Family Law Bills Racing Through 2023 Virginia Gen'l Assembly

By Alison Gedraitis and John Crouch

Our Virginia family law legislation blog posts always cut a wide swath -- not just  family-law bills, but anything that affects how we practice family law -- such as evidence and procedure rules; wills, probate, etc., which are also part of our work, and anything that affects the families we typically work with and the choices they have to make in their cases, including some legislation about education, health care, child safety, and several other topics.

But as fast as Alison -- from American University and St. Norbert -- moves, the legislators have been moving even faster, since they are doing this full-time this season, while she's also working for our clients and going to college. So I'm posting what we have added so far, including the core areas of family law and only some of the outlying subjects. More soon.

APPROVED BY GOVERNOR: None yet.

PASSED BOTH HOUSES: None yet.

PASSED ONE HOUSE, ON FLOOR OF THE OTHER: None yet.

PASSED ONE HOUSE, IN FULL COMMITTEE OF THE OTHER: None yet.

PASSED ONE HOUSE:

Divorce

  • HB 1385 Divorce; affidavit submitted as evidence, minor children of the parties- Clarifies that an affidavit submitted as evidence in support of a divorce shall state whether there were minor children either born of the parties, born of either party and adopted by the other, or adopted by both parties.

Custody/Parenting Time

  • HB 1581 Child custody, etc.; educational seminars approved by Office of Ex. Sec. of Supreme Court of Va- Provides that when the parties to any petition where a child whose custody, visitation, or support is contested are required show proof that they have attended an educational seminar or other like program conducted by a qualified person or organization.

Child Support

  • HB 1549 Wrongful death; death of parent or guardian of child resulting from driving under the influence- If a defendant unintentionally causes the death of a parent or guardian of a child as a result of driving /operating a watercraft under the influence, the person who has custody of the child may petition the court to order the defendant to pay child support!

Domestic Violence/Protective Orders/Harassment/Stalking

  • SB 873 Family abuse protective orders; filing a petition on behalf of minors- For purposes of filing a petition for preliminary protective order in family abuse situation, attorney for the Commonwealth or a law-enforcement officer may file a petition on behalf of a minor as his next friend if petition is filed before a previously issued emergency protective order for the minor expires or within 24 hours of expiration. (Cross-reference: Child Abuse)
  • HB 1590 Telephone, digital pager, or other device to signal; causing alert with intent to annoy, penalty. Modernizes the harassing phone call statute to include any communications that may ring or otherwise signal or alert. Under current law, only telephones and digital pagers are included.

Child Abuse/Neglect/CHINS/Foster Care/Child Safety

  • SB 873 Family abuse protective orders; filing a petition on behalf of minors- For purposes of filing a petition for preliminary protective order in family abuse situation, attorney for the Commonwealth or a law-enforcement officer may file a petition on behalf of a minor as his next friend if petition is filed before a previously issued emergency protective order for the minor expires or within 24 hours of expiration. (Cross-reference: Domestic Violence)

Marriage

  • HB 2071 Persons other than ministers who may perform rites of marriage; issuance of order, etc- Provides that a clerk may issue an order authorizing one or more persons resident in the circuit in which a petition was filed to celebrate the rites of marriage in the Commonwealth. (Current law only allows a circuit court judge to issue such an order)
  • SB 1096 Marriage; lawful regardless of sex of parties-A marriage between two parties is lawful regardless of the sex of such parties, provided that such marriage is not otherwise prohibited by the laws of the Commonwealth.

Child Abuse/Neglect/CHINS/Foster Care/Child Safety

  • SB 835 Juveniles; prohibited sales and loans. Makes definition of "sexual conduct" neutral regarding sexual orientation for the purposes of crimes related to prohibited sales and loans to juveniles. Incorporates SB 837 (Cross references: LGBT, Sex Abuse)

Sexual Abuse/Assault

  • SB 835 Juveniles; prohibited sales and loans. Makes definition of "sexual conduct" neutral regarding sexual orientation for the purposes of crimes related to prohibited sales and loans to juveniles. Incorporates SB 837  (Cross references: LGBT, Child Abuse)

LGBT

  • SB 835 Juveniles; prohibited sales and loans. Makes definition of "sexual conduct" neutral regarding sexual orientation for the purposes of crimes related to prohibited sales and loans to Child Abuse, Sex Abuse) juveniles. Incorporates SB 837  (Cross references: Child Abuse, Sex Abuse)

Judges

  • HB 2012 Retired Supreme Court justices and Court of Appeals judges may be recalled in circuit courts.

Education

  • HB 1629 Virginia Parent Data Portal; Board of Education to create and maintain, report.

OUT OF COMMITTEE / ON FLOOR IN ONE HOUSE:

Custody/Parenting Time

Child Support

Spousal Support

Marriage

Divorce

  • HB 1583 It is unlawful for any person to knowingly and intentionally cause an electronic device to secretly or furtively peep or spy or attempt to peep or spy into or through a window, door, or other aperture of any building, structure, or other enclosure occupied or intended for occupancy as a dwelling, whether or not such building, structure, or enclosure is permanently situated or transportable and whether or not such occupancy is permanent or temporary, or to do the same, without just cause, upon property owned by him and leased or rented to another under circumstances that would violate the occupant's reasonable expectation of privacy. The provisions of this section shall not apply to a lawful criminal investigation. Under current law, such acts are prohibited only when the person causes the electronic device to enter the property of another. (As amended) (Cross-references: Procedure, Criminal Law)

Adoption

Child Abuse/Neglect/CHINS/Foster Care/Child Safety

  • SB 1392,   Wide-ranging "assault firearms" ban including absolute ban on anyone under 21 doing anything with them. Not as extreme as most "assault weapons" bans, because most of it uses the definition already in Virginia law, "equipped at the time of the offense with a magazine which will hold more than 20 rounds ... or designed by the manufacturer to accommodate a silencer or equipped with a folding stock."  However, it inserts a much wider definition in a section that bans any sale of "assault firearms," although that section is deceptively titled "§ 18.2-308.2:2. Criminal history record information check required for the transfer of certain firearms." That section starts by saying that dealers can only sell "assault firearms" to people 21 or older, but further down, it bans dealers from selling "any assault firearm to any person."
     The existing text of the statute follows the term "any person" with  "who is not a citizen of the United States or who is not a person lawfully admitted for permanent residence." But the proposed bill makes the phrase "any person" absolute, by inserting the word "or" after it. The new wording of the statute would, then, say, "no dealer shall sell, rent, trade, or transfer from his inventory any assault firearm to any person or any semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine that will hold more than 20 rounds of ammunition or is designed by the manufacturer to accommodate a silencer or is equipped with a folding stock to any person who is not a citizen of the United States or who is not a person lawfully admitted for permanent residence." [New language in italics.]  Incorporates SB 918, SB 1283. Currently-live version, discussed here, is a substitute bill. 

Sexual Abuse/Assault

Domestic Violence/Protective Orders

Retirement

Elder Law/Wills/Trusts/Probate

Procedure

  • HB 1386 Interlocutory decrees or orders. Prohibits the appeal of certain interlocutory decrees or orders relating to affirmance or annulment of a marriage, divorce, custody, spousal or child support, control or disposition of a minor child, or any other domestic relations matter. The bill also restores the Court of Appeal's jurisdiction over appeals of orders granting or denying pleas of immunity. Under current law, such orders are appealable to the Supreme Court. The bill requires the Virginia Family Law Coalition to study appeals of interlocutory decrees and orders involving domestic relations matters in the Commonwealth and to report.

Health

LGBT Issues

Education

  • HB 1659 Students with disabilities; DBHDS, best practice standards, transition of records.

Mental Health

  • HB 1659 Students with disabilities; DBHDS, best practice standards, transition of records.

Military Families

  • HB 1436 Income tax; military benefits subtraction; age restriction. Removes the age 55 or older restriction on those individuals allowed a military benefits income tax subtraction beginning with taxable year 2023
  • HB 2362 Military spouses; state shall pay fees charged for their burial at state-operated veterans' cemeteries. As amended, includes National Guard and Reserves.  (Cross-reference- Elder/Probate)
  • SB 924 Military spouses; state shall pay fees charged for their burial at state-operated veterans' cemeteries.  (Cross-reference- Elder/Probate)
  • HB 2246 (incorporating former HB 1868). Unremarried surviving spouses of veterans who'd be eligible for special license plates for certain types military service shall likewise be eligible for them. 

Elder law/Wills/Trusts/Probate

  • HB 2362 Military spouses; state shall pay fees charged for their burial at state-operated veterans' cemeteries. As amended, includes National Guard and Reserves.  (Cross-reference- Military)
  • SB 924 Military spouses; state shall pay fees charged for their burial at state-operated veterans' cemeteries.  (Cross-reference-Military)

Abortion / Reproductive Technology

Constitutional

Criminal

  • HB 1583 It is unlawful for any person to knowingly and intentionally cause an electronic device to secretly or furtively peep or spy or attempt to peep or spy into or through a window, door, or other aperture of any building, structure, or other enclosure occupied or intended for occupancy as a dwelling, whether or not such building, structure, or enclosure is permanently situated or transportable and whether or not such occupancy is permanent or temporary, or to do the same, without just cause, upon property owned by him and leased or rented to another under circumstances that would violate the occupant's reasonable expectation of privacy. The provisions of this section shall not apply to a lawful criminal investigation. Under current law, such acts are prohibited only when the person causes the electronic device to enter the property of another. (As amended) (Cross-references: Procedure, Divorce)

Real Estate

Judges

  • HB 2015 Unlawful picketing or parading to obstruct or influence justice; penalty.
  • SB 843 Retired circuit court and district court judges; evaluation required before they can be recalled to try cases.

Lawyer Ethics and Discipline

IN FULL COMMITTEE IN ONE HOUSE:

Custody/Parenting Time

Paternity

Spousal support

Child Support

  • HB 2038 Health Insurance Coverage: state employees and incapacitated adult children: Incapacitated children will be included in a state employee's health insurance coverage, even if not living in employee's household, so long as the child is dependent upon the employee for more than half of the child's financial support, and is receiving residential support services.

Marriage

Divorce

Adoption

Child Abuse/Neglect/CHINS/Foster Care/Child Safety

  • HB 1636 Child day program or family day system; for the purpose of the Class 4 felony prescribed for any parent, guardian, or other person responsible for the care of a child younger than the age of 18 who by willful act or willful omission or refusal to provide any necessary care for the child's health causes or permits serious injury to the life or health of such child, the term "willful act or willful omission" includes operating or engaging in the conduct of a child day program or family day system without first obtaining a license such person knows is required by relevant law or after such license has been revoked or has expired and not been renewed.

Sexual Abuse/Assault

Domestic Violence/Protective Orders

  • HB 1572 Emergency response; false information by device, penalty. Makes it a Class 1 misdemeanor to maliciously advise or inform another over any other device by any means, or cause another to do the same, of the death of, accident to, injury to, illness of, or disappearance of some third party, or of the imminent threat to the safety of a person, that results in an emergency response, knowing the information to be false. The bill defines emergency response as a response by law-enforcement officers, firefighters, or emergency medical personnel to a situation where human life or property is in jeopardy and the prompt summoning of aid is essential. Current law only prohibits such false information to another by telephone. House subcommittee amendments and substitutes adopted.

Procedure

Education

Elder Law/Wills/Trusts/Probate

Retirement

Health

LGBT Issues

Mental Health

  • HB 1624 Mental health and rehabilitative services; military service members transitioning to civilian life- Adds military service members transitioning from military to civilian life to the list of persons supported by the program for mental health and rehabilitative services administered by the Department of Veterans Services. (Cross-reference - Military)

Military Families

  • HB 1624 Mental health and rehabilitative services; military serv. members transitioning to civilian life- Adds military service members transitioning from military to civilian life to the list of persons supported by the program for mental health and rehabilitative services administered by the Department of Veterans Services. (Cross-reference - Mental)

Abortion / Reproductive Technology

Constitutional

Criminal

Real Estate

Judges

Lawyer Ethics and Discipline

IN SUBCOMMITTEE IN ONE HOUSE:

Constitutional Law

  • HJ 531 Constitutional amendment; exemption for certain personal property tax. Makes scouting units' (i.e., troops, packs, crews, ships, posts) property exempt from local property taxes even if it's formally owned by a nonprofit group that sponsors or supports the scout unit. I wrote this one. The first draft, that is. Because Arlington's charging my kids' troop over $3,000 in vehicle tax and (!!!???)  "business property tax."  I'm trying to get people who are supportive of scouting, or of me and my family, to email their legislators and to spread the word about it. Info and background at http://bit.ly/vantax. (Cross-reference - Taxes)
  • HJ 505 Constitutional amendment; rights of parents (first reference)- Provides that parents have the right to direct the upbringing, education, and care of their children and that the Commonwealth shall not infringe these rights without demonstrating that its governmental interest is of the highest order and not otherwise served.
  • SB 1243 Prohibits extraditing people from Virginia to other states where they are charged with violating abortion laws that are different from Virginia's laws, BUT ONLY IF they were not physically present in the other state when they allegedly violated that state's laws. (Cross-references: Abortion, Procedure, Criminal)
  • HJ 509 Constitutional amendment; public schools of high quality-Provides that each child attending public school has a right to access a school-based mental health professional licensed by the Commonwealth as a licensed clinical social worker or licensed professional counselor, including the right to choose a mental health professional who will not utilize applied behavioral analysis. (Cross-references - Mental, Education)
  • HJ 553 Constitutional amendment; marriage between two individuals. Affirmative right to marry. Repeals the constitutional provision defining marriage as only a union between one man and one woman as well as the related provisions that are no longer valid as a result of the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644 (2015). The amendment provides that the right to marry is a fundamental right inherent in the liberty of persons and requires the Commonwealth and its political subdivisions and agents to issue marriage licenses between two individuals, recognize marriages between two individuals, and treat all marriages between two individuals equally under the law, regardless of the sex or gender of the parties to the marriage. The amendment provides that religious organizations and clergy acting in their religious capacity have the right to refuse to perform any marriage.(Cross-references - Marriage, LGBT)

Marriage

  • HJ 553 Constitutional amendment; marriage between two individuals. Affirmative right to marry. Repeals the constitutional provision defining marriage as only a union between one man and one woman as well as the related provisions that are no longer valid as a result of the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644 (2015). The amendment provides that the right to marry is a fundamental right inherent in the liberty of persons and requires the Commonwealth and its political subdivisions and agents to issue marriage licenses between two individuals, recognize marriages between two individuals, and treat all marriages between two individuals equally under the law, regardless of the sex or gender of the parties to the marriage. The amendment provides that religious organizations and clergy acting in their religious capacity have the right to refuse to perform any marriage.(Cross-references - LGBT, Constitutional)

Divorce

Adoption

  • HB 1699 Minors; buying or selling a minor is a Class 5 Felony. Includes giving or receiving, requesting or offering, money or valuable things in exchange for custody or control of a minor. Exceptions for a surrogacy contract or seeking to adopt or place child for adoption pursuant to relevant law. (Cross references: Abortion/Reproductive, Child Abuse, Custody.)

Custody/Parenting Time

  • HB 2280 Surgical & medical trtmt. of certain minors; written parental consent, admission to mental health facility. (Cross-reference - Health)
  • HB 1699 Minors; buying or selling a minor is a Class 5 Felony. Includes giving or receiving, requesting or offering, money or valuable things in exchange for custody or control of a minor. Exceptions for a surrogacy contract or seeking to adopt or place child for adoption pursuant to relevant law. (Cross references: Abortion/Reproductive, Adoption, Child Abuse, Custody.)
  • SB 1214 Child abuse and neglect; custody and visitation, possession or use of marijuana- A child shall not be considered abused or neglected, and no person should be denied custody or visitation on the sole factor that the child's parent or guardian possessed or consumed marijuana in accordance with applicable law. (Cross reference - Child Abuse)

Paternity

  • HB 2259 Paternity; genetic tests to determine parentage, relief from paternity, certain actions, penalty- Provides that any person who knowingly gives any false information or makes any false statements for the purpose of determining paternity is guilty of a Class 6 felony.

Child Support

  • HB 2290 Judgment or child support order; pregnancy and delivery expenses: Courts shall order the legal father (not including sperm donors) to pay 50% of the mother's unpaid pregnancy & delivery expenses, and 50% of mother's paid maternity leave (or bereavement leave for a nonviable pregnancy or stillbirth), UNLESS court orders differently for good cause shown. If a government program has paid the expenses, then the reimbursement shall be to the government. Two amendments pending: (1) recommended Jan. 24 and (2) recommended Jan. 25.

Spousal Support

Domestic Violence/Protective Orders

  • HB 1961 Family abuse protective orders; relief available, password to electronic device- Granting the petitioner and, where appropriate, any other family or household member of the petitioner, exclusive use and possession of a cellular telephone number or electronic device and the password to such device.

Procedure

  • HB 1432 Trespass; service of process. Provides immunity from criminal trespass for any person who goes on or remains on the property of another after having been forbidden to do so by a sign or signs posted by or at the direction of a person lawfully in charge of such property, provided that the person going on or remaining on the property is authorized to serve process and is engaged in the lawful service of process.
  • SB 1243 Prohibits extraditing people from Virginia to other states where they are charged with violating abortion laws that are different from Virginia's laws!!!! (Cross-references: Abortion, Constitutional, Criminal)

Education

  • HJ 509 Constitutional amendment; public schools of high quality-Provides that each child attending public school has a right to access a school-based mental health professional licensed by the Commonwealth as a licensed clinical social worker or licensed professional counselor, including the right to choose a mental health professional who will not utilize applied behavioral analysis. (Cross-references - Mental, Constitutional)
  • HB 2425 Higher educational institutions; information about institutional debt, report, civil penalty- Certain higher education institutes in the Commonwealth will be required to report to the Secretary of Education on January 1st of each calendar year with certain documents and information about current and former students who have educational debts to said institutions.
  • HB 2076 Virginia Military Survivors and Dependents Education Program, broadens eligibility.(Cross-reference - Military)
  • SB 818 Public elementary and secondary schools to teach mental health education. (Cross-reference - Mental)
  • HB 2236 Secured Schools Program and Fund; established.

Health

  • HB 2224 Newborn screening tests; fees prohibited- Required newborn screening tests shall be performed at no cost to parents, guardians, hospitals or health care providers. (Reported out of Health/Welfare subcommittee, BUT with recommendation to re-refer to Appropriations committee.
  • HB 2280 Surgical & medical trtmt. of certain minors; written parental consent, admission to mental health facility. (Cross-reference - Custody)
  • SB 1101 Paid family and medical leave program; Virginia Employment Commission required to establish.

Retirement

Mental Health

  • HJ 509 Constitutional amendment; public schools of high quality-Provides that each child attending public school has a right to access a school-based mental health professional licensed by the Commonwealth as a licensed clinical social worker or licensed professional counselor, including the right to choose a mental health professional who will not utilize applied behavioral analysis. (Cross-references - Constitutional, Education)
  • SB 818 Public elementary and secondary schools to teach mental health education. (Cross-reference - Education)
  • HB 2074 Assault and battery; persons diagnosed with autism spectrum disorder, intellectual disability, not subject to mandatory minimum sentences if condition related to their actions.
  • SB 1272 Assault and battery; persons diagnosed with autism spectrum disorder, intellectual disability, not subject to mandatory minimum sentences if condition related to their actions.

Military Families

  • HB 2076 Virginia Military Survivors and Dependents Education Program, broadens eligibility.(Cross-reference - Education)
  • HB 1565 Military spouses; state shall pay fees charged for their burial at state-operated veterans' cemeteries. Includes National Guard and Reserves.  (Cross-reference- Elder/Probate)
  • SB 1032 Disabled veterans & surviving spouses of certain military; state subsidy of property tax exemptions. (Cross-reference - Tax)
  • SJ 231 Const. amendment; prop. tax exemption for surviving spouses of soldiers who died in line of duty. (Cross-reference - Tax)

Elder law/Wills/Trusts/Probate

  • HB 1565 Military spouses; state shall pay fees charged for their burial at state-operated veterans' cemeteries. Includes National Guard and Reserves.  (Cross-reference- Military)
  • SB 1223 Vulnerable adults; financial exploitation, venue for trial.

Sexual Abuse/Assault

  • HB 2398 Sexual extortion; penalties. Adds sexual extortion, defined in the bill as when an accused maliciously disseminates or sells, or threatens to maliciously disseminate or sell, a videographic or still image created by any means whatsoever that depicts the complaining witness or such complaining witness's family or household member who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, to the list of actions that, when used to accomplish certain acts against the will of another person, constitute rape, forcible sodomy, object sexual penetration, aggravated sexual battery, or sexual battery. (Cross-reference: Sexual Assault)

Child Abuse/Neglect/CHINS/Foster Care/Child Safety/Firearms

  • HB 2018 Children's Services Act; information sharing, confidentiality exception- Family assessment and planning teams (FAPT) and community policy and management teams (CPMT) can share information with local law enforcement or threat assessment teams established by local school boards if a FAPT or CPMT obtains information from which the team determines that a child poses a threat of violence or physical harm to himself or others.
  • HB 2129 Child victims and witnesses; using two-way closed-circuit television, expands age range and eases requirements.
  • SJ 241 Child dependency case; Office of the Children's Ombudsman continuing to stud legal representation- Directs the Office of the Children's Ombudsman to continue its work group considering issues relating to the Commonwealth's model of court-appointed legal counsel in child dependency cases.
  • SB 1214 Child abuse and neglect; custody and visitation, possession or use of marijuana- A child shall not be considered abused or neglected, and no person should be denied custody or visitation on the sole factor that the child's parent or guardian possessed or consumed marijuana in accordance with applicable law. (Cross reference - Custody)
  • SB 1443 Parents Advocacy Commission; recommendations for establishing, report. "... work group to study the establishment of the Parents Advocacy Commission to provide training, qualification, and oversight for court-appointed counsel who represent parents in child dependency cases. The work group shall review, analyze, and make recommendations for possible models for the Parents Advocacy Commission's standards of practice and training and certification procedures, including the model currently implemented by the Virginia Indigent Defense Commission for court-appointed counsel in criminal proceedings. The work group shall also study and make recommendations for the development of local or regional offices for the Parents Advocacy Commission. ..."
  • HB 1699 Minors; buying or selling a minor is a Class 5 Felony. Includes giving or receiving, requesting or offering, money or valuable things in exchange for custody or control of a minor. Exceptions for a surrogacy contract or seeking to adopt or place child for adoption pursuant to relevant law. (Cross references: Abortion/Reproductive, Adoption, Custody.)
  • HB 2141 Owners of firearms; use of firearm by minor in commission of crime or to cause bodily injury.
  • HB 2421 Firearm, stun weapon, or other weapon on school property; limits prohibition on possession.

Abortion / Reproductive Technology

  • HB 2357 Surrogacy; relinquishment of parental rights- surrogate may relinquish parental rights to at least one intended parent before birth.
  • HB 1699 Minors; buying or selling a minor is a Class 5 Felony. Includes giving or receiving, requesting or offering, money or valuable things in exchange for custody or control of a minor. Exceptions for a surrogacy contract or seeking to adopt or place child for adoption pursuant to relevant law. (Cross references: Adoption, Child Abuse, Custody.)
  • HB 1488 Abortion; use of public funds prohibited.
  • HB 2270 Abortion; right to informed consent, penalties. Requires physicians and authorized nurse practitioners to follow certain procedures and processes to effect a pregnant woman's informed written consent prior to the performance of an abortion and imposes civil and criminal penalties for violations of certain provisions.
  • HJ 519 Constitutional amendment; fundamental right to reproductive freedom (first reference)-Provides that every individual has the fundamental right to reproductive freedom and that the right to make and effectuate one's own decisions about all matters related to one's pregnancy cannot be denied, burdened, or otherwise infringed upon by the Commonwealth, unless justified by a compelling state interest and achieved by the least restrictive means.
  • SB 1243 Prohibits extraditing people from Virginia to other states where they are charged with violating abortion laws that are different from Virginia's laws, BUT ONLY IF they were not physically present in the other state when they allegedly violated that state's laws.  (Cross-references:  Constitutional, Procedure, Criminal)
  • HB 1395 Rights beginning at conception; definitions, etc.

LGBT Issues

  • HJ 460 Constitutional amendment; repeal of same-sex marriage prohibition (first reference)- Repeals the constitutional provision defining marriage as only a union between one man and one woman as well as the related provisions that are no longer valid as a result of the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644 (2015).
  • HJ 553 Constitutional amendment; marriage between two individuals. Affirmative right to marry. Repeals the constitutional provision defining marriage as only a union between one man and one woman as well as the related provisions that are no longer valid as a result of the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644 (2015). The amendment provides that the right to marry is a fundamental right inherent in the liberty of persons and requires the Commonwealth and its political subdivisions and agents to issue marriage licenses between two individuals, recognize marriages between two individuals, and treat all marriages between two individuals equally under the law, regardless of the sex or gender of the parties to the marriage. The amendment provides that religious organizations and clergy acting in their religious capacity have the right to refuse to perform any marriage.(Cross-references - Marriage, Constitutional)

Taxes

  • SB 1529 Right to life; tax credit for each birth of a dependent member of a taxpayer's household-Allows a refundable income tax credit of $250 for each birth of a dependent member of a taxpayer's household that occurs in taxable years 2023 through 2027 (only available to families with annual household income that does not exceed 400 percent of current poverty guidelines and is subject to aggregate cap of $25 million per taxable year).
  • HJ 531 Constitutional amendment; exemption for certain personal property tax. Makes scouting units' (i.e., troops, packs, crews, ships, posts) property exempt from local property taxes even if it's formally owned by a nonprofit group that sponsors or supports the scout unit. I wrote this one. The first draft, that is. Because Arlington's charging my kids' troop over $3,000 in vehicle tax and (!!!???) "business property tax." I'm trying to get people who are supportive of scouting, or of me and my family, to email their legislators and to spread the word about it. Info and background at http://bit.ly/vantax. (Cross-reference - Constitutional)
  • SB 1032 Disabled veterans & surviving spouses of certain military; state subsidy of property tax exemptions. (Cross-reference - Military)
  • SJ 231 Const. amendment; prop. tax exemption for surviving spouses of soldiers who died in line of duty. (Cross-reference - Military)

Criminal

  • SB 1243 Prohibits extraditing people from Virginia to other states where they are charged with violating abortion laws that are different from Virginia's laws, BUT ONLY IF they were not physically present in the other state when they allegedly violated that state's laws. (Cross-references: Abortion, Constitutional, Procedure)
  • HB 1892 Abduction of a minor; penalty changed from Class 2 to Class 5, but does not change penalties for child abduction by a parent.
  • HB 2398 Sexual extortion; penalties. Adds sexual extortion, defined in the bill as when an accused maliciously disseminates or sells, or threatens to maliciously disseminate or sell, a videographic or still image created by any means whatsoever that depicts the complaining witness or such complaining witness's family or household member who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, to the list of actions that, when used to accomplish certain acts against the will of another person, constitute rape, forcible sodomy, object sexual penetration, aggravated sexual battery, or sexual battery. (Cross-reference: Sexual Assault)

Real Estate

Judges

  • HB 2024 Judges and magistrates; harassing or coercing, doxxing, protecting personal information. Prohibits the state from publishing on the Internet the personal information of any active or retired federal or Virginia justice, judge, or magistrate. The bill adds active or retired federal or Virginia justices, judges, and magistrates to the list of people for which an enhanced punishment applies for the crime of using such person's identity with the intent to coerce, intimidate, or harass. The bill also adds active and retired magistrates to the list of people who may furnish a post office box address to be included in lieu of their street addresses on the lists of registered voters. 
  • SB 1031 Judicial Inquiry and Review Commission; exception to confidentiality: JIRC must promptly inform complainant of outcome.
  • SB 1517 Judicial Inquiry and Review Commission; removes confidentiality of papers and proceedings if judge is suspended or appeals, but identity of anyone else involved in the case shall be protected.

Lawyer Ethics and Discipline

  • SB 1494 Disciplining attorneys and reinstatement of attorneys; procedure by three-judge circuit court may be demanded by former attorney seeking reinstatement; appeal is to three-judge panel of Ct. of Appeals instead of Supreme Ct.

DEAD (BY VARIOUS METHODS AND EUPHEMISMS):

Marriage

Divorce

  • HB 1720 Divorce; cruelty, reasonable apprehension of bodily hurt, or willful desertion or abandonment- Eliminates the one-year waiting period for being decreed a divorce on the grounds of cruelty, reasonable apprehension of bodily hurt, or willful desertion or abandonment by either party. 

Adoption

Custody/Parenting Time

  • HB 2091 Parental access to minor's medical records; consent by certain minors to treatment.

Child Support

Spousal Support

Domestic Violence/Protective Orders

  • HB 2079 Assault and battery against a family or household member; prior conviction, second offense sentence- Upon conviction for assault and battery against family or a household member where such person was previously convicted of a violent offense relating to domestic or other malicious intent in the past 10 years, is guilty of a Class 1 misdemeanor and will receive a mandatory minimum sentence of 30 days of confinement.
  • HB 1613 False emergency communication to emergency personnel; penalties, report.
  • HB 2079 Assault and battery against a family or household member; prior conviction, second offense sentence.

Retirement

  • HB 1867 Virginia Retirement System; teachers get four years' retirement credit for earlier active duty military service.

Procedure

  • HB 1880 Localities; record of legal settlement or judgment, disclosure of records.

Elder law/Wills/Trusts/Probate

Military Families

  • HB 1460 Income tax, state; subtraction for low-income mil. veteran w/permanent service-connected disability.
  • HB 1867 Virginia Retirement System; teachers get four years' retirement credit for earlier active duty military service.
  • HB 2152 Higher educational institutions, public; in-state tuition, children of active duty service members - shortened residency requirements.
  • SB 1462 Income tax, state; military benefits subtraction, age restriction.

Sexual Abuse/Assault

  • SB 902 Attorney General; instituting or conducting criminal prosecutions- Authorizes the Attorney General to institute or conduct criminal prosecutions in cases involving a violation of criminal sexual assault or commercial sex trafficking when such crimes are committed against children.
  • SB 921 Sex offenses; prohibiting proximity to children and school property, penalty.
  • HB 2475 Sexual battery; an accused who was a member of clergy, penalty.

Child Abuse/Neglect/Foster Care/Child Safety/CHINS

  • SB 902 Attorney General; instituting or conducting criminal prosecutions- Authorizes the Attorney General to institute or conduct criminal prosecutions in cases involving a violation of criminal sexual assault or commercial sex trafficking when such crimes are committed against children.
  • HB 1708 Juveniles; prohibited sales and loans of materials deemed harmful.
  • SB 921 Sex offenses; prohibiting proximity to children and school property, penalty.

Education

  • HB 1867 Virginia Retirement System; teachers get four years' retirement credit for earlier active duty military service.
  • HB 2152 Higher educational institutions, public; in-state tuition, children of active duty service members - shortened residency requirements.
  • SB 920 School protection officers; employment in public schools.

Health

  • HB 2091 Parental access to minor's medical records; consent by certain minors to treatment.

Mental Health

  • HB 1923 Minors; admission to mental health facility for inpatient treatment. Would have changed standards based on consent, age, and addiction.

Abortion / Reproductive Technology

  • SB 1284 Abortion; prohibited, exceptions, penalty.
  • SB 1483 Abortion; viability, treatment of nonviable pregnancy.

LGBT

Constitutional

Criminal

  • HB 2288 "Assault" firearms; age 21 requirement for purchase, penalty.

Real Estate

Judges

Lawyer Ethics and Discipline


Immensely Wrong Proposed Legal Ethics Opinion: "Replying All to an Email when the Opposing Party is Copied"

BY JOHN CROUCH

My comments to the state bar ethics committee about their proposed advisory opinion which said that if a lawyer emails you and cc's his or her client, it's OK for you to "reply all" because the cc gives you "implied consent" to communicate with the opposing client. The opinion was later issued, with some changes but the same bottom line, by the Virginia Supreme Court.


Draft LEO 1897’s reasons for having a bright-line rule about replying-all to opposing clients are excellent, and well put. But the bright-line rule should be against communicating with represented opposing parties, not for it: Simply “reply” instead of “reply all.” And “consent … means actual consent.” (Kentucky Bar Association Ethics Opinion KBA E-442 (2017), citing New York City LEO 2009-1 (2009)).

The purpose of the Rule 4.2 is protecting clients, not lawyers. The question is not whether opposing counsel is negligent in cc’ing a client. The question is whether the consent exception to Rule 4.2 applies: can a lawyer reasonably assume consent to her communicating directly with the opposing party if she receives an email from opposing counsel that ccs opposing counsel’s client?

We work every day under the assumption that lawyers have not authorized us to communicate with their clients, except when they have explicitly said so, in which case they have usually limited the contexts, topics, time, and/or manner of such communication. (And conversely, that we have not authorized opposing counsel to do so.)

We may also assume their consent if they communicate in a situation that makes it obvious and unavoidable, such as proposing a four-way meeting, Zoom or conference call, or discussing the case with us in the courthouse hallway with the client standing right there. In those implied-consent situations, the lawyers are continuously present and are able to pause or end the conversation at any time, and to tell clients when to speak and when not to. If I am in a deposition or a four-way collaborative divorce meeting, and the other lawyer leaves the room for a few minutes, I know that her permission to communicate about the case does not apply in her absence, and I must chat with the clients about the weather or sports or something.

Those implied-consent situations involve everyone being present (electronically or physically) at the same time. (In California, the first circumstance that may indicate implied consent is whether the other attorney is present. California LEO 2011-181 (2011)). I cannot envision any situation where an e-mail would reasonably be implied consent.

How many of us have ever tried to start a free-for-all open discussion of the case between all counsel and parties, by sending an email? Who would do that in such an uncontrolled, asynchronous, and easily-misunderstood medium as email? Who would want such a freeferall to include her own client, but not the other client? So how is it reasonable to assume that other lawyers are consenting to all that?

MISUNDERSTANDING THE TECHNOLOGY

The Opinion characterizes the contrary opinions from other states as imposing a burden on a lawyer to “review the list of recipients and remove the opposing party from his response.” The situation does not actually require any such thing. To comply with Rule 4.2, all that a lawyer needs to do is to not “reply all,” and instead, to just  “reply,” which is easier and is the normal, reflexive way of answering an email. In contrast, there are media in which reply-all is the default, and difficult to avoid, such as text messaging apps and social media, and 20th-century chat rooms. Those media also lack cc and bcc functions. They are usually lighter in tone and topic. Not coincidentally, lawyers do not use those media for negotiations with opposing counsel.

Even aside from Rule 4.2 considerations, it seems sloppy and dangerous to send any email about one of your cases without taking reasonable care to see who you are sending it to. If you just hit “reply,” you know who you are sending it to. If you then deliberately add people to the cc line, you know who you’re adding. If you choose to “reply all” and there is a “recipient list,” you had better examine it to see who you are broadcasting to.

Some other states’ opinions say there is “a duty to inquire whether the opposing counsel’s client should be included in the reply.” But there is no need for that. If the other lawyer wants her client to see your reply, she’ll forward it to him. If there’s some extraordinary reason why she needs him to see your reply before she can do that, she’ll ask you to reply-all. If you still want to inquire, you can inquire – it’s easier than running through a multifactor balancing test, and 100% more accurate.

“Even though we conclude that consent ... may be implied, we do not mean to suggest that the consent requirement of the rule be taken lightly nor that it is appropriate for attorneys to stretch improperly to find implied consent. Further, even where consent may be implied, it is good practice to expressly confirm the existence of the other attorney’s consent, and to do so in writing.”
California LEO 2011-181 (2011), FN 4

CUSTOM AND USAGE IN THE INDUSTRY

The New Jersey opinion (ACPE Opinion 739 (2021)) describes emails with ccs as “group emails.” That may be consistent with “the customary usages of that technology” in New Jersey, but to apply that description to communication between Virginia opposing attorneys is anachronistic. There are a few areas of life that still include somewhat informal and group-based email communication, but our work for our clients is not one of them.  The New Jersey opinion indicates that lawyers there include so many people in email negotiations that “parsing through the group’s email recipients” is onerous. But here in Virginia, we do not resolve cases by consulting large, radically communal, semi-anonymous collective groups of people on the internet in freewheeling bull sessions.

Once upon a time, e-mail was predominantly considered an informal medium. When many of us first heard of it in the 1990s, its early adopters were computer professionals who had participated in dial-in BBSes (Bulletin Board Systems) and narrowly topical Usenet chat forums.  Some of their folkways, netiquette and jargon were passed on to new email users. Much early email use by lawyers was on Listservs, which, like BBS and Usenet, were open discussions where all messages and replies went to the entire group, including many strangers. And in those days, when e-mail was considered informal, very few lawyers thought it was an appropriate way to communicate professionally with opposing counsel.

That changed very early in the 2000s.  In my field, family law, Virginia lawyers began using email to communicate with opposing counsel. But in doing so, they intentionally retained many of the formal constraints of paper communication. Some firms preferred to send old-fashioned letters as attachments to e-mails. And in e-mails to opposing counsel that our clients are going to see, it is not considered wise to do anything informal, except for being sort of professionally “business-casual”  by dispensing with extra window-dressing verbiage and getting straight to the point. But being snarky, or flippant, cursing, typing “LOL” or “ROFL,” and allusions to off-the-court friendship or enmity, are avoided even more than they were in paper letters, because we know e-mail facilitates hair-trigger responses.  This formality is not some hidebound relic; it is essential armor for modern communication.

In the Collaborative Law community, which is based on transparent communications, we quickly learned that e-mails among both lawyers and both clients were a horrible way to do business, and we stopped, especially for any substantive discussions.

E-mail is now so far from informality that many courts use it as the only method for some crucial notices and service of pleadings to attorneys -- including U.S. District Court; the Court of Appeals of Virginia; and Circuit Courts in cases where attorneys use truefiling.com.  The “informal” frontier of internet communication long ago moved on to text messaging, social media, and other ills that we know not of.

With the cc line, as with most things, we owe its users “such a deference ... as not to suppose they acted wholly without consideration,” as Blackstone put it. If a lawyer puts a client, and, say, a paralegal, on the cc line, shouldn’t we assume there is some reason for making them mere ccs, and not the named addressees of the email? Especially if the email includes a salutation indicating whom it is speaking to, as emails between lawyers generally do? Why would a lawyer be using the cc line, other than for its traditional purpose?

At some point I stopped ccing or even bccing clients. But my concern was that a client might inadvisedly, and probably deliberately, reply-all. I never really considered that a lawyer might do that. And nobody told me to stop ccing; it was my own idea. Looking back through my emails from opposing counsels, there are not many who cced their clients in recent years, but those who did are lawyers who are models of professionalism, toughness, advocacy and competence. I  never even considered that it would be OK with them for me to include their clients in my replies.

THE PURPOSE OF RULE 4.2

Although Virginia has not adopted the ABA Comments on the Rule’s purposes, it has addressed them in LEO 1890, a Compendium Opinion on the Rule:

“The purpose of the no-contact rule is to protect a represented person from “the danger of being ‘tricked’ into giving his case away by opposing counsel's artfully crafted questions,” United States v. Jamil, 707 F.2d 638, 646 (2d Cir. 1983), and to help prevent opposing counsel from “driving a wedge between the opposing attorney and that attorney's client.” Polycast Tech. Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990). The presence of a person's lawyer “theoretically neutralizes” any undue influence or encroachment by opposing counsel. Univ. Patents, Inc. v. Kligman, 737 F. Supp. 325, 327 (E.D. Pa. 1990).

“Authorities recognize that the no-contact rule contributes to the proper functioning of the legal system by (1) preserving the integrity of the attorney-client relationship; (2) protecting the client from the uncounseled disclosure of privileged or other damaging information relating to the representation; (3) facilitating the settlement of disputes by channeling them through dispassionate experts; (4) maintaining a lawyer's ability to monitor the case and effectively represent the client; and (5) providing parties with the rule that most would choose to follow anyway.”

The proposed Opinion undermines all of the above purposes, because, with multi-party e-mail, both attorneys’ continuous presence in the communication — which would neutralize “any undue influence or encroachment by opposing counsel” — is not guaranteed. In fact, it's extremely unlikely, often impossible. E-mail is asynchronous.

 INFERRING AND INTERPRETING CONSENT

So, if I receive an email from opposing counsel with her client on the cc line, is it reasonable for me to assume she is asking us to start a three-way discussion of the case? If so, is her consent contingent on the assumption that I will add my own client to the conversation, to level the playing field? How far does her consent extend?

Chances are, her client is not as busy as either of the lawyers. If the first reply to her email is from her client, has she consented to my reading it? Has she consented to me replying to it? Chances are, when I first see any of these emails, she might be in court or depositions or doing something other than sitting on the edge of her seat waiting for answers to her email. How many times can her client and I go back and forth in our nominally three-way negotiation without waiting for her to check her email and catch up with what we have worked out?

This is not a bright-line rule. This is “If You Give a Mouse a Cookie …”. The Opinion just gives us the cookie, saying we can “reply all,” and is silent about how far we can go with it before the trap is sprung.

Some people have a tendency to “reply all” thoughtlessly. That may mean that it’s somewhat negligent to cc or bcc one’s client. It may mean that the Bar should be merciful to lawyers who thereby violate Rule 4.2. But there is no way that that makes it O.K. to do so.


UPDATE: March 25, 2022: Update: The ethics committee has now voted to table the proposal. 


2022 Virginia Legislation Affecting Family Law and Practice: Prepare to be "Aquamated."

By John Wettach and John Crouch

Updated 3/10/22

PASSED BOTH HOUSES

Adoption

HB 869 Adoption. Allows a circuit court, upon consideration of a petition for adoption, to immediately enter an interlocutory order referring the case to a child-placing agency to conduct a visitation instead of entering an order of reference referring the case to a child-placing agency for investigation and makes other amendments to accommodate for and bolster this change. The bill allows petitions for adoption submitted by the persons listed as the child's parents on his birth certificate to be filed and granted under the provisions governing stepparent adoptions. The bill prohibits putative fathers from registering with the Virginia Birth Father Registry regarding a child whose adoption has been finalized and in certain other instances set forth in the bill and allows written notice of an adoption plan to be sent to a putative father by express mail with proof of delivery in addition to delivery by personal service or certified mailing as in current law.

Child Abuse/Foster Care

CB 396 Foster care placements; court review; best interests of the child. Provides that the court has the authority to review and approve or deny a foster care plan filed by a local board of social services. The bill requires a foster care plan to assess the stability of proposed placements, the services provided or plans for services to be provided to address placement instability, and a description of other placements that were considered for the child. The bill codifies the factors to be considered when determining the best interests of a child for the purposes of developing foster care plans. The bill also (i) requests that the Committee on District Courts study child dependency hearings in the Juvenile and Domestic Relations District Court system and make recommendations to the General Assembly as to whether a separate docket or court would result in better service to children and families involved in child dependency hearings and other family law matters and (ii) directs the Office of the Children's Ombudsman to convene a work group to consider issues relating to the Commonwealth's model of court-appointed legal counsel in child dependency cases.

HB 1334 Child abuse and neglect; valid complaint. Amends the definition of "abused or neglected child" to include a child who is sexually exploited or abused by an intimate partner of the child's parent or caretaker and allows a complaint of child abuse or neglect to be deemed valid by a local department of social services (local department) in such instances. The bill allows a complaint of child abuse or neglect that alleges child trafficking to be deemed valid regardless of who the alleged abuser is or whether the alleged abuser has been identified. The bill requires a local department that receives a complaint or report of child abuse or neglect over which it does not have jurisdiction to forward such complaint or report to the appropriate local department, if the local department that does have jurisdiction is located in the Commonwealth.

Child Support

SB 455 Calculation of gross income for determination of child support; rental income. Provides that for the calculation of gross income for the purposes of determining child support, rental income shall be subject to the deduction of reasonable expenses. The bill further provides that the party claiming any such deduction has the burden of proof to establish such expenses by a preponderance of the evidence. This bill is in response to Ellis v. Sutton-Ellis, Va. App. No. 0710-20-1 (June 22, 2021).

SB 348 Support orders; retroactivity; arrearages; party's incarceration. Makes various changes to provisions of law related to child and spousal support orders, including (i) providing that in cases in which jurisdiction over child support or spousal support has been divested from the juvenile and domestic relations district court and no final support order has been entered, any award for child support or spousal support in the circuit court shall be retroactive to the date on which the proceeding was commenced by the filing of the action in the juvenile and domestic relations district court and (ii) specifying that prejudgment interest on child support should be retroactive to the date of filing. The bill provides that a party's incarceration alone for 180 or more consecutive days shall not ordinarily be deemed voluntary unemployment or underemployment for the purposes of calculating child support and imputing income for such calculation. The bill further provides that a party's incarceration for 180 or more days shall be a material change of circumstances upon which a modification of a child support order may be based. The provisions of the bill related to imputation of income apply only to petitions for child support and petitions for a modification of a child support order commenced on or after July 1, 2022, and do not create a material change in circumstances for the purposes of modifying a child support order if a parent was incarcerated prior to July 1, 2022, and the incarcerated party cannot establish a material change in circumstances other than incarceration.

Criminal

HB 228 Department of Juvenile Justice; juvenile boot camps. Eliminates the authority of the Department of Juvenile Justice to establish juvenile boot camps and the ability of a court to order a juvenile adjudicated delinquent to attend such a boot camp.

Domestic Violence/Protective Orders

HB 749 Virginia Sexual and Domestic Violence Victim Fund; purpose; fee apportionment. Provides that the Department of Criminal Justice Services shall adopt guidelines to make funds from the Virginia Sexual and Domestic Violence Victim Fund, which is used to support the prosecution of domestic violence cases and victim services, available to sexual assault service providers and hospitals for the purpose of funding the cost of salaries and equipment for sexual assault forensic examiners, sexual assault nurse examiners, and pediatric sexual assault nurse examiners, with priority for funding such costs given to such forensic examiners and nurse examiners serving rural or underserved areas of the Commonwealth. The bill also increases the amount apportioned to the Fund from the fixed fees for misdemeanors and traffic infractions tried in district court.

Elder Law/Wills/Trusts/Probate

SB 687 Abuse and neglect; financial exploitation; incapacitated adults; penalties. Changes the term "incapacitated adult" to "vulnerable adult" for the purposes of the crime of abuse and neglect of such adults and defines "vulnerable adult" as any person 18 years of age or older who is impaired by reason of mental illness, intellectual or developmental disability, physical illness or disability, or other causes, including age, to the extent the adult lacks sufficient understanding or capacity to make, communicate, or carry out reasonable decisions concerning his well-being or has one or more limitations that substantially impair the adult's ability to independently provide for his daily needs or safeguard his person, property, or legal interests. The bill also changes the term "person with mental incapacity" to the same meaning of "vulnerable adult" for the purposes of the crime of financial exploitation. As introduced, the bill was a recommendation of the Virginia Criminal Justice Conference. The bill incorporates SB 126. 

SB 389 Support of parents by child; repeal. Repeals the provision of the Code of Virginia requiring an adult child to assist in providing for the support and maintenance of his or her parent, when such parent requires assistance. Under current law, failure to comply with this provision is punishable as a misdemeanor with a fine not exceeding $500 or imprisonment in jail for a period not exceeding 12 months or both.

SB 124 Misuse of power of attorney; financial exploitation; incapacitated adults; penalty. Makes it a Class 1 misdemeanor for an agent under a power of attorney who knowingly or intentionally engages in financial exploitation of an incapacitated adult who is the principal of that agent. The bill also provides that the agent's authority terminates upon such conviction. As introduced, this bill was a recommendation of the Virginia Criminal Justice Conference. This bill incorporates SB 10 and SB 690.

HB 1066 Notice of probate; exception to notice. Removes the exception to the notice of probate under current law that allows such notice to not be given when assets passing under a will or in intestacy do not exceed $5,000.

SB 129 Definitions; cremate; crematory; alkaline hydrolysis. Expands the definition of "cremate" to include reducing a dead human body to ashes and bone fragments through alkaline hydrolysis, a water-based process of dissolution using alkaline chemicals and agitation known as aquamation. The bill adds "aquamator" as an additional term for the existing definition of "cremator." The bill also adds "aquatorium" as an additional term for the existing definition of "crematory" or "crematorium" and amends the definition to include a facility containing a pressure vessel. Under current law, "cremate" means to reduce a dead human body to ashes and bone fragments by the action of fire, and "crematory" or "crematorium" means a facility containing a furnace for cremation of dead human bodies.

HB 623 Guardianship and conservatorship; duties of the guardian ad litem; report contents. Adds to the duty of a guardian ad litem appointed to represent the interests of a respondent in a guardianship or conservatorship case the requirement to recommend that counsel be appointed to represent such respondent upon the respondent's request. Under current law, the guardian ad litem is required to recommend counsel be appointed only when he believes appointment is necessary. The bill further directs the guardian ad litem to include in his report to the court an explanation by the guardian ad litem as to any (i) decision not to recommend the appointment of counsel for the respondent, (ii) determination that a less restrictive alternative to guardianship or conservatorship is not available, and (iii) determination that appointment of a limited guardian or conservator is not appropriate.

HB 634 Guardianship; duties of guardian; visitation requirements. Requires a guardian to visit an incapacitated person at least once every 90 days and make certain observations and assessments during each visit. The bill provides that a guardian may utilize a person who is directly employed and supervised by the guardian, or contract the services of a care manager who is a trained professional who specializes in the field of life-care management, geriatrics, older adults and aging or adults with disabilities and who provides written reports to the guardian regarding any such visits to satisfy the duties imposed upon such a guardian. 

Evidence

HB 734 Virginia Freedom of Information Act; disclosure of certain criminal records. Limits FOIA access to records of closed criminal investigations. Amended during the process; here is what passed both houses via a conference committee.  The widest exception to the restrictions is for "an attorney who provides a sworn declaration that the attorney has been retained by an individual for purposes of pursuing a civil or criminal action and has a good faith basis to believe that the records being requested are material to such action."

HB 1145 Civil actions; health care bills and records. Defines the term "bill" for the purposes of evidence of medical services provided in certain civil actions as a summary of charges, an invoice, or any other form prepared by the health care provider or its third-party bill administrator identifying the costs of health care services provided. The bill also clarifies the procedures for introducing evidence of medical reports, statements, or records of a health care provider by affidavit in general district court.

Health Care / Minors

HB 1359 Health care; consent to services and disclosure of records. Eliminates authority of a minor to consent to medical or health services needed in the case of outpatient care, treatment, or rehabilitation for medical illness or emotional disturbance and the disclosure of medical records related thereto. The bill also provides that an authorization for the disclosure of health records shall remain in effect until such time as it is revoked in writing to the person in possession of the health record subject to the authorization; shall include authorization for the release of all health records of the person created by the health care entity to whom permission to release health records was granted from the date on which the authorization was executed; and shall include authorization for the person named in the authorization to assist the person who is the subject of the health record in accessing health care services, including scheduling appointments for the person who is the subject of the health record and attending appointments together with the person who is the subject of the health record. The bill also provides that every health care provider shall make health records of a patient available to any person designated by a patient in an authorization to release medical records and that a health care provider shall allow a person to make an appointment for medical services on behalf of another person, regardless of whether the other person has executed an authorization to release medical records, provided that such health care provider shall not release protected health information to the person making the appointment for medical services on behalf of another person unless such person has executed an authorization to release medical records to the person making the appointment.

Judges

HJ 152 Election of Court of Appeals of Virginia Judges, Circuit Court Judges, General District Court Judges, Juvenile and Domestic Relations District Court Judges, and a member of the Virginia Workers' Compensation Commission.

SB 6 Maximum number of judges in each judicial circuit. Increases from six to seven the maximum number of authorized judges in the Thirty-first Judicial Circuit (Prince William County/Manassas/Manassas Park). This bill is a recommendation of the Judicial Council of Virginia.

SB 106 Retired circuit and district court judges under recall; evaluation; qualification by the Senate Committee on the Judiciary and the House Committee for Courts of Justice. Requires that retired district court judges sitting as substitutes be found qualified every three years by the Senate Committee on the Judiciary and House Committee for Courts of Justice instead of authorized by the Chief Justice of the Supreme Court of Virginia. The bill also requires the Office of the Executive Secretary of the Supreme Court of Virginia to prepare and distribute an evaluation form for each circuit and district court retired judge who has requested to be called upon to sit in recall during his final year of the three-year period following qualification. The bill further requires that the Office of the Executive Secretary of the Supreme Court of Virginia annually prepare and transmit a report including such evaluations conducted that year to the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the first day of the next regular session of the General Assembly.

Lawyer Ethics and Discipline

HB 117 Attorneys; examinations and issuance of licenses; requirements. Requires, before an applicant is permitted to take the Virginia bar exam, that the applicant furnish to the Board of Bar Examiners satisfactory evidence that he has satisfactorily completed legal studies amounting to at least five semesters, or the equivalent of at least five semesters on a system other than a semester system, of full-time study at a law school approved by the American Bar Association or the Board of Bar Examiners. Under current law, an applicant is required to have completed all degree requirements of such law school.

Mental Health

HB 242 Practice of licensed professional counselors. Adds licensed professional counselors to the list of eligible providers who can disclose or recommend the withholding of patient records, face a malpractice review panel, and provide recommendations on involuntary temporary detention orders.

Real Estate

SB 498 Conveyances of property; acceptance by clerk's office for recordation. Provides that there is a presumption for state and local governmental agency and office purposes that title to property transfers to the grantee upon acceptance of a deed conveying such property by the clerk of court in the county or city in which the property is located. Such presumption does not apply to matters litigated in the federal or state courts.

Retirement 

SB 349 Division of marital property; Virginia Retirement System managed defined contribution plan; calculation of gains and losses.  Provides that if the court enters an order to distribute any Virginia Retirement System managed defined contribution plan, the Virginia Retirement System shall, if ordered by the court, calculate gains and losses from the valuation date through the date of distribution of the benefits.

 

DEAD (BY VARIOUS METHODS AND EUPHEMISMS):

Custody/Parenting Time

HB 856 Child custody, visitation, and placement; best interests of the child. Requires consideration of a child's attachment to a parent or guardian when determining the best interests of the child. The bill defines "attachment" as an aspect of the child's relationship with a parent or guardian that promotes the child's use of the parent or guardian as a secure base from which to explore, learn, and relate and to feel value, security, comfort, familiarity, and continuity.

SB 113 Custody and visitation; grandparents; mediation. Requires any case in which a grandparent petitions the court for custody or visitation of a minor grandchild to be referred by the court to mediation. The bill requires the petitioning party to pay the fee of the mediator.

HB 365 Parenting Coordinator Act. Creates the Parenting Coordinator Act, which provides a framework for the use of a parenting coordinator in actions for divorce, separate maintenance, or annulment in which custody or visitation is in issue, petitions for custody or visitation, and written agreements between parties and parenting coordinators. The Act governs the qualifications, scope of authority, appointment and removal, confidentiality, communication, records maintenance, and fees of such parenting coordinators.

SB 114 Visitation; petition of grandparent. Requires the court, in petitions for visitation filed by the grandparent of a child where either (i) the parent is the grandparent's child and is deceased, incarcerated, or incapacitated, or has had his parental rights terminated or (ii) the grandparent has an established relationship with the child and has provided a significant level of care for the child, to consider the following factors: (a) the historical relationship between the grandparent and child, (b) the motivation of the grandparent in seeking visitation, (c) the motivation of the living parent in denying visitation to the grandparent, (d) the quantity of time requested and the effect it will have on the child's daily activities, and (e) the benefits of maintaining a relationship with the extended family of the deceased parent.

Child Support

HB 1058 Interest on child support arrearages. Provides that no interest shall accrue on arrearages for child support obligations when the order for such support was entered on or after July 1, 2022.

HB 136 Wrongful death; death of the parent or guardian of a child resulting from driving under the influence; child support. Provides that any action for death by wrongful act where the defendant, as a result of driving a motor vehicle or operating a watercraft under the influence, unintentionally caused the death of another person who was the parent or legal guardian of a child, the person who has custody of such child may petition the court to order that the defendant pay child support.

HB 1077 Paternity; genetic tests to determine parentage; relief from paternity; certain actions; penalty. Provides that any person who knowingly gives any false information or makes any false statements for the purpose of determining paternity is guilty of a Class 6 felony. The bill further requires an alleged father of a child be informed of his option to request the administering of a genetic test prior to being entered as the father on a birth certificate. The bill further states that, in addition to any other available legal relief, an individual relieved of paternity who previously paid support pursuant to a child support order entered in conjunction with the set-aside paternity determination may file an action against the other party for repayment of any such support.

Child Abuse / Neglect

SB 412 Termination of parental rights; murder of child. Requires the court to terminate the parental rights of a parent upon finding, based upon clear and convincing evidence, that termination of parental rights is in the best interests of the child and that the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy, or solicitation to commit any such offense, and the victim of the offense was the child of the parent over whom parental rights would be terminated. The bill also requires local boards of social services to file a petition to terminate parental rights in such instances.

Divorce

HB 1351 Grounds for divorce; cruelty, abuse, desertion, or abandonment; waiting period. Eliminates the one-year waiting period for being decreed a divorce on the grounds of cruelty, reasonable apprehension of bodily hurt, or willful desertion or abandonment.

Retirement

SB 418 Division of marital property; military retainer pay. Provides that, for the purposes of dividing marital property, military retainer pay shall be classified as separate property.

Domestic Violence / Sexual Assault

HB 359 Termination of parental rights of person who committed sexual assault; clear and convincing evidence standard. Provides that the parental rights of a person who has been found by a clear and convincing evidence standard to have committed rape, carnal knowledge, or incest, which act resulted in the conception of a child, may be terminated without the need for the person to have been charged with or convicted of such offense. The bill further provides that the consent of a person found to have committed such an offense is not necessary for the validity of an adoption of such a child.

HB 475 Protective orders; petition; human trafficking and sex trafficking; penalty. Adds to the definitions of "family abuse" and "act of violence, force, or threat" used in the protective order provisions that acts of violence, force, or threat include acts in furtherance of human trafficking or commercial sex trafficking. The bill also allows a minor to petition for a protective order on his own behalf without the consent of a parent or guardian and without doing so by next friend.

HB 713 Family abuse; coercive control; penalty. Makes it a Class 1 misdemeanor for a person to engage in coercive control, defined in the bill, of a family or household member. The bill also includes coercive control in the definition of "family abuse" used for the basis of the issuance of family abuse protective orders.

HB 408 Virginia Sexual and Domestic Violence Victim Fund; funding for sexual assault services. Adds payments to sexual assault service providers and hospitals for the purpose of providing salaries and equipment for sexual assault nurse examiners and pediatric forensic nurses to the list of purposes for which funds from the Virginia Sexual and Domestic Violence Victim Fund may be used and requires the Department of Criminal Justice Services to prioritize funding to sexual assault service providers and hospitals that provide sexual assault nurse examiner services and pediatric forensic nurse services in rural and underserved communities when making funds available for such purpose. The bill also increases the amount apportioned to the Fund from the fixed-fee assessment for misdemeanors and traffic infractions tried in district court.

Criminal/Juvenile

HB 181 Criminal records; sealing of records; repeal. Repeals provisions not yet effective allowing for the automatic and petition-based sealing of police and court records for certain convictions, deferred dispositions, and acquittals and for offenses that have been nolle prossed or otherwise dismissed.

HB 1115 Juvenile justice; human trafficking screening. Requires the Department of Juvenile Justice to use trauma-informed screening measures to identify whether any child committed to the Department has been a victim of human trafficking and determine appropriate treatment and service options. The bill also requires that, in cases in which a juvenile and domestic relations district court or circuit court orders that a juvenile within its jurisdiction be physically examined and treated by a physician or local mental health center, such examination include trauma-informed screening measures to identify whether the juvenile has been a victim of human trafficking and determine appropriate treatment and service options.

HB 1213 Minor victims of sex trafficking; arrest and prosecution; services. Provides that no minor shall be subject to arrest, delinquency charges, or prosecution for (i) a status offense, (ii) an act that would be a misdemeanor if committed by an adult, or (iii) an act that would be a felony if committed by an adult other than a violent juvenile felony if the minor (a) is a victim of sex trafficking or severe forms of trafficking and (b) committed such offense as a direct result of being solicited, invited, recruited, encouraged, forced, intimidated, or deceived by another to engage in acts of prostitution or unlawful sexual intercourse for money or its equivalent, regardless of whether any other person has been charged or convicted of an offense related to the sex trafficking of such minor. The bill also clarifies that it is not a defense to a commercial sex trafficking charge where the adult committed such violation with a person under 18 years of age that such person under 18 years of age consented to any of the prohibited acts. The bill also provides that the local department of social services shall refer any child suspected or determined to be a victim of sex trafficking to an available victim assistance organization that provides comprehensive trauma-informed services designed to alleviate the adverse effects of trafficking and victimization and to aid in the child's healing, including assistance with case management, placement, access to educational and legal services, and mental health services.

HB 622 Custodial interrogation of a child; advisement of rights. Requires that prior to any custodial interrogation of a child by a law-enforcement officer, the child and, if no attorney is present and if no exception to the requirement that the child's parent, guardian, or legal custodian be notified applies, the child's parent, guardian, or legal custodian shall be advised that (i) the child has a right to remain silent; (ii) any statement the child makes can and may be used against the child; (iii) the child has a right to an attorney and that one will be appointed for the child if the child is not represented and wants representation; and (iv) the child has a right to have his parent, guardian, custodian, or attorney present during any questioning. The bill states that if a child indicates in any manner and at any stage of questioning during a custodial interrogation that he does not wish to be questioned further, the law-enforcement officer shall cease questioning. The bill also requires, before admitting into evidence any statement made by a child during a custodial interrogation, that the court find that the child knowingly, intelligently, and voluntarily waived his rights and states that no admission or confession made by a child younger than 16 years of age during a custodial interrogation may be admitted into evidence unless it was made in the presence of the child's parent, guardian, custodian, or attorney.

HB 658 Juveniles; appointment of counsel; indigency. Removes provisions stating that when the court appoints counsel to represent a child in a detention hearing or in a case involving a child who is alleged to be in need of services, in need of supervision, or delinquent and, after an investigation by the court services unit, finds that the parents are financially able to pay for such attorney in whole or in part and refuse to do so, the court shall assess costs against the parents for such legal services in the amount awarded the attorney by the court, not to exceed $100 if the action is in circuit court or the maximum amount specified for court-appointed counsel appearing in district court. The bill also removes provisions requiring that before counsel is appointed in any case involving a child who is alleged to be in need of services, in need of supervision, or delinquent, the court determine that the child is indigent. The bill provides that for the purposes of appointment of counsel for a delinquency proceeding, a child shall be considered indigent.

Elder Law / Probate / Wills / Trusts

HB 836 Virginia Small Estate Act; funeral expenses of decedent. Provides that any person holding the small estate of a decedent shall pay the funeral director or funeral service establishment handling the funeral of the decedent at the request of a successor of such an estate. Under current law, such payment is discretionary and made to the undertaker or mortuary.

HB 1207 Department for Aging and Rehabilitative Services; training; powers and duties of guardian; annual reports by guardians; information required. Directs the Department for Aging and Rehabilitative Services to develop and provide training for court-appointed guardians. The bill requires an appointed guardian and any staff employed by such guardian to perform guardianship duties to complete the initial training developed by the Department within four months of the date of the initial court order of appointment and to include certain additional information in the annual report that the guardian is required under current law to submit to the local department of social services.

HB 1260 Guardianship; procedures for restriction of communication, visitation, or interaction. Provides that a guardian shall not restrict an incapacitated person's ability to communicate with, visit, or interact with other persons with whom the incapacitated person has an established relationship, unless such restriction is reasonable to prevent physical, mental, or emotional harm to or financial exploitation of such incapacitated person. Under current law, guardians are directed to not unreasonably restrict any such communication, visitation, or interaction. The bill further requires that the guardian provide written notice to any restricted person stating (i) the nature and terms of the restriction, (ii) the reasons why the guardian believes the restriction is necessary, and (iii) how the restricted person may challenge such restriction in court. The bill provides a procedure by which a person whose communication, visits, or interaction with an incapacitated person have been restricted may challenge such restriction in court.

HB 1095 Health care; decision making; end of life; penalties. Allows an adult diagnosed with a terminal condition to request and an attending health care provider to prescribe a self-administered controlled substance for the purpose of ending the patient's life in a humane and dignified manner. The bill requires that a patient's request for a self-administered controlled substance to end his life must be given orally on two occasions and in writing, signed by the patient and one witness, and that the patient be given an express opportunity to rescind his request at any time. The bill makes it a Class 2 felony (i) to willfully and deliberately alter, forge, conceal, or destroy a patient's request, or rescission of request, for a self-administered controlled substance to end his life with the intent and effect of causing the patient's death; (ii) to coerce, intimidate, or exert undue influence on a patient to request a self-administered controlled substance for the purpose of ending his life or to destroy the patient's rescission of such request with the intent and effect of causing the patient's death; or (iii) to coerce, intimidate, or exert undue influence on a patient to forgo a self-administered controlled substance for the purpose of ending the patient's life. The bill also grants immunity from civil or criminal liability and professional disciplinary action to any person who complies with the provisions of the bill and allows health care providers to refuse to participate in the provision of a self-administered controlled substance to a patient for the purpose of ending the patient's life.

SB 126 Abuse and neglect; financial exploitation; incapacitated adults; penalties. Changes the term "incapacitated adult" to "vulnerable adult" for the purposes of the crime of abuse and neglect of such adults and defines "vulnerable adult" as any person 18 years of age or older who is impaired by reason of mental illness, intellectual or developmental disability, physical illness or disability, advanced age, or other causes to the extent the adult lacks sufficient understanding or capacity to make, communicate, or carry out reasonable decisions concerning his well-being or has one or more limitations that substantially impair the adult's ability to independently provide for his daily needs or safeguard his person, property, or legal interests. The bill adds the definition of "advanced age" as it is used in the definition of "vulnerable adult" to mean 65 years of age or older. The bill also changes the term "person with mental incapacity" to the same meaning of "vulnerable adult" for the purposes of the crime of financial exploitation. This bill is a recommendation of the Virginia Criminal Justice Conference. [NOW INCORPORATED IN SB 687]

HB 286 Nurse practitioners; declaration of death and cause of death. Authorizes autonomous nurse practitioners, defined in the bill, to declare death and determine cause of death; allows nurse practitioners who are not autonomous nurse practitioners to pronounce the death of a patient in certain circumstances; and eliminates the requirement for a valid Do Not Resuscitate Order for the deceased patient for declaration of death by a registered nurse, physician assistant, or nurse practitioner who is not an autonomous nurse practitioner.

SB 668 Death with Dignity Act; penalties. Allows an adult who has been determined by an attending physician and consulting physician to be suffering from a terminal condition to request medication for the purpose of ending his life in a humane and dignified manner. The bill requires that a patient's request for medication to end his life be given orally on two occasions, that such request be in writing, signed by the patient and two witnesses, and that the patient be given an express opportunity to rescind his request. The bill requires that before a patient is prescribed medication to end his life, the attending physician must (i) confirm that the patient is making an informed decision; (ii) refer the patient to a capacity reviewer if the physician is uncertain as to whether the patient is making an informed decision; (iii) refer the patient to a consulting physician for confirmation or rejection of the attending physician's diagnosis; and (iv) inform the patient that he may rescind the request at any time. The bill provides that neither a patient's request for medication to end his life in a humane and dignified manner nor his act of ingesting such medication shall have any effect upon a life, health, or accident insurance policy or an annuity contract. The bill makes it a Class 2 felony (a) to willfully and deliberately alter, forge, conceal, or destroy a patient's request, or rescission of request, for medication to end his life with the intent and effect of causing the patient's death or (b) to coerce, intimidate, or exert undue influence on a patient to request medication for the purpose of ending his life or to destroy the patient's rescission of such request with the intent and effect of causing the patient's death. Finally, the bill grants immunity from civil or criminal liability and professional disciplinary action to any person who complies with the provisions of the bill and allows health care providers to refuse to participate in the provision of medication to a patient for the purpose of ending the patient's life.

HB 424 Guardianship; duties of guardian; visitation requirements. Requires a guardian to visit an incapacitated person at least once every three months and make certain observations and assessments during each visit.

HB 610 Cemeteries; interment rights; proof of kinship.  Allows a family member or descendant of a deceased person buried in a cemetery that is located on private property to petition the circuit court of the county or city where the property is located for interment rights upon such property. The bill provides that such family member or descendant may prove kinship to the court through official documentation or nonofficial documentation, such as obituaries, family Bibles or other documents with family signatures, journals or letters of the deceased person interred on the private property, family photographs, or other documentation deemed by the court to be reliable. The bill requires, upon satisfactory showing of proof of kinship, a private property owner to allow such family member or descendant access to the property for the purpose of interment.

Judges

HB 761 Judicial Inquiry and Review Commission; availability of complaint forms. Requires that any standard complaint form utilized by the Judicial Inquiry and Review Commission shall be made available in paper form at every clerk's office in all courts across the Commonwealth. The bill also requires that a sign be posted in all state courts of the Commonwealth, in a location accessible to the public, detailing the availability and location of such form. Such sign shall also include information on how to access a downloadable electronic version of the form, which shall be made available on the official website of the judicial system of the Commonwealth, every individual appellate, circuit, general district, and juvenile and domestic relations district court website, if such website exists, and the website for the Division of Legislative Services.

Abortion

HB 983 Provision of abortion; abortion on the basis of genetic disorder, sex, or ethnicity prohibited; penalty. Removes from the list of persons who can perform first trimester abortions any person jointly licensed by the Board of Medicine and Nursing as a nurse practitioner acting within such person's scope of practice. The bill adds procedures and processes, including the performance of an ultrasound, required to effect a pregnant person's informed written consent to the performance of an abortion. The bill adds language classifying facilities that perform five or more first trimester abortions per month as hospitals for the purpose of complying with regulations establishing minimum standards for hospitals. The bill also provides that a person who performs an abortion with knowledge that the abortion is sought solely and exclusively on account of a genetic disorder, the sex, or the ethnicity of the unborn child is guilty of a Class 4 felony.

HB 212 Provision of abortion; right to informed consent. Requires physicians and authorized nurse practitioners to follow certain procedures and processes to affect a pregnant woman's informed written consent prior to the performance of an abortion.

HB 304 Abortion; born alive human infant; treatment and care; penalty. Requires every physician licensed by the Board of Medicine who attempts to terminate a pregnancy to (i) exercise the same degree of professional skill, care, and diligence to preserve the life and health of a human infant who has been born alive following such attempt as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age and (ii) take all reasonable steps to ensure the immediate transfer of the human infant who has been born alive to a hospital for further medical care. A physician who fails to comply with the requirements of this act is guilty of a Class 4 felony and may be subject to disciplinary action by the Board of Medicine. The bill also requires every hospital licensed by the Department of Health to establish a protocol for the treatment and care of a human infant who has been born alive following performance of an abortion and for the immediate reporting to law enforcement of any failure to provide such required treatment and care.

Lawyer Ethics and Discipline

HB 561 Virginia Attorney Disciplinary Commission; established. Establishes the Virginia Attorney Disciplinary Commission in the legislative branch of state government for the purpose of holding disciplinary hearings initiated by the Virginia State Bar against an attorney for a violation of the Virginia Rules of Professional Conduct or Unauthorized Practice Rules that would be the basis for a sanction to be imposed against such attorney and grants the Commission the power to hold issue sanctions against such attorney. The bill transfers any existing authority to discipline attorneys from the Virginia State Bar to the Commission.

LGBT Issues

HB 605 Constitutional amendment (voter referendum); marriage; repeal of same-sex marriage prohibition; affirmative right to marry. Provides for a referendum at the November 8, 2022, election to approve or reject an amendment that would repeal the constitutional provision defining marriage as only a union between a man and woman as well as the related provisions that are no longer valid as a result of the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644 (2015). The amendment provides that the right to marry is a fundamental right inherent in the liberty of persons and requires the Commonwealth and its political subdivisions and agents to issue marriage licenses, recognize marriages, and treat all marriages equally under the law, regardless of the sex or gender of the parties to the marriage. Religious organizations and clergy acting in their religious capacity have the right to refuse to perform any marriage.


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.


I've heard lawyers say some evil things, but this is the absolute worst:

'... Lawyer Bruce Christensen confirmed that the author has never met the boy, but denied that the youngster has expressed an interest in seeing his dad or is suffering from his absence.

“This is the first time I’m hearing about this,” Christensen said. “When a child never had a father, how would he know what to miss?

“This is no different from the hundreds of thousands of other children who have to live without a parent.”'

‘NO LOVE’ CHILD OF BUCKLEY


Tainted Love? Let Us Count the Cost. Forbes Magazine Audits Adultery's Accounts.

"How Much Does Infidelity Cost?", Forbes.com asks. I'm just glad someone is asking the question, and acknowledging that such choices, and divorce, have costs and are not "value-neutral."

The article starts with costs so trivial as to be ridiculous, but then follows out some very foreseeable and common consequences -- separate vacations, faraway hideaways, therapy, marriage counseling, separation, restraining orders among new partners and old, loss of security clearances and arms-bearing rights for people under restraining orders, divorce, increased divorce-lawyer costs as the adultery makes every issue in the divorce more vicious and hard-fought, job loss for workplace affairs, a few months of unemployment, and finally a new job that pays 20% less. 

The writing tone is a little bit like a typical canned article, what Helen Fielding's Bridget Jones called "a two-shrink, five-friend" article, except that the subject is so rarely brought up in the media, though it has always been a huge topic in life, art and literature. There's a bit of copy-editing, or lack thereof, that's really surprising in a top-flight source like Forbes. A couple times I thought I was reading one of those odd articles that are taken from real ones, then run through a couple translators and/or some guys in India who didn't qualify for jobs with the gang that calls people up pretending to be "Windows." That's happened to many of my own articles. It ends oddly, like a freshman term paper ending at the exact turn-in deadline with a neat balancing of supposed opposites that actually makes no sense, resting on assumptions and definitions that reveal the author to know far less of the basic terms and context than it appeared from the introduction as it rose slowly through 50 shades of obvious, or from the body of the paper as the student could lean this way and that on quotations and cautiously slight paraphrases of opposing authorities on the topic. Anyhow, back to the Forbes article.  No, wait, this lamest conclusion that I've seen, except in term papers that potential interns send me as writing samples, goes on for two paragraphs of appalling shallowness, totally betraying the whole point of the article by nattering about these things as if they were subjects one would encounter for the first and last time in a college class, and never in real life:

"Who are the people engaging in these covert relationships? Nika Kabiri, Director of Strategic Insights for Avvo, the company which offers a fixed fee uncontested divorce, recently conducted a relationship study to uncover this answer.

Avvo is where you go for reliable studies of marriage? I mean, they're a great company for what they do, and I'm sure Kabiri and his team are good at studying their potential customers, but there are actual disinterested scholars, statisticians and therapists who study these things, many of whom are studying how to keep more marriages healthy and together, not to grow the number of people who get ensnarled in family/legal problems.

"Kabiri found that 61% of Americans are unhappily married.

[I've never seen a figure over the high 40s.] 

"Yet only ¼ of these people say that divorce is inevitable if one no longer wants a romantic relationship with his/her spouse. In fact, nearly 80% believe in staying together so much so that they are open to exploring alternatives to breaking up. Only half of these people say that if their partner wanted an open relationship they would leave him or her. [What about those who respond with, "Oh No, you won't,", among many others?]  In other words half who are confronted with a partner who wants to stray are willing to talk about it, work through it, maybe even be part of an open relationship. 

[Uh, you're not curious about defining who wants to fix the marriage versus who wants an 'open relationship'?]

"While on the surface it seems that having an affair is financially a more affordable road than divorc'em this is not necessarily the case. Clearly the emotional, mental and financial hardship could end up being more detrimental than enduring a divorce."

Huh? Despite everything in the first half of the article, now  "Having an Affair"and "Divorce'Em" are not cause-and-effect, but the two mutually exclusive alternatives for a Smart Shopper to thoughtfully consider? All that talk about how a marriage that grows unhappy doesn't have to devolve into divorce, and in fact 80% of them recover, and suddenly the only alternatives to divorce are affairs and "open relationships"? Sick.

"How Much Does Infidelity Cost? The Real Dollars & Cents", by Kerri Zane ,on Forbes.com


Think family court is a big racket? You're not alone ... until you get to court. Then you truly are.

One of those crank lawsuits of a kind that gets filed and discarded every day has, for once, gotten big coverage in a mainstream newspaper. "Lawsuit claims divorce court is a racket: Dismissed at district level, case is being appealed to 9th Circuit". San Diego Union-Tribune

If you polled people on the street, you'd find that to be a pretty common view, perhaps not a majority but a plurality of the same kind that makes the presidential primaries so interesting. But in the family court system, people who have cases there, and start saying things like that, are treated like the lunatic fringe. To the judges and everyone else involved, the issue is no longer whatever substantive question was originally in dispute. The issue is now the disgruntled litigants' extremism and behavior.  They are sometimes put under special orders keeping them from filing anything unless and until a single, permanently-designated judge has reviewed it and allowed it.

These litigants too often put their "last stands" on principle ahead of their actual parenting of their children. They are unwilling to bow and bend to a system they see as illegitimate and corrupt, even if they understand that that is the way to be treated better and get more time with their children.

Is the system a racket? No. Not where I work, anyway. But it doesn't have to be. It still works in a way that looks irrational to most people. It still takes people, some already cranky, and some fairly normal, perhaps even too nice, processes them, and cranks out a huge number of cranks.

When our state legislators and all those of us who help mold our culture, all the "second-hand dealers in ideas," as Hayek called us, decided decades ago to encourage widespread divorce, this was a major part of what we created. 

Americans are not brought up and educated in how a family court system works. In the courts which we learn about on TV and in civics class, a jury of 12 average local people makes the big decisions, and the judge is just a referee. And those decisions are about who did something wrong and who gets punished.

Parents who have chosen divorce or unwed parenthood, or had it thrust upon them, have no idea that instead of that system, they are going into a system where regardless of fault or faultlessness, a judge will tell them in great detail how to live and move and raise their children, now and forever until they all are grown. Nor that instead of one big trial to establish guilt or innocence and resolve everything, they may be back in court every few weeks, months or years, for enforcement, monitoring, and revision of those orders.

In that way, the family law courts work like the ecclesiastical and chancery courts that used to handle family issues, the ones that Dickens savaged in novels like Bleak House. And for good reasons, because a family is not like a business contract or a car accident.

But they also feature the most delaying, expensive, and inflammatory features of the American legal system, because this is America -- you always have the right to your day in court, to litigate about everything, to insist on strict compliance with the rules of evidence -- even when dealing with areas of life where people don't generally keep the relevant evidence, or where no witnesses are there when the really important stuff happens, or where evidence and testimony are easily faked. You can always appeal, and appeal. You have to go through all the expensive, exhausting procedures that were designed for big business litigation. Your lawyers have the ethical duty to do what you say you want, after doing their ethical duty to advise you about a bewildering array of awful things that you could do to your ex and your ex might even now be doing to you. And each of these individual things is necessary and proper, as part of the greatest legal system in the world. Even if you hate to comply with them and hate it when the other side does those things, you want the other side to comply and you want to be able to do those things to them.

That's the system we put far more families into when we tried to make divorce easier and more humane by enacting quick, unilateral, no-fault divorce, letting far more people jump straight into court without first working things out in an agreement.


My comments on proposed limited-scope representation rules; your comments due March 1

The Virginia Supreme Court and the Judicial Council are considering a new rule to deal with limited-scope representation, especially assistance to people who are already in litigation. My comments on it are below. The proposal, and where you can send comments by March 1, 2018, are at:

Advisory Committee on Rules of Court, Judicial Council of Virginia, "LIMITED-SCOPE REPRESENTATION ISSUES".

Overall comments — 
 
This is a very important reform. Full-scale representation in family law litigation is often unaffordable even by people who would be considered upper middle class. And it takes both divorcing spouses to prevent any particular divorce from becoming unaffordable, long-running litigation.
 
The proposed rule has many extra cautionary requirements for the attorney, or the attorney’s name and contact information, to be present in court, and on documents, even for issues where the lawyer is not involved. Please bear in mind that each of these requirements comes at a cost, not only of the attorney’s time, attention, and availability for other cases, but also by sowing predictable confusion among clients and especially their opposing parties, who aren’t involved in the limited-scope agreement. When lawyers’ names are on papers or a lawyer is present, lay people are going to assume that the lawyer is a prime mover in whatever is going on. Lay people, and even the lawyers themselves, will often feel that the lawyer has some responsibility to intervene or advise about whatever comes to the lawyer’s attention. Lawyers' instinct to be helpful will inevitably cause “mission creep” in many cases. So all such requirements should be kept to the minimum necessary.
 
As lawyers comply with these additional requirements, clients and other members of the public may feel that the lawyer is hanging around like a vulture waiting to insert herself into the proceedings and expand her involvement so that it is no longer limited. Or interfering, intruding and violating the client’s desire to limit the scope of the lawyer’s work, by writing to the client with repeated notifications of well-known facts about hearing dates, etc., whenever the lawyer is cced on something the other side sends out. Many clients already respond this way to communications that court rules and ethics rules require us to send.
 
Line comments
 
9-10 
 
 I agree that a lawyer should not be present but generally uninvolved, only popping up now and then with objections. That would be chaotic and unfair.
 
But I can also see the value in having an attorney handle only a particular motion in limine or motion to suppress. It seems fairly clear that the intent is to allow that, but it would help to make that explicit.
 
11-13
 
" A notice of limited scope representation is not required for  … (ii) services performed by an attorney before any litigation is pending”
 
Does that dispensation also apply to the requirements to “indicate” or “identify" in (1) (F), Alternative versions 2 through 5?
 
I believe it should apply. Either way, that question should be answered explicitly.
 
26 et seq. — Alternative versions of (F)
 
In all versions, the term “papers for submission to a court” is intended to be clear, but what about marital separation agreements? They are not court filings. They are binding contracts when the parties sign them, regardless of whether they are submitted to a court. But whenever one gets signed by both spouses, perhaps 95% of the time there is going to be divorce, and the agreement i8s going to be submitted to the court as part of the divorce process.
 
I think limited-scope assistance is crucial, so I oppose Alternative # 5, which essentially bans limited-scope, and Alternative # 4, which creates a presumption against it; imposes a needless requirement to essentially file a notice of appearance, and then to file a notice of disappearance.
 
86
 
“Papers” sounds vague. I think you mean litigation documents such as pleadings or discovery requests, but we need a more precise, comprehensive, understandable, and distinctive term for that.
If it’s intended to mean everything, including settlement correspondence, that’s reasonable, too, but that too would need to be clearer. Because the word “papers”, to a lot of people, vaguely indicates papers that are somehow official, binding, and/or threatening.
 
88
 
The requirement should be to notify the “sender”, not “the adversaries”. They might not be the same people.
 
 
notify the adversaries in writing of that fact
should be changed to  
notify the adversaries, in writing, of that fact
or
notify the adversaries of that in writing
 
But really, “that” or “that fact” might not make clear to everyone which of the facts mentioned earlier in the sentence it refers to, so it would be better to say, 
 
“the attorney must notify the sender that the documents received deal wholly or partly with matters outside the scope of the limited representation,"
 
107-108
 
"(D) Contacts by adversaries or co-parties on matters within the limited scope of 108 representation shall be with counsel …"
 
What about family law cases, where many couples legitimately continue some kinds of negotiation between themselves, even when they both have counsel who are negotiating at the same time? 
 
110-111
 
“copy served upon the attorney making a limited scope appearance” — 
 
Would serving the attorney require that attorney to respond and notify as required in (3)(C)? If that happens once, it makes sense or is at least harmless. But in litigation where filings go back and forth almost every week, it’s going to drag the limited-scope attorney into a lot of busy work, and confuse litigants — the client and/or the opposing party — about the attorney’s role.
 
115-116
 
(A) — attendance at all court proceedings, outside the scope,  should not be required if the rule is truly allowing limited representation. I would expect attorneys to charge for this time, and it would be a major burden on the clients and the attorneys.
 
John Crouch
VSB Council Member for 17th Circuit
Fellow, International Academy of Family Lawyers (Formerly IAML)
and International Academy of Collaborative Professionals