CHARLESTON – A Cross Lanes woman is alleging a family law judge abused his authority by ordering her eviction from her home, and custody of her children reverted to her ex-husband after she sought medical treatment for her daughter.
Angela Basham on Feb. 27 filed a writ of prohibition against Family Law Judge Robert Montgomery in Kanawha Circuit Court. In her writ, Basham, asked that Judge James C. Stucky prohibit enforcement of Montgomery's Feb. 23 ex parte order granting temporary occupancy of her home, and custody of her three children to their father, George Basham, after she kept her daughter home from school for medical reasons.
According to the writ, Basham's daughter, Emily, was brought before Kanawha Magistrate Ward Harshbarger for a pre-emptive truancy hearing at Nitro High School on Feb. 9 "due to [her] absences during the 2011-12 school year." The hearing was held three days after Chief Circuit Judge Louis H. "Duke" Bloom announced Harshbarger would be replaced as the juvenile referee for comments he made about sexting on Jan. 27 to an assembly at nearby St. Albans High School.
A juvenile referee is one magistrate in each county designed to hear juvenile matters including truancy. Traci Caper-Strickland replaced Harshbarger in that role.
During the hearing, Harshbarger ordered Emily not miss another day of school "excused or unexcused, for the remainder of the year." Additionally, he instructed Genel Austin, the Kanawha County Board of Education's attendance supervisor, to notify the court if Emily was absent again, and informed Emily she would be removed from Basham's home if she was.
According to the writ, Basham kept Emily from school Tuesday, Feb. 21 and Wednesday, Feb. 22 due to an unspecified "recurrent medical condition." On Thursday, Feb. 23, Rena Seidler, the court-appointed guardian ad litem, moved for an emergency change of custody fearing Angela's violation of Harshbarger's order would make Emily a ward of the state.
In her motion, Seidler reported Emily was absent from school not only on Feb. 21 and 22, but also Monday, Feb. 20. No classes were held that day in observance of President's Day, a federal holiday.
Though Angela was able to provide a note from Emily's doctor as to the reason for the absences, Montgomery on Feb. 23 granted Seidler's motion, and ordered her to vacate her home on Brier Road so that George, who lived on Brannon Street in East Bank, could move in, and assume custody of Emily and their two other children. According to the writ, Angela was forced to move out on only 30 minutes notice.
On Friday, Feb. 24, Angela's co-counsel, Brian R. Swiger, attempted to reach Montgomery, unsuccessfully, as his office. The following Monday, Swiger attempted to schedule a motion for reconsideration.
Because of his "extraordinarily congested" docket, Montgomery's secretary informed Swiger a ruling on his motion might not be available for up to 20 days. Nevertheless, the writ states a hearing was scheduled for March 12.
Until then, Basham asked Stucky to grant her writ so she could return to her home as Montgomery's order left her temporarily homeless. Also, she asked that the writ also prohibit Austin from taking any more actions related to Harshbarger's order.
Records show, Stucky held a hearing on the writ on Feb. 29. Earlier that day, Montgomery filed a response in which he said, among other things, Swiger, and Basham's other attorneys, Jonathan P. Floyd and Julia Shalhoup, filed the writ prematurely as he instructed his office to give them the options of for a motion for reconsideration in the form of "an evidentiary hearing, a telephonic hearing or a ruling without the necessity of a hearing."
As of presstime, Stucky had yet to issue a ruling.
Kanawha Circuit Court case number 11-MISC-124