The Livesay & Myers, P.C. Blog
Can You File for Custody If Your Parental Rights Were Terminated in Virginia?
If your parental rights to a child have been terminated, under Virginia law you do not have standing to file a petition for custody of that child. Under Virginia Code Section 20-124.1, a petitioner seeking custody of a child must be a “person with a legitimate interest.” The statute specifically provides that a person with a legitimate interest does not include a party whose parental rights have been terminated by a court order, either voluntarily or involuntarily. However, in 2013, the General Assembly enacted Virginia Code Section 16.1-283.2 to provide a procedure for restoration of parental rights. Once a parent’s parental rights are restored pursuant to that code section, he or she can file a petition for custody.
Who Can Petition for Restoration of Parental Rights?
The statute distinguishes as … Read More »
Each year, the Virginia legislature considers numerous proposed updates to Virginia family law. These updates range from universally significant changes such as last year’s revised child support guidelines (updated for the first time in nearly thirty years), to the loosened notice requirements for finalizing uncontested divorces, to addressing the perhaps mundane question of whether or not courts should consolidate juvenile cases under single case numbers.
That trend has continued into 2015, with the legislature passing—and Governor McAuliffe signing into law— updated provisions concerning the amount of health insurance cost to be included in calculating child support in Virginia.
Virginia’s child support guidelines provide courts a method for determining child support based on each parent’s income, the support by either parent of “other children” (such as by prior marriages), day care expenses and health care costs. Under the new law, effective July 1, 2015, for purposes of child support the health … Read More »
If you find yourself in the middle of a contested divorce and the stakes are high, you may need more assistance than your attorney can provide. With an eye toward preparing your case for trial or simply aiding in the settlement process, several categories of experts can be utilized to bolster your position and create compelling evidence in your favor.
These experts are typically experienced as trial witnesses, and the best ones come armed with CVs that add weight to their testimony and shield them from withering cross-examination. Experts can also prepare reports for use as evidence in court or as tools to bring the parties closer to settlement.
You should consider whether hiring any of the following six types of experts would be a worthwhile investment of time and money in your ongoing divorce:
Business Evaluator: This expert can be critical in cases … Read More »
What happens to a Virginia child support obligation if the parent who was ordered to pay support starts receiving disability payments instead of a pay check? Can those disability benefits be seized through an income withholding order to pay child support?
Supplemental Security Income Benefits (SSI). SSI is a Social Security benefit that is based on financial need and does not derive from the recipient’s earnings record. Monthly payments are made to individuals who are 65 years or older, blind or disabled, earn little to no income and have few, if any, resources. A non-custodial parent who receives this type of disability benefit cannot have those monthly payments taken through income withholding. Likewise, any lump sum payment the non-custodial parent receives for past due benefits cannot be taken to satisfy child support arrears.
Social Security Disability Insurance Benefits (SSDI). SSDI is a … Read More »
As we celebrate graduation season and waves of 18-year-olds going off to college or joining the military, we also think about the freedom that comes along with officially being an adult. For parents, you have maintained custody and control over your child their entire lives, and they are now free to make their own decisions.
However, there are certain instances where a teenager may seek to emancipate themselves from parental control prior to age 18. This is called the emancipation of minors, and is governed in Virginia by Virginia Code Section 16.1-331, et seq.
After a hearing, a Virginia court may declare a minor over the age of 16 as emancipated if the court finds the following:
That the minor has entered into a valid marriage;
That the minor is on active duty with any branch of the U.S. Armed Forces;
That the minor willingly … Read More »
Recently, the immigration team at Livesay & Myers, P.C. attended the AILA Annual Conference in National Harbor, Maryland. AILA (the American Immigration Lawyers Association) is the largest professional organization for immigration attorneys worldwide. The four-day conference was filled with educational seminars and the latest updates in immigration law. Here are some noteworthy highlights from the conference:
The Executive Office for Immigration Review (EOIR) confirmed that 18 new judges were hired in June to fill an urgent need in immigration courts nationwide. Unfortunately, no new judges will be placed in our local courts in Arlington, Virginia or Baltimore, Maryland. In Arlington, hearings for new, non-detained immigrants continue to be scheduled for 2019.
After a several-week technological outage for many embassies and consulates worldwide, the Department of State reported that all visa-issuing posts are back online. To help clear a backlog, some 410,000 nonimmigrant … Read More »
Every year on July 1, a whole new set of laws goes into effect in the Commonwealth of Virginia. This is a result of the uniqueness of our General Assembly, which is a part-time legislature that regularly meets for only either 45 or 60 days every winter. A flurry of activity and news occurs during those times, but any press is normally focused on such things as selecting a new state song (we actually have three now!). In reality, the General Assembly considers many bills that will have implications across Virginia for those that are facing, or may face, criminal charges. These laws usually do one of three things: (1) create new crimes, regulations or defenses, (2) close loopholes, or (3) streamline the judicial process. In addition to a new law on DNA sampling, here are some noteworthy new criminal … Read More »
Most parents facing a separation or divorce understand the importance of determining a child support amount. In Virginia, child support is determined by the application of child support guidelines which consist of a formula that factors in (a) the gross incomes of both parents, (b) any support paid by either parent for children from another marriage or relationship, (c) day care expenses and (d) the cost of health insurance for the child.
The question of how much child support will be paid is clearly important—but what about the question of when it begins? And specifically, when the parties have gone a period of time without a child support order or written agreement in place, is support owed retroactively for that period?
Under Virginia Code §20-108.1, courts in Virginia are to determine child support “retroactively for the period measured from the date that the proceeding was … Read More »
A new law goes into effect in Virginia on July 1, 2015, adding a number of misdemeanors to the list of convictions for which the Commonwealth will take the defendant’s DNA sample and put it into a database. But does this change to the Virginia Code go too far?
Background: the Constitution
The tension between privacy and law enforcement has existed since our nation’s founding. The Fourth Amendment to the Constitution prevents the government from conducting unreasonable searches and seizures. In a nutshell, this means that the government through its law enforcement agencies cannot simply look into our homes or persons and take whatever it wants in a criminal investigation. There are rules and requirements, such as obtaining a warrant on probable cause before (a) searching a place or (b) seizing a person or his things.
The Fourth Amendment begins with “[t]he right of … Read More »
In custody cases where a child has lived in multiple states, under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) the initial custody determination will generally be made in the child’s “home state.” If the child has been absent from their home state, the court will look to see what state the child lived in during the prior six months or during the six months immediately preceding the filing for custody.
But what happens when the child has not lived in the United States in the past six months?
Take the hypothetical case of John & Suzy Doe for example. John and Suzy have an 8-year-old son named Joe. Joe was born in England, but moved to Virginia with his parents when he was two years old. After six years in Virginia, Suzy takes Joe and heads back to England. Nine months later, Suzy files for … Read More »