West Virginia Record

Friday, February 28, 2020

Justices say minors have right to protect themselves

By Steve Korris | Jan 19, 2007



CHARLESTON – To the astonishment of the nation, a Missouri man took a mother's son home and kept him there without anyone's permission.

While the situation isn't as sordid as that Missouri case that recently made national headlines, a Maryland man took custody of a boy more than two years ago and did it with permission from two West Virginia judges.

The West Virginia Supreme Court of Appeals endorsed this situation, ruling Nov. 30 that two Jefferson County judges acted properly in sending a 15-year-old boy to Maryland to live with a friend of his sister.

Four of five Justices agreed that the passage of time rendered the case moot, but they delivered an opinion anyway.

They wanted everyone to understand that in West Virginia, children have the right to protect themselves when their parents aren't protecting them.

Justice Spike Maynard wrote in dissent that the decision undermines the authority of every parent in West Virginia, saying it allows strangers to gain custody and control of children.

"Now this man, whose motives I personally find to be suspect, has unsupervised custody of this child and has him off in another state," Maynard wrote.

The boy filed a domestic violence petition against his mother on New Year's Eve 2004 in Jefferson County Magistrate Court.

"My mom provoked me and came after me and choked me," the petition said. "She also punched me in the face."

His 27-year-old sister, a Maryland resident, accompanied him.

Magistrate Mary Paul Risser signed an emergency protective order and placed the boy in his sister's custody.

At a hearing 11 days later, Family Court Judge Sally Jackson recognized the sister as the boy's "next friend," with power to act on his behalf.

Attorney Robert Aitcheson of Charles Town represented the boy. The boy's mother represented herself.

The sister testified. So did the man from Maryland, a friend of the family.

Jackson issued a 180-day protective order and granted temporary custody to the sister.

The sister asked to place her brother in the physical custody of her Maryland friend. Jackson granted permission.

The boy's mother appealed to Jefferson Circuit Judge Thomas Steptoe. After a hearing he affirmed Jackson's order.

The mother petitioned family court to modify the order.

The son filed a contempt petition against his mother, claiming she made phone calls in violation of the order.

Jackson found the mother in contempt but modified the order so she could see her son as he desired.

The mother retained attorney Nancy Dalby of Charles Town. Dalby moved to dismiss the original petition or place the boy with an appropriate adult in West Virginia.

Jackson denied the motion.

On April 13, 2005, the mother filed a petition in circuit court claiming Jackson exceeded her powers by granting relief to the boy.

Steptoe denied the petition June 29, 2005.

The mother appealed to the Supreme Court of Appeals.

On July 7, 2005, with the order about to expire, the boy asked Jackson to grant temporary custody to the Maryland man until further order of the court.

Jackson granted it the next day. She wrote that she previously found the Maryland man fit to have custody.

Last June, the boy and his mother reached an agreement giving her custody for at least three days a week or otherwise as the two might agree.

For purposes of the Supreme Court of Appeals, the agreement rendered the case moot.

Still, the Justices can rule on a moot case to address questions of great public interest for future guidance of the bar and the public. They chose to do so.

Justice Larry Starcher wrote for the majority that a minor may file a petition for a domestic violence protective order.

He quoted West Virginia Code: "Children are often physically assaulted or witness violence against one of their parents or other family or household members, violence which too often ultimately results in death. These children may suffer deep and lasting emotional harm ..."

Maynard wrote in dissent that the child "ended up in the custody of an officious intermeddler with whom he has no family relationship."

He wrote that the man "pursued a 'mentor' relationship with him, whatever that is" and that the mother strongly felt that the relationship was inappropriate.

"The record shows that the family court placed the child in this man's custody without conducting any independent inquiry into his fitness or ability to provide a suitable home for a teenage boy," Maynard wrote.

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West Virginia Supreme Court of Appeals