I am trying to help out a friend here, so I may get some of the details wrong, but you will get the general idea.
One of my co-workers is married to a woman who is in a custody battle for her children from her previous marriage. They are aged 16,15, and 13. My friends live in Maryland, but the ex-husband lives with the kids in New Mexico.
It all started many years ago. She informed him that she would not be able to keep up her responsibility for the kids for a few months while she attended the Police Academy in the city where she lived. He agreed to take the kids for this defined period, but nothing was written down. When the Police Academy started, he promptly filed an amendment to the divorce decree to get 100% custody due to abandonment. He then left the state(Virginia) and moved to New Mexico. He then filed for child support based on her Police Academy salary, which he was also granted. Thing is, as soon as she heard about it, she quit the Academy, and has been basically unemployed (taking nursing classes) ever since.
She finally got her day in court this year. My co-worker and his wife flew to New Mexico with reams of evidence showing that the ex was in breaches of multiple parts of the amended divorce decree, and proof that she was unemployed and should not be paying child support. The ex, who is an Air Force retiree with Law Enforcement experience, had one witness. The witness was the town's DA. Her lawyer did not cross examine the witness or the ex. They lost the case.
Here is where it gets bonkers. The lawyer refused to answer any phone calls from my friends. She failed to file their appeal in time, so now they have no more recourse to appeal. She did not inform them that another hearing was scheduled, and she did not attend that hearing, where the judge ordered my friends to pay over $100,000 in back child support.
What recourse do my friends have? I know that they can report the lawyer to the New Mexico bar, as well as sue the law firm for the lost money, but is there any way to get the case re-opened due to lawyer negligence? Is there any way to get this judge and DA investigated for this epic miscarriage of justice?
IANAL, but depending on the state laws, an appeal could filed in appellate court, stating that the former counsel failed to introduce pertinent facts relevant to the case.
The district attorney who appeared as a witness, unless he specifically used information that he could ONLY have known through his office, is technically not in conflict. From your description, the judge decided the matter based solely on the facts presented and the case law, so he really did nothing wrong.
Depending on the state laws and the time elapsed, they might be able to file a motion to set aside the judgment. YMMV.
And yeah, drop dime on that shyster’s ass with the state bar. The lawyer that I work for would have cross-exed the opposing party and the witness (DA or no DA) until they sang like Beverly Sills. She don’t have a picture of a shark on her business card for nothing…
I was divorced in Maryland in 1998 and both my ex and I still live in Maryland. Filing for “custody” in MD for a 16,15, and 13 year old is kind of a waste of time since (IIRC) the 15 and 16 year old can decide for themselves where they want to live re Mom or Dad and the 13 year only is only a year or two away from deciding this.
What’s the point of “custody” at this juncture? Teenagers are going to live with whom they want at this point.
Re the support issue I’m not sure how the law works in New Mexico but being “unemployed” in Maryland does not automatically relieve you of child support obligations. Men go to jail all the time over exactly this issue. If she’s assuming this as defense against being assessed back support there’s not much legal standing for this position regardless of how terrible her attorney was.
Plus if she was without the kids and has been (per your OP) continuously unemployed for many years from the time she quit the academy until now the court may not look at that as positive evidence that she was really looking for work in good faith.
Thanks for the input. I don’t understand the child support issue. He was an E-6 in the Air Force, and now works as a contractor. She was in the academy in Norfolk, VA, and would have made much less than him if she had completed the Academy. The whole mess started with a false accusation of abandonment, and he fled with the kids, with the court’s blessing due to the false accusations.
In New Mexico, the children do not have a choice. They all have input, and all said they want to live with Mom. The judge said (Hearsay) “Let’s see what we can do about that…” On the second day, the DA appears, gives a glowing recommendation to the scumbag, the lawyer doesn’t cross examine him, and the judge’s demeanor changes completely. I don’t get it.
This article on child custody lawsin New Mexico does not correspond with that “no choice” scenario re a child deciding where they want to live. It’s about like Maryland’s. Over the age of 14 a kid’s preferences about where they want to live are paramount unless the parent is manifestly unfit or the home environment unsuitable. I have a feeling you are not getting the whole story from this friend of yours.
How many is “many years ago”? Because she’s had obvious opportunities since then to get a part time job at least (several of my friends worked full time through nursing school) to offset her CS obligation. And since she was unemployed, why didn’t she use all her free non-school time to fight this case? And how was the VA court able to rule on abandonment if she quit the academy immediately?
I agree you’re (and likely her husband) getting a sanitized version.
Bobkitty: Many years ago is probably 8 years ago. She has worked part time jobs, but nothing that makes enough money to pay the CS amount awarded. She quit the Academy after getting notification of the judgment of the VA court.
astro: I may have the age of the youngest child wrong, he may be 14 now because I believe that was why they waited this long to go to court, so that the wishes of the kids would be paramount. Which is why I was asking about investigating the court, since all three kids said that they wanted to be with Mom…
Everyone: Once again, thanks for the answers. I am sure that I am not getting 100% of the story, but I just thought that I would try to help my friends out, and Dope is about the best repository of Good Advice[sup]tm[/sup] available on the Interwebs…
This makes it sound like she quit the academy to avoid paying child support. And she wants her kids back, but she doesn’t have a job. I am assuming she expects her ex to pay child support, and live off that.
[QUOTE=astro]
I have a feeling you are not getting the whole story from this friend of yours.
[/QUOTE]
And even the story we are getting doesn’t sound so good. I rather more than suspect that the details about lawyer malfeasance are even further from the truth.
Don’t try. You can’t help if she won’t be truthful, and she won’t be truthful.
No, she is currently married to my co-worker. They plan on not asking for CP when they get custody. My co-worker makes >$30.00/hr, and she is about to finish nursing school. The ex lives in a trailer in the New Mexico desert. My friends just bought a house in a Maryland suburb. A four bedroom house to accommodate all of the kids.
Family law is not my field, but if she was still living in the state (Virginia?) where the original divorce degree was entered then the New Mexico court would not have had jurisdiction to enter a support order. Maybe I’m missing something since you said she is now in Maryland.
This part sounds odd to me. The child support was determined while she was in the police academy. How could they determine child support based on a salary/job that she didn’t even have yet? Isn’t child support determined by a formula based on your income?
I have been in the exact same position with coworkers - long, sad custody battle story and I know I am not getting the full story. Unless they ask you a very specific question that you can bring to the Dope, your best response is to sympathize and not get too involved in the details. I realized after really trying to help and discussing the situation at length that I wasn’t getting enough accurate information to be of any real help, and all my coworker wanted was a friendly, sympathetic ear.
Co-worker is just the best word in the English language for our relationship. We were stationed together in the Navy for 7 years, and now that we are both retired, we have worked in the same office in our civilian jobs for over 3 years, so we are a lot closer than average co-workers, but friend isn’t exactly right either. Its one of those “I mess with you all day and have been doing it for 10 years, but don’t let anyone else ever mess with you, or they will face my wrath” kind of things.
Without more info, this isn’t necessarily any kind of malpractice. What did the witness testify? Was it just “yeah, I’ve known Bob for 5 years, he loves his kids and seems like a good dude”? There’s no point in cross-exam there. What are you going to ask–“wait, are you sure Bob’s really a good dude, or does he drown kittens for fun?”
This is potentially quite serious malpractice. If the lawyer was still actively representing your coworker, missing a deadline for appeal and not showing up for a hearing can easily get the lawyer disciplined or disbarred. Again, depends on the facts (e.g., did the lawyer communicate this to client beforehand, but client failed to provide instructions, etc.).
I agree with other posters that you are definitely not getting all the facts here. Your friend might be able to get another lawyer to clean up this mess, but she better have her facts straight and be calm and reasonable. It’s a big red flag to many lawyers when the first thing out of a client’s mouth is “my old lawyer is a piece of shit and screwed me over, can you fix it?”
The lawyer is probably not taking any more calls from your friend because there is nothing more that he or she can do for them, and they haven’t been retained to do anything further.
Has your friend showed you the retainer agreement for the appeal?
