There is an ongoing debate in Virginia as to whether a parent’s mental health records should be admissible in custody and visitation cases. Prior to July 2008, Virginia Code Section 20-124.3:1 specifically provided that the mental health care records concerning a parent in a custody and visitation case are confidential. In 2008, that provision was repealed, and we are now in a period in which a parent will routinely allege that the other parent is practically insane and therefore an unfit parent, and will attempt to prove it by the introduction of what were once confidential medical records.

The question of the admissibility of a parent’s mental health care records features a tug-of-war between a person’s right to confidentiality and the court’s duty to act in the best interest of the child. The question is complicated by Virginia Code Section 8.01-399, which acknowledges that … Read More »

Celebrity entertainment outlets often cover the legal skirmishes of Hollywood’s rich and famous. In addition to their entertainment value, these stories occasionally illustrate lessons applicable to daily life. Recently, an article on People.com detailed the protracted custody battle between actress Kelly Rutherford and her ex-husband, Daniel Giersch. The article alleges that over the course of their three-year case, Ms. Rutherford failed to notify Mr. Giersch of the birth of their daughter and accused him in court documents of dealing drugs and weapons internationally.

However, her allegations may have backfired on Ms. Rutherford, as they apparently led to the revocation of Mr. Giersch’s visa, which ultimately caused the court to decide that it was in the children’s best interest to remain in Monaco, where both parents could have regular contact with them. This was understandably upsetting to Ms. Rutherford, as she is a cast member … Read More »

Marital Settlement or Property Settlement Agreements are contracts which can settle by agreement all of the rights, interests, and obligations of separating or divorcing parties, and can also resolve all claims or demands each might have against the other. A Settlement Agreement lays the foundation for a couple to proceed with an uncontested divorce. And, where the parties have no minor children, an executed Settlement Agreement shortens the separation period necessary before filing for divorce in Virginia from 12 months to only 6 months.

The typical Property Settlement Agreement covers division of assets, division of debts, and spousal support, as well as child custody, visitation and child support, if applicable. Full and comprehensive agreements can remove the need for expensive and time-consuming litigation. Settlement Agreements also afford the parties greater control over the results of the termination of their marriage, instead … Read More »

For the past few years, you have helped raise your ten-year-old grandson. Since you have taken this active role in your grandson’s life, he has thrived. Recently, your requests for visitation with your grandson have gone ignored, and you have concern as to how your detachment from your grandson will affect him. What legal avenue could you possibly take that would lead back to you being able to spend time with your grandson?

One option available to grandparents is to file a petition for visitation with the court. Although Virginia has made it clear that the courts are to consider the parent-child relationship primary and to not interfere with a parent’s right to raise a child as the parent sees fit, whenever the state has a compelling interest, such as the protection of the welfare of the child, the court may … Read More »

With the integration of social media into the everyday personal lives of so many, it’s no wonder that Facebook was cited in 20 percent of divorce cases filed in 2010. That number has only continued to rise. While Facebook can be a powerful tool for proving your case in court, you should steer clear of certain evidentiary pitfalls.

All things considered, logging on to your spouse’s Facebook account using their email address and password is not a good way to gather evidence. Even when using a shared home computer, you run the risk of having your spouse’s attorney object to the evidence because of how it was obtained, or even having criminal charges filed against you. Simply put: logging in to your spouse’s Facebook account might get you trouble, and probably won’t result in evidence that the court will actually consider.

However, there … Read More »

Today the Uniform Law Commission is meeting to consider final approval of proposed custody rules for military servicemembers. Their proposal—the Uniform Deployed Parents Custody and Visitation Act (UDPCVA)—seeks to address many of the important issues that arise when a military parent deploys, and to resolve the wide variety of laws among the different states.

A servicemember parent will often create a Family Care Plan (FCP) to become effective upon their deployment, but in cases where a valid court order exists the FCP and order often come in conflict. The non-deploying parent is not required to sign off on an FCP, and many times the wishes of the deploying servicemember as set out in the FCP are overruled by the court order. Moreover, custody orders very rarely contain express provisions providing for a potential delegation of parental rights and responsibilities to a … Read More »

Family law is a unique area of law because the family is a constantly changing entity. Children grow older, parents remarry, and in this global economy jobs are often gained and lost on opposite sides of the country if not the world. This constant change can wreak havoc on family law court orders that were entered under an entirely different set of facts or in completely different jurisdictions than the family’s current home. If you find yourself staring at an old court order and wondering what a provision means, or what your options are to change it, then you should consider consulting with a family law attorney today.

Litigation is expensive, time consuming and stressful. Making an appointment to discuss your case with an attorney before you receive a summons to appear in court will decrease your overall stress and allow … Read More »

A recent op-ed published by The New York Times makes the argument that states should adopt set guidelines for determining alimony awards. The editorial, “Ending the Alimony Guessing Game,” argues that making spousal support awards more predictable would result in more fairness and less costly litigation.

This argument is absolutely correct. Adoption of a strong statewide spousal support formula in Virginia would take a lot of the guesswork out of most alimony cases, resulting in more settlements of contested divorce, and saving parties thousands of dollars in legal fees in many cases.

Virginia law does seem to be moving toward more and more reliance on certain guidelines in determining spousal support—most commonly the so-called “Fairfax guidelines.” As explained in Spousal Support in Virginia, Virginia has now adopted the Fairfax guidelines statewide for determining spousal support in Juvenile and Domestic Relations Court cases.

If and … Read More »

With a change effective July 1, 2011, Virginia’s protective order statute will now cover persons in dating relationships. The new legislation expands Chapter 9.1 of Title 19.2 of the Virginia Code from “Protective Orders for Stalking” to “Protective Orders.” Chapter 9.1 now applies to “any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury,” as provided in a new section:

§ 19.2-152.7:1. Definitions. As used in this chapter: “Act of violence, force, or threat” means any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. Such act includes, but is not limited to, any forceful detention, stalking, criminal sexual assault … or any criminal offense that results in bodily … Read More »

In an ideal world, after the final custody order is entered, all the animosity melts away and families transition seamlessly into their custody arrangement. Unfortunately, this isn’t always the case. As children grow, parties remarry, and priorities change, you may find that you or your children are no longer happy with your custody order.

Virginia Code § 20-108 requires the party petitioning the court for modification of a custody order to prove that (1) there has been a material change of circumstances since the entry of the last order, and (2) it is in the best interest of the children to modify custody.

The change of circumstances may be either positive or negative. A positive change could be a parent’s remarriage or getting a new job with either a higher salary or more flexible work schedule. A negative change could be a … Read More »