Virginia 2023 Legislation Affecting Family Law and Family Life

By Alison Gedraitis and John Crouch

Our Virginia family law legislation blog posts aim to include 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. Things were moving so fast that we posted the previous version before we had the time to look at all of those related categories. But now we've done that.

APPROVED BY GOVERNOR: None yet.

PASSED BOTH HOUSES: None yet.

PASSED ONE HOUSE: 

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) House subcommittee amendments and substitutes adopted
  • 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.

Judges

  • HB 2015 Unlawful picketing or parading to obstruct or influence justice; penalty.
  • HB 2012 Retired Supreme Court justices and Court of Appeals judges may be recalled in circuit courts.
  • SB 843 Retired circuit court and district court judges; evaluation required before they can be recalled to try cases.

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

  • 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.
  • 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)

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.

Education

  • HB 1629 Virginia Parent Data Portal; Board of Education to create and maintain, report.
  • HB 1659 Students with disabilities; DBHDS, best practice standards, transition of records.
  • HB 1507 Public elementary and secondary schools; fundamental right of parents.
  • HB 1592 Public schools; codes of student conduct, policies and procedures prohibiting bullying- parents must be notified within 24 hours if bullying incident occurred
  • HB 1704 Public elementary and secondary schools; reports of certain arrests and convictions, etc- an employee in the local school division is appointed to receive all reports of arrest with a felony or Class 1 misdemeanor of a person employed by the local school division
  • HB 1822 Public school employees; offense involving solicitation of sexual molestation, etc- Provides that the convictions that bar employment and contract work that requires direct contact with students on school property during school hours or school-sponsored activities in public schools include any offense involving the solicitation of sexual molestation, physical or sexual abuse, or rape of a child.
  • SB 1253 Student assessment results; availability to teachers, parents, principals, and other school leaders.

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

  • HB 1704 Public elementary and secondary schools; reports of certain arrests and convictions, etc- an employee in the local school division is appointed to receive all reports of arrest with a felony or Class 1 misdemeanor of a person employed by the local school division
  • HB 1822 Public school employees; offense involving solicitation of sexual molestation, etc- Provides that the convictions that bar employment and contract work that requires direct contact with students on school property during school hours or school-sponsored activities in public schools include any offense involving the solicitation of sexual molestation, physical or sexual abuse, or rape of a child.
  • 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)
  • 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)
  • 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. 

Mental Health

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

Military Families

  • 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. 
  • 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)

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)
  • HB 2128 Virginia Small Estate Act; funeral expenses and disposition, refusal to pay or deliver small asset- any person having possession of a small asset belonging to a decedent shall, upon presentation of an affidavit by the funeral service establishment handling the disposition of the decedent and any related funeral service, pay or deliver to such funeral service establishment so much of the small asset as does not exceed the amount given priority and has not already been paid.
  • SB 924 Military spouses; state shall pay fees charged for their burial at state-operated veterans' cemeteries.  (Cross-reference- Elder/Probate)

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, Sex Abuse)

LGBT Issues

  • 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)

OUT OF COMMITTEE / ON FLOOR IN ONE HOUSE:

Custody/Parenting Time

Child Support

Spousal Support

Marriage

Divorce

Adoption

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

  • HB 2129 Child victims and witnesses; using two-way closed-circuit television, expands age range and eases requirements.
  • HB 1575 Public elementary/secondary schools; development of Safety While Accessing Tech. education program- Board of Education, law enforcement, criminal justice agencies, and other organizations involved with child online safety issues have to create a Safety While Accessing Technology (SWAT) to teach children about internet safety rules and how to recognize inappropriate/dangerous content and situations
  • HB 1688 Consumer Data Protection Act; protections for children- Requires an operator, defined in the bill, to obtain verifiable parental consent prior to registering any child with the operator's product or service or before collecting, using, or disclosing such child's personal data and prohibits a controller from knowingly processing the personal data of a child for purposes of (i) targeted advertising, (ii) the sale of such personal data, or (iii) profiling in furtherance of decisions that produce legal or similarly significant effects concerning a consumer. The bill also amends the definition of child for purposes of the Consumer Data Protection Act to include any natural person younger than 18 years of age.

Sexual Abuse/Assault

Domestic Violence/Protective Orders

Retirement

Elder Law/Wills/Trusts/Probate

Procedure

Health

LGBT Issues

Education

  • HB 1575 Public elementary/secondary schools; development of Safety While Accessing Tech. education program- Board of Education, law enforcement, criminal justice agencies, and other organizations involved with child online safety issues have to create a Safety While Accessing Technology (SWAT) to teach children about internet safety rules and how to recognize inappropriate/dangerous content and situations
  • HB 1803 Public elementary and secondary schools; certain opportunities for parental involvement- parents can electronically review relevant curricula, classroom materials, and textbooks, review list of each book in school library catalog and books that contain sexually explicit content, receive notification of and opt their child out of government-run/authorized data collection program, or receive notification and opt child out of speech, presentation, or performance
  • HB 1884 Students with disabilities; assessment frequency- permits students with disabilities to take Standards of Learning assessments or other alternative assessments on a less frequent basis

Mental Health

Military Families

  • SJ 231 Const. amendment; prop. tax exemption for surviving spouses of soldiers who died in line of duty. (Cross-reference - Tax)

Taxes

  • SJ 231 Const. amendment; prop. tax exemption for surviving spouses of soldiers who died in line of duty. (Cross-reference - Military)

Elder law/Wills/Trusts/Probate

Abortion / Reproductive Technology

Constitutional

Criminal

Real Estate

Judges

Lawyer Ethics and Discipline

IN FULL COMMITTEE IN ONE HOUSE:

Custody/Parenting Time

  • HB 1711 Minor's medical records; prohibits denial of parental access to records. 

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. House committee amendments reported
  • SB 1003 Health insurance; mandated coverage for hearing aids for minors.

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. House subcommittee amendments and substitutes adopted
  • HB 1550 Child abuse or neglect; findings of local department of social services, appeal- if a teacher is found to have committed child abuse or neglect, they can petition the circuit court for a de novo finding if they previously exhausted all options for review by the local department and Commissioner of Social Services
  • SB 921 Sex offenses; prohibiting proximity to children and school property, penalty- Adds certain prostitution and commercial sex crimes to the list offenses that would prohibit an adult if convicted of such offense from (i) loitering within 100 feet of the premises of any place he knows or has reason to know is a primary, secondary or high school, (ii) working or engaging in any volunteer activity on property he knows or has reason to know is a public or private elementary or secondary school or child day center property, and (iii) entering or being present upon any property he knows or has reason to know is a public or private elementary or secondary school or child day center property, a school bus, or any property, public or private, during hours when such property is solely being used by a public or private elementary or secondary school for a school-related or school-sponsored activity

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

  • 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. House committee amendments reported

Education

  • HB 1397 Student immunization requirements; parental opt-out.
  • HB 1550 Child abuse or neglect; findings of local department of social services, appeal- if a teacher is found to have committed child abuse or neglect, they can petition the circuit court for a de novo finding if they previously exhausted all options for review by the local department and Commissioner of Social Services
  • SB 823 Parental Choice Education Savings Accounts; established, report.
  • SB 921 Sex offenses; prohibiting proximity to children and school property, penalty- Adds certain prostitution and commercial sex crimes to the list offenses that would prohibit an adult if convicted of such offense from (i) loitering within 100 feet of the premises of any place he knows or has reason to know is a primary, secondary or high school, (ii) working or engaging in any volunteer activity on property he knows or has reason to know is a public or private elementary or secondary school or child day center property, and (iii) entering or being present upon any property he knows or has reason to know is a public or private elementary or secondary school or child day center property, a school bus, or any property, public or private, during hours when such property is solely being used by a public or private elementary or secondary school for a school-related or school-sponsored activity
  • SB 1290 School Choice Educational Savings Accounts; permits parents of qualified students to apply- Permits the parents of qualified students to apply to the local school division in which the qualified student resides for a one-year, renewable School Choice Educational Savings Account that consists of a monetary amount that is equivalent to a certain percentage of all applicable annual Standards of Quality per pupil state funds appropriated for public school purposes and apportioned to the resident school division in which the qualified student resides.

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

  • HB 2051 Custodial interrogations; false statements to a child prohibited, inauthentic replica documents.

Real Estate

Judges

Lawyer Ethics and Discipline

Taxes

  • SB 908 Stillborn child; tax credit for loss.

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)
  • HB 1707 Public school students; self-identification as gender other than biological sex, parental contact.

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.
  • SB 1327 Comprehensive children's health care coverage program; DMAS shall establish.

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)
  • SB 818 Public elementary and secondary schools to teach mental health education. (Cross-reference - Mental)
  • HB 2236 Secured Schools Program and Fund; established.
  • HB 1707 Public school students; self-identification as gender other than biological sex, parental contact.
  • HB 2276 COVID; immunization of children-parents shall not be required to immunize their children against COVID-19

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.
  • HB 2276 COVID; immunization of children-parents shall not be required to immunize their children against COVID-19
  • SB 1203 Children Deserve Help Not Harm Act established, health benefit plans, etc.
  • SB 1327 Comprehensive children's health care coverage program; DMAS shall 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.
  • HB 1389 Mental illness or emotional disturbance; administration of controlled substances for treatment, etc.-Provides that a minor shall not be deemed an adult for the purpose of consenting to administration of controlled substances for the treatment of mental illness or emotional disturbance.

Military Families

  • SB 1032 Disabled veterans & surviving spouses of certain military; state subsidy of property tax exemptions. (Cross-reference - Tax)

Elder law/Wills/Trusts/Probate

  • 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.
  • 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 2421 Firearm, stun weapon, or other weapon on school property; limits prohibition on possession.

Abortion / Reproductive Technology

  • 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.
  • HB 1795 Abortion; born alive infant, treatment and care, penalty. 

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)
  • HB 1707 Public school students; self-identification as gender other than biological sex, parental contact.
  • SB 1203 Children Deserve Help Not Harm Act established, health benefit plans, etc.

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)

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)
  • HB 2066 Custodial interrogation of a child; statement of leniency.

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.

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

  • 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)

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.
  • HB 2076 Virginia Military Survivors and Dependents Education Program, broadens eligibility.(Cross-reference - Military)
  • 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)

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.
  • HB 2097 Sexual assault survivors; administration of emergency contraception by health care providers

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.
  • HB 2141 Owners of firearms; use of firearm by minor in commission of crime or to cause bodily injury.
  • HB 2291 Infants left in newborn safety devices or hospital personnel, etc.; placement protocol.
  • HB 2227 Civil action against parent; minor's possession and use of firearm.
  • HB 1786 Child abuse or neglect; definition, independent activities.

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.
  • 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)
  • HB 1454 Home instruction; removes certain criteria for parents.
  • HB 1666 Public schools; unscheduled remote learning days- unscheduled remote learning days due to weather or other emergency situations are mandatory
  • HB 1903 School boards; online portal for parents to access content in school libraries.
  • HB 1938 Public schools; school counselors with training or experience in mental health, staffing ratios- Requires each school board to employ, in addition to the school counselors that it employs as otherwise required by law, at least one full-time school counselor with specialized training or experience in mental health per 1,000 students in grades kindergarten through 12.
  • HB 2145 Standards of Learning assessments; English language learner students, parental opt out- Requires each local school board to ensure that the parent of each English language learner student is notified of the option to not have his child take any Standards of Learning assessment.
  • HB 2170 Public school pupil participation on certain teams and in certain clubs; parental consent.

Health

  • HB 2091 Parental access to minor's medical records; consent by certain minors to treatment.
  • HB 1819 Amendment of death certificates; county and city registrars.

Mental Health

  • HB 1923 Minors; admission to mental health facility for inpatient treatment. Would have changed standards based on consent, age, and addiction.
  • HB 1938 Public schools; school counselors with training or experience in mental health, staffing ratios- Requires each school board to employ, in addition to the school counselors that it employs as otherwise required by law, at least one full-time school counselor with specialized training or experience in mental health per 1,000 students in grades kindergarten through 12.

Abortion / Reproductive Technology

  • SB 1284 Abortion; prohibited, exceptions, penalty.
  • SB 1483 Abortion; viability, treatment of nonviable pregnancy.
  • HB 2357 Surrogacy; relinquishment of parental rights- surrogate may relinquish parental rights to at least one intended parent before birth.

LGBT

Constitutional

Criminal

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

Real Estate

Judges

  • 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


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.


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.