The Livesay & Myers Blog
On April 22, 2014, the Supreme Court issued a decision in Prado Navarette v. California, 572 U.S. ____ (2014) that will have a significant impact on DUI and other traffic stop cases nationwide. In a 5-4 decision, the Court found that a police officer has reasonable suspicion to stop a driver based on an anonymous 911 call complaining of reckless driving behavior.
In this case, the defendants (Lorenzo and Jose Prado Navarette) were driving a Silver Ford F-150 down a California highway. An anonymous 911 caller reported that the F-150 ran them off of the highway. Approximately 15 minutes later, a state patrol officer made contact with the F-150 and, after observing the vehicle for five minutes, pulled it over. Upon approaching the vehicle, the officers smelled marijuana—and then discovered 30 pounds of marijuana in the bed of the truck. The defendants … Read More »
The central question for most parents facing a child custody battle is: “what are my chances at winning custody?” In many cases, the answer to this question depends upon the answer to another question: who is the primary caregiver? Many households are still arranged with one parent being the primary breadwinnner for the family and the other parent being the primary caregiver for the children. In those situations, the latter parent has a decided advantage in winning primary custody. However, Virginia law requires courts to look at the whole picture in deciding custody cases, and not determine custody solely on the primary caregiver factor.
Does Virginia Favor the Primary Caregiver?
Virginia law requires judges to base custody determinations on the best interests of the child, as determined by ten factors stated in Virginia Code Section 20-124.3. Neither parent is automatically favored in these … Read More »
Each year several bills are introduced in the Virginia House of Delegates or the Virginia Senate, but only a few get passed and approved into law. One of the bills that was introduced and passed during this year’s session will expand protective orders in Virginia in an interesting way. The bill, House Bill No. 972, effectively grants judges in Virginia the authority to award pet possession as part of protective orders. This new law will go into effect on July 1, 2014.
Under current Virginia law, a person who has been a victim of violence, force, or threat that has resulted in bodily injury or places them in reasonable apprehension of the same, can seek a protective order. As explained in Protective Orders in Virginia, these orders can be sought via a court or a magistrate 24 hours a day, 365 days a year on an … Read More »
Grandparents may seek custody or visitation of their grandchildren for any number of reasons. Perhaps one or both parents have become incapacitated, incarcerated, or otherwise unfit to have custody. Or perhaps a grandparent feels that a parent is preventing them from maintaining a health relationship with a grandchild. What recourse does a grandparent have in one of these situations? What are a grandparent’s rights to custody and visitation in Virginia?
Grandparent Custody Rights in Virginia
In Troxel v. Granville, 530 U.S. 57, 65 (2000), the U.S. Supreme Court established that parents have an inherent constitutional right in rearing their children. The Court stated that the “interests of parents in the care, custody and control of their children… is perhaps the oldest of the fundamental liberty interests recognized” by the Court. However, this right belongs only to parents—it does not belong to grandparents. … Read More »
I often meet with people concerned because an immigration detainer, commonly referred to as an “ICE hold,” has been placed on their loved one after a criminal arrest. When a non-citizen is arrested by local law enforcement, immigration officials may be alerted to their presence. Should Immigration and Customs Enforcement (“ICE”) have “reason to believe” that an individual is not a U.S. citizen, they will investigate to determine if the person is subject to being removed (deported) from the United States. ICE will likely place an immigration detainer on the individual in local custody while they investigate the situation.
Because they are separate from the underlying criminal charges, ICE holds can create confusion both on the part of the detained individual as well as their family members. If you or a loved one are the subject of an immigration detainer, here are … Read More »
The Fairfax County Circuit Court recently issued an opinion that sheds light on an important aspect of Virginia divorce law: when divorcing parties include a provision for spousal support in a separation agreement that is incorporated into a divorce decree, that spousal support can only be modified later if the language of the agreement specifically allows for modification.
In Gordon v. Gordon, the parties divorced in 2003 after signing a separation agreement that provided for an award of spousal support (alimony). The Agreement made support non-modifiable, stating:
The husband agrees to pay to the wife, as and for her non-modifiable support and maintenance, the sum of One Thousand Dollars ($1,000.00) per month, the initial payment to be made on the first day of the month following execution of this Agreement by both parties, and to continue in consecutive monthly installments on the first … Read More »
If you are engaged to be married, you may be considering entering into a prenuptial agreement or “prenup” with your spouse-to-be. Although popular recognition of prenuptial agreements has grown thanks to celebrity divorces, prenups are still relatively uncommon in everyday marriages. If you or your soon-to-be spouse are pursuing a prenuptial agreement for your upcoming marriage, here are six things to keep in mind as you move forward:
Remember the purpose. Perhaps this is opinion, but the purpose of a prenuptial agreement is more about simplifying and reducing the costs of a potential divorce, and less about defining the marriage relationship or dictating the behavior of either spouse. Keeping this in mind should help you determine which terms are necessary to include and which terms are not.
Protect what you have now. People often enter into prenuptial agreements to protect the separate assets … Read More »
The Affidavit of Support is an immigration law document that places special obligations on an immigrant’s sponsor. It is very important that both those signing the document (i.e., U.S. citizens and lawful permanent residents) and the sponsored immigrants understand exactly what an Affidavit of Support is, and what it means. It is also important that family law attorneys, who may see such documents in divorce proceedings, have a general understanding of the Affidavit of Support.
To aid in the understanding of sponsors, immigrants, and family law attorneys, here are answers to five frequently asked questions about the all-important Affidavit of Support:
What is an Affidavit of Support? The Affidavit of Support is a document an individual signs to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently. Make no mistake, the Affidavit … Read More »
The Virginia General Assembly recently passed a bill to update Virginia’s child support guidelines. The bill, HB 933, enjoyed significant support in the legislature—passing the House of Delegates on a vote of 85-10 and the Senate on a 38-0 vote. If the Governor now signs the bill, it will go into law effective July 1, 2014.
HB 933 proposes three significant changes to Virginia Code Section 20-108.2:
Updated Child Support Guidelines. Virginia initially adopted the child support guidelines set forth in Virginia Code Section 20-108.2 in 1988, and while it has made minor changes to portions of this law it has not updated the actual guidelines in the past 26 years. The new law would not simply increase child support amounts across the board; rather, the specific details of an individual’s case could result in higher or lower child support amounts under the revised guidelines.
Removes Set … Read More »
When facing divorce, both federal civilian government employees and their spouses need to be familiar with how their retirement accounts are structured, funded, and ultimately, how they could be affected by a divorce. Most federal civilian employees these days are covered by FERS, the Federal Employee Retirement System. FERS consists of three components: the Basic Benefit Plan, Thrift Savings Plan and Social Security. If you or your spouse are a federal employee, here is what you need to know about the treatment of FERS benefits in Virginia divorce:
BASIC BENEFIT PLAN
The Basic Benefit Plan is the defined benefit plan component of FERS. It is a monthly annuity that employees are eligible to receive upon retirement.
Eligibility: All federal government civilian employees, with very few exceptions, hired after December 31, 1983 are automatically enrolled in the Basic Benefit Plan.
Vesting: In order to be vested in the Basic Benefit Plan, … Read More »