The Livesay & Myers Blog
Summertime! It is the time of year where many of our military families are going through their permanent change of station (PCS) moves, and many of our civilian families are moving before the new school year begins.
What does relocation mean for separated or divorced parents who are co-parenting a child in Virginia? The juvenile and domestic relations district courts of Virginia will examine the best interests of the child in each case by applying the statutory factors of Virginia Code Section 20-124.3; but a relocating parent has a significant burden beyond those factors.
Where there is a current court order in place, an impending relocation is always considered a material change in circumstances which allows the court to re-examine the facts of the case.
Unfortunately for the parent hoping to relocate, the current trend of the Virginia Court of Appeals in the … Read More »
When a couple decides to separate and pursue a divorce, there are countless questions and issues that can arise. However, there are also some difficult questions that await the teenage child or children of divorcing parents. Perhaps the most difficult question to answer is: “Who do I want live with after Mom and Dad are divorced?” The answer to this question can go a long way towards determining the final custody and visitation arrangement for that child.
In making a custody or visitation determination, a Virginia court will consider what is in the best interests of the child, according to the factors laid out in Virginia Code Section 20-124.3. One of the most important factors listed in that code section is: “The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience … Read More »
In the moments after being arrested and charged with a criminal offense, many defendants are singularly focused on one question: when will they get out of jail?A lot of confusion exists among defendants and their families over the bond/bail process and what can and cannot be done by the defendant, their attorney, and the court. A basic understanding of how bond works in Virginia can alleviate a lot of that confusion, and place defendants and their loved ones in the best position going forward.
To begin, while they are often used interchangeably, the terms “bail” and “bond” do have different meanings in Virginia:
Bail is the pretrial release of a person upon certain terms or conditions set by a judicial officer.
Bond is the actual posting or promise to pay a specific sum as ordered by a judicial officer to assure a defendant’s compliance with the … Read More »
Every parent involved in a child custody dispute is concerned about the kind of custody and visitation arrangement that will result. Regardless of whether the court decides custody or the parents reach an agreement which is then approved by the court, there are two aspects of custody that must be addressed in every case: legal custody and physical custody.
In Virginia, one possible custody option is one parent being awarded sole legal custody and sole physical custody, with a visitation schedule for the other parent. An alternative to that “sole custody” arrangement would be “joint custody.”
Virginia Code Section 20-124.1 defines joint custody as follows:
joint legal custody, where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent;
joint … Read More »
A Family Care Plan (FCP) is a document that certain active duty or reserve servicemembers, and some DOD civilians, are required by the Department of Defense to maintain in order to ensure that their children (and incapacitated parents) are taken care of if they are called away to service.
Any person required by DOD Instruction 1342.19 to maintain a Family Care Plan must do so in a certain amount of time. Other than the requirements with respect to timely filing, the instructions are fairly broad as to what can and should be included in the FCP.
At a minimum, a Family Care Plan allows the military member to designate another party to care for his or her child during any period where the member is unavailable due to military service obligations.
Though the DOD requires this plan of action and files it in each servicemember’s … Read More »
Virginia Code Section 20-107.1 provides that pursuant to a divorce, a court may reserve the right of a party to receive spousal support in the future. Furthermore, “in any case so reserved, there shall be a rebuttable presumption that the reservation will continue for a period equal to 50 percent of the length of time between the date of marriage and the date of separation. Once granted, the duration of such reservation shall not be subject to modification.”
What does this mean? This means that in lieu of a spousal support award, or in addition to a spousal support award, a Virginia court can grant a reservation for one or both parties to seek additional spousal support from the other in the future.
Why would a spouse not elect to immediately pursue his or her reservation? Because it’s not as simple as … Read More »
The Difference Between Jurisdiction and Venue
Jurisdiction and venue are two very different legal terms that are often, and wrongly, used interchangeably.
Jurisdiction is the power of a court to adjudicate a case upon the merits and dispose of it as justice may require. Litigants cannot bestow this power on the court by waiver or consent; jurisdiction can only be granted to a court by constitution or legislation. In Virginia, a court has jurisdiction over a family law case if it has (1) jurisdiction over the subject matter, (2) jurisdiction over the person, and (3) jurisdiction to render the specific relief sought. For example, pursuant to Virginia Code Section 20-96, the circuit courts in Virginia have jurisdiction over suits for annulment, divorce, separate maintenance, and for affirming marriages.
In contrast, venue is the place where the power to adjudicate a controversy is exercised, and it can be waived … Read More »
The juvenile and domestic relations district courts (“J&DR courts”) in the Commonwealth of Virginia have jurisdiction over cases to determine child custody and visitation. While this jurisdiction is “concurrent” with the circuit courts (meaning either court can hear such a case), a vast majority of custody disputes begin—and end—in J&DR courts. Parties to custody cases before a J&DR court do retain the automatic right to appeal any decision to the circuit court for a brand new trial, meaning that parents could potentially have to go through a complete custody trial not once, but twice, before being able to move on with their lives.
This reason is one among many that could lead parties to resolve a custody battle through a negotiated agreement. But the last thing a parent wants to face is the other parent backing out of an agreed-upon custody arrangement, … Read More »
I recently handled the immigration case of an individual who has resided in the U.S. since the late 1950s. Having entered on a farmworker visa and then falling out of status once the visa expired, my client filed for a green card based on a little-known program in the U.S. called Registry. Quite simply, Registry allows for a person to obtain a green card (or permanent residency) if they can prove physical and continuous presence in the U.S. since January 1, 1972.
Other criteria for a green card through the Registry include that the individual is:
a person of good moral character;
not ineligible for citizenship; and
not deportable as a terrorist or inadmissible for engaging in Nazi persecution, genocide, torturous acts, or extrajudicial killings.
Importantly, the applicant must have proof of his/her continuous physical presence in the U.S. since 1972. Such proof includes: bills, … Read More »
Over the last few weeks, the recent upsurge of unaccompanied minor children crossing illegally into the United States has caught the attention of the media and protesters alike. Anti-immigration activists will predictably seek to frame this situation in the most political terms possible. But this is a case where, rather than arguing over invisible borders, we should act as adults seeking to protect the innocent.
In order to understand this recent influx of child immigrants, it is important to understand how we got here, how bad the situation is for these children, and what we are doing to address the issues.
How Did We Get Here?
In 2008, President Bush signed the Trafficking Victims Protection Reauthorization Act into law. This Act set guidelines on how unaccompanied minors arriving from non-border countries should be handled. Minors qualifying under the Act are entitled to have a hearing … Read More »