CUSTODY -- FOSTER
PARENTS' STANDING TO SEEK
By Richard Crouch, Fall 1995
An interesting trial-level result, this
time from Judge Maxfield of the Fairfax Juvenile Court, is
reported by Fairfax practitioner Edward J. Walinsky. The court
held that Code ß16.1-241 A (6) allowed foster parents who had
thirteen months of physical custody to petition for custody as
"parties with a legitimate interest." The welfare
department relied on Turner v. Children's Home Society, 158 Va.
406 (1932), and its own reading of ß16.1-278.2 (4), to support
its argument that foster parents have no standing to petition for
custody. An additional argument was that foster parents when they
take on this job specifically agree that the placement of the
child in their home is temporary and does not give them standing,
or legal rights, as to the custody or adoption of the child. The
court held that although ß16.1-278.2 (4) gives the Department
the exclusive right to determine placement of a child that has
been placed with the Department, that does not preclude a party
with a legitimate interest from seeking custody. Turner of course
relied upon an entirely different statutory scheme that prevailed
many decades ago, and involved no statutory right, such as now
exists, to petition for custody. As for the supposed conflict
between ß16.1-278.2 (4) and 16.1-241 A (6), the court explained
that the first of these gives the Department the exclusive right,
but only until a proper challenge to departmental custody is
filed. The court sees no conflict between the two statutes, and
refuses to read 278.2 (4) as limiting the definition set forth in
241 A (6). As for the contract signed between the Department and
the foster parents, the court refuses to read it as limiting the
rights of persons with a legitimate interest. As for the further
question of whether foster parents can be "legitimate
interest" parties, the court notes that ß16.1-241 A (6)
itself says it is to be broadly construed, and the court found no
reason to read it narrowly as to them. The court also noted that
Kogon v. Ulerick, 12 Va. App. 595 (1991), specifically held that
"legitimate interest" parties are not limited to blood
relatives.
CIRCUIT COURT
OPINION: MALPRACTICE COUNTERCLAIMS, CIVILITY AND SANCTIONS
Fall 1992
Reproduced below is a circuit court's letter ruling that includes
some eloquent philosophical observations on the conduct of a
divorce lawyer and a malpractice lawyer when the divorce client
counterclaims for malpractice after refusing to pay a large
outstanding bill. Specifically, it addresses two extremely
depressing phenomena in family law litigation today: (1) the
proliferation of frivolous malpractice claims having no better
basis than the reluctance to pay for highly professional services
received, and (2) the notion that if a lawyer can get away with
an uncivil tactic, however, obnoxious, he is obligated to the
client to employ it. It is hoped that these observations by the
Chief Judge of the Circuit Court of Fairfax County will be
helpful in putting these unpleasant matters in some kind of
perspective. The names have all been deleted to assure anonymity
to those who need it.
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