Agreeing on child custody and the visitation schedule for the children can be difficult for two parents who are no longer together, especially if the parents have different parenting styles and/or different notions of what is best for the children. When parents are unable to reach a custody agreement, it is the occasional practice of the courts to order a child custody evaluation. Absent a court order, parents may also elect this option.

What is a Child Custody Evaluation?

A child custody evaluation is, essentially, an investigation of the children’s home, home environment, family relationships, and other matters of the children’s lives. The goal of the investigation is to determine the best custody and visitation outcome for the children, and the results of the investigation are used to aid the court in making its custody and visitation decision.

What is the Process?

Once a child custody evaluation is elected, either the court will appoint or the parents will choose, together or one parent unilaterally, a child custody evaluator to perform the investigation. The evaluator is often a mental health professional, and it is their task to evaluate the two parents, the children, each parent’s abilities to positively parent, and each parent’s willingness to foster a healthy relationship between the children and the other parent. After a full investigation, the evaluator makes a recommendation to the court, and the court heavily weighs this recommendation. However, do be mindful that the evaluator’s recommendation is not definitive; the court will exercise its own discretion in reaching a decision.

Also note that, because a custody evaluation involves an exploration into the mental health of each parent, the mental health of the children, the quality of the parent-child relationships, each parent’s capacity to parent, and any evidence of abuse and/or parental alienation, the evaluator may also interview outside parties who have witnessed the parents, children, and/or parent-child relationship. These outside parties often include teachers, daycare providers, and therapists, but are not limited to such.

What Should You Know Before You Choose a Child Custody Evaluation? 

Before choosing an evaluation, you should keep the following in mind:

1. The child custody evaluator is not your advocate, not an advocate for your ex, not your friend, and is not on your side, even if you chose and/or are paying for the evaluator. The child custody evaluator is an objective, neutral third party. The evaluator is neither parent’s activist.
2. The child custody evaluator does not decide the final custody arrangement; the court decides! The court will consider the factors listed under Virginia Code Section 20-124.3 when determining the best interests of the children for purposes of custody or visitation.
3. The evaluator is not appointed for the purpose of giving parenting advice, and is not appointed for the purpose of telling the parents who is right and wrong. The sole task of the evaluator is to observe and make a recommendation that is in the best interest of the children.
4. An evaluator’s recommendation can include more than just a simple custody arrangement. The evaluator may make therapy recommendations (for both the parents and the children), may suggest parenting classes, may propose a plan for how to deal with future conflicts between the parents, and more.
5. The best two people to make a decision regarding the best interests of the children are usually mom and dad!

How Should You Prepare for a Child Custody Evaluation?

Firstly, when you meet with the child custody evaluator, treat it like a business meeting – be punctual, dress appropriately, be polite, be organized, be honest, and answer the questions that are asked of you.

Secondly, the child custody evaluator is concerned with each parent’s parenting skills, not his or her ability to be a good spouse or partner. Therefore, keep your evidence and your conversations focused on the children. It is unproductive to bad mouth your ex and/or comment on their short-comings as a spouse or partner.

Thirdly, the children should be apprised of what is happening. Find a neutral way of explaining the investigation to the children without coaching the children and without painting an ill picture of the other parent.

Lastly, if you find yourself in a custody and/or visitation dispute, it is best to consult with an experienced attorney as soon as possible. The custody lawyers at Livesay & Myers, P.C. have years of experience representing clients in custody and visitation cases in Manassas, Fredericksburg, Fairfax  and across Northern Virginia. Contact us to schedule a consultation today.

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The District of Columbia recently amended its D.C. Domestic Partnership Judicial Determination of Parentage Amendment Act (aka D.C. Parentage Act) to allow some non-D.C. residents additional adoption rights. The amendment, which took effect in March 2013, allows D.C. courts the power to grant an adoption to any child who is born in the District, even if the family does not reside in D.C.

The original D.C. Parentage Act, enacted in 2009, was the first law of its kind in the country. It allowed lesbian couples who were married, registered as domestic partners in D.C., or who signed a Consent to Parent, to adopt children born to the couple in the District. The Act conferred the status of parent on both partners in the couple, where one of the women gave birth to a child using donor insemination and the other woman consented to her partner’s insemination with the intent to be a parent of the resulting child.

The Act, however, did not extend to male same-sex couples. A man cannot bear a child; therefore, he must use a gestational surrogate. But, surrogacy is illegal under D.C. law and so the D.C. Parentage Act does not provide any benefit to male same-sex couples.

The amendment to the D.C. Parentage Act should prove to have a profound effect on lesbian couples living in the Northern Virginia area.

Adoption options for lesbian couples in Virginia are quite limited. Virginia law does not allow for “second-parent adoption”– the adoption of a child by a second parent in the home who is not married to the legal parent of the child. Moreover, Virginia does not allow same-sex marriage, and currently even denies recognition to same-sex marriages entered into in other states (although two pending Supreme Court cases might change that). So, a lesbian couple is effectively precluded from adopting a child together in Virginia. And, where one partner in a lesbian couple gives birth to a child conceived through donor insemination, her partner is precluded from adopting the child. In addition, Virginia law allows adoption agencies to explicitly discriminate against LGBT families in placements for children to be adopted.

But, under the newly amended D.C. Parentage Act, even if the couple lives outside of D.C., so long as the child is born in D.C., a D.C. court will have the power to grant the adoption– and both Virginia and the federal government should recognize the adoption for all purposes. Therefore, a Virginia lesbian couple can carefully plan to have the child born in the District to ensure that both parents secure parental rights through a second-parent adoption.

If you are in a same-sex relationship in Virginia and have legal questions regarding adoption rights, contact us to schedule a consultation with one of our experienced adoption lawyers today.

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You may have heard the term “DOMA” at some point in passing; you may have also heard “Prop 8” at some point in passing; you may be aware that there are two “gay marriage” cases before the Supreme Court; and you may be wondering how those much-awaited court decisions could affect Virginia’s same-sex marriage topography. So, what really is DOMA, what is Proposition 8, what are the Supreme Court cases about, and how will those court decisions impact Virginia?

The Two Same-Sex Marriage Cases Now Before the Supreme Court

U.S. v. Windsor. The first case before the Supreme Court with potentially large ramifications for same-sex marriage in Virginia is U.S. v. Windsor. The question for the Supreme Court in Windsor is the constitutionality of the federal “Defense of Marriage Act” (DOMA).

Enacted on September 21, 1996, DOMA is a federal law that restricts federal marriage benefits to solely opposite-sex marriages, and requires inter-state marriage recognition of solely opposite-sex marriages. Practically speaking, this means two things.

First, under DOMA same-sex married persons are treated differently than opposite-sex married couples in areas included but not limited to: taxes on income, gifts, estates, and property; immigration; housing; federal financial aid; Social Security benefits; federal employee benefits; Veteran’s benefits; pensions and survivors benefits; educational loan programs; financial aid to family farms; and benefits to military families.

Second, under DOMA states do not have to recognize a marriage, civil union, domestic partnership, etc. of any same-sex couple entered into in another state.

The Windsor case arose when the federal government taxed a same-sex surviving spouse as if the two spouses were strangers. Edie Windsor and Thea Spyer, after a 40 year engagement, married in Canada in 2007. The couple lived in New York City, and had lived in New York City for over four decades. New York recognized the couple’s 2007 Canadian marriage.

In 2009, Thea passed away. At the time of Thea’s death, the federal government refused to recognize the couple’s marriage, and taxed Edie’s inheritance from Thea (under federal tax law, a deceased spouse can leave their assets to the surviving spouse without incurring estate taxes). The federal government refused to recognize Edie and Thea’s marriage based on DOMA.

U.S. v Windsor places squarely before the court the issue of the constitutionality of DOMA- specifically whether DOMA violates the Equal Protection Clause of the Fifth Amendment. A decision is expected in June 2013.

Hollingsworth v. Perry. The second pending Supreme Court case with potentially big implications for same sex marriage in Virginia is Hollingsworth v. Perry, which involves a constitutional challenge to California’s Proposition 8.

Proposition 8 is a state constitutional amendment to the California Constitution, passed on November 5, 2008, that declares that “only marriage between a man and a woman is valid or recognized in California.” Essentially, Proposition 8 bans gay marriage in California; both in its creation and its recognition.

Hollingsworth v. Perry raises the question whether Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment. Opponents of Proposition 8 argue that there is a fundamental right under the U.S. Constitution to gay marriage. However, whether or not the merits of the Proposition 8 case will be considered by the Supreme Court is still in question due to standing issues.

What Virginia Law Currently Says About Same-Sex Marriage

The current landscape for same-sex couples in Virginia is bleak. Virginia law both prohibits the creation of same-sex marriages or civil unions, and denies recognition to gay marriages and civil unions from other states.

First, in Virginia we have the Virginia Affirmation of Marriage Act (Va. Code § 20-45.3), which became effective July 1, 2004. The Act both (a) prohibits the creation of a civil union, partnership contract or other arrangement between same-sex couples that purports to bestow the privileges and obligations of marriage, and (b) voids and makes unenforceable any civil union or partnership entered into by same-sex couples in another state.

Second, we also have the Marshall-Newman Amendment (aka. the Virginia Marriage Amendment) to the Constitution of Virginia, which was ratified on November 7, 2006. The goal of the Virginia Marriage Amendment was/is to prevent the recognition of any legal status of unmarried individuals that intends to approximate the “design, qualities, significance, or effects of marriage,” as well as prevent the recognition of any union or partnership which is “assigned the rights, benefits, obligations, qualities, or effects of marriage.” The Amendment also defines marriage as exclusively between one man and one woman.

Will the Supreme Court Decisions Impact Virginia?

Unfortunately, it is too early to tell.

DOMA, as the federal law is now written, allows Virginia and other states to deny recognition of same-sex marriages entered into in another state, as well as denies federal marriage benefits to same-sex married persons. Depending on the Supreme Court’s ruling, and whether or not the Court elects to rule broadly or narrowly, Virginia and other states may or may not be required to recognize same-sex marriages, may or may not be required to grant same-sex marriages, and so on. Further, whether or not the Supreme Court’s ruling will force the federal government to recognize same-sex marriages for purposes of federal marriage benefits is also in question.

Suffice it to say that, if the Supreme Court rules very broadly that the DOMA and/or state measures like California’s Proposition 8 violate the Equal Protection Clauses, then challenges to the constitutionality of the Virginia Affirmation of Marriage Act and the Virginia Marriage Amendment will surely follow.

If you are in a same-sex relationship in Virginia and have legal questions regarding property or support rights, child custody or adoption, then contact us to schedule a consultation with one of our experienced family lawyers today.

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If you have reviewed follow our military divorce sections of our website and blog, you should be familiar with the basics of the division of military retired pay pursuant to a divorce in Virginia. In short:

• Your disposable retired pay, meaning your gross military retired pay minus any deductions for disability, is divisible under both federal and state law.
• Under Virginia law, your spouse can receive up to fifty percent of the “marital share” of your retired pay, the marital share being defined as the portion that was earned during the marriage before separation.
• The Defense Finance and Accounting Service (“DFAS”) can pay your spouse his or her portion of your military retired pay directly where your marriage overlapped with 10 years or more of your military service.

What we have not discussed in detail is how you can structure your military retired pay award to save you money during the course of your retirement. By carefully crafting the language of the separation agreement or divorce decree that divides your retired pay, you can do just that.

Division Of Retired Pay By Fixed Dollar Amount Or Percentage

We have already touched on the most basic ways of dividing your military retired pay. If you are already retired, it is best to structure the award in terms of a fixed dollar amount or percentage, as an appropriate award can be easily calculated by making reference to the standard retirement variables: the date of your marriage, the date of your separation, the dates of your service, and your rank and base pay at retirement. For example, your separation agreement or divorce decree might contain the following language:

• The former spouse is awarded ___ percent of the member’s disposable military retired pay; or
• The former spouse is awarded ___ dollars of the member’s disposable military retired pay.

Division of Retired Pay By Formula Award Or Hypothetical Award

In addition to accepting fixed dollar amount or percentage awards as set forth above, DFAS will accept and process orders that contain formula awards and hypothetical awards. These two forms are appropriate for servicemembers still on active-duty or for reservists who continue to accumulate reserve points, but who wish to award their spouses no more than a portion of the marital share.

Formula Awards. A formula award uses the standard formula to calculate the marital share, and is based on your actual retirement variables at the time of your retirement – even though they are not known at the time of your divorce! Essentially, a divorce decree or separation agreement containing a formula award specifies the number of months of your marriage before separation that overlapped with your military service or the number of reserve retirement points you earned during that time period. The other variables, such as the length of your service and your base pay at retirement, are unknown until you actually retire. Upon your retirement, DFAS will plug in those numbers, calculate the marital share and then begin making payments to your spouse. The following are examples of acceptable formula awards:

• [Active duty formula] The former spouse is awarded a percentage of the member’s disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is x months of marriage before separation during the member’s creditable military service, divided by the member’s total number of months of creditable military service.
• [Reservist formula] The former spouse is awarded a percentage of the member’s disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is x Reserve retirement points earned during the period of the marriage before separation, divided by the member’s total number of Reserve retirement points earned.

Please note than in these formula awards, x– the numerator of the marital share– must be stated in the separation agreement or divorce decree (otherwise your agreement/decree will not be enforceable by DFAS). However, that is usually done easily enough, by simply calculating the number of months of marriage during the marriage before the final separation (or in Reserve cases, the number of retirement points earned during the marriage before the final separation).

The beauty of a formula award is that you it ensures your spouse is receiving no more than the share to which he or she is legally entitled under Virginia law. Remember that spouses in Virginia are limited to receiving a portion of the marital share of your military retired pay, and the portion must be no more than fifty percent (50%).

Hypothetical Awards. A hypothetical award also uses the standard formula to calculate the marital share, but uses variables other than those actually used to calculate your retirement. For example, you can specify a different date of retirement or a different rank and base pay, so that your spouse cannot benefit from the years you worked and the promotions you earned after separation. All of the following are acceptable by DFAS:

• The former spouse is awarded _____% of the disposable military retired pay the member would have received had the member retired with a retired pay base of ________ and with _______ years of creditable service on ________.
• The former spouse is awarded _____% of the disposable military retired pay the member would have received had the member retired on his actual retirement date with the rank of ________ and with _______ years of creditable service.
• [Reservist] The former spouse is awarded _____% of the disposable military retired pay the member would have received had the member become eligible to receive military retired pay with a retired pay base of _______ and with _______ Reserve retirement points on _______.”
• [Reservist] The former spouse is awarded _____% of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on the date the member attained age 60, with the rank of ________ , with _______ Reserve retirement points, and with _______ years of service for basic pay purposes.

In all these examples of hypothetical awards, all of the blanks would need to be filled in, in the language of your separation agreement or divorce decree, for the language to be enforceable by DFAS. Filling in those blanks is often much trickier than simply calculating the numerator of the marital share in a formula award. It typically requires the assistance of an experienced military divorce attorney– and can become the subject of intense debate in separation agreement negotiations.

Now, if you do the math, you may find that you save substantial sums, perhaps hundreds of thousands of dollars over a period of enough years, by limiting your spouse to what you would have earned had you retired on the date of separation, with your rank and base pay as of that date. Please note: DFAS can process a hypothetical award based on your date of separation even if your retirement had not yet vested on that date– so long as the language for the hypothetical award is properly stated in your separation agreement or divorce decree.

Conclusion

Securing representation by an experienced military divorce lawyer is essential if you are to ensure your military retired pay is divided in a manner that will provide you the safe, secure retirement you earned during your service. Livesay & Myers, P.C. has a team of experienced military divorce attorneys across offices in Manassas, Fredericksburg and Fairfax, Virginia. Contact us to schedule a consultation today.

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NFL star and 2006 first overall draft pick Mario Williams has filed suit against his former fiancée seeking recovery of the 10.04 carat diamond engagement ring he gave her in February 2012. Williams claims that his ex, Erin Marzouki, never intended to marry him, and that she had promised to return the ring if the engagement ended. The two-time Pro Bowler brings this claim under the “conditional gift rule” – the idea that a gift is not truly given until something else happens.

The thinking here is that the engagement ring is given “on the condition” that the marriage occurs. If the parties marry, the gift is completed and the ring becomes the receiver’s separate property. If the parties don’t marry, at least in Texas, the court would look at the reasons why the marriage didn’t happen. In Virginia, however, the court is not likely to get past the first part of the question.

Virginia enacted Code Section 8.01-220 in 1968. Called the “Heart Balm Act,” it eliminated alienation of affection and breach of promise to marry as valid civil actions. In other words, spouses-to-be cannot sue each other civilly if the marriage falls through. The courts have extended this to the question of the engagement ring. Seeking recovery of the ring, or value equivalent to the ring, would involve seeking damages incurred from a breach of a promise to marry.

That is not to say that the courts never return the engagement ring. In a 1999 divorce case, the Fairfax Circuit Court ordered the return of an engagement ring through the equitable distribution of property. The Court noted, however, that in that particular case the ring should be returned based on the wife’s promise to return the ring in the event of separation. These types of situations, however, are the exception that proves the rule: absent some outside promise or agreement, engagement rings are unconditional gifts in Virginia– meaning our divorce courts do not have the power to order their return.

Former spouses are not without options. If the parties enter into a Property Settlement Agreement and agree the ring shall be returned, then the Court will honor such an arrangement.

The treatment of engagement rings can be one of the trickiest aspects of separation and divorce cases. The family law attorneys of Livesay & Myers, P.C., are experienced in dealing with this and many other property issues in divorce, and assist clients in Fredericksburg, Fairfax, Manassas, and throughout Northern Virginia. Contact us to schedule a consultation today.

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With Congress seemingly moving closer to passing comprehensive immigration reform, NPR recently ran a story on the lack of qualified immigration attorneys available to help the millions of immigrants who will need legal assistance under the new plan. In a previous post, I detailed some simple steps immigrants can take to prepare for immigration reform. In this post, I’ll talk more specifically about the need of immigrants for qualified and trustworthy legal counsel in applying for relief under the new legislation.

The NPR article highlights the problems many immigrants encounter in dealing with attorneys or non-attorneys who make grand promises with little to back them up. Hoping to make large profits, these individuals prey on the immigrant population. In the coming months, the possibility for fraud is higher than ever. Be wary of individuals who urge immigrants to hire them before reform even passes. Be wary of those who guarantee approvals. Finally, be wary of those who promise a temporary benefit like a work permit. While it is very helpful for someone who has never had permission to work in the U.S., the work permit is usually tied to a more permanent benefit. If the applicant is not eligible for the permanent benefit in the first place, a denial can lead to deportation proceedings.

The immigration attorneys and staff at Livesay & Myers, P.C. focus 100% on immigration matters. The firm boasts a number of lawyers who practice in other legal areas,  including criminal defense and family law. This allows the immigration team to collaborate with other attorneys on matters that directly affect our clients’ immigration status.

With our firm, you can rest assured of the following:

• We won’t abandon you. Livesay & Myers, P.C. opened its doors in 2003. Today, the firm has permanent offices in Fairfax, Manassas, and Fredericksburg, Virginia. You don’t need to worry that we’ll be here today, gone tomorrow!
• We understand that communication is important. We return all phone calls and respond to e-mails promptly. It is easy to make an appointment with our attorneys and staff.
• We stress quality over quantity. Attorneys and staff are knowledgeable about what’s going on in your particular case. Case strategy is based on the best outcome for you and your specific situation.
• When it comes to fees, with our firm you don’t have to worry about being hoodwinked. We will never take your hard-earned money and do nothing in return. We will keep a detailed record of all work done on your case.
• Finally, we are not going to make promises that we cannot keep. At the time of your consultation with one of our licensed immigration attorneys, we will provide a realistic assessment of your case.

If you are one of the millions of undocumented immigrants presently living in the United States, I know that you will be watching developments in Washington very closely. We are all very eager to see what shape comprehensive immigration reform will take. While you wait, please read my article, Are You Ready For Immigration Reform? for some practical tips on how you can best prepare for any new legislation that Congress enacts. And, when the time is right and you need assistance, contact us to schedule a consultation to discuss your options.

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On April 23, 2013, the U.S. Supreme Court ruled in the case of Moncrieffe v. Holder. Adrian Moncrieffe is a Jamaican national who came to the United States at the age of 3. During a 2007 traffic stop, police found 1.3 grams of marijuana in Mr. Moncrieffe’s car. This is roughly the amount of 2-3 marijuana cigarettes. In his Georgia criminal case, Mr. Moncrieffe agreed to a plea for possession of marijuana with intent to distribute. He received no jail time and was placed on probation. As a result of this conviction, Mr. Moncrieffe was placed in immigration proceedings ultimately resulting in his deportation. The Board of Immigration Appeals agreed with the Immigration Judge and the 5th Circuit denied review. The Supreme Court, in a 7-2 decision, ruled that his marijuana charge was improperly classified as an aggravated felony under the Immigration and Naturalization Act (“INA”).

The classification of convictions as aggravated felonies is important under the INA. A non-citizen may be found deportable based on a number of actions including visa overstays or criminal convictions. Those who are found deportable may still be eligible for certain discretionary forms of relief such as cancellation of removal or certain waivers. For the non-citizen that is convicted of a crime classified as an “aggravated felony” most forms of discretionary relief are unavailable.

A drug trafficking conviction is considered to be an aggravated felony if it falls under the federal Controlled Substances Act (“CSA”) and is punishable by more than a year imprisonment. Under the CSA, the Georgia law under which Mr. Moncrieffe was convicted corresponds to both a felony and a misdemeanor. Mr. Moncrieffe argued that such a small amount of marijuana without any remuneration (payment) should qualify as the CSA misdemeanor. The government took the position that all trafficking offenses should be classified “presumptively” as felonies under the CSA.

When most of us think of the term “trafficking” we tend to think of a large amount of drugs exchanged for a profit. In instances like Mr. Moncrieffe’s, a person could be sharing a small amount of marijuana with a friend and have this result in a trafficking conviction in immigration court. The Supreme Court found that when a conviction for distribution of marijuana fails to involve payment or more than a small amount of marijuana, it may not be classified as an aggravated felony under the INA.

This ruling opens up an opportunity for many non-citizens who have been convicted under statutes similar to Georgia’s distribution statute. About half of the states have marijuana statutes similarly worded which will allow those in Mr. Moncrieffe’s position to apply for deportation relief.

This ruling also allows for the potential for bond. Those who are charged with aggravated felonies are subject to mandatory detention while in immigration proceedings. This ruling will allow those who are placed in deportation proceedings for marijuana offenses similar to Mr. Moncrieffe’s to be eligible for bond while their cases are pending.

It is important to understand that this ruling does not mean that those with distribution convictions will escape deportation. They will only be eligible to apply for certain types of deportation defenses which were previously unavailable. Whether or not an individual is ultimately ordered deported will depend on the facts of the particular case. Finally, while Moncrieffe v. Holder dealt with marijuana specifically, we may see the Court’s opinion be applied in other circumstances.

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The most important role of a parent is in the instruction of a child so that he or she may enter adulthood as a well-adjusted and contributing member of society. One of the biggest frustrations of many parents is finding the appropriate method for disciplining a child. Does corporal punishment play a role in modern parenting? Is spanking legal in Virginia? If it is legal, are there clear boundaries in the law so that parents do not commit a crime in disciplining their children?

Corporal punishment is defined as “physical punishment” according to Dictionary.com, more specifically, “physical punishment, as spanking, inflicted on a child by an adult in authority.” Spanking is a legal form of discipline from a parent to a child. However, not all spankings are created equal. Parents who use physical punishment to discipline their children can sometimes be charged with assault and battery of a family or household member, in violation of Virginia Code Section 18.2-57.2, or even child abuse. The Virginia appellate courts have reviewed a number of these cases and have provided some guidelines for assessing when a spanking is not spanking, but a battery or even child abuse. Unfortunately for many parents, there is no bright line that differentiates appropriate punishment from unlawful or criminal conduct.

Some of the rules for determining when spanking is legal are found in the Virginia Supreme Court case, Harbaugh v. Commonwealth, 209 Va. 695, 697-98 (1969). That case tells us that corporal punishment cannot be an excuse for a parent to exhibit “uncontrolled passion” or uses force that “exceeds the bounds of due moderation.” Where an allegation is brought of abuse or battery by a parent of their child, and the parent claims to have simply been exercising their right to discipline, the Harbaugh case instructs the court to consider “the age, size and conduct of the child, the nature of the misconduct, and the kind of marks or wounds inflicted on the body of the child.” These criteria do allow courts to make subjective assessments of the appropriateness of the punishment. Generally, if a child suffers an injury—more than temporary redness—such as a cut or a wound that results in bleeding or bruising, the possibility exists under Harbaugh that the punishment was excessive. If the injury appears in an area other than on the rear end of the child, extra scrutiny will be applied. The use of instruments for spanking—even belts—will be given a close look, as will the number of spankings applied.

I am aware of two cases where very similar facts resulted in opposite court rulings as to the legality of a parent’s spanking their child. Both cases involved the use of a belt, an elementary age child, and repeated non-physical attempts at discipline with no improvement in the child’s behavior. Both involved wiggling children and a parent attempting to spank the child’s bottom. In the first case, the child wiggled and was struck on the back. The parent in anger struck the child again as the child continued to wiggle, and hit the child on the arm and another part of the body. In the second case, the child wiggled and was struck on the head– and the parent immediately rendered care for the accidental striking. The court found the parent in the first case to have exhibited ”uncontrolled passion”—because after the first strike accidentally hit the child’s back instead of the bottom, the parent continued to use the belt to spank, hitting other parts of the child’s body. The court saw this as excessive found the parent guilty of battery. In the second case, the court found the parent’s striking the child on the head to have been an accident, as evidenced by the parent’s immediately ceasing the disciplinary conduct and rendering care to the child. Had the parent in the second case intentionally struck the child in the head, even once, the court likely would have found that to have been a crime. But had that parent intentionally struck the child on the bottom once or maybe a couple of times, without striking the child’s head, the court likely would not have seen that as a crime.

These cases are anecdotal evidence, and should not be seen as the standard for the courts, but they are instructive as to how a parent who chooses to spank their child might do so legally. If a parent approaches discipline from a sober perspective, not overcome with emotion, and doesn’t spank to the degree that the child suffers an actual injury, he or she should be within their rights as a parent.

If you have been charged with a crime for spanking your child, it is important that you find an experienced criminal attorney to assist you. The criminal lawyers at Livesay & Myers, P.C. are experienced in representing clients on charges arising from corporal punishment in Fredericksburg, Manassas, Fairfax and across Northern Virginia. Contact us to schedule a consultation today.

Special thanks to Robert Dean whose memo on this subject was valuable in its recitation of the case law.

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A common question many parents ask during initial consultations with family lawyers is, “How can I change my child’s last name?” A parent may want to change a child’s last name in cases of divorce, re-marriage, or in situations of a non-involved parent. When looking to change a child’s last name, a parent must go through the Circuit Court of the county or city in which the child resides. A parent or guardian of the child can apply for the name change by submitting an Application for Change of Name of Minor to the Circuit Court. This form must be signed under oath in front of a notary.

If both parents are in agreement, then both would sign the application by filling out the joint application portion. One parent would then file the signed and notarized application, along with a copy of the child’s birth certificate and an Order for Change of Name, with the Clerk of the Circuit Court. The parent would also pay a small filing fee to the clerk’s office. Depending on the county, the clerk may schedule a hearing in which the judge will sign the order, or the judge may sign the order without a hearing. If a hearing is scheduled then both parents would need to be present.

If only one parent signs the application, the procedure would be slightly different. The parent requesting the name change would return the signed and notarized application to the clerk’s office of the appropriate Circuit Court. The clerk will then assign a court date for a hearing. When only one parent has signed the application, the other parent must be given notice of the hearing by proper service of process. At the hearing, the court would decide whether or not changing the child’s last name is in the child’s best interest. At this hearing the moving party will present evidence justifying the request for the name change, and the non-consenting parent will have an opportunity to present evidence in opposition to the name change.

Whether one or both parents join in the application, pursuant to Virginia Code Section 8.01-217 the court will order the name change unless the change is for a fraudulent purpose, will result in infringement of another person’s rights, or is not in the best interest of the child. It is important to know that legally changing a child’s name does not alter the rights or obligations of the parents. The other party will still have the obligation to pay child support, care for their child, and may still have the right to visitation unless the court deems otherwise. If you are seeking to dissolve the other party’s rights or obligations, please see our post on terminating parental rights.

For assistance with a minor name change, contact us today. The team of experienced family lawyers at Livesay & Myers, P.C. are experienced in representing clients in name change and other child-related issues in family law cases throughout Fairfax, Manassas, Fredericksburg and across Northern Virginia.

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If you are like most people, you want to minimize the costs of your divorce as much as possible. You’ve heard the stories about skyrocketing attorney fees and you intend to do everything in your power to avoid them. Plus, you and your spouse seem to be getting along and you think you’ll be able to come to an agreement on most or all of the marital issues. So you start browsing around online for a good template for a property settlement agreement or separation agreement. You can pick and choose the language you like and don’t like, and then you can add in provisions that seem like a good fit for you and your spouse. Sounds like a good plan, right? Think of all the legal fees you’ll save!

The problem with this approach, however, is that by cutting corners, you may not be cutting yourself a good deal. First of all, you may not know what you’re entitled to under Virginia law, so while you feel satisfied with the agreement you have reached with your spouse regarding the marital issues (for example, “I guess he or she can have the house”), that agreement could be extremely unfavorable to you when compared to what a judge might award you in court.

A second problem with this approach is that you may need to rely on your agreement down the line if the relationship between you and your “soon-to-be-ex-spouse” breaks down. If the language in your agreement is faulty, or if the specifications regarding custody, visitation, support, and/or the division of property are not clearly laid out, then you could be forced to spend time and money clearing up the ambiguities in court. In fact, you may well end up spending much more in legal fees later to “fix” issues created by a faulty separation agreement, than it would have cost you to simply have a good agreement drafted right from the start.

Finally, many attorneys spend considerable time drafting and perfecting property settlement agreements to include a variety of protective provisions. Your online “model” agreement may leave out these provisions and leave you vulnerable. For example, if one aspect of the agreement is found to be inapplicable or unenforceable in court, will the rest of the agreement survive? Or, what happens if the parties later reconcile– is the agreement automatically revoked or does it remain in place until a new agreement is signed? You’ll want to make sure your agreement addresses these common “what if” scenarios, which can be highly specific to your individual state and usually aren’t covered in the “one size fits all” agreements you find on the internet.

No matter what you decide regarding the substance and language of your property settlement agreement, you should make sure that the final draft exemplifies your true intent before you sign. A good attorney will help explain the provisions in a property settlement agreement and make sure you’re protected going forward.

The divorce attorneys at Livesay & Myers, P.C. are experienced in the drafting, negotiation and review of property settlement agreements. We represent clients in Fairfax, Manassas, Frederickburg and across Northern Virginia. Contact us to schedule a consultation today.

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