Pending 2020 Virginia Legislation: Not Much Family Law, But Lots of Laws About Families and Children
By John Crouch with Sarah Panariello
This year's legislative session includes many modest but salutary amendments to make family life and family law a little more efficient and fair, and immense amounts of political legislation that will have various side effects on families and family law cases. So there are only a few bills that do anything significant about family law practice. But there are many that aim to protect children, and which will affect families and will work their way into family law cases.
This blog post will be updated throughout the legislative season to track all family-law bills, and many bills on other topics that could affect family life and family law cases. They are listed below based on what stage of the becomes-a-law process they are at, and then, within that, by subject. If anything is incomplete or not up to date, please inform us by commenting.
A bill makes pendente lite spousal support guidelines apply in Circuit Court as well as Juvenile, and reduces them slightly to account for the recent federal tax law change to taxing payors instead of payees for alimony. Another clarifies that after "reserving jurisdiction" to award spousal support, such support can only be awarded based on a material change of circumstances, unless the agreement or divorce decree expressly says otherwise. There is also a tweak to the new statute that made alimony awards in new separation agreements be presumed modifiable unless they expressly said otherwise. That would still be the rule, but the statement that prevents or limits modification will no longer have to be in the exact words prescribed by the Code.
But who says there's no free lunch, or that the General Assembly has no family-law visionaries? In fact, one bill says child and spousal support can only be based on net income -- not on gross, and not on earning capacity or imputed income. Another says if support is going through the DCSE, the payee gets paid even when the payor doesn't pay. Sadly, despite much talk about transforming the Old Dominion, Virginia is not yet the Big Rock Candy Mountain, the place where, as Captain John Smith promised, "Evereey manne shall cavorte and bee fruetfulle and multiplye under his owne vyne and figge tree." These two were among the very first bills to die.
A bill splits unpaid expenses of pregnancy and childbirth in proportion to the parents' incomes, if a support case is filed in the child's first six months. Another clarifies that courts can award child-related tax credits, not just dependency exemptions. The cap on what is considered reasonably-priced court-ordered health insurance is lowered significantly.
Several bills tweak the factors and presumptions in child custody and visitation decisions, but probably with little effect anytime soon. Judges could consider the motives of both parties in grandparent visitation disputes; would be urged to assure frequent, continuing contact with both parents -- of course only "where appropriate" (sigh); and should consider a party's history of violent or sexual abuse even if it involved their other partners and children, not the ones the case is about.
Another emphasizes that both parents must have equal access to day care records and information. Speaking of day care, a huge change is being proposed that would create a comprehensive system of public and private day care for everyone, like unto the K-12 school system. Similar proposed comprehensive social programs include several efforts at universal health care, and a state-run retirement account that private employers could opt into.
One bill says that if you bring a contempt case and you lose, you can appeal the "not in contempt" finding to the Court of Appeals, fixing an oddity in the law that has come to light in the last few years. As for judge-initiated "summary" contempt punishments, someone considered it helpful to expand the maximum jail time to 30 days.
Many others are nice little changes, but frankly minor. One bill gets rid of the third-party corroborating witnesses to prove divorce grounds. Others put legal notices into online publications and take them off of the courthouse door, and let you send notice of publication orders by email, sometimes.
One perennial minor annoyance is the requirement to file an original of the return or affidavit of process-service within 72 hours. When you're having people served in faraway states or on other continents, as I regularly do, that's often impossible. The questionable 72-hour rule remains, but there is a bill that allows copies, faxes, scans etc. instead of the original.
As always, there are many bills cracking down on domestic violence and sexual abuse, but there is so little of this still left to do that they are exceedingly marginal. This year's crop includes some imaginative efforts against new twists on domestic abuse which are creative, but sadly, probably not completely hypothetical: using electronic remote control of things in and around the victim's home, and filing lawsuits to retaliate against, or deter, victims' pursuing civil or criminal remedies. There is also an interesting proposal for protective orders to include restitution for several economic costs caused by abuse.
Adult guardianship and conservatorship are facing a major overhaul. It puts much more scrutiny on guardians and other fiduciaries, while emphasizing that elderly people should not lose any more autonomy than is absolutely necessary, should have a voice in their own guardianship cases, and generally should not be cut off from any other family members.
A few bills aim to decriminalize school and adolescence. A couple assure schools that they do not have to involve the police every time a child does something that might be a misdemeanor. Another says that schools and school buses are not "public places" when applying criminal laws against "disorderly conduct." Sunscreen would no longer be contraband in school, but the kids would have to stay out of tanning parlors. Other bills aim to put fewer children on the sex offender registry for the rest of their lives, and send most teenage "sexters" to counseling instead of child-pornographer prison.
Sexual freedom and discrimination: One bill abolishes the requirements for children to get a parent's or a judge's permission for abortions. Another puts absolute reproductive freedom in the state constitution. Others require employers and insurers to pay for abortion, sterilization, and everything in between on the spectrum of contraception;, severely limit "conversion therapy"; repeal the "conscience clause" that lets religious institutions with traditional moral beliefs keep operating adoption agencies, and do several things to banish all forms of anti-gay or anti-trans discrimination. One even says that "inflicting, creating, allowing or threatening any physical or mental injury based on gender identity or sexual orientation" is legally child abuse or neglect. There are also high-profile, fast-tracked bills ratifying the federal Equal Rights Amendment.
Many bills incrementally restrict minors' access to guns. Almost all of them seem mostly harmless, requiring locking weapons away from minors, extending to age 18 the crime of recklessly allowing minors under 14 access to firearms, making it a felony, and changing that "recklessly" standard to "negligently." Such rules should be fine if they actually are applied with factually informed standards for what is reasonable, what is reckless, and what is negligent in that particular community and household.
BILLS AND THEIR STATUS
APPROVED BY GOVERNOR: None yet.
PASSED BOTH HOUSES: None yet.
PASSED ONE HOUSE, ON FLOOR OF THE OTHER:
SJ 1 Ratifies Equal Rights Amendment
HJ 1 Ratifies Equal Rights Amendment
PASSED ONE HOUSE, IN COMMITTEE OF THE OTHER:
PASSED ONE HOUSE, IN SUBCOMMITTEE OF THE OTHER:
SB 186 Individualized education program teams; Dept. of Education to develop guidelines.
SB 214 GALs to review and report on Individualized Education Plans in young-adult guardianship cases
SB 186 IEP teams must consider appropriate instruction about sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries
SB 44 Lets students keep and bear sunscreen without a doctor's note, etc.
SB 355 Assisted living facilities; audio-visual recording of residents to be studied, stakeholder-grouped, then regulated.
SB 70 Firearm transfers; criminal history record information check, penalty.
SB 238 Increases required kindergarten hours 83%
SB 247 Gender-neutral terms in no-fault divorce law.
SB 62 Race information not required in marriage records, divorce/annulment reports, VS-4s, nor divorce statistics
HB 143 Unemployment compensation for leaving employment to follow military spouse
SB 472 Foster care; encourages termination of parental rights improves training and information about voluntary and involuntary termination, independent living needs assessments.
SB 156 Fostering Futures program to provide services and support to former foster care children now between 18 and 21
SB 240 "Red Flag" Firearms removal from person posing substantial risk of injury to himself, etc., penalties.
OUT OF COMMITTEE IN ONE HOUSE:
HB 637 "Reasonable cost of health care coverage," in law on ordering coverage as part of child support, to mean no more than 5% of providing parent's income, instead of 5% of parents' combined incomes.
HB 1530 No-fault divorce grounds corroboration requirement repealed.
HB 1500 Pendente lite spousal support guidelines shall apply in Circuit Court as well as Juvenile, and are reduced slightly to account for federal tax law change taxing payors instead of payees for alimony.
HB 1501 Spousal support in a stipulation or contract made after 7/1/18 is still modifiable if the contract does not expressly say that it is not modifiable, or limit modifiability; but that express statement will no longer have to be in specific wording required by statute.
HB 436 Uniform Child Custody Jurisdiction and Enforcement Act; disclosure of identifying information when one party claims it would be dangerous: Currently, once one party claims this, it cannot be disclosed unless the court decides to in a hearing within 15 days of the filing of a pleading. This bill adds "or affidavit" after "pleading."
HB 834 Courts may permit notice of an order of publication to be given by electronic means in addition to or in lieu of publication in a newspaper
HB 137 Guardians ad litem for children must give certification of compliance with standards.
HB 967 Military service members' spouses: expediting the issuance of professional credentials
HB 305 Fee for lodging, etc., of wills increased from low to mid-single digits
HB 904 Public sports programs' volunteers and employees shall be mandated reporters of suspected child abuse/neglect
HB 778 60 instead of 45 days for "family assessments" when children alleged to be at risk.
HB 402 Public school lock-down drills, frequency, exemptions.
SB 173 Stun weapons; prohibits possession on school property, exempts holder of concealed handgun permit, but only if it remains in vehicle
HB 999 Schools must have epinephrine constantly accessible, along with staff trained to administer it
SB 733 Abortion: Informed consent no longer includes ultrasound, provision of specified information, or offer to review certain printed materials; physician's assistants and nurse practitioners can perform abortions, abortion facilities will not have to comply with regulations for hospitals.
HB 839 Probate tax exception/refund for Virginia Beach mass shooting victims
IN FULL COMMITTEE IN ONE HOUSE:
SB 571 Grandparent visitation when parent dead: factors court must consider, including parties' motivations
SB 105 Requires courts in custody and visitation cases to consider "any act of violence, force, or threat as that phrase is defined in § 19.2-152.7:1 against an intimate partner or the intimate partner's child, or any history of sexual abuse," in addition to the current requirement to consider any "history of family abuse."
HB 861 Requires courts in custody and visitation cases to consider "any act of violence, force, or threat as that phrase is defined in § 19.2-152.7:1 against an intimate partner or the intimate partner's child, or any history of sexual abuse or child abuse," in addition to the current requirement to consider any "history of family abuse."
SB 430 Each parent to have access to child-care records, regardless of custody.
SB 434 Court may award either parent the right to claim child-related income tax credits as well as dependency exemptions.
SB 428 Any unpaid medical expenses for pregnancy and birth to be split in proportion to income, if support case filed before child 6 months old.
SB 432 Material change of circumstances required before court may use post-divorce "reserved" jurisdiction to order spousal support, unless a contract, stipulation or court order says otherwise.
HB 863 Person to perform marriage may be designated by marriage license applicant instead of by a judge's order; may perform it anywhere in the state; no bond required for such persons, nor for Quakers performing marriages; record of marriage may be filed by one of the newlyweds or the celebrant; no jail for performing unlicensed marriage or issuing unlawful marriage license.
HB 94 Must give proper notice of adoption proceeding to legal custodian.
HB 721 Post-adoption contact and communication agreements; parents whose parental rights were involuntarily terminated may enter such agreements.
SB 352 Encourages avoiding guardianship and conservatorship when a "supported decision-making agreement" is feasible instead; GALs in adult guardianship cases must consider and report on that alternative.
Child Abuse/Foster Care
SB 501 Adoption and foster care home studies may be done by anyone who has completed the training program; regulations to be issued.
SB 178 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
SB 593 All firearms in a licensed in-home day care provider's home must be stored unloaded and locked up.
SB 71 Firearms; possession on school property.
HB 38 Tanning facilities prohibited for minors.
HB 134 IEP teams must consider appropriate instruction about sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries
SB 390 Reduces Standards of Learning assessments to the federally-required minimum
SB 729 Schools don't have to contact police about all conduct that might be a misdemeanor
HB 223 Education, recommendations for improving civic education.
SB 579 Streamlines & reorganizes Sex Offender and Crimes Against Minors Registry process; lower-level offenders will no longer have to register annually.
SB 440 Electronic transmission of sexually explicit visual material by minor: misdemeanor, if the perpetrator is the only person in picture or if less than 10 pictures of another minor; alternative sentencing, rehabilitation programs, community service, avoiding permanent record or sex offender status.
SB 297 Creates Sexual and Domestic Violence Prevention Fund, administered by Department of Social Services, in coordination with Department of Health and the Virginia Sexual and Domestic Violence Action Alliance, to develop and support programs that prevent sexual and domestic violence; promote healthy practices related to relationships, sexuality, and social-emotional development; and counteract the factors associated with the initial perpetration of sexual and domestic violence.
Domestic Violence/Protective Orders
SB 145 Assault, assault and battery, or bodily wounding of a person protected by a protective order is a Class 6 felony. Currently, this is only if it results in serious bodily injury.
HB 1182 Protective order may include temporary spousal support and restitution for property damage, medical bills and other financial loss caused by abuse.
HB 880 Protective orders; expedites process to dissolve order when petitioner requests it.
HB 870 Sexual abuse: 20-year statute of limitations for everyone, not just when victim was a minor
SB 490 No guns after conviction of stalking, domestic violence or sex assault; criteria for restoring gun rights.
SB 423 Health insurance; mandated coverage for hearing aids for minors.
SB 213 Study increasing the Personal Maintenance Allowance for people receiving Medicaid, etc.
HB 145 Statewide minimum guidelines on treatment of transgender students to be developed; public elementary and secondary schools must adopt or exceed them.
SB 917 All health insurance plans, including state ones, must cover abortion, voluntary sterilization, genetic mutation screening/counseling, domestic violence screening/counseling, STDs, all forms of contraception, and many other "reproductive health" and women's health services. A very few strictly-defined "religious employers" might get an exception from abortion-funding requirement.
SB 408 Notices of civil case appeals shall be certified-mailed, not posted on the courtroom door.
SB 451 Juvenile and domestic relations district court; awards of attorney fees shall be determined based on all relevant factors, not just the relative financial ability of the parties.
IN SUBCOMMITTEE IN ONE HOUSE:
HB 1425 Race information not required in marriage records, divorce/annulment reports, VS-4s, nor divorce statistics
HB 485 Requires courts in custody and visitation cases to "when appropriate, assure frequent and continuing contact with each parent"
HB 690 Temporary Assistance to Needy Families (TANF): Child support collected for non-TANF children shall not be taken to reimburse state for TANF money for parent's other children.
Domestic Violence/Protective Orders
HB 867 Single-sex domestic violence shelters allowed.
HB 1077 Lets minors petition for a protective order on their own behalf
HB 470 Protective orders; non-lawyer social services department employees can petition court for protective orders on behalf of incapacitated persons
HB 159 Protective order may prohibit using any electronic device to remotely control anything in or around petitioner's home
HB 625 Redefines family abuse, as grounds for protective order, to include identity theft
HB 1288 No guns after two misdemeanor household-member assault and battery convictions; criteria for restoring gun rights.
HB 78 No guns after even one misdemeanor household-member assault & battery conviction; criteria for restoring gun rights.
HB 628 Lets courts sanction people for filing certain claims in retaliation for, or in order to discourage, actions taken by victims of violence to obtain an order of protection or to pursue criminal charges. This "includes any claim of defamation, intentional infliction of emotional distress, malicious prosecution, or abuse of process that is filed in retaliation for or in order to chill, discourage, or limit any legitimate action taken by a victim of (i) family abuse; (ii) an act of violence, force, or threat; (iii) stalking; or (iv) sexual assault to obtain any order of protection or criminal charges based on such family abuse, act of violence, force, or threat, stalking, or sexual assault. Any such pleadings found by a court of competent jurisdiction to lack either justification in existing law or a good faith argument for the extension, modification, or reversal of existing law shall be presumed to have been filed for an improper purpose."
HB 775 My Virginia Plan; multiple employer retirement plan for private employers and their employees.
SB 229 Pleadings, motions, and other papers with missing or defective signatures are void unless defect is promptly cured, or unless there is no timely objection to the defect.
HB 780 Courts to accept copies of proofs process-service in place of originals
HB 588 Lets legal notices appear in online publications
HB 712 Lets legal notices appear in online publications
HB 401 Court-appointed counsel for parents in child welfare cases to get additional compensation in the very low three figures
HJ 22 Study deficient/outdated training of substitute and retired district court judges
HB 862 Guardianship; limits on how guardian may restrict communication with close relatives and friends; procedure and standards for courts to resolve disputes about such communication; guardian who restricts communication in bad faith or in his own interest may have to pay others' costs.
HB 841 Guardianship suits: person it's about shall have right to counsel and to participate and be heard. If not represented, counsel must be appointed.
HB 304 Guardianship and conservatorship petitions must include identifying characteristics/description of the respondent, which shall be included in the information sent to the Criminal Records Exchange.
HB 76 In suits on written contracts subject to 5-year statute of limitations; if a potential party is a missing person judicially declared dead and the cause of action accrued after they went missing, executor of estate has one year from the declared-dead order to file suit.
SB 261 Accounts filed by fiduciaries and reports filed by guardians must be signed under oath; not to do so is a misdemeanor
SB 308 Accounts filed by fiduciaries and reports filed by guardians must be signed under oath under penalty of felony perjury
HB 1321 Supported Decision-Making Act: allows an adult with an intellectual or developmental disability to enter into an agreement with another person, called a "supporter," who will assist the adult in making decisions to manage his affairs, giving them a less restrictive means of receiving assistance than being appointed a guardian or conservator by a court.
HB 96 Powers of attorney must be signed in presence of a witness or notary public
HB 362 Physician assistants, not just doctors, can make determinations that patient has no capacity to make informed decisions
HB 331 No one particular clinical diagnosis automatically means you're incapacitated.
HB 736 State estate tax reinstated, unless most assets are in a working farm or closely held business
HB 641 Funeral homes must accept caskets provided by third parties, but need not store them
HB 298 Misdemeanor sexual offenses; increases statute of limitations, where the victim is a minor.
HB 462 Certified sexual assault nurse examiners; Secretary of HHR to study shortage.
HB 251 Prostitution-related crimes; minors, including taking minors or spouse to "a bawdy place", expands sex offender registry, trafficking, pimping, racketeering
HB 252 Causing or encouraging acts rendering children sexually abused; penalty.
HB 288 Criminal sexual assault; definition of sexual abuse, complaining witness under age 13
HB 475 Virginia sexual assault forensic examiner coordination program; established, report.
Child Abuse/Foster Care
HB 580 Child abuse and neglect includes inflicting, creating, allowing or threatening any physical or mental injury based on gender identity or sexual orientation.
HB 809 Welfare department must investigate any report of child abuse and neglect by any "relative by blood, marriage, or adoption, caretaker, or other person with supervisory control over the child or responsible for his care or ... person who resides or is regularly present in the same household as the child."
HB 1051 Repeals "conscience clause" that allowed child-placing agencies to refuse to perform, assist with, counsel, recommend, consent to, refer, or participate in any child placements that violate the agency's written religious or moral convictions or policies. Prohibits the Department of Social Services from contracting with or providing funds, directly or indirectly, to any child-placing agency that discriminates against the child or otherwise eligible prospective foster or adoptive parents on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, marital status, or status as a veteran.
HB 289 Requires that interviews of child victims of alleged sexual abuse be conducted as a forensic interview at the local child advocacy center
HB 920 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.
HB 673 Cruelty to children; increases penalty to a Class 4 felony.
HB 287 Extends from one year to three years the period of time for which the Department of Social Services must retain records of unfounded investigations of child abuse or neglect before purging.
HB 600 In-home day cares must store guns and ammo separately, and locked up
HB 799 Day cares must test all drinkable water sources for lead.
HB 955 Children's online privacy protection; release of personal information prohibited.
HB 356 Child labor; employment of children on tobacco farms
HB 675 License restrictions for minors; use of handheld personal communications devices.
HB 463 Minors; allowing access to firearms
HB 1080 Firearms or other weapons; unauthorized to possess on school property.
HB 1083 Minors; allowing access to firearms, Class 6 felony; no unsupervised use under age 12.
HB 72 Allowing access to firearms by children; recklessly leaving loaded, unsecured firearm.
HB 578 Smoking; illegal in motor vehicle with a minor present (current law only covers minors under 8)
HB 939 Public high schools must teach firearm safety education, and must do so without firearms.
HB 256 Criminal disorderly conduct does not include things students do in school or on bus
HB 257 Schools don't have to contact police about all conduct that might be a misdemeanor
HB 1012 Early childhood care and education; establishes comprehensive public-private system basically like the school system, and operated and regulated by the Department of Education.
HB 455 TANF (welfare) receiving families to get community college scholarships in pilot program
HB 678 Parental Choice Education Savings Accounts
HB 931 Public schools; reduces number of Standards of Learning assessments, report.
HB 197 Financial literacy objectives; study incorporating them into math SOL
HB 529 Universal health care; study options for financing.
HJ 18 Universal health care; study cost of implementing in the Commonwealth
HB 823 Health Insurance Premium Payment program coverage expanded
SB 633 Music therapy to be strictly licensed and regulated
HB 687 Doulas to be state-regulated, registered and certified
SB 431 Mental health professionals may not restrict parents' access to health records, or refuse to testify, as a condition of providing services.
HB 308 Students' excused absences for mental and behavioral health reasons
HB 42 Health care providers must be trained in screening patients for prenatal and postpartum depression
SB 315 Emergency rooms must screen for depression, provide info/referrals
HB 1473 Surrogacy contract provisions requiring abortion or selective reduction unenforceable, void, against state public policy.
HB 623 Gender-neutral terms throughout the Virginia Code, including laws that punish incest, defaming a lady's "virtue and chastity", or leaving one's wife in a "bawdy place", whether that is for the purpose of prostitution or for "unlawful sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus"; removes prohibitions on same-sex marriage and civil unions. Seems a bit of a mixed bag for the cause of gay rights.
HB 386 Conversion therapy prohibited for minors or when state-funded. No state benefits for it; no state contracts or grants to any entity that does it or refers people to it.
HB 966 Limits regulation of Conversion Therapy to protect "the fundamental right of an individual to select for himself, based on an informed and voluntary choice, a form of counseling that involves nothing more than 'talk therapy,' regardless of the age of the individual, including in situations where the patient is seeking such counseling to assist him in reducing or eliminating unwanted attractions or behaviors or concerns about gender identity."
DEAD (BY VARIOUS METHODS):
HB 291 Uniform Collaborative Law Act
HB 82 Spousal support to be based net income, not gross; earning capacity may no longer be considered when determining spousal or child support; spousal support shall not exceed payor's net income.
SB 502 When child support is paid through Department of Social Services, the Department must pay the recipient even if the payor does not pay.
HB 350 Requires courts in custody and visitation cases to "when appropriate, assure frequent and continuing contact with each parent"
HB 163 Contempt of court "summary punishment" -- increases max penalty to 30 days
SB 61 Using cannabidiol oil or THC-A oil on doctor's written advice shall no be the sole reason for denying or restricting custody, visitation, adoption or foster parenthood.
HB 40 Public schools must have mental health break spaces
SB 117 Day care operated in homes needs license if caring for three or more children (current law is five)
SB 76 No guns for people under any protective orders, not just those for family violence. But keeps 24 hour grace period to transfer guns.
SB 16 Assault firearms and certain firearm magazines; prohibiting sale, transport, etc., penalties.
SB 18 Firearms; restricting access under age 18, purchase under age 21
SB 75 Minors; allowing access to firearms, penalty.
HB 1001 Assault and battery against a family or household member; prior conviction, term of confinement.
SB 19 Records of marriages shall not require identification of race.
HB 926 Income tax, state; credit for employer contributions to Virginia College Savings Plan accounts.
HB 158 Tax deduction for K-12 school tuition or home instruction expenses
SB 104 Vaccinations and immunizations; certain minors given authority to consent.
SJ 2 Constitutional amendment; right to personal reproductive liberty