VOLUME 31, NUMBER 1
Spring 2011
Chairman’s
Message
Chairman’s Message
1
Editor’s Message
2
Legal Quotation of the Quarter
2
Frequent Childhood Moves – Poorer Quality of Life
By John K. Karanian
3
Appointment of a Guardian Ad Litem For the Child in
a Contested Custody Case: Necessity or Convenience?
By The Hon. Ramona D. Taylor
4
How Custody Cases Involving Family Abuse May
Look in Initial Interviews
By Lauren W. Smith
6
2011 Family Law Legislative Update
By Carl J. Witmeyer, II, with Jeanette Somers and
Jean Anne Gallagher
8
Interpreters in Virginia Courts
By Cassandra M. Chin
11
Code Of Professional Responsibility For Interpreters
Serving In Virginia Courts
13
Quilp’s Notes
18
27th Annual Advanced Family Law Seminar:
Emerging Hot Topics in Divorce Litigation
19
Notes on Recent Appellate Cases
19
Submitting Articles and News
23
Board of Governors Roster
24
Cassandra Chin, Richard Garriott and Nan
Joseph have been working diligently in planning
for the upcoming 27th Advanced Family Law
Seminar, entitled Emerging Hot Topics in Divorce
Litigation, which will be held on Thursday, April
28, 2011 at the Jefferson Hotel in Richmond. An
ad hoc committee of Peter Buchbauer, the
Honorable Ramona Taylor and Frank Rogers
reviewed bylaws and proposed amendments to
bylaws which will make the Board leaner, creating
cost savings. These proposed amendments were
unanimously approved by the Board at this Term’s
first ever telephonic meeting, which in addition
saved the Section approximately $1,500. These
savings will assist in keeping this gem of a
newsletter in print and distributed to the
membership by the United States Postal Service.
This winter, Carl Witmeyer oversaw the
creation, distribution and tabulation of a judicial
vacancy survey to Section members. Fifty
members responded to the survey from across the
state. For those who participated, thank you. The
responses indicate that the following trends exist as
a result of the judicial vacancies: (1) unusual
delays in setting matters for trial and when
continuing matters; (2) lack of judicial continuity
at the trial level has adversely affected case
outcomes; and (3) attorneys are finding it difficult
to predict results. Some 88% of those surveyed
believed that the Legislature needed to take
immediate action to fill the vacancies. You can
find the survey results on the Family Law Section
Website.
Lastly, in the Winter edition of the Newsletter, I
indicated that a listserve was forthcoming for the
Section. Unfortunately, we have run into some policy
hurdles which have put the project on hold. We are
trying to work through the policy maze so that this
service can be provided.
I look forward to seeing you in April at the
Advanced Family Law Seminar.
Mitch Broudy, Chairman
Mitchell D. Broudy
Office of the Attorney General
Suite 340, Pembroke 2 Bldg.
Pembroke Office Park
Virginia Beach, Virginia 23462
757-552-1192 (direct line)
757-552-1191 (Assistant)
757-552-1260 (Fax#)
Email: [email protected]
Editor’s
Message
Your editors are truly grateful for the kind
words above, and for the sacrifices that the State
Bar, the Board of Governors and the Section
members statewide have made (yes, made) for the
cause of continuing this modest quarterly
publication. We truly hope that it is serving your
needs and welcome in your offices.
For
suggestions to improve it – and new articles of
course – we are always grateful, and are always
ready to receive.
This newsletter and you all, the Section, have
had a long journey together, you and we. To a
certain extent, even your current editor can say
that, having taken over from Professor Peter
Swisher at the end of 1990, when a 47-page
Winter Issue seems to have about done Peter in.
Legal
Quotation
of the Quarter
As we go to press, the Judicial Council is about to
approve a set of family law form interrogatories that
resemble the worst killer set of lawyer-drafted
interrogatories that I have ever seen. I hope – perhaps
in vain – that practicing lawyers will realize that form
interrogatories should be edited and tailored to the case
just like any other set of interrogatories.
My greatest fear, though, is the possibility that the
propounding of a complete set of form interrogatories
will come to be regarded as the attorney’s standard of
care in every divorce case. Like many other changes
in the law, it’s likely to lead to increased costs for our
clients with little or no benefit to show for it.
Jan C. Gabrielson, Practical Reflections of a
California Divorce Lawyer, Los Angeles, 1989
2
Contributors have been generous this time, and
by coincidence more than design, the Board
members this time have supplied most of the
articles. One by Section Secretary Cassandra
Mann-Haye Chin explains the Virginia law and
rules concerning the use of translators and
interpreters, and should be useful to practitioners
in almost all corners of the Commonwealth. Judge
Ramona D. Taylor of the Juvenile Court in
Virginia Beach takes on what has become a sacred
cow in many parts of the state: the assumption that
the court always can and always should appoint a
Guardian Ad Litem. Carl Witmeyer of Ashland
has contributed a legislative report so we will all
know what the General Assembly has, and perhaps
more significantly, has not, been up to. An article
by Fairfax practitioner Lauren Smith is full of
suggestions about spotting what the Virginia Code
defines as “family abuse” when you are sitting
across the desk from a potential new client at an
initial interview.
Such lively and professional articles as these
are part of what makes it both an honor and a
pleasure to serve on such a publication.
FREQUENT CHILDHOOD MOVES —
POORER QUALITY OF LIFE
By John K. Karanian, Psy.D., JD, Chesterfield
A move to a new home is stressful under the best of circumstances, and in divorce and custody cases,
children are often caught up in the stress of moving. They move from one parent’s house to another parent’s
house. They move from a house to an apartment. Children relocate to a different city, county, and sometimes
different state. They leave their schoolmates and friends they grew up with participating in sports and other
activities. Ties with their established social network and peer group are severed, and new relationships must
be forged. And it’s not atypical for children of divorce to move repeatedly.
Research has shown that children who move frequently have more problems in childhood and
adolescence than children who do not move frequently. Much of this was reported in a recent Family Law
News article on a 2009 conference1, but an even newer study from the University of Virginia tells us more.
Shigehiro Oishi, Ph.D., a psychologist at the University of Virginia, and his colleague examined whether
frequent moves as children was related to adulthood well-being (life-satisfaction, positive affect, happiness,
and quality of life).2 Children who moved frequently have more behavioral problems.3 Adolescents who
moved frequently as children are more likely to smoke, consume alcohol, and attempt suicide.4 The 2010 study
involved administering self-report surveys to a sample of 7,108 adults between the ages of 20 and 75. Ten
years later, 4,963 of the original participants were given the surveys again. Participants were from Boston,
Atlanta, Chicago, Phoenix, and San Francisco.
The results showed that adults who moved frequently as children reported lower levels of well-being
that those who had not. The authors posited that some of the potential consequences of frequent childhood
moves, specifically peer rejection and lack of intimate friends, may explain why adults with frequent
childhood moves report lower well-being.
When children transfer into a new school, they must make new friends, and in so doing commonly
experience at least some rejection by their new peers. Peer rejection in turn can create academic and
psychological problems, e.g. withdrawal and loneliness in childhood. And, at least temporarily, children who
move suffer from a lack of companionship and intimate friendships. Children who move repeatedly
experience that peer rejection and lack of intimate friends over and over. These children may become
sensitive to rejection, feel rejected by others, and have difficulty making new friends and forming new
relationships as adults.
Adults who moved frequently as children report varying levels of well-being depending on whether
they are classified as being introverted or extroverted.
Among frequent childhood movers, there was understandably a stronger negative relationship with
adult well-being for introverted individuals than extroverts (individuals characterized as outgoing, friendly,
active, and talkative). Extrovert frequent movers reported greater adult well-being than introverts. The
authors hypothesized that the ability of extroverts to develop new relationships and friends more quickly than
introverts may mitigate the effect of frequent moves.
1
Crouch, J., “Richmond Conference Gives a Very Yellow Light to Families on the Move,” Family Law News, Vol. 29,
No. 4, p. 25 (Winter, 2009).
2
Oishi, S & Schimmack, U., Journal of Personality and Social Psychology, 98,6 (2010).
3
Id.
4
Id.
3
Both introverted and extroverted adults who moved frequently as children were less likely to have
good-quality long-term relationships than those who did not move often. Introverted frequent childhood
movers, however, reported lower-quality relationships than the extroverted frequent movers. The authors
hypothesize that the extroverted individuals’ lack of long-term close relationships may not hurt their wellbeing as much as it does the well-being of introverts.
The researchers also found that those frequent childhood movers characterized as being “neurotic,” or
moody, worrying, and nervous, reported lower adulthood well-being than both non-neurotic frequent
childhood movers and non-frequent childhood movers.
Mortality rates were related to frequent childhood moves. Children who moved frequently were more
likely to have died before the second part of the study was administered. The authors hypothesized that the
stress of frequent moves may cause a long-term stress reaction, such as decreased immunity, which could
cause higher mortality rates. Introverts who moved frequently as children had lower psychological well-being
and life-satisfaction and were more likely to die before the second testing than introverts who had not moved
often.
Each child adapts to a move or relocation differently, based on that particular set of circumstances and
that child’s personality. As this study shows, it’s important to keep in mind the potential effects and
consequences of frequent moves on children which may be helpful in advising your client and in court
arguments concerning the best interests of children.
APPOINTMENT OF A GUARDIAN AD LITEM FOR
THE CHILD IN A CONTESTED CUSTODY CASE:
NECESSITY OR CONVENIENCE?
By The Hon. Ramona D. Taylor, Virginia Beach
While I was serving as a panelist in October at the Annual Family Law Seminar co-sponsored by
Virginia CLE and the Family Law Section of the Virginia State Bar, many questions were raised regarding my
practice of requiring attorneys to justify the appointment of a guardian ad litem for the child when each of the
parents or other persons claiming a right to custody is represented by counsel. This article will address the
basis for that practice, will analyze Section 16.1-266 (F) of the Virginia Code, and will answer the question
frequently raised by counsel of whether a child’s interests can ever be adequately represented when each of the
parents or other interested persons is represented by counsel.
Section 16.1-266 of the Virginia Code addresses the appointment of counsel and guardian ad litem for
cases in the Juvenile and Domestic Relations District Courts. Subsection F of this section provides:
In all other cases which in the discretion of the court require counsel or a guardian ad litem, or both, to
represent the child or children or the parent or guardian, discreet and competent attorneys-at-law may
be appointed by the court. However, in cases where the custody of a child or children is the
subject of controversy or requires determination and each of the parents or other persons
claiming a right to custody is represented by counsel, the court shall not appoint counsel or a
guardian ad litem to represent the interests of the child or children unless the court finds, at any
stage in the proceedings in a specific case, that the interests of the child or children are not
otherwise adequately represented. (Emphasis added).
This section has caused much consternation among attorneys appearing in my court. They often look
at me with surprise and annoyance when I inquire about the necessity for a guardian ad litem in a custody case
when all of the parties are represented by counsel. The stock answer is usually that a guardian ad litem will
4
help with negotiations. Other responses have included the guardian ad litem’s ability to have access to
information and to include that information in the guardian ad litem’s report without the necessity for
witnesses to be subpoenaed to provide that information (i.e., a way around the hearsay rules). Some attorneys
have indicated their discomfort with interviewing children and with questioning children in open court. All of
these responses beg the question of whether the “interests of the child or children are not otherwise adequately
represented.”
In an effort to ascertain the purpose of Virginia Code Section 16.1-266 (F), I researched the legislative
history for this section. This research would have been impossible without the assistance of Theresa Schmid
of the Division of Legislative Services, Legislative Reference Center. The code provisions provided by Ms.
Schmid reveal that the catch-all provision currently embodied in Code Section 16.1-266 (F) was originally
enacted in 1977 under Section D of Section 16.1-266 and read as follows:
In all other cases which in the discretion of the court require counsel or a guardian ad litem to
represent the interests of the child or children or the parent or guardian, a discreet and competent
attorney at law may be appointed by the court. Virginia Acts of Assembly, Chapter 559 (1977).
This section was amended in 1980 to provide:
In all other cases which in the discretion of the court require counsel or a guardian ad litem to
represent the interests of the child or children or the parent or guardian, a discreet and competent
attorney-at-law may be appointed by the court. Provided, however, in cases where the custody of a
child or children is the subject of controversy or requires determination and each of the parents or
other persons claiming a right to custody is represented by counsel, the court shall appoint counsel or
a guardian ad litem to represent the interests of the child or children where the court finds, in a
specific case, that the interests of the child or children are not otherwise adequately represented.
(Emphasis in original). Virginia Acts of Assembly, Chapter 572 (1980).
The current wording of the section was enacted in 1982. The General Assembly clarified that in a
custody proceeding where all parties are represented by counsel that the “court shall not appoint counsel or a
guardian ad litem to represent the interests of the child or children unless the court finds at any stage in the
proceedings in a specific case, that the interests of the child or children are not otherwise adequately
represented. (Emphasis in original). See Virginia Acts of Assembly, Chapter 451 (1982). Subsequent
amendments of Section 16.1-266 moved Subsection D to Subsection E and then to its current location in
Subsection F.
As the legislative history pertaining to the 1982 Code amendment preceded 1989, the file, pursuant to
Virginia Code Section 30-28.18, could only be released by provision of the requestor or sponsor of the bill.
Pursuant to my request, Ms. Schmid received permission for the file to be released to me.
The file indicates that Senator Virgil Goode, Jr., sponsored the amendment in SB161. In a letter to
Delegate Theodore V. Morrison, Jr., dated July 29, 1980, Senator Goode addresses the fact that his bill
pertains to Delegate Morrison’s HB 361, the purpose of which was to “restrict the appointment of guardians
and not to increase it.” He also states: “The Juvenile Judge here, after talking with some other judges and
finding out their opinions, now appoints a guardian for children in custody cases. In the past it was only done
on those occasions where he thought a guardian was needed for the child’s interest.” Senator Goode further
states: “I believe that the language of the statute would be clearer if the phrase ‘the court shall appoint
counsel’ was changed to ‘the court shall not appoint counsel . . . unless the court finds, at any stage in the
proceedings in a specific case that the interest of the children are not otherwise adequately represented’.”
Senator Goode concludes: “This would only be a minor change, but I think it might make it clearer and make
it more in line with your intention . . . I think in a number of cases, and I believe the local judge would agree
that no counsel needs to be appointed.”
The current practice of appointing guardians ad litem in custody cases in which the parties are
represented by counsel contradicts the assumption of Senator Goode that in a number of cases the judge will
5
conclude that “no counsel needs to be appointed.” Rather, it has become the norm for counsel representing
parties in a contested custody case to request that a guardian ad litem be appointed to represent the
child/children without any analysis of whether “the interests of the child or children are not otherwise
adequately represented.” It has also become the norm in some courtrooms for such requests to be granted.
Arguably, a guardian ad litem will have access to records that a party’s attorney may have to obtain via
a subpoena duces tecum. Also, indubitably, there are cases that are so contentious that even with each party
being represented by counsel, the child’s interests will not be adequately represented without the appointment
of a guardian ad litem for the child. However, there are also cases that involve older children who will be able
to testify in open court without a guardian ad litem and who wish to do so. There are also cases where, with the
consent of the parties and counsel, an in camera interview of the child by the trial judge will alleviate the need
for a guardian ad litem. It is clear from the above legislative history that the General Assembly did not intend
for guardians ad litem to be appointed to make it easier for attorneys and judges to resolve contested custody
cases. Rather, the intent was to limit the appointment of guardians ad litem to those cases in which such an
appointment was deemed necessary after the receipt of testimony or a proffer sufficient for the trial judge to
determine that the child’s interests “are not otherwise adequately represented.” To do otherwise is to further
compound the costs of contested custody litigation. Let us all be guided accordingly.
How Custody Cases Involving Family
Abuse May Look in Initial Interviews
By Lauren W. Smith, Fairfax
Virginia law defines family abuse as follows:
"Family abuse" means any act involving violence, force, or threat including, but not limited to, any
forceful detention, which results in bodily injury or places one in reasonable apprehension of bodily
injury and which is committed by a person against such person's family or household member.1
The presence of family abuse can profoundly impact custody litigation in terms of everything from the
legal standards applicable in the case2 to how the parties interact during the litigation to how the visitations go.
However, people often feel that violence in the home is embarrassing. It may not be something that they feel
comfortable discussing with a complete stranger, even if that complete stranger is going to represent them in a
custody case. Hopefully, providing illustrations of how these cases may look different from others at the
initial intake stage will help family law practitioners know when to probe a little regarding this issue.
Most of my initial custody intakes with primary caretakers sound like this:
Lawyer: What custody arrangement do you want for your children?
Potential Client: I want the other parent to be involved in the children’s life but I want full custody.
Lawyer: Why?
The client will generally go on to explain that he or she has always cared for the child and that the
other parent does not know how to take care of the child, never having done so. The lawyer, having heard this
before and having seen contrary evidence appear at trial, may listen with a degree of skepticism and take it
1
2
See Va. Code Ann. § 16.1-228.
See Va. Code Ann. § 20-124.3(9).
6
with a grain of salt. The lawyer and client will discuss issues such as physical and legal custody, the distinction
between being a fit parent and parenting in the way that the primary caretaker parents, Virginia law
surrounding custody cases, and the distinction between the best interests of the children and the best interests
of the parent. The client may initially show some anger at the idea that someone who has had little role in a
child’s life (especially if the other parent has failed to pay support) should get to have a voice in the child’s
life. However, after that anger is vented, the client will generally have no serious objection to keeping the
other parent informed or to discussing the child with the other parent. The client will probably continue to
object to the idea that the other parent’s vote should count equally because the other parent doesn’t know the
child as well. At the end of this discussion, the client will generally want primary physical custody, a
visitation schedule for the other parent, and joint legal custody with the authority to make the ultimate decision
in the event of a disagreement.
Most of my initial custody intakes with non-primary caretakers sound like this:
Lawyer: What custody arrangement do you want for your children?
Potential Client: I want joint custody.
Lawyer: Why?
Potential Client: Because I want to be involved in my children’s lives.
The lawyer and client discuss issues such as physical and legal custody, the distinction between being
a fit parent and parenting in the way that the primary caretaker parents, Virginia law surrounding custody cases
and the distinction between the best interests of the children and the best interests of the parent. At the end of
this discussion, the client will generally want a visitation schedule and joint legal custody.
Batterers are different. The following is my memory of part of an actual intake interview:
Lawyer: What custody arrangement do you want for your children?
Potential Client: I want full custody.
Lawyer: Why?
Potential Client: Because my ex lied and took out a protective order against me.
Lawyer: How old are your children?
Potential Client: I don’t know. They’ve always lived with her.
When victims3 obtain protective orders against them or call the police, batterers often immediately file
custody petitions. Most cases involving batterers will not be quite as obvious as the above. However, it is rare
for a party who had not significantly cared for a child to want to completely remove the child from the other
parent in cases that do not involve domestic violence. Of course skepticism intrudes here. Think of the times
you have sat in your office mystified as a non-custodial parent complains that the other party abuses alcohol
and/or is mentally ill and/or abuses the child and then explains that he is seeking shared custody for this
reason. While most of the studies on this issue appear to be more than ten years old, they do indicate that
3
While the term “survivor” is generally preferred within the domestic violence community, I am using the term “victim”
here because it has a statutory significance that I want to preserve for purposes of this article, namely clarifying that
family abuse is a crime.
7
batterers are more likely than non-battering fathers to seek custody of children, especially of sons, and are as
likely as non-battering fathers to prevail.4
Although I have represented victims of domestic violence of both sexes, I have never had a case where
the victim was not also the primary caretaker of the parties’ children at separation. Taking care of a child on a
day to day basis requires empathy and the ability to consider someone else’s needs and even put them ahead of
one’s own. Without these traits, people are not going to be very good at caring for children nor are they going
to want to do so. Someone who is capable of beating and/or threatening a person he or she claims to love likely
lacks these traits.
Victims of domestic violence often look different on intake from other primary caretakers. In my cases,
they generally initially express a wish to involve the other parent in their child’s life, but are usually extremely
concerned about having to communicate with the other parent. They express fears that the other parent will
argue against any suggestion that they make just to argue, without considering the interest of the child, and will
yell at them. Thus, the concerns they express will be based upon feeling intimidated, rather than outrage that
the other party gets a voice without having done much of the work of child-rearing, as in the case of other
primary caretakers. These clients will often be reassured by the idea that communication about the children can
be performed almost exclusively via electronic mail and that a judge can be alerted if the e-mails become
abusive or harassing.
I hope this article will be useful in helping practitioners spot custody cases which involve a history of
domestic violence. If you recognize that that a potential client is likely a victim of domestic violence, that will
affect your legal advice to him or her. In addition, there are a variety of resources available to help ensure his
or her safety. The Virginia Sexual and Domestic Violence Action Alliance website at http://www.vadv.org is a
good place to start for locating local resources that may help your client. To the extent that the potential client
may be a batterer, recognizing this will allow you to give more appropriate legal advice, as well.
4
See, e.g., Bancroft & Silverman, The Batterer as Parent, p. 113 (citing multiple studies on this issue).
2011 LEGISLATIVE UPDATE
REGARDING FAMILY LAW MATTERS
By Carl J. Witmeyer, II, Ashland, with Jeanette Somers and Jean Anne Gallagher
The most significant legislation for family practice passed by this General Assembly was the budget,
in my opinion. The budget includes the replacement of 21 Judges statewide, who previously retired and were
not replaced. This includes the areas of the 15th Circuit, and the areas surrounding Dinwiddie, Amelia, and the
City of Petersburg. The replacement of 21 of those Judges will make a significant improvement in the quality
and speed with which cases can be heard in the previously affected Circuits. The General Assembly also, with
the approval of Governor McDonnell, reinstated in the budget the five million dollars that was proposed to be
taken from the Virginia State Bar reserve account—an account which consisted solely of member dues, not tax
dollars.
The General Assembly postponed until their Veto Session appointments to fill the vacancies on the
Virginia Supreme Court left by the retirement of Justice Lawrence L. Koontz and the untimely death of former
Chief Justice Leroy R. Hassell, Sr. The veto session will not consider any family law bills; everything passed
has already been signed.
8
The General Assembly also greatly expanded Protective Orders, and laws governing family abuse and
stalking, including enhancement of the penalties, in passing two identical bills, HB 2063 and SB 1222. These
rename "protective orders for stalking" as "protective orders" and expand the class of persons eligible to obtain
them by enlarging the types of conduct that permit their issuance from certain specified criminal acts 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. Protective orders are available based on such conduct, regardless of the
relationship of the parties involved. The bills also make protective orders and family abuse protective orders
more consistent, amending the definition of “family abuse” to be consistent with the list of conduct that is
grounds for a “protective order” and letting a family abuse protective order prohibit a criminal offense that
results in injury to person or property. They also make the penalties for violating a protective order consistent
with the penalties for violating a family abuse protective order: (i) any person convicted of a second violation
of a protective order, committed within five years of a conviction for a prior offense, when either offense was
based on an act or threat of violence, shall be sentenced to a mandatory minimum of 60 days; (ii) a third or
subsequent offense, committed within 20 years of the first conviction, when any of the offenses, prior or
current, was based on an act or threat of violence, is a Class 6 felony with a mandatory minimum of six
months; (iii) any assault and battery resulting in serious bodily injury upon a person protected by a protective
order is a Class 6 felony; and (iv) any person who violates a protective order by furtively entering the home of
the protected party while such party is present, or enters and remains in such home until the protected party
arrives, is guilty of a Class 6 felony.
There were several other bills regarding Family Law issues this session. Some of them were:
House Bill 1569 is a modification to Virginia Code Section 20-107.3 concerning marital debts, and undoes the
Supreme Court decision in Gilliam v. McGrady, 279 Va. 703. It says that for the purposes of equitable
distribution in all divorce actions, the Circuit Court is now required to classify debts of the parties as either
marital or separate. This Bill defines a marital debt and a separate debt for the purpose of classification, and
establishes how a litigant may rebut such a classification. Passed, signed into law.
Senate Bill 1068: A counterclaim or any other responsive pleading in annulment, divorce and separate
maintenance proceedings is not subject to the $60 filing fee. Passed, signed into law.
Support
House Bill 1529 modifies Code Section 20-103, which allows the court “to compel a spouse to pay any sums
necessary for the maintenance and support of the petitioning spouse”, to include the option of a pendente lite
support order compelling a party to pay secured or unsecured debts incurred jointly by the parties or in either
party’s name. Passed, signed into law.
House Bill 1694 modifies Code § 46.2-20 on suspension of driver’s licenses for failure to pay child support. It
increases from $500 to $600 the minimum child support payment that a person must make pursuant to an
agreement with the DSS in order to renew or reinstate the person's driver's license. Also, “if a person fails to
comply with such an agreement, the person's driver's license shall not be renewed or reinstated until the child
support delinquency is paid in full or the person enters a subsequent agreement and makes a minimum
payment of $1,200. If a person fails to comply with a subsequent agreement, that monthly minimum is raised
to $1,800. Passed; governor has proposed amendments unrelated to the provisions above.
Custody/Visitation
House Bill 2085 modifies Virginia Code Section 31-8. It eliminates the option for parents who are separated
but not divorced to bring a custody proceeding in either circuit court or juvenile and domestic relations district
court. Such actions shall be brought in juvenile and domestic relations district court, unless concurrent
9
jurisdiction exists with the circuit court, i.e., divorce actions. In the original Code, “any husband and wife
living in a state of separation, without being divorced, and had a minor child of the marriage, may petition and
be awarded the custody and control of the child for such time.” Passed, signed into law.
Senate Bill 910 modifies Virginia Code Section 20-124. It provides that “in cases involving a parent who is a
member of the military and who has been deployed on active duty, a court may enter an order (i) delegating
the deploying parent's visitation rights with a child to a family member of the deploying parent or (ii) awarding
visitation rights to a family member of the deploying parent if the parent had physical custody of the child
prior to the deployment and physical custody is awarded to the non-deploying parent or his family during the
deployment.” Passed, signed into law.
Adoption
House Bill 2157 provides that “in cases in which a child has been adopted pursuant to the laws of a foreign
country and enters the United States with an IR-3 or IH-3 visa issued by the United States Citizenship and
Immigration Service, the adoptive parents shall not be required to readopt the child in Virginia and the
adoption shall be recognized by the Commonwealth and the rights and obligations of the parties shall be
determined as though the order of adoption was entered by a court of the Commonwealth.” This bill also
establishes a “streamlined process whereby adoptive parents of children adopted pursuant to the laws of a
foreign country and brought into the United States with an IR-3 or IH-3 visa may obtain a certificate of birth
for the child.” Passed, signed into law.
Foster Care/ Placement
House Bill 1984 / Senate Bill 1178 adds to Code § 63.2-900, “In cases in which a child cannot be returned to
his prior family or placed for adoption and kinship care is not currently in the best interests of the child, the
local board shall consider the placement and services that afford the best alternative for protecting the child's
welfare. Placements may include but are not limited to family foster care, treatment foster care and residential
care. Services may include but are not limited to assessment and stabilization, diligent family search, intensive
in-home, intensive wraparound, respite, mentoring, family mentoring, adoption support, supported adoption,
crisis stabilization or other community-based services.” Passed, signed into law.
Senate Bill 1037. Eliminates independent living as a permanency goal option for foster care plans. Includes
provisions on children over 16 and refugees or asylum seekers. Passed, signed into law.
Bills that Failed
House Bill 2275. Spousal support and separate maintenance. Provides that in any proceeding to determine
spousal support or separate maintenance, the Court shall have the authority to order any party to (a) maintain
existing life insurance policies on their own life with the right to designate a beneficiary (b) designate the other
party for such a life insurance policy as long as the party remains obligated to pay spousal support to the other
party. Stricken by the House Courts of Justice by voice vote.
House Bill 1807. Petitions for child support, custody, or visitation. Clarifies that issues of support, custody,
and visitation for a child may be included in a single petition in juvenile and domestic relations district court,
and that such issues may be included in a single petition involving two or more children if such children have
the same parents or legal guardians. Tabled by House Courts of Justice.
House Bill 1787. Establishes a presumption in child custody cases that an award of joint legal and physical
custody, with physical custody, to the extent feasible, shared equally between the parties, is in the best
interests of the child. Tabled by House Courts of Justice.
10
Senate Bill 806. Provides that if any party during the direct examination of its own expert witness intends to
rely on statements in treatises, periodicals, or pamphlets previously designated by an opposing party or litigant,
copies of such specific statements must be provided to all parties within 10 days after receipt of the opposing
party’s designation, unless otherwise ordered by the Court. This Bill was recommended by the Boyd-Graves
Conference, but was tabled by House Courts of Justice.
House Bill 1990, which would have established new boundaries of the State’s Judicial Circuits and Districts,
was tabled for more discussion during a later Assembly Session.
House Bill 1808. Provides that payments collected by the Department of Social Services on any support
arrearage pursuant to an order being enforced by the Department shall be applied first to the interest on the
arrearage and then to the arrearage. Tabled by the Committee on Health, Welfare and Institutions.
House Bill 2266. Provides that pendente lite custody or visitation orders, despite their temporary nature, may
be appealed to the appropriate appellate court. Tabled in House Courts of Justice.
Senate Bill 760. Provides that the Department of Motor Vehicles shall not renew a driver's license or terminate
a license suspension imposed because of nonpayment of child support. Stricken at the request of the patron in
the Committee on Transportation.
Senate Bill 764. Clarifies the standard a court must apply in when determining whether to allow adoption of a
child in the absence of parental consent. Stricken at the request of the Patron in Courts of Justice.
Senate Bill 1140. Specifies that writing a bad check for child or spousal support is subject to the criminal
penalties for bad checks. Passed by indefinitely in Courts of Justice.
House Bill 2202. Provides that the Division of Child Support Enforcement shall, in order to enhance
enforcement, publish at regular intervals a list of delinquent parents who owe child support. Passed by
indefinitely in the Committee on Rehabilitation and Social Services.
INTERPRETERS IN VIRGINIA COURTS
By Cassandra M. Chin, Woodbridge
With such rich cultural diversity now existing in Virginia, it is not unusual for a family law
practitioner to be faced with clients for whom English is a second language. Accordingly, the demand for
interpreter services has grown considerably in recent years, and interpreters are now governed by a Code of
Professional Responsibility. In Virginia, courts may appoint an interpreter in civil cases. Two code sections
govern the Court’s ability to do so:
§ 8.01-384.1. Interpreters for deaf in civil proceedings.
In any civil proceeding in which a speech-impaired or hearing-impaired person is a party or
witness, the court may appoint a qualified interpreter to assist such person in the proceeding.
The court shall appoint an interpreter for any speech-impaired or hearing-impaired person who
requests this assistance.
Interpreters for the deaf in these proceedings shall be procured through the Department for the
Deaf and Hard-of-Hearing.
11
Any person who is eligible for an interpreter pursuant to this section may waive the use of an
interpreter appointed by the court for all or a portion of the proceedings. A person who waives
his right to an interpreter may provide his own interpreter at his own expense without regard
to whether the interpreter is qualified under this section.
The compensation of interpreters appointed pursuant to this section shall be fixed by the court
and paid from the general fund of the state treasury or may, in the discretion of the court, be
assessed as a part of the cost of the proceedings.
The provisions of this section shall apply in both circuit courts and district courts.
§ 8.01-384.1:1. Interpreters for non-English-speaking persons in civil cases.
A. In any trial, hearing or other proceeding before a judge in a civil case in which a nonEnglish-speaking person is a party or witness, an interpreter for the non-English-speaking
person may be appointed by the court. A qualified English-speaking person fluent in the
language of the non-English-speaking person may be appointed by the judge of the court in
which the case is to be heard unless the non-English-speaking person shall obtain a qualified
interpreter of his own choosing who is approved by the court as being competent.
B. To the extent of available appropriations, the compensation of such interpreter shall be
fixed by the court in accordance with guidelines set by the Judicial Council of Virginia and
shall be paid from the general fund of the state treasury as part of the expense of trial. The
amount allowed by the court to the interpreter may, in the discretion of the court, be assessed
against either party as a part of the cost of the case and, if collected, the same shall be paid to
the Commonwealth.
C. Whenever a person communicates through an interpreter to any person under such
circumstances that the communications would be privileged, and such persons could not be
compelled to testify as to the communications, this privilege shall also apply to the interpreter.
The provisions of this section shall apply in circuit courts and district courts.
For Spanish interpreters, the Judicial Council of Virginia encourages the use of court-certified
interpreters. The Judicial Council has developed a certification process for interpreters in Spanish, Korean, and
Vietnamese for Virginia court proceedings.
However, as of October 2010, there is only one certified
Vietnamese interpreter and there are no certified Korean interpreters. A list of certified interpreters is
available through the Department of Judicial Services, Office of the Executive Secretary, Supreme Court of
Virginia, 100 North Ninth Street, Fifth Floor, Richmond, Virginia 23219, 804-371-9241,
[email protected].
There are four requirements for certification:
1. Candidates must adhere to the Code of Professional Responsibility for Interpreters Serving
Virginia Courts, which consists of 10 Canons (below).
2. Candidates must complete a two-day orientation training session.
3. Candidates must complete a multiple-choice, written test on English language vocabulary.
4. Candidates must complete a Spanish language interpreter certification oral examination.
For interpreters of other languages, the court must assess the qualifications of each individual
interpreter before appointing that person. Some suggested sources for locating foreign language interpreters:
12
•
•
•
•
•
•
•
Other Virginia state and federal courts
Non-governmental organizations such as schools, churches, and ethnic community organizations
Colleges and universities offering courses in interpretation and translation include Georgetown
University, University of Delaware, Montclair State College (New Jersey), University of South
Carolina, and University of Charleston (South Carolina)
Medical facilities, such as hospitals and clinics
Private interpreter companies
International agencies such as World Bank, International Monetary Fund, United Nations,
International Red Cross, and Organization of American States
Professional Associations such as NAJIT and ATA:
National Association of Judiciary Interpreters and Translators
(NAJIT)
1707 L Street, NW, Suite 570
Washington, DC
Telephone: 202/293-0342
www.najit.org
American Translators Association (ATA)
225 Reinekers Lane, Suite 590
Alexandria, VA 22314
Telephone: 703/683-6100
www.atanet.org
For interpreters for the deaf and hearing impaired, the Virginia Code requires courts to utilize
interpreters through the Virginia Department for the Deaf and Hard of Hearing (VDDHH). A directory of
qualified interpreters may be obtained by calling 804/662-9502 or 800/552-7917, or through their website
(www.vddhh.org).
Court-appointed foreign language interpreters are paid by the Office of the Executive Secretary in
accordance with guidelines established by the Judicial Council of Virginia.
CODE OF PROFESSIONAL RESPONSIBILITY FOR
INTERPRETERS SERVING IN VIRGINIA COURTS
CANON 1: ACCURACY AND COMPLETENESS
Interpreters shall render a complete and accurate interpretation or sight translation, without altering,
omitting or adding anything to what is stated or written, and without explanation.
Commentary: The interpreter has a twofold duty: 1) to ensure the proceedings in English reflect precisely
what was said by a non-English speaking person, and 2) to place the non-English- speaking person on an equal
footing with those who understand English. This creates an obligation to conserve every element of
information contained in a source language communication when it is rendered in the target language.
Therefore, interpreters are obligated to apply their best skills and judgment to preserve faithfully the meaning
of what is said in court, including the style or register of speech. Verbatim, "word for word," or literal oral
interpretations are not appropriate when they distort the meaning of the source language, but every spoken
statement, even if it appears nonresponsive, obscene, rambling, or incoherent should be interpreted. This
includes apparent misstatements.
Interpreters should never interject their own words, phrases, or expressions. If the need arises to explain an
interpreting problem (e.g., a term or phrase with no direct equivalent in the target language or a
misunderstanding that only the interpreter can clarify), the interpreter should ask the court's permission to
13
provide an explanation. Interpreters should convey the emotional emphasis of the speaker without reenacting
or mimicking the speaker's emotions or dramatic gestures.
Sign language interpreters, however, must employ all of the visual cues that the language they are interpreting
for requires - including facial expressions, body language, and hand gestures. Sign language interpreters,
therefore, should ensure that court participants do not confuse these essential elements of the interpreted
language with inappropriate interpreter conduct.
The obligation to preserve accuracy includes the interpreter's duty to correct any error of interpretation
discovered by the interpreter during the proceeding. Interpreters should demonstrate their professionalism by
objectively analyzing any challenge to their performance.
CANON 2: REPRESENTATION OF QUALIFICATIONS
Interpreters shall accurately and completely represent their certifications, training and pertinent
experience.
Commentary: Acceptance of a case by an interpreter conveys linguistic competency in legal settings.
Withdrawing or being asked to withdraw from a case after it begins causes a disruption of court proceedings
and is wasteful of scarce public resources. It is therefore essential that interpreters present a complete and
truthful account of their training, certification and experience prior to appointment so the officers of the court
can fairly evaluate their qualifications for delivering interpreting services.
CANON 3: IMPARTIALITY AND AVOIDANCE OF CONFLICT OF INTEREST
Interpreters shall be impartial and unbiased and shall refrain from conduct that may give an
appearance of bias. Interpreters shall disclose any real or perceived conflict of interest.
Commentary: The interpreter serves as an officer of the court and the interpreter’s duty in a court proceeding
is to serve the court and the public to which the court is a servant. This is true regardless of whether the
interpreter is publicly retained at government expense or retained privately at the expense of one of the parties.
The interpreter should avoid any conduct or behavior that presents the appearance of favoritism toward any of
the parties. Interpreters should maintain professional relationships with their clients, and should not take an
active part in any of the proceedings. The interpreter should discourage a non-English-speaking party’s
personal dependence.
During the course of the proceedings, interpreters should not convene with parties, witnesses, jurors, attorneys,
or with friends or relatives of any party, except in the discharge of their official functions. It is especially
important that interpreters, who are often familiar with attorneys or other members of the courtroom work
group, including law enforcement officers, refrain from casual and personal conversations with anyone in
court that may convey an appearance of a special relationship or partiality to any of the court participants.
The interpreter should strive for professional detachment. Verbal and non-verbal displays of personal attitudes,
prejudices, emotions or opinions should be avoided at all times.
Should an interpreter become aware that a proceeding participant views the interpreter as having a bias or
being biased, the interpreter should disclose that knowledge to the appropriate judicial authority and counsel.
Any condition that interferes with the objectivity of an interpreter constitutes a conflict of interest. Before
14
providing services in a matter, court interpreters must disclose to all parties and presiding officials any prior
involvement, whether personal or professional, that could be reasonably construed as a conflict of interest.
This disclosure should not include privileged or confidential information.
The following are circumstances that are presumed to create actual or apparent conflicts of interest for
interpreters where interpreters should not serve:
1. The interpreter is a friend, associate or relative of a party or counsel for a party involved in the proceedings;
2. The interpreter has served in an investigative capacity for any party involved in the case;
3. The interpreter has previously been retained by a law enforcement agency to assist in the preparation of the
criminal case at issue;
4. The interpreter or the interpreter's spouse or child has a financial interest in the subject matter in controversy
or in a party to the proceeding, or any other interest that would be affected by the outcome of the case; and
5. The interpreter has been involved in the choice of counsel or law firm for that case.
Interpreters should disclose to the court and other parties when they have previously been retained for private
employment by one of the parties in the case.
Interpreters should not serve in any matter in which payment for their services is contingent upon the outcome
of the case.
An interpreter who is also an attorney should not serve in both capacities in the same matter.
CANON 4: PROFESSIONAL DEMEANOR
Interpreters shall conduct themselves in a manner consistent with the dignity of the court and shall be
as unobtrusive as possible.
Commentary: Interpreters should know and observe the established protocol, rules and procedures for
delivering interpreting services. When speaking in English, interpreters should speak at a rate and volume that
enables them to be heard and understood throughout the courtroom, but the interpreter’s presence should
otherwise be as unobtrusive as possible. Interpreters should work without drawing undue or inappropriate
attention to themselves. Interpreters should dress in an manner that is consistent with the dignity of the
proceedings of the court.
Interpreters should avoid obstructing the view of any of the individuals involved in the proceedings.
Interpreters who use sign language or other visual modes of communication must, however, be positioned so
that hand gestures, facial expressions, and whole body movement are visible to the person for whom they are
interpreting.
Interpreters are encouraged to avoid personal or professional conduct that could discredit the court.
CANON 5: CONFIDENTIALITY
Interpreters shall protect the confidentiality of all privileged and other confidential information.
Commentary: The interpreter must protect and uphold the confidentiality of all privileged information
obtained during the course of her or his duties. It is especially important that the interpreter understand and
uphold the attorney-client privilege, which requires confidentiality with respect to any communication
15
between attorney and client. This rule also applies to other types of privileged communications.
Interpreters must also refrain from repeating or disclosing confidential information obtained by them in the
course of their employment.
In the event that an interpreter becomes aware of information that suggests imminent harm to someone or
relates to a crime being committed during the course of the proceedings, the interpreter should immediately
disclose the information to an appropriate authority within the judiciary who is not involved in the proceeding
and seek advice in regard to the potential conflict in professional responsibility.
CANON 6: RESTRICTION OF PUBLIC COMMENT
Interpreters shall not publicly discuss, report or offer an opinion concerning a matter in which they are
or have been engaged, even when that information is not privileged or required by law to be
confidential.
CANON 7: SCOPE OF PRACTICE
Interpreters shall limit themselves to interpreting or translating and shall not give legal advice, express
personal opinions to individuals for whom they are interpreting or engage in any other activities which
may be construed to constitute a service other than interpreting or translating while serving as an
interpreter.
Commentary: Since interpreters are responsible only for enabling others to communicate, they should limit
themselves to the activity of interpreting or translating only. Interpreters should refrain from initiating
communications while interpreting unless it is necessary for assuring an accurate and faithful interpretation.
Interpreters may be required to initiate communications during a proceeding when they find it necessary to
seek assistance in performing their duties. Examples of such circumstances include seeking direction when
unable to understand or express a word or thought, requesting speakers to moderate their rate of
communication or repeat or rephrase something, correcting their own interpreting errors or notifying the court
of reservations about their ability to satisfy an assignment competently. In such instances they should make it
clear that they are speaking for themselves.
An interpreter may convey legal advice from an attorney to a person only while that attorney is giving it. An
interpreter should not explain the purpose of forms, services or otherwise act as counselors or advisors unless
they are interpreting for someone who is acting in that official capacity. The interpreter may translate the
language on a form for a person who is filling out the form, but may not explain the form or its purpose for
such a person.
The interpreter should not personally serve to perform official acts that are the official responsibility of other
court officials including, but not limited to, court clerks, pretrial release investigators or interviewers or
probation counselors.
CANON 8: ASSESSING AND REPORTING IMPEDIMENTS TO PERFORMANCE
Interpreters shall assess at all times their ability to deliver their services. When interpreters have any
reservation about their ability to satisfy an assignment competently, they shall immediately convey that
reservation to the appropriate judicial authority.
16
Commentary: If the communication mode or
language of the non-English-speaking person cannot
be readily interpreted, the interpreter should notify the
appropriate judicial authority.
Interpreters should notify the presiding officer of any
personal bias they may have involving any aspect of
the proceedings. For example, an interpreter who has
been the victim of a sexual assault may wish to be
excused from interpreting in cases involving similar
offenses.
Interpreters should notify the appropriate judicial
authority of any environmental or physical limitation
that impedes or hinders their ability to deliver
interpreting services adequately, e.g., the court room
is not quiet enough for the interpreter to hear or be
heard by the non-English speaker, more than one
person at a time is speaking, or principals or witnesses
of the court are speaking at a rate of speed that is too
rapid for the interpreter to adequately interpret. Sign
language interpreters must ensure that they can both
see and convey the full range of visual language
elements that are necessary for communication,
including facial expressions and body movement, as
well as hand gestures.
CANON 9: DUTY TO REPORT ETHICAL
VIOLATIONS
Interpreters shall report to the proper judicial
authority any effort to impede their compliance
with any law, any provision of this code or any
other official policy governing court interpreting
and legal translating.
Commentary: Because the users of interpreting
services frequently misunderstand the proper role of
the interpreter, they may ask or expect the interpreter
to perform duties or engage in activities that run
counter to the provisions of this code or other laws,
regulations or policies governing court interpreters. It
is incumbent upon the interpreter to inform such
persons of his or her professional obligations. If,
having been apprised of these obligations, the person
persists in demanding that the interpreter violate them,
the interpreter should turn to a supervisory interpreter,
a judge or another official with jurisdiction over
interpreter matters to resolve the situation.
Interpreters should notify the presiding officer of the
need to take periodic breaks to maintain mental and
physical alertness and prevent interpreter fatigue.
Interpreters should recommend and encourage the use
of team interpreting whenever necessary.
Interpreters are encouraged to make inquiries as to the
nature of a case whenever possible before accepting
an assignment. This enables interpreters to match
more closely their professional qualifications, skills
and experience to potential assignments and more
accurately assess their ability to satisfy those
assignments competently.
CANON 10: PROFESSIONAL DEVELOPMENT
Interpreters shall continually improve their skills
and knowledge and advance the profession
through activities such as professional training and
education, and interaction with colleagues and
specialists in related fields.
Even competent and experienced interpreters may
encounter cases where routine proceedings suddenly
involve technical or specialized terminology
unfamiliar to the interpreter, e.g., the unscheduled
testimony of an expert witness. When such instances
occur, interpreters should request a brief recess to
familiarize themselves with the subject matter. If
familiarity with the terminology requires extensive
time or more intensive research, interpreters should
inform the presiding officer.
Commentary: Interpreters must continually strive to
increase their knowledge of the languages they work
in professionally, including past and current trends in
technical, vernacular and regional terminology as well
as their application within court proceedings.
Interpreters should keep informed of all statutes, rules
of courts and policies of the judiciary that relate to the
performance of their professional duties.
Interpreters should refrain from accepting a case if
they feel the language and subject matter of that case
is likely to exceed their skills or capacities.
Interpreters should feel no compunction about
notifying the presiding officer if they feel unable to
perform competently, due to lack of familiarity with
terminology,
preparation,
or
difficulty
in
understanding a witness or defendant.
An interpreter should seek to elevate the standards of
the profession through participation in workshops,
professional meetings, interaction with colleagues and
reading current literature in the field.
17
sufficiently attested. Their rupture had resounded, and
after being perfectly insignificant together they would
be decidedly striking apart. Had they not produced an
impression that warranted people in looking for
appeals in the newspapers for the rescue of the little
one—reverberation, amid a vociferous public, of the
idea that some movement should be started or some
benevolent person should come forward? A good lady
came indeed a step or two: she was distantly related to
Mrs. Farange, to whom she proposed that, having
children and nurseries wound up and going, she
should be allowed to take home the bone of contention
and, by working it into her system, relieve at least one
of the parents. This would make every time, for
Maisie, after her inevitable six months with Beale,
much more of a change.
Quilp’s Notes
Being A Selection Of Excerpts Intended to
Bring the Perspective of Past Ages to Bear
Upon Such Matters As Marriage, Divorce,
Custody, Relations Between The Sexes
Generally, The Courts And Law Practice
From Henry James’s 1897 novel, What Maisie Knew:
The litigation seemed interminable and had in fact
been complicated; but by the decision on the appeal
the judgment of the divorce-court was confirmed as to
the assignment of the child. The father, who, though
bespattered from head to foot, had made good his
case, was, in pursuance of this triumph, appointed to
keep her: it was not so much that the mother's
character had been more absolutely damaged as that
the brilliancy of a lady's complexion (and this lady's,
in court, was immensely remarked) might be more
regarded as showing the spots. Attached, however,
[was] an order that he should refund to his late wife
the twenty-six hundred pounds … He was unable to
produce the money or to raise it in any way; so that
after a squabble scarcely less public and scarcely more
decent than the original shock of battle his only issue
from his predicament was a compromise proposed by
his legal advisers and finally accepted by hers.
"More of a change?" Ida cried. "Won't it be enough of
a change for her to come from that low brute to the
person in the world who detests him most?"
“No, because you detest him so much that you’ll
always talk to her about him. You’ll keep him before
her by perpetually abusing him.”
...
What was clear to any spectator was that the only link
binding her to either parent was this lamentable fact of
her being a ready vessel for bitterness, a deep little
porcelain cup in which biting acids could be mixed.
They had wanted her not for any good they could do
her, but for the harm they could, with her unconscious
aid, do each other. She would serve their anger and
seal their revenge, for husband and wife had been
alike crippled by the heavy hand of justice, which in
the last resort met on neither side their indignant claim
to get, as they called it, everything.
...
His debt was by this arrangement remitted to him and
the little girl disposed of in a manner worthy of the
judgement-seat of Solomon. She was divided in two
and the portions tossed impartially to the disputants.
They would take her, in rotation, for six months at a
time; she would spend half the year with each. This
was odd justice in the eyes of those who still blinked
in the fierce light projected from the tribunal—a light
in which neither parent figured in the least as a happy
example to youth and innocence. What was to have
been expected on the evidence was the nomination, in
loco parentis, of some proper third person, some
respectable or at least some presentable friend.
Apparently, however, the circle of the Faranges had
been scanned in vain for any such ornament; so that
the only solution finally meeting all the difficulties
was, save that of sending Maisie to a Home, the
partition of the tutelary office in the manner I have
mentioned. There were more reasons for her parents to
agree to it than there had ever been for them to agree
to anything; and they now prepared with her help to
enjoy the distinction that waits upon vulgarity
The mother had wished to prevent the father from, as
she said, “so much as looking” at the child; the
father’s plea was that the mother’s lightest touch was
“simple contamination.” These were the opposed
principles in which Maisie was to be educated — she
was to fit them together as she might.
...
This was a society in which for the most part people
were occupied only with chatter, but the disunited
couple had at last grounds for expecting a time of high
activity. They girded their loins, they felt as if the
quarrel had only begun. They felt indeed more
married than ever, inasmuch as what marriage had
mainly suggested to them was the unbroken
opportunity to quarrel.
18
Notes on Recent
Appellate Cases
27th Annual Advanced Family Law Seminar
Emerging Hot Topics
in Divorce Litigation
Don’t miss the Family Law Section’s upcoming
CLE program! This year’s topics include:
•
•
•
•
•
•
•
Bi-Annual Case Law Update
Annual Legislative Update
Panel of Judges: Addressing Today’s Hot
Topics in Divorce Litigation
Is Fault Dead in Virginia? The Effect of Fault
on Equitable Distribution, Spousal Support,
and Custody Litigation
The Trend Toward Shared Custody
Requirements for Notification of Beneficiary
Issues in a Final Decree of Divorce
Current Ethical Dilemmas Facing the Family
Law Practitioner
CHILD SUPPORT — ILLEGITIMATE PATERNITY — JURISDICTION — LONG-ARM STATUTE — “FATHERED IN VIRGINIA” CLAUSE —
SEXUAL ACT ABROAD. As most family lawyers
probably know, Virginia’s long-arm statute, Code
§8.01-328.1(A)(8), provides for asserting paternity
and child support jurisdiction over an out-of-state
“person” who “conceived or fathered a child” in
Virginia. Neither the circuit court nor the Court of
Appeals had much trouble holding that this language
did not apply to a case in which even the mother
admits that both acts — the father’s impregnation of
her by the sexual act, and the mother’s conception of
the child by becoming pregnant — occurred in a
foreign country. And the Court of Appeals goes on to
say that even in the more interesting theoretical case
of a “fathering” offshore and the actual blessed event
of conception taking place only after the mother gets
to the U.S., its decision would be the same. That’s
because the General Assembly’s use of the term
“fathered” clearly applies only to the male parent’s
initial act, and not to the more passive thing that
happens slightly later. The General Assembly, it says,
used each individual word in a sense that is specific to
the respective sexes. Bergaust v. Flaherty, 57 Va.
App. 423, 703 S.E.2d 248, 25 VLW 900 (1/11/11).
Virginia State Bar Family Law Section
members qualify for a reduced registration
rate. If cost is an issue, Virginia CLE also offers
scholarships for those in need.
LIVE LOCATION AND DATE
Richmond / Thursday, April 28
The Jefferson
Franklin & Adams Streets (804) 788-8000
A limited number of rooms are being held for
seminar attendees at a discounted price at The
Jefferson (804-788-8000). Make your
reservations now!
For more detailed information, and to register,
please visit Virginia CLE’s website at
www.vacle.org/index.htm
Cassandra M. Chin, Esq.
Richard E. Garriott, Jr., Esq.
Nan P. Joseph, Esq.
CUSTODY — INTERSTATE CASES — UCCJEA
REGISTRATION. The Court of Appeals displays a
commendable interest in precise analysis of the
Seminar Planners
19
sometimes-confusing rules concerning registration of
custody decrees under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA) in a case
called Morrison v. Morrison, 57 Va. App. 629, 704
S.E.2d 617, 25 VLW 1014 (2/8/11). (Separate issue
treated below). The trial judge denied registration —
something which hardly ever happens — but for good
reasons, the Court of Appeals finds. A Michigan decree from 2003 said the mother could not move the
residence of the children more than 100 miles without
prior court approval, but she removed them to Austria
in 2007 without so much as a by-your-leave. The offended Michigan court didn’t fool around: it awarded
temporary custody to the father in 2008 and ordered
her immediate return to answer up to a criminal complaint about the abduction. However, the father in
2009 went to Austria and snatched the little girl back.
He then didn’t bother to try to register the Michigan
custody order there. When these parents entered the
Floyd County Circuit Court in 2009 with him seeking
to register the earliest Michigan decree of ne exeat
(2003), and the mother wanting the court to register an
Austrian custody order she had picked up in the
meantime, both were disappointed. This was right,
the Court of Appeals says, because the father couldn’t
register the 2003 Michigan order since he had a 2008
order (the custody modification), and couldn’t register
that one because it had been issued ex parte. The
mother likewise was told that she couldn’t register the
2003 order (which had, after all, given her custody)
because it was an order she had violated. These
decisions by the circuit judge were upheld.
father argued the fugitive disentitlement doctrine, but,
in a step-by-step opinion on this subject by Judge
Humphreys the Court of Appeals enumerates the crucial elements required for application of the doctrine
and finds only one of them present, and any case for
the application of the other factors in this instance to
be little more than ridiculous. Clearly the mother was
a fugitive — but from a Michigan court, and not a
Virginia court, thus providing no “nexus with” the
flight from justice and the issue being litigated here.
Also, things have to have been in the enforcement
mode, and enforcement of a court’s prior valid order
has to be the reason for the denial of the right to seek
appellate relief — which is clearly not the case here.
Nor would denial of this appeal particularly help the
valid enforcement of the Michigan order concerned,
nor help the man trying to invoke it now. The fugitive
disentitlement doctrine is not applicable in cases
“where no enforcement issue exists.” Denial of
appellate rights will not really benefit the father as a
litigant, because he now has custody of the little girl.
He is not being prejudiced by refusal to let mother
appeal this particular order. The connection between
the mother’s appeal and her status as a fugitive in this
particular case is not such that fugitive disentitlement
would effectuate the policy concerns underlying the
doctrine. Morrison v. Morrison, 57 Va. App. 629, 704
S.E.2d 617, 25 VLW 1014 (2/8/11).
PARENTAL RIGHTS TERMINATION — USE OF
FINDINGS FROM PRIOR HEARING ON DIFFERENT ISSUE WITH DIFFERENT STANDARD OF
PROOF. A termination case called Dunn v. Commonwealth, unpublished, 25 VLW 932 (1/18/11),
brought up the interesting question whether a court
making a decision of such awful impact and finality
can go by the findings made in an earlier “permanency
planning hearing,” which after all has a preponderance
standard of proof rather than one of “clear and convincing” evidence. Well, the Court of Appeals says,
you wouldn’t want to waste judicial time and
resources. This mother in appealing didn’t show the
Court of Appeals any authority that prohibits it. You
wouldn’t want to have to make all of the evidence
brought out in a prior hearing be introduced again, and
judges in termination cases can make their decisions
more economically. The judge can take the evidence
he or she remembers and submit it to a more rigid
proof standard, and the record supports the conclusion
that this circuit judge did that, in relying on stipulations from the permanency planning hearing in order
to make the factual findings in this new context. The
Court of Appeals said it would not require circuit
courts to go through a vain and useless undertaking.
CUSTODY — INTERSTATE & INTERNATIONAL
CASES — ABDUCTION AND FLIGHT —
APPEALS — “FUGITIVE DISENTITLEMENT
DOCTRINE.” In a thoroughly tangled and twisted
UCCJEA case (see above) the most interesting inquiry
may be how on earth this Michigan-Austrian case
ended up in Floyd County. But by far the most interesting legal issue is the Virginia Court of Appeals’
careful and measured explication of the “fugitive disentitlement doctrine” and why it chooses here not to
apply it. While these two parents argued about the
Floyd County Circuit Court’s refusal for several reasons to register the Michigan decree or an Austrian
decree, it gradually comes out that the mother removed the child from Michigan in violation of the
divorce decree’s express order not to and the father
then snatched the child back from Austria where she
had unilaterally taken her. Federal criminal sanctions
were imposed on the mother, and various ex parte orders against each parent by the other. When the
mother took an appeal in the Virginia trial court, the
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One of the things that didn’t have to be investigated
by the re-submission of evidence all over again was
the determination that the relative who appeared as a
candidate for custody of the children hadn’t submitted
sufficient evidence to determine if she was willing and
suitable.
evidence to support the trial judge’s findings that the
couple had considered the impact of future inflation,
or considered, back at that time, the chances that the
wife’s employment income would significantly rise.
(Wow! Who’d have thought! When was the last time
you had luck like that when going to court with a guy
seeking modification?) That part gets a remand for
examination of these questions. What is rather unique
is the way the appellate court flings around the
“nothing in the record” findings and rationale. The
trial court apparently ruled carefully on whether the
material change in circumstances involving the
husband’s pension ending was within the parties’
contemplation. Fine. And then the Court of Appeals
observes that nothing in the record indicates that these
parties thought about the possibility of the wife
getting a good-paying job (unlike, apparently, the
substandard job she had at the time of the agreement)
after finishing her education. If anyone wanted to say
that the parties would or should naturally have
contemplated that this wife would get a full time job,
with a hike in income upon graduating from college,
they would have to prove it with credible evidence, of
record. Here the appellate court combs the record and
finds “no credible evidence” to support the trial
judge’s finding on this “contemplated” point. It goes
on to find no evidence that they “contemplated the
impact of inflation.” Less surprising is the affirmance
of the trial court’s ruling that an e-mail that wife sent
to husband telling him he could cut her alimony from
$1,450 to $550 for nine months was non-contractual,
and did not constitute a written agreement to modify
(much less a court order), so that husband owes
$81,000 in alimony arrears that he didn’t think he
owed. The agreement’s own text, after all, said that
no modification would be any good unless executed
with all the same formalities. And finally, we get to
sort of Rule 5A:20 decision. It seems the judge
should never have let the wife put on evidence about
her unreimbursed extraordinary medical expenses
(because her pleadings gave no fair notice of such a
claim). There are certain common-sense or selfevident reasons you might consider this error
harmless, but the wife did not cite “legal authority to
support” her position that this was harmless error.
Sound like a decision any appellate court can make,
and which they frequently do make, without any
reference to authority? Well it’s not. Be warned.
PROPERTY DIVISION — CLASSIFICATION,
VALUATION AND DISTRIBUTION REQUIREMENTS — STIPULATIONS — AGREEMENTS.
An agreement at the beginning of an equitable distribution trial as to how a holding company would be
valued and divided, and by whom, will be effective to
control the proceedings, and a wife’s later argument,
that the trial judge erred in letting the company be
disposed of the way they agreed, got nowhere in the
Court of Appeals. The husband and wife had agreed
that the LLC should be divided per its Operating
Agreement, and that included letting a mutuallyagreed-upon CPA not only value it but divide it by
percentages of interest. Thus it hardly made sense to
come back and argue that the judge ignored the requirements of §20-107.3 by not going through the
identification-classification-valuation-distribution
ritual. A more interesting point in this case is that the
Court of Appeals also rejected the wife’s argument
that 20-107.3A (Read it.) requires that the judge individually classify and hang an individual price tag on
each item of property. The appellate court doesn’t
interpret it that way. And it does not just say that it
wasn’t required in this case because all the judge had
to do was follow the stipulated proedure. It expressly
says that “we find no such requirement in that Code
section.” Pascarella v. McCoy, unpublished, 25
VLW 1102 (1/11/11).
APPEALS — APPLICATION OF “NOTHING IN
RECORD TO INDICATE” STANDARD — SEPARATION AGREEMENTS — MODIFICATION.
Any one who does appeals should read a recent unpublished opinion in which the Court of Appeals goes
nothing short of wild with “nothing in the record”
findings, which it uses to reverse a Henrico trial judge.
Practitioners will find this criterion applied in ways
that some of us have never contemplated before. This
case was a dispute involving a support-paying husband’s effort to modify an agreement-incorporating
decree by alleging what he said was change of circumstances and the appellate court said was not, and it
turned on one of those “whether originally contemplated” disputes. In McNamee v. McNamee, unpublished, 25 VLW 1101 (2/1/11), the trial court ruled
that the parties knew when signing this agreement that
husband’s pension might end, but it finds there was no
ALIMONY — MODIFICATION — SOCIAL SECURITY OFFSET — CHANGE OF CIRCUMSTANCES WHEN AGREEMENT INVOLVED. We
all know that it takes a material change of
circumstances to even be able to come into court and
21
argue for alimony reduction. The one thing the
appellate courts tend to look at differently from case
to case is whether there is an additional requirement of
“unexpected,” or “unanticipated” for that change of
circumstances. And then you have your originallytried alimony cases and the cases of alimony under an
incorporated agreement. And it’s in that latter class of
cases, where the payor couldn’t have come in for
modification anyway unless the agreement had said
there could be modification for changed
circumstances, that the “unanticipated” criterion has
seemed to be applied with increasing (if not
necessarily consistent) frequency and force. (And
remember that while there is a statutory requirement
of “unanticipated,” in agreement cases it is the
contractual standard that you are applying.) When a
husband who had been paying his ex-wife $2,742 a
month since 2006 came in late in November 2008
wanting an alimony reduction because he had lost his
job, he also argued that even more reduction was
justified because wife was now getting Social
Security. The trial judge found his unemployment
involuntary and lowered his obligation to $1,951 a
month, but held that wife’s increased income from
Social Security payments shouldn’t offset his alimony
liability at all. In an unpublished opinion, Blair v.
Blair, 25 VLW 932 (1/11/11), the Court of Appeals
affirmed. The Court of Appeals couldn’t say much
about the husband’s argument that there was nothing
in the separation agreement about future Social
Security payments and no testimony or other evidence
about their intentions back at that time. But, the Court
of Appeals holds, it was up to him to adduce evidence
of whether Social Security payment receipt was
reasonably contemplated by the parties at the time of
the agreement’s execution. Now in this case, husband
had obviously established a change of circumstances
— even to the satisfaction of the trial judge — to get
his support-reduction case into court. And you might
think that once that had happened, the court should
back off and start anew by looking at wife’s actual
current income at the time of hearing, just as it does at
the husband’s. But when you look at the actual
agreement that was controlling this thing you see that
it may come down to a decision on what the word
“for” means: does “except for” mean “excepting,” or
does it mean “except for-the-purpose-of?” There
apparently would also have been a chance of throwing
out the claim for further reduction simply because the
husband came into court too soon. The agreement
said that “such amount shall be non-modifiable for
three years, except for an involuntary loss of
husband’s employment income. In the event of any
dispute regarding modification of spousal support, all
sources of income of each party shall be considered in
such litigation … .” (The agreement was in April
2006 and he sued in November 2008.) But the trial
court didn’t go off on either of these alternative paths,
but held that there couldn’t be any Social Security
offset because it would have been “anticipated.” And
in fact, husband’s counsel apparently made the
mistake of saying on the record, when directly asked
by the trial judge, “one would expect that.” In his
letter ruling, the trial judge had said yet a different
thing: that he had in fact considered wife’s Social
Security payments, but declined further support
reduction anyway, and that that was not only because
it had been reasonably anticipated, but for other
reasons also, such as the fact that husband had
voluntarily decided not to seek less stressful new
employment, and not to retire so that he would be
getting pension benefits. That would have made it all
the more inequitable at that time to give him a further
reduction, the trial judge had said. He also studied the
fact that husband had not applied for Social Security
benefits himself, nor appealed his denial of short-term
disability from the Navy. In view of all of these
factors the Court of Appeals could hardly reverse such
a well considered and thoroughly papered decision.
Wife had moved for fees, but the Court of Appeals
declined, since neither party’s position on the
appellate issues had been unreasonable. Near the end
of its opinion, the Court of Appeals quotes §20109(B) to the effect that a court can modify alimony
upon finding “a material change in the circumstances
of the parties, not reasonably in the contemplation of
the parties when the award was made.” If the Court
had considered itself in separation agreement cases to
be thrown back entirely upon the contractual
language, it might have been bound by the wording of
this agreement, which, after disposing of all of the
three-year limitation, said simply that “the spousal
support set forth herein shall be modifiable upon a
substantial change of circumstances.”
AGREEMENTS — ANTENUPTIAL CONTRACTS
— VALIDITY — ATTACK BY FOREIGN-BORN
SPOUSE. Beginning to let these matters get mighty
complicated, the Virginia Court of Appeals made
some very precise distinctions and rulings for the first
time when it reviewed Chaplain v. Chaplain, the case
of a complaining wife originally from Morocco trying
to overturn her pre-nuptial agreement. After that
remand, with all sorts of directions for the trial judge
to examine certain issues, or examine them in a
different way, it now had to hear a second appeal by
this wife because she was even more unlucky when
the judge below did a very patient and very thorough
22
job with all the requisite determinations and ultimately
held the agreement valid. The Court of Appeals now
does the same kind of scrupulously objective job with
great thoroughness in Chaplain v. Chaplain II,
unpublished, 25 VLW 931 (1/18/11), reviewing
every possible issue, one by one. You may remember
that the wife said her English wasn’t very good, so
that merely finding that the husband was honest and
open about everything at the time of marriage, the trial
court could justifiably find that she married him in
order to get his money and U.S. citizenship and had
actually let it be known that she planned to lie about
her understanding of what was going on at the time of
the agreement if there should ever be a divorce. The
Court of Appeals had ruled last time that husband did
not make sufficient disclosure of his property holdings
and wife had not waived her statutory right to
disclosure before signing. And the Court of Appeals
now says that the decision below sustaining the
agreement would in fact be wrong if the evidence had
proved either that the agreement was unconscionable
at the time or that it was not fully voluntary. In this
framework the Court of Appeals reviews the evidence
in great detail. It finds that this wife spoke and
understood English quite well back then, and it gives
fully detailed findings as to why, so that lawyers
taking on such a dispute in future cases might use
these indices as a checklist. Before the marriage she
read newspapers and menus in English, wrote
business letters in English for husband, and was able
to converse without a translator, dictionary or phrase
book on some complicated subjects. The evidence
also established that she had said that if there should
ever be a divorce she would lie about all this, and the
evidence also supported the finding that she had not
proved any kind of physical or mental limitations or
any financial oppression brought to bear so that the
contract would be unconscionable.
All the
circumstances of her meeting up with her future
husband during a vacation trip from Morocco here are
reviewed, as is wife’s 15 or more years’ office
experience in Morocco before that, her college
education, and her preparation of business letters and
other business documents in English once here. It was
proved that she had the intellectual capacity to
understand what the agreement would mean and she
never proved at trial that she didn’t have at the time of
the agreement the ability to support herself either over
here or over there. The Court found no evidence of
bad faith, concealment, misrepresentation, undue
advantage or bullying on the husband’s part. And
even though he did not completely disclose his
financial condition, that alone is not enough to prove
any of those necessary elements. The evidence proves
she knew exactly what was in the agreement before
signing, and had plenty of chance to consult with
independent legal counsel if she had wanted. Nor was
there any evidence of gross disparity in assets. In fact,
the agreement said that the parties would keep their
separate assets in the event of a future divorce as
separate property. At this point the Court of Appeals
says that even if the evidence below had proved a
gross disparity of assets, that would not have made it
unconscionable nor have established oppression or
overreaching. The trial court’s finding that wife
signed the agreement voluntarily was also well
supported by the evidence, and hence the Court of
Appeals affirmed.
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