The 2000 Virginia General Assembly Session: 24 Bills Changing Family Law and Practice

COURTS

(See also SB 475 Juvenile court; divestment when divorce filed, and other bills under DOMESTIC VIOLENCE)

HJ 126 Study on domestic relations division of circuit court.

Establishes a subcommittee to study creating domestic relations divisions of the circuit courts, and report back to the General Assembly in time for next year's Session. It will examine:

1. Whether there should be any additional qualifications for a domestic relations judge;
2. Whether the domestic relations judge should hear only domestic relations cases;
3. How an overloaded domestic relations docket should be handled;
4. Whether the position of commissioner in chancery should be abolished;
5. Whether the domestic relations division should hear child custody, child and spousal support, and visitation appeals from the juvenile and domestic relations district court;
6. Financial implications, including any personnel costs.

The subcommittee will consist of seven legislators, plus two members apiece from the Family Law Section of the Virginia State Bar, the VBA Coalition Committee, and the American Academy of Matrimonial Lawyers.


SPOUSAL SUPPORT

(See also SB 276 Child support; preexisting spousal support order, under CHILD SUPPORT GUIDELINES)

SB 757 Termination of spousal support; cohabitation.

Amends the 1997 provision of §20-109A that said a court may terminate or decrease spousal support if the payee spouse has been cohabiting in a relationship analogous to marriage for one year or more, unless the termination would constitute a manifest injustice. This bill makes the termination of such support (not a decrease) by the court mandatory unless it would be "unconscionable". As before, the payor must prove cohabitation and the marital analogy by clear and convincing evidence, and the payee must prove unconscionability by a preponderance. The VBA Coalition was reputed to have opposed this bill but actually appears to have been neutral on it.

A supporter of the bill, Fairfax practitioner Richard J. Byrd, wrote to legislators: "This simple termination-upon-remarriage provision would eliminate the protracted litigation as to manifest injustice and whether alimony should end or just be reduced upon remarriage. The philosophy of the 1997 legislation was to make extended cohabitation the equivalent to marriage in so far as spousal support was concerned. This proposed provision finally accomplishes that purpose. The present statute encourages women to enter into short term, live-in, meretricious relationships, which is not in the interests of the commonwealth. The proposed bill would make remarriage the equivalent of a live-in relationship, so it would no longer encourage the live-in relationship."

HB 47 Changing maintenance and support for a spouse; effect of remarriage.

Provides that a spouse entitled to spousal support shall have an affirmative duty to notify the payor spouse immediately of remarriage, and a payor spouse is entitled to restitution equal to the amount of any current support paid after the date of the remarriage, together with interest from the date of the remarriage and reasonable attorney's fees and costs.

Adds to §20-109 D: "The spouse entitled to support shall have an affirmative duty to notify the payor spouse immediately of remarriage at the last known address of the payor spouse."

Adds to §20-110: "The spouse entitled to current support shall have an affirmative duty to notify the payor spouse immediately of such remarriage. Failure of such spouse to notify the payor shall entitle the payor to restitution equal to the amount of any current support and maintenance paid after the date of the remarriage, together with interest from the date of the remarriage and reasonable attorney's fees and costs."

Changes §20-112 to make this an exception to the rule that "no support order may be retroactively modified".


CHILD SUPPORT GUIDELINES

HB 1150 Shared-custody support and contents of support orders

HB 1150 changes not only the shared-custody support guidelines, but also the §20-60.3 provisions dictating the contents of all support orders. It is explained in detail in Byrd's article on p. 10.

Extraordinary medical expenses were removed from the guideline calculations, and instead parents are simply directed to "pay their respective shares as they are incurred" (presumably in proportion to income). The method of payment of these expenses must now be specified in the support order. This, in turn, had the effect of changing §20-60.3, so that absolutely all support orders must say whether, and how, anyone is to pay for extraordinary medicals.

The exception for payees with incomes below the federal poverty level was broadened to cover situations where the payor's income falls beneath the poverty level, and the presumption in favor of using the sole custody amount (in either situation) was removed, leaving it up to the judge's discretion which guidelines to use.

Finally, the legislation attempts to address the technical paradoxes that can arise when the parties' income differences and division of custodial time make the majority-custodial parent the payor. This complicated the application of the "poverty" rule directing judges to award the lesser of the sole guideline or the shared guideline amount. (Which is "lesser": getting $50, or paying $100?). For the intricacies of this problem and its solution, see Byrd's article.

SB 275 Minimum child support -- exceptions.

Provides exceptions to the $65 minimum monthly child support amount for parents who are unable to pay even that much. The provisions in §20-108.2 B setting the $65 minimum were rewritten to read:

"However, unless one of the following exemptions applies where the sole custody child support obligation as computed is less than $65 per month, there shall be a presumptive minimum child support obligation of $65 per month payable by the payor parent. Exemptions from this presumptive minimum monthly child support obligation shall include: parents unable to pay child support because they lack sufficient assets from which to pay child support and who, in addition, are institutionalized in a psychiatric facility; are imprisoned with no chance of parole; are medically verified to be totally and permanently disabled with no evidence of potential for paying child support, including recipients of Supplemental Security Income (SSI); or are otherwise involuntarily unable to produce income."

The bill was recommended by the VBA Coalition Committee, based on recommendations of the Quadrennial Review Panel. The original version of the bill also attempted to say that a child support debt created because of the payment of public assistance could be retroactive only to the date the Department of Social Services exercised due diligence in the service of notice, but that provision was amended away.

SB 276 Child support; preexisting spousal support order.

This bill clarifies that spousal and child support can be contained in the same order and that the spousal support is always counted in calculating gross income for child support purposes. The bill removed the word "preexisting" from the third paragraph of §20-108.2 C, which had provided that spousal support is included or deducted from gross income only when it is paid pursuant to a preexisting order or written agreement. Recommended by the VBA Coalition, based on recommendations of the Quadrennial Review Panel.

SB 442 Child support; dental insurance.

Attempts to treat parental payment for dental care coverage, if any, like health insurance payments when doing child support guideline calculations. It looks like it covers dental insurance paid for by either parent, and either parent can decide to get dental coverage and thus have it included in the child support obligation. There is no provision letting courts order unwilling parents to get dental insurance.

§20-108.2 E is amended to read:

"Any costs for health care coverage as defined in §63.1-250 and dental care coverage, when actually being paid by a parent, to the extent such costs are directly allocable to the child or children, and which are the extra costs of covering the child or children beyond whatever coverage the parent providing the coverage would otherwise have, shall be added to the basic child support obligation."

The §63.1-250 definition of "Health care coverage, by the way, remains "any plan providing hospital, medical or surgical care coverage for dependent children provided such coverage is available and can be obtained by a responsible person, as that term is defined in this section, at a reasonable cost."

The bill did not insert "dental care coverage" in the other places where "health care coverage" is mentioned, such as §20-108.2 G 1 (iii) and §20-108.2 G 3 (b) on how to compute the basic monthly obligation, or the second paragraph of §20-108.2 G 1, which provides that "the monthly obligation of the noncustodial parent shall be reduced by the cost for health care coverage to the extent allowable by subsection E when paid directly by the noncustodial parent." These changes must have been omitted on the assumption that dental care costs are included every time "health care costs" or §20-108.2 E are mentioned.

SJ 192 Study; child support guideline revision

Directs the Joint Legislative Audit and Review Commission (JLARC) to include in its study of child support enforcement (which it is doing pursuant to 1998 and 1999 legislation) an examination of the costs of raising children in Virginia when parents live in separate households. The resulting data is to be used in revising the child support guidelines. JLARC is to do this in time for the next General Assembly session.

HB 5 Guideline for determination of child support - Triennial Review.

Changes the Quadrennial Review of the child support guidelines to a Triennial Review. Opposed by the VBA Coalition.


PROCEDURE

(See also bills under DOMESTIC VIOLENCE)

SB 385 Civil procedure; audio-visual depositions.

Includes video conferencing or teleconferencing as a permissible method for taking depositions.

The bill amends the Uniform Audio-Visual Deposition Act, which already allows depositions to be recorded audio-visually by any party instead of, or in addition to, a transcript. The present Act says, in part, "An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used." This certainly is an interesting contrast to Rule 4:5(b)(7), which says that a telephone deposition requires a stipulation or a court order. This bill adds a third paragraph to §8.01-412.2: "'audio-visual' shall include video conferencing and teleconferencing." The Act's procedure section, §8.01-412.4, is correspondingly amended to cover video conferencing or teleconferencing.

Query: Does the existing Act include telephone depositions without video? If not, does the addition of "teleconferencing" change that? §8.01-412.4 also says that "the taking of audio-visual depositions shall be in accordance with the rules of the Supreme Court generally applicable to depositions." There is no additional definition given of "audio-visual", but the Act requires several things to be done "on camera." However, if it has since been amended to include "teleconferencing", is the "camera" requirement simply not applicable to teleconferences?

The House added an amendment saying audio-visual depositions, teleconferencing etc. could only be used "by agreement of the parties", but the Senate rejected it. It appears from the legislature's web site that the amendment was removed in conference committee, but at this writing it may be too soon to tell for sure.

DOMESTIC VIOLENCE, CRIMES ETC.

SB 475 Juvenile court; divestment when divorce filed; jurisdiction for protective orders.

Clarifies that the juvenile court retains jurisdiction to grant or continue a protective order when a divorce complaint is filed in Circuit Court. Apparently some petitioners for family abuse protective orders have been left without remedy in either juvenile or circuit court when the juvenile court declined to hold a hearing and either the respondent withdrew the bill of complaint or the circuit court was unable to schedule an expedited hearing on the protective order.

The bill adds language to the part of §16.1-244 A that currently divests the juvenile court of jurisdiction to make any order once a divorce is filed and the Circuit Court sets a hearing on support, custody or visitation to be heard within 21 days of filing. The present law divests JDR courts of jurisdiction to make "any further decrees or orders." But this bill adds, after the word "orders" and before the period, "to determine custody, guardianship, visitation or support when raised for such hearing."("such hearing" meaning the circuit court pendente lite hearing).

The bill removes the sentence, "Upon a showing of need to continue any preliminary protective order issued by the juvenile and domestic relations district court, the circuit court shall grant a hearing to the parties as a preferential matter on the court docket."

SB 353 Protective orders; family abuse.
and
HB 511 Protective orders; family abuse.

Provide that a protective order may grant the petitioner use of a motor vehicle owned solely by the petitioner. Currently under §16.1-253.1 A 5, the petitioner may be granted use of a motor vehicle jointly owned by the parties but there is no provision regarding the petitioner's own car.

HB 1524 Harassment by computer.

A new §18.2-152.7:1 reads: "If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.".


CUSTODY AND VISITATION

(See also MEDIATION)

HB 1178 Parent education.

Extends the optional Circuit Court custody education programs to Juvenile Court and makes them mandatory in both courts, if custody or visitation is contested.

Adds to §16.1-278.15. A:

"When the parties are parents of a child whose custody or visitation is contested, the court shall order the parties, at the time of the parties' initial court appearance, to attend educational seminars or other like programs conducted by a qualified person or organization approved by the court, on the effects of separation or divorce on children, parenting responsibilities, options for conflict resolution, and financial responsibilities. The fee charged a party for participation in such program shall be based on the party's ability to pay; however, no fee in excess of fifty dollars may be charged. The court may grant an exemption from attendance of such program for good cause shown. Other than statements or admissions by a party admitting criminal activity or child abuse or neglect, no statement or admission by a party in such seminar or program shall be admissible into evidence in any subsequent proceeding."

The custody education provisions of §20-103 are amended to say the same thing, except that in Circuit Court, unlike juvenile, the court does not have to do this "at the time of the parties' initial court appearance". That makes sense inasmuch as, in a divorce case, it is often not clear what issues are really contested at first, and people often hold out until everything is settled or tried. Many juvenile courts, in contrast, use the initial court appearance as an occasion to find out what issues are really contested, and to set all the hearing dates and other deadlines for the entire case.

Sunsets after three years unless reenacted. Before the 2003 legislative session, the Office of the Executive Secretary of the Supreme Court is to report on the implementation of this Act, the number and geographical availability of seminars, their cost, and feedback from judges.

SB 590 Child visitation interference

Makes "whether a parent has unreasonably denied the other parent access to or visitation with the child" a §20-124.3 factor to be considered in determining best interests. Opposed by the VBA Coalition.

HB 1498 Child's records.

Clarifies that §20-124.6, providing that neither parent shall be denied access to academic or medical records, includes noncustodial parents. Most lawyers, parents, and other people who know what the word "neither" means, already thought this was obvious, but some school administrators have not acted accordingly.

HB 1499 School records as evidence.

An attempt to cut down on the hours teachers must spend testifying in custody cases (and waiting to testify). Adds a new Section §8.01-390:

"In a proceeding where a minor's school records relating to attendance, transcripts or grades are material, copies of school records solely relating thereto shall be received as evidence in any matter involving the custody of that minor or the termination of parental rights of that minor's parents, provided that such copies are authenticated to be true copies by the custodian thereof. An affidavit signed by the custodian of such records, stating that such records are true and accurate copies of such records shall be valid authentication for the purposes of this section. Except for copies of report cards and letters previously sent to parents, subjective information, including observations, comments or opinions shall be redacted, by the court, from any records prior to admittance of the records into evidence pursuant to this section."

ADOPTION AND SURROGATE PARENTING

SB 135 Surrogate parenting consent and report form.

Directs the State Registrar of Vital Records to develop, furnish and distribute a surrogate consent and report form. When a non-court approved surrogacy contract is used, this form must be signed by the surrogate and filed by the intended parents within sixty days of the birth in order to have a new birth certificate established. Filing within six months after the form becomes available is treated as filing within the sixty days. Provides that a physician's acknowledged statement of the genetic relationships between the parties creates a rebuttable presumption that such statement is accurate. Code Sections amended are §§ 20-162 and 32.1-252.

SB 685 Adoption laws totally rearranged.

According to the legislature's official summary, there are no policy changes related to adoption in this bill, only a reorganization of the current law. Chapter 11 (§§63.1-220 through 63.1-238.02) of Title 63.1 of the Code of Virginia is repealed. Reorganizes the statutes into a new Chapter 10.2, with Articles 1 through 6, consisting of new Sections 63.1-219.7 through 63.1-219.55. The new articles are: General Provisions, which applies to all types of adoptions; Agency Adoptions; Parental Placement Adoptions; Stepparent Adoptions; Adult Adoptions; and Records. Prior to this change, all of the types of adoptions were lumped into the same code sections, creating confusion among the courts, parties and agencies involved. These changes separate each type of adoption into individual articles, which clearly identify all of the procedures necessary to complete the process. Several of the larger code sections were split into the parts that apply to each specific type of adoption.


CHILD ABUSE AND NEGLECT, FOSTER CARE AND PARENTAL RIGHTS TERMINATION

SB 446 Termination of parental rights.

Provides that when a child is in foster care and a parent is unable to have the care and custody of his child for 20 consecutive months or longer because of the parent's incarceration, the court is permitted to hear a termination of parental rights petition. The court must make findings concerning certain listed factors and determine, by clear and convincing evidence, that it is in the best interests of the child to terminate parental rights. Also, the foster care plan in such situations is not required to include reasonable efforts to reunite a child with his parent. Proposed by the Court Improvement Program in the Office of the Executive Secretary of the Supreme Court. Endorsed by the Committee on District Courts and the Judicial Council. Note: After this article was published, the bill was vetoed.

SB 447 Foster care.

Provides that when it is necessary to remove a child from his home he may be placed with a relative or other interested individual, including grandparents, in lieu of placement with a local department of social services. The bill establishes standards for such placements which are appropriate for each stage of the dependency process. The bill establishes a new permanent goal known as "another planned permanent living arrangement" for foster children who require long-term residential treatment. Other amendments clarify aspects of the permanency planning process. Annual foster care review hearings must be held for children whose parental rights have been terminated until a final order of adoption is entered, instead of until they are placed for adoption. The bill also modifies the child's objection to a termination of parental rights. Proposed by the Court Improvement Program in the Office of the Executive Secretary of the Supreme Court. Endorsed by the Committee on District Courts and the Judicial Council.

SB 259 Child protective services.

Removes principals, assistant principals, supervisors or teachers employed by local school boards from the child protective services system for any allegation of abuse or neglect that occurs in the course of their regular or assigned educational employment activities. The bill provides that in such instance, the complaint shall be made to the division superintendent and to the attorney for the Commonwealth. If the complaint results in a conviction, the division superintendent and the attorney for the Commonwealth shall report such criminal conviction to the central registry of founded cases of abuse and neglect. Reports of principals, assistant principals, supervisors or teachers not occurring in the course of their regular or assigned educational employment activities or other local school board employees will continue to be investigated by local departments of social services. Persons who are mandatory reporters of child abuse and neglect will still be required to report suspected cases of abuse and neglect by teachers, and teachers will remain mandatory reporters, as well. Employees in private schools will still be subject to investigation.

SJ 208 Study; kinship care.
Directs the Virginia Commission on Youth to study means to eliminate obstacles to appropriate kinship care while ensuring necessary monitoring of it, and report back to the General Assembly in time for next year's Session.

INSURANCE

(See also SB 442 Child support; dental insurance, under CHILD SUPPORT)

SB 304 Life insurance; notification of revocation by divorce.

Requires that any life insurance or annuity contract containing a beneficiary designation in which the designated beneficiary is the spouse of the policy owner, contain language explaining that Virginia law revokes the spouse as beneficiary upon divorce and how to avoid such a revocation. A new Subsection C added to §38.2-305 dictates exactly what language must be added to the contracts:

"BENEFICIARY DESIGNATION MAY NOT APPLY IN THE EVENT OF ANNULMENT OR DIVORCE"

"Under Virginia law (Virginia Code §20-111.1), a revocable beneficiary designation in a policy owned by one spouse that names the other spouse as beneficiary becomes void upon the entry of a decree of annulment or divorce, and the death benefit prevented from passing to a former spouse will be paid as if the former spouse had predeceased the decedent. In the event of annulment or divorce proceedings, and if it is the intent of the parties that the beneficiary designation of the former spouse is to continue, you are advised to make certain that one of the following courses of action is taken prior to the entry of a decree of annulment or divorce: (i) change the beneficiary designation to make it irrevocable; (ii) change the ownership of the policy or contract; (iii) execute a separate written agreement stating the intention of both parties that the beneficiary designation is to remain in effect beyond the date of entry of the decree of annulment or divorce; or (iv) make certain that the decree of annulment or divorce contains a provision stating that the beneficiary designation is not to be revoked pursuant to §20-111.1."

MEDIATION

SB 127 Court-referred mediation in custody, visitation and support cases; fees and qualifications.

Extends to juvenile court custody, visitation and support cases the §8.01-576.8 requirement that mediators appointed by Circuit Court be certified in accordance with the Judicial Council's Guidelines. Also says the fee of a mediator appointed in any custody, support or visitation case shall be $100, paid not by the parties, but by the state, from funds appropriated for appointments of counsel for indigent parents in juvenile court. The Section amended by this bill is §20-124.4

The bill's official summary says it applies to "custody, visitation and support cases". But the section the bill amends is in "Chapter 6.1 - Custody and Visitation Arrangements for Minor Children", the rest of which deals exclusively with custody and visitation cases in circuit and juvenile courts, not support. The amended code section itself does not mention what kind of case it covers - it simply begins, "In any appropriate case", and "appropriate" is not defined in the definitions section, §20-124.1.