The Livesay & Myers, P.C. Blog
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 »
The Washington, DC metropolitan area, and particularly Northern Virginia, has a highly transient demographic. Between the dense concentration of federal government jobs and the myriad military installations in and around the city, individuals and families are constantly moving in and out of the area. It comes as no surprise, then, that we often see parents who have children subject to a child custody and visitation order issued by a state other than Virginia. Many times, these parents want to modify the custodial arrangement set forth in their out-of-state order.
In Virginia, child custody and visitation orders are modifiable where (a) there has been a material change of circumstances and (b) the best interest of the child warrants a different custody arrangement. Upon filing a motion to modify a custody order in Virginia, however, it must first be determined which state or … Read More »
Paternity is a father’s assumption of legal rights and responsibilities to a child. An established legal father of a child has a duty and obligation to support that child, as well as the right to petition the court for custody or visitation of the child. Such rights and responsibilities do not apply and cannot be exercised unless and until paternity is established.
In addition to the emotional and quality of life benefits that building the father-child relationship can have for both parties, establishing paternity also entitles the child to other possible benefits, including the right to inherit, the right to share in social security, the right to collect disability and veteran’s benefits if applicable, and the right to receive insurance and medical health benefits. Establishment of paternity is also valuable to the child because knowing the mental and physical health history of … Read More »
In an unpublished opinion issued on April 21, 2015, the Virginia Court of Appeals upheld the ruling of a trial court that same-sex couples cannot cohabit under Virginia law. The case, Lutrell v. Cucco, might prove to be very important in the evolution of the law regarding same-sex relationships in Virginia.
In Lutrell v. Cucco, Mr. Lutrell (represented by Livesay & Myers, P.C.) filed a motion to terminate his $2,450 per month spousal support payment to his ex-wife Ms. Cucco based upon her cohabitation with another person for more than a year, pursuant to Virginia Code §20-109. That code section states in relevant part that:
[u]pon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing … Read More »
So you’re open to reaching a fair divorce settlement with your spouse, but you don’t have confidence that the two of you (with or without your attorneys) can make lasting progress around a conference table. In that setting, emotions may run too high or your spouse may fixate on certain elements of your case that cloud and crowd out everything else.
Maybe there has been infidelity, domestic violence, abandonment or simply a failure to communicate without every interaction devolving into a shouting match. These are all-too-common elements in contested family law cases. You may need a neutral third party with authority to step in and help drag your case across the finish line.
Whether your mediator is a retired judge or family law practitioner, he or she will likely be knowledgeable and experienced in family law and skilled in the art of … Read More »
Concerns Over Shariah Law Threaten International Child Support Treaty
A few years ago, we covered federal action on the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. Specifically, I wrote about how the U.S. House of Representatives unanimously passed key language implementing the Hague Convention in the International Child Support Recovery Act of 2012. While that bill did not ultimately become law, a new issue has recently arisen that jeopardizes U.S. participation in the Hague Convention itself.
As the 2015 session of the Idaho legislature approached closing, the Judiciary, Rules and Administration Committee of the Idaho House of Representatives voted to kill an update to Idaho’s version of the Uniform Interstate Family Support Act. The update would have brought child support enforcement methods in Idaho into alignment with the terms of the Hague Convention. The measure had passed the … Read More »
Children are expensive; there is no doubt about it. When a third party steps up and receives custody of a minor child, that custodian has new, often times unplanned for, expenses. Many times custodians want financial support from the parents but do not know where to begin. Do they file against one parent? Both parents? Will the custodian’s income be a factor? The questions can be endless and the process can feel overwhelming.
Assuming all parties (parent(s) and custodian) reside in Virginia, a third party custodian can seek child support through the court in Virginia as follows:
First, the custodian would file a separate child support petition against each parent, and request that the court docket the two petitions together.
Second, once the matter is docketed, the parents would provide and exchange their income information, and the court or counsel would proceed to calculate … Read More »