Kanawha Family Court Judge Jim Douglas (left) and Morgan Switzer
CHARLESTON – An appeals court has rebuked a Kanawha County family court judge’s handling of a custody and relocation case while also criticizing how the guardian ad litem conducted herself.
In a November 21 memorandum decision, the West Virginia Intermediate Court of Appeals vacated and reversed key orders that had stripped the father of nearly all contact with his two daughters and allowed their relocation to Ohio.
Timothy C. Dunlap and Rachelle Dunlap divorced in 2022 under a 50–50 parenting plan for their children, born in 2010 and 2016. Less than a year later, the father sought to modify custody, alleging the mother was exposing the children to a convicted felon, while the mother countered with accusations including interference with contact, unfounded CPS reports, mental instability and poor co‑parenting.
Kanawha Family Court Judge Jim Douglas appointed attorney Morgan M. Switzer as guardian ad litem and directed her to investigate both parents, assess the home environments and recommend a custodial allocation. Switzer recommended suspending the father’s parenting time pending a psychological exam and counseling, which the court adopted.
Douglas has filed pre-candidacy papers to run for the ICA in next spring’s judicial elections, and he has been critical of the lack of experience the current members of the ICA have regarding family court matters.
Over a series of hearings in the case, Douglas repeatedly suspended and limited the father’s parenting time, at one point allowing only short Saturday visits and later again suspending contact entirely. The ICA’s sharpest criticism targeted Douglas’ repeated use of “criminal contempt” against the father. The judges said Douglas did not have that power in this type of case.
After the October 2023 hearing, the father told Switzer in the courthouse hallway, “You just took my kids from me,” prompting Douglas later to find him in criminal contempt and sentence him to five days in jail and a $50 fine. Douglas suspended the jail term but said he would activate it if the father “looked crossways” at Switzer. Switzer testified the comment made her uncomfortable but was not a threat and did not make her feel in danger, and the record showed the exchange occurred outside the judge’s presence.
In March 2024, Douglas again invoked criminal contempt after the father filed, on his own, a “petition for contempt and judicial misconduct complaint” against Switzer, accusing her of bias, harassment and failing to investigate his allegations of parental alienation.
Douglas said the father was not capable of drafting the document, declared it “an abuse of process” and a “stain upon the honor of the court system.” Douglas demanded the father identify who had helped him. When the father insisted he wrote it himself while taking paralegal courses, Douglas said, “I don’t believe you” and found him in contempt.
The ICA said family courts have express statutory power only over civil contempt in domestic matters, and that any criminal contempt in this context must be tried in circuit court – and, if pursued as a criminal matter, before a jury – so every criminal‑contempt‑based sanction was reversed as outside Douglas’ authority.
At an October 10, 2023, hearing, Switzer testified about concerns including suspected domestic violence at the father’s home, the children arriving tired to school and “hostile” messages through the AppClose co‑parenting app. She also noted the father had not threatened the mother or the children with physical harm, but she recommended suspending the father’s parenting time pending a psychological evaluation and requiring anger management and domestic violence classes, recommendations Douglas adopted by suspending all contact and ordering an evaluation by psychologist Timothy Saar.
After subsequent hearings in December 2023 and January 2024 acknowledged the father’s compliance and progress, Douglas allowed limited six‑hour Saturday visits and forbade him from handling appointments or extracurricular activities even when the mother testified she needed help.
The ICA also said Douglas repeatedly acted sua sponte on contempt, used inflammatory language about the father’s pleadings and limited is ability to present witnesses. In one order, Douglas labeled a petition by the father as “egregious, false, slanderous (and) libelous interference with the functioning of this court,” also calling it an attempt to blackmail or push Switzer off the case.
Douglas did not, according to the ICA, address the preferences of the older child before ruling on the mother’s petition for relocation, and he did not consider the children’s feelings about relocating to Ohio.
In remanding the case to Douglas, the ICA says he is instructed to maximize the father’s parenting time in accordance with the parties’ distance and “must also consider the firm and reasonable preferences of the children.”
As for Switzer, the ICA criticized her actions as well. A former Kanawha County assistant prosecutor, Switzer also ran for county prosecutor in last year’s Republican primary.
The ICA noted emails she sent to the father and his attorney in which Switzer accused the father of retaliating against her personally and her election and for campaigning for Switzer’s opponent Debra Rusnak, who won the election.
During a September 17, 2024, hearing, Douglas asked Switzer if she had considered the father’s treatment of her when determining his parenting time. She said she had not done so “other than the fact that he is retaliatory in nature.”
Douglas also explained why he had kept Switzer on the case even after she had asked to be released from the case.
“I want everybody to know … the reason that I kept you on this is not to make you subject to punishment, but nobody – nobody – is going to intimidate me in my decision,” Douglas said during the hearing. “Nobody. And nobody will intimidate my guardian ad litem because that’s an extension of this court, and they’re appointed under the (inaudible) of this court, and I will not allow it to happen.”
The ICA also noted how it is “highly unusual” for a guardian ad litem to bring a contempt action that makes no allegations regarding the best interests of the children.
The father filed a federal lawsuit in July accusing Switzer of depriving him of his rights. Switzer filed a motion to dismiss days later, saying Dunlap failed to state a claim upon which the court can grant relief. She also says federal court lacks jurisdiction and that she has immunity.
In his federal lawsuit, Dunlap says Switzer used her position as guardian ad litem and as a political candidate to retaliate against him for exercising his right to free speech. He also says Switzer refused to recuse herself from his case despite “a severe conflict of interest” because he already was outspoken about Switzer’s previous criminal record and political campaign before she was appointed guardian in his case.
In her motion to dismiss the federal lawsuit, Switzer said Dunlap has harassed her for a year and a half.
“The plaintiff previously filed a civil action against the defendant guardian ad litem based upon substantially similar claims, which was dismissed with prejudice by the Honorable Judge Kenneth Ballard of the Kanawha County Circuit Court. The plaintiff has filed complaints to the Office of Disciplinary Counsel based upon substantially similar claims, which have been dismissed without required response from the defendant guardian ad litem.”
In its ruling, the ICA says the court record shows Dunlap and Switzer “had a contentious relationship through the litigation below, and it continues on appeal.”
“The GAL regularly asserted that father was ‘unstable’ and claimed that he was a risk to the children,” the ICA ruling states. “However, the GAL never defined or explained what she meant by ‘unstable’ or identified any alleged risk he posed.”
But it notes the father and mother shared equal custodial time until Switzer became involved in the case.
“It is evident that more than a ‘hint of a conflict of interest’ existed between the GAL and father that necessitated the appointment of a new GAL,” the ruling states. “The GAL Moved the family court to release her from the case during one of the status hearings, but the family court declined her motion. While the GAL never suggested to the court that she could not be impartial, the GAL cited ‘the relentless retaliation and personal and professional attacks’ and the ‘awful things’ she had been forced to endure at the hands of father and the negative impact it had had on her.
“We find that the family court abused its discretion by not allowing the GAL to withdraw from the case when she requested in or about March 2024, and by denying father’s requests to remove the GAL.”
The ICA also directs Douglas to enter orders removing Switzer as the guardian in the case and appoint another qualified attorney.
The ruling also reverses the October 8, 2024, parenting order and declares a January 22, 2025, order granting the mother’s petition for relocation be vacated. It orders Douglas to adopt a new parenting plan order consistent with the ICA decision.
The ICA decision is signed by Chief Judge Charles Lorensen and Judge Ryan White. Judge Dan Greear, who likely will seek re-election to the ICA and face Douglas, did not participate in the matter.
West Virginia Intermediate Court of Appeals case numbers 24-ICA-416 and 25-ICA-82 (U.S. District Court for the Southern District of West Virginia case number 2:25-cv-470)