IN THE FAMILY COURT
OF MARSHALL
COUNTY,
WEST VIRGINIA
IN RE: THE CHILD(REN) OF:
LEIGHANA KATHLEEN CUNNINGHAM
VS.
DANIEL WILLIAM BROWN
CIVIL ACTION NO.: 22-D-131
PETITION FOR FINDING OF ABANDONMENT AS DEFINED BY WEST VIRGINIA CODE, SECTION 48-22-102 AND 4822-306 AND CHANGE OF NAME
Now comes the Petitioner, Leighana Cunningham, by and through undersigned counsel and for her Petition states as follows:
1. petitioner, Leighana Cunningham, is the biological mother of the minor child, Daniel William Brown, Jr., born January 13, 202.
2. Respondent, Daniel William Brown is the biological father of the minor child aforementioned.
3. Petitioner has been a bona fide resident of Marshall County for a least one year.
4. Petitioner has been the custodial parent for the minor child since his birth in as much as Respondent has had substance abuse issues and has consistently not been a part of the child’s life. Furthermore, Respondent’s history as a victim of abuse himself contributed to his failure to connect with the minor child.
5. As a result of Petitioner’s Petition to Establish Custodial Responsibility and Parenting, this Court entered a Temporary Order dated March 1, 2023, and filed on or about December 6, 2023, which awarded Petitioner primary residential parent and/or custodial responsibility. Little parenting time was awarded to Respondent to wit: the 2nd weekend of each month from Friday at 5:00 p.m. until Sunday at 5:00 p.m. (The place of where the weekend falls within the month is determined by the Friday i.e., Friday the 31st is the fifth weekend.) as is more specifically provided in such plan.
6. the Court further designated Respondent to pay child support in the sum of $797.32 per month commencing March 1, 2023.
7. Respondent has failed to contact or visit the minor child since April 8, 2023, and has further failed to pay child support or take any action to seek any parenting time with the minor child.
8. It has been almost twelve (12) months since the entry of the Temporary Order in which Respondent was awarded parenting time but not made any contact with his child despite being notified of the ability to do so.
9. Furthermore, Respondent has failed to financially support his child being at least $9,567.84 behind in his child support obligation and having failed to pay any portion of medical support.
10. Petitioner has dutifully performed all the caretaking functions for the minor child and provided him with a stable environment since birth and his biological father has abandoned him since at least April 8, 2023.
11. In as much as Respondent has had no contact with the minor child for a period of at least six months, it is in the best interest of the child that a judicial finding of abandonment be made.
12. West Virginia Code Section 48-22-102 defines abandonment as follows:
“Abandonment” means any conduct by the birth mother, legal father, determined father, outsider father, unknown father or putative father that demonstrates a settled purposed to forego all duties and relinquish all parental claims to the child.
16. West Virginia Code, 48-22-306 defines conduct presumptively constituting abandonment as:
(a) Abandonment of a child over the age of six months shall be presumed when the birth parent:
(1) Fails to financially support the child within the means of the birth parent; and
(2) Fails to visit or otherwise communicaqte with the child when he or she knows where the child resides, is physicall and financially able to do so and is not prevented from doing so by the person or authorized agency having the care or custody of the child: Provided, that such failure to act continue s uninterruped for a period of six months immediately preceding the filing of the adoption petition.
17. Respondent has abandoned his child and Petitioner mother seeks a finding as such.
18. In addition, Petitioner seeks a change of name as reflected on the official birth certificate from “Daniel William Brown, Jr.: to John Benjamin Cunningham. The minor child has never used any part of the name on the birth certificate. The minor child has always been called “Benjamin” by his entire family. Furthermore, all daycare/schools have registered the minor child in school and used the name of “Benjamin” since he was approximately 2 years old. Petitioner never agreed to the name of “Daniel William Brown, Jr.” and that name is only relevant to an absent Father who has abandoned his minor child.
19. The name change is not for purposes of avoiding debt or creditors;
20. The petitioner seeking the name change is not a registered sex offender pursuant to any state or federal law;
21. The name change sought is not for purposes of avoiding any state or federal law regarding identity;
22. The name change sought is not for any improper or illegal purpose;
23. The petitioner is not a convicted felon in any jurisdiction;
24. The name change sought is not for any purpose of evading detection, identification or arrest by any local, state or federal law-enforcement agency; and
25. The name change sought is in good faith and not for purposes of evasion or for avoiding state or federal law.
26. Petitioner is not a convicted felon.
WHEREFORE, for the above stated reasons, Petitioner respectfully requests the following:
a) a judicial finding of abandonment;
b) a hearing regarding Petitioner’s request for change of name for her minor son; and
c) any other relief as the Court may deem necessary
Respectfully submitted,
Elgine Heceta McArdle, Esq. #6249
McArdle Law Office
2139 Market Street
Wheeling, W V 26003
(304) 232-0700
Facsimile
(304-214-1703)
elgine@mcardlelaw
office.com
CERTIFICATE OF
SERVICE
I, Elgine Heceta McArdle, do hereby certify that a copy of the foregoing Petition for Finding of Abandonment and Petition for Name Change was served upon the below listed party by electronic filing this 15th day of February, 2024.
Daniel W. Brown
207 Debbie Ann Drive
Wheeling, WV 26003
I, Elgine Heceta McArdle, do hereby certify that a copy of the foregoing Petition for Name Change shall also be published by Publication
Counsel for Petitioner
Elgine Heceta McArdle, Esq. #6249
McArdle Law Office
2139 Market Street
Wheeling, W V 26003
(304) 232-0700
Facsimile (304-214-1703)
elgine@mcardlelaw
office.com
VERIFICATION
STATE OF
WEST VIRGINIA
COUNTY OF OHIO, To-Wite:
I, Leighana Cunningham, Petitioner named in the foregoing document, being duly sworn, upon her oath, states that the facts and allegations therein contained are true, except so far as they are therein stated to be on information, and that so far as they are therein stated to be on information, she believe them to be true.
Leighana Cunningham
Taken, sworn to and subscribed before me the 1st day of February, 2024
Elgine Heceta McArdle
Notary Public, My Commission Expires May 10, 2027
Int. Feb 26, Mar 4, 11, 2024