Can "conservative" churches stop breaking up families?

By John Crouch

The “Child-Friendly Faith Project” has a full plate of deadly serious issues of child abuse, sexual abuse, domestic violence, etc.

But for me, as a family law attorney, the idea of "Child-Friendly Faith” also raises other important issues that we need to do something about. 

Churches have too often been involved in child abduction, alienation, and other efforts to destroy two-parent families after divorce or unwed childbearing. As a Christian I’m horrified by churches’ role in, to take two recent examples from Virginia, the long-term “underground” child abduction in the Miller-Jenkins case, and the grossly false abuse accusations and international child abduction in the McLaughlin case.

Partly, it’s that some faith leaders have not focused their attention on family-law issues, and they still have “legacy” views about them which may have been conservative in earlier generations, but which are now so out of step with the reality of family life, that their effect when put into practice is to combine with the worst of anti-family radicalism -- essentially, to take families that are already somewhat broken and break them even further.

For example, I encounter many people who essentially think that every divorce is really a “fault” divorce. And that the spouse who “abandoned” or disrupted the marriage has thus abandoned the whole family, or should be expelled from it. Or that visitation, and dealing with the reality of having a divorced  or unwed family, is worse for children than losing a parent completely. Or that a parent who doesn’t share their religion should not get to be a parent.

Even though these views are superficially more “pro-mother” and “anti-father” than vice versa, I don’t think there’s anything feminist or liberated about them. In fact, they are usually part of a larger pattern of patriarchy -- grandparents who don’t respect their adult children's formation of a new nuclear family with their spouses, and who treat their grandchildren as the property of the patriarchal extended family, not as individuals with a right to know and live with both natural parents.

It’s not just that some clergy have these beliefs. Those lay people who tend to think that way also tend to seek, and expect, help from their churches. 

We need an interdenominational movement to raise churches’ consciousness about healthy ways to deal with divorce and nontraditional families. No, that’s not all that churches should do -- their divorce ministries should not overshadow their fundamental responsibility to support and foster healthy marriages, which has been sorely neglected for generations -- but they also need to stop making divorces worse.

And while it could take some time for churches to decide exactly what to do to HELP divorced and unwed families, there should be no mystery or delay about what they should STOP doing -- stop helping child abductors and others who would force a parent out of a child’s life.


Governor Approves 59 Bills Changing Family Law, 46 More Affecting Family Life, But Modifies Gun Restrictions

Updated 4/23/20

By John Crouch and Sarah Panariello

This year's legislative session included many modest but salutary amendments to make family life and family law a little more efficient and fair. There were also immense amounts of mostly political legislation that will have various side effects on families and work their way into family law cases. 59 of the former and 46 of the latter passed. But another 109 of the family law/family life bills we were tracking are now dead, at least for this year.

The Governor has now acted on all such bills that both houses passed (except for joint resolutions, such as the ones passing the ERA, which do not involve him). He suggested amendments or substitute versions for a few, slightly relaxing new gun-control restrictions and penalties, and signed the rest.

This post has been updated throughout the legislative season to track all family-law bills, and many bills on other topics that will affect family life and family law cases. They are listed below based on what stage of the becomes-a-law process they are at, and then, within that, by subject. If anything is incomplete or not up to date, please inform us by commenting.

HIGHLIGHTS

A bill makes pendente lite spousal support guidelines apply in Circuit Court as well as Juvenile, and reduces them slightly to account for the recent federal tax law change to taxing payors instead of payees for alimony. Another clarifies that after "reserving jurisdiction" to award spousal support, such support can only be awarded based on a material change of circumstances, unless the agreement or divorce decree expressly says otherwise.  There is also a tweak to the new statute that made alimony awards in new separation agreements be presumed modifiable unless they expressly said otherwise. That would still be the rule, but the statement that prevents or limits modification will no longer have to be in the exact words prescribed by the Code.

A bill splits unpaid expenses of pregnancy and childbirth in proportion to the parents' incomes, if a support case is filed in the child's first six months. Another clarifies that courts can award child-related tax credits, not just dependency exemptions. The cap on what is considered reasonably-priced court-ordered health insurance is lowered significantly.

Targeted for demolition this year is the rule that in Juvenile Court, fee awards are only based on relative economic circumstances, and nothing else. 

Several bills tweak the factors and presumptions in child custody and visitation decisions, but probably with little effect anytime soon. Judges could consider the motives of both parties in grandparent visitation disputes; and should consider a party's history of violent or sexual abuse even if it involved their other partners and children, not the ones the case is about.

Also affecting custody cases is a bill saying both parents must have equal access to day care records and information. Speaking of day care, a huge change is being proposed that would create a comprehensive system of public and private day care for everyone, like unto the K-12 school system. Similar proposed comprehensive social programs include, at the other end of the cradle-to-grave spectrum, a state-run retirement account that private employers could opt into.

Many others are nice little changes, but frankly minor. One bill would have abolished the requirement for  third-party corroborating witnesses to prove divorce grounds. It passed the House, and the Senate's committees, but was defeated on the Senate floor by four votes. Others put legal notices into online publications and take them off of the courthouse door, and let you send notice of publication orders by email, sometimes.

One perennial minor annoyance is the requirement to file an original of the return or affidavit of process-service within 72 hours. When you're having people served in faraway states or on other continents, as I regularly do, that's often impossible.  The questionable 72-hour rule remains, but there is a bill that allows copies, faxes, scans etc. instead of the original.

As always, there are many bills cracking down on domestic violence and sexual abuse, but there is so little of this still left to do that they are either exceedingly marginal, or so imaginative that their net effect may be to give the bad guys more destructive ideas, such as filing lawsuits to retaliate against, or deter, victims' pursuing civil or criminal remedies. 

Adult guardianship and conservatorship are facing a major overhaul, aiming much more scrutiny at guardians and other fiduciaries.

Sexual freedom and discrimination: One bill abolishes the requirements for children to get a parent's or a judge's permission for abortions. Others all but outlaw "conversion therapy" for minors, and do several things to banish all forms of anti-gay or anti-trans discrimination. And among the first bills to pass both houses are two ratifying the federal Equal Rights Amendment. 

A few bills aim to decriminalize school and adolescence. A couple assure schools that they do not have to involve the police every time a child does something that might be a misdemeanor. Another says that schools and school buses are not "public places" when applying criminal laws against "disorderly conduct."  Sunscreen would no longer be contraband in school, but the kids would have to stay out of tanning salons. After all, how do we know that they aren't getting "conversion therapy" in those tanning beds? Other bills aim to put fewer children on the sex offender registry for the rest of their lives, and send most teenage "sexters" to counseling instead of child-pornographer prison.

Many bills incrementally restrict minors' access to guns. Almost all of them seem mostly harmless, requiring locking weapons away from minors, extending to age 18 the crime of  recklessly allowing minors under 14 access to firearms, making it a felony, and changing that "recklessly" standard to "negligently." Such rules should be fine if they actually are applied with factually informed standards for what is reasonable, what is reckless, and what is negligent in that particular community and household. But it's also understandable that people are vigilant about "for the children" legislation being twisted to take huge bites out of the freedom and self-sufficiency of adults and youth.

In the big picture, hunters, gun owners, religions, tanners, guardians, sunscreen police, divorce corroborators, wife-beaters and conversion therapists shouldn't feel singled out for cultural genocide. There's also legislation to begin licensing and regulating art therapists, music therapists, naturopaths, doulas and court reporters. If only because once they're state-licensed professionals, they won't be allowed to do conversion therapy.

DEAD BUT NOT FORGOTTEN (UNTIL NEXT YEAR, ANYHOW)

Who says there's no free lunch, or that the General Assembly has no family-law visionaries? One bill says child and spousal support can only be based on net income -- not on gross, and not on earning capacity or imputed income. Another says if support is going through the DCSE, the payee gets paid even when the payor doesn't pay. Sadly, despite much talk about transforming the Old Dominion, Virginia is not yet the Big Rock Candy Mountain, the place where, as Captain John Smith promised, "Evereey manne shall cavorte and bee fruetfulle and multiplye under his owne vyne and figge tree."  These two were among the very first bills to die.

A tiny and I hope redundant addition to child custody law would have urged judges to assure frequent, continuing contact with both parents -- of course only "where appropriate" (sigh). This slight whimper was then watered down to get through subcommittee, and again in committee, only to be killed anyway on the House floor, 52-41.

Next came reforms to contempt of court. One bill said that if you bring a contempt case and you lose, you can appeal the "not in contempt" finding to the Court of Appeals, fixing a disconcerting oddity in the law that has come to light in the last few years. As for judge-initiated "summary" contempt punishments, someone considered it helpful to extend the maximum jail time to 30 days. Dead, and dead.

While the great cavalcade of bills aimed at protecting the incapacitated from their own guardians almost all survived, two worthy efforts that failed said that the beneficiaries of guardianship should have a voice in their own guardianship cases, and generally should not be cut off from any other family members.

As if people didn't have enough to worry about, the House refused to let Protective Orders prohibit using electronic remote control of things in and around the victim's home. Well, we don't want protective order forms to become a long checklist suggesting new ways to abuse people.

On the sexual freedom front, much ground is being won, but many sweeping efforts are dead, for this year at least. One of them puts absolute reproductive freedom in the state constitution. Others require employers and insurers to pay for abortion, sterilization, and everything in between on the spectrum of contraception; repeal the "conscience clause" that lets religious institutions with traditional moral beliefs keep operating adoption agencies, and even redefine child abuse and neglect to include "inflicting, creating, allowing or threatening any physical or mental injury based on gender identity or sexual orientation". 

BILLS AND THEIR STATUS

PASSED BOTH HOUSES: 

  • SJ 1 Ratifies Equal Rights Amendment
  • HJ 1 Ratifies Equal Rights Amendment

GOVERNOR REQUESTED CHANGES INSTEAD OF SIGNING: 

  • SB 479 as passed by both houses: No guns for people under any protective orders, not just those for family violence. 24 hour grace period to transfer guns. Anyone under a protective order has 48 hours to certify in writing that he or she now possesses no firearms; failing to do so is a misdemeanor. The governor's amendment changes that failure to certify from a criminal misdemeanor into civil contempt of court. It makes other changes that clarify the wording but do not change the substance. The legislature has approved the governor's amendment.
  • HB 1004: No guns for people under any permanent protective orders. 24 hour grace period to transfer guns. Anyone under a protective order has 48 hours to certify in writing that she now possesses no firearms; failing to do so is a misdemeanor. The governor's amendment changes that failure to certify from a criminal misdemeanor into civil contempt of court. It makes other changes that clarify the wording but do not change the substance. The legislature has approved the governor's amendment.
  • SB 71 Expands the prohibition of weapons on school property to include daycare and preschool property, including the entire building (such as a church) that the day care or preschool is in, but only during the hours when the day care, etc. is open. Does not apply to day care operated in the residence of the provider or of one of the children. But still bans weapons in churches during day care/preschool hours. Daycare may have armed security; that is added to many existing exceptions, such as knives being used for food service or other employment, school-sponsored programs, law enforcement, unloaded and properly stored weapons, and otherwise-legal weapons kept safely in vehicles. The governor's substitute adds that the provisions governing day cares and private or religious preschools "(i) shall apply only during the operating hours of such child day center or private or religious preschool and (ii) shall not apply to any person (a) whose residence is on the property of a child day center or a private or religious preschool and (b) who possesses a firearm or other weapon prohibited under this section while in his residence." Makes a couple other wording changes, which are not substantive. The legislature has approved the governor's amendment.

APPROVED BY GOVERNOR, BECOMING LAW AS OF JULY 1, 2020: 

Divorce

Marriage

  • SB 62 Race information not required in marriage records, divorce/annulment reports, VS-4s, nor divorce statistics
  • SB 955 Civil celebration of marriage fee maximum increased to $75  

Custody/Parenting Time

  • HB 436 Uniform Child Custody Jurisdiction and Enforcement Act; disclosure of identifying information when one party claims it would be dangerous: Currently, once one party claims this, it cannot be disclosed unless the court decides to in a hearing within 15 days of the filing of a pleading. This bill adds "or affidavit" after "pleading." 
  • SB 430 Each parent to have access to child-care records, regardless of custody. 
  • HB 137 Guardians ad litem for children must give certification of compliance with standards.
  • HB 861 Requires courts in custody and visitation cases to consider  "any act of violence, force, or threat as that phrase is defined in § 19.2-152.7:1 against an intimate partner or the intimate partner's child, or any history of sexual abuse or child abuse," in addition to the current requirement to consider any "history of family abuse." no earlier than 10 years prior to filing of petition.
  • SB 105 Requires courts in custody and visitation cases to consider  "any act of violence, force, or threat as that phrase is defined in § 19.2-152.7:1 against an intimate partner or the intimate partner's child, or any history of sexual abuse," in addition to the current requirement to consider any "history of family abuse." no earlier than 10 years prior to filing of petition.
  • SB 214 GALs to review and report on Individualized Education Plans in young-adult guardianship cases

Child Support

  • SB 434 Court may award either parent the right to claim child-related income tax credits as well as dependency exemptions. 
  • HB 637 "Reasonable cost of health care coverage," in law on ordering coverage as part of child support, to mean no more than 5% of providing parent's income, instead of 5% of parents' combined incomes.
  • SB 428 Any unpaid medical expenses for pregnancy and birth to be split
  • HB 690 Temporary Assistance to Needy Families (TANF): Repeals the prohibition on increasing the amount of Temporary Assistance for Needy Families (TANF) that a family receives upon the birth of a child during the period of TANF eligibility or an adult recipient is ineligible because of child support compliance issues

Spousal Support

  • SB 432 Material change of circumstances required before court may use post-divorce "reserved" jurisdiction to order spousal support, unless a contract, stipulation or court order says otherwise.
  • HB 1500 Pendente lite spousal support guidelines shall apply in Circuit Court as well as Juvenile, and are reduced slightly to account for federal tax law change taxing payors instead of payees for alimony.
  • HB 1501 Spousal support in a stipulation or contract made after 7/1/18 is still modifiable if the contract does not expressly say that it is not modifiable, or limit modifiability; but that express statement will no longer have to be in specific wording required by statute.

Adoption

  • HB 94 Must give proper notice of adoption proceeding to legal custodian.
  • HB 721 Post-adoption contact and communication agreements; parents whose parental rights were involuntarily terminated may enter such agreements.

Child Abuse/Foster Care

  • HB 778  60 instead of 45 days for "family assessments" when children alleged to be at risk.
  • HB 287 Extends from one year to three years the period of time for which the Department of Social Services must retain records of unfounded investigations of child abuse or neglect before purging.
  • HB 933 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
  • SB 178 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
  • SB 472 Foster care; encourages termination of parental rights improves training and information about voluntary and involuntary termination, independent living needs assessments.
  • SB 156 Fostering Futures program to provide services and support to former foster care children now between 18 and 21
  • HB 904  Public sports programs' volunteers and employees shall be mandated reporters of suspected child abuse/neglect

Domestic Violence/Protective Orders

Elder Laws/Wills/Trusts/Probate

  • HB 1378 Codifies the Uniform Directed Trust Act, allowing and governing the role of a "trust director"
  • HB 305  Fee for lodging, etc., of wills increased from low to mid-single digits
  • HB 362 Physician assistants, not just doctors, can make determinations that patient has no capacity to make informed decisions
  • HB 641 Funeral homes must accept caskets provided by third parties, but need not store them
  • SB 261 Accounts filed by fiduciaries and reports filed by guardians must be signed under oath; not to do so is a misdemeanor
  • SB 553 Uniform Partition of Heirs Property Act -- rules for selling, preserving, or partitioning inherited tenancy-in-common property.
  • HB 839 Probate tax exception/refund for Virginia Beach mass shooting victims
  • HB 775 Directs Virginia College Savings Plan to analyze private retirement plans; report
  • HB 1222 When notarizing for someone in nursing home or assisted living, a passport or driver's license that expired in the last 5 years may be used to prove identity.
  • SB 700 Wills must be indexed in the name of executor named in the will
  • SB 355 Assisted living facilities; audio-visual recording of residents to be studied, stakeholder-grouped, then regulated.
  • SB 1072  Prohibits the court from appointing, as guardian or conservator for an incapacitated person, any attorney who is engaged to represent the person who is asking the court to order the guardianship, whether representing them in that case or in anything else. Includes other attorneys or employees of such attorney's law firm.
  • HB 887 ABLE Savings Trusts may be passed to a survivor.

Procedure

  • HB 1378 Pleadings, motions, and other papers with missing or defective signatures are void unless defect is promptly cured, or unless there is no timely objection to the defect. 
  • HB 834 Courts may permit notice of an order of publication to be given by electronic means in addition to or in lieu of publication in a newspaper
  • HB 60 District court substitute judges will retain power to sign final orders for 14 days after hearing a case.
  • HB 780 Courts to accept copies of proofs process-service in place of originals
  • HB 1346 Makes it easier to get attorney fees paid out of money that is under control of the court
  • SB 451 Juvenile and domestic relations district court; awards of attorney fees shall be determined based on all relevant factors, not just the relative financial ability of the parties.
  • SB 229 Pleadings, motions, and other papers with missing or defective signatures are void unless defect is promptly cured, or unless there is no timely objection to the defect.
  • SB 771 Interlocutory appeals to Court of Appeals: Just listing it here to note that it does not apply to family law cases.
  • SB 693 Common-law defense of intra-family immunity abolished in wrongful death cases.
  • SB 408 Notices of civil case appeals shall not have a hearing until parties have been served or waived service

Sexual Abuse/Assault

  • SB 724 Misdemeanor sexual offenses; increases statute of limitations, when victim was a minor.
  • HB 475 Virginia sexual assault forensic examiner coordination program; established, report.
  • HB 870 Sexual abuse: 10-year statute of limitations. keeps 20-year when victim was a minor
  • SB 297 Creates Sexual and Domestic Violence Prevention Fund, administered by Department of Social Services, in coordination with Department of Health and the Virginia Sexual and Domestic Violence Action Alliance, to develop and support programs that prevent sexual and domestic violence;  promote healthy practices related to relationships, sexuality, and social-emotional development; and counteract the factors associated with the initial perpetration of sexual and domestic violence.
  • HB 298 Misdemeanor sexual offenses; increases statute of limitations, where the victim is a minor.
  • SB 579 Streamlines & reorganizes Sex Offender and Crimes Against Minors Registry process; lower-level offenders will no longer have to register annually.
  • SB 42 Sexual abuse via false representation or subterfuge that is part of a massage by a massage therapist, a medical procedure, or physical therapy, shall be aggravated sexual battery. Regardless of victim's age or competence. 1 to 20 years, fine of up to $100,000.00.

Child Safety

  • HB 1083 Minors; allowing access to firearms, Class 1 misdemeanor recklessly allowing access under age 14; Class 3 misdemeanor for recklessly leaving a loaded and unsecure firearm around a child under 14; no unsupervised use under age 12.
  • HB 402 Public school lock-down drills, frequency, exemptions for kindergarteners.
  • HB 578 Smoking; illegal in motor vehicle with a minor under 15 present (current law only covers minors under 8)
  • SB 173 Stun weapons; prohibits possession on school property, exempts holder of concealed handgun permit, but only if it remains in vehicle
  • SB 593 All firearms in a licensed in-home day care provider's home must be stored unloaded and locked up.
  • HB 600 In-home day cares must store guns and ammo separately, and locked up in a container, cabinet, etc.
  • HB 38 Tanning facilities prohibited for minors.
  • HB 799 Day cares must test all drinkable water sources for lead.
  • HB 1080 Firearms or other weapons; unauthorized to possess on school property.

        But the same bill also adds a sweeping statement with no such exceptions at the beginning of existing Code Section 18.2-308.2:2: "All firearm sales or transfers, in whole or in part in the Commonwealth, including a sale or transfer where either the purchaser or seller or transferee or transferor is in the Commonwealth, shall be subject to a criminal history record information check unless specifically exempted by state or federal law." 

        I for one am completely unsure which section is supposed to trump the other. The exceptions clause is framed only as an exception to that particular Code section, and includes the caveat, "unless otherwise prohibited by state or federal law". Such a "state law" would likely include the existing section with its new amendment requiring a lengthy background check process for all transfers, no exceptionsBut that section, in turn, says, "unless specifically exempted by state or federal law." Would that include an exemption whose text is only written to apply within its own Code section? Seems like a chicken-or-egg problem. Although I would hope that any future interpretation would conclude that the legislature could not have intended a ten-point list of exceptions to be completely inoperable.

Education

  • HB 410 Parents must be notified when student gets  literacy or "Response to Intervention" screening and services
  • HB 256 Criminal disorderly conduct does not include things students do in school, on bus, or at school-related activities
  • SB 3 Disorderly conduct; student not guilty of disorderly conduct in a public place if incident occurred on school property, on school bus, or at school sponsored event.
  • HB 257 Schools don't have to contact police about all conduct that might be a misdemeanor
  • SB 729 Schools don't have to contact police about all conduct that might be a misdemeanor
  • SB 186 IEP teams must consider appropriate instruction about sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries
  • SB 238 Increases required kindergarten hours 83%
  • HB 999 Schools must have epinephrine constantly accessible, along with staff trained to administer it 
  • SB 44 Lets students keep and bear sunscreen without a doctor's note, etc.
  • HB 1012 Early childhood care and education; establishes comprehensive public-private system basically like the school system, and operated and regulated by the Department of Education.

Health

  • HB 134 IEP teams must consider appropriate instruction about sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries
  • HB 687 Doulas to be state-regulated, registered and certified
  • SB 423 Health insurance; mandated coverage for hearing aids for minors.
  • SB 213 Study increasing the Personal Maintenance Allowance for people receiving Medicaid, etc.

Mental Health

  • S.B. 713 Establishes state licensing for art therapists; emergency regulations shall issue to implement this.
  • SB 633 Music therapy to be strictly licensed and regulated
  • S.B. 1046 Adds clinical social workers to the list of providers who can disclose or recommend the withholding of patient records.
  • HB 308 Students' excused absences for mental and behavioral health reasons, DOE to create guidelines
  • HB 42 Health care providers must be trained in screening patients for prenatal and postpartum depression

Military Families

  • HB 967 Military service members' spouses: expediting the issuance of professional credentials
  • HB 143 Unemployment compensation for leaving employment to follow military spouse

LGBT Issues

  • HB 145 Statewide minimum guidelines on treatment of transgender students to be developed; public elementary and secondary schools must adopt or exceed them.
  • HB 386 Conversion therapy: state-licensed health care providers, and other state-licensed professionals who do counseling, must not do conversion therapy for minors. No state benefits, funds, contracts or grants to any entity that does it for minors.
  • SB 161 Statewide minimum guidelines on treatment of transgender students to be developed; public elementary and secondary schools must adopt or exceed them.
  • HB 1490 Repeals laws against same-sex marriages and civil unions.
  • SB 17 Repeals laws against same-sex marriages and civil unions.
  • SB 657 New birth certificates to show change of sex: an affidavit of appropriate gender-transition treatment from a health care provider may be required, but no evidence of any medical procedure shall be required
  • SB 245 Conversion therapy: state-licensed health care providers, and other state-licensed professionals who do counseling, must not do conversion therapy for minors. No state benefits, funds, contracts or grants to any entity that does it for minors.
  • HB1041 New birth certificate for sex change may require proof of clinically appropriate treatment, but shall not require any medical procedure.
  • HB 623 Gender-neutral terms throughout the Virginia Code, including laws that punish incest, defaming a lady's "virtue and chastity", or leaving one's wife in a "bawdy place", whether that is for the purpose of prostitution or for "unlawful sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus"; removes prohibitions on same-sex marriage and civil unions. Seems a bit of a mixed bag for the cause of gay rights.

Abortion

  • HB 980 Abortion: Informed consent no longer includes ultrasound, provision of specified information, or offer to review certain printed materials; physician's assistants and nurse practitioners can perform abortions, abortion facilities will not have to comply with regulations for hospitals.
  • SB 733 Abortion: Informed consent no longer includes ultrasound, provision of specified information, or offer to review certain printed materials; physician's assistants and nurse practitioners can perform abortions, abortion facilities will not have to comply with regulations for hospitals.

Criminal

  • HB 1071 Legalizes profanity in public.
  • HB 245 Repeals the crime of fornication, i.e., voluntary sexual intercourse by an unmarried person.
  • SB 378 Computer trespass; expands the crime. No longer requires "malicious intent" if done "through intentionally deceptive means and without authority." Eliminates "without owner's authorization" element in prohibition on installing keylogging software "on the computer of another" -- the "without authority" element still applies, but that element is only an alternative to the "malicious intent" requirement.

DEAD (BY VARIOUS METHODS AND EUPHEMISMS):

Custody/Parenting Time

  • HB 485 Requires courts in custody and visitation cases to "when appropriate, assure frequent and continuing contact with each parent" -- BUT WATERED DOWN EVEN FURTHER TO MERELY ADD "when appropriate, frequent and continuing contact with each parent" TO THE LIST OF FACTORS TO CONSIDER. And even that was apparently too much for a majority of the House, who, in a move I haven't noticed before, approved the committee substitute for the bill but then voted against "engrossing" the bill instead of voting against passing it. I assume that kills it.
  • HB 350 Requires courts in custody and visitation cases to "when appropriate, assure frequent and continuing contact with each parent"
  • SB 571 Grandparent visitation when parent dead: factors court must consider, including parties' motivations
  • SB 431 Mental health professionals may not restrict parents' access to health records, or refuse to testify, as a condition of providing services.
  • SB 61 Using cannabidiol oil or THC-A oil on doctor's written advice shall not be the sole reason for denying or restricting custody, visitation, adoption or foster parenthood.
  • SB 872 Circuit or district court may appoint GAL in custody or visitation case, subject to standards, payment governed by Code § 16.1-267 which seems to provide for extremely low payment and to be designed for various other kinds of cases.

Support

  • SB 502 When child support is paid through Department of Social Services, the Department must pay the recipient even if the payor does not pay.
  • HB 82 Spousal support to be based net income, not gross; earning capacity may no longer be considered when determining spousal or child support; spousal support shall not exceed payor's net income.

Marriage

  • SB 19 Records of marriages shall not require identification of race.
  • HB 863 Person to perform marriage may be designated by marriage license applicant instead of by a judge's order; may perform it anywhere in the state; no bond required for such persons, nor for Quakers performing marriages; record of marriage may be filed by one of the newlyweds or the celebrant; no jail for performing unlicensed marriage or issuing unlawful marriage license.

Divorce

  • HB 291 Uniform Collaborative Law Act
  • SB 844 Computer trespass; expands the crime. No longer requires "malicious intent" if done "through intentionally deceptive means and without authority." Eliminates "without owner's authorization" element in prohibition on installing keylogging software "on the computer of another" -- the "without authority" element still applies, but that element is only an alternative to the "malicious intent" requirement. [Incorporated with SB 378]
  • HB 1530 No-fault divorce grounds corroboration requirement repealed

Adoption

Child Abuse/Foster Care

  • HB 580 Child abuse and neglect includes inflicting, creating, allowing or threatening any physical or mental injury based on gender identity or sexual orientation.
  • HB 289 Requires that interviews of child victims of alleged sexual abuse be conducted as a forensic interview at the local child advocacy center
  • HB 252 Causing or encouraging acts rendering children sexually abused; penalty.
  • HB 288 Criminal sexual assault; definition of sexual abuse, complaining witness under age 13
  • SB 32 Corporal punishment of a child with an object; penalty.
  • HB 920 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
  • HB 809 Welfare department must investigate any report of child abuse and neglect by any "relative by blood, marriage, or adoption, caretaker, or other person with supervisory control over the child or responsible for his care or ... person who resides or is regularly present in the same household as the child."
  • HB 1051 Repeals "conscience clause" that allowed child-placing agencies to refuse to perform, assist with, counsel, recommend, consent to, refer, or participate in any child placements that violate the agency's written religious or moral convictions or policies.  Prohibits the Department of Social Services from contracting with or providing funds, directly or indirectly, to any child-placing agency that discriminates against the child or otherwise eligible prospective foster or adoptive parents on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, marital status, or status as a veteran.
  • HB 673 Cruelty to children; increases penalty to a Class 4 felony.
  • SB 878 Court-appointed counsel for parents in child welfare cases to get additional compensation in the very low three figures
  • SB 501 Adoption and foster care home studies may be done by anyone who has completed the training program; regulations to be issued.

Sexual Abuse/Assault

  • SB 440 Electronic transmission of sexually explicit visual material by minor: misdemeanor, if the perpetrator is the only person in picture or if less than 10 pictures of another minor; alternative sentencing, rehabilitation programs, community service, avoiding permanent record or sex offender status.
  • HB 462 Certified sexual assault nurse examiners; Secretary of HHR to study shortage.
  • HB 251 Prostitution-related crimes; minors, including taking minors or spouse to "a bawdy place", expands sex offender registry, trafficking, pimping, racketeering

Domestic Violence/Protective Orders

  • HB 1001 Assault and battery against a family or household member; prior conviction, term of confinement.
  • HB 628 Lets courts sanction people for filing certain claims in retaliation for, or in order to discourage, actions taken by victims of violence to obtain an order of protection or to pursue criminal charges. This "includes any claim of defamation, intentional infliction of emotional distress, malicious prosecution, or abuse of process that is filed in retaliation for or in order to chill, discourage, or limit any legitimate action taken by a victim of (i) family abuse; (ii) an act of violence, force, or threat; (iii) stalking; or (iv) sexual assault to obtain any order of protection or criminal charges based on such family abuse, act of violence, force, or threat, stalking, or sexual assault. Any such pleadings found by a court of competent jurisdiction to lack either justification in existing law or a good faith argument for the extension, modification, or reversal of existing law shall be presumed to have been filed for an improper purpose."
  • SB 76 No guns for people under any protective orders, not just those for family violence. But keeps 24 hour grace period to transfer guns.
  • SB 145 Assault, assault and battery, or bodily wounding of a person protected by a protective order is a Class 6 felony. Currently, this is only if it results in serious bodily injury.
  • HB 159 Protective order may prohibit using any electronic device to remotely control anything in or around petitioner's home
  • HB 1077  Lets minors petition for a protective order on their own behalf
  • HB 498 Anyone with a permanent protective order will get a wallet-sized "Hope Card" with basic info about the order and the people it protects and restricts.
  • SB 82 Protective order; violation of order, armed with firearm or other deadly weapon.
  • SB 89 Protective orders; violation of order while armed with firearm or other deadly weapon, etc.
  • SB 372 Protective orders; possession of firearms, surrender or transfer of firearms, penalty.
  • SB 574 Protective orders; petitioning court on behalf of incapacitated persons.
  • SB 490 No guns after conviction of stalking, domestic violence or sex assault; criteria for restoring gun rights.
  • HB 867 Single-sex domestic violence shelters allowed.
  • HB 78 No guns after even one misdemeanor household-member assault & battery conviction; criteria for restoring gun rights.
  • HB 470 Protective orders; non-lawyer social services department employees can petition court for protective orders on behalf of incapacitated persons
  • HB 625 Redefines family abuse, as grounds for protective order, to include identity theft
  • HB 1288 No guns after two misdemeanor household-member assault and battery convictions; criteria for restoring gun rights.
  • HB 1182 Protective order may include temporary spousal support and restitution for property damage, medical bills and other financial loss caused by abuse.
  • SB 534 Anyone with a permanent protective order will get a wallet-sized "Hope Card" with basic info about the order and the people it protects and restricts.

Child Safety

  • HB 939 Public high schools must teach firearm safety education, and must do so without firearms.
  • S.B. 129 Public high schools must teach firearm safety education, and must do so without firearms.
  • HB 955 Children's online privacy protection; release of personal information prohibited.
  • SB 16 Assault firearms and certain firearm magazines; prohibiting sale, transport, etc., penalties.
  • SB 18 Firearms; restricting access under age 18, purchase under age 21
  • HB 72 Allowing access to firearms by children; recklessly leaving loaded, unsecured firearm. [incorporated into HB 1083]
  • SB 75 Minors; allowing access to firearms, penalty.
  • HB 463 Minors; allowing access to firearms [incorporated into HB 1083]
  • SB 117 Day care operated in homes needs license if caring for three or more children (current law is five)
  • SB 581 Minors; allowing access to firearms, Class 6 felony. Limits
  • HB 356 Child labor; employment of children on tobacco farms
  • HB 675 License restrictions for minors; use of handheld personal communications devices.
  • HB 853 Firearms; recklessly allowing access to certain persons (including minors, but with major exceptions, see Va. Code § 18.2-308.7)

Elder Law/Wills/Trusts/Probate

  • HB 736 State estate tax reinstated, unless most assets are in a working farm or closely held business
  • HB 96 Powers of attorney must be signed in presence of a witness or notary public
  • HB 76  In suits on written contracts subject to 5-year statute of limitations; if a potential party is a missing person judicially declared dead and the cause of action accrued after they went missing, executor of estate has one year from the declared-dead order to file suit.
  • HB 862 Guardianship; limits on how guardian may restrict communication with close relatives and friends; procedure and standards for courts to resolve disputes about such communication; guardian who restricts communication in bad faith or in his own interest may have to pay others' costs.
  • HB 304 Guardianship and conservatorship petitions must include identifying characteristics/description of the respondent, which shall be included in the information sent to the Criminal Records Exchange.
  • SB 352 Encourages avoiding guardianship and conservatorship when a "supported decision-making agreement" is feasible instead; GALs in adult guardianship cases must consider and report on that alternative.
  • HB 841 Guardianship suits: person it's about shall have right to counsel and to participate and be heard. If not represented, counsel must be appointed. 
  • HB 1321 Supported Decision-Making Act: allows an adult with an intellectual or developmental disability to enter into an agreement with another person, called a "supporter," who will assist the adult in making decisions to manage his affairs, giving them a less restrictive means of receiving assistance than being appointed a guardian or conservator by a court.
  • SB 308 Accounts filed by fiduciaries and reports filed by guardians must be signed under oath under penalty of felony perjury
  • SB 697 Execution of wills; requires the witnesses to be disinterested, meaning having no personal or beneficial interest in the will. Being a fiduciary, guardian or counsel does not prevent someone from being disinterested.
  • SB 359 Deed of gift of real estate requires title search for recordation
  • HB 331 No one particular clinical diagnosis automatically means you're incapacitated.
  • SB 1042 Wills; codifies common-law presumption of undue influence. There is a rebuttable presumption of undue influence on a testator if the testator (1) was mentally feeble when his will was made, (2) named a beneficiary who stood in a relationship of confidence or dependence to the testator; and (3) previously had expressed an intention to make a contrary disposition of his property.

Procedure

  • S.B. 663 All health practitioners must assist and cooperate with their patients' litigation and attorneys
  • SB 1060 For good cause shown or upon agreement of all parties, the court may dismiss a case without prejudice.  Plaintiff may re-file within the original period of limitation.
  • SB 334 Court Reporters to be licensed and regulated
  • HB 712 Lets legal notices appear in online publications [Incorporated into HB 588
  • HB 588 Lets legal notices appear in online publications
  • HB 95 Decisions that a person is not in contempt of court can be appealed to the Court of Appeals.
  • HJ 22 Study deficient/outdated training of substitute and retired district court judges
  • HB 163 Contempt of court "summary punishment" -- increases max penalty to 30 days
  • HB 1206 Court may order state payment of GAL for good cause shown in any civil case.
  • HB 401 Court-appointed counsel for parents in child welfare cases to get additional compensation in the very low three figures
  • SB 529 Slight change to hearsay exception for past statements by a person who is now dead or incompetent.

Education

  • HB 158 Tax deduction for K-12 school tuition or home instruction expenses
  • HB 332 Students must receive "rapid automatized naming" and "rapid alternating stimulus" (RAN/RAS") tests for dyslexia and other reading difficulties
  • HB 678 Parental Choice Education Savings Accounts
  • HB 1277 Public schools; reduces number of Standards of Learning assessments, report.
  • SB 390 Reduces Standards of Learning assessments to the federally-required minimum
  • HB 926 Income tax, state; credit for employer contributions to Virginia College Savings Plan accounts.
  • HB 223 Education, recommendations for improving civic education.
  • HB 197 Financial literacy objectives; study incorporating them into math SOL
  • HB 455 TANF (welfare) receiving families to get community college scholarships in pilot program

Health

  • HB 823 Health Insurance Premium Payment program coverage expanded
  • S.B. 858 to license and regulate naturopathic doctors
  • SB 104 Vaccinations and immunizations; certain minors given authority to consent.
  • HJ 18 Universal health care; study cost of implementing in the Commonwealth
  • HB 529 Universal health care; study options for financing.
  • SB 946 State medical-assistance funding for doulas' services.

Mental Health

  • HB 40 Public schools must have mental health break spaces
  • SB 315 Emergency rooms must screen for depression, provide info/referrals

LGBT Issues

  • HB 966 Limits regulation of Conversion Therapy to protect "the fundamental right of an individual to select for himself, based on an informed and voluntary choice, a form of counseling that involves nothing more than 'talk therapy,' regardless of the age of the individual, including in situations where the patient is seeking such counseling to assist him in reducing or eliminating unwanted attractions or behaviors or concerns about gender identity."

Military Families

  • HB 930 Military service members' and veterans' spouses: expediting the issuance of professional credentials [Was incorporated into HB 967]

Abortion

  •  SJ 2 Constitutional amendment; right to personal reproductive liberty
  • HB 1473 Surrogacy contract provisions requiring abortion or selective reduction unenforceable, void, against state public policy.
  • S.B. 635 Right to reproductive choice, fundamental right to choose or refuse contraception or abortion. Even for persons under state control or supervision. Any state or local official charged with violating this can be sued in state or federal court, for injunction or damages, by any person or entity.
  • SB 21 Abortion; repeal of parental/judicial consent requirement for minors, and other restrictions (incorporated into SB733)
  • HB 1445 All health insurance plans must cover abortion, contraception and many other "reproductive health" and women's health services. Extremely narrow exception for "religious employers".
  • HB 526 All health insurance plans must cover contraception and many other "reproductive health" and women's health services. Covering abortion is required when mother's life endangered or after rape or incest. Extremely narrow exception for "religious employers".
  • SB 917 All health insurance plans, including state ones, must cover abortion, voluntary sterilization, genetic mutation screening/counseling, domestic violence screening/counseling, STDs, all forms of contraception, and many other "reproductive health" and women's health services. A very few strictly-defined "religious employers" might get an exception from abortion-funding requirement.
  • SB 920 Surrogacy contract provisions requiring, or prohibiting, abortion or selective reduction are unenforceable, void, against state public policy.

Criminal


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.