24 Bills Affecting Family Law Get Through Both Houses, 4 Killed, More to Come

Here's how family law bills in Richmond stand after Feb. 20:

 Freshly killed in second house, after passing one house, since last post:

Highlights of what has passed both houses:

Signed by Governor, Enacted Into Law

Divorce

Support

Children

 Elder Law/Probate

Women's Liberation

Passed Both Houses, awaiting governor action OR conference committee -- Full List 

Marriage

 

 

 Children

Domestic Violence

 Elder Law/Probate

 Procedure

Passed One House, then Committee-Approved in Second House

Killed in first house (by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely):

Marriage

Divorce

Support

Children

Domestic Violence

Elder Law/Probate

Procedure


46 bills affecting family law have passed one house & "crossed over" to the other

Here's how family law bills in Richmond stand after Feb. 16:

Fresh kills since last post

Highlights of what has passed both houses:

Passed Both Houses, awaiting governor action OR conference committee 

Marriage

Women's Liberation

Divorce

Support

 Children

Domestic Violence

 Elder Law/Probate

 Procedure

Passed One House, then Committee-Approved in Second House

 Passed One House, then Subcommittee-Approved in Second House 

 Freshly killed in second house, after passing one house, since last post:

Killed in first house (by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely):

Marriage

Divorce

Support

Children

Domestic Violence

Elder Law/Probate

Procedure


Richmond family law action on expat divorce, parenting time, voiding quitclaims, medical subpoenas, digital assets, spendthrifts

Bills that made progress since last post:

New killin' since last post:

Here's how bills stand after House and Senate Committees met on Jan. 25, in this order: (1) Approved by committee (2) Approved by subcommittee (3) Awaiting any committee or subcommittee action (4) Killed.

Approved by House or Senate:

Approved by Committee:

Approved by Subcommittee:

No action yet by any committee or subcommittee:

Marriage

Divorce

Support

Children 

Domestic Violence

Elder Law/Probate

 Procedure

Women's Lib

Killed (by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely):


Va. legislature: More bills affecting families get through committee, more killed, more introduced

Here's how bills stand after House and Senate Committees met on Jan. 18, in this order: (1) Approved by committee (2) Approved by subcommittee (3) Awaiting any committee or subcommittee action (4) Killed.

Approved by Committee:

Approved by Subcommittee:

No action yet by any committee or subcommittee:

Marriage

Divorce

Support

Children 

Domestic Violence

Elder Law/Probate

 Procedure

Women's Lib

Killed (by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely):


Bills would let unregulated gov't non-lawyers file serious court cases against parents, without a lawyer's signature

A bill now in Virginia's  Senate and House of Delegates would let Virginia welfare agencies file court cases against parents without a lawyer signing off on the case -- fundamentally changing the traditional role of law practice as a regulated, accountable profession bound by ethics rules. These are very serious cases that can take apart families, destroy parents' finances and livelihoods, and lead to their being jailed for contempt.

Currently, legal ethics rules, court rules, and the Sanctions statute require all lawsuits to be signed by a lawyer (except for people who represent themselves), and require the lawyer to believe, after due investigation, that the suit is well-founded in the facts and the law and not filed simply to harass, impoverish or delay the other party. They also require lawyers to be truthful to courts, opponents and others involved.  The bill, and the statutes it amends, do not do anything to make these new case-filers subject to those rules. And even if it did, that would not be the same as requiring a lawyer to put her credibility and hard-earned license on the line every time she signs a court filing. 

Welfare agencies do great work but like anyone, they do get things wrong, out of negligence or simply normal human imperfection, not malevolence or corruption. Requiring a lawyer to sign off on these case filings is an important protection for the public, reducing the chances of a completely groundless prosecution, ensuring due process of law, and providing accountability when things go wrong. An example, where a judge felt strongly that sanctions and lawyers' fees should be awarded to the victim of a groundless civil child-abuse suit, is FAIRFAX COUNTY DEPT. OF HUMAN DEV. V. DONALD, 251 Va. 227 (Va. 1996). 

The drafters seem to think that providing standard, foolproof check-box forms (which already exist) removes the need for lawyers. But having non-lawyers draft the forms is never a problem and is not the issue. The issue is protecting citizens and courts, by holding even the do-goodingest government agencies to the same basic rules that govern any other person, corporation or agency that takes someone else to court.

The bill adds to Code § 16.1-260 on Juvenile Court filings:

"designated nonattorney employees of a local department of social services may complete, sign, and file with the clerk, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, and motions for a rule to show cause;"

[Note: "Motions to amend or review" includes modification of any existing child custody, visitation or placement order. "Rule to show cause" means contempt of court, including up to a year in jail and setting amounts of support arrears to be paid in order to get out of jail.]

It adds to § 54.1-3900, on who can practice law:

Nothing herein shall prohibit designated nonattorney employees of a local department of social services from appearing before an intake officer to initiate a case in accordance with subsection A of § 16.1-260 on behalf of the local department of social services.

Nothing herein shall prohibit designated nonattorney employees of a local department of social services from completing, signing, and filing with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause.

And it adds to Code § 63.2-332, "The local director shall designate nonattorney employees who are authorized to (i) initiate a case on behalf of the local department by appearing before an intake officer or (ii) complete, sign, and file with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause."

The proposal is in two bills which appear identical: House Bill 589 and SB 417SB 417 passed the State Senate 20 to 17, with three Senators not voting. I'm proud to say my William & Mary law classmates Jennifer Wexton and Ryan McDougle, Fairfax Senators Chap Petersen and Scott Surovell, my old Senator Tommy Norment, and Donald McEachin all voted Nay. It is now in the House Courts of Justice - Civil Law Subcommittee. It is on the Committee's agenda for this coming Monday, Feb. 22. The subcommittee's members are Delegates Habeeb (Chairman), Kilgore, Loupassi, Minchew, Leftwich, Campbell, Miyares, Toscano, McClellan,  and Krizek. The full Courts committee's members are Delegates Albo (Chairman), Kilgore, Bell, Robert B., Cline, Gilbert, Miller, Loupassi, Habeeb, Minchew, Morris, Leftwich, Adams,Campbell, Collins, Miyares, Watts, Toscano, Herring, McClellan, Hope, Mason, and Krizek.

HBl 589 passed the House almost unanimously and is now in the Senate Courts of Justice Committee, which also meets this coming Monday.

Almost as bad, I see that Code § 54.1-3900 already has existing language allowing this practice for child-support filings. Even though Social Services already has its own internal administrative tribunals that can make and review child support orders without lawyers. It reads:

Nothing herein shall prohibit designated nonattorney employees of the Department of Social Services from completing, signing and filing petitions and motions relating to the establishment, modification, or enforcement of support on forms approved by the Supreme Court of Virginia in Department cases in the juvenile and domestic relations district courts. 

If I understand correctly, this was added a few years ago to protect the validity of existing support orders after it was discovered that some non-lawyer social services employees were already doing this. But they could have done that without allowing the practice to continue and be authorized by the state. The existing language is bad enough but the new version would cover many more kinds of cases. Ideally, an amendment-as substitute should delete that existing language and drop all the new language currently in SB417

If you want to see what protections this bill takes away from parents, Here is Code § 8.01-271.1:

§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions.

Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, and the attorney's address shall be stated on the first pleading filed by that attorney in the action. A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address.

The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.

An oral motion made by an attorney or party in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney's fee.


#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))

 


Congress to Rein in Juvenile Courts, End "Status" Detention

A bipartisan coalition, including Virginia's Rep. Robert Scott and Senate Judiciary Committee Chairman Chuck Grassley of Iowa, is working with the American Bar Association to update the 1974 Juvenile Justice and Delinquency Act to incorporate the latest scientific findings on juvenile psychology and development, crime prevention and community safety. A key feature is the end of jailing youth for "status offenses" -- things that would not be crimes if committed by adults -- and jailing them even temporarily with adult criminals.

The development of holistic, therapeutic juvenile courts over the past 100 years has done much good, but has also given them great power and discretion and little accountability. Children who merely misbehave can be sucked into the system, bring their whole families with them, get permanently defined as troubled youth, and be supervised so constantly that they can never get out of the legal system until they age out, having missed the opportunity to grow up. My father and law partner Richard Edelin Crouch sounded the alarm about this in the William & Mary Law Review 50 years ago, inspired by the Juvenile Court saga of his younger brother, the late Howard R. Crouch, which started when he idly walked by a restaurant, stuck his head in the door and yelled, "This place stinks!". The police were called, the social workers who followed in their wake declared the Crouches a "broken family" because their father had died, and it all helped inspire Richard's lifelong work for civil liberties and the rights of children, parents and families.

Reauthorization bill seeks to update a key juvenile justice law after more than 10 years

BY RHONDA MCMILLION @ abajournal.com, SEP 1, 2015 

See also:

Therapeutic juvenile courts ignored constitutional rights, human nature, says space-age law student


Free-Range Kids & the Law: ABA phone seminar (CLE) July 7

Hands Off My Kids: Free-Range Parenting and Legal Issues.

Continuing Legal Education from the American Bar Association.

>As more single-led households emerge, the issue of free-range parenting becomes more evident. Issues abound, such as how old should a child be to walk to school alone, for how many blocks, or what age can children be left alone by themselves and for how long? We’ve even seen cases where parents have been threatened with jail if their child was overweight. Where is the line drawn between free-range parenting and neglect? Hear from our esteemed panel and special guest Lenore Skenazy, Founder, Free-Range Kids movement, as they discuss:

• Handling media-distorted perceptions of risk

• Vagueness of child neglect statues

• Using expert testimony

• 14th Amendment Due Process

Tuesday, July 7, 1:00 PM - 2:30 PM Eastern Time. 

1.5 CLE credit hours depending on state

Speakers:

More information and registration

 


Va. leads in criminal charges for typical preteen behavior; lawmaker demands reform

"John kicked a bottle in the gutter!!" my kindergarten teacher exploded as soon as my mom picked up the phone. "And?" my mom asked. She realized right then that she needed to get me out of that school and away from people like that teacher.

I'm lucky I'm not a kid these days. Northern Virginia legislator and state senate candidate Scott A. Surovell (D-Mount Vernon), who occupies George Washington's old House seat, writes: 

"Virginia is #1 in child referrals to law enforcement. Virginia's rate for African American students is 10x higher than Maryland, 16x higher than DC, 2x higher than NC. Why? 'In southeastern Virginia, for instance, a 12-year-old girl was charged earlier this year with four misdemeanors — including obstruction of justice for “clenching her fist” at a school cop who intervened in a school fight.' We need to fix this."

For statistics on this in Virginia and all other states; the story of an autistic 11-year-old convicted of disorderly conduct for kicking a trash can, and felony "assault on a police officer" for struggling when a school policeman grabbed him; and a Georgia judge who has worked to stop this trend in his state and testified to Congress about "the School-to-Prison Pipeline and the negative effects of zero tolerance policies",  see:

Virginia tops nation in sending students to cops, courts: Where does your state rank?


How the Real "Mad Men" and Women Lived and Raised Kids -- And We Should, Too

The best-written version of something many of us have known for years. More proof that “humorists” are the most serious, effective social critics and practical philosophers.

Dave Barry: The Greatest (Party) Generation

Raising children wasn’t always an all-consuming job. Humorist Dave Barry on his parents’ wild parties and the grown-up escapades of the ‘Mad Men’ era

By DAVE BARRY*

Looking back, I think my parents had more fun than I did. ... [Read More]

_____  

*Article originally appeared in Wall Street Journal, 2/26/15, adapted from Barry's new book, 

Live Right and Find Happiness (Although Beer is Much Faster): Life Lessons and Other Ravings from Dave Barry