FAMILY LAW

 

 CHAPTER 1 - THE FAMILY, THE LAW AND THE PARALEGAL

 

1. The marital relationship - primarily contractual

 

Marriage is a personal relationship between a man and a woman arising out of a civil contract to which the consent of the parties is essential.

 

The law is very uncomfortable in this area.  The family is traditionally a private area, which the law enters only when serious problems have arisen.

 

Marriage is a status, originally formed by contract.  But the state also has added obligations which the parties have never considered...such as what happens when the contract is breached or voided.

 

The parties do have the power to modify these state-imposed obligations by agreement -- as long as the modifications do not violate public policy.

 

2. The role of law in the marriage

 

The state sets rules as to the creation of the marriage, the mutual obligations of the parties, sexual relations, parenthood and the dissolution of the marriage.

 

The principle issues of family law are primarily concerned with divorce: child custody and support, spousal support and equitable distribution.

 

Another major area of family law includes the parent-child relationship: paternity, legitimacy, adoption, etc.

 

3. State power over domestic relations law

 

The validity of the marriage is determined by the state of celebration (unless it is against the public policy of the state determining its validity).

 

But the legal incidents of the marriage (including divorce, annulment, property division, etc.) are determined by the state in which at least one of the parties is domiciled and a resident.

 

4. Federal power over domestic relations law

 

Although domestic relations is primarily considered under state law, some federal issues have arisen.

 

Religious freedom - Reynolds, v. U.S., 1978, S.Ct. - held that the public interest preventing polygamy outweighed the interest of the Mormons in practicing that aspect of their religion.

 

Thus, while a state cannot infringe on a person=s freedom of religion, it can regulate the practice of that religion when it affects public policy.

 

Equal protection

 

Interracial marriages were illegal in Virginia until 1967 when Loving v. Loving, S. Ct. found that law unconstitutional and found that marriage was a fundamental right guaranteed under the equal protection clause.

 

The Supreme Court also struck down a Wisconsin statute which conditioned the issuance of a marriage license on compliance with prior support obligations.

Zablocki v. Redhail, 98 S.Ct. 673 (1978)

 

In Turner v. Safley, 107 S.Ct. 2254 (1987), the court struck down a penal statute which allowed a prisoner to marry >only for compelling reasons= (which were not specifically defined).  It found that such a statute had no reasonable relationship with legitimage penal objectives.

 

The Illinois Supreme Court held that a state cannot discriminate in the issuance of a marriage license on the basis of sex (ie. older age for males than females).  Phelps v. Bing, 316 N.E. 2d 775 (1975)

 

And the Colorado Supreme Court held that a statute which prohibited a marriage between adopted brothers and sisters (which Virginia still has) violated the equal protection clause since it did not further any legitimate state interest in family harmony.  Israel v. Allen, 577 P. 2d 762 (1978)

 

5. Marriage as a partnership

 

It truly is a partnershiparrangement, with both sides giving towards a common goal.  It is not spelled out, however, and serious problems arise as to how to end the relationship economically.

 

6. The law=s interest in protecting children

 

The law=s duty to protect children puts it in the middle of conflicting approaches, dealing with marriage strictly as a partnership and also watching out for the children (in loco parentis).

 

The problems associated with surrogate motherhood demonstrate this problem.

 

7-8. Family law and the adversarial process

 

Lawyers are supposed to look out for the best interests of their clients.  However, ethically, they are also supposed to work toward a fair determination of the situation.  This is not always practical.

 

Ex.: Should a lawyer advise his client that the other party would be a better parent for the children?

 

From the text (p. 10) - ..=divorce attorneys see good people at their worst.... Both the lawyer and the paralegal risk burnout from the emotional problems constantly being delivered to their doorstep.  Clients may be pitiable one day and exasperating the next.  Attorneys and paralegals must learn to deal with this problem by mixing sympathy with objectivity.=

 

9. The paralegal role in family law

 

The paralegal, under the attorney=s supervision, may perform any of the following tasks:

 

a) initial interview (building a rapport with the client)

b) preparation of pleadings

c) drafting motions and orders

d) investigation and discovery

e) trial management

f) post trial tasks and appeals

 

CHAPTER 2 - ETHICS AND FAMILY LAW   

 

10. Confidentiality

 

The attorney-client privilege protects the client and applies not only to attorneys but to the law office staff as well.

 

It can only be waived by the client.

 

11. Conflict of interest

 

An attorney is not prohibited (for some reason unknown to me) from representing both sides in a domestic case, but it is inadvisable. Even though both sides feel they have worked their problems out, it does not really always work out that way.

 

And even if the property and child interests are worked out, the agreement may later turn sour and invite court action.

 

Ex.: the amount of alimony awarded may be thought insufficient -- or the way one party is raising a child may cause concerns to the other party.

 

12. Attorney=s fees

 

Contingency fees are considered unethical in domestic relations cases.

 

Hourly rates are probably best -- but they encourage >busy work= and needless court hearings on questionable motions.

 

Courts still have the ower to charge one party=s attorney=s fees to the other.

 

Time records must be meticulously kept.

 

13. Communication with the other side

 

It is unethical to communicate directly with the opposing party if that party is represented by counsel.  You must go through the party=s attorney.

 

If the party calls you, it is probably all right to talk to him, but it is questionable.

 

If the party is not represented, it is best to communicate in writing so as to keep a paper trail that will show he was not taken advantage of.

 

14. Unauthorized practice of law

 

Merely providing >do-it-yourself- kits with no accompanying advice on a particular case is probably all right ----- but there is a huge danger that advice will be sought by the party about options raised by the kit.

 

CHAPTER 3 - FAMILY LAW IN HISTORICAL PERSPECTIVE

 

While we follow the English common law in relation to property rights, the concept of adoption and divorce were created here.

 

15. Remnants of the medieval approach to marriage

 

It was a patriarchal society.  Men had the legal authority.

 

Women could not own property or make contracts.  Marriages were arranged for political or economic reasons.

 

Remnants of the medieval scheme: heartbalm statutes; seduction, criminal conversation (the tort action for damages for adultery -- injury to the spouse), breach of promise to marry, alienation of affections (malicious interference with the marriage by a third person)-- were all based on the economic/family alliance view of marriage.

 

The idea that the engagement ring belongs to the wife still remains and seems to follow this concept.

 

The common law principle that a husband could not legally rape his wife also follows this idea.

 

16. Annulment and divorce -- based on different approaches

 

Terminating the marriage was a religious matter under common law.  And this was often profitable for the church (creating the opportunity for substantial abuse).

 

 

Eventually, the idea of annulment (based on a premarital problem) was linked to divorce (for problems which arose after the marriage.

 

The divorce concept follwed the pattern of tort law (fault) and defenses (such as recrimination) whereas annulment was more in the nature of breach of contract

(due to some impediment).

 

>No fault= came about as the idea that the partners were equal and free to choose for themselves, gained acceptance.

 

17. Treatment of children

 

The common law was harsh as to illegitimate children, probably to protect the financial and economic interests of the male children within the family.

 

This did not follow in America which legitimized children born of any kind of marriage (even illegal ones) and supported the idea of adoption.  20-31.1: >The issue of marriages prohibited by law, deemed null and void or dissolved by a court shall nevertheless be legitimate.=

 

The tender years doctrine (now gone) of the 19^th century further reduced the paternalistic approach, giving the mother more rights than the father.

 

Eventually, the best interests of the child replaced the property rights/paternalistic approach of early times.

 

18. Rights of women

 

At common law, married women could not sue or be sued in their own name, or own property.  There was one unit and the man spoke for the unit.

 

Married women=s property acts of the 19^th century granted women the same legal status as men.  They couild own land, sue and be sued, and contract and do business in their own name.

 

55-36 - gives women the rights taken at common law by the marriage relation.  It specifically precludes a husband from claiming loss of consorium based on the wife=s injuries and has eliminated the defense of interspousal tort immunity.

 

It permits the parties to sue each other and the wife to sue or be sued in her own name.  The husband is exempted from liability for his wife=s torts and neither is held liable for the debts of the other.

 

19. Devolution of separate property upon death

 

64.1-1 - When a spouse dies intestate, all property goes first to the surviving spouse, unless there are children of the deceased spouse (who are not also children of the surviving spouse) in which case all property goes to such children subject to the dower or curtesty rights of such surviving spouse.

 

If there is no surviving spouse, all the deceased=s children share equally.

 

20. Changing lifesyles

 

The idea of the family is changing.  Homosexual marriages, surrogacy, single person adoptions, artificial insemination, sex-change operations -- all these are in need of legal clarification.

 

CHAPTER 4 - CURRENT ISSUES IN FAMILLAW

 

21. Rights of homosexuals

 

Will homosexual marriages be accepted? Or will they be granted rights normally associated with marital rights?

 

Do the laws, originally written to deal with traditional marriages, fairly apply to homosexual marriages?

 

22. Child abuse

 

Very hard cases --- extremes show up at both ends -- innocent parents accused of child abuse years after the alleged incidents -- and social services ignoring legitimate allegations of child abuse.

23. Mediation

 

8.01-581.21-.23

 

Uses a neutral third party (selected by the parties) to assist the parties regarding alimony, property disposition, child custody and support.  The parties will normally take a proposed settlement back to their attorneys for modification or approval.

 

A lawyer cannot act as a mediator and lawyer at the same time.

 

A mediator is not a therapist and is not trying to save the marriage.

 

Mediation is much cheaper than litigation.

 

Mediators must avoid giving legal advice (except as to that which relates to the legality of the agreement).

 

The materials and communications are considered confidential and are not subject to compelled testimony.

 

Even the mediated agreement can be kept confidential if both parties agree in writing.

 

Mediation allows the parties to work out their problems themselves rather than standing by and watching their lawyers do battle.

 

Mediation programs are immune from civil suit unless bad faith, malice or wilful and wanton conduct can be shown.

 

Virginia has no licensing requirement for a person to be a mediator.

 

Fairfax requires that both parties be sent to a mediation service before the case goes to trial although there is no requirement that the parties agree to use a mediator.

 

24. Marriage counselling

 

Some jurisdictions give the courts power to order marriage counselling prior to a divorce action.

 

Sometimes marriage counselling can in fact help the parties prepare for a divorce if the marriage cannot stay together.  Divorce is an emotional trauma that few people are really ready to cope with.

 

CHAPTER 5 - ANNULMENT

 

25. Annulment defined

 

The process of making something invalid.  It denies the validity of the marriage (whereas divorce terminates a valid marriage).   It is condidered void

ab initio.

 

26. Annulment and divorce distinguished

 

Annulment is based on a problem which existed when the marriage was formed (such as one spouse still being married) whereas a divorce is based on a problem which arose after the marriage was formed (such as adultery).

 

Annulments are theoretically retroactive (although most states, including Virginia, do not distinguish them from divorces as to the legitimacy of children, right to alimony, etc.)

 

27. Dirty hands doctrine

 

The equitable doctrine that a party must come into a court of equity with clean hands in order to claim relief.

 

Does not always apply here as the law is interested in determining the true relationship between the parties.  So that if the marriage does not exist, it does not matter who attempts to establish that fact.

 

In Virginia, fraud, duress and mental incompetency (all voidable) are not governed by the dirty hands doctrine.  The rest of the voidable grounds are covered. And all the void grounds (except for non-age which appears to be a mistake) are not governed by the doctrine.

 

28. The Void-Voidable distinction

A void marriage never existed.  There is no legal need (or in realtiy no legal possibility) to annul it.  Such an annulment is in fact merely a statement of nullity.

 

A voidable marriage, on the other hand, is valid until annulled.

 

29. Beginning of the void list - invalid without a license and ceremony (#1)

 

Solemnization is required in Virginia.

 

But there is no longer a requirement for a blood test and there is no waiting period.

 

A marriage license can be issued by the clerk of the circuit court in any county or city (20-14) and is valid for 60 days.  This cannot be extended.

 

The clerk is required to disseminate information to the parties about birth control, genetic disorders, AIDS and family planning centers.(20-14.2)

 

30. Marriage evasion statutes

 

Virginia makes it a misdemeanor (Class 2) to be married and to leave Virginia with intent to marry elsewhere and return to Virginia and cohabit with your new >spouse.= (18.2-363)

 

31. Persons authorized to perform marriages

 

Includes ministers of established religions, clerks of court (and those appointed by the clerks), and Virginia judges (including retired judges). (20-25)

 

32. Marriage valid in spite of lack of authority in person performing the ceremony

 

Provided it is otherwise lawful and the parties were acting in good faith.

 

33. Proxy marriages

 

Not statutorily recognized in Virginia, although there is no apparent reason why such marriages are invalid.

 

34. Common law marriages (#2)

 

 

Really a part of #1 -- a marriage without a license or ceremony.  It is formed when two persons, legally capable of marrying, hold themselves out as husband and wife, and in fact intend to be married.

 

Some states require a certain period of time elapse before they become valid.

 

35. When Virginia will recognize a common law marriage

 

Virginia does not recognize such marriages formed within the state, but will recognize those formed elsewhere.

 

They are not against Virginia=s public policy -- as this is merely a procedural requirement.

 

36. Same sex marriages (#3)

 

Not only are illegal when formed in Virginia but also when formed elsewhere and brought here (20-45.2)

 

Transexual marriages (a marriage after one party has a sex-change operation) was found valid in New Jersey, but probably won=t be in Virginia.

 

37. Bigamous marriages (#4)

 

Bigamy is a Class 4 felony for a married person either to marry in Virginia or marry outside Virginia and thereafter cohabit with that person in Virgina (18.2-362)

 

Stewart c. Commonweatlh, 11 Va. App. 216 describes 20-38.1 as making it a misdemeanor to marry someone who is already married.

 

Bigamous marriages are void in Virginia.

 

38. Enoch Arden

 

64.1-105 - allows a person to rely on the presumption of death after 7 years have passed if there is no indication during that time that the person is alive.

 

This would amount to a defense to a criminal prosecution - but in Virginia, the second marriage would still be considered invalid.

 

39. Incestuous marriages (#5)

 

Incest is a crime in Virginia.  It is defined as sexual intercourse with someone with whom the law forbids you to marry.

 

Virginia prohibits a marriage between an ancestor and a descendant, an uncle and a niece (and aunt and nephew), between brother and sister (whole blood, half blood or adoption).

 

You are therefore allowed to marry your first cousin in Virginia.

 

But not your adopted brother or sister (which makes no logical sense and is probably unconstitutional).

 

Note that when one is adopted, he is still considered a blood relative to his originally family, and the prohibition still applies to them.

 

 

 

40. The aunt/nephew - uncle/niece limitation

 

Virginia prohibits an aunt or uncle from marrying a niece or nephew unless the original marriage between the aunt and uncle is considered void.

 

20-39 - In the cases mentioned in the preceding section (the one describing ancestors, siblings) in which the relationhsip is founded on a marriage, the prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or divorce, unless the divorce be for a cause which made the marriage originally unlawful or void.

 

The statute adds confusion by using the word >divorce= to describe a void marriage.

 

41. No limitation as to >steps=

Virginia does not prohibit >steps= from marrying.  A stepmother, etc. is a description, not a legal status.     

 

42. What about former in-laws?

 

You are allowed to marry your former brother or sister-in-law.  Scholars have reached this conclusion because >affinity= was not included in the original prohibition about siblings.

 

43. Nonage (#6)

 

Persons can marry without parental consent at age 18.

 

The earlier age differentiation (males - 21/ females - 18) was found unconsitutional as a violation of equal protection.

 

Persons can marry in Virginia at 16 with parental consent (requiring only one parent=s consent).

 

And if the female is pregnant (or was pregnant during the prior 9 months), either side can marry under 16, with parental consent.  20-48 requires the presentation of a doctor=s certificate to the clerk of court.

 

44. Limitation as to which party can bring the action in Virginia

 

In Virginia, a marriage in which either party is underage is void.  But only the underage party is allowed to bring the action for annulment.

 

As this makes no sense (if it is void, what difference does it make who brings it?), it is believed that the legislature really intended to make it voidable at the option of the underage party rather than void.

 

This in some ways is the opposite of the dirty hands doctrine, allowing only the guilty party (the underage one) to bring the action.

 

Some states allow ratification (and therefore validation) of an underage marriage after the underage party comes of age --- Virginia does not.

 

Suit to affirm a marriage

20-90 - Virginia allows either party to a marriage to bring an action to establish its validity.

 

 

Voidable marriages

 

45. Fraud (#1)

 

Must go to the essentials of the marriage.  The representation must be material and be relied upon.

 

Misrepresentations as to religious beliefs, the desire to have children, etc. do go to the heart of the marriage.  But not representations as to wealth.

 

In Virginia, misrepresentations as to the lack of a former marriage was not considered to go to the heart of the marriage.  And a wife=s representation that she had been married only once when in fact she had been married and divorced 5 times was not sufficient for annulment. Sanderson v. Sanderson, 212 Va. 537 (1972)

 

According to the opinion, this follows the majority view (that prior marital status does not go to the essentials of a marriage).

 

The text cites a New Hampshire case which found it voidable, however.

 

Entering into a marriage with the previously formed intent never to consummate it through sexual intercourse would be grounds fpr annulment.

Pretlow v. Pretlow, 177 Va. 524 (1941)

 

46. Duress (#2)

 

Must have been sufficient to take away a person=s free will.

 

Virginia=s definition: >that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind and will of a person of ordinary firmness.=

 

47. Incurable impotency (#4)

 

The inability to engage in sexual intercourse  -- not the same as sterility --

unknown to the other party.

 

48. Sham marriage (#5)

 

 

This is a marriage in which neither party intended it to be a marriage.  It was  in reality a joke.

 

Such a marriage should be called voidable rather than void.  -- The Virginia statute does not include it, but it is logical that if there is no intent to contract, then no contract comes into existence.

 

Query - suppose the parties only intend to be married to as to satisfy an immigration requirement or to legitimize a child?  Would that be called a sham?

 

49.  Mental incompetency (#5)

 

For some strange reason, Virginia calls this voidable rather than void, although it is arguable that there can be no meeting of the minds which is required in a contract when one of the parties is mentally incompetent.

 

Virginia prohibits the clerk of court from issuing a marriage license to a person who is insane.

 

A mentally retarded person may be able to enter into a valid marriage.

 

20-45.1 - All marriages solemnized when either of the parties lacked capacity to consent to the marriage at the time the marriage was solemnized, because of mental incapacity or infirmity, shall be void from the time they shall be so declared by a decree of divorce or nullity.

 

It is unclear in Virginia whether mental incapacity caused by drugs or alcohol would be included. Either position is arguable.

 

50. Annulment for conviction of a felony (#6)

 

It must have occurred prior to the marriage and the other party must have been unaware of it.

51. Annulment due to pregnancy or fatherhood (#7)

 

The female was pregnany by another man -- or if the male had impregnated another woman (and the child was born within 10 months of the marriage).

 

 

The innocent party must have been unaware of the situation at the time of the marriage.

 

52. Annulment due to prostitution (8)

 

Either party had been a prostitute prior to the marriage (unknown by the other party).

 

53. Consequences of an annulment

 

Virginia allows a court to decree as to any aspect of the marriage even though the marriage has been declared void.

 

And alimony, stopped due to remarriage (which is later voided), will not begin again.  But if the second marriage was void, a different result would likely occur.

 

Confidential communications, made during a voiddable marriage, are still considered privileged -- but not if made during a void marriage.

 

54. Statute of limitations as a defense to an annulment

 

In Virginia, an action to annul a voidable marriage may not be brought if 2 years have passed since the marriage was formed.

 

DIVORCE (not in text)

 

55. Virginia residency requirements

 

Virginia requires that either party have been both a resident and domicile of Virginia for at least 6 months prior to the filing of the action.

 

Military people, who have been here for 6 months, are presumed to have established both residency and domicile here.

 

56. Venue

 

The action may be brought:

 

 

a) where the parties last lived together as husand and wife (not where they last had sexual intercourse)

b) where the defendant resided

 

c) if the defendant lives out of state (or his whereabouts are unknown), then it may be brought where the complainant lives

 

57. In rem jurisdiction and ex parte divorce

 

Virginia can grant a divorce with only in rem jurisdiction.  This is known as an ex partedivorce.

 

It has power only over the status of the marriage and cannot award alimony, etc. with that kind of limited jurisdiction.

 

58. The divisible divorce doctrine

 

When a divorce is granted with only in rem jurisdiction, another court, later on, which has personal jurisdiction, may then rule on the traditional incidents of a divorce (alimony, property division, custody and child support).

 

In Virginia, under the divisible divorce doctrine, an action for property division must commence within 2 years of the receipt of notice of the foreign ex parte divorce.  This is not true if the action is for alimony.

 

59. Effect of improper venue

 

Cannot be claimed if neither party objected.  Improper venue is not jurisdictional.

 

60. Personal service of process

 

a) personal service - handing it to the respondent

b) substituted personal service

i) first, by leaving it at the home of the respondent with a family member (other than a sojourner or guest) of age 16 or older and by giving information of its import to the person accepting it      

ii) second, by taping it to the door of the respondent=s home

 

 

They must be attempted in the above order for substituted personal service.

 

Substituted personal service is just as valid as personal service - but personal service must be attempted first.

 

61. Service by publication

 

This is available only if the respondent is a non-resident or when due diligence has been exercised unsuccessfully in trying to locate where he lives. 20-104  

 

So if you know where he lives out of state, you may still serve him by publication.

 

An order of publication (which includes a basic initial pleading in the case) must be published once a week for 4 consecutive weeks in a newspaper designated by the court -- and it must be posted on the front door of the courthouse as well as being mailed to the last known address of the respondent (8.01-317)

 

Ten days must elapse after publication before depositions can be taken.

 

Service by publication will give the court only in rem jurisdiction.

 

Out-of-state personal service has the same effect as service by publication.

Out-of-state substituted personal service can be accomplished by leaving it with a family member over 16 who lives there, but not by taping it to the door.

 

62. Long-arm statutes

 

Virginia has a statute which gives it personal jurisdiction over out-of-state defendants. 8.01-328.1 - Personal jurisdiction may be exercised:

 

8. Having executed an agreement in Virginia which obligates a person to pay alimony or child support to a domiciliary of Virginia

 

Having been ordered to pay alimony or child support pursuant to a court order entered by a Virginia court which had personal jurisdiction over the respondent.

 

9. If the parties maintained their matrimonial domicile in Virginia when the separation and ground for divorce arose -- provided the complainant lives in Virginia.

 

Provided that service of process by made by sheriff or someone authorized to service process be made out of state.

 

GROUNDS FOR DIVORCE (not in text)

 

64. Grounds for divorce a vinculo matrimonii - need for clear and convincing evidence

 

All grounds for divorce and annulment must be established by clear and convincing evidence.  Between civil and criminal standard of proof.

 

And all such grounds must also be corroborated.

 

65. Adultery (#1)

 

Voluntary intercourse with someone other than your spouse (or by an unmarried person with a married person).

 

It can be established by circumstantial evidence alone (including inclination and opportunity).  Mere suspicious circumstances are not enough.

 

 

66. Felony conviction with penitentiary time (#2)

 

The respondent must actually enter the penitentiary and begin serving his sentence.

 

This differs from the felony conviction as a ground for annulment, which must have occurred prior to the marriage and does not require any particular sentence.

 

67. Cruelty + one year separation (#3)

 

For an absolute divorce, it requires that one year pass from the separation which follows the cruelty.

 

The cruelty which justifies a divorce is anything that tends to bodily harm and thus renders cohabitation unsafe, or that involves danger to life, limb or health.

 

Cruelty normally consists of successive acts of ill-treatment, if not personal injury.  However, a single act of cruelty may be sufficient if (i) it endangers life, (ii) it is done with an intent to do serious bodily harm, (iii) there is a reasonable apprehension of serious danger in the future, or (iv) it is apparent that the act is likely to be repeated.

 

Unruly tempers, lack of patience and uncongenial natures are not grounds for divorce.

 

In Virginia, condonation will wife out the ground -- but a repeat of an act of cruelty will revive the ealier acts.  The latest act will not be looked at in a vacuum.

 

The unreasonable denial of sexual intercourse has been found not to be an act of cruelty.

 

68. Desertion for one year (#4)

 

Leaving against the will of the other party with the intent to stay gone permanently.

 

One year must pass before it becomes a ground for an absolute divorce.  And there can be no cohabitation during that time.

 

A single act of intercourse will not amount to cohabitation.

 

In Virginia, proof of this ground need only by by a preponderance of the evidence (not clear and convincing).

 

It is a misdemeanor for a spouse to desert or wilfully neglect his or her spouse or child under 18 (or any age if unable to earn a living) if such person is in necessitous circumstances.

 

Such cases are held in JDR court. 20-67

 

69. Constructive desertion

 

One spouse makes life so miserable for the other that he or she is forced to leave.  The spouse who stays is the deserter.

 

69A. Leaving the marriage without provocation but still free from legal fault

 

In Virginia, one may leave without being a deserter on less provocation that would amount to a ground for divorce.  This is a change in the law, which used to require that, in order to be a constructive deserter, one must have committed at least enough to amount to cruelty.

 

 

During the pendency of a divorce

 

A person who leaves during the pendency of a divorce will not be considered a deserter.

 

70. Effect of an offer of reconciliation

 

Virginia does not require the desertee to offer to reconcile before claiming desrtion.   However, if the deserter does make a good faith offer to reconcile, and the other side refuses, he or she will be deemed the deserter.

 

71. Insanity during the separation

 

In Virginia, if a person deserts and goes insane during the desertion period, the time will continue to run in spite of the insanity.  The deserter will be deemed to wish to continue to live apart. 20-93

 

 

 

 

 

 

 

 

 

 

 

 

 

72. The >no fault= divorce (#5)

 

Living apart for one year when at least one of the two parties desires it.

 

This is not mutual separation.  Only one party need want it.  In fact, that one party can be running away from the other party and the marriage.

 

And the time does not run while the parties are in fact living apart until at least one of them desires to be living apart.  The law wants the parties to be contemplating an end to the marriage during the period of separation.

 

The time has been reduced to 6 months if the parties have entered into a separation or property settlement agreement and there are no minor children of the parties.  20-91

 

It is called >no fault= because the defense of recrimination is not available for this ground.  It does not mean to imply that neither party was at fault in causing the breakup.

 

Insanity during the separation will not stop the time from running.

 

 

DIVORCE A MENSA ET THORO

 

73. Grounds

 

Virginia allows a limited divorce from bed and board for cruelty and desertion (20-105).

 

74. Merger

 

This then can be merged into an absolute divorce one year after the original separation (not from the granting of the limited divorce) has occurred.  Either party may move for the merger.   But notice to the other side is required when the guilty party is asking for it -- or if the injured party is raising new matters (not merely when seeking a merger). 20-121

 

The time requirement has been reduced to six months if there is a property settlement agreement between the parties and there are no minor children of the parties.

 

The court must find that no reconciliation is possible (or in fact has taken place) and that the separation has continued without interruption and without cohabitation since the granting of the a mensa decree.

 

If a party seeks a divorce from bed and board -- and during the pendency of the action the statutory period for merger elapses --- the court can simply enter a decree for an absolute divorce instead.

 

75. Revocation of a limited divorce

 

Upon the application of both parties, the court which issued it can revoke the limited divorce -- 20-120 -- such a revocation would reinstate the marriage without the necessity of another ceremony . Stewart c. Commonwealth, 219 Va. 887 (1979)

 

76. A limited divorce not a procedural requirement - simply an option

 

There is no need for a party to obtain such a limited divorce, however.  He or she can simply wait the statutory time and then seek an absolute divorce.

 

77.  Effect of sexual intercourse outside the marriage on a limited divorce

Sexual intercourse outside the marriage during this separation period is still considered adultery.  And the other side could still countersue for an absolute divorce on that ground.

 

But the only time the other side could sue for an absolute divorce after the granting of a limited divorce is when the ground sued upon was not existing and known about at the time of the granting of the limited divorce.

 

A limited divorce will have the same effect as an absolute divorce as to the power of a defendant-spouse in a criminal case to block the testimony of the spouse against him.  -- They are not considered married and the defendant-spouse cannot block the testimony.  Stewart v. Commonwealth, 219 Va. 887 (1979)

 

20-116 - Property acquired after the granting of a limited divorce is considered separate property.

 

78. Separate maintenance

 

Virginia allows a suit for separate maintenance and also allows the court to order it when the grounds for a divorce or annulment fail (unless the marriage is deemed void).

 

Such a suit can be brought in the JDR court.  And there are no domicile or residency requirements for this action.

 

TRADITIONAL DEFENSES TO DIVORCE (not in text)

 

79. Collusion

 

An agreement between the parties to procure a divorce.

 

This would include the commission of an act with the consent of the other spouse in order to obtain the ground. Such a scenario would not work anyway since a ground has to be against the will of the other party.

 

This is seldom seen as the parties are the only ones who would normally speak up.

 

80. Recrimination

This is the defense in which the complainant is alleged to also have committed a fault ground (not necessarily the same one which is the ground of the divorce action).

 

Note that the respondent using this defense need not also countersue on that ground for a divorce -- it can be used merely as a defense to the divorce action.

 

81. Provocation

 

One side provokes the other into committing the offense.

 

This is really a form of the dirty hands doctrine.

 

The action must be in reasonable relation to the provocation.

 

82. Connivance

 

>One who has consented to misconduct is not injured by it.=

 

The complainant must have actively created an opportunity for the other to commit the marital offense.  Mere acquiescence is not enough.

 

This would include hiring another to seduce your spouse, and then claiming adultery.

 

83. Condonation

 

Forgiveness of a marital wrong.  In Virginia, cohabitation after knowledge

constitutes forgiveness.

 

       Generally, cohabitation requires actually living together…..not a single act of sexual intercourse (which in the past has been considered the same as cohabition).

 

However, by statute (20-94), a single act of intercourse (after knowledge) will constitute condonation of adultery by the other spouse.

CHAPTER 6 - ANTENUPTIAL CONTRACTS

 

84. Cannot >facilitate a divorce=

 

Virginia still considers void any part of a premarital agreement which >facilitates= a divorce.  Other states have gotten away from this idea.

 

But the fact is that such agreements do by their nature make a divorce less risky.

 

Courts originally saw them as contravening public policy as inconsistent with the sanctity of marriage and the state=s interest in preserving marriage and maintaining the financial security of divorced persons (from an Alaska case in the text).

 

>Rather than inducing divorce, such agreements simply acknowledge its ordinariness.  With divorce as likely an outcome of marriage as permanence, we see no logical or compelling reason why public policy should not allow two mature adults to handle their own financial affairs.=

 

85. What such agreements should contain

 

It should be very practical and be in accordance with the parties= situation.

 

It really adjusts what the law would enforce without it.  It can act like a will

(although not revocable like a will before death).  It can adjust the rules of property disposition at death or divorce.

 

86. Persons likely to want one

 

Often, second-timers want one to protect their estate for their own children.

 

Or a May-December marriage, also to protect the estate the rich partner.

 

It also makes sense if one partner is planning to work while the other seeks advanced training for a career.

 

87. The prenuptial agreement and the practitioner

 

The parties are not at arms-length.  They are emotionally involved.  Courts therefore look for overall fairness -- or at least demand a complete disclosure of assets.

 

It may not be enforced for many years.  You must anticipate and predict completely different circumstances and an atmosphere in which the parties are not communicating.

 

88. Fairness and conscionability

 

A contract is considered unconscionable if it was formed when the parties were not on equal ground -- one side had a distinct advantage over the other.

 

89. Uniform Premarital Agreement Act (20-147-154)

 

20-151 - A premarital agreement is unenforceable if:

 

i) it was not entered into voluntarily, or

ii) it was unconscionable when executed

1) if the party was not given fair and reasonable disclosure of assets

2) and did not waive his right to receive such disclosure of assets

 

The issue of unconscionability is to be decided by the court as a matter of law.

 

Modification after marriage only if in writing (no consideration necessary)

Postnuptial agreements to follow the same rules

 

What it can include (20-150)

 

1) rights and obligations regarding property disposition upon separation, divorce, death or any other event

2) spousal support

3) the making of a will, trust, etc. to carry out the provisions of the agreement

4) the rights in the death benefit from a life insurance policy

5) any other matter not in violation of public policy

 

Provisions found to violate public policy

 

a) waiving a right to support if the marriage terminates

b) agreeing not to defend a future divorce action

c) agreeing to raise a child in a particular religion

d) agreeing to send a child to a particular school

 

Effect of divorce on premarital agreements

 

If the agreement deals only with areas of an ongoing marriage, it will terminate on death or divorce.

 

If the marriage itself is deemed to be void, a premarital agreement will be enforced only to the extent necessary to avoid an inequitable result - But if deals with how to handle property, support, etc., in the event of a divorce, it will continue in effect past the divorce.

 

90. Statute of frauds

 

Requires that they be in writing in order to be enforceable (20-149).

 

But a Virginia case suggests that an oral agreement which settles equitable distribution issues is valid.  Richardson v. Richardson, 10 Va. App. 391 (1990)

 

And in cases in which the equitable principle of estoppel applies, the requirement that it be in writing will not apply.  In T... v. T..., 216 Va. 867 (1976), a husband=s antenuptial agreement to treat his pregnant wife=s child by another man as his own, in reliance upon which she changed her position, acted to her detriment and substantially performed her obligations until her husband made her further performance impossible, estopped him from pleading the statute of frauds.  He then had an obligation under their oral agreement to continue supporting the child.

 

91. Gifts given in contemplation of marriage

 

If given during the courting stage, they are final.

 

But if conditioned on the marriage, in Virginia, the value of the gift is recoverable if the recipient breaks off the relationship or if it is a mutual break.

 

There is no recovery, however, if the person giving it breaks off the engagement.

CHAPTER 7 - POSTNUPTIAL AGREEMENTS

 

92. Postnuptial agreements

 

These are agreements formed after the marriage has taken place. They are an attempt to modify the agreement that the law itself has set out.

 

They include separation agreements and property settlement agreements (often combined).

 

93. Effect of reconciliation

 

It generally abrogates the parts of the agreement that have not as yet been fulfilled.

 

94. Legal effect of spousal support and property division provisions

 

In Virginia, the terms of any written agreement between the parties as to spousal support and property division cannot be modified by the court (unless fraud or duress is shown).

 

Any court order must follow the terms of the parties= agreement.

 

This rule does not apply to child custody or support.

 

If a court does adopt an agreement as part of its decree, it becomes a court order which is enforceable with contempt power.  If not, it is merely a civil contract which can be enforced in civil courts.

 

A court order (which does not adopt a previous agreement) can always be modified. 

 

They should be:

 

a) comprehensive

b) fair

c) accurate

 

95. Areas which should be included in such agreements

1) alimony

a) who pays and how much

b) method and frequency of payment

c) tax consequences

d) when it terminates

e) fluctuations with change in circumstances

f) modifiability

g) security for payment

 

2) child support

a) who pays and how much

b) tax consequences

c) when it terminates

`      d) college and emergency expenses

 

3) child custody

a) what type

b) visitation rights

 

4) health expenses

a) who pays

b) medical/dental

c) right to be consulted

 

5) life insurance

a) wife and children as beneficiaries

 

6) debts

a) who remains liable

b) who to remain jointly liable

c) credit cards

 

7) income tax returns

a) exemptions

b) who claims which child as a dependent

 

CHAPTER 8 - HUSBANDS AND WIVES AS PARTNERS

 

96. The duty of support - the doctrine of necessaries

There is now a mutual duty of support, not a unilateral one.

 

The doctrine of necessaries has been rejected in Virginia as gender-based.

This has been brought back by statute which applies equally to both parties, although not if the parties are permanently separated.

 

8.01-220.2 holds that each spouse is liable for the emergency medical treatment given to the other spouse.

 

97. Heartbalm statutes

 

Breach of promise to marry

Alienation of affection

Seduction

Criminal conversation (damages for adultery committed by someone with the plaintiff=s spouse)

 

All have been rejected in Virginia.

 

98. Reasons for rejecting such statutes

 

.Breach of promise: Rejected because: 1) courts should not be pushing             people into a marriage; 2) damages are hard to gauge; 3) damages are easily fabricated; 4) courts would be inundated with cases.

 

Historically, when an engagement was broken, it amounted to a rejection that rendered the woman less attractive to someone else.

 

But today the idea that she has lost something because of a broken engagement is nonexistent.

 

In an Iowa case (in the text), the appeals court gave the classical reasoning for eliminating heart balm statutes: AIn the last analysis, we think the action should be abolished because spousal love is not property which is subject to theft...Plaintiffs in such suits do not deserve to recover for the loss of injury to >property= which they do not and cannot own.=

 

99. Interspousal tort immunity

 

No longer a defense in Virginia.  It is not a defense to either intentional torts or negligence.

 

The arguments in support of interspousal tort immunity:

 

a) it preserves peace and harmony in the home

b) it prevents collusion

 

The arguments against interspousal tort immunity:

 

a) a personal injury action is no more likely to disrupt the family harmony than a contract action would

b) if one spouse is willing to bring such an action, there is already a lack of harmony

c) the presence of insurance means that any recovery would not be paid by the spouse

d) the possibility of collusion is present in all cases

 

 Zysk v. Zysk, 239 Va. 32 (1991) - Wife sued her husband for failing to tell her that he was HIV-positive when they had sex prior to their marriage.  Virginia found that since she participated in the unlawful act of fornication, she could not recover.

 

CHAPTER 9  - COHABITATION AND MARRIAGE ALTERNATIVES

 

100. Common law marriages

 

Discussed earlier (in relation to void marriages).

 

101. Putative marriages

 

This is a marriage that is invalid due to some impediment but is given some validity as a marriage for equitable reasons.

 

There must be a good faith belief by at least one of the parties that they are married.  There must also have been a ceremony.

 

Virginia recognizes such marriages.

 

A putative spouse will not wipe out the rights of another putative spouse or the legal spouse, but the court can apportion these rights as fairness demands.

 

When the putative spouse learns of the impediment, the putative status ends, but the rights during that period remain as established.

 

102. Presumption of marriage

 

There is a presumption that a valid marriage continues.  There is also a presumption that a second marriage is valid (and that the first one was properly terminated).  These are rebuttable presumptions.

 

103. Estoppel

 

This is an equitable principle which blocks a person from claiming a right due to prior actions which are inconsistent with that claim.

 

So a person cannot claim to be a surviving spouse of her first husband after entering into a second marriage.  From the text (p. 233): AGeorgia Mae, after having taken advantage of the >divorce= that Nathaniel told her he had bought, cannot now claim the benefits of a marriage which she herself has repudiated by her subsequent conduct.@ (She tried to claim a share of her first husband=s estate after his death -- he had told her he had bought a divorce, and she believed him, and remarried).

 

104. Cohabitation agreements

 

Virginia will not recognize such agreements.

 

California will recognize them to the extent that they are not based on sexual promises.

 

Courts have enforced them through equitable principles such as unjust enrichment and estoppel.

 

MARRIAGE AND THE CRIMINAL LAW (Not in text)

 

105. Conspiracy

 

At common law, a husband and wife were one and therefore could not conspire with one another.  This is no longer the case today.

 

106. Testimonial privilege

 

In the federal system, a spouse may not be compelled to testify and may not be precluded from testifying.  It is left up to the spouse to decide.

 

The theory is that if the spouse wishes to testify, the marriage is pretty well finished anyway.

 

In Virginia, in a criminal case, a defendant may block his or her spouse=s testimony.  This applies as long as they are in fact married (19.2-271.2).  Thus, a divorce or annulment removes the competence question.

 

This does not apply to:

 

a) a crime against the spouse

b) a crime against a child of either spouse

c) a crime involving the false use of the spouse=s name

d) a child abuse case (against any child)

 

In civil cases in Virginia, either spouse is considered competent to testify either for or against the other except as to privileged communications. 8.01-398

 

107. Confidential communications

 

These remain privileged even after a dissolution of the marriage as long as they were made during a valid marriage.

 

108. Rape

 

At common law, only a man could be guilty of rape and he could not rape his wife.  Virginia has made significant changes to the rape laws.

 

108A. - Marital rape

 

18.2-61 now includes spouses as potential victims of rape.  A major change in the law.

 

109. Statutory rape and carnal knowledge

 

By statute in Virginia, voluntary sexual assault with a victim under 13 is considered rape.

 

Note that now either sex can be guilty of rape.

 

And if a victim, between 13 and 15 consents to intercourse, it is considered carnal knowledge (an offense less serious than rape):

 

a) if the defendant is a juvenile within 3 years of the victim (fornication)

b) if the defendant is a juvenile more than 3 years older than the victim (Class VI felony)

c) if the defendant is an adult (Class IV felony)

 

110. Battered wife syndrome

 

A very close and interesting question.

 

The problem is the fact that the victim plans to kill the victim in anticipation of an expected battery, not an imminent one.  That makes the victim both the judge and jury before the fact.

 

In jurisdictions which do recognize it, there can be no reasonable way out of the situation.

 

Virginia does not recognize this defense.

 

Lorena Bobbitt relied on the defense of temporary insanity.

 

111. Family names

 

A woman takes on her husband=s surname only when she in fact begins to use it.  It does not automatically happen.

 

She can petition the court to change her name back -- and this requires only that there is no intent to defraud.

 

112. Equitable distribution (Va.) and community property

 

       Virginia follows the doctrine of equitable distribution, which means that the court divides up the marital property according to how much effort and expense each party has put into it. This is different from the approach that community property states follow, which is simply to divide up the property evenly.

 

20-107.3 - Upon granting an absolute divorce or annulment (or with a certified copy of a foreign divorce), the court shall determine title, ownership and value of all property (real and personal) and determine which is marital or separate

(or part-marital and part-separate).  The value shall be determined as of the date of the hearing on that issue (unless, for good cause shown, a different valuation date shall be used).

 

113. Dissipation doctrine

 

Responsibility for the intentional depletion of marital assets.

 

Booth v. Booth, 7 Va. App. 22 (1988) - Waste is the dissipation of marital funds in anticipation of divorce or separation for a purpose unrelated to the marriage and in derogation of the marital relationship at a time when the marriage is in jeopardy.

 

The use of funds for living expenses, medical bills and other necessities of life while the parties were separated, does not constitute waste.

 

Once the aggrieved spouse shows that marital funds were withdrawn and used after the breakdown of the marriage, the burden rests with the party charged with dissipation to show that the money was spent for a proper purpose.

 

114. Separate property

 

a) all property acquired by either party prior to the marriage

b) all property acquired during the marriage by bequest, devise or gift

c) all property acquired during the marriage in exchange for separate property

d) increase in value of separate property

e) income received from separate property

 

115. Marital property

 

a) all property titled in the names of both parties

b) income received from separate property -- or the increase in value of separate property -- that is attributable to the significant efforts of the other spouse.  The personal efforts of the spouse must be significant and result in substantial appreciation of the separate property -- and then only to the extent of the increase in value attributable to such contributions.

 

APersonal effort@ shall be deemed to be labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity applied to the separate property of either party.

 

c) that portion of pensions, retirement plans, etc. which were acquired during the marriage (note - but only when payable). - This can be ordered to be paid directly from the plan administrator -- but cannot exceed 50% of the marital share of the cash.

 

The legislature intended all pensions, including military, to be personal property subject to equitable distribution, provided that no part of any monetary award based upon the present value of pensions shall become effective until the pensioner begins to receive the benefits.  Sawyer v. Sawyer, 1 Va. App. 75 (1985)

 

NOTE: an IRA account is not considered a pension and can thus be distributed immediately. There is no requirement that one wait until retirement.

 

Virginia does not consider professional licenses as personal property but does consider in awarding alimony how much assistance the other spouse was in obtaining that license.

 

116. Effect of keeping marital property in one name only

 

The court shall have no authority to order the division or transfer of separate property or marital property which is not jointly owned.

 

The court does have the power to divide or transfer marital property in both names.  It can transfer a party=s interest in the marital property to the other party, permit either party to purchase the interest of the other, or order its sale (private or public).

After the amounts are settled, the court will grant a monetary award, payable in a lump sum or periodically to either party.

 

Factors to be considered in determining the division of marital property:

 

a) the contributions, both monetary and non-monetary, to the well-being of the family

b) the contributions of each party in the acquisition and care and maintenance of such marital property

c) the duration of the marriage

d) the ages and physical and mental condition of the parties

e) the circumstances and factors which contributed to the dissolution of the marriage

 

In Virginia,  the circumstances that lead to the dissolution of the marriage, but have no effect on the marital property or its value, are not relevant in determining a monetary award and need not be considered.

 

f) how and when specific items of such marital property were acquired

g) the debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities

h) the liquid and non-liquid character of all marital property

i) the tax consequences to each party

j) such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award

 

The court shall make this determination without regard to any award for child support or support and maintenance.

 

REMEMBER: When there has been a contract between the parties regarding property division, a court cannot equitably distribute property between the parties in manner that is inconsistent with that contract.  Parra v. Parra, 1 Va. App. 118 (1985)

 

Community property states - first identify separate property and then divide marital property equally.

 

CHAPTER 11 - SPOUSAL SUPPORT

 

117. Purpose of spousal support (alimony)

 

Now called support and maintenance in Virginia.

 

It is awarded less than in earlier times -- and often for a limited amount of time.

 

It is designed to help the party who was placed at a disadvantage during the marriage in an effort to help the marriage.  It is not intended to carry the recipient for life.  It has nothing to do with property division.

 

In Virginia, a court cannot order alimony to extend beyond the death of the giver or the death or remarriage of the recipient (unless the court is adopting an agreement of the parties).  20-109

 

Alimony can be: periodic, lump sum, permanent, temporary (pendente lite)

or rehabilitative.

 

118. Modification of support and maintenance

 

Can be modified for changes in circumstances of either party (unless the parties have already agreed) -- in other words, if the court set it, the court can modify it.

 

In Virginia, a person cannot intentionally reduce his earning capacity and then claim a change in circumstances. Payne v. Payne, 5 Va. App. 359

 

Example from a text - The former husband was charged with hiring a hit man to kill his wife.  His changed circumstances were that he paid a huge legal bill and was locked up.  This did not work as he did not have >clean hands.=

 

119. Pendente lite support

 

20-103 - Court can issue the following temporary orders:

a) to compel a spouse to pay for the support of the petitioning spouse which, if available, can include providing health care coverage for the petitioning spouse

b) to provide funds to enable the petitioning spouse to carry on the suit

c) to prevent either spouse from imposing any restraint on the personal liberty of the other spouse

d) to provide for the custody and support of the minor children of the parties

including health care coverage

e) for the exclusive use and possession of the family residence during the pendency of the suit

f) to preserve the estate of either spouse

g) to compel either spouse to give security to abide by a future court decree

h) to order the parties of a minor child to attend educational seminars on the effects of the separation or divorce on minor children, parenting responsibilities, options for conflict resolution, and financial responsibilities -- provided no fee in excess of $50.00 may be charged for participation in such program.

No statement or admission by a party in such seminar shall be admissible in evidence in any subsequent proceeding.

 

120. Taxation of support and maintenance

 

Support and maintenance is taxable to the recipient and therefore deductible by the giver -- whereas child support is not taxable to the recipient and therefore not deductible by the giver (who may be able to take the child as an exemption).

 

121. Determination of the amount of alimony

 

The amount is discretionary with the court (if the parties have not already agreed).  It is based on the financial need of one party and the ability to pay by the other.  Need is measured relative to the standard of living during the marriage.

 

Virginia still says that the standard of living during the marriage is the goal.

 

20-107.1 - Considerations in determining the amount of alimony to be awarded

 

1) the earning capacity, obligations, needs and financial resources of the parties, including but not limited to income from pensions, profit sharing or retirement plans

 

2) the education and training of the parties and the ability and opportunity of the parties to secure such education and training

 

 

3) the standard of living established during the marriage

 

4) the duration of the marriage

 

5) the age and physical and mental condition of the parties

 

6) the contributions, monetary and non-monetary, of each party to the well-being of the family

 

7) the property interests of the parties, both real and personal

 

8) the provisions made with regard to the marital property under 20-107.3

 

9) such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties

 

The court may consider the circumstances and factors which contributed to the dissolution of the marriage.

 

Payments under a judicial decree can be periodic, in a lump sum, or both.

 

When a marriage is declared to be void, there is no authority to award spousal support (or make an equitable distribution award).

 

122. Adultery as a bar to support and maintenance

 

Under the old rules, any ground for divorce existing against a spouse would act as a bar to the award of alimony.

 

This rule was repealed with one exception: adultery will still act as a bar to spousal support unless the court finds from clear and convincing evidence that a denial of spousal support would constitute a manifest injustice.

 

But when both spouses are guilty of adultery, the needy spouse may still request spousal support under >no fault grounds.= Surbey v. Surbey, 5 Va. App. 119 (1987)

Other fault grounds are no longer a bar to spousal support in Virginia.  However, they still may be considered in determining the amount to be awarded.

 

Escalator clauses

 

Because spousal awards must be determined in light of contemporary circumstances and then, if necessary, redetermined in light of new circumstances, a support order with an escalator clause premising future increases based on uncertain future circumstances is improper.  Jacobs v. Jacobs, 219 Va. 993 (1979)

In this case, the trial court ordered the husband to pay a monthly amount plus 25% of any income over $32,000.00 per year to his wife.  This was improper.

 

The trial court erred by ceasing support because the wife was to be awarded a master=s degree -- Although there may be an expectation that upon being awarded a master=s degree, the wife may obtain employment that will entitle the husband to seek relief, because the record does not assure that the wife will be so fortunate, the trial court erred when it ordered the wife=s right to spousal support to cease 12 months after the date of the decree.  Hauger v. Hauger (Va. App. 1995)

 

Life insurance

 

A court does not have the authority to order a divorced husband to contract for life insurance in a decree for spousal support. Lapidus v. Lapidus, 226 Va. 575 (1984)

 

123. Payments for the benefit of the other during the marriage

 

Cannot be reimbursed as alimony. 

 

Case #19 - Collier v. Collier, 2 Va. App. 125 - During the marriage, the wife satisfied various financial obligations for her husband by depleting a joint savings account which she maintained with her sister.  The trial court awarded her a lump sum which equaled what she had spent.  This was error.  Alimony cannot be used to do this.

 

124. Post-award misconduct

 

Once spousal support is granted, post-marital misconduct (such as illicit sexual relations) would not terminate spousal support obligations. Hollowell v.

Hollowell, 6 Va. App. 417 (1988)

 

But see 20-109 - Upon a showing of clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more, the court may decrease or terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would constitute a

 manifest injustice.

 

125. Silence in the final decree as to support and maintenance

 

Forecloses a person=s right to later ask for it.  A party can include an express reservation of the court=s right to later award it, however.

 

126. Effect of accepting a lesser amount

 

The silent acquiescence in accepting a lesser amount of suuport does not relieve the obligor under the court order. The arrearages will continue to mount.

Cass v. Lassiter, 2 Va. App 273

 

Bankruptcy does not discharge alimony or child support obligations.

 

127. Tax considerations

 

To be considered alimony for federal tax purposes (and therefore deductible by the payor), it must be payable in money (not services or other forms of property); the parties must live in separate residences; payments must terminate on the death of the recipient.

 

128. Modification of support and maintenance

 

Covered earlier (117).

 

CHAPTER 12 CHILD SUPPORT

 

129. Obligation of both parents

 

Both parents are obligated to support the children.

130. When child support to cease

 

Virginia requires that the parents support the child until 18 or emancipation

(by marriage - joining the military - leaving home and supporting himself).  It will continue beyond 18 if the child is handicapped -- and it will continue until age 19 if the child is still in high school and living at home.

 

131. Parties= agreement can extend the court=s power over child-support

 

A Virginia court cannot order a person to pay child support after the death of the giver or after the child has reached his majority unless it is adopting an agreement between the parties.

 

Virginia does not require stepparents to support their stepchildren.

 

But estoppel can require child support by stepparents if there was a representation to either the children or the natural parent that he or she would provide support -- if the representation was relied upon -- and there is a showing that the children will suffer future financial detriment as a result of this representation (such as being cut off from support by the natural parents).

 

Higher education

 

There is no requirement that a parent pay for a child=s higher education.

 

Child support and remarriage

 

Additional children by a second marriage do not lessen the obligation of a parent to the children of his first marriage.  Arguable.

 

Virginia cases

 

A Virginia court has held that the court can actually order a person to pay more in child support than he makes (in a situation where the person intentionally reduces his earning capacity).

 

Parillo v. Parillo, 1 Va. App. 226 (1985) - payments made directly to the children are gifts and cannot be credited to a father=s obligation to pay a support award.

 

Featherstone v. Brooks, 220 Va. 443 (1979) - The father was awarded custody of three children and this resulted in expenses in excess of his income.  The wife was properly ordered to pay child support because (l) she had contributed to the income of the household during the marriage; (2) she was paying a disproportionate share of the expenses of her current household; (3) she was making a substantial contribution to the maintenance of her sister=s family to whom she owed no legal duty of support.

 

132. Factors in determining the amount to be awarded

 

20-108.1 - Before any of the factors of this section can be considered, a trial court must first apply the child support guidelines to determine the presumptively correct amount.

 

When a judge varies from the guidelines, he must make written findings justifying the variance.

 

Factors to be considered:

 

1) actual monetary support for other children, other family members or former family members

2) Arrangements regarding custody of the children

3) imputed income to a party who is voluntarily unemployed or under-employed

4) Debts of either party arising during the marriage for the benefit of the child

5) Debts incurred for the production of income

6) Direct payments ordered by the court for health care coverage, maintaining life insurance coverage and education expenses

7) Extraordinary capital gains such as capital gains resulting from the sale of the marital abode

8) Age, physical and mental condition of the child or children, including extraordinary medical or dental expenses, and child care expenses

9) Independent financial resources of the child or children

10) Standard of living for the family established during the marriage

11) Earning capacity, obligations and needs, and financial resources of each parent

12) Education and training of the parties and the ability and opportunity of the parties to secure such education and training

13) Contributions, monetary and non-monetary, of each party to the well-being of the family

14) Provisions made with regard to the marital property

15) Tax consequences to the parties regarding claims for dependent children and child care expenses

16) A written agreement between the parties which includes the amount of child support

17) A pendente lite decree, which includes the amount of child support, agreed to by both parties

18) Such other factors, including tax consequences to each party, as are necessary to consider the equities for the parents and children

The court shall have the authority to order a party to provide health care coverage for the dependent children and also to maintain any existing life insurance policies on the life of either party and to designate a child or children of the parties as the beneficiary of all or a portion of such insurance for as long as the party has an obligation to support such child or children.

 

133. Child=s duty to support parents

 

A child is obligated to help support his parents after adequately providing for his own family, if the parent is destitute.

 

But not if there is substantial evidence that the child was deserted, neglected, abused or not supported by the parent prior to the emancipation (20-88).

 

134. Virginia - support obligation of the father (aged 14-18)

 

By statute, a minor child-father is not relieved of responsibility to support his child because of his age as long as he is at least 14 years old.

 

135. Court may order party to pay for support petition by the other party

 

Discretionary with the court.

 

136. Child support to include medical and child-care expenses

 

10-108.2 - The total amount includes extraordinary medical expenses and costs for health care coverage and work-related child care costs

 

By statute, extraordinary medical and dental expenses include uninsured expenses in excess of $100 for a single illness or condition, and shall include, but not be limited to eyeglasses, prescription medication, prostheses and mental health services.

 

137. Contract cannot limit the court=s power to modify child support

 

Although the court will consider the amount agreed upon by the parties.

Alexander v. Alexander, 12 Va. App. 18 (1991)

 

No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification.

20-108

 

Modification for change in circumstances - not when self-inflicted

 

Edwards v. Lowry, 232 Va. 110 (1986) - A divorced father whose income declined as a result of his own misconduct (he was discharged from his job for stealing from his employer) cannot rely on such a diminution in income as a ground for a reduction of judicially-order child support payments.

 

Nor is he entitled to a reduction because of increased expenses based primarily on remarriage and assumption of responsibility for a new family.

 

Carter v. Carter, 215 Va. 475 (1975) - A unitary provision for both spousal and child support which can be construed by the court to determine which part is child support so that the child support segment can be modified.

 

Newton v. Newton, 202 Va. 515 (1961) - Overpayments by an obligor cannot be set off against future payments.

 

Child support enforcement

 

Federal statutes are designed to assist the states in enforcing the collection of arrearages.  These include tax refund withholdings and automatic payroll deductions.    

 

138. Virginia=s child-support schedule

 

20-108.2 - Sets out the presumptive amount which the court begins with.

 

139. Private school tuition

 

In determining whether requiring a parent to pay for a child to transfer to a more expensive private school is justified, relevant factors include: the availability of satisfactory public schools, attendance at private school prior to the separation and divorce, special emotional or physical needs, religious training and family tradition.  Challoner v. Challoner (Va. App. 1997)

 

Other points

Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced.

 

Parental misconduct is not a deviation ground and cannot be the basis for punishing a parent.  The deviation must be in the best interests of the child.

 

Res judicata bars reconsideration of a support award where no material change in circumstances has occurred since the last modification hearing.

Hiner v. Hadeed, 15 Va. App. 575 (1993)

 

Shared custody modification

 

20-108.2 If one of the parties has visitation rights which exceed 110 days per year, the amount such party has to pay drops substantially due to his costs in providing the house and food, etc. for such a substantial period of time.

 

It is based on the number of days involved.

 

CHAPTER 13 - CHILD CUSTODY

 

One of the most vicious areas of the law.  Emotions run extremely high and it is very difficult for a judge to see the true picture.

 

The ultimate test is always Athe best interest of the child.@

 

140. Types of custody

 

Legal custody: the parent makes decisions regarding the welfare of the child.

 

Sole custody: one parent has custody while they other may have visitation rights

 

Divided or alternating custody: children live with one parent for part of the year and other parent for the remainder.  The parent who has the children make the day-to-day decisions, but it is not clear who would have final say on major questions.

 

Joint custody: both parents are responsible for the children and share the decision-making.

A practical problem with shared decision-making -- if one parent says no to something and the other says yes -- the one who says no has the power unless the child is willing to go against that parent.  So the veto power is the real power.

 

141. Goal: Best interests of the child

 

Has eliminated the >tender years presumption.=

 

The wishes of the child are considered (in Virginia, especially if the child is over 14).

 

142. Bottoms v. Bottoms, 249 Va. 410 (1995)

 

A highly publicized case in which the child=s maternal grandmother obtained custody over the wishes of the mother.

 

First the court had to find that the mother was unfit as a custodian.  The mother left the child with the grandmother for several days without means of contacting her, changed her residence, relied on others for support, spent welfare funds on a manicure, had a past history of a sexual relationship with men, spanked the child hard on two occasions and failed to promptly change his diaper, and sexually cohabited with a female partner in violation of a statute prohibiting consensual oral sexual conduct between any persons.

 

Among the factors to be weighed in determining unfitness are a parent=s misconduct that affects the child, neglect of the child, demonstrated unwillingness and inability to promote emotional and physical well-being of the child, the nature of the home environment and moral climate in which the child is to be raised (20-124.3)

 

Although a lesbian mother is not per se an unfit parent, conduct inherent in lesbianism is punishable as a Class 6 felony by statute prohibiting consensual oral sexual contact between any persons and, thus, that conduct is an important consideration in determining a parent=s unfitness for custody of the child.

 

Disturbing traits demonstrated by the two-year old child during a period of regimented visitation after his removal from her custody, such as his use of the words >shit= and >damn,= crying and screaming, and on one occasion, holding his breath when his mother arrived for visitation, and voluntarily standing in the corner as a form of discipline constituted proof that he had been harmed by conditions under which he lived with the mother and supported an award of custody to the grandmother as being in his best interests.

 

Living daily under conditions stemming from active lesbianism practiced in the home may impose a burden on the child by reason of social condemnation attached to such an arrangement which will inevitably afflict the child=s relationships with his peers and the community at large.

 

Parents the natural guardians

 

Case #17 - Ferris v. Underwood, 3 Va. App. 25 (1986) - In a child custody contest between the natural mother and the paternal grandmother, the burden of proof shall be placed on the grandmother to overcome the parental presumption to custody.

 

The mother had remarried, the marriage was stable, the new husband was willing to offer physical and financial support, and the court had issued guidelines designed to help the mother maintain the child=s relationship with the grandmother.

 

Case #18 - James v. James, 230 Va. 51 (1985) - Neither party was found to be unfit, but the trial court awarded custody of a divorced couple=s minor children to the children=s grandparents.  The commissioner had expressed concern about the hostility between the parents.  This was overturned on appeal -- the presumption favoring custody to the natural parents had not been overcome.

 

Rights of non-parents (third parties) to custody

 

In unusual circumstances (such as in Bottoms), a third party may have priority as to custody over a parent, especially when they have acted in loco parentis for some time -- and if it would be in the best interests of the child.

 

Case #19 - Patrick v. Byerty, 228 Va. 691 (1985) - a stepmother was awarded custody in a contest with the natural mother.  Finding that the mother had deserted the child at an early age, the court found that this rebutted the presumption that the child would be better off with the natural mother.  The stepmother had been caring for the child for the past 3 and a half years.

 

Case #20 - Bailes v. Sours, 231 Va. 96 (1986) - The court awarded custody of a 12 year old to his stepmother rather than his natural mother.  His parents separated in 1974 and the child remained with his father and stepmother.  His father died in 1983 and he stayed with his stepmother and half-brother.  His natural mother then sought custody.  The child wanted to remain with his stepmother.

 

The court laid out certain factors which would justify not following the presumption in favor of the natural parent: (1) parental unfitness; (2) a prior divestiture order; (3) voluntary relinquishment; (4) abandonment and (5) a finding of special facts and circumstances constituting an extraordinary reason for taking a child from his parent or parents.

 

The combination of the child=s wishes and a psychologist=s testimony that transferring custody could have a long-term impact on the child were considered enough under the 5^th factor to leave the child with the stepmother.

 

 

 

 

143. Parental misconduct as affecting custody

 

Moral misconduct which adversely affects the child is a serious factor to be considered.

 

 

Modification

 

Child custody awards can always be modified, even if the court has adopted an agreement already made by the parties.

 

Visitation

 

Courts cannot connect the improper refusal of visitation to the termination of child support payments.

 

The intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court. 20-108

 

144. Restriction on interstate travel of custodial parent

 

Courts will allow travel as long as it is not done to defeat the non-custodial parent=s ability to see the child.

 

20-124.5 - ..the court shall include as a condition of any custody or visitation order a requirement that 30 days= advance written notice be given to the court and the other party by any party intending to relocate and of any intended change of address, unless the court, for good cause shown, orders otherwise.

 

 

145. Rights of the natural father

 

If there is no connection at all with the child other than providing the sperm, a father=s parental rights can be terminated.

 

If such rights are terminated, the natural father owes no child support.

 

 

146. Uniform Child Custody Act (20-126)

 

Designed to discourage child-snatching in order to go to a more favorable state for resolution.

 

A Virginia court can determine child custody matters if:

 

1) Virginia is the home state of the child at the commencement of the proceedings; or

2) had been the child=s home state within 6 months before commencement of the proceedings and the child is currently absent because of his removal or retention by a person claiming custody - and a parent or person acting as parent continues to live in Virginia

 

AND

 

It is in the best interest of the child that Virginia take jurisdiction because:

 

1) the child and his parents (or the child and at least one parent) have a significant connection with Virginia; and

2) there is available in Virginia substantial evidence concerning the child=s present or future care, protection, training and personal relationships

 

OR

 

The child is physically present in Virginia and the child has been abandoned or it is necessary in an emergency to protect the child from abuse or neglect;

 

OR

 

It appears that no other state would have jurisdiction under the above rules; or another state has declined jurisdiction on the ground that Virginia is the more appropriate forum, and it is in the best interests of the child that Virginia assume jurisdiction.

 

While physical presence of the child, while desirable, is not necessary for jurisdiction to determine custody.

 

Notice to persons outside Virginia (20-128)

 

1) by personal delivery outside Virginia

2) in accordance with the rules of the state where the person is found

3) by certified mail

4) an order of publication can be ordered when appropriate

 

146A. Parental kidnaping prevention act

 

A federal law dealing with providing for the full faith and credit of other state=s decrees - and has jurisdiction requirements similar to the UCCJA so that the original state retains jurisdiction in most situations.  It also aids in locating lost children in parental kidnaping situations.

 

Virginia

 

18.2-47 - Kidnaping by a parent is a felony if it is punishable as contempt of court in any proceeding then pending and the person is removed from Virginia by the abducting parent.

 

18.2- 49.1 - Any person who wrongfully withholds a child from the child=s custodial parent in violation of a court order regarding custody and such child is withheld in another state --- a Class 6 felony      

 

146B. Court=s power regarding visitation by relatives

 

20-107.2 - The court may decree as to the visitation rights of parents and visitation privileges for grandparents, stepparents and other family relatives.

 

147. Factors to be considered in determining custody - 20-124.3

 

1. The age and physical and mental condition of the child, giving due consideration to the child=s changing developmental needs;

2. The age and physical and mental condition of each parent

3. The relationship existing between each parent and each child

4. The needs of the child, giving due consideration to other important relationships of the child, including siblings, peers and extended family members

5. The role which each parent has played and will play in the future, in the upbringing and care of the child

6. The propensity of each parent to actively support the child=s contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in matters affecting the child

7. The reasonably preference of the child

8. Any history of family abuse

9. Such other factors as the court deems necessary to the determination

 

In awarding the custody of the child to either parent, the court shall give primary consideration to the welfare of the child, and as between the parents, there shall be no presumption or inference of law in favor of either 20-124.2

 

148. Tender years presumption -- Preference of the child

 

That the presumption is the better custodian of a young child, all other things being equal -- has been rejected by the above statute.

 

Preference of the child - in Virginia, the child=s preference will be considered, and strongly entertained when the child as reached 14.

 

CHAPTER 14 -- ISSUES IN CHILD CUSTODY

 

149. Factors in support of joint custody

 

1. The child is entitled to the love, nurture, advice and training of both mother and father.

2. Sole custody can end up cutting off the non-custodial parent from the child

3. Children need the input from both parents to grow normally

4. Different child rearing practices do no militate against joint custody in that children can understand that different people will set different standards for them (and this can be seen even within intact families).

5. Visitation is not meaningful contact. - The continuity of the relationship allowed by alternating physical custody is more important than the discontinuity of the physical environment caused by it.

6. It can work even if the parents are openly hostile to one another as long as they care about the children

7. It gives both parents a decision-making role

 

150. Factors against joint custody

1. It may be impractical given the work schedules of each parent

2. The parents may not be able to handle this type of custody

3. The child may resent constantly going back and forth between the houses

4. The school setup might mitigate against it

 

This takes a lot of work and cooperation to work out.

 

 ADOPTION AND RELATED MATTERS

 

151. Types of adoption

 

1. Agency placement adoptions - A licensed child-placing agency accepts custody of a child and the parental rights of the birth parents are terminated.  Adoptive parents then come into the picture. 

 

2. Parental placement adoptions - occurs when the birth parents enter into an adoption plan with an adoptive parent of their choice.

 

3. Stepparent adoption - when the birth parent marries and wants the new spouse to adopt -- requires the termination of parental rights by the other birth parent - the easiest to get -- if the birth father consents -- or his identity is not reasonably ascertainable- or his identity is known but his location is not reasonably ascertainable (with an affidavit of completion of an order of publication at the location of his last known address)  or he is dead (with proof by a death certificate), the final order of adoption will be entered without the need for a home study.

 

If the birth father of a child born out of wedlock objects, and the child is over 14 and has lived in the home of the petitioner for at least 5 years, the court can grant the adoption without the birth father=s consent.

 

4. Adult adoptions - 63.1-219.50 - by any natural person who resides in Virginia in one of the following categories:

 

1) a stepchild to whom the petitioner has stood in loco parentis for at least 3 months

 

2) a niece or nephew who has no surviving parents and who has resided in the petitioner=s home for at least 3 months

3) a person who has resided in the petitioner=s home for at least 3 months prior to becoming 18

4) a person, for good cause shown, provided the adoptee is at least 15 years younger than the petitioner and the two have known each other for at least 5 years before the adoption petition is filed (and both were residents of Virginia during the 5 year period that they knew each other).

 

 

Under the first 3 sections above, unless required by the court, the usual provisions for pre-adoptive investigations and visitations are not required.

 

5. Foster parent adoptions - An agency placement adoption wherein the foster parents are given priority over others - a court must accept the petition of  foster parents if the child has resided continuously in their foster home for at least 18 months and whose parental rights have been terminated.

 

6. Special needs adoptions - Agency placement adoptions involving children who are physically or mentally handicapped, biracial, abused, impoverished, older, HIV-positive, blind, deaf, or part of a sibling group or ethnic minority.

 

7. Interstate and international adoptions - both can be either agency placement adoptions or parental placement adoptions.

 

152. General procedures

 

1. The home study - conducted by a social worker from a licensed child-placing agency.  It includes a detailed background check and fulfills the court=s fact-finding responsibility. The home study must establish:

 

a) whether the prospective parents are financially able, morally suitable and in satisfactory physical and mental health to care for the child

 

b) the physical and mental condition of the child

 

c) the circumstances under which the child was placed for adoption

d) the fees paid by the prospective parents

 

 

2. Identifying the child - If an agency adoption, the agency will contact the prospective parents once a child they think is suitable is found.  If a parental placement adoption, the prospective parents can advertise in newspapers, posting fliers, placing a stork in the front yard (Aseeking to adopt@).

 

3. Termination of parental rights - Must occur before an adoption of a minor is finalized.  It may be voluntary (relinquishment), involuntary (by court order) or by the death of the birth parent.

 

4. Filing the adoption petition - In an agency placement adoption, it is filed in the circuit court where the petitioners live or where the agency is located.  In other types of adoptions, it can be filed where the petitioners live, where the birth parents live or where the child was born.

 

5. Interlocutory order - requiring a child-placing agency to conduct further investigation -- it gives the prospective parents the same rights as a final order of adoption would but reserves the right of the court or agency to supervise and can allow the birth parents the right to contest the placement.

 

6. Order of reference - from the circuit court to the child placing agency ordering it to complete an investigative report before entry of a final order of adoption.

 

7. Finalization - Includes the final order of adoption.  If such order has been in existence for 6 months without an appeal being filed, it shall not be attacked as invalid for any reason, including fraud or lack of jurisdiction.

 

153. Inheritance  

 

Termination of parental rights severs the relationship between the birth parents and the child completely.  The child, however, may inherit from the birth parents if they die intestate and arguably from the relatives of the birth parents..

 

The child may also inherit from the adoptive parents= relatives as though the natural child of those parents.

 

 

 

154. Who may place

 

1. Local agencies - may be public or licensed private agencies. If public, the children are often from parents whose parental rights have been terminated.

 

2. Parents or guardians - this still requires a licensed agency to conduct a home study and investigation.  A birth parent under 18 can consent to an adoption.

 

3. Recommendation by others - An agency may place a child based on a recommendation from a physician, an attorney licensed to practice in Virginia, or a clergyman, who is familiar with the situation surrounding the adoptive parents or the child. -- But there still must be a home study conducted.

 

4. When done by one not licensed - a person who engages in the activities of a child-placing agency without being licensed is subject to criminal penalties -- but 63.1-219.20 states that no circuit court shall deny a petitioner a final order of adoption solely because the child was placed by one not authorized to make such placements.

 

155. Who may adopt

 

1. Any natural person who resides in Virginia or any person who has custody of a child placed by a Virginia child-placing agency.

 

 

2. Virginia does not distinguish between married couples and an unmarried person -- and no distinction between male and female unmarried individuals.

 

3.  The code does not address adoption by avowed homosexuals, but there is a reluctance to do so.

 

4. A man may adopt the child conceived by artificial insemination with a third party donor=s sperm.

 

Welborn v. Doe, 10 Va. App. 631 (1990) - since the sperm donor does not automatically lose his parental rights to a child born by artificial insemination with his sperm, and because the presumption that the husband of the mother is the father of a child born during wedlock is not absolute, adoption proceedings are available to the husband of an artificially-inseminated woman.

 

156. Who may be adopted

1. Children under age 14 - may be adopted if the parental rights of his birth parents have been terminated or they are deceased.

 

2. Children 14-18 - must execute a written consent to his own adoption - often a judge will interview the child to be sure it is being done without coercion.

 

3. Adults - must consent to the adoption.

 

156A. Jurisdiction and venue

 

JDR deals with matters of consent and termination of parental rights - the circuit court handles the adoption petition itself.

 

Venue for JDR is where the agency is located, where the adoptive parents live, where the child was born or where the birth mother lives.

 

Venue for the circuit court is where the agency is located or where the adoptive parents live.

 

If the birth parents voluntarily give up their child for adoption to an agency, they sign an entrustment agreement.  If the JDR court thinks that this is proper and their rights should be terminated, it enters a commitment order and places the child in the legal custody of the agency.

 

If it is a parental placement adoption, the adoptive parents schedule a hearing before the JDR court, which then grants legal custody directly to the petitioners.

 

157. Preliminary requirements - counseling

 

Before placing a child for adoption, the agency must counsel the birth mother and father (if available) concerning the disposition of the child.

 

The infant must be at least 25 days old before being placed with adoptive parents.

 

 

There can be no exchange of money for the adoption except what is necessary for reasonable and customary services provided by the agency.

 

Any financial arrangement has been disclosed to the court.

 

 

158. Termination of parental rights

 

1. Involuntary termination - based on the best interests of the child.  It is handled in JDR with a de novo trial at the circuit level.

 

Walker v. Dept. Of Public Welfare, 223 Va. 557 (1982) - When the parents have a trial de novo, the burden of proof is on the Department of Public Welfare to prove by clear and convincing evidence that termination of the residual parental relationship is in the best interests of the child and (a) the neglect or abuse suffered by such child presented a serious and substantial threat to his life, health or development; and (b) that it was not reasonably likely that the condition which resulted in such neglect or abuse could be substantially corrected or eliminated so as to allow the child=s safe return within a reasonable period of time.

 

No termination of parental rights will be permitted if the child, age 14 or older, objects.

 

2. Voluntary termination - child must be at least 10 days old - and the birth parents have a 15-day revocation period in which to cancel the entrustment agreement.  They also may terminate the entrustment agreement at any time prior to placement of their child with an adoptive family.

 

 

After the revocation period has passed, and the child has been placed with adoptive parents, the birth parents may have their parental rights restored only upon a showing that the agreement was executed under fraud or duress - by the circuit court only if done before the entry of the final order of adoption.

 

159. Final order of adoption

 

The final order of adoption may be appealed during the 30 days following the granting of the order.

 

SURROGACY - 20-160

 

Surrogacy contracts are legal in Virginia.

160. Preliminary procedures

 

Prior to the performance of assisted conception, the intended parents and the surrogate and her husband, petition the circuit court.  The contract must be signed by all parties and acknowledged before an officer of the court.

 

The court then appoints a guardian to represent of the child, appoints counsel to the surrogate and orders a home study to be completed prior to the hearing on the petition.

 

161. What the court must find to approve a surrogacy contract

 

1. A home study must be conducted of the intended parents and the surrogate and her husband.

 

2. All parties must have voluntarily entered into the contract and there can be no agreement between them for payment of compensation.

 

3. The contract will contain provisions to guarantee the payment of reasonable medical costs in the event of termination of the pregnancy, termination of the contract or breach of contract.

 

4. The surrogate mother must be married, have had at least one pregnancy and one live birth, and the bearing of another child will not pose a risk to her physical or mental health, nor to that of the resulting child.

 

5. All parties will have submitted to a physical examination and psychological evaluation (with the results being made available to all parties).

 

6. The intended mother must be infertile, unable to bear a child, or be unable to do so without risk either to the child or to the mother.  This must be validated by medical evidence.

 

 

 

162. After the birth

 

Within 7 days of the birth of the resulting child, the intended parents may file a written notice with the court that the child was born to the surrogate within 300 days after the last performance of assisted conception.  The court shall then issue a new birth certificate naming the intended parents as the parents of the child.

 

The contract may be terminated before the surrogate mother becomes pregnant and also by the surrogate mother within 180 days after the last performance of the assisted conception.

 

The surrogate mother is solely responsible for the clinical management of the pregnancy.  The intended parents will assume responsibility for all court costs and legal expenses.

 

The intended parents shall have full parental rights to the resulting child regardless of the child=s health, physical appearance, and any mental or physical handicap.

 

A child born to a surrogate mother within 300 days after assisted conception is presumed to result from the assisted conception.

 

The adoptive parents must have their home study completed and approved before receiving the child into their home.

 

THE JUVENILE COURT SYSTEM

 

Designed to take away the adversarial nature of the court system.

 

163. Procedural safeguards 

 

But abuse led to In Re: Gault (S.Ct. 1967) which laid down procedural safeguards, which include the right to notice of the charges, the right to counsel, the right to confrontation and cross-examination and freedom from compulsory self-incrimination.

 

The right to a jury trial, however, was not considered constitutionally required.

 

AThe status of being a juvenile does not justify the existence of a kangaroo court.@

 

In Re: Winship (S.Ct. 1970) gave the child the right to proof beyond a reasonable doubt in >adult-type= crimes.

 

164. Delinquent children and children in need of services

 

A delinquent child is one who has committed an act which would be a crime if committed by an adult.

 

A child in need of services (PINS/CINS) is one who is abused or neglected or who has committed a status offense (an act which is a violation only for a juvenile).

 

Virginia prohibits status offenders being mixed with delinquent ones.

 

165. Treatment as adults

 

Now at age 14 for the commission of serious felonies.

 

The circuit court retains the right to treat the child as a juvenile even though then in adult court.

 

The judge in the adult court has the power to still sentence the child as a juvenile if appropriate.

 

CHILDREN=S RIGHTS

 

166. Capacity to contract

 

A contract is voidable by the minor (not the adult) but can be ratified by the minor after reaching 18.

 

167. Torts

 

When a child is injured, a parent may sue directly for the costs incurred by the parents for the treatment of that child.

 

A child can sue or be sued in tort.

 

A parent can be liable by statute in Virginia for vandalism of both public and private property.

Virginia holds parents immune from suit by their children in civil actions (except in automobile accident cases).

 

168. Wrongful life: Virginia allows recovery for faulty sterilization that results in the birth of a child, but has limited damages to the costs and pain associated with the birth -- it has specifically rejected the idea that the wrongdoer must pay the costs of rearing the child.

 

169. Wrongful birth: This would be a tort action for deformed or retarded children due to the doctor=s failure to warn the parent of such dangers.

 

170. Wrongful death: The parents can recover in a wrongful death action if the child was born, lived and then died.  But if the child is stillborn, this would be a personal injury action by the mother.

 

LEGITIMACY

 

171. A rebuttable presumption as to legitimacy

 

There is a rebuttable presumption that a child born to a married woman is the child of the husband.

 

Evidence of non-access beyond a reasonable doubt or evidence of impotency at or about the time of conception can rebut this presumption.

 

In Virginia, a child born to any kind of marriage, even an illegal one, is legitimate.  20-31.1 -- This rule has been applied to a common law marriage even though the mother of the child was legally married to another man at the time of her common law marriage. Kasey v. Richardson, 462 F. 2d 757 (4th Cir. 1972)

 

172. Effect of subsequent marriage of parents 

 

In Virginia, the subsequent marriage of the mother and father, after the birth of their child, coupled with their recognition of the child as theirs, legitimizes the child.

 

173.  Artificial insemination

 

 Any child born to a married woman and conceived by means of artificial insemination performed by a licensed physician at the request of, and with the consent in writing of the woman and her husband, is presumed for all purposes to be the legitimate child of the mother and her husband.