was approved for home schooling. He was saying that time was absences from school, and there was no reason for her not to be in school full time. There were no truancy charges, no CPS investigations, nothing of the sort. My daughter had been in and out of the hospital, including Cleveland Clinic for testing, for further diagnosis and on how best to treat her condition. I can go on and on about all of that, but I am trying to be as concise as possible. If there are any specifics that you would like to know, please feel free to ask.Quote:
Originally Posted by ScottGem
Frankly this doesn't make sense. You seem to have a more than adequate case against him, yet you lost custody. So, either you had a horrible lawyer or no lawyer at all. Logically this should have gomne something like this:
His attorney: Your honor, the child's mother has refused to send my client's daughter to school.
Your attorney: Your honor, I have here an approved application from my client allowing her to home school her daughter. I also have affadavits from her doctors that state she is better off being home schooled at this time. In addition, the Cleveland School system has no truancy charges against my client, nor has CPS received any complaints or initiated any investigation of my client.
I can't imagine a judge ruling for the father in that instance. So either you or your attorney botched your case or you aren't telling us the whole story.
I did have a more than adequate case against him. I did not have a lawyer at the time. It did go somewhat like you said it should. I submitted the application and approval letter for home schooling, medical records, video evidence of her seizures with post ictal state and speech deficits. I also presented Doctor's slips to excuse and explaining her absences from school. The Judge denied the school slips stating he didn't see the relevancy. I don't think that he even read the evidence I presented. Partly because he made a decision that same afternoon. One would think he would be to busy with the rest of the testimony and questioning to have time to read all of the information I submitted. I know for a fact that it took longer to read the reports from the Cleveland Clinic regarding the physical and neurophycological test results. It was not a Cleveland school, it was the Cleveland Clinic Foundation Children's Epitoligy Unit. She was hospitalized there for about a week for testing, we also had to return for out patient testing. There was an Epilepsy conference held on my daughter regarding care and treatment options available for her disorder. Her father denies that she has seizures in front of him, and told the Judge that I have Munchausen Syndrome. I assure that I do not. Her condition is very well documented by various Doctors. I asked a lot of questions to her father, and her care was always deferred to his fiance'. He couldn't name her diagnosis, medications, allergies, safety precautions, birth date, Doctors, schools etc. He answered very few questions adequately; and I asked a lot (over 50). Not one time did he say something about caring for my daughter, nor even imply asmuch. He admitted to having never had a relationship with her, never taking part in her education, never taking part in her medical care, and on and on. It makes sense to no one that he was able to gain custody, yet it is a sad fact that he did. I hope that this helps you to understand why I am so determined to find the information needed to file my complains. Again, if you need more specifics, please ask. As there is a lot of information, and I am just addressing the bones of it.Quote:
Originally Posted by ScottGem
Judges often are prejudiced against litigants who do not use an attorney. I suspect that may be what happened here. How could you prepare a proper case without an attorney? So whatever proofs you had must be worthless.
So, again, you NEED an attorney to make sure your case is prepared properly. To make sure the judge pays attention to the evidence. You might even bring the judge up on charges.
That is what I am doing. I have to have all evidence to present with my complaint at filing. That is why I am trying to find this, and any other information to prove that he didn't follow guidelines already set forth, and his unethical behavior during the hearings. As well as the same for the attorneys involved. I am filing with the Bar association, and the Supreme Court Judiciary Discipline Committee.Quote:
Originally Posted by ScottGem
Quote:
Originally Posted by wvmomma
My concern - and this is not a criticism, it really isn't - is that you are too scattered with this right now.
You've got complaints against at least one Judge, at least one Attorney, you are trying to get your daughter back (if I recall correctly). The Judge ruled contrary to Law, the Order is incomplete and incorrect, your daughter was home schooled with approval but you lost custody because she wasn't being schooled, whatever else is going on.
It is going to look like you think the World is against you.
The World very well may be against you but I think you have to decide what is important and in what order and then handle matters in that order.
Judy is right here. Your primary focus should be overturning or reversing the judge's decision and regaining custody. After you have done that, you can pursue sactions against the judge.
I understand what both of you are saying. I am simply following the advise that I was given. How can I have the decision reversed when my time to file an appeal with the Circuit Court has passed? I don't feel that the world is against me. I know that the only thing against me is her father. Other things may be obstacles, but they are not against me, they are only a hindrance that I will overcome. I am very determined to do what is best for my daughter, no matter what it means to me. She is the most important thing in my life.Quote:
Originally Posted by ScottGem
What it all comes back to is getting an attorney who knows your local laws and system.
Quote:
Originally Posted by wvmomma
If your time to appeal has run you can't file an appeal - unless you can find material fault with something, anything.
You can't do this - only an Attorney can do this.
Good that your daughter is the most important thing in your life but you'd better get moving - every day the time to appeal has expired 24 hours longer!
I understand that. I am trying to find one that is willing to work with me on the financial end. I am trying to get something going before my time to file expires. It is also difficult to find an attorney that is willing to help a person to file a complaint against another attorney and judge.Quote:
Originally Posted by ScottGem
What exactly do you mean by " material fault"? The appeal time has expired. The hearing was in August, and I didn't receive the Court Order until November. A person only has 14 days to file an appeal with Circuit Court, after a final decision from Family Court. What is about to expire is my time to file complaints against the attorneys and judge. Which I can file without an attorney, although I would much rather have one than to go it alone.Quote:
Originally Posted by JudyKayTee
Quote:
Originally Posted by wvmomma
I thought you were attempting to overturn the order, file an appeal.
Yes, you can certainly file a complaint against the Attorneys and Judge and you might be better filing on your own, without an Attorney, without all the "legal language," as a citizen who has been wronged, without the expense of an Attorney.
Depending on the extent of the damages there are law firms that specialize in malpractice - legal, medical, otherwise.
How do you find one that deals with legal malpractice? Where do I start on that route? There are several instances where my Constitutional rights were violated. I have the Court made recordings of the hearings, and there are testimonies missing. It also contains several instances of the Judge's threatening, biased and unethical comments. I am trying to find all information both Federal and State to back up my statements in the complaints I am filing. I was told that it is best to for me to have all that info with the complaint, because once I file, nothing else can be added. I am also of the opinion that I may be the first that this type of thing has happened to in this Court, but, I will not allow it to happen to another family if at all possible. I can't stand the thought of another family being torn apart for the wants of another.
Quote:
Originally Posted by wvmomma
Where are you filing the complaint? If you file with the Bar Association you can continue to present evidence up until the hearing.
If you call your local Bar Association and ask for names of firms that handle malpractice they should provide the names to you.
Once again, if you are doing your own legal research and attempting to prepare legal documents or briefs I think you are going to have a problem.
It is a branch of the Supreme Court. I have the complaint form. It is a review and disiplanary board. They figure out what if anything was done wrong, and what is the proper disiplanary action. They can not reverse a decision made in another Court, only determine wrong doing, and discipline for the offence. I can petition for modification of custody in front of another Judge. In my area, there are only 2 Family Lawmasters. I am not sure if who you go before works alphabetically, or how, but if I were to file now, I would be going in front of the same Judge that I am filing against. I have been told that I " would have a better chance of regaining custody" if I were to file the complaints first. I also have all the notes, faxes, etc. from my attorney, before she had to resign from my case. I am trying to make sure that all my T's are crossed.
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