CABA 2013 FAMILY LAW LEGISLATIVE UPDATES
Jason P. Seiden
Michie Hamlett Attorneys at Law
HB-1642 Pogge/ SB-908 Reeves
Rights of parents. Provides that a parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent's child. The bill further provides that the provisions of the bill codify the opinion of the Supreme Court of Virginia in L.F. v. Breit, issued on January 10, 2013, as it relates to parental rights.
VIRGINIA ACTS OF ASSEMBLY -- CHAPTER
An Act to amend the Code of Virginia by adding a section numbered 1-240.1, relating to rights of parents.
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding a section numbered 1-240.1 as follows:
§ 1-240.1. Rights of parents.
A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent's child.
2. That it is the expressed intent of the General Assembly that this act codify the opinion of the Supreme Court of Virginia in L.F. v. Breit, issued on January 10, 2013, as it relates to parental rights.
L.F. v. Breit, 285 Va. 163, 736 S.E.2d 711 (2013)
Unwed mother and father use assisted conception. Father was present for all stages of the process and continued to live with mother. After birth, both parents executed an Acknowledgment of Paternity. Father listed as the father on the birth certificate. Parents separate when child is four months old and Father continued to provide insurance, child support, and visits on weekends and holidays for until child was about one year old. Mother unilaterally terminated access.
The J&DR Court dismissed the Father’s petitions for custody and visitation. Father then filed a petition to determine parentage and custody and visitation in the Circuit Court pursuant to Section 20-49.1. Notwithstanding the Acknowledgement of Paternity, Mother relied upon Section 20-158(A)(3) and Section 32.1-257(D) to argue that Father could not be the legal parent because the parties never married and the child was conceived through assisted conception.
In a really brief nutshell:
- Section 20-49.1, titled “How parent and child relationship established” allows mother and father to establish parent child relationship by executing a voluntary written acknowledgement. Section 20-49.1(B)(2).
BUT WAIT . . .
- Section 20-158(A)(3) says that “[a] donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother.” (Emphasis added).
. . .THERE’S MORE . . .
- Section 32.1-257(D), relating to filing birth certificates, states that in cases of unmarried parents, “[d]onors of sperm or ova shall not have any parental rights or duties for any such child.”
Father argued that the statutes must be harmonized in a manner that recognizes his “constitutionally protected right to make decisions concerning the care, custody , and control of his child.” The Supreme Court agreed, quoting Lehr v. Robertson, 463 U.S. 248 (1983):
When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of a child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause.
Mother’s argument would mean a donor father, unmarried to the mother, regardless of the relationship with the child, could never be the parent of that child. The Supreme Court rejected this proposition and upheld the reversal of the Circuit Court by the Court of Appeals.
This case also presented a novel argument by Mother that a child has a protected right to not have parent.
HB-1637 BaCote/ SB-1076 Barker
Signed by Governor on March 14, 2013; effective July 1, 2013
Restoration of parental rights. Creates a procedure for restoring parental rights to a parent whose rights to his child have previously been terminated when the child is at least 14 years of age and the child has not achieved his permanency goal. The bill also provides that the juvenile and domestic relations court may appoint a special advocate to provide services to a child who is the subject of judicial proceedings for the restoration of parental rights.
An Act to amend and reenact § 9.1-151 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 16.1-283.2, relating to restoration of parental rights.
Approved March 14, 2013
Be it enacted by the General Assembly of Virginia:
1. That § 9.1-151 of the Code of Virginia is amended and reenacted and that the Code of Virginia is amended by adding a section numbered 16.1-283.2 as follows:
§ 9.1-151. Court-Appointed Special Advocate Program; appointment of advisory committee.
A. There is established a Court-Appointed Special Advocate Program (the "Program") that shall be administered by the Department. The Program shall provide services in accordance with this article to children who are subjects of judicial proceedings (i) involving allegations that the child is abused, neglected, in need of services, or in need of supervision, or (ii) for the restoration of parental rights pursuant to § 16.1-283.2 and for whom the juvenile and domestic relations district court judge determines such services are appropriate. The Department shall adopt regulations necessary and appropriate for the administration of the Program.
B. The Board shall appoint an Advisory Committee to the Court-Appointed Special Advocate Program, consisting of fifteen 15 members, knowledgeable of court matters, child welfare, and juvenile justice issues and representative of both state and local interests. The duties of the Advisory Committee shall be to advise the Board on all matters relating to the Program and the needs of the clients served by the Program, and to make such recommendations as it may deem desirable.
§ 16.1-283.2. Restoration of parental rights.
A. If a child is in the custody of the local department of social services and a pre-adoptive parent or parents have not been identified and approved for the child, the child's guardian ad litem or the local board of social services may file a petition to restore the previously terminated parental rights of the child's parent under the following circumstances:
1. The child is at least 14 years of age;
2. The child was previously adjudicated to be an abused or neglected child, child in need of services, child in need of supervision, or delinquent child;
3. The parent's rights were terminated under a final order pursuant to subsection B, C, or D of § 16.1-283 at least two years prior to the filing of the petition to restore parental rights;
4. The child has not achieved his permanency goal or the permanency goal was achieved but not sustained; and
5. The child, if he is 14 years of age or older, and the parent whose rights are to be reinstated consent to the restoration of the parental rights.
B. Notwithstanding the provisions of subsection A, the court may accept (i) a petition involving a child younger than 14 years of age if (a) the child is the sibling of a child for whom a petition for restoration of parental rights has been filed and the child who is younger than 14 years of age meets all other criteria for restoration of parental rights set forth in subsection A, or (b) the child's guardian ad litem and the local department of social services jointly file the petition for restoration; or (ii) a petition filed before the expiration of the two-year period following termination of parental rights if the child will turn 18 before the expiration of the two-year period, and the court finds that accepting such a petition is in the best interest of the child.
C. The court shall set a hearing on the petition and serve notice of the hearing along with a copy of the petition on the former parent of the child whose rights are the subject of the petition, any other parent who retains legal rights to the child, the child's court-appointed special advocate, if one has been appointed, and either the child's guardian ad litem or the local board of social services, whichever is not the petitioner.
D. If the court finds, based upon clear and convincing evidence, that the parent is willing and able to (i) receive and care for the child; (ii) have a positive, continuous relationship with the child; (iii) provide a permanent, suitable home for the child; and (iv) protect the child from abuse and neglect, the court may enter an order permitting the local board of social services to place the child with the former parent whose rights are the subject of the petition, subject to the requirements of the placement plan developed pursuant to subsection E and for visitation required pursuant to subsection F.
E. Within 60 days of the filing of the petition for restoration of parental rights and prior to the entry of an order pursuant to subsection D, the local board of social services shall develop a written placement plan for the child, which shall (i) describe the programs, services, and other supports that shall be offered to the child and the former parent with whom the child has been placed and (ii) set forth requirements for the participation of the former parent with whom the child has been placed in programs and services described in the placement plan and the conduct of the child's former parent with whom the child has been placed. Such plan shall be incorporated into the order entered pursuant to subsection D.
F. Following the placement of a child with his former parent following entry of an order pursuant to subsection D, the director of the local department of social services shall cause the child to be visited by an agent of such local board or local department at least three times within the six-month period immediately following placement of the child in order to evaluate the suitability of the placement and the progress of the former parent toward remedying the factors and conditions that led to or required continuation of the child's foster care placement; however, no less than 90 days shall elapse between the first visit and the last visit. At least one of the visits shall be conducted in the home of the former parent whose rights are the subject of the petition in the presence of the former parent.
G. Upon completion of the visitation required pursuant to subsection F, the director of the local department of social services shall make a written report to the court, in such form as the Commissioner of Social Services may prescribe, describing (i) findings made as a result of the visits required pursuant to subsection F and (ii) findings and information related to the former parent's compliance with requirements of the placement plan developed pursuant to subsection E.
H. Upon receipt of the report required pursuant to subsection G, the court shall set a hearing on the petition for restoration of parental rights and serve notice of the hearing, along with a copy of the report required pursuant to subsection G, on the former parent of the child whose rights are the subject of the petition, any other parent who retains legal rights to the child, the child's court-appointed special advocate, if one has been appointed, and the child's guardian ad litem.
I. If, upon consideration of the report required pursuant to subsection G, the court finds by clear and convincing evidence that the restoration of parental rights is in the child's best interest, the court shall enter an order restoring the parental rights of the child's parent. In determining whether restoration is in the best interest of the child, the court shall consider the following:
1. Whether the parent whose rights are to be reinstated agrees to the reinstatement and has substantially remedied the conditions that led to or required continuation of the child's foster care placement;
2. The age and maturity of the child and whether the child consents to the reinstatement of the former parent's rights, if the child is 14 years of age or older, or the child's preference with regard to the reinstatement of the former parent's rights, if the child is younger than 14 years of age;
3. Whether the restoration of parental rights will present a risk to the child's life, health, or development;
4. Whether the restoration of parental rights will affect benefits available to the child; and
5. Other material changes in circumstances, if any, that warrant the granting of the petition.
J. The court may revoke its order permitting the placement of a child with his former parent pursuant to subsection D at any time prior to entry of an order restoring parental rights to the former parent of the child, for good cause shown, on its own motion or on the motion of the child's guardian ad litem or the local department.
K. A petition for restoration of parental rights filed while the child is younger than 18 years of age shall not become invalid because the child reaches 18 years of age prior to the entry of an order of restoration of parental rights. Any order restoring parental rights to a parent of a child pursuant to this section entered after a child reaches 18 years of age, where the petition was filed prior to the child turning 18 years of age, shall have the same effect as if the child was under 18 years of age at the time the order was entered by the court.
L. The granting of a petition under this section does not vacate the findings of fact or conclusions of law contained in the original order that terminated the parental rights of the child's parent.
HB-1723/ SB-718 Howell
Signed by Governor March 13, 2013; effective July 1, 2013
Child support; imputation of income; attendance in educational or vocational program. Provides that a parent's decision to attend and complete an educational or vocational program that is likely to maintain or increase the parent's earning potential may be considered as a factor in determining whether to impute income to such parent for purposes of the parent's child support obligation. The bill also provides that any child care costs incurred by a custodial parent due to the parent's decision to attend such an education program may also be considered.
An Act to amend and reenact § 20-108.1 of the Code of Virginia, relating to child support; imputation of income; attendance in educational or vocational program.
Approved March 13, 2013
Be it enacted by the General Assembly of Virginia:
1. That § 20-108.1 of the Code of Virginia is amended and reenacted as follows:
§ 20-108.1. Determination of child or spousal support.
A. In any proceeding on the issue of determining spousal support, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision shall be rendered based upon the evidence relevant to each individual case.
B. In any proceeding on the issue of determining child support under this title or, Title 16.1, or Title 63.2, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award which that would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded. Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with any court provided the complainant exercised due diligence in the service of the respondent or, if earlier, the date an order of the Department of Social Services entered pursuant to Title 63.2 and directing payment of support was delivered to the sheriff or process server for service on the obligor.
In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:
1. Actual monetary support for other family members or former family members;
2. Arrangements regarding custody of the children, including the cost of visitation travel;
3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party's employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, includingto attendand complete an educational or vocational program likely to maintain or increase the party's earning potential;
4. Any child care costs incurred on behalf of the child or children due to theattendance of acustodial parent in an educational or vocational program likely to maintain or increase the party's earning potential;
5. Debts of either party arising during the marriage for the benefit of the child;
5. 6. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
6. 7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
7. 8. Any special needs of a child resulting from any physical, emotional, or medical condition;
8. 9. Independent financial resources of the child or children;
9. 10. Standard of living for the child or children established during the marriage;
10. 11. Earning capacity, obligations, financial resources, and special needs of each parent;
11. 12. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;
12. 13. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;