Articles Posted in Family Law

A woman recently appealed a circuit court’s final order of the adoption of her biological daughter to the minor child’s long-term foster parents. The Virginia family court case began when the Department of Social Services (DSS) became involved after the woman was arrested for driving under the influence and possession of drug paraphernalia. Over the course of seven years, the mother would frequently leave the child in the couple’s care. As such, the foster parents maintained a “very close” relationship with the girl. At one point, the juvenile and domestic relations (JDR) court issued an order granting legal custody of the child to the foster parents.

Between 2017 and 2019, the mother had little contact with the child and did not see her for about 11 months. The foster parents expressed their desire to adopt the child; however, the mother would not consent. The mother conceded that she was absent but refused the adoption, arguing that she wanted additional time to prove her capability. At the adoption hearing, the couple argued that the mother’s consent was unnecessary under Virginia Code § 63.2-1202(H). They further argued that the mother was withholding consent contrary to the child’s best interest. At the hearing, the mother argued that the court erred in taking jurisdiction because the JDR did not remove legal custody or terminate her parental rights. She contends that because the JDR court entered the last custody order, they maintained jurisdiction over the case.

According to the law, a parent’s interest in the care, custody and control of their children is a fundamental liberty interest. As such, biological parents may initiate adoption proceedings in a JDR court as long as one parent consents. Here, contrary to the mother’s assertions, this case was not a parental placement. Instead, the parties testified that the child was placed with the couple so that the girl would be kept out of the foster care system. The court found that the JDR did not have jurisdiction because this was not a case of parental placement, and neither parent consented to the adoption. Ultimately, under the law, the adoption must commence in the proper venue, in this case, the circuit court. For these reasons, the appeals court ultimately affirmed the circuit court’s ruling in the adoption proceedings.

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A Virginia appellate court recently addressed a wife’s appeal from a final divorce decree. Amongst several issues, the wife argued that the circuit court erred by denying her continuance request. According to the record, the couple married in 2008 and began separation and divorce proceedings in 2018. Following several hearings, the parties entered into a separation agreement in 2020. The separation agreement was limited to equitable distribution matters, and the remaining issues were slated for a hearing in March 2020. However, because of the pandemic, the hearing was moved to August 2020.

On the day of the hearing, the wife contacted the clerk explaining that she had a fever and possible COVID-19 contact. The court failed to provide the woman guidance, and the woman did not appear at the hearing. As such, the court decided the case solely on the husband’s evidence. The wife objected to the final decree; however, the court denied the motion.

The wife argues that the lower court abused its discretion by failing to grant her a continuance or provide alternative arrangements to participate in the hearing. Virginia’s rule governing continuance provides that a court abuses its discretion “when a relevant factor that should have been given significant weight is not considered” and when the court considers an irrelevant factor, and when all proper factors are considered, but the court “commits a clear error of judgment.”

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The state appeals court recently issued a decision in a divorce case involving a motion to amend spousal support. The parties’ divorce decree was entered in July 2019, and neither party appealed. During this time, the husband was president and sole employee of a home building company. The wife filed a petition arguing that the husband did not pay spousal support on time; in response, the husband moved to reduce spousal support. During proceedings, the husband conceded that his business received COVID-19 relief, and he failed to show evidence that he was pursuing additional work. However, he argued that his failure to pay was not due to willfulness but rather his inability to pay. Amongst other findings, the court found in favor of the wife and ordered the husband to pay support to cover the arrearage. The husband appealed several findings, including the trial court’s failure to reduce spousal support.

Under Virginia law, upon petition, a court may increase, decrease, or terminate spousal support and maintenance. The party moving for the change must establish a “material change in circumstances” that “warrants a modification of support.” The material change must involve the dependent spouse’s financial needs or the ability of the supporting spouse to pay. Trial courts maintain broad discretion in determining whether a material change warrants a modification. Further, appellate courts must afford the trial court with deference when reviewing these matters.

In this case, the court determined that while there was a material change in circumstances, the husband failed to prove that the change warranted a reduction. Although the husband showed that COVID-19 brought slowdowns in the home building industry, he failed to disclose his finances fully. Further, the husband failed to meet his burden to seek other employment because he did not seek or apply for any other job. In this case, it was not the wife’s burden to establish a need for support, and instead, it was the husband’s burden to show that the wife’s need for support changed. Ultimately, the appellate court found that the trial court evaluated the parties’ circumstances and did not err in their decision to deny the husband’s motion to reduce spousal support.

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