As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the most useful things for me as a writer of this blog is getting questions from readers e-mailed to me asking me to elaborate on something I've had in the blog. It helps me know what people are interested in learning more about, and where some more detail could be helpful to people. Originally I tried to address this in follow up blog posts, but eventually I decided that it would be easier for me to consolidate these questions every now and then into what I've called "Law and the Blog" articles where I directly address some common questions I've received. This is the fourth iteration of that series - the last having been done in March.
"You mentioned in a previous post that if a child is permanently disabled, then after they become an adult, you can still be ordered to pay child support. I'm in that situation, except my ex just moved my son into an assisted living facility. I can't afford to help pay my son's assisted living costs and pay child support to my wife, so I'm stuck not helping my son - what can I do?"
If you're in this situation, you need to file to terminate your support obligation immediately. Post-majority child support for a disabled adult child is only authorized by statute if that child resides with the parent receiving the support. If the child is no longer residing with that parent (because, for example, the child has been moved into assisted living), then your support obligation should be terminated, and you should be able to contribute to your son's care directly.
"My ex has been refusing my court-ordered visitation with my daughter for no good reason - should I file a Motion to Modify Custody or for a Rule to Show Cause?"
Well, that's up to you - and to be clear, you are perfectly allowed to file both. For a Rule to Show Cause I would ask if the violations are repeating and significant. If they are, then it's probably worth pursuing, as your ex may well violate more court orders, and a contempt finding with a threat of jail time might be just what the doctor ordered for getting her to comply with court orders. As for the custody modification, you need to analyze whether or not changing custody would actually benefit your child. If your ex is going to ignore even a contempt finding, and will just never let you see your daughter, then it may well be that you taking custody is what's best for your daughter. If, however, you can get your ex to comply with the current order, you should consider why you want custody (is it because you actually want it, or just to punish your ex), why you don't currently have custody, and if yanking your daughter out of the home she's used to is really in her best interest.
I will say that when I practiced custody/visitation more regularly, I usually filed a Rule to Show Cause and only a Rule to Show Cause in these cases - but there were certainly more extreme cases in which I did pursue a custody modification.
"Why did the whole Kim Davis thing bother you so much?"
When I was in college, I met an international student from Central Asia and got to talking about why he wanted to come and learn in America. He told me about how in his country, they did not have a free press, but it was free enough that they got fairly unfiltered world news (it was domestic stories that were more suppressed). He remembered watching the fallout of the 2000 election in America, and was sad to see such a great nation fall into such turmoil. After the court ruled against Al Gore, he waited to hear about the ensuing civil unrest and breakdown of order. And waited. And then he learned that, rather than lead a revolution, Gore had simply conceded, Americans, including Gore's hardest core supporters, moved on with their lives, and that was that. To him, the notion that a court could issue an order (a 5-4 decision at that), and the nation would say "ok" and that be the end of it was completely novel to him, and he immediately fell in love with the idea of America.
You want to know what makes America truly exceptional? The rule of law. We are one of the few countries in the world where the rule of law is taken seriously, and reigns supreme over virtually everything else. It's why we don't have routine civil unrest, civil wars, revolutions, etc. We have the rule of law. When I hear people openly mocking and attacking the rule of law, as Kim Davis and her supporters did, I hear people trying to undo the very fabric of this country. These are people who want to make America no longer be America. That is why Kim Davis bothered me so much.
"You've explained before how there are certain circumstances in which a relative of a child other than the parents, such as the grandparents, can get court-ordered visitation, and that it is a much easier standard when one parent agrees with the visitation and the other doesn't than when both parents disagree with the visitation. You've also explained how, when a child is adopted by a step-parent, the biological parent's rights are terminated, but that parent's relatives' rights are not, so a grandparent could still seek visitation. If my son's son is adopted by his step-father and I seek visitation, does it matter that my son supports that visitation, or would I need either the mother or step-father (or both) to support the visitation in order to get the less strict standard applied?"
I'm sorry to say that while your rights as the child's grandmother are not terminated in a step-parent adoption, your son's rights as the child's father are if the child is adopted by his step-father. This includes your son's right to consent to your effort to seek court-ordered visitation. As a result, if the adoption goes through, you will need either the mother or the step-father (now adopted father) to approve in order to get the "best interests of the child" standard applied - otherwise you will face the much tougher "actual harm to the child" standard regardless of what your son's position is.
Conclusion
As always, keep those questions coming. I love knowing what it is that people need to know the most. If you need legal assistance, please give us a call at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. We offer free initial consultations for up to half an hour! Also, don't forget to check out our new and improved website at http://www.thebaldwinlawfirm.com.
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