CHARLESTON – Ninety dollars a month in child support doesn't sound like much. Unless, perhaps, another man fathered the child.

In a case pending at the West Virginia Supreme Court of Appeals, a man seeks relief from an order to support a daughter his former wife conceived by someone else.

The mother gave birth two months after her marriage, at age 16, in 1998.

Her husband, eight years older, soon learned the truth but for more than a year held himself out as the father.

The wife filed a divorce petition in 2000 but did not follow through.

The husband filed a divorce petition in 2003, and Wood County Magistrate Annette Fantasia granted it in 2005.

Fantasia adopted an oral recommendation for support from guardian ad litem Joseph Albright Jr. of Parkersburg, but Albright never produced a report on paper.

Albright, son of the late Supreme Court Justice Joseph Albright, currently faces discipline for failure to act on court orders in a separate case.

Circuit Judge J. D. Beane affirmed Fantasia's order, finding that the alleged father was reportedly in jail.

Beane wrote that "the biological father is not present to support the child financially or have a relationship with the child on a consistent basis."

Michele Rusen of Parkersburg appealed for the former husband and wrote, "Is the putative father of the child in jail or not?"

She wrote that no one but her client ever tried to find the father.

For the mother, Catherine Adams of Legal Aid of West Virginia in Parkersburg pleaded for paternity as a form of punishment.

"This is a confused teenage girl who is pregnant after being with several men and marries an adult man she has dated since she was 13 years old," Adams wrote.

He waved a paternity test at her to ward off child support, she wrote.

"Just like many biological parents, it seems he no longer cared whether his child was well, comfortable and had the opportunities child support could provide," she wrote.

"He willingly relegated her care to the taxpaying public and whatever income her disabled mother could scrape together to get by," she wrote.

"Countless men enjoy a lifetime of love and loyalty from children they did not father biologically," she wrote. "The appellant squandered his opportunity."

At oral arguments Sept. 8, Justice Menis Ketchum said the guardian ad litem did nothing and the judge didn't consider eight factors he should have considered.

Chief Justice Brent Benjamin asked Rusen if a court should consider harm to the child first, and Rusen said the interest of the child is to know who her father is.

Ketchum told Adams the issue was whether the husband got a hearing and whether the guardian ad litem made a report.

Adams said, "I would have loved to have a written report from the guardian ad litem."

Ketchum said, "But why have a hearing without addressing the eight factors?"

Adams said she believed the hearing did address the factors.

Ketchum said, "I read the order and you are going to have to show me."

He said, "They ought to do what this court directs and they didn't do it."

The Justices took it under advisement.

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