Custody Order Entered After Missed Hearings and Disputed Service

Attorney Answer

If the papers were deliberately sent to an address he knew you had left, the October order may be void — and a void order is something you move to set aside, not merely something you argue about at your next hearing.

W. Va. R. Civ. P. 60(b) lets a court relieve a party from a final judgment or order for, among other reasons, "(1) mistake, inadvertence, surprise, excusable neglect, or unavoidable cause"; "(3) fraud, misrepresentation, or other misconduct of an adverse party"; "(4) the judgment is void"; or "(6) any other reason justifying relief." A judgment entered without proper service is void and falls under (b)(4) — and that ground is not subject to the one-year cap that applies to grounds (1), (2) and (3). A motion must still be made within a reasonable time. One honest caution: a private custody case between parents is heard in family court, which operates under its own Rules of Practice and Procedure, so the exact procedural vehicle for this relief should be confirmed with a lawyer who practices in that forum rather than assumed. The substantive ground is solid; the mechanics need local confirmation.

There is a second issue in your facts that may matter even more, and no one may have raised it with you. You moved out of state with your son when he was three, and you had custody at the time. Which state's courts could enter a custody order at all is governed by the Uniform Child Custody Jurisdiction and Enforcement Act, W. Va. Code ch. 48, art. 20. Under W. Va. Code § 48-20-201, a court has jurisdiction to make an initial custody determination if the state "is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement" and a parent still lives there — with alternative grounds based on significant connections and substantial evidence where no other state has home-state jurisdiction, or where a court that does have jurisdiction has declined in favor of a more appropriate forum. Physical presence of the child is not required. Exclusive continuing jurisdiction is addressed at W. Va. Code § 48-20-202. A court that lacks jurisdiction under this article cannot validly enter a custody order, so where your son had been living, and for how long, is a threshold question rather than a detail.

What you can do

1. Get the full court file — the petition, the return of service showing the address used, the notices, and the October order itself. The return of service is the document your whole argument rests on. 2. Assemble proof of where you actually lived and what he knew: lease or utility records for your real address, and any message in which he acknowledged it or sent things there. 3. Build a timeline of where your son physically lived, month by month, since you moved. That is what the home-state analysis under § 48-20-201 turns on. 4. Do not miss another hearing. Confirm the date, the platform, and the link with the clerk directly, and give the clerk your current address and phone number in writing. 5. Get a lawyer before the next hearing if at all possible. Ask specifically about a motion to set aside on the void-judgment ground and about the UCCJEA jurisdictional question. 6. Do not delay on the fraud and misconduct grounds. Relief under Rule 60(b)(1), (2) and (3) must be sought within one year of the judgment; only the void-judgment ground escapes that cap.