Virginia Family Law in the Age of COVID-19

As always, before reading this blog 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

I know it's been a long time since my last blog post (for those who are curious, I did a post back in October of 2016 noting that my posting rate was going to drop dramatically, though I don't think I anticipated even then how dramatically), but for those who haven't noticed there's a bit of a crisis going on in the world, and it affects just about every aspect of life.  Family law situations are included.  In the past week, I and many other family law attorneys have been bombarded with questions.  It struck me that a blog post was warranted.

This blog post is going to have two parts.  In the first part, I will give a brief explanation of what the Coronavirus outbreak means for the legal system in Virginia.  In the second part, I will address four of the most frequently asked questions I am seeing.  I hope that this post can relieve at least a little anxiety during this difficult time.

Impact of COVID-19 on Virginia Legal System

On March 16, 2020, the Virginia Supreme Court declared a judicial emergency in all trial courts in Virginia.  One of the main impacts of this declaration is that no "non-essential" and "non-emergency" trials or hearings will be held.  What this means as a practical matter is that the only criminal cases that will be heard involve cases where the defendant is currently incarcerated (rather than out on bond), and the only civil matters will be emergency type matters - protective orders, emergency custody/visitation matters (for example, parental kidnapping), civil commitments, etc.  Of some note, eviction proceedings currently appear to not be considered "essential" or "emergency" matters - as a result, while no official order has been given to stop evictions during the pandemic, evictions will be a practical impossibility due to courts not hearing the cases (and self-help being prohibited for residential evictions in Virginia).

Now it's important to understand that this is aimed at keeping people out of the courthouse.  The courts themselves are not closed.  There is plenty of non-essential, non-emergency business that can go on - just not if a hearing is required.  You have an uncontested divorce?  You can still submit the paperwork and get it finalized.  You need to get a lawsuit started?  You can still file it and have it served.  The court is operating, it's just limiting its requirements for appearances in person.  Further, filing things in person in court is still allowed, but discouraged.  Courthouse security has been ordered to disburse any large gatherings - as a result, you are encouraged to mail any filings you have to the court or call the clerk's office and see if they have a preferred alternate procedure (some courts are adopting outdoor drop-boxes, for example).

Further, during the judicial emergency all deadlines are being tolled.  There's some debate about exactly what that means, but at a minimum, it means if you have a trial court deadline (say, to file an Answer, respond to discovery, etc.) which is due during the emergency period, at a minimum it is now not due until after the emergency is done.  That said, it's always best to meet your original deadlines if possible.

Finally, the judicial emergency by law can only last up to three weeks, so this one is set to expire on April 6th.  However, the Virginia Supreme Court is allowed to renew the emergency, and I will be shocked if that does not happen.

Now, you may note that all of this is for trial courts.  No judicial emergency has been declared in our appellate courts (Court of Appeals and Virginia Supreme Court).  All deadlines there remain the same.  However, the Court of Appeals has now requested that all filings (as opposed to just briefs and appendices, which had previously been the rule) be made electronically, and oral arguments will be done by phone through at least the end of June.  The Virginia Supreme Court has made no changes so far except moving their upcoming slate of oral arguments to being by phone.

If you have a current court case going on, I would strongly recommend reaching out to your attorney and asking how all of this impacts your case.

Now, with that brief summary out of the way, the family law questions I'm seeing a lot of:

My business has closed due to the outbreak and I'm making no money - do I still have to pay spousal/child support?

The short answer is yes.  The court order requiring your payment remains in full effect.  Now, first of all, if eligible, you should immediately pursue unemployment (some states have waived the waiting periods and increased payouts already) and/or the new emergency sick leave policies, but it's possible you won't be eligible for one or both of those.  Otherwise, I'd suggest you consider the same options I suggested for government employees during a shutdown.  There is one big problem with that list, though.  Option 2 - filing a motion to modify and getting a pendente lite hearing ASAP - is not available.  A pendente lite support hearing is unlikely to be considered essential or an emergency.  That said, option 4 is, while not necessarily advisable, at least slightly less dangerous in this situation.  Why?  Unless your failure to pay support is leaving the other party destitute, a contempt proceeding for failure to comply is also unlikely to be considered essential or an emergency.  This means that by the time you could realistically have a contempt proceeding brought to court, you will likely have income again, and be able to get yourself out of the contempt.  This is in no way a guarantee, however, so you should tread carefully.

Option 1, trying to reach an agreement, is always the best answer.  If you can't do that, then option 3, sucking it up and paying, is your best bet as long as possible.  Regardless of what you do, however, you should still consider filing and serving a motion to modify immediately.  This would allow the court to potentially make some retroactive modifications to your support obligation once the dust settles to take into account the difficulties you are encountering now.  However, the court can only go back as far as the date you filed and served your motion, so the longer you wait to do that, the less retroactive modification will be possible.  You should speak with an attorney (over the phone - not in person!) as soon as possible.

I don't trust my child's father to be practicing proper social distancing - do I still have to let him have his visitation?

This is a little tricky.  A court order is a court order, and you are expected to follow it.  If, however, you believe allowing the other parent to have visitation actually endangers the child, or anyone the child comes in contact with (maybe the other parent is not taking social distancing seriously, maybe they're three states away and visitation violates CDC's travel advisories, etc.) it is very likely that the court will say this is an emergency matter, and will allow you to make a motion to suspend visitation for the time being.  As a result, you should contact your attorney right away if you are in this situation.

The reason it is so important to be proactive is that withholding visitation will, very likely, also be seen as an emergency in many courts, which means you could be brought up for contempt fairly quickly.  Moreover, there is a decent possibilities some police departments will forcibly enforce the existing court order.  As a result, if this is a real concern you have, you should definitely take action first - do not simply unilaterally withhold visitation.

My ex agreed to let me stop paying support until I get back to work - what do we need to do to enforce that?

Court ordered support cannot be waived or reduced without a court order.  If your ex has agreed to a temporary modification, that's wonderful, but you still need to convert that agreement into a court order.  Talk to your attorney and get an agreed order drafted up.  Once signed by everyone, it can be submitted to the court and will become fully enforceable once entered by a judge.  Again, courts are not closed, and an agreed order does not require a hearing, so this is something that can be done even during the judicial emergency.

My wife and I are separated in contemplation of divorce, but she's been staying with her elderly parents who are at high risk from COVID-19.  We'd both feel better if she was back home and not around them - can I let her move back in without restarting our separation clock?

One of the painful realities of family law is that generosity and good intentions can often backfire if you aren't careful.  This kind of situation can be ok, but you have to be very careful about how you do it.  Read up on how separations are lost and separation under the same roof so you can take the precautions necessary.  Pay particular attention to the fact that you need an adult witness to testify to your continued separation - this may be difficult during the social distancing period.  However, if you get that squared away, you should be able to do it.

Conclusion

The current Coronavirus outbreak is impacting all aspects of life - including our legal system generally and family law specifically.  If you are involved in a family law matter and are concerned about how all of this impacts you, please review our initial consultation policy, and if you qualify feel free to give us a call at (703)281-0134 or shoot me an e-mail at SLeven@thebaldwinlawfirm.com to set up your initial consultation.  Our initial consultations are free for up to 30 minutes!  Please note that we are not accepting in-person consultations until the current crisis passes - all consultations will be by phone or e-mail until then.

Reconciling in Virginia - The Law When You Work Things Out

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, an legal principles discussed in this post apply only to the Commonwealth of Virginia.

Introduction

What's the best thing I, as a family law attorney, can possibly hear from a divorce client?  Well, would you be surprised if I told you my favorite phone call from a divorce client is the one that starts with "Sam, stop working on my case, we've decided to reconcile"?

When I began practicing family law, I had big plans in mind for how I was always going to try to convince my clients to reconcile first, recommend counseling, anything to make it work.  It turned out, though, I had bought into the pop culture hype that people rush into divorces these days, when in reality they really don't (I dive into this a little further in my blog post discussing how the divorce rate is actually much lower than 50%).  As a result, by the time people come to me about a divorce, the odds are they've already tried most everything, and the marriage is already broken beyond repair.

Nonetheless, life happens, and while it's not nearly as often as I'd once hoped, the reality is I've had several cases over the years now that ended not with a Final Divorce Decree, but with the couple back in the same home, happily moving on with their lives together.  I even got an invitation once to the wedding of a couple whose divorce (from each other) I had handled a couple years earlier.

Now, you might look at this and say, "oh, well, there can't possibly be legal consequences from reconciling!  That's just a return to how things were - so everything resets, right?"  Well, it's actually not that simple.  The reality is, depending on how far along you were in your divorce process, what kinds of orders were entered, and whether or not you have kids, there are legal implications from a reconciliation, and actions that you have to take in order to protect yourself going forward.  In this post, I will discuss some of what happens under the law when you and your spouse begin the divorce process, but then ultimately work things out.

Simplest Case:  You've Separated, But That's It

So, the simplest case is that you separated from one another, but that was it.  No agreements were signed, no court orders were entered, no papers signed.  You just each lived apart for a while, then decided to get back together.  Here everything is simple - there really aren't legal steps you need to take.  Just resume living together.  If one of you was renting a place and are leaving that rental, make sure you talk to the landlord if you need to terminate your lease early.  But from a matrimonial law standpoint, you're set.

Slightly Tougher:  You Have a Signed Agreement

Now, let's go to the same scenario, but you've also already signed a separation or property settlement agreement and begun abiding by its terms.  However, let's assume still nothing's been filed in court, and then you reconcile.  There are a few things to know.  First, any transfers of property, changes of name on accounts or loans, etc., will survive your reconciliation.  So, if you want to get things back to how they were you will need to go through that process again.  This is particularly important for real estate, where you want to be able to take advantage of the benefits of being tenants by the entirety (a form of joint ownership only available to married couples).  Second, understand that by law a separation or property settlement agreement is terminated upon reconciliation, however, if your agreement has a reconciliation clause in it, it may survive your reconciliation.  In that case, you'll need to decide how, or if, you want the agreement to survive - particularly what happens to any support obligation while you are back together - and you should consider signing an amendment to put those changes into effect.

Remember that just because you worked things out now doesn't mean something won't go wrong again some day.  If, for example, your agreement obligates you to pay support of $1,000 a month, you reconcile and don't change anything, and then separate again in 5 years, it's possible your spouse will then come after you for 5 years of back payments ($60,000!).  You may have defenses to that claim, but they wouldn't be a guarantee - edit your agreement now, when you're on good terms.

What if Orders Have Been Entered?

Now, taking it to the next level, you might be asking what happens if custody, visitation, child support and/or spousal support orders have been entered before you reconcile?  Well, the first thing to do is figure out what kind of orders they were.  Were they pendente lite orders (orders entered after a short hearing just to determine what arrangements will be while your case is pending) or final orders?  If they were pendente lite orders, you can simply withdraw (or non-suit) the case in which those orders were entered, and by operation of law pendente lite orders terminate the moment their case terminates.  If they were final orders (say, from the J&DR Court), however, you will need to actively terminate the orders.  To do this, you will need to file a petition with the court that issued the order(s) (unless venue was transferred by the order(s)) seeking a modification based on a material change in circumstances, and then submit an agreed order terminating the order(s).

Again, the issue here, much like with agreements, is primarily protection if things go wrong down the line.  If you are reconciled for five years but then split again, you don't want to have to prove that you adequately supported your child while you were all living together to make up for your not directly paying the ordered child support.  You may be able to defend against the back support claim, but it's not a guarantee - and it could get very expensive in legal fees.  It's always safer to just not have a lingering order.

What if We Divorced?

Sometimes a reconciliation doesn't happen during the divorce process.  Sometimes it takes that time fully and completely away to realize that you've made a mistake, or that you've each grown.  So, yes, we do sometimes see reconciliations of couples that have already completed their divorce.

What you need to do in this event is going to be largely similar to the prior section, except that you almost assuredly only have final orders in place, not pendente lite orders.  Moreover, if you re-marry, any spousal support obligation would terminate at that point.  However, custody/visitation and child support orders would not, and still need to be taken care of.

There is an additional concern also at this point with property.  If you never transferred any real estate or similar property prior to your divorce, then upon your divorce you became tenants in common in any real property.  If you get re-married, this does not get automatically undone, you will need to actively re-title your property in order to become tenants by the entirety again.  Additionally, any accounts, retirement funds, life insurance policies, etc. in which you named your spouse as your beneficiary had those beneficiary designations automatically revoked at the time of your divorce.  Even if you never notified the companies of the change, you will need to re-filed your beneficiary designations in order for your spouse to again be your beneficiary.

Finally, when you divorce, if you divided any retirement accounts, it is likely that you had an Order or Orders entered to effectuate that division (frequently called Qualified Domestic Relations Orders, or QDROs).  For any defined contribution plans (401(k)'s, etc.) the division has likely already been completed, so you each now have your own accounts - it's fine to keep things that way.  For defined benefit plans (pensions, etc.), however, you will need to get an Order entered terminating the prior division Order, and get that new Order to the account administrator.  Otherwise, when you retire, you might be surprised to have money taken out and sent to your spouse.  While if you are still together at that point it may not matter, it would still be an inconvenience, and there can be administrative expenses involved - better to get that taken care of now.

Conclusion

The best news I can get as a divorce attorney is that my client and his or her spouse have found a way to work things out and have reconciled.  Nonetheless, my work does not end there, as I still need to ensure my client protects himself or herself and takes the legal steps necessary for the reconciliation to be smooth and complete.  As always, the smartest thing you can do if you are reconciling and aren't sure what your legal needs and obligations are as a result would be to consult an attorney.  If you have been going through a divorce (or are already divorced), are planning to reconcile, and want to know what you legally need to be doing, feel free to review our initial consultation policy above and then to shoot me an e-mail at SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up a consultation.  Our initial consultations are free for up to half an hour!

A Warning to Virginia's Same-Sex Parents

As always, before reading this post, please review my disclaimer by clicking the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

In October of 2014, the United States Supreme Court lifted a stay on a Fourth Circuit ruling that made same-sex marriage legal in Virginia.  Suddenly, same-sex couples across Virginia found themselves with the right to marry, and took advantage of it quickly.

Shortly after this ruling, I wrote a blog post laying out some practical considerations for same-sex couples in Virginia in the "new world" of legal marriage.  I pointed out that while the new ruling meant that same-sex couples can get married, it did not retroactively make same-sex couples married, and as such there were many legalities a same-sex couple needed to go through to take full advantage of their new legal rights.  One issue I did not discuss, however, was children, and a new ruling from the Virginia Court of Appeals makes clear that I should have.

Just yesterday, the Court of Appeals issued its published opinion in the case of Hawkins v. Grese.  The case involved two women who had been in a relationship from 2004 to 2014.  In 2007, the women decided to have a child, and so Grese gave birth to a child conceived through artificial insemination.  Due to Virginia's marriage and adoption laws at the time, Hawkins was unable to adopt the child, nor was she named on the child's birth certificate.

In 2014, before the change in the marriage law went into effect, the couple broke up - but their break up was amicable, and they shared custody of their child.

However, in 2016, they came into conflict, and Grese began withholding the child from Hawkins.  After protracted custody and visitation litigation, the Court of Appeals found that Hawkins is not a parent of the child, and subsequently Grese has all the protections of a parent against Hawkins in the custody and visitation context (see my post on third-party custody and visitation for an explanation of what that means for Hawkins).  As a result, the Court of Appeals found that Hawkins had not overcome the "parental presumption" and awarded sole custody to Grese (note that the appeal did not address the question of visitation).  The Court of Appeals further included in its order this little nugget: "we hold that where custody disputes are concerned, the term 'parent' is a relationship to a child only through either biological procreation or legal adoption."

So What Does This Mean?

The main thing it means is that if you weren't married at the time you and your partner had a child, you are not a legal parent of that child unless you've adopted that child or are the child's biological parent.  For a same-sex couple, this means that if you had a child any time before 2014 and it was your partner's biological child, you must adopt that child in order to have legal parental rights.  This is true for an opposite-sex couple as well.

If you don't adopt the child, it doesn't matter that you were not allowed to get married at the time - you don't retroactively get treated as though you were married, so you must adopt in order to have those parental rights even if you are married now.

What About for Same-Sex Parents Who Were Married When the Child Was Conceived/Born?

I included a little nugget in my introduction that should scare even married same-sex parents (and, heck, married opposite-sex parents who used a sperm or egg donor to conceive) - the part about "parent" only if the child is biologically yours or legally adopted.  I think this statement was more broad than the Court of Appeals meant it to be and that this only applies to a couple that was not married at the time the child was born.  This is because Virginia has a statutory scheme creating what's called "presumed" parents - wherein if you are married at the time you give birth, your spouse is automatically considered the other parent unless proven otherwise, and put on the birth certificate.  This rule originally only applied to husbands, but has now been extended to same-sex couples by another US Supreme Court case.

Moreover, Virginia's statutory scheme about artificial insemination specifically states that "the husband of the gestational mother of a child is the child's father."  While the language is obviously gendered still, it is pretty clear, to me at least, from current case law that this rule would be extended to same-sex spouses (although I'd note for same-sex male couples that the Virginia law regarding surrogacy has its own complications for same-sex male couples).  As a result, I believe that if you are married at the time the child is conceived and born, you will still be considered the child's other parent, notwithstanding the implications of the Court of Appeals' loose wording.  However, this somewhat loose language of the Court of Appeals might make you want to consider adopting the child anyways.

What Should We Do About This?

Well, the answer is clear - if you have any question at all in your same-sex relationship of whether or not you will be considered your child's parent in the unfortunate event your relationship ends, you should adopt your child immediately.  If you are married, the process is pretty simple (you can see my post on step-parent adoptions here), but even if you aren't, it's not too complicated.  Obviously, having an attorney assisting you can help.

Conclusion

If you have a child with your same-sex spouse or partner, the Virginia Court of Appeals decision yesterday in Hawkins v. Grese should give you some pause to make sure the law considers you that child's parent.  If you aren't, or even if you're unsure, it's time to adopt that child to protect your parental rights.  If you need help figuring out if you are a child's legal parent, or need help adopting your child with your same-sex spouse or partner (or even your opposite-sex spouse or partner), feel free to review our initial consult policy (link above or here) and to call (703)281-0134 or shoot me an e-mail at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!

Relevant Changes in Virginia Law - 2017 Edition

As always, before reading this post, please review my disclaimer by following the link at the top of this page or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Now that I've stepped away from this blog in terms of my posting frequency, it will be a continuing challenge to keep it up to date.  As a result, at a minimum, I intend to continue my annual post-General Assembly session blog post of laws that are changing directly relating to this blog.  As I did in 2014, 2015, and 2016, today's blog post will talk about some changes to the law that are happening this year that directly affect topics posted on this blog.

All changes listed in this post take effect July 1, 2017.

VRLTA to Apply to Most Leases

One of the most important distinctions I've discussed on this blog may be on its way out - HB 2033 will be making nearly all residential leases in Virginia subject to the Virginia Residential Landlord and Tenant Act, limiting the applicability of Title 55, Chapter 13 of the Code to rentals from landlords who own two or fewer rental properties and whose leases specifically exempt the rental from the VRLTA.  All other residential leases will now fall under the VRLTA.  Moreover, Title 55, Chapter 13 itself has been heavily amended to include most of the provisions of the VRLTA.  While some important distinctions will remain (Title 55, Chapter 13 still won't have the VRLTA's non-waiver clause, for example), the first question I always ask landlord/tenant clients - which law does your lease fall under - may be on its way out the door.

"Parenting Time"

Over the years, a large number of parents have come to object to the term "visitation."  They feel, I believe reasonably, that it is a term that belittles the non-custodial parent's time with a child to a mere visit, not time as an actual parent.  To that end, HB 1456 will now allow courts, if the judge so chooses, to refer to visitation as "parenting time" in its court orders.  This seems a very small step in the direction of recognizing the important role non-custodial parents still play in their children's lives, but could be an important step nonetheless.

Tenancy in Case of Foreclosure

In the height of the 2008-2009 financial crisis, a problem arose across the country where landlords were having their properties foreclosed on, and tenants were being evicted through no fault of their own (at the time, a foreclosure automatically terminated any lease).  To that end, Congress passed the Protecting Tenants at Foreclosure Act which mandated new notice procedures and protections for tenants in that situation.  However, the Act expired at the end of 2014.  Nonetheless, the Virginia law complying with the Act stayed on the books after the Act's expiration, creating a good bit of confusion.  Now, HB 1623 has resolved this problem by repealing Virginia's statute complying with the Act, but instead of going back to how things had been before, introduces a new concept that a lease on a property that is foreclosed automatically converts into a month-to-month tenancy (meaning either party can terminate, but is required to give at least thirty days' notice to the other, and without notice the rental simply continues on that basis).

Child Support in ABLE Accounts

In 2014, Congress passed the Achieving a Better Life Experience (ABLE) Act, which allows parents or other individuals to set up a savings account that the individual owns, but is tax-deferred when used to pay for a disabled person's "qualifying disability costs" (such as medical expenses, equipment, etc.).  This works much like a 529 plan (in fact, it is Section 529A of the tax code), except for disability expenses instead of college expenses.  Moreover, the money saved in an ABLE account does not generally count towards a disabled person's asset limits on various government benefit programs, so it is a very advantageous account to have.

This year, the General Assembly passed HB 1492, which added a provision to Virginia's child support laws allowing the courts to order, on the request of either party (so the payor can request that this be done just as much as the payee can), to order child support be paid directly into an ABLE Account for the child's benefit.  As a result, parents who have a disabled child can now help ensure that child's future by using child support payments to contribute to an ABLE plan, and they can be confident the other parent won't find a way to mis-use the money.

Conclusion

All in all, the landlord-tenant change was this year's blockbuster in terms of impact on the topics covered by this blog, but these laws and many others are part of what makes the practice of law so fun.  If you have questions about how the new laws affect you, or if you need representation, please review my initial consultation policy, then feel free to call 703-281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!

Interstate Child Support - Virginia Law

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

In my last blog post, I discussed the issues that come up in custody and visitation cases involving parents who live in different states.  It might not surprise you, then, to learn that similar issues arise frequently involving child support.  Child support is in many ways, however, more complicated, because it is not enough for a court to have control over (or "jurisdiction over") the child, but rather the parents also must be under the jurisdiction of the court in a child support proceeding.

In today's post, I will discuss how issues of interstate child support are handled.

UIFSA

Like the UCCJEA in custody and visitation cases, the field of child support also has a uniform law that's been adopted by all fifty states.  The Uniform Interstate Family Support Act (UIFSA) was first proposed in 1992 but was slow to be adopted by the states.  Then, in 1996, Congress passed the Personal Responsibility and Work Opportunity Act (known colloquially as "welfare reform,") which put into place rules for how states can recover welfare funds it pays to needy families from non-paying, non-custodial parents.  Since the law had a great deal of interplay with UIFSA, it also required all states to adopt UIFSA by the start of 1998 or else lose all federal child support enforcement funding.  As a result, UIFSA has been the law in all fifty states for a bit over 18 years now.

In Virginia, UIFSA was adopted in 1994 and can be found beginning at Title 20, Chapter 5.3 in the Virginia Code.

Initial Support Order

Unlike in the UCCJEA for custody and visitation, UIFSA does not attempt to designate a single state that is appropriate to issue the "first" order.  Instead, a support petition under UIFSA can be initiated in any state, so long as the court has jurisdiction over both parents.  A court will always have jurisdiction over the parent that files the petition, as filing the petition is a voluntary submission to a court's jurisdiction.  A court will also always have jurisdiction in support over a parent who is a resident of the same state where the court is located.  If, however, the non-petitioning parent is not a resident of the state where the support petition is filed, then the court will have jurisdiction over that parent under the following circumstances:

• The non-petitioning parent is personally served with process in the state where the petition was filed;
• The non-petitioning parent consents to jurisdiction, either expressly or by implication or waiver;
• The non-petitioning parent has ever resided with the child in the state where the petition was filed;
• The non-petitioning parent has ever resided in the state where the petition was filed and paid for pre-natal expenses or supported the child while living there;
• The non-petitioning parent directly caused the child to become a resident of the state where the petition was filed;
• The parents had sexual intercourse in the state where the petition was filed at a time that it is reasonably likely the child was conceived in that state;
• The non-petitioning parent asserted parentage of the child in the putative father registry of the state where the petition was filed;
• The non-petitioning parent has signed a contract in the state where the petition was filed agreeing to pay support; or
• There is another basis under the laws of the state and the constitution to allow for jurisdiction.

If jurisdiction over the non-petitioning parent is present, then any state can issue the initial support order.

Simultaneous Proceedings

Since, unlike custody and visitation cases, UIFSA does not usually give us a clear-cut "proper" first state for support orders, it is entirely possible for petitions to be filed in multiple states, and have both states be proper forums (assuming there is no already existing support order, which I'll get to in a moment).

In the case that more than one proceeding to establish an initial support order is pending at the same time, then the state that is proper to hear the case goes in the following order of priority:

1. If one state has jurisdiction over both parents and the other doesn't, then the one having jurisdiction gets to make the initial order.
2. If 1 does not apply, then if either state is the UCCJEA "home state" of the child, that state gets to make the initial order if the non-petitioning parent in the other state challenges that state's jurisdiction within the deadline to do so.
3. If 1 does not apply and 2 does not apply (either because neither state is the child's "home state" or because the non-petitioning parent did not challenge jurisdiction in time), then the state where a petition was filed first gets to make the initial order.

I actually did encounter a case once where both states had jurisdiction over both parents, the non-petitioning parent in the state that was not the child's "home state" failed to challenge jurisdiction in time, and the Virginia court ended up dismissing the case (despite Virginia being the child's "home state") because the Virginia petition was filed 23 minutes after the petition was filed in the other state - so this is stuck to pretty tightly.

Continuing, Exclusive Jurisdiction

As with custody and visitation, once that initial order is entered, it generally stays in that state.  The state that entered the original order has what's called "continuing, exclusive jurisdiction," meaning only that state can modify the order.  A state will continue to have continuing, exclusive jurisdiction for so long as either parent or the child still resides in that state unless all parties consent to the case being moved to another state.  Additionally, even if no one remains in the state, it will still have continuing, exclusive jurisdiction if all parties consent to the state continuing to have it.

Conflicting Orders

Now, here's an odd thought.  What if two states have jurisdiction to enter an initial order, neither non-petitioning parent ever objects to jurisdiction, and so both states end up issuing orders and having continuing, exclusive jurisdiction?  Well, then it's up to the state where the modification or enforcement proceeding is being initiated to determine which order "controls."  The rules on this are fairly simple.  If only one state would have continuing, exclusive jurisdiction, that state's order controls.  If neither state would have continuing, exclusive jurisdiction, then neither order is controlling and the state trying to sort it all out must issue its own support order.  If both states have continuing, exclusive jurisdiction, then the order issued by the child's current home state controls, and if neither state is the child's current home state, then the last order entered controls.

Enforcement of Orders

As with custody and visitation, the unanimous adoption of UIFSA means that once a valid support order is entered, as long as it is the controlling order, all states will enforce it.  As a practical matter, this means the state where the payor lives, since that's the one that will have the most ability to conduct effective enforcement.

Modification of Orders

A state always has the power to modify its own support orders so long as that order remains the controlling order.  Of course, as long as a state has continuing, exclusive jurisdiction, it is also the only state that can modify its controlling order.  If, however, the state that issued the controlling order does not have continuing, exclusive jurisdiction anymore, then modification proceedings can be held in the following states:

• The state that issued the controlling order;
• The state both parents reside in if they both reside in the same state (as long as the child does not reside in the state that issued the controlling order, since that state would then still have continuing, exclusive jurisdiction);
• Any state the parent seeking to modify child support does not reside in so long as no parties reside in the state issuing the currently controlling order and the state where the modification petition is filed has jurisdiction over the non-petitioning parent; or
• A state where the child resides or either parent is subject to jurisdiction if both parents have filed a consent in the state that has issued the current controlling order agreeing to the new state having power to modify the order.

Conflict of Laws

One of the biggest issues we face when modifying another state's support orders is that different states have vastly different laws about how child support is calculated.  As a result, UIFSA takes into account that different states modifying other states' orders can create some unfairness.  As a result, it lays out the following rules to determine which laws to use when modifying the support order of another state:

• If a provision of the original support order cannot be changed under the laws of the state issuing that order, that provision cannot be changed in another state's modification proceedings either.
• The amount of support, the frequency in which it is paid, and the manner in which it is paid is determined by the law of the state issuing the new, modified order unless any of those provisions cannot ever be changed under the laws of the state issuing the original order.
• The duration of support (as in, how long it lasts) is determined by the law of the state issuing the original order.

Federal Law

Unlike in custody and visitation, there is no particular federal law you need to know here.  The federal government mostly stays out of child support.  The only real exceptions are the aforementioned welfare reform laws requiring states to adopt UIFSA and a federal law making it a federal crime to willfully fail to pay your child support obligations if you owe that support obligation across state lines.  Neither of these laws directly affect the substance of the laws on establishment and modification of support across state lines.

Conclusion

If you feel like this all sounds even more complicated than the rules for interstate custody and visitation disputes, you're right, it is.  This is why is it critical to have an attorney who knows and understands these laws if you are involved in an interstate support dispute.  If you are involved in an interstate support dispute and would like legal assistance, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation (though please do read my initial consultation policy first).  Our initial consultations are free for up to half an hour!

Interstate Custody Disputes in Virginia - Where does this case belong?

As always, before reading my 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

Imagine for a moment that you are involved a nasty custody dispute with your ex.  You win, the court rules completely in your favor, but before you can go get your child your ex absconds to another state.  You cannot find your ex or your child until one day you get a letter from a court in the new state telling you that a custody petition has been filed there.  You show up with your existing court order to retrieve your child, but the judge says "no, I think the child should be with the other parent" and enters a new custody order.  What then?

For a long time, this was not an uncommon occurrence.  No laws were on the books requiring states to give priority to other states' custody orders beyond some constitutional duties, and those duties could be gotten around by a crafty litigant in a wide variety of ways.  Then, you ended up with conflicting orders for the same child, and police or other courts not knowing which order to enforce.

Today, fortunately, this problem rarely occurs (though it sometimes still does) thanks to a series of uniform laws that have been enacted, along with a federal law.  What this also means, however, is that courts are more hesitant than they once were to enter custody orders where interstate issues might be involved, so knowing the law becomes key.  In today's blog post, I'll cover the basics of when a Virginia court can and cannot make enforceable custody and visitation orders where the parents do not live in the same state.

Applicable Laws

The first law to know about is federal - the Parental Kidnapping Prevention Act (usually abbreviated as PKPA).  This law is meant to clarify the full faith and credit rules from the Constitution as it applies to custody and visitation provisions.  It lays out in what situations a state court must give full faith and credit to another state's custody and visitation orders, and subsequently cannot apply the state's own laws and reach a different result.

The other law to know about is the Uniform Child Custody Jurisdiction and Enforcement Act (usually abbreviated as UCCJEA).  This is a law that was enacted in the early 2000's in all 50 states and is almost identical state to state (thus the "uniform" part of the law).  The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA) which had been in force in almost every state since the late 1970's, but which had proven too weak in a number of challenging cases.

Virginia has, of course, adopted the UCCJEA in full, and is also under the force of the PKPA.  As a result, these two laws dictate how a Virginia Court will decide the jurisdiction of a custody case.

Basic Rule for an Initial Order

So, let's start at the top.  Let's say there are no existing custody or visitation orders anywhere and the parents each live in different states.  In what state is the custody or visitation case to be held?  Well, the PKPA only applies where there is already a court order, so the UCCJEA is the sole law to determine this.  Under the UCCJEA, the basic rule is that the proper state to hear a case is the child's "home state" at the time of the commencement of the case, or if the child did not have a home state as of the commencement of the custody case, then any state which had been the child's "home state" within six months prior to the filing of the case so long as at least one parent still lives in that state (I call this the basic home state rule).

While there are a few exceptions to the basic home state rule, it is where the vast majority of cases are determined.  A child's "home state" is defined as the state where the child lives, so long as the child has lived in that state for at least six consecutive months (for a child less than six months old, the home state is the state the child has lived in since birth).  So, if the child lives in a state for at least six months prior to the custody case being filed, that state is where the case is to be filed.  If, however, the child lives in a state for at least six months, then moves and the case is filed three months later, the case still belongs in the state where the child had previously lived as long as at least one parent still lives in that state.

This rule is expressly designed to prevent forum shopping.  If a parent decides another state's custody laws are more favorable, they cannot just up and move and file a custody case there - the other parent would have six months to bring his or her own case in the previous state before the new state would be allowed to make the initial determination.

Now, of course, there are loads of exceptions to the home state rule which you can already imagine.  For example, there are plenty of situations in which a child won't have a home state or a state that had been the child's home state within the previous six months.  Additionally, maybe the child and his or her parents lived in Georgia for years, but when the parents broke up, the father took the child and moved to Virginia while the mother moved to Maryland - so Georgia was the home state, but no parent still lives in Georgia.

In the cases where no state has jurisdiction under the basic home state rule, or where the state having jurisdiction has decided another state would be a more "convenient" forum to hear the case, then jurisdiction is with a state where the child and at least one parent has a "significant connection" beyond merely being physically present, and a substantial amount of evidence is available in that state (I call this the significant connection rule).

If all states that would have jurisdiction under either the basic home state rule or the significant connection rule decline to hear the case because another state would be a more convenient forum, then that state has jurisdiction.

Finally, if still no state has jurisdiction under any of the above rules, then whatever state the petitioning parent chooses to file in will have jurisdiction (note that in my career to date I have never encountered a case where jurisdiction under this provision was proper).

Enforcement of the Order

Once an order is entered, as long as a state that had jurisdiction under the rules above enters it, all states must fully enforce that order unless and until it is modified.  This is true regardless of whether or not the state has adopted the UCCJEA (although at this point, every state has), as the PKPA uses the same criteria as the "initial order" rules in the UCCJEA in determining if an order entered by one state must be enforced by the others.  As a result, under federal law, all properly entered custody orders must be enforced by every other state.

Modification of the Order

Now, as you should know, custody and visitation is modifiable over time.  So, once you have an initial order entered, what state can modify it?  Well, this depends on a couple of issues.

The first question is whether or not a state has what is called "exclusive, continuing jurisdiction" over the case.  A court has exclusive, continuing jurisdiction if it made the currently active custody/visitation order, and the child, either parent, or someone acting as a parent still resides in the state where that court sits.  In that situation, only the state with "exclusive, continuing jurisdiction" may modify the order.

If, however, the child and all parents are no longer in that state, or if the court of that state determines it is no longer a convenient forum, then that state losing its "exclusive, continuing jurisdiction."  In that case, the court that made the current order can only modify it if it would have jurisdiction to make an initial order.  Similarly, a state other than the one where the current order was entered has jurisdiction to modify the order if a) that state would have jurisdiction to make an original order under the basic home state rule or the significant connection rule and b) either i) the other state determines it no longer has exclusive, continuing jurisdiction or would no longer be a convenient forum, or ii) the modifying state determines no parents or children involved still live in the other state.

Some Examples

So, all of the above is a bit of a mess.  Let me break it down for you a bit better with an example.

Bob and Suzy, who have both lived in Virginia all their lives and have lots of family in Virginia, have a son named George.  All three live happily together in Alabama for four years.  Then Bob and Suzy have a big fight, Suzy takes George and moves to Virginia, while Bob moves to West Virginia.  Both Bob and Suzy want custody of George and two months later a custody case is filed.

This case is most likely to be properly heard in Virginia.  This is because, while George has no current home state and Alabama was his home state within the past six months, neither parent nor George still lives in Alabama, so the basic home state rule doesn't apply.  Moreover, their significant connections (family, past history, witnesses, etc.) are all in Virginia, so the significant connections rule would seem to make Virginia the right jurisdiction.

So, we have a custody case in Virginia, Bob wins, and George goes to live with Bob in West Virginia.  Suzy wants more visitation time, so two months after the Virginia Order is entered, she moves next door to Bob in West Virginia and files for a modification to get more visitation time.  Where does that modification need to filed?  Probably still in Virginia!

Virginia no longer has exclusive, continuing jurisdiction since Suzy and George no longer live there, so it does not automatically get to be the state that modifies the order.  Nonetheless, West Virginia is not George's home state yet (he's only been there for two months), and it's doubtful that George or Bob have developed connections and evidence sufficient to meet the "significant connections" test in West Virginia either - meaning West Virginia cannot modify the order.  As a result, Virginia, which does still have initial order jurisdiction due to the significant connections test, but also potentially due to the "no other state" having jurisdiction rule, would still be the state to modify.

Now, let's say Virginia enters a modified order and Suzy gets more time with George.  About a year later, Bob decides he wants to move to Texas and needs the order modified so that he can bring George with him.  Where does he file for that modification?  Now we're in West Virginia.

At that point, West Virginia is George's home state, and as Virginia still does not have exclusive, continuing jurisdiction, so West Virginia has become the proper state for the order to be entered.

Finally, the West Virginia court allows Bob and George to move to Texas.  Three years later, Suzy decides she should have custody of George and moves to modify custody.  Where does she file that motion?  Still in West Virginia.

This is because, while Texas is now George's home state, West Virginia still holds exclusive, continuing jurisdiction, since Suzy still resides there.

Conclusion

Confused?  Don't be sad - the mishmash of interstate rules is a mess that confuses many people.  By and large, they're a good mess.  They fix the horrible state of things that existed before they were adopted.  Nonetheless, it makes proceeding in these cases without an attorney virtually impossible.  If you are involved in an interstate custody and visitation dispute, I strongly advise you to talk to an attorney.  If you're interested in the services of my office, you can call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to thirty minutes!

Pets and Divorce in Virginia: Who Gets the Dog?

As always, before reading today's blog post, please check out 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

What's the most contentious issue in divorce cases that has nothing to do with kids or money?  In my experience, it's pets.  It's no secret that as American society has evolved, we've come to view our pets more and more like members of our families.  The law, however, has been slow to catch up. Nonetheless, as wills that provide for animals, concepts of "animal rights," and even animal-focused legal organizations have become more common, the issues that relate to animals have come to play a more prominent role in all fields of law.  One of the biggest areas of law that can see animals at center stage is divorce law.

Yes, a divorcing couple fighting over the family pet may, from a distance, seem silly, but is it really?  Especially for couples with no children, chances are you've poured a lot of time, energy, money and love into your pet.  No wonder you might not want to just walk away from it.  In fact, I've seen divorces where the pets were the primary issue - where a party gave up all of her rights to her spouse's retirement pension in exchange for the cat, for example, or another where the entire divorce settlement negotiation fell apart over the family horse (and no, I'm not talking about a multi-thousand dollar thoroughbred race horse here).  There is actually published case law in Virginia regarding the disposition of a family dog.

The point is, pets are taking on an increasing role in divorce law, and in today's blog post, I hope to cover some of the legal issues surrounding the distribution of pets in a divorce case in Virginia.

First and Foremost: Pets are Property

No matter how much you may love your dog, cat, or other animal, the first thing you need to understand is that by law in Virginia, pets are property.  That's so important a point that I'll say it again - by law in Virginia, pets are property.  In theory, pets should be treated no differently in a divorce in Virginia than a TV or a sofa.  Of course, theory rarely lives up to reality, and there are a number of issues that come into play that result from pets being property.

Marital Property vs. Separate Property

Let's say you marry someone who already has kids over whom they have custody.  You are married for 8 years and you absolutely dedicate yourself to your step-children and the children truly do see you as another parent.  Unfortunately, your marriage didn't work out quite as well as your relationship with your step-kids, and you divorce.  Under Virginia law, you may nonetheless be able to get visitation with, and in some extreme cases, even custody of your ex-step-children.  The same does not apply, however, for pets.

If your spouse already had a dog, for example, when you got married, and you spent your entire marriage being the only one in the house that actually took care of the dog (fed it, trained it, took it to the vet, etc.), the dog is still property, and the dog is still the separate property of your spouse.  This means if you divorce, your spouse gets the dog, period (unless you have an agreement otherwise, which I'll get to below).

One of the effects of pets being property is that the rules of determining "marital" vs. "separate" property from the Virginia Code apply.  This means that if the pet was owned by one party before the marriage, a gift to one party during the marriage, an inheritance of one party during the marriage, or purchased during the marriage with money that was itself separate property, the pet is separate property and goes with the spouse that owns the pet.  On the other hand, if the pet is purchased during the marriage with marital money, it is marital property subject to division (for more on the difference between separate and marital property, see my blog post on the issue from October 16, 2014).

Division by Agreement

Another side effect of pets being treated like property is that you can agree to pretty much anything you want to in regards to how the pet is "distributed," even if the pet is separate property, and the court will enforce that agreement.  Unlike child support or child custody and visitation, a court has no power to set aside any agreement regarding property, no matter how ridiculous it seems, unless it is susceptible to another form of attack on a contract.

As a side note, I'd point out this is one area where the fact that the pet is a living being does probably have some effect.  If you decided, for whatever reason, to agree to divide a sofa by literally sawing it in half, you'd be allowed to do that.  However, animal cruelty violates public policy, so an agreement to divide your cat by literally sawing it in half would not be enforceable.

Nonetheless, short of that kind of issue, you can do pretty much whatever you want with the pet by agreement, and the court will enforce that agreement.

Division by Court

If, however, you have a pet that is marital property, and you cannot reach an agreement on what to do with the pet, then the decision will be made by the court.  As with all issues of marital property, the court will be guided by the rules of equitable distribution laid out in Virginia Code Section 20-107.3.  This includes considering the list of factors in that Code section - in which, I would note, "the best interests of the property" is not a factor.  Of particular relevance is that the Code states "the Court may... divide or transfer or order the division or transfer, or both, of jointly owned marital property."

For a long time, all courts took this to mean that all that a court can do is award the pet to one spouse or the other and then order the other spouse to be compensated for a share (usually half) of the determined monetary value of the pet.  Of course, pets have all sorts of sentimental value, but as property, that doesn't go into the equation.

It's important to note that most judges still view the division of pets this way.  As a result, many fights have erupted over who took care of the pet the most (the contributions of each party to the "maintenance" of property is one of the explicit factors for dividing property), whether or not the pet is even marital property, whether or not one party has "title" to the pet (since a court cannot order "title" to be transferred even for marital property - only for the other spouse to be awarded a part of the monetary value) and so on.  Where the court does divide the pet, usually the party that has taken the most care of the pet will get it, but that's of course not always true.

However, some judges have taken a different view.  Several judges have now concluded that the word "may" in the Code section makes the division or transfer optional, and that the court may also elect not to divide or transfer a marital pet, and instead order the joint ownership to be maintained while awarding varying forms of possession.  What does that mean?  It means custody and visitation.  Yes, several trial judges in Virginia have ordered custody and visitation arrangements regarding pets in the past five years or so based on this reading of the law.  The judges have asserted this is allowed because a) as weird as it would be, they could do exactly the same thing for a sofa or TV if they thought it appropriate, and b) given all of the intrinsic value of a pet, determining an equitable distribution of the pet is unreasonable.

The Court of Appeals has yet to weigh in on this matter, and as a result it is not the law across Virginia, but it's worth knowing that those judges are out there, and the idea is gaining popularity.  Now, as pets are property, the "best interests" of the pets are not factors in setting that custody and visitation schedule, but nonetheless, the schedules put out by some of these judges have resembled common child custody and visitation schedules quite a bit.

All of that being said, I do want to re-emphasize once again that most judges still will distribute the pet to one spouse or the other rather than order a custody and visitation arrangement.

A Brief Note About Protective Orders

Pets' status as property has meant many bad things for pets over the years.  One of the worst has been in the context of protective orders.  We heard many stories where a protective order was entered and the estranged spouse, ex-boyfriend or girlfriend, or other abuser would do something horrific to a pet in retaliation, with little penalty.  Even worse, if the ex-boyfriend or girlfriend or the estranged spouse technically owned (either on his or her own, or jointly) the pet, they could just take the pet and disappear with it.

In response to this problem, last year Virginia became one of the first states in the country to include pets in protective orders.  This is a very small step - protective orders still cannot be taken out on behalf of pets or in response to violence against pets - but an important one.  Today, if someone obtains a protective order, they not only can require the target of the protective order to stay away from them, their home, their family members and their children, but they can also require the target to stay away from the household pets.  This means that attacking a pet in retaliation for a protective order being entered, or running off with the pet, would now violate the protective order itself, which is a criminal offense subject to more severe penalties than most animal cruelty charges.

Conclusion

While the law is always changing and developing, how to deal with pets in divorce is a very complicated and growing issue.  If you are involved in a divorce and need help figuring out what to do with the pets, please feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Virginia Child Support When Custody is Shared - The Basics of the Shared Custody Guidelines

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

The concept of child support is generally easily understood.  Both parents have a legal duty to support their children.  When the parents are married and living together, this is usually simple - you support your children simply by taking care of them.  When you are separated, however, that duty doesn't go away - but it is more complicated to handle.  Child support law seeks to handle that issue by requiring the parent who no longer lives with the child to provide funds to the parent who does live with the child so that parent can better care for the child.  It is assumed that the parent living with the child (the "custodial parent") still performs his or her duties directly.

But what happens when it's not really that easy to say who the child lives with?  When the child in all practical senses lives with both parents?  Each parent has a duty to support the child while he or she is with them and while he or she is with the other parent.  This is where the concept of shared custody child support comes from.  In today's post, I will cover the very basics of how to figure out if you are in a "shared custody" child support situation, and, if so, how to figure out that support level.

History

For most of Virginia history, the concept of "shared custody" was unfamiliar to the law.  Visitation, surprisingly enough, is a fairly modern concept.  In a divorce, one parent got the child (under the English common law and in Virginia, up until the mid to late 1800's, this parent was ALWAYS, without exception, the father - then this shifted to being usually the mother under what was known as the "tender years doctrine" - and then this shifted to the "best interests of the child" test that is used today) and that was that.  Now, once it became the case that the parent getting the child was sometimes the mother, as this was still a time where a woman earning money was rare, the concept of child support was largely born.  Still for most of Virginia law, the award of child support was largely arbitrary - a judge just trying to figure out how much was needed.

Then, largely in response to high poverty rates among single mothers, Congress passed a law in 1984 requiring all states to adopt guidelines.  Virginia finally complied and did so in 1988.  These guidelines set the basics of support, and I covered how they work in my blog post on calculating child support from April of 2014.  However, very quickly an unfairness began to emerge.  Namely, now that visitation is widely available and expansive, what happens if the "non-custodial" parent who had to pay child support nonetheless had the child with him or her for a substantial portion of the year?  Why should you pay support if you have the child for 182 days a year, but receive support if you have the child 183 days?  Wasn't this allowing the parent with more time to get out of supporting the child for a good chunk of the year, while also giving them a windfall?

As a result, in the early 1990's, the concept of shared custody child support was born and finally adopted by the Virginia General Assembly in 1992.  The point?  Come up with a support number that really does recognize that both parents provide their support directly to the child when the child is with him or her, and still requires the parents to provide support to the child while he or she is living with the other parent.

The Basics of How it Works

As with regular "sole" custody child support, the basics for how shared custody works are found in Virginia Code Section 20-108.2.  The shared custody guidelines are used when both parents have the child living with them for at least 90 days a year.  If one parent has the child fewer than 90 days, then the "sole" custody guidelines (covered in my blog post from April, 2014 mentioned before) still apply.

If you are using the shared custody guidelines, you start with the premise that the cost to support the child is higher in a shared custody situation than a sole custody one - after all, they have two homes to be maintained instead of one.  As a result, when you take the parents' combined incomes and calculate the "basic child support need" from the guidelines table in Code Section 20-108.2, you then multiply that number by 1.4.  This gives you the basic child support need for shared custody.

Next, you need to figure out how much support each parent should pay while the child is in the other parent's care.  To do this, you calculate what percentage of the year each parent has the child (called each parent's "custodial share").  Then you calculate the support owed to each parent.  Typically you start with the mother (assuming opposite sex parents, but the same rules apply with same sex parents) by multiplying her custodial share by the total shared support, then adding in her work-related child care costs (if any) and the amount she pays for the child's health insurance (if any).  This gives you the total support the child should receive from both parents while in the mother's care.  Then, you multiply the father's share of the parents' total income by that number to give you how much support the father should be paying the mother while the children are in the mother's care.

Then, you do the same for the father.  Multiply his custodial share by the total shared support, add in his work-related child care costs (if any) and amount he pays for the child's health insurance (if any) and that gives you how much support the child should get from both parents while in the father's care.  You then multiply that number by the mother's income share, and that tells you how much support she should be paying the father while the child is in his care.

Now, of course, it would be silly for both the father to pay the mother child support and the mother to pay the father child support, so instead we take whoever should be paying more and subtract the amount the other parent should be paying from the amount he or she should be paying.  What is left is the amount of support that parent should be paying.

Now, there is a final step here which many people forget about.  The point of shared custody support is to reduce the burden on the child support payor by recognizing that he or she pays a lot of support by directly supporting the child while the child is in that parent's custody.  However, the 1.4 multiplier of total support creates some odd situations (very rarely, but they do happen) where the payor is paying more under the shared support guidelines than he or she would under the sole custody support guidelines.  As a result, the law does say that where sole custody guidelines have the payor paying less than the shared custody guidelines do, then the sole custody guidelines are to be used.  This is a very rare occurrence, however.

A Simple Example

That probably sounds complicated, largely because it is.  As a result, I'll use the same example that I did back in my April of 2014 post - let's assume there is one child, the father makes $7,000 per month and the mother makes $3,000 per month.  Let's also assume the mother has the child 190 days per year and the father has the child for 175 days per year.  Finally, unlike that example, I'll say there is no health insurance, but both parents pay $500 per month in work-related child care.

Plugging these numbers into the guidelines gives you the following - the $10,000 monthly combined income gives a basic support need from the Code of $1,054 per month.  Multiplying that by 1.4 gives us a basic shared guideline support need of $1,476 per month.

Now, the mother has a custody share of 52.1%.  If you take 52.1% of $1,476, that gives you $768 per month in support need while in the mother's custody, and then add the $500 per month in work-related child care, and you now have the child needing total support of $1,268 per month while in the mother's care.  The father's income share is 70%, and 70% of $1,268 is $888, and that is the amount per month is support he should be paying the mother.

Now, for the father, he has a custody share of 47.9%.  Taking 47.9% of $1,476, yields $707 per month in support need while in the father's care.  Add in his $500 per month in work-related child care, and you get the child needing a total of $1,207 per month while in the father's care.  The mother's income share is 30%, so taking 30% of $1,207 yields $362 per month as the amount of support the mother should pay the father.

Next, taking the net of these numbers gives you a final shared custody child support obligation that requires the father to pay the mother $525 per month in child support.

Finally, if we plug these numbers into the sole custody guidelines, we'd see that using those guidelines, the father would owe child support of either $1,088 per month or $938 per month (depending on whether the court allowed him to still use his work-related child care - courts are split on this for sole custody).  Since both of those numbers are well above the shared custody guideline amount, the shared custody number of $525 per month would be the father's child support obligation.

So what is a "day"?

You might think this question is silly, but entire cases have turned on the question of "what is a day."  The Code says that a "day" is a 24 hour period, but then also says that if the parent who has the child overnight less often has the child overnight but for less than a full 24 hours, there "is a presumption" that each parent has the child for one-half a day during that period.

So, as you can imagine a lot of litigation goes into how many "days" each parent has the child.  Note that, generally, if you had the child for 16 hours a day, but the child always went to the other parent's house for an overnight neither of you would technically have any "days" under the Code (since you never have the child for 24 hours and the other parent cannot utilize the half day presumption since they have more overnights).  This means judges actually have a lot of discretion in deciding what a day is, and arguments over fractions of days are common.

How do you figure out the future?

Also inherent to this problem is figuring out the number of days each parent will have the child in the future (since child support is inherently prospective), especially if custody and visitation is not well defined, or the order has a history of being largely disregarded.  The Code requires you figure out the number of days in the year that each parent has the child, and expressly authorizes the judge to choose at his or her own discretion on what date and at what time the "year" used to calculate the days begins.  As a result, if the judge thinks the future is uncertain, he or she might use one year prior to the hearing as the starting date, and look back in the past for that guidance.  If, however, the judge thinks the future will be dramatically different from the past, he or she may choose the date of the hearing and try to predict going forward what it will be.  Usually, where there is no clear cut custody/visitation order, or there have been wide deviations from the order, the judge will look at the past year, but if a new custody/visitation order is being entered simultaneously or one already exists and has been closely followed, the judge will have the date of the hearing be day one and use the custody/visitation order to figure out days.

That all being said, however, neither of those options (the "year" beginning one year prior to the hearing or beginning the day of the hearing) are required, and there are plenty of battles in litigation over when the year should begin.

Conclusion

Every time the legislature encounters general laws that are, at times, unfair, and tries to combat that unfairness by carving out exceptions, it creates new layers of complexity.  The shared guidelines for child support are a perfect example of this.  The General Assembly (reasonably and correctly) concluded that the old guidelines were unfair when custody was near even between the parents, so they took a relatively simple formula and made it dramatically more complicated.  I cannot recommend strongly enough that if you think you might be in a shared custody support situation, you really need to speak with an attorney.  If you're interested in my services, you can call (703)281-0134 to arrange a consultation (please read my initial consultation policy first), or e-mail me at SLeven@thebaldwinlawfirm.com.  Our initial consultations are free for up to half an hour!

Virginia Parental Placement Adoption - When the Families Find Each Other

As always, before reading this post, please review our 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

There are many situations in which an adoption might occur in Virginia - one of them, a step-parent adopting their step-child, I have previously covered on this blog.  However, when most people think of "adoption" they think of the image you see on TV - a family adopting a baby or child completely unrelated to them biologically.  In Virginia, there are three basic forms of what I call "stranger adoption" - parental placement adoption, agency adoption, and foster care adoption.

Agency adoption is probably what most people think of in an adoption.  This is when an agency, either a public agency (such as the state's Department of Social Services) or a private adoption agency, already has custody of the child and the biological parents' custodial rights have already been terminated, and the adoptive parents apply to adopt a child through the agency.  Foster care adoption is a sub-set of agency adoption where a child has been placed in foster care pending his or her adoption or the termination proceedings against his or her biological parents, and then after at least 18 months in the foster parents' home, the foster parents decide they would like to adopt the child.  Parental placement adoption occurs where the birth parents and the adoptive parents find each other, and arrange an adoption without involvement by the state or any agencies.

In today's blog post, I am going to cover some of the basics of how parental placement adoption works in Virginia.

Pros and Cons of Parental Placement

First off, for any set of adoptive parents, the first decision to make is what method to choose for adopting.  Parental placement has several pros and several cons.  To many, the biggest pro is that parental placement adoption is substantially cheaper than agency adoption.  In Northern Virginia, between legal fees and other costs, you can expect to spend between $8,000 to $15,000 on a parental placement adoption.  An agency adoption, on the other hand, can cost you $20,000 or more.

Another pro of parental placement adoptions is that you know a lot more about where the child is coming from - you are much less likely to end up surprised by a child with severe issues than if you adopt from an agency.  Finally, many adoptive parents prefer parental placement adoptions because it allows them to form a relationship with the biological parent(s), and they know this is something the biological parent(s) have chosen, instead of something that has been forced on them.

There are some cons to consider, however.  Perhaps the biggest is that a so-called "closed" adoption (where the biological parents don't know who adopted their child) is virtually impossible - you may not be required to provide those parents any information, but they may well be able to find you since they know who you are to begin with.  Another con is that, unlike in an agency adoption, when you begin the adoption process with a parental placement adoption, the biological parents have not yet lost their parental rights, and they can withdraw their consent without cause at any time up until 7 days after their parental rights are terminated, at which time they would get to take the child back.  No contract promising to let you adopt is legally enforceable in Virginia, so if they change their mind, there is really nothing you can do about it.  If you are uncertain of the biological parent(s)' level of commitment to the process, those 7 days in particular can be nerve-wracking.

Babies vs. Children

As you might expect, the vast majority of parental placement adoptions involve infants.  Usually the biological parents and adoptive parents have met prior to the baby being born and begun to make arrangements.  As a result, I will be talking in the rest of this post under the assumption that the adoption will be of a new-born infant.  However, it will be fairly obvious when something I say is specifically applicable to the adoption of newborns, and the process is the same whether the child is a newborn or not.

Who Should Have an Attorney

Ideally, all parties (the adoptive parents and each biological parent) should have an attorney to guide them through the process.  The rules are complicated, and I cannot hope to get to all of them in this blog post.  This process would be daunting for anyone to go through unrepresented, but the adoptive parents are likely the ones most in need of representation.

Exchange of Funds

Many people feel, reasonably, that if a child is going to be the child of the adoptive parents, those parents should share in some of the costs of caring for that child prior to the adoption.  However, out of a great deal of fear of a market opening up to "sell" children, the exchange of funds between adoptive and biological parents in a parental placement adoption is heavily regulated.  Adoptive parents can only pay for very specific things (some examples include the biological mother's pregnancy-related medical costs, food for the biological mother to eat when she is no longer able to work due to the pregnancy, and the biological parent(s)' attorney's fees).  Any funds given outside of these allowed amounts can cause an entire adoption to fall through.  It is usually best to work out a contract with the biological parents of what you will pay and how.  This contract will be legally enforceable, and can be provided as evidence to the court if questions are later raised of improper payments.

Home Study and Father's Consent

Generally in a parental placement adoption, the first two formal steps to be taken are a home study and obtaining the biological father's consent to the adoption.  This is because if you are adopting a newborn, these two steps can be completed before the child has even been born.  A home study is a process whereby a certified agency will conduct an evaluation of you, your home, and the biological parents to determine if an adoption is proper.  A parental placement adoption cannot be allowed to proceed unless the court that will eventually handle the adoption is provided with a positive home study report.  Additionally, the biological father can consent to a parental placement adoption by signing a simple affidavit that can be prepared by your attorney at any time prior to the child's birth.  If the biological parents are unmarried, this is particularly convenient, because once ten days have passed after the biological father signs the consent, he cannot take it back, and does not have to be further involved in the process at all.

Taking Custody of the Child

The next step is to actually take custody of the child.  If you are not adopting a newborn, this is simple enough - it literally just involves the biological parent giving you the child, and signing a sort of power of attorney that you can show to the child's doctors and school officials while the adoption is pending to show that you now have the child.  For a newborn, this is a little more complicated, as this involves having the hospital release the child to you.  Some hospitals simply refuse to do this, and make the biological mother take the child out of the hospital and hand the child off to the adoptive parents once they are off hospital grounds.  Most hospitals, however, will let the adoptive parents take the child home as long as the biological mother signs a number of waivers.

Juvenile Court Hearing

On the day the child is born, or the day the adoptive parents take custody of the child, a petition can be filed in the local Juvenile and Domestic Relations District Court to conduct what's called a "birth mother's consent hearing."  The court cannot hold the hearing until the child is at least three days old, but it will usually schedule a hearing for pretty shortly thereafter.  As part of the process, the court will appoint a Guardian ad Litem, an attorney whose job it is to represent the child, to ensure the child's interests are protected.  It will be the adoptive parents' responsibility to pay the Guardian ad Litem.

At the hearing, the court will ask the biological mother a number of questions to ensure that she is really, truly consenting to this adoption, that it was not coerced, and that funds have not been paid improperly.  The court will also review the home study report, the biological father's consent form, and ask for the opinion of the Guardian ad Litem, who by the time of the hearing will have interviewed the adoptive parents and the biological mother (and the child if the child is old enough).  Assuming the Guardian ad Litem approves and no issues occur with the biological mother's testimony, the J&DR Court Judge will then sign an Order which formally grants the adoptive parents legal and physical custody of the child, and terminates the biological parents' parental rights.  The biological mother has 7 days from then to withdraw her consent, and if she does not, the order is effectively final.

Circuit Court Petition

Once those 7 days have passed, the biological parents are no longer part of the process.  Now the adoptive parents can file their Petition for Adoption in the local Circuit Court.  There a judge will review the home study report and the order of the J&DR Court, and if everything is in order, the judge will enter what's called an "Interlocutory Order."  This Order grants the adoption on a probationary basis to the adoptive parents.  Thereafter, the same agency that conducted the home study must conduct three "investigative visits" to the home of the adoptive parents to review how they are handling parenthood of the child.  The three visits must be completed within six months of each other, and in most cases are usually conducted once a month for three months.

Once the agency completes its three investigative visits, it prepares and sends to the court a report on its investigation.  Assuming the report is positive, the Circuit Court then has the power to enter the Final Order of Adoption.  The Final Order of Adoption is the final document making the full adoption official, changing the name of the child (if desired by the adoptive parents), and formally making the child the legal child of the adoptive parents.  Once the Final Order of Adoption has been entered, the adoption is over.  As an added bonus, except in very rare and limited circumstances, once the Final Order of Adoption has been on the books for at least 6 months, its validity cannot be challenged by anyone for any reason.

Beware of Emotional Scammers

Just one note of caution - while you may not be able as adoptive parents to give biological parents much money, that doesn't mean there aren't scams out there.  Some people try to scam others out of funds, but most just do it for attention.  In the adoption world, we refer to these people as "emotional scammers."  They just thrive on the attention they get from the hopeful adoptive parents, and most adoptive parents are too hopeful to catch the warning signs (especially since they aren't being asked for any money).  As you can imagine, this is frequently devastating to an adoptive couple, and I always warn my hopeful adoptive parent clients to tell me if anything ever seems off, and to just try not to get their hopes up until they actually have the child in their custody.

Conclusion

A parental placement adoption is a very rewarding way to adopt a child, but it is also replete with procedural pit-falls.  For example, the manner of obtaining the birth father's consent, or negating your requirement to obtain it, can be different depending on whether the birth father is an assumed, acknowledged, or putative father - and this is just one of the many hurdles faced when people try to tackle this kind of adoption alone.  As a result, if you are interested in pursuing a parental placement adoption, I would strongly encourage you to hire an attorney from the outset.  Our firm handles these types of adoptions, and if you are interested in our services you can feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!