Complaint lodged against family law judge who testified to not following child custody law

By Lawrence Smith | Jun 27, 2008

CHARLESTON –- A Wood County children's advocacy group is wondering if a family law judge isn't following the law, why is he even in office?

On June 13, the Vienna-based Men and Women Against Discrimination filed a complaint with the state Judicial Investigation Commission against Kanawha Family Law Judge Mike Kelly. The complaint was filed in conjunction with the "Fatherless Day" rally the organization held at the state Capitol calling for reforms in the West Virginia family law system.

According to their complaint, MAWAD said Kelly gave testimony to the both the House of Delegates' and Senate's judiciary committees on Feb. 7 and 26, respectively. His testimony was directed toward several pieces of legislation MAWAD was backing, including a proposal to make 50/50 parenting the default position in child custody arrangements.

Accompanying Kelly during his testimony was Lisa Tackett, director of the Family Court Services for the state Supreme Court.

In its complaint, MAWAD quoted from current West Virginia law relating to child custody arrangements. Considered "shared parenting," current law states that unless parents reach a different agreement or if a parent is found to be unfit, "the court shall allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation…"

According to their complaint, in which they provided both audio and written transcripts, MAWAD said Kelly testified he rarely, if ever, follows the law in child custody agreements.

During his testimony before the House Judiciary Committee on Feb. 7, Kelly is quoted as saying, "I would say I look to that – I will honestly tell you, I'm probably not following the statute – I look to that zero percent of the time." Nearly three weeks later in his testimony to the Senate Judiciary Committee, Kelly said, "I think that could easily be changed to one of the factors you may look to, rather than saying it is the model, because frankly I don't use it as my model ..."

In concluding its complaint, MAWAD said if Kelly cannot follow the laws he swore to uphold, there's no reason he should remain in the bench.

"In consideration of the seriousness of Judge Kelly's admission in front of the body of legislators who enact laws (that judicial officials are under oath to uphold) that he knowingly chooses to follow a particular section of West Virginia code "zero" amount of time, it is imperative that the Judicial Investigation Commission send a clear and strong message that judicial tyranny will not be tolerated and immediately initiate the necessary procedures to remove Judge Kelly from the Eleventh Family Court Circuit judicial seat."

Tim Fittro, acting on behalf as MAWAD's executive director, signed the complaint.

Attempts to reach Kelly for a comment were unsuccessful as he did return repeated telephone calls.

After serving as a family law master, Kelly was elected family law judge in 2002. Following creation of the family court system through approval of a 2000 constitutional amendment, all family court judges were elected to one six-year term in 2002 followed by eight-year terms starting this year.

Initially, Kanawha County had four family law judges. Last year, legislation was passed approving 10 new family judges statewide, including one to Kanawha County.

Kelly serves as judge for the 11th Circuit's 3rd Division.
A Democrat, Kelly is unopposed in November's general election. Though also unopposed in May's primary, Kelly received 19,561 votes, the highest of all ballots cast in the Kanawha family law primary.

Like all family law judges, Kelly earns an annual salary of $82,500.

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