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Judge Rules in Woman with Down Syndrome’s Favor in Guardianship Battle

Posted on September 15, 2013 in Family Law

USA Today recently reported on a Virginia custody battle involving a 29 year-old woman with Down syndrome. Margaret "Jenny" Hatch has been involved in the custody battle with her parents for a year, but a Newport News judge rejected the guardianship petition that Hatch’s parents had filed, which would have allowed them to keep her in a group home against her wishes.

KerryHatch had been working for five years at a thrift shop owned by Kelly Morris and Jim Talbert. In March 2012, Hatch was injured in a bicycle accident and the couple took her into their home to recover. Two and half months later, the couple say they allowed a caseworker with the Hampton-Newport News Community Services Board to take Hatch to a group home because they believed it was the only way she’d qualify for a Medicaid waiver. The waiver would entitle her to many in-home and community-based services. On Aug. 6, after the Medicaid waiver was approved, Hatch returned to live with Morris and Talbert.

Two days later, Hatch’s mother and step-father filed for guardianship. Hatch’s mother and stepfather requested guardianship, as well as the right to make decisions about her life, such as where she lives, what medical treatment she receives and who she can see. They were happy with her in a group home setting, which they believed offered the safest environment.

Legally, Hatch’s case came down to two questions: Was she an incapacitated adult in need of a guardian, and, if so, who would best serve in that role — her mother and stepfather, or Morris and Talbert?

The judge said he believed that Hatch, who has an IQ of about 50, needed a guardian to help her make decisions but that Virginia law required him "to give due deference to (Hatch&s) preferences." He appointed Morris and Talbert her temporary guardians for the next year, with the goal of ultimately helping her achieve more independence. They must also "support and foster" Hatch&s relationships with her biological family, including her mother.

Custody battles can be contentious and emotional for the parties involved. It’s important to have a knowledgeable Lombard family attorney protecting your rights and the rights of child(ren) involved.

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