2018 Va. family law legislation: Alimony, court reporter reform, abuse prevention, child support, inheritance, violence, legalized adultery?

UPDATED APRIL 10, 2018

MODIFICATION BY THE GOVERNOR 

  •  HB 1351 Joint legal or physical child custody; custody and visitation decisions, communication to parties. Governor added: In any case or proceeding involving the custody or visitation of a child, to enable the child to apply for a state or federal benefit and upon the request of any party, the court shall make any finding of fact required by state or federal law in order for the child to receive such benefit. The existing language, which the Governor did not change, is: "The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody."  The bill's original text, completely replaced as it went through both houses, was, "The consideration of "joint physical custody" means the court shall consider custody and visitation arrangements that are reasonably constructed to maximize a child's time with each parent to the greatest extent possible in the child's best interests." At least the statute still says, "The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children." 

ENACTED, SIGNED BY GOVERNOR

KILLED (incl. passed by, stricken, tabled, continued to next year ...)

  • HB 599 Child support; nonpayment, amount of arrearage paid, suspension of driver's license.
  • HB 1223 Erin's Law, having schools educate children to recognize, resist and report molestation
  • HB 661 Assault and battery against a family or household member; enhanced, penalty. [Passed house, passed senate with substitute,  each house insisted on its own version, time ran out for Conference Committee]
  • HB 411 Assisted conception; gender-neutral as to same-sex.
  • HB 998 Parental or legal custodial powers, temporary delegation of; child-placing agency. [Passed House, continued to 2019 in Senate committee]
  • HB 807 Custody and visitation agreements; best interests of the child, violent abuse of other family members
  • HB 412 Marriage-related criminal laws; gender-neutral terms, adultery repeal, penalty.
  • HB 413 Adoption; gender-neutral as to same-sex.
  • HB 414 Same-sex marriage; marriage laws, gender-neutral terms.
  • HB 478 Domestic violence-related misdemeanors; enhanced, penalty.
  • HB 1237 Assault and battery against a family or household member; first offense, enhanced penalty.
  • HB 149 Child support order payee; change in physical custody of child, orders involving DSS.
  • HB 1331 Child support; review of guidelines federal compliance.
  • SB 64 Custody and visitation decisions; communication to parties required in writing.
  • SB 70 Custody and visitation; rights of parents with a disability.
  • SB 178 Parental or legal custodial powers, temporary delegation of; child-placing agency.
  • SB 596 Victims of domestic violence, etc.; firearms safety or training course.
  • SB 603 Same-sex marriage; gender-neutral terms.
  • SB 612 Assisted conception; parentage presumption.
  • SB 727 FOIA; exemptions for courts of record, courts not of records and Office of the Executive Secretary
  • SB 938 Child support; withholding of income, contracts with an independent contractor.
  • HB 216 Guardians, licensed physician, etc.; annual reports to include medical examination.
  • HB 383 Missing-heir search firms; void contracts.
  • HB 406 Guardianship; protects communication between incapacitated persons & others, notification of relatives.
  • HB 406 Guardianship; communication between incapacitated persons & others, notification of relatives.
  • HB 1403 Electronic wills; requirements.
  • HB 1565 Presumption of death; missing person reports.

 Compiled by John Crouch, updated by John Crouch and Sarah Araman


#KansasSpermDonor media coverage spreads savage, medieval notions of children as trade goods

In a case that has gone on for years now, a couple found a sperm donor on craigslist instead of going to a sperm bank or fertility clinic. States have laws that say sperm donors won't be considered fathers, but they require several procedures, standards and safeguards, and a licensed clinic must be responsible for the procedure. 

Some media coverage has perpetuated the inhumane, patriarchal, but still widespread notions that children are property to be bought and sold  by contract, and that child support is a trade-off for visitation. Fox's WHTI TV 10 in Terre Haute, Indiana says in today's story on the case, "Kansas sperm donor fights back after state forces him to pay child support":

"'Angie and Jennifer are the parents,' Marotta said. The state of Kansas won’t accept that. Despite the fact that the lesbian couple and Marotta signed a contract giving up all parental rights to the child."

"According to Marotta his lawyer has only found one other case in the United States where this has happened, but in that case the sperm donor had changed his mind and requested visitation with the child. Something Marotta’s never wanted, or asked for."

The social services spokesperson quoted in the article has it exactly right: 

“If an individual wants to have the protections of a sperm donor, he needs to follow the law. ... Parental rights can not be signed away without following adoption laws.

And that's exactly what those involved should have done, at least after Kansas's Supreme Court upheld a trial court decision recognizing gay co-parenthood in February of 2013. The Court's opinion in that case shows how it differs from this one:

The coparenting agreement before us cannot be construed as a prohibited sale of the children because the biological mother retains her parental duties and responsibilities. The agreement is not injurious to the public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother. 

 I am for freedom of contract and against government interference, far more than almost anyone else I know. But your freedom of contract ends where your children's fundamental rights and interests begin. Including the child's right to parents, recognized in the UN Convention on the Rights of the Child.* Because of that, courts and other government agencies are in charge of investigating and approving adoptions. That authority is exercised pretty minimally in cases that are based on mutual consent, particularly where one biological parent remains a parent, but it is still crucial for the government to have a role in any change so fundamental as changing who a person's parents are. This gives the state and judges a chance to oversee the process, to verify the parents' informed consent, to step in when it looks like the adoption is not in the child's interests, and to have uniform official records confirming legal parent-child relationships.

*Relevant Parts of the United Nations Convention on the Rights of the Child:

The family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community." (CRC Preamble)

The child ... shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. (CRC Art. 7)

 States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. (CRC Art. 8(1))

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. (CRC Art. 9(1))

States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. (CRC Art. 9(3))

States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. (CRC Art. 14(2))

 


Adoption's tough reality, & how all of us can help

This is a short and great article. I think it is equally valid for any religious community and even for non-religious communities that fulfill some of the same mutual-support functions.

Three Scenes: The Open Secret in Christian Adoption Circles and Why it Matters to the Church

How will you and your church contribute to the ministry of adoption? 

 By Ed Stetzer on christianitytoday.com

 


CHILD REMOVAL-FOSTER CARE- TERMINATION-ADOPTION PROCESS PORTRAYED AS NEVER BEFORE

An article by Rachel Aviv in the New Yorker magazine of December 2, 2013 follows very closely and scrupulously the inexorable process our present legal system provides to turn children into adoptable commodities and parents into strangers. In portraying this process and system, the author gives a very detailed history of one case, quoting the exact words of the child, the parent, and the social workers, lawyers, judges and psychologists involved. This is supplemented by excerpts from various academic studies of the process. It also gives a brief history of how child neglect came to be viewed as a problem for the legal system and adoption came to be regarded as a “felt need” and then a right. This is a mostly unprecedented article that could prove very informative to  lawyers and judges who see such cases in the course of their work. — Richard Crouch


Supreme Court silently ignores clear text of Indian Child Welfare Act, "needlessly demeans parenthood"

The majority opinion in Adoptive Couple v. Baby Girl (U.S. S.Ct. June 25, 2013) displays a disturbingly dismissive attitude towards unwed fathers, and indeed all non-custodial parents, and toward the purposes of the  Indian Child Welfare Act, while making a textually decent case that three particular pieces of ICWA do not apply to the case: 25 USC § 1912 (d) and (f), which appear to be written primarily for children removed from Indian homes and put in foster care, which sound like good, safe rules to apply to adoptions in order to protect parents' and children's basic constitutional rights, but which may not literally apply to adoptions the way they are written; and 25 USC § 1915 (a), which clearly comes into play only AFTER a decision that a child will be put up for adoption, giving preference to extended family, other members of the tribe, and then Indians from other tribes.  But those statutes are not the primary ones covering this case. The clearly stated, fundamental rule covering this case is the rule on voluntary consents to adoption:

"25 USC § 1913 - Parental rights; voluntary termination. (c) Voluntary termination of parental rights or adoptive placement; withdrawal of consent; return of custody. In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent."

This provision is the clearest and simplest basis for dismissing the adoption and immediately returning the child to the father. It makes it unnecessary to consider the other ICWA provisions, which gave the Court so much difficulty and dissension.  It was cited in the South Carolina Supreme Court opinion below, Adoptive Couple v. Baby Girl, 398 S.C. 625 (2012), and I cannot imagine why it is mentioned not at all in the majority opinions, and only once, briefly, in the otherwise-awesome dissents. That lower-court opinion also contains several key facts of the case, conveniently omitted from the majority opinion. Such as that the father had filed a paternity suit.
What is truly scary about this case is the way it talks about non-custodial parents and unwed fathers, echoing some of the justices' comments in the oral arguments of Abbott v. Abbot, about the Hague Convention on international child abduction. The majority justices equate being a non-custodial parent with complete abandonment of any role as a parent, as if they were personally unfamiliar with the widespread realities of family breakdown and non-marital pregnancy, and had made no effort to investigate how these things work in contemporary society and law. They are extremely skeptical that the Act could have been intended to be used by unwed fathers who have not already had custody, and that skepticism colors their textual interpretation. On the other hand they gush about the adoptive parents, and how the adoptive father cut the umbliical cord himself -- even though the actual father was not invited to do so and it makes no difference whatever to the child. As Justice Scalia, dissenting, sums it up:
"The Court’s opinion … needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.”"
In this case the father had earlier agreed to the mother keeping the child, which is not the same as agreeing to adoption. It did not seem like the same thing to the father, nor does it to most people, nor does the law treat it that way, but the majority opinion sees it as the moral equivalent of "abandoning" a child. He later signed something which would count as a proper consent to adoption, but claimed he didn't understand that the mother was putting the chld up for adoption by third parties -- which is certainly believable given that everyone from young unwed fathers to the Chief Justice of the U.S. Supreme Court has a lot of difficulty understanding basic concepts and distinctions in family law. But anyhow, the federal Indian Child Welfare Act gave him the right to revoke that consent at any time up until the final adoption order was issued, and he did that within that time limit -- in fact, the very next day.  That should have been the end of it, and the baby, then four months old, was supposed to have been returned to him immediately at that point under the Act.
Adoption is wonderful, of course, but at that point the child was not up for adoption. “We must remember that the purpose of an adop­tion is to provide a home for a child, not a child for a home.” In re Petition of Doe, 159 Ill. 2d, at 368, 638 N. E. 2d, at 190, quoted by Justice Sotomayor, dissenting.
 Now, I can't do justice to the dissents. They are splendid. They are required reading for anyone interested in family law or constitutional law. Including those of us who are forced to become interested in family law only when family law becomes interested in us. And Justice Sotomayor seems to be the one Justice who accepts that family breakdown is not a stigmatized aberration, but a widespread fact of life that should be dealt with in a way that respects everyone's dignity, i.e., that non-custodial parents have valuable roles, responsibilities and rights; who believes that if the Court gets involved in family law it should educate itself about family law, about what statutes and case law are in force and are followed in practice; and who looks back to the last era when the Court got involved in family law and defined parents' constitutional rights in family law cases. (Although I guess the same care and values should be attributed to the justices who joined her dissent, Scalia, Ginsburg and Kagan.) Here is just one out of many extremely quotable passages:
“The majority’s focus on “intact” families … begs the question of what Congress set out to accomplish with ICWA. In an ideal world, perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children. They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities. In an ideal world parents would never become estranged and leave their children caught in the middle. But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve IWCA’s substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much. ICWA’s definitions of “parent” and “termination of parental rights” provided in §1903 sweep broadly. They should be honored.” -- Justice Sotomayor, dissenting.
Here are the statutes discussed by the majority opinion:
25 USC § 1912 (d) Remedial services and rehabilitative programs; preventive measures. Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
25 USC § 1912 (f) Parental rights termination orders; evidence; determination of damage to child. No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
25 USC § 1915 (a) Adoptive placements; preferences. In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with
(1) a member of the child’s extended family;
(2) other members of the Indian child’s tribe; or
(3) other Indian families.

 


Supreme Court Narrows Indian Child Welfare Act

I haven't looked under the hood of this decision yet, but this sounds like exactly the typical kind of case where ICWA would apply and would keep the child in the tribe. The Indian being an unwed father should not make any difference, and is certainly not a novel and unforeseen twist. The news stories quote Scalia's dissent:

"This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection."

And Sotomayor's dissent:

Sotomayor said the court's decision turns the law "upside down, reading it from bottom to top in order to reach a conclusion that is manifestly contrary to Congress' express purpose in enacting ICWA: preserving the familial bonds between Indian parents and their children and, more broadly, Indian tribes' relationships with the future citizens who are 'vital to (their) continued existence and integrity.'"

"The anguish this case has caused will only be compounded ... Baby Girl has now resided with her father for 18 months," she said. "However difficult it must have been for her to leave Adoptive Couple's home when she was just over 2 years old, it will be equally devastating now, if at the age of three and a half, she is again removed from her home and sent to live halfway across the country."

Court: Child isn't required to go to Indian father

By JESSE J. HOLLAND | Associated Press

Justices Say Law Doesn’t Require Child’s Return to Indian Father

By  and  - NY Times

 

 


US rightly refuses Hague Convention case for child-stealing, but state court can return child

I've never heard of a nation's government refusing to process a request for return of a child under the Hague Convention on child abduction, and to let the petitioner then go to a court for a decision on whether to return the child. It must happen sometimes, but you don't tend to hear of it. But the U.S. State Department is absolutely right to do that in the case of Anyeli Hernandez, who was abducted from Guatemala over a year before the Convention went into effect there. "Hernandez, now seven, was abducted in November 2006 and wound up, illegally, with an adopting American couple. ... Guatemalan authorities have prosecuted three people for kidnapping and for placing Anyeli Hernandez up for adoption." ("U.S. will not return illegally adopted Guatemalan girl" - Agence France-Presse, Tuesday, May 15, 2012)

The Hague Convention very clearly says that it only applies to cases where the Convention was in effect between both countries at the time of the abduction. But as the State Department points out, the real mother in Guatemala can still go to the local courts where the child lives to enforce her custody order and undo the adoption. That is not just a theoretical cop-out by the State Dept. - it is something that we and other lawyers do all the time, using a uniform state law, the Uniform Child Custody Jurisdiction and Enforcement Act. It helps many parents in cases where the Hague Convention does not apply.