VOLUME 27, NUMBER 2 Summer 2007

Chairman's Message 1

Editor’s Message 2

The New 2007 Adoption Laws 3 By Stanton Phillips Excerpts from Family Manifesto: What Went Wrong with the Moral Basis for the Family and How to Restore It 5 By Lynne Marie Kohm Lifetime Achievement Award and the New Family Law Service Award 10 Family Law Section Survey Results 15 News Notes 16

Quilp’s Notes 17

Notes on Recent Appellate Cases 18

Legal Quotation of the Quarter 21

Submitting Articles and News 22

Board of Governors Roster 23

Editor: Richard E. Crouch Assistant Editor: John Crouch

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CHAIRMAN’S MESSAGE Time flies when you are having fun, and especially when you are busy, too. As my time as chair is coming to a close, here are some of the Board’s accomplishments over the past year:

1. Conducted a survey of the section members to ensure the Board’s responsiveness to the section’s needs.

2. Created the Family Law Service Award to honor the recipient’s contributions

to Family Law in Virginia.

3. Sponsored the February issue of The Virginia Lawyer.

4. Sponsored the 23rd annual Advanced Family Law Seminar, Using Experts Effectively in Your Family Law Case.

This was all in addition to publishing The Family Law News, updating Family Law pamphlets available through the Bar and modernizing the section’s website. I am grateful for the hard work of everyone on the Board, and to Madonna Dersch, our Bar liason. Life is a series of hellos and good-byes. Cheshire Eveleigh, Kenny Murov and Cheryl Smith have finished their terms of the Board. I thank them for their tremendous efforts over the years. I will miss them. Finally, I want to let you all know what a privilege it has been to be chair. All section members should know how hard the Board works to maintain the Family Law Section’s status as one of the Bar’s best sections. This is your section. Please contribute to it by writing articles, attending seminars and using the other resources which the section provides. A safe and happy summer to all.

Brian M. Hirsch Chair

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EDITOR'S MESSAGE

Elsewhere in this Issue you will see a member survey comparing two of the means the Section uses to communicate with its membership. It’s kind of funny, but if the Newsletter and the Web Site were competitors, which God knows they are not, it wouldn’t be hard to see which one is beating the pants off the other. Obviously, our membership needs both, and both should be fully exploited. Our members need to begin looking at the Web Site, and the Web Site should do whatever it takes – well, almost whatever – to attract them.

Obviously, if you believe this survey, this old newsletter does not need to attract readers. But it should be clear to one and all, with or without surveys, that it needs to attract writers. Overwhelming readership satisfaction notwithstanding, the survey does have a few suggestions. As to some items we here at the editor shop have to say “Well, we always knew there had to be one reader somewhere who thought that way, but we can’t fix something that ain’t broke for the sake of one statistically insignificant opinion.” The most incredible suggestion of all, to which the standard 21st-Century answer is something approximating “Like, duh...,” goes something like “Gee, you ought to try to encourage/attract contributors.” Well, if about 99+% of the membership reads the newsletter, suggestions like that must come from the less than 1% who don’t.

Readers, be advised and take note. There is a box in every issue that tries hard to encourage contributions. It also sets forth the deadlines and other editorial requirements, and gives the editor’s address. It is your Newsletter, we don’t like writing it ourselves, and it does seek content.

Rest assured, however, that FLN will redouble its effort to flog the bushes for members who can be bribed or cajoled to write articles. All the covers will be drawn, the earths stopped, the terriers put down, and the contributors will eventually be smoked out. Meanwhile, if you don’t want to hunker in your den and wait for us to come and get you, and would rather take the initiative and come to us, please do so.

Meanwhile, FLN has the pleasant duty of announcing awards: the Family Law Lifetime Achievement Award to Phil Schwartz of Vienna, and the Family Law Service Award to Mary Commander of Norfolk. The presentation speeches were very fine, but more detail is provided in the actual nomination letters, reproduced below.

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THE NEW 2007 ADOPTION LAWS

By Stanton Phillips, Tysons Corner

VIRGINIA’S PUTATIVE FATHER REGISTRY

The biggest change to Virginia’s adoption laws for 2007 is the implementation of a Putative Father Registry. A Putative Father Registry is a state database whereby a birth father not married to the birth mother can sign up and be entitled to notice in an adoption proceeding. If the birth father signs up, he is then entitled to the same rights as married birth fathers, unmarried birth fathers whose parental rights have been adjudicated, and those who have acknowledged paternity by affidavit. Virginia joins about two thirds of the states which have enacted some form of Putative Father Registries. It originated in New York and was found constitutional by the U.S. Supreme Court in Lehr v. Robinson, 463 U.S. 248 (1983). Many states began enacting this procedure sometime after the infamous Baby Jessica case in 1994. The birth father protects his rights by mailing a simple postcard-type form to the Department of Social Services. Virginia’s statutory scheme provides that if his address is reasonably ascertainable, then counsel or the agency will notify him by certified mail of the existence and availability of the registry. The Putative Father Registry shifts the burden from having to track down a non-interested birth father to requiring him to come forward and express an interest. Sexual intercourse is deemed to be legal notice that a child may be conceived. The registry also protects the interested birth father by providing him with an opportunity to register his

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interest and receive notice. This protects the interested birth father by providing him with a procedure in the event the birth mother lies or fails to disclose his identity or whereabouts. The Putative Father Registry statutes are found at Virginia Code §63.2-1249 et. seq. They were enacted in 2006 with a delayed effective date, and are unchanged since the publication in the 2006 Cumulative Supplement. New statutes enacted in 2007 clean up language found elsewhere in the Adoption Code. The Putative Father Registry is funded by a $50.00 increase to the standard adoption filing fee ($84.00 instead of $34.00) in all cases except certain international adoptions and re-adoptions.

OTHER 2007 ADOPTION

LAW CHANGES

• Concerning when a birth parent entrusts a child to an adoption agency and then legally revokes within the allowable time, the law was amended from requiring mandatory police and child abuse checks before returning the child to allowing those checks to be at the discretion of the agency.

• The Court may now waive a procedural requirement for one spouse if the other

adoptive parent meets the criteria. This change was envisioned to cover such cases as where a close relative meets a required time limit but has married and the spouse does not.

• In international adoptions, the statute was amended to make it clear that a court may

accept the foreign adoption decree without further notice or consent of the birth parents when the child was brought into the United States on an adoption visa approved by C.I.S. (the new name for the INS).

• If a birth parent does not have proper legal identification, she can execute a self-

authenticating affidavit to prove her identity. This resolves a recurring problem faced by adoption agencies where a birth mother is attempting to place her child with the agency at the hospital but did not bring proper identification to the hospital.

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• In cases where an Interlocutory Order of Adoption has been entered, the twenty-one day Commissioner review period before a Final Order of Adoption can be entered after the agency mails its Report of Visitation has now been eliminated.

• Most provisions allowing the taking of a

consent to adoption out-of-court in parental placement adoptions that apply to non-married birth fathers have been expanded to include married birth fathers.

• For good cause shown, the court may

dispense with birth-father information in a Report of Home Study. Additionally, the Report of Investigation must include a statement that all reasonably ascertainable psychological, medical and background information on the child has been provided to the adoptive parents and a list of documents has been provided.

• In interstate adoptive placements, all matters relating to the adoption of the child,

including custody and parentage, must be resolved in the state that had been approved for finalization when the approval was granted by both states’ Departments of Social Services for the interstate transfer of the child.

• In parental placement adoption, the required simultaneous or joint counseling session

between the birth mother and adoptive parents is now optional.

Excerpts from Family Manifesto: What Went Wrong with the Moral Basis for the Family and How to Restore It

By Lynne Marie Kohm, Virginia Beach

Copyright William S. Hein Co. Used By Permission.

Individualism “Circumscribes the Family Unit”

Rising individualism has increased legal and state interference in the family, rather than reducing it. In the 1980s, Harvard Law Professor Mary Ann Glendon wrote The New Family and the New Property, regarding trends in the law “circumscribing the family unit” and “the law of companionate marriage.”1 Although marriage was the “central zone” of the

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modern family, Glendon described that the result of the new family was that marriage had become more fluid, more detachable and interchangeable in our culture. Indeed, the emergence of the individual fostered that trend. Professor Glendon described that particularly since the 1960s the law in many European countries had come increasingly to emphasize the individuality of the members of the conjugal family. And that emphasis facilitated their independence from the family, and from each other. Legal and symbolic rules for seeing marriage as a basic core of the family were “significantly affected by trends toward emphasizing the separateness and autonomy of individual spouses.”2 These dramatic changes in family form and function have not only altered family law but have altered family life. Many of these changes in family form have come from judicial decisions over the past one hundred or so years.

The vast majority of these trends in family law have come from case law, rules and regulations that have arisen out of judicial decisions (rendered by appointed judges), rather than from legislative regulations (law made by elected representatives). Judicial decisions in these cases are based on the judiciary intent of emphasizing the privacy and autonomy of the individual over the privacy and autonomy of the family. Individualism, the theory or doctrine in ethics and politics that stresses the supreme importance of the individual, has come to particularly pervade constitutional family law. This becomes obvious with a survey of the constitutional cases that have been decided over the last century.

Constitutionalization of Family Law

One of the most frequently cited cases on family and marriage’s importance came over 100 years ago in Maynard v. Hill. (125 U.S. 190)(1888). The language of the court’s opinion is inspiring.

Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.3

The posture of this language heralds marriage. Yet, this case was about a man who

had moved to the Northwest to settle a claim as a married man, having promised his wife and children back in Ohio that he would send for them as soon as he was settled. Instead, they neither heard from him, nor ever received support from him. Upon Maynard’s death, when his wife appeared to claim a share of his estate she learned that she was not in fact married to Maynard. He had obtained a divorce by an act of the Oregon legislature with no notice to her, his wife. Maynard then remarried, died, and, by statute, left all his worldly goods to his then current wife. This left his first wife and the children from that marriage penniless, both in life and in death. The Court in Maynard traced the power of the courts to dissolve marriage from the English Parliament, then ecclesiastical courts, then the legislature, upholding one man’s rights over those of his first family. Despite Mr. Maynard’s promise to care for his first family, the Court found no obligation on his part to do so because he had been duly divorced, even if they never received notice It is also interesting to note that the

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Court absolutely ignored the due process violation which arose from lack of notice to the first wife regarding the legal proceeding. Though noble in its language on marriage, Maynard was the inauguration of individualism and the rights of the individual over the family.

Constitutional family law cases through the 20th century demonstrate how individualism seized the family. Some of this individualism has been accomplished by the constitutionalization of family law. Marriage and family, however, are in fact extra-constitutional because marriage existed prior to the state. Even Aristotle in The Politics understood marriage as being prior to society and resulting in the foundation of society.4 Nevertheless, federal courts have been exercising power over marriage and the family.

This phenomenon of constitutionalization brought a shift from state to federal law, from legislatures to courts. Generally, family law is statutory, with rules defined and set out by elected legislators, as deemed appropriate for the welfare of the citizens of that state. State statutory regulations on marriage and family outline everything from the requirements for the entry into marriage, to rules for dividing property and caring for children upon divorce, to how and who may adopt a child. Inherent in individualism, however, became the idea that the state should not trample an individual’s autonomy. Like liberty, though initially a good legal concept, autonomy was twisted to serve the self-indulgent desires of individuals alone.

Parenthood and Building Children of Character

A major element of parenting focuses on what kind of children you raise. Parental input is the greatest factor in a child’s character. It requires your attention, your intention, and your measured response. And that attention can be focused on intentionally building your child’s character in the process. “The act of raising children – like all important human relationships – is a profoundly intimate one. …It is no mystery what small human beings need. … Common sense, compassion, and natural sensibilities should lead us to recognize that children are best cared for by available, attentive, sensitive, loving parents.”5

Character building in children requires deliberate thought and action. “Experts say that many of the most important elements in children’s lives – regular routines and domestic rituals, consistency, the sense that their parents know and care about them – are exactly what’s jettisoned when quality time substitutes for quantity time.”6 The paradigm imposed by a parent gives them their quality, or moral fiber. Furthermore, parents are the exemplar in the formation of a child’s character. Tried and true proven standards still work.7

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The most significant element in a child’s character may be self-discipline. Self-discipline is a result of a child understanding the concept of self control, and becoming self motivated as this concept is modeled by his or her parents.8 Self discipline does not happen by accident, and it does not happen overnight. A father of two makes it part of his daily routine to spend an hour each day in physical exercise to maintain a healthy body, heart and mind. When his children had watched him do this for years he started inviting them to join them, and now they do so on a daily basis. They are developing this habit of personal self discipline in their own lives now. This dad was very intentional about his desire to pass on a legacy that he believes he inherited from his family as a child. Established patterns in parents (for good or for ill) lead to established patterns in children. These children later become parents of the next generation, and they in turn transfer those patterns, and the cycle repeats itself, as chapter six will set forth more fully.

Consistent, loving, parental discipline lays the groundwork for a child’s development of self-discipline. In his book, Dare to Discipline, child therapist Dr. James Dobson challenges parents to lovingly discipline their children.9 A loving and secure environment must provide the context for any discipline a child experiences. Theologian Charles Swindoll, in his book The Strong Family outlines the differences between physical discipline that is constructive, and abuse which is destructive. Making clear the distinctions between crushing the spirit and shaping the will, and the differences between abuse and discipline, Swindoll details that discipline upholds dignity, while abuse is degrading and demoralizing. Abuse destroys self esteem, but loving discipline builds character, and lays a foundation as a child grows for self-discipline later in life10 Discipline is prompted by love and concern, but abuse results from hatred, creates terror, emotional damage and resentment of authority. Discipline strengthens self-esteem, creates an environment that builds and maintains responsibilities, and leads to the individual’s ability to discipline himself.11 This is character building.

Responsible parenting builds a child’s character naturally, and infiltrates a culture that is desperate for protective boundaries. Regaining the moral basis for the family happens when parents intentionally develop children of good and sound moral character. When it becomes evident that parents have failed at this task, the law steps in to re-order what’s gone wrong.

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Parenting Required by Law

Parental responsibility can be a controversial legal issue. Holding parents legally responsible for the behavior of their children is not a recent legal trend; however it has gained more notoriety since the 1999 Columbine school shootings. “Many state statutes specifically authorize civil damages against parents of kids who do them harm.”12 According to the U.S. Office of Juvenile Justice and Delinquency Prevention, at least 36 states have enacted some type of responsibility provisions for parents or guardians of delinquent children beyond civil liability. The punishments entailed in these provisions range from sanctions or imprisonment, to court-ordered treatment or mandatory attendance at juvenile court proceedings.13

California enacted its Street Terrorism and Prevention Act in 1988. The act fines and imprisons parents who fail to adequately supervise their children.14 Virginia, Florida, Idaho, Indiana, and North Carolina require parents to reimburse the state for expenses associated with detention, care, support or treatment incurred while children are under the state’s supervision.15 Several states such as Maryland, Oklahoma and Missouri require parents to make restitution payments to compensate victims when their children are not financially able.16 Illinois has a parental responsibility law “which is most often used to collect from parents whose offspring have caused damage, through carelessness or mischief.”17

When Kentucky teen Michael Carneal killed 3 and wounded 5, his parents were held liable in a civil trial for wrongful death in Silverton, Oregon in 1995. Such laws force parents to become involved in their children’s lives by holding the parents both civilly and criminally liable for their children’s behavior. “It’s interesting how having to pay up money is a powerful incentive for proper parenting.”18

There is no substitute for parenting supervision. “There is not one parent alive who has not failed to adequately supervise a child at some moment in time. But when parents do not hold themselves and their children accountable for their actions, they teach the children that there are no limits and no consequences.”19 In the context of today’s problems, parenting requires more than legal action stepping in when parents fail – it requires intentional parenting, moral realism, and faith. All of these factors are significant in the building of a child’s structured view of reality.

Intentional Parenting

The result of intentional parenting to build a child’s character is the development of wisdom and discernment for that child.

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1 MARY ANN GLENDON, THE NEW FAMILY AND THE NEW PROPERTY 28-38 (1981). 2 Id. at 245. 2 Maynard v. Hill, 125 U.S. 190 (1888).

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4 Aristotle, Politics (Oxford University Press 1946). 5 LAURA SCHLESSINGER, PARENTHOOD BY PROXY 88, 89, 100 (2000). 6 Laura Shapiro, Myth of Quality Time: Working parents spend too little time with their children, Newsweek, May 12, 1997. 7 See generally LINDA AND RICHARD EYRE, TEACHING YOUR CHILDREN VALUES (1993). 8 See e.g. TEDD TRIPP, Shepherding a Child’s Heart (Shepherd Press 2001); Gary Ezzo, ANNE MARIE EZZO, Growing Kids Gods Way: BIBLICAL ETHICS FOR PARENTING (4th ed)(Micah 6:8 Press 1998). 9 JAMES C. DOBSON, PH.D., DARE TO DISCIPLINE (Tyndale House 1970). 10 CHARLES SWINDOLL, THE STRONG FAMILY (Multnomah Press 1991). 11 Id. at 84. 12 Schlessinger, supra note i, at 242. 13 Id. 14 Id. 15 Id. 16 Street Terrorism and Prevention Act (1988). 17 Schlessinger, supra note i, at 242-244, citing a 1998 California publication. 18 Id., citing Seattle Post Intelligencer (March 4, 1997). 19Id. at 208.

Lifetime Achievement Award and the New Family Law Service Award

This year’s awards, noted above in the Chairman’s Message and the Editor’s

Message, will not be given at the Virginia Beach this year. The speeches that accompanied their presentation, at the Advance Family Law Seminar, in Richmond on April 27th, were memorable, but the merits of the recipients of the Family Law Lifetime Achievement Award, Phil Schwartz of Vienna, and of the Family Law Service Award, Mary Commander of Norfolk, are best set forth in the actual text of the nomination letters, which FLN was lucky enough to obtain, and which are reproduced here.

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FAMILY LAW SECTION SURVEY RESULTS

The Section’s Board of Governors has made a concerted effort to find out more about

the Section’s means of maintaining contact with its individual members. It commissioned a professionally conducted survey, the results of which have been tabulated here. We had 85 members respond. The majority of these member devoted at least 75% of their practice to

family law. Survey Questions Strongly

Agree Agree Neutral Disagree Strongly

Disagree The Family Law Section Website is easy to access?

1% 21% 68% 5% 5%

The Family Law Section Website is user-friendly?

0% 19% 72% 6% 3%

I find the newsletter articles and case law summaries beneficial to my practice?

34% 49% 15% 2% 0%

I am satisfied with the content and format of the newsletter?

29% 53% 11% 6% 1%

I would like to see the articles archived on the website?

41% 25% 32% 2% 0%

The topics and materials provided in the annual family law seminar and the advanced family law seminar are beneficial to my practice?

42% 42% 14% 1% 1%

I have no objection with the Family Law Section communicating to me occasionally through email?

41% 46% 8% 4% 1%

Survey Questions Always Frequently Sometimes Rarely Never I access the family law website?

0% 1% 19% 26% 54%

I read the Family Law Newsletter?

60% 31% 9% 0% 0%

I attend the Advanced Family Law Seminar?

32% 35% 18% 8% 7%

I attend the Annual Family Law Seminar?

27% 32% 30.5% 3.5% 7%

I use Family Law publications/videos in my practice?

5% 19% 28% 18% 29%

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NEWS NOTES

“FIRST NATIONAL FAMILY LAW

SYMPOSIUM” IN RICHMOND

The Richmond Law School and Virginia CLE have announced “State of the Family 2007" as the first of what is hoped to be a series of family law symposiums put on by the new National Center for Family Law which is located at the University of Richmond Law School. The dates are September 16-18, 2007 for the three-day program. The whole package costs $495.00 and it carries 15 Virginia MCLE credit hours with an hour of ethics credit. Your $495 also gets you dinner Sunday evening, lunches on Monday and Tuesday and a cocktail party/dinner on Monday night.

On the faculty, judges include Honorable Joanna Fitzpatrick of the Court of Appeals, Hon. Ann Holton, retired Chief Judge of the City of Richmond JDR Court, Hon. Burke McCahill of Loudoun County Circuit Court, and Hon. Leonard Edwards of the Santa Clara County Superior Court in California. Professors include Lynne Marie Kohm of Regent, Robert E. Emery, PhD, from the University of Virginia, Lynn Wardle of Brigham Young, Elizabeth S. Scott of Columbia and Stephanie Coontz of Evergreen State College. In addition to psychology professor Emery, psychologists include Marc Ackerman. The practicing lawyer on the program, lecturing on ethics, will be one of the most popular CLE

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lecturers for the AAML and the ABA Family Law Section, Catherine H. Petersen of Norman, Oklahoma. Topics include “Courting Disaster? The Historical Transformation of Marriage and Family,” as well as insights and judicial observations on custody issues, dispute resolution methods, same-sex marriages and civil unions, and cultural and religious roles in family law. Dr. Ackerman’s two topics are “Impact on Children of Various Family Constellations and Placement Schedules that Work,” and “Real Factors that Courts Use in Custody Cases.”

For further information call Virginia CLE at 800-979-8253. For internet registration it is www.vacle.org. For rooms available at special rates for this program call The Jefferson Hotel at 800-424-8014 or the Sheraton Richmond West at 800-325-3535. To write to Virginia CLE use P. O. Box 4468, Charlottesville, Virginia 22905.

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

“SWAPPING WIVES”

Two men and two women in Salisbury, Mass., not well mated in marriage, have exchanged partners by a mutual and harmonious agreement all round. They were respectively married at first in 1856 and 1862. Last year they all went before a lawyer and made and gave the new pledges and perfected the exchange. Since then both partnerships have been happy and harmonious. But a meddlesome community has just interfered and arrested all four, who, not able or willing to give sureties for appearance to court, are now in jail. The neighborhood could and did tolerate their matrimonial discords and contentions in a false union, for years. But their felicity, in the new and apparently real marriage, it could not endure. . . .

Story (including headline) by Parker Pillsbury in Susan B. Anthony and Elizabeth Cady Stanton’s newspaper, The Revolution, June 24, 1869.

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NOTES ON RECENT APPELLATE CASES APPEALS – EVIDENCE – STANDARD OF REVIEW – STANDARD OF PROOF – SUFFICIENCY OF EVIDENCE – MOTION TO STRIKE/APPEAL DISTINCTION. An opinion bristling with technical abstractions in the unsuccessful appeal of a family law case does not really make family law, but it does send a woeful message to appellants all across the spectrum. If they don’t do their homework, cudgel their brains, reflect, cogitate, and talk like a pettifogging casuist, they had better not attempt appellate litigation. It reinforces the received wisdom that the law is still a learned profession with extremely intelligent gatekeepers who know how to separate the wheat from the chaff, the sheep from the goats, and laid-back lawyers need not apply. In Klein v. Klein, 49 Va. App. 478, 642 S.E.2d 313 (3/27/07), the issue at trial was, originally, whether the husband was owed a management fee, payable by the wife, under the terms of their separation agreement. What was appealed was whether the trial judge should have granted a motion to strike that claim. The appeal was dismissed and remanded because the appellant husband’s “Question Presented” failed to preserve the issues of applicable standard and sufficiency of evidence. Well. Which? What? Truly there is a difference, the Court of Appeals patiently explains, between a trial court applying the wrong standard (what most of us call standard of proof) and the question of whether the evidence was sufficient (under that standard). When the appellant drafted his “Question Presented,” it was so worded as to concern sufficiency of the evidence and not what the standard is on a motion to strike. The argument in the brief concerned application of the evidentiary standard and not the sufficiency of the evidence. Thus the Question Presented, being on sufficiency of the evidence, did not preserve the appellant’s right to seek relief from the appellate court by arguing the application of the wrong motion-to-strike standard. That’s right, it was dismissed as a Rule 5A:20 case, one of a growing number of same. Clearly, the Court of Appeals, with its very full docket, hasn’t got time to fool with badly briefed cases, and it helpfully does take the time to explain these things in a brief but comprehensive opinion. The motion to strike at trial said that the husband had not given a basis for calculating the management fee he wanted. On appeal, he contended that that was

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error because his evidence had indeed been sufficient to calculate the fee, and that the trial court erred in limiting the testimony of his witness and in holding that the husband’s numbers were “highly questionable” and that he did not provide certain records to the wife, and because the trial court did not offer an explanation for its interpretation of another court’s order. When the husband got around to briefing this, he cited two cases as to the standard of review that an appellate court should apply to motions to strike. His argument was that the court applied the wrong standard in ruling on the motion to strike, and while he presented argument as to the allegedly wrong standard, he did not present any argument or authority on whether the evidence that he had presented at trial was sufficient. He also did not include in his Question Presented the issue of whether an incorrect standard of ruling on a motion to strike was applied. Got that? The husband argued on appeal that really, sufficiency of the evidence and standard of proof on a motion to strike are the same thing, or close enough to it that it doesn’t matter. No, the Court of Appeals says, “sufficiency of the evidence and the applicable standard for evaluating the evidence, while interrelated, are wholly separate concepts under our law.” A federal criminal case is cited. The standard for reviewing the evidence that was struck is of course whether the moving party made a prima facie case, and “sufficiency of the evidence refers to whether the evidence presented by a party meets this particular standard.” It is true, however, that “thus the standard of review on a motion to strike is the yardstick by which the sufficiency of the evidence is measured.” To sum up, “where, as here, husband alleges error in the trial court’s finding of sufficiency in his Question Presented, but argues only the trial court’s application of the incorrect standard by which to measure sufficiency on a motion to strike, husband has not preserved either argument for appeal.” As for the Rule 5A:20 point, if an issue “was not expressly stated” among the Questions Presented, the Court of Appeals won’t consider it. JUVENILE AND CIRCUIT – CONTINUED EXISTENCE OF JDR PENDENTE LITE SUPPORT ORDER – NONSUIT IN CIRCUIT COURT — THE RESULT OF DIVORCE NONSUIT – §20-79 CONSTRUED. The concurrent-jurisdiction overlap between juvenile and circuit courts is always good for tangled procedural situations and lengthy appellate-court analyses. In one of those cases in which the circuit court grants a divorce saying that it leaves the matters of child custody, child support and alimony alone so that the juvenile court can handle them, the Court of Appeals has a number of instructive things to say. In Ipsen v. Moxley, ___ Va. App. ___, ___ S.E.2d ___, 21 VLW 1392 (4/10/07), it was held that the support order from the juvenile court that was shoved aside when divorce proceedings were filed persisted. On this appeal the Court of Appeals held that the nonsuit of the divorce case “restores authority” to the JDR court support order that existed before the divorce case was filed. True, §20-79 says that district court jurisdiction ceases and a support order from the JDR court becomes “inoperative” when a circuit court enters its own pendente lite support order, but it does not end permanently, and can be revived by a nonsuit of the divorce proceedings. A voluntary nonsuit returns the parties to the status quo and operation of the support order is automatically resumed, by operation of law, when that happens. Before the husband’s nonsuit, the wife had obtained a circuit court pendente lite order, but that expired as being only temporary, and tied to the pendency of the underlying action. Nonsuits, under §8.01-380, leave the situation as if the suit had never been filed. The Court of Appeals has already ruled in prior cases that when a juvenile court loses jurisdiction to a circuit court under the concurrent jurisdiction statute, it gets it back again and the authority of prior lower-court orders is “resumed.” The entry of a district court order over support after the JDR

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court had already done one created only a “temporary suspension” of juvenile court jurisdiction over that matter. However, if the circuit court had in fact issued a permanent final support order, that would have killed off the juvenile court support order, the Court of Appeals explains. EVIDENCE – WITNESSES – CONSTITUTIONAL RIGHT TO CROSS-EXAMINE – VIOLATION BY TIME LIMITS – SEPARATION AGREEMENTS – APPEALS – WAIVER AND SAVING OF POINTS – EXCEPTION TO RULE REQUIRING PROFFERS. A case in which an expert witness testified as to the genuineness of a handwritten separation agreement that the wife offered in evidence gave rise to quite an important ruling on trial practice matters by the Court of Appeals. The wife had a handwriting expert to back up her document when she offered it as controlling in an equitable distribution trial, and the husband’s lawyer wanted to cross-examine that expert and another of wife’s witnesses. Whether this agreement had in fact been signed by the husband was, the Court of Appeals said, the single most relevant fact in dispute, and cross-examination is a fundamental right. Accordingly, the trial court abused its discretion by refusing to allow any cross-examination. Apparently the court did this as a matter of time limitations to allow an exceedingly short E.D. trial. The Court of Appeals seems to say at one point anyway -- that the husband was not deprived of a constitutional right, but that an error of this type can never be harmless as it was arbitrary limitation of the right to cross examine on a relevant matter. These are fundamental common law and statutory procedural rights basic to the adversary system, and for that reason the husband’s error was saved even though he did not make a proffer of the anticipated testimony, and it is not necessary to make a finding of prejudicial error. This was abuse of trial court discretion as a matter of law. Campbell v. Campbell, ___ Va. App. ___, ___ S.E.2d ___, 21 VLW 1393 (4/10/07).

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EVIDENCE – CRIMINAL ISSUES – EXPERT WITNESSES – LICENSED PROFESSIONAL COUNSELOR – PSYCHOLOGICAL DIAGNOSIS. The Fitzgerald v. Commonwealth case, at 48 Va. App. 271, 630 S.E.2d 337 (2006), was upheld on appeal by the Virginia Supreme Court at ___ Va. ___, ___ S.E.2d ___, 21 VLW 1147 (4/20/07). The Supreme Court agreed with the Court of Appeals that a “licensed professional counselor” testifying as an expert witness in a man’s criminal trial on §18.2-370.1 and §18.2-67.2, for taking indecent liberties while in a custodial relationship, can give a psychological diagnosis that a victim of child molesting is suffering from post-traumatic disorder. The objections that only a psychiatrist or psychologist can give such expert diagnoses about mental disorders in the DSM-IV was again rejected. PATERNITY AND CHILD SUPPORT LIABILITY – BEYOND THE GRAVE – EXHUMATION FOR DNA TESTING – ILLEGITIMATE CHILD’S RIGHT TO PROVE DESCENT FOR CLAIM AGAINST ESTATE. The Supreme Court admits that a 1997 statute, §32.1-286(C), was passed for the express purpose of reversing its holding in Garrett v. Majied, 252 Va. 46 (1996), that courts had no jurisdiction to order bodies dug up so an illegitimate child could prove paternity. Since the statute is there, it mandates exhumation when the illegitimate child or mother of same demands it. The trial court thought that it had discretion to deny such orders, but there is no such discretion in the statute. The petitioner is a “party attempting to prove” parentage for §64.1-5.1 and 5.2 inheritance purposes, that is all there is to it. Thus a woman who sued for exhumation of her supposed father’s body so as to seek a share of his estate had an absolute right to get that result. Martin v. Howard, ___ Va. ___, ___ S.E.2d ___, 21 VLW 1449 (4/20/07).

LEGAL QUOTATION OF THE QUARTER “The last quarter century has witnessed an astonishing rise in the amount of litigation … to which the legal profession has responded with all the imagination of a traffic engineer whose only answer to highway congestion is to build more highways, or of a political establishment whose only answer to increased demands for government services is to print more money.”

Judge Richard A. Posner, 1987

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HI SAILOR

HELLO HANDSOME

LOOKING FOR COMPANY? In case you hadn’t noticed, FLN IS SOLICITING. This Newsletter solicits contributions. YES! EDITORIAL CONTRIBUTIONS. ARTICLES. BY READERS LIKE YOURSELVES! No kidding.

SUBMITTING ARTICLES AND NEWS

Family Law News encourages Section members to submit articles, information of a newsworthy nature, etc. for this newsletter. Articles should be typed, double-spaced, and of a length comparable to what you have seen in this newsletter in the past. If you can, send a computer disc, which identifies the computer format and word processing program used. Save as WP 5.1 or MSW 5.0 if using more advanced versions. Contents should be sent to the Editor, Richard E. Crouch, 2101 Wilson Boulevard, Suite 950, Arlington, Virginia 22201

We print four newsletters per year. We have have to move up the deadlines for all issues so that the Summer issue can be distributed at the Annual Meeting. Until further notice the deadlines for submission of copy are as follows:

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Fall — August 10 | Winter — November 10 Please remember that contents should be submitted well before the deadline to allow time for our working with the author on any needed revisions. Articles which come in nearest the deadline are subject to more arbitrary editing, or run more chance of being overset to the next issue. The Editor also actively solicits comments from Section members on what they would like to see in the newsletter, would rather see less of, etc. Do not expect to see these comments in print, however, as we do not have a letters column.

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2006-2007 BOARD OF GOVERNORS VIRGINIA STATE BAR FAMILY LAW SECTION

Brian M. Hirsch, Chair 12110 Sunset Hills Road, Suite 401 Reston, Virginia 22090-3223 Craig E. White, Vice-Chair P.O. Box 678 Leesburg, Virginia 20178-0678 Andrea Rowse Stiles, Secretary 10900 Nuckols Road, Suite 200 Glen Allen, VA 23060 Cheshire I’Anson Eveleigh, Past Chair 1 Columbus Center, Suite 1100 Virginia Beach, Virginia 23462-6765 Mitchell D. Broudy Pembroke 5, Suite 218 Virginia Beach, Virginia 23462 Peter W. Buchbauer 12 North Braddock Street Winchester, Virginia 22601 The Hon. Jean H. Clements 209 Gibson St., NW, Ste. A Leesburg, Virginia 20176 Richard Crouch, Newsletter Editor 2101 Wilson Blvd., Suite 950 Arlington, Virginia 22201 Joyce Rene Sutton Hicks 1417 Brook Road Richmond, VA 23220 Professor Lynne M. Kohm 1000 Regent University Drive Virginia Beach, Virginia 23464

James W. Korman 2000 N. 14th St., Suite 100 Arlington, Virginia 22201

Kenneth B. Murov 716 J. Clyde Morris Blvd., Suite B Newport News, Virginia 23601 Frank Waters Rogers, III 1328 Third Street, SW Roanoke, VA 24009-2240 The Hon. Angela E. Roberts 1600 North Oliver Hill Way, Suite C181 Richmond, Virginia 23219-1214 Christopher William Schinstock 801 North Fairfax Street, Suite 404 Alexandria, VA 22313-1286 The Hon. Anne Bonwill Shockley 2425 Nimmo Pkwy., Bldg. 10, 4th Fl. Virginia Beach, Virginia 23456 Cheryl W. Smith 5440 Peters Creek Road, Suite 103 Roanoke, Virginia 24019-3863 Madonna G. Dersch VSB Staff Liaison 707 East Main Street, Suite 1500 Richmond, Virginia 23219

PLEASE NOTE:

Membership information for the Virginia State Bar Family Law Section, and any changes in your mailing address for the newsletter, should be directed to the Virginia State Bar, not to the Editor.

Virginia State Bar

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DISCLAIMER

Statements of opinion, comments, and everything that appears in these pages constitute self-expression of the Editor and contributors and cannot be attributed to the Family Law Section or the Virginia State Bar.

1 MARY ANN GLENDON, THE NEW FAMILY AND THE NEW PROPERTY 28-38 (1981). 2 Id. at 245. 3 Maynard v. Hill, 125 U.S. 190 (1888). 4 Aristotle, Politics (Oxford University Press 1946). 5 LAURA SCHLESSINGER, PARENTHOOD BY PROXY 88, 89, 100 (2000). 6 Laura Shapiro, Myth of Quality Time: Working parents spend too little time with their children, Newsweek, May 12, 1997. 7 See generally LINDA AND RICHARD EYRE, TEACHING YOUR CHILDREN VALUES (1993). 8 See e.g. TEDD TRIPP, Shepherding a Child’s Heart (Shepherd Press 2001); Gary Ezzo, ANNE MARIE EZZO, Growing Kids Gods Way: BIBLICAL ETHICS FOR PARENTING (4th ed)(Micah 6:8 Press 1998). 9 JAMES C. DOBSON, PH.D., DARE TO DISCIPLINE (Tyndale House 1970). 10 CHARLES SWINDOLL, THE STRONG FAMILY (Multnomah Press 1991). 11 Id. at 84. 12 Schlessinger, supra note i, at 242. 13 Id. 14 Id. 15 Id. 16 Street Terrorism and Prevention Act (1988). 17 Schlessinger, supra note i, at 242-244, citing a 1998 California publication. 18 Id., citing Seattle Post Intelligencer (March 4, 1997). 19 Id. at 208.

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