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))

 


Can't have three parents when mom left wife for dad, Calif. Ct. says

A child cannot have three legal parents under the Uniform Parentage Act, a California appeals court ruled May 6 in “In Re M.C.”  — remanding the case to the Los Angeles trial court which must pick two of the three as legal parents before proceeding with the further question of where to place the child.

 

Although in the abstract, it pits gay rights against parents’ rights, this is the kind of case that ought to be decided based on its particular factual situation. This is not the case of an ideal, cute couple and their cool, adorable sperm-donor friend, which the TV version would be. The opinion says the mother had a “stormy relationship” with her domestic partner, with “several episodes of domestic violence.” The mother left her, met the father, got pregnant by him, and then lived with the father for a few weeks. She left him to reconcile with her partner, and they married before the child was born. Three or four weeks later, she left again. The father, meanwhile, had supported the mother when she lived together, and later sent money and a signed paternity declaration. When a new boyfriend attacked her wife with a knife, the baby ended up in state custody, the mother went to jail, and the father asked for custody.

 

The appeals court said that all three were “presumed parents” under the UPA, but only two could be the actual parents, and that the lower court should now apply the test from the case of “Kelsey S.” 4 Cal. Rptr. 2d 615 (1992) to see if we was a “constitutionally presumed father” -- one who “comes forward at the first opportunity to assert his parental rights after learning of the child’s existence, but has been prevented from becoming a statutorily presumed father under [UPA] Sec. 7611 by the unilateral conduct of the child’s mother or a third party’s interference.” Section 7611 requires the father to have “received the child into his home” -- something that many unwed fathers might not have occasion to do even if they are available and involved parents.


Should stepparents be legally equal to parents?

A column in Time Magazine by Po Bronson says stepparents should have the legal rights of parents -- though it doesn't specify if that means all the same rights, or a partial or subordinate set of rights. The column is inspired by a recent Washington State supreme court opinion legally recognizing as "de facto parent" a lesbian who was the lifelong primary caretaker of her partner's child, who they had decided to have as a couple.

Some problems with the stepparent rights idea:

- You give someone rights, often that means taking away someone else's. The stepparent's rights would dilute those of the natural parents (in the model Bronson proposes, where the stepparent becomes a third or fourth parent).

- We already have an objective, conscious, consent-based mechanism people can use to make a stepparent into a full-fledged legal parent -- stepparent adoption. It is usually used only when one natural parent consents and/or has willingly gone for years without having any contact with the child. As Bronson points out, this is available, but it always subtracts a parent before adding one. He wants children to have three. Or more?

- Where can we draw the line, in a political environment that is so hostile to any line-drawing? Would the stepparent have to be married to a parent? Or to another stepparent formerly married to the natural parent? Does the non-custodial parent's spouse also qualify? If you can't draw a line at marriage, how will everyone involved know whether the relationship is serious enough that the stepparent has made like the Velveteen Rabbit and become real?