Family Law Commons^™

Guardianship Laws: Reform Efforts In Virginia, Harriette Haile Shivers

University of Richmond Law Review

During the decade following 1978, six statewide initiatives addressed the need for reform in the Virginia guardianship system. In 1988, the General Assembly established a joint subcommittee to evaluate the status of guardianship in the Commonwealth and to make recommendations to enhance the existing program to ensure the protection of citizens who entrust their lives and property to the guardianship system. Additionally, prompted by the urgent need for a public response to the shortage of available guardians, the General Assembly directed the Department of Social Services to examine the possibility of reserving public guardianship for use only as a last …

Divorce Denied: Have Mental Cruelty, Constructive Desertion And Reasonable Apprehension Of Bodily Harm Been Abolished In Virginia?, Sylvia Clute

University of Richmond Law Review

In a turmoil of emotional distress and in fear of the outcome of an already deteriorating pregnancy, she fled the marital home with only her small son and a suitcase full of clothes. This woman's husband had publicly and privately bullied, berated, belittled and browbeat her throughout their marriage, but since she became pregnant she feared that his campaign to keep her in a constant state of emotional disequilibrium would also harm the child she carried. Her husband controlled her by keeping a tight grasp on the family finances providing her with meager spending money and forcing her to produce …

Redressing Wrongs Of The Blamelessly Ignorant Survivor Of Incest, Camille W. Cook, Pamela Kirkwood Millsaps

University of Richmond Law Review

Until recently, our society has refused to acknowledge and recognize the widespread incidence of incest. Childhood sexual abuse, especially incestuous abuse, has reached unconscionable proportions. A representative study by Dr. Diana E. H. Russell determined that as many as thirty-eight percent of the female population have experienced sexual molestation by the age of eighteen years. Formerly, psychiatrists, psychologists, therapists, and other investigators who did discover the severe effects of childhood incestuous abuse on adult women reacted by suppressing and denying their findings.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

The Uniform Custodial Trust Act: An Alternative To Adult Guardianship, Louis A. Mezzullo, Michael C. Roach

University of Richmond Law Review

The problems associated with court appointed guardianship are axiomatic. The public nature of the court proceeding required for appointment of a guardian is of concern to many families who become involved in the process. The expense and delay associated with the original hearing, as well as subsequent hearings that may be necessary in the operation of the guardianship, are also a great disadvantage of guardianship. As a means of managing property, guardianship is cumbersome, expensive and inflexible. Recently, stories of the expense and potential abuse of guardianship for adults have found their way into the popular press. While most people …

Annual Survey Of Virginia Law: Domestic Relations, Lawrence D. Diehl

University of Richmond Law Review

In 1989, the Virginia General Assembly enacted significant legislation authorizing the creation of an experimental family court. The experimental program is an attempt to examine the unification of the circuit court and the juvenile and domestic relations district court's jurisdiction of divorce cases. The program's goals include the elimination of duplicate hearings, the savings of client costs, and the elimination of de novo appeals.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Facilitative Ethics In Divorce Mediation: A Law And Process Approach, Steven H. Hobbs

University of Richmond Law Review

Mediation is becoming a vital part of family legal problem solving and is creating new challenges for the lawyer practicing in the family law setting. The American Bar Association, the Association of Family and Conciliation Courts and others recently have proposed standards of behavior for mediators where none have existed before. States also have attempted to define the appropriate realm of ethical practice for family mediation.

Annual Survey Of Virginia Law: Domestic Relations, Donald K. Butler

University of Richmond Law Review

In 1988, the Virginia General Assembly made two significant changes with respect to child support awards. First, the authority of the court has been extended so that the court may order support for a child over the age of eighteen who is still attending high school. In order to award support for a child who is no longer a minor, the child must be "(i) a full-time high school senior, (ii) not self-supporting and (iii) living in the home of the parent seeking or receiving child support, until the child reaches the age of nineteen or graduates from high school, …

Annual Survey Of Virginia Law: Domestic Relations, Peter N. Swisher

University of Richmond Law Review

The Virginia Premarital Agreement Act applies to any premarital agreement executed on or after July 1, 1986. The Act basically allows the parties prior to marriage to contract regarding: (1) the right to manage and control property, whenever and wherever acquired or located; (2) the disposition of property upon separation, marital dissolution, divorce, death, or the occurrence or nonoccurrence of any other event; (3) spousal support; (4) the making of a will, trust, or other agreement; (5) life insurance ownership rights; (6) the choice of law governing the agreement; and (7) "any other matter, including their personal rights and obligations, …

Virginia Domestic Relations Handbook And Virginia Domestic Relations Case Finder, Matthew N. Ott

University of Richmond Law Review

The Michie Company has released two publications dealing with the changing area of domestic relations law and which provide the busy Virginia practitioner with easy access to the areas within the field of family law practice and the relevant case authorities.

Annual Survey Of Virginia Law: Domestic Relations, Peter N. Swisher

University of Richmond Law Review

The Virginia Premarital Agreement Act was reenacted during the 1986 legislative session of the Virginia General Assembly and became law effective July 1, 1986.

Casting Stones: The Role Of Fault In Virginia Divorce Proceedings, Donald K. Butler, Marilyn D. Russell

University of Richmond Law Review

The national trend is toward eliminating fault as a factor in many aspects of divorce, and in some states it plays virtually no role at all. However, Virginia is among those few remaining states where fault is potentially involved in every aspect of a divorce case.

Annual Survey Of Virginia Law: Domestic Relations, Peter N. Swisher, Victoria Bucur

University of Richmond Law Review

Premarital agreements, or antenuptial contracts, are generally favored by the law when prospective spouses privately contract to vary, limit, or relinquish certain rights which they would otherwise acquire in each other's property, or in each other's estate, by reason of their impending marriage. Traditionally, premarital agreements were made by widows, widowers, or divorced older people, who wished to retain control of property acquired in a prior marriage and, upon death, pass such property on to the children of that prior marriage.

The New Doctrine Of Necessaries In Virginia, Mark S. Brennan

University of Richmond Law Review

Under the traditional common law doctrine of necessaries, a husband has the duty to support his wife and is responsible for the cost of necessary goods and services furnished to his wife by third parties if he has failed to provide the necessaries himself. However, the recent influx of women into the marketplace and the United States Supreme Court's decisions on gender discrimination have caused a significant number of courts and state legislatures to modify the doctrine or abolish it altogether.

The Search For Guidance In Determining The Best Interests Of The Child At Divorce: Reconciling The Primary Caretaker And Joint Custody Preferences, Robert F. Cochran Jr.

University of Richmond Law Review

United States courts have generally stated that their primary concern in child custody cases is the interests of the child. Many different rules have been established in the name of the interests of the child. During the nineteenth century, courts in this country were split over whether the mother or the father generally would be the better custodian for the child, with some courts recognizing a preference for the father and others, a preference for the mother. Most states eventually adopted a preference for the mother in custody cases involving children "of tender years." During the 1970's, many states rejected …

The Effect Of The Tax Reform Act Of 1984 On Alimony And Transfers Of Property Incident To Divorce, J. Thomas O'Brien Jr.

University of Richmond Law Review

The Tax Reform Act of 1984 made substantial changes affecting the tax consequences of divorce. This comment will focus on the changes made in the tax treatment of transfers of property incident to divorce, in the definitional requirements of alimony and separate maintenance, and on the changes affecting "alimony" trusts and other forms of property. It will then analyze these changes by contrasting them, in light of congressional intent, with their pre-Tax Act development and treatment and attempt to draw some conclusions with respect to their effectiveness. Other changes affecting domestic relations are not within the scope of this comment.

Drafting Cohabitation, Antenuptial, And Reconciliation Agreements, Peter N. Swisher

Law Faculty Publications

No abstract provided.

Valuation Of Spousal Interest In A Professional Practice For Equitable Distribution: Hirschfeld V. Hirschfeld, David W. Hagy

University of Richmond Law Review

The New York court in Hirschfeld v. Hirschfeld held that under the state's equitable distribution statute a husband's interest in his law prac- tice constitutes marital property subject to equitable division upon divorce. The court noted the lack of a valuation standard in both the statute and the state case law and applied an Internal Revenue Service formula to calculate the amount of goodwill in the law practice. The court divided that amount equally and awarded the wife $6,900, over three years, as her share of the husband's net income from his law practice.

Enforcement Of Judgments And Liens In Virginia, Federal Regulation Of Family Law, J. Stephen Proffitt Iii, Peter N. Swisher

University of Richmond Law Review

Collection practice has undergone a major transition over the past fifteen years. Once the ignored bastard by the mainstream of the bar, collection practice has survived and matured into a serious endeavor for a growing body of lawyers. Several reasons underlie this change. First, as society has become more transient and business relationships increasingly impersonal, businessmen and professionals have had to intensify collection efforts to maintain profit levels. Since legislation and supplementary case decisions have made debtor-creditor law a complex field, lawyers are frequently called upon to do collection work because of their expertise in using sophisticated legal procedures. Second, …

Allocating The Fruits Of A Marriage: A Look At Virginia's New Domestic Relations Statute, Torrence M. Hinnant

University of Richmond Law Review

Divorce is on the rise. The social, emotional, and economic partnership that constitutes the foundation of the family is succumbing to both external and internal pressures, resulting in an alarming rate of divorce, an event which has significant consequences for the involved spouses and children.

Spouse Abuse: Proposal For A New Rule Of Thumb, Cheryl A. Wilkerson

University of Richmond Law Review

Since the mid-1970's, the nation has been giving increased attention to the problem of spouse abuse. This increased attention arose a decade after the nation became acutely aware that child abuse was a problem in this country. Heightened awareness of the fact that violence occurs between family members was accompanied by recognition that available legal remedies were inadequate. The remedies available to the abused spouse in most states other than Virginia include not only prosecution through the criminal justice system but also civil protective orders which may be obtained by victims either as an alternative to or in conjunction with …

Foreign Migratory Divorces: A Reappraisal, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is to review and reappraise the important legal principles involved in foreign country migratory divorces; to discuss the various public policy rationales behind them; and to suggest possible remedies to alleviate much of this ambiguity and confusion.

In undertaking this evaluation, the author is mindful of dual responsibilities-that divorce law in this area should be predictable and uniform in order to maintain the authority of legal precedent; but at the same time it must attempt to approximate, as closely as possible, the clearly demonstrated needs of society.

Babies Behind Bars: Should Incarcerated Mothers Be Allowed To Keep Their Newborns With Them In Prison?, Donna L. Brodie

University of Richmond Law Review

Society's traditional approach to women offenders has been focused on "women as prisoners and not.., prisoners as women." Harsh implications for female offenders who are mothers can result from the view that incarceration not only curtails the prisoner's freedom of movement but also terminates many of the individual's civil rights as well. In reality, these women are doubly penalized with a prison sentence as well as temporary or permanent loss of their parental rights. Modern courts are beginning to recognize that "[a] prisoner retains all of the rights of an ordinary citizen except those expressly, or by necessary implication, taken …

Modification Of An Out Of State Child Custody Decree Under The Uniform Child Custody Jurisdiction Act And The Parental Kidnapping Prevention Act, Arlin F. Ruby

University of Richmond Law Review

Jurisdiction of child custody matters in Virginia is affected by both the Uniform Child Custody Jurisdiction Act (UCCJA) as adopted in Virginia and the federally enacted Parental Kidnapping Prevention Act of 1980 (PKPA). This article analyzes the jurisdictional requirements under both Acts, discusses the interrelationship between the two and suggests a five step analysis by which a Virginia court may determine its jurisdiction in light of this authority.

Virginia Laws Affecting Churches - Restated, J. Rodney Johnson

University of Richmond Law Review

Twenty-five years ago, the late William T. Muse, then Dean of the University of Richmond School of Law, observed that although there was considerable law in Virginia relating to churches this law was widely scattered throughout the statutes and the cases. To remedy this state of affairs, Dean Muse wrote a concise but complete summary of these laws. In the quarter-century that has elapsed since Dean Muse's article was published, Virginia has adopted a new constitution, many church-related statutes have been enacted and a number of church-related cases have been decided, some of which have refined established principles and others …

Surrogate Mother Agreements: Contemporary Legal Aspects Of A Biblical Notion, Margaret D. Townsend

University of Richmond Law Review

After centuries of silence, modern man again harkens the voice of Sa-ah. With the decline in the number of children available for adoption and the apparent rise in infertility in this country over the past three decades, individuals unable to bear children are seeking alternative methods for becoming parents. Surrogate motherhood is one solution to the age old problem of childless families. A surrogate mother is a woman, married or unmarried, who agrees to have a child for a person who is incapable of giving birth. While the more common utilization of a surrogate occurs in situations where the wife …

Termination Of Indigents' Parental Rights After Lassiter:Ignoring Complexity And Protecting The Best Interests Of Psychological Parents, Roy M. Sobelson

University of Richmond Law Review

Of all the civil remedies a state may utilize against its citizens, perhaps the most severe is the termination of one's parental rights. Having been described as a "tearing of the flesh," it clearly represents one of our system's most egregious infringements on the fundamental rights associated with the raising of one's family. While little uniformity exists among the states in terms of grounds for termination, procedures, courts utilized, terminology, and standards of proof required at trial or on appeal, all states have some form of termination remedy available. Most terminations, whether made in conjunction with prospective adoptions or independent …

Doe V. Doe: Destroying The Presumption That Homosexual Parents Are Unfit- The New Burden Of Proof, Gary L. Caldwell

University of Richmond Law Review

In a recent decision concerning adoption, the Virginia Supreme Court declined "to hold that every lesbian mother or homosexual father is per se an unfit parent." This finding was apparently at odds with Virginia statutes outlawing marriages between members of the same sex and making it a criminal offense to engage in a homosexual relationship. In rejecting the trial court's use of a conclusive legal presumption that homosexuality is tantamount to a parent's unfitness, the justices closely examined the effects of the appellant's lesbianism upon her son to "determine whether the consequences of harm to the child of allowing the …

The Psychotherapist-Patient Privilege In Child Placement: A Relevancy Analysis, Thomas F. Guernsey

Law Faculty Publications

In any child placement decision, the predominant consideration is the welfare of the child. Accordingly, the most widely used test in determining child custody is clearly the "best interests of the child" standard. Despite its relatively old vintage, the standard continues to represent a nebulous concept that courts have rarely been able to define with precision. Because of its open-ended nature, the best interests of the child standard makes relevant a wide range of evidence pertaining to the fitness of the parents and the environment in which the child will be raised. it is in determining these facts that child …