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.

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!

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!

Classic Law is Your Friend: Virginia Child Custody and Relocation Law

Whenever I see legal issues come up in "pop culture" - such as in popular TV shows - it always catches my attention.  Especially if it's in a field that I practice.  I will admit, when things are covered in a manner that I find incomplete or flawed, I feel fairly compelled to act to "correct the record" with a blog post.  That's how I've felt about the last few weeks watching family law matters be handled with extreme inaccuracy on the TV show Grey's Anatomy.  I understand the need for dramatic license, but there's a point of it going too far...

Anyways, to cut a long story short, the custody dispute that wrapped up in yesterday's episode had my attention because it involved relocation law, but almost no relocation law principles were discussed.  As I told a friend, in the real world, the case wouldn't have even been close.  So, in order to satiate my desire to "correct the record" to the world, I've decided to go ahead and make today's blog post a "classic" post and to re-post my piece on relocation law, originally published on July 18, 2013 and titled "You Can't Take the Kids and Run - Relocation and Child Custody" with some minor edits.

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

Introduction

The reality is that, unless you are a particularly stubborn person, or a person who managed to find, and could afford, your dream house right out of college, almost all of us will move during our adult lives.  In fact, we may move frequently.  For most people, this is not a big deal - sure, it may be inconvenient, but a few days of packing, a day or two of actual moving, a few days of unpacking and it’s done.  For people with children who do not live with the child’s other parents, however, it can quickly devolve into a nightmare.

There has long been recognized in the United States a right to travel and move freely within the United States - not only within your own state, but from state to state.  This is, in fact, considered a “fundamental” constitutional right.  In other words, a constitutional right that is so basic, it cannot be infringed upon by the government without the government meeting the most constitutionally rigid of tests - “strict scrutiny” - wherein the government must prove that its actions are “narrowly tailored” (as in, this is the least restrictive approach possible) to resolve a “compelling government interest.”  So, if you have custody of your child, the other parent absolutely cannot prevent you from moving.  But, the other parent can prevent you from bringing your child with you, and therein lies the problem.

Relocation cases in the child custody context are difficult issues.  For one, they inherently affect the custodial parent far more than the non-custodial parent.  A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse.  It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right.  In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.

Relocation Cases - Burden of Proof, etc.

A typical relocation case begins with the custodial parent giving the court and the non-custodial parent the mandatory 30 days’ advance notice of the relocation.  If the non-custodial parent does nothing, the relocation happens, and any new case involving custody and visitation will treat the relocation as given and the non-custodial parent as essentially having forfeited his or her right to object to the relocation (assuming the custodial parent did, in fact, give the mandated notice properly and the proper amount of time in advance).  When a disputed relocation case arises, it happens when the non-custodial parent during that 30 day window files a motion to enjoin the relocation.  That’s where the “fun” starts.

Despite the fact that the case is initiated with a motion filed by the non-custodial parent, the burden of proof in a relocation case is actually on the custodial/relocating parent (as a note, I will continue to treat the relocating parent and custodial parent as interchangeable in this case because it is practically unheard of for there to be a contested relocation involving the non-custodial parent moving - at worst, there will just be a motion to alter that parent’s visitation). 

Of course, the question is “burden to prove what?”  The answer to that question, unfortunately, is that the Virginia courts still have not sorted this out, and unlike many other states, the Virginia legislature has not passed a law giving the courts guidelines for determining relocation rights.  Instead, we have a mishmash of rules.  The custodial parent must prove that the non-custodial parent’s relationship with the child will not be harmed by the relocation.  However, if the custodial parent fails to prove that, but the custodial parent succeeds in proving that the relocation would be in the child’s best interest anyways, then the relocation may be approved regardless - but note that to prove this, the relocating parent needs to prove the that the move itself independently benefits the child.  It's not enough to show that the move would benefit the parent and that benefit would then rub off on the child, or that the relocating parent is the better fit for the child - it must be proven the child will be better off in the new location than the old location despite any harm to that child's relationship with the other parent.

Further, if the custodial parent proves that the custodial parent cannot (perhaps for reasons of jobs, finance, threat to health, etc.) remain at the custodial parent’s current location and cannot move to a location that is closer than the proposed relocation point, then the court must do a whole different analysis of whether the child’s best interest is custody with the custodial parent at the new location or with the non-custodial parent.

If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with.  The general rule (as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent's visitation will not have to be altered at all, then the relocation will probably be approved.  If you cannot show that, the relocation probably will not be approved barring some other extraordinary circumstance.  You should also be prepared to take on the burden of any additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.

My Relocation was Denied - Now What?

If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child.  As discussed above, the non-custodial parent cannot stop you from moving.  So, you would have several options.  If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved.  You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success).  You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail).  Those are pretty much your only options if your relocation is denied.

My Relocation was Approved, But Visitation Isn't Working

If your relocation was approved but it becomes clear that the visitation arrangements are no longer working, then you can file a motion to modify visitation.  This is because the fact that visitation arrangements do not work as planned is usually considered a “material change in circumstances” that warrants re-consideration.

Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time.  Just be prepared that a hearing like this can go either way.  They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child.  Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all.  Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.

Conclusion

Relocation is one of the toughest issues there is involving custody.  Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it.  If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm.  While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them.  Your initial consultation will be free for up to half an hour!

Classic Law is Your Friend: Virginia Child Custody and Relocation Law

I have been out of work for the last couple of weeks due to paternity leave, and will still be another couple of weeks before I return.  This has also rendered me unable to devote the time needed to a good blog post.  Rather than keep leaving this blog blank, however, I decided to go ahead and re-post a "classic" post - this one being my primer on the law surrounding relocating when you have primary physical custody of a child.

This post was original posted on July 18, 2013, and titled "You Can't Take the Kids and Run - Relocation and Child Custody" and is reproduced in full below with a couple minor edits to take into account any updates in the law (and personal changes in my writing style) over the past three years.



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

Introduction

The reality is that, unless you are a particularly stubborn person, or a person who managed to find, and could afford, your dream house right out of college, you will move during your adult life.  In fact, you may move frequently.  For most people, this is not a big deal - sure, it may be inconvenient, but a few days of packing, a day or two of actual moving, a few days of unpacking and it’s done.  For people with children with court ordered custody and visitation arrangements, however, it can quickly devolve into a nightmare.

There has long been recognized in the United States a right to travel and move freely within the United States - not only within your own state, but from state to state.  This is, in fact, considered a “fundamental” constitutional right.  In other words, a constitutional right that is so basic, it cannot be infringed upon by the government without the government meeting the most constitutionally rigid of tests - “strict scrutiny” - wherein the government must prove that its actions are “narrowly tailored” (as in, this is the least restrictive approach possible) to resolve a “compelling government interest.”  So, if you have custody of your child, the other parent absolutely cannot prevent you from moving.  But, the other parent can prevent you from bringing your child with you, and therein lies the problem.

 
Relocation cases in the child custody context are difficult issues. For one, they inherently affect the custodial parent far more than the non-custodial parent. A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse. It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right. In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.

Relocation Cases - Burden of Proof, etc.
 

A typical relocation case begins with the custodial parent giving the court and the non-custodial parent the mandatory 30 days’ advance notice of the relocation.  If the non-custodial parent does nothing, the relocation happens, and any new case involving custody and visitation will treat the relocation as given and the non-custodial parent as essentially having forfeited his or her right to object to the relocation.  When a disputed relocation case arises, it happens when the non-custodial parent during that 30 day window files a motion to enjoin the relocation.  That’s where the “fun” starts.

Despite the fact that the case is initiated with a motion filed by the non-custodial parent, the burden of proof in a relocation case is actually on the custodial/relocating parent (as a note, I will continue to treat the relocating parent and custodial parent as interchangeable in this case because it is practically unheard of for there to be a contested relocation involving the non-custodial parent moving - at worst, there will just be a motion to alter that parent’s visitation). 

Of course, the question is “burden to prove what?”  The answer to that question, unfortunately, is that the Virginia courts still have not sorted this out, and unlike many other states, the Virginia legislature has not passed a law giving the courts guidelines for determining relocation rights.  Instead, we have a mishmash of rules.  The custodial parent must prove that the non-custodial parent’s relationship with the child will not be harmed by the relocation.  However, if the custodial parent fails to prove that, but the custodial parent succeeds in proving that the relocation would be in the child’s best interest anyways, then the relocation may be approved regardless. Note, however, that in order to meet this test, the custodial parent must prove that the child derives a benefit independent of any benefit to the custodial parent from the move (so, the fact that in the new location the custodial parent would earn more money and thus be able to provide more for the child is actually not a sufficient reason to grant a relocation).   Further, if the custodial parent proves that the custodial parent cannot (perhaps for reasons of jobs, finance, threat to health, etc.) remain at the custodial parent’s current location and cannot move to a location that is closer than the proposed relocation point, then the court must do a whole different analysis of whether the child’s best interest is custody with the custodial parent at the new location or with the non-custodial parent. However, as you can probably imagine, proving that it is actually impossible to stay where you are or move somewhere closer to the other parent is extremely difficult.

 
If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with. The general rule that I have told clients (and as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent will be able to keep the exact same visitation schedule (or, alternatively, the exact same amount of time with the child with only minor tweaks to the visitation schedule), then the relocation will probably be approved. If you cannot show that, the relocation probably will not be approved. This is why in my experience, the vast majority of contested relocations of less than, say, 30 miles are approved, while the majority of such relocations of more than about 200 miles are rejected. You should also be prepared to take on the burden of the additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.

My Relocation was Denied - Now What?

If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child. As discussed above, the non-custodial parent cannot stop you from moving. So, you would have several options. If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved. You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success). You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail). Those are pretty much your only options if your relocation is denied.

My Relocation was Approved, But Visitation Isn't Working
 

If your relocation was approved but it becomes clear that the visitation arrangements you made to ensure the non-custodial parent got the same amount of time with the child isn’t working, then you can file a motion to modify visitation.  This is because the fact that visitation arrangements do not work as planned is usually considered a “material change in circumstances” that warrants re-consideration.

 
Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time. Just be prepared that a hearing like this can go either way. They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child. Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all.  Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.

Conclusion

Relocation is one of the toughest issues there is involving custody. Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it. If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm. While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them. Your initial consultation will be free for up to half an hour!

Settling Custody, Visitation and Child Support in Virginia

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

Additional disclaimer - I represented the appellant in the Virginia Court of Appeals in the case of Everett v. Carome discussed below.  That case is mentioned not as an example of my work, nor to provide any example of my abilities as an attorney, but rather solely to discuss the legal implications of the ruling issued in that case.  Nonetheless, you should be aware that my personal involvement in the case may influence the way I view the ruling, and my interpretation thereof.

Introduction

One of the general principles behind settlement agreements in court cases is the notion that individuals will always look out for their own best interests first.  As a result, if you decide settling a case a certain way is in your best interest, who is a judge to say otherwise?  But what happens when your settlement affects someone else - someone who didn't get any say in what you decided?  This is the questions judges are routinely faced with when dealing with custody, visitation and child support cases that have been settled between the child's parents.

In this blog post, I will be discussing the additional factors you must deal with when settling a child custody, visitation and/or support case, that you don't normally have to deal with in other settlements.

The "Best Interest" Standard and the Court as Final Arbiter

The most basic rule about settling custody, visitation and/or child support cases is that these settlements must be in the "best interest" not of either parent, but of the child.  Since it's entirely conceivable that both parents will have interests that differ from the interests of the child, it is the court's responsibility to determine what is in the child's best interest.  This means that no settlement is binding on the court, and a court can void any settlement or any portion of a settlement that it deems not in the child's best interests.

Settlements Are Still Allowed

Despite this rule, which dates back to the 1800's, the General Assembly has passed a number of laws making it clear that the court is to give great deference to any settlement reached by the parents regarding the issues of custody, visitation and/or child support.  The idea behind this is that, at the end of the day, the parents are usually going to have a better idea of what is best for their child than the court.  As a result, the present rule is that a settlement on the issues of child custody, visitation, and/or child support will be approved by the court unless the settlement is within one of the categories of settlements that are automatically forbidden, or it can actually be proven that a proposed settlement is not in the child's best interest.

Types of Forbidden Settlements

So, what kinds of settlements are strictly forbidden?  There's no statutory law that lays this out, so these rules are developed from case law, meaning they are still evolving.  Nonetheless, there are some types of settlements that are so well established as to be forbidden, that if a judge misses the issue originally and approves a settlement in this category and someone comes back years later and says "hey, this settlement shouldn't have been approved" the settlement can still be undone.  The key types of settlements that are strictly forbidden are:

• Right Terminations:  Virginia has a very specific set of rules for how a parent's parental rights and obligations can be terminated (I did a blog post on this here).  A settlement between the parents is not within those set ways rights can be terminated.  As such, a custody/visitation agreement that permanently terminates one parent's parental rights and obligations is automatically invalid.

• Waivers of Support:  No matter what you may have been offered in return, nothing, according to Virginia law, allows you to abrogate a child's right to be supported by both parents.  This means that you cannot waive your right to receive child support in a child support settlement.  This rule was established by the case of Kelley v. Kelley in the early 1990's when, in a divorce, a wife received the full value of the marital residence in exchange for her never being able to seek child support.  The wife later sought child support anyways, and the Virginia Supreme Court said her pursuit of child support could go forward despite the agreement since the agreement was invalid due to the child support waiver.  Note, however, that this bar is to permanent waivers of child support.  There's nothing wrong with setting the current child support amount at $0 per month, as long as it can still be changed later.

• Jurisdiction-Stripping:  Just as one fundamental rule is that a child has a right to support from both parents, another, as laid out above, is that the court must be able to serve as the arbiter of the child's best interests.  As a result, agreements that forbid a party from going back to court later to modify custody, visitation, and/or support are also invalid.  Now, an agreement can have provisions that provide for automatic modifications in certain situations, but an agreement cannot forbid a party from going to court to change custody, visitation and/or child support in a manner different from the manner laid out in the agreement (although the agreement can provide certain penalties for doing so, as long as the penalties are not unreasonable or outrageous).

• Modification Bars:  As an offshoot on the ban of "jurisdiction stripping" is the notion that, since the court is the ultimate arbiter of a child's best interests, the court must have the power to modify custody, visitation and/or child support as the child's interests change over time.  This means provisions of settlements that forbid future modifications are also invalid.  In the child support context, this was raised as a side comment in Kelley, when the Virginia Supreme Court noted that agreements that "waive child support" and those that bar the court from exercising its power to modify child support or both types of agreements that are invalid.  Since that wasn't actually at issue in Kelley, though, this rule was seen for some time as "dicta" (an appellate court statement that has no binding precedential effect since it was not necessary to the finding of the court).  Nonetheless, in the early 2000's, the Court of Appeals dealt with a case called Shoup v. Shoup where an alleged stripping of the court's power to modify child support did occur.  While the Court of Appeals ultimately concluded that the agreement at issue in that case didn't actually take away the modification power of the court, it finally made clear that if the agreement had, it would have been invalid.  This still left open for some time, however, the question of whether or not an agreement could bar child support order from ever being reduced, since arguably it's only an agreement that bars child support from ever being increased that would harm a child's best interests.  Many trial courts assumed that a child still has an interest as well in his or her non-custodial parent not being made destitute from a child support order they perhaps could no longer afford, and so child support must always be modifiable either way, but as recently as 2014 the Fairfax Circuit Court had a published opinion in a case called Host v. Host concluding that an agreement forbidding a downward child support modification was ok.  This question was finally settled in August of 2015 in a Court of Appeals case called Everett v. Carome which found as a key to its ultimate ruling that the modification rule found in Kelley and in Shoup forbade agreements from barring downward child support adjustments as well.  As a result, it is now clear law that no child support agreement can permanently forbid any kind of child support modification for minor children, whether that modification is upwards or downwards.

Other Challenges to Settlements

So, those are the only categories of settlements that are automatically invalid and unenforceable.  If, however, a settlement is reached which does not fall into any of the above categories and then one parent wants to challenge it, or if a guardian ad litem has been appointed for the child and the guardian ad litem wishes to challenge the settlement, the settlement can still be invalidated if it is sufficiently proven to the court that the settlement is not in the child's best interests.

Modifications of a Settlement

So, considering that one of the types of settlements that is automatically invalid is a settlement that bars modification of custody, visitation and/or child support in the future, you might be wondering how those things are modified later.  Well, the basic rule is that it is the same way as they would be modified without a settlement - the party moving to modify must show that there has been a "material change in circumstances" since the settlement was approved, and once they've done so, custody, visitation, and/or child support is fully re-opened to litigate or settle.  There is a caveat, however.  If your settlement took into account certain assumptions about what would happen in the future, and worked those assumptions into the settlement, then those predicted things happening cannot be a "material change in circumstances" even if they would be absent an agreement, since the assumption that those things would happen are already effectively a part of the current order.

Settling Custody, Visitation and/or Child Support is Worthwhile

So, reading all the above, you might be thinking "well, then why bother settling these things, if we have to go through all of this?"  The answer is simple.  First, like most settlements, you can do a lot of things in a settlement that the court can't do on its own.  You can agree to have child support continue past the child turning 18.  You can agree to have child support automatically change upon the incomes of the parents changing.  You can agree to have visitation automatically change based on certain pre-determined conditions.  In short, settlement gives you a lot more flexibility than you have in court.

Second, the vast majority of settlements aren't even contested.  Most settlements to custody, visitation and/or child support cases that are presented to a court are not challenged by anyone and are not heavily scrutinized by the court.  The courts are generally too busy to find an issue with a settlement on their own, and people don't usually renege on their settlements.  As a result, the vast majority of custody, visitation and/or child support settlements that don't fall into the category of an automatically forbidden settlement are approved without contest, without trouble, and generally as easily as any other kind of settlement.  Moreover, when those settlements are challenged, they are usually upheld.

In short, settlements in custody, visitation, and/or child support cases are usually flexible, and usually valid.  As a result, if you can reach a settlement in your custody, visitation and/or child support case, it's still a good idea, despite the extra steps that have to be taken.

Conclusion

In recognition of the fact that parents might not always look out for their children's best interests, the courts serve as the final arbiter of those interests, and have the power to invalidate settlement agreements regarding child custody, visitation and/or support if the court finds those settlements to not be in the child's best interests.  Nonetheless, the vast majority of such settlements are valid and approved under guidance from the General Assembly requiring the courts to give at least some deference to the parents' choices.  If you are involved in drafting a custody, visitation and/or child support settlement or a dispute regarding one, please 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 thirty minutes!

Virginia Termination of Parental Rights - An Overview

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 unfortunate realities of life is that not every parent is truly fit to be a parent.  When a parent is unfit, sometimes it is necessary for their rights as a parent to be taken away.  In Virginia, there are three basic ways (although each of these categories has a wide range of sub-categories) a parent's rights can be terminated - through a voluntary termination proceeding, through an involuntary termination proceeding, or through an adoption.

While each of these categories probably deserve blog posts of their own (in fact, a number of their sub-categories deserve blog posts of their own) which I hope to write in the future, today I'm just going to provide a basic overview of the three procedures - what they mean, how they get started, and what their implications are.

What Happens When Your Parental Rights are Terminated?

So, before beginning, it's important to know what it means for your "parental rights" to be terminated.  This doesn't just mean you don't get to see the child anymore.  Remember how, for example, custody and visitation is modifiable?  Well, if your parental rights are terminated, that's permanent (with a couple very rare exceptions I won't get into here), so you can never seek an order allowing you to see your child again.  You also lose any inheritance rights you may have had involving the child, any rights to have any say in how the child is raised, etc.  Basically, as far as the law is concerned, you are no longer that child's parent.

Now, along with your rights being terminated, your responsibilities are as well.  The care of the child is no longer your responsibility, and if you were not the custodial parent, your child support obligation ends as well.  I'm sorry to say I've encountered far too many cases with someone will to just sign away their parental rights and any hope of a relationship with their own child just so that they won't have to pay child support.

So, in short, a termination of parental rights means the law no longer considers you that child's parent.  You have no rights related to that child or responsibilities.  One caveat - if you committed a parental crime before your rights were terminated (abuse or neglect being the main ones) you can still be charged and convicted since this was before your responsibilities had been terminated.

Voluntary Termination of Parental Rights

So, as noted above, I've seen people "sign away their rights" just to get out of child support.  How does that happen?  Well, there are two ways.  I'll get to the most common way at the end of this section, but a less common but potentially robust way comes from the Virginia Code. Virginia Code Section 16.1-277.02 creates a cause of action called a "Petition for Relief of Care and Custody."  In this instance, the parent wishing to give up his or her parental rights must file a petition with the J&DR Court stating that the petitioner wishes to give up his or her parental rights and laying out the reasons for that desire.  Notice must be given to the child (if the child is 12 years old or older), a guardian ad litem appointed for the child, the local Department of Social Services, and all other parents or guardians of the child.  The local Department of Social Services is required to investigate the matter.

At the hearing on the matter, the petitioner, the child (through his or her guardian ad litem), the other parents and guardians and the Department of Social Services all have the right to put on evidence.  After hearing all of the evidence, the court must determine whether it has been proven by "clear and convincing evidence" (so, more than a preponderance of evidence, but not as strict as beyond a reasonable doubt) that termination of the parental rights is in the child's best interest.  In other words, "I don't want to pay child support" isn't a good enough legal reason to terminate your parental rights, even if that is your motivation.  It is also very likely that at least one of the above parties will oppose your efforts (for example, the other parent may not be ok with you never paying child support again).

It is worth noting that many courts have read this code section to require the petitioning parent to actually have custody of the child, and thus dismisses petitions filed by a non-custodial parent.  This is not settled law yet.  As a result, most "voluntary" terminations of parental rights actually occur in cases where an involuntary termination petition is filed, but the parent consents to the termination.

Involuntary Termination of Parental Rights

An involuntary termination of parental rights can occur when the local Department of Social Services concludes your child is in need of their services and should be removed from your home.  This is primarily due to abuse and neglect issues, but can also arise from other matters showing that you are an unfit parent.  While it is possible in certain circumstances for only one parent's rights to be terminated this way, usually both parents' rights are, and the child is placed in foster care with a goal of adoption.  Moreover, it is important to note that one parent cannot petition to terminate the rights of the other parent.

There are many ways and reasons the parental rights are involuntarily terminated, so I will not get into those matters too far here, but a very large percentage of parental right terminations occur in the involuntary termination process.

Adoption

Adoption, both contested and uncontested, also results in the termination of parental rights of biological parents.  There are many kinds of adoptions, so I won't go into all of them here, but in most forms of adoption, legal custody has to be granted to the adoptive parents in the J&DR Court before they can begin the adoption process in the Circuit Court.  For basically all adoptions except agency adoptions and step-parent adoptions, the termination of the biological parents' parental rights occurs in the J&DR Court as part of the same Order that grants the adoptive parents custody of the child.

In agency adoptions, the biological parents' parental rights are terminated when the child is placed in the custody of the agency.  In step-parent adoptions, the parental rights of the biological parent that the step-parent is "replacing" are terminated as part of the Final Order of Adoption in the Circuit Court.

There's an important note about adoptions, however.  Unlike other forms of termination of parental rights, adoptions affect more people than just the biological parents.  Specifically, all people (including grandparents, uncles, aunts, nieces, nephews, etc.) that had a biological relationship with the child through a person whose parental rights have been terminated as part of an adoption also lose their residual rights with regard to that child (we just had a recent case in the Court of Appeals here affirming that the biological grandparents of two children automatically lost their previously ordered visitation rights with their biological grandparents when the children's foster parents adopted them).  There is an exception, however - in step-parent adoptions it is only the parent who loses his or her rights, all of that parent's relatives still retain them.  This exception, however, only applies in the case of a step-parent adoption, not any other form of adoption.

Conclusion

Termination of parental rights is one of the most complicated and emotional situations we face in family law in Virginia.  The procedures can be daunting to someone unfamiliar with the system, and this is a situation where you should virtually always have an attorney.  If you are involved in parental termination proceedings (voluntary or involuntary) or an adoption and you would like to consult with a lawyer, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  Our consults are free for up to half an hour!