Kanawha family law judge accused of exceeding authority
Lawrence Smith Mar. 24, 2011, 3:33am
CHARLESTON – A Putnam County man is alleging a Kanawha family law judge overstepped his bounds when he granted custody of the man's daughter to his ex-girlfriend.
Donald Ray Carter II filed a writ of prohibition in Kanawha Circuit Court on March 17 challenging Kanawha Family Law Judge Mike Kelly's recent decision awarding shared custody to Carter's daughter, Alexys Paige Baldwin, to Brooke Ballard. In his writ, Carter alleges Kelly made a decision despite not only lacking jurisdiction to hear Ballard's petition, but also because she lacks grounds to file it.
According to the writ, Carter became aware he was Alexys' father following the results of paternity test on Nov. 17, 2004. Carter on Feb. 8, 2005, was ordered to pay $188 in monthly child support to Alexys' biological mother, Leslie Fraley.
The pair, who were never married, jointly petitioned the family court on May 11, 2006 for modification of child support. Though he would now pay Fraley $400 a month in child support, Carter would be given custody of Alexys with the stipulation Fraley could visit her twice a week.
The agreement also called for Alexys' last name to be changed to Carter, and Donald take responsibility for providing her insurance coverage. Records show Cabell Family Law Judge Patricia Keller approved the modification on June 26, 2006.
At the time, Fraley was residing in Huntington.
Two months of turmoil
Ballard on Jan. 18 filed a motion to intervene in the case. Records show Keller on Feb. 1 ordered the case transferred to Kanawha County on the grounds "[Ballard] resides in Kanawha County and the minor child resided with [Ballard] in Kanawha County at the time of the filing of this petition."
However, Carter disputes that. Since 2007, he says both he and Alexys have lived in Putnam County.
Records show at the time he was granted custody of Alexys, Carter had an address in Pratt in eastern Kanawha County. In his writ, he states that he and Ballard dated at one time, but does not specify for how long or if they lived together.
Regardless, after the case was transferred to Kanawha Family Court, it was assigned to Kelly. Ten days later, records show Kelly held a hearing were he, first, on Feb. 25 appointed a guardian ad litem, and later on March 8, issued an order requiring both Carter and Ballard to undergo a psychological evaluation.
The March 8 order also awarded "50/50 parenting time" to Ballard.
Kelly's actions led Carter to file two motions to continue, one on March 9, the day after Kelly's order awarding Ballard shared custody of Alexys, and March 16, the day before a final hearing in the case. Carter based his motions on the grounds that neither the psychologist's nor guardian ad litem's reports had yet been made available.
Both times, Kelly rebuffed him. That led to Carter filing his writ of prohibition.
Forum shopping, case morphing
In his writ, Carter alleges Kelly has enabled Ballard to engage in "forum shopping" by "trying to elbow her way in a parental relationship with his child in a Court which has no subject matter jurisdiction." If Ballard had a case to make for guardianship, Carter argues, it would have to be done in Putnam Family Court since Alexys lives with him in that, and not Kanawha's, jurisdiction.
Also, Carter says Ballard's case for guardianship is hindered on procedural grounds. Among other things, he says that any petition must be accompanied by not only a complaint, but also a civil case information sheet, and served on the other parties.
Carter avers that neither he nor Fraley were served with any summons containing a complaint stating Ballard's reasons for wanting guardianship of Alexys.
Furthermore, Carter says Ballard's case is hamstrung by state law. She made her initial petition citing provisions of the state's Domestic Relations statute pertaining to allocation of custodial responsibility.
However, Carter says that same provision clearly states that third parties do not have standing to initiate a proceeding in family court.
By allowing Ballard to intervene in a custodial case where she lacks standing, "morph[ing]" it into one for guardianship and then transferring it from Cabell to Kanawha County, Carter states the family court "has grossly exceeded its legitimate powers." Kelly has violated his constitutional rights by moving Ballard's petition forward rather than dismissing it.
Along with granting his writ, Carter asks the circuit court to place a stay on any further action on Ballard's petition. He is represented by Mark A. Swartz and Allyson H. Griffith with the Swartz Law Offices in St. Albans.
The case is assigned to Judge Paul M. Zakaib.
Kanawha Circuit Court case number 11-MISC-136