Virginia Family Law Appeals

Continuance denial upheld; Indian Child Welfare Act N/A: George v. Traylor

The Indian Child Welfare Act does not apply in an adoption where nobody asserted a good faith belief that the child "is an Indian child," the Court of Appeals says. In fact the appellees, though the burden was not on them to do so, contacted all the Cherokee tribes the mother said she might be descended from, and learned that the child did not qualify for membership in any of the tribes.

There was also abundant evidence that the drug-using, incarcerated mother was withholding consent contrary to the best interests of the child.

The court also upholds the trial court's denial of a continuance, because it will reverse such a ruling only when shown and abuse of discretion AND resulting prejudice to the party who asked for the continuance. There was no prejudice because the mother was fully able to participate in the trial and make her case, and she did so. She was represented, appeared, testified, called numerous witnesses, filed many motions, and made substantial arguments. And the lack of a continuance did not change the basic facts of the case: the mother's sorry history and uncertain future. 

George v. Traylor, Va. App. 12/27/17

 

Circumstances mean that initialed note about wish to disinherit didn't count as change to will

The deceased's will identified his child and included him in the inheritance, but (a) the property settlement agreement in his divorce said the child was not his, and (b) on a tab divider in a binder of estate planning documents, which held a copy of the will but not the original, he wrote diagonally across the page, in cursive,

"11/17/03. I wish to remove Patrick named as my son entirely from this will no benefits. D.I." [The deceased's initials.]

The cardboard divider where he wrote this was next to a sheet of "Reminders" that said not to make changes on the face of his will without contacting his attorney.

There was abundant evidence that D.I. always used his full signature to approve any official document. Also, he left a note that told his executor where to find his will, but did not mention the binder, which included only a copy of the will. 

Overall, the trial court concluded that D.I. did not intend his initialed note to be an actual, official "codicil" amending his will. His brother did not establish by clear and convincing evidence that D.I. intended the document or writing to constitute an addition to, or alteration of, the will, as required by Va. Code Sec. 64.1-404(A).

Irving v. DeVito, Va. S.Ct. 12/14/17