2014 - ShounBach

Can The Primary Custodian of Child Relocate?

Written by ShounBach on November 13, 2014. Posted in Child Custody.

This is one of the most commonly litigated issues that often arises after a custody determination. Whether it is to accept a new job offer, avoid the expensive cost of living in Northern Virginia, move closer to family members who live outside the area, or even to start a new life, it is not uncommon for a parent to seek to relocate after a divorce or after being awarded custody. Whatever the reason, when the parent’s move is to a location that is not in close proximity to the other parent, the parenting schedules in effect are bound to be impacted.

Contingencies in Custody Agreement

In some situations, parents account for this contingency in the custody agreement and determine whether the moving parent would be required to obtain consent prior to relocating outside of the area. However, when custody is litigated or in cases where the parents’ agreement is ambiguous, unenforceable, or silent on the issue of relocation, the moving parent may need to overcome some hurdles if the other parent objects to the relocation. Often, relocation is a source of contention between parents. There is usually little room for compromise when the question is whether or not a parent may take the children to a location where frequent personal contact between the other parent and the children is impractical.

When courts are faced with this issue, there is typically one parent seeking to relocate with the children and the other parent seeking to stop the relocation and/or to modify custody. Since the court is asked to modify custody or at least visitation, there needs to be a material change in circumstances. In relocation cases, the relocation itself is often considered a material change in circumstances although that is not always the case. In addition to finding a material change in circumstances, the court must also find that the change in circumstances warrants a modification, which would be in the best interests of the child.

Best Interests of Child

As is the case in most matters that involve children, the court’s ultimate concern is the best interests of the child –not the interests of the parent wishing to relocate or the interests of the parent objecting to relocation. Therefore, even if the move would be significantly advantageous to the relocating parent, unless the court finds that it is in the best interests of the children, it will not allow it. Likewise, even if relocation would greatly inconvenience the objecting parent, if the court finds that the best interests of the children would be served by it, it will not stop the relocation. It is important to note that the court cannot prevent the parent from relocating –the only thing that can be stopped is the relocation of the children if it is not in their best interests.

No Statute in Virginia

There is no statute in Virginia that specifically governs relocation other than Section 20-124.5, which requires parents to give 30 days advance written notice to the Court and the other parent of any change of address. There is also no clear trend in the case law on relocation as each case turns on its peculiar facts. However, some of the factors that courts have considered include the economic benefits gained from relocating, the role of each parent in the children’s lives prior to relocation, the effect of relocation on the relationship between the other parent and the children, the feasibility of continued –albeit less frequent- personal contact between the children and the other parent, and the educational and cultural advantages of the new location to the children as compared to their current location. A

dditionally, courts have considered the children’s ties to their current location and local family and peers as well as their adjustment to the current educational and social activities. When the children’s relocation is permitted, the court often modifies the visitation schedule to provide the other parent less frequent but longer visits. So, if the other parent had visitation every other weekend and on various weekdays, this schedule would likely change after the relocation, so that the children spend most, if not all, holidays and a longer summer vacation with the other parent. Additionally, the court may allocate the transportation costs associated with the longer travel time and/or adjust child support accordingly.

Relocation cases are more frequently litigated than other cases, and court decisions vary greatly, depending on the facts of each case. The attorneys at ShounBach are experienced and can advise you whether you are the relocating parent or the parent seeking to stop the relocation and/or modify custody. If you are seeking to prevent the relocation of your children with the other parent, or if you are contemplating relocating with the children yourself, don’t hesitate to contact one of our skilled lawyers at ShounBach.

The Challenges of Extending Family Abuse Protective Orders

Written by ShounBach on October 28, 2014. Posted in Divorce.

It was not long ago when victims of domestic violence in Virginia who had successfully obtained final protective orders were forced to face the scary reality of their protective orders expiring with no real recourse. Once a protective order expired, there was no way for a victim to extend it. A victim would have to wait for a new incident of abuse or violence to occur so that he or she could file a new petition for a protective order. This glaring gap in the law prompted serious safety concerns for victims who were left without protection even when legitimate fears persisted.

In 2010, the Virginia State Legislature acknowledged this gap and allowed for the extension of protective orders without the need to file new petitions. According to this relatively new law (Va. Code sec. 16.1-279.1(B)), the court may now extend a protective order for up to 2 years “to protect the health and safety” of a petitioner or a petitioner’s family or household members.

Although the new provision represented a breakthrough in domestic violence law in Virginia, many victims, lawyers, and judges alike have faced challenges implementing the law because it provides no real guidance on the definition of “health and safety.” The law also fails to indicate the burden of proof required to warrant an extension. Therefore, judges have almost complete discretion to determine whether extending a protective order is necessary for the petitioner’s health and safety.

In some cases, proving that the protective order should be extended may be simple. For example, if the abuser continues to engage in violent or threatening behavior, it is relatively easy to make the case that extending the protective order is necessary to protect the victim’s health and safety.

Often, however, the need for an extension is not that obvious. Sometimes the victim still fears the abuser even when the abuser has demonstrated good behavior by fully complying with the protective order. The court must carefully balance the victim’s fear with the restrictions to the abuser’s liberties in deciding whether an extension is truly necessary. While the code technically does not require a new incident of family abuse, fear alone may not be sufficient to warrant an extension. In these difficult cases, it is critical to link the past abusive behavior and the reasonableness of the victim’s fear. Any additional evidence beyond the victim’s own testimony, i.e. witnesses who have observed the victim’s or the abuser’s behavior, photographs, documents, text messages, voicemail recordings, etc., can help strengthen the victim’s case.

While the extension provision presents some improvements to victims’ rights, in practice, it still has many challenges. It is still important that victims work with trained attorneys who have experience in this area of the law. If you are considering a protective order or extending your one, contact us at info@shoun.com

Preparing for Your Initial Consultation

Written by ShounBach on October 7, 2014. Posted in Firm News.

Here at ShounBach we understand that coming to speak with an attorney can feel daunting and overwhelming, especially when going through a difficult time such as a divorce or custody dispute. Our attorneys and staff hope to make your visit as informative and helpful as possible. Here are a few tips and hints to make your visit go smoothly.

When arriving at ShounBach you will be given an Intake Sheet to complete. Each piece of information requested is essential in providing you with advice and will be referred to frequently as your case progresses. All information provided is confidential and will not be shared.

We encourage potential clients to bring a list of their questions and concerns to the meeting. Our consultations generally last an hour and there is unusually a lot to discuss. It’s easy to lose track of all the issues you want to cover when experiencing a whirlwind of emotions. The attorney you meet with will provide you with great deal of information so please feel free to take notes. If you have any questions following your consultation, give us a call and we will be happy to assist you.

Some potential clients feel more comfortable bringing a third party with them. While moral support is always helpful, it is better if it is just you and your attorney in the consultation for confidentiality reasons.

Please bring any documents with you that you feel are necessary for the attorney to assess and understand your case. For example, pre-nuptial agreements, endorsed or proposed Property Settlement Agreements, court orders and any other pleadings you have received. You will also need to provide us with any court dates you may have pending.

We understand that the topics you come in to discuss can be unpleasant and at times you may feel uncomfortable; however, it is very important that you tell us the entire truth and not withhold any details. Every case is unique and we cannot properly evaluate your case if we do not know about the good and the bad.

Our attorneys understand what you are going through. We are here to guide you through all the bumps in the road and set you on a clearer path. We look forward to meeting with you!

SCOTUS Declines Review: Virginia’s Ban on Same-Sex Marriage Overturned

Written by ShounBach on October 6, 2014. Posted in Same-Sex Marriage.

Surprising legal analysts across the country, the United States Supreme Court declined to grant requests from appellants in five states where measures banning same-sex marriage had been overturned. By declining review, the rulings from each of the appellate courts remains, clearing the way for same-sex marriages to begin or recommence in eleven states – including here in Virginia.

This decision marks the culmination of lawsuits filed by two Virginia couples, Timothy Bostic and Tony London, and Carol Schall and Mary Townley, seeking to overturn Virginia’s constitutional and statutory bans on same-sex marriage. Judge Arenda L. Wright Allen of the United States District Court for the Eastern District of Virginia ruled on February 13, 2014, that Virginia’s bans were unconstitutional, a ruling that was upheld this July by the United States Court of Appeals for the 4^th Circuit. ShounBach’s own, Susan Butler, co-wrote the amicus brief filed on behalf of the Virginia Chapter of the American Academy of Matrimonial Lawyers, in support of lifting the ban.

With the Supreme Court’s decision, same-sex marriage now becomes legal throughout the 4^th Circuit, which includes not only Virginia but Maryland, North Carolina, South Carolina and West Virginia as well.

The lawyers of ShounBach have been representing clients in matters that are unique to same-sex relationships including custody issues, separation agreements and same-sex divorces outside of Virginia. Given the recent decisions of the Court of Appeals and the United States Supreme Court, we now look forward to using our years of experience in handling complex divorce cases throughout the courts of Northern Virginia to help clients in same-sex marriages and divorces.

Championing Marriage Equality: Susan Butler’s Legal Advocacy

Written by ShounBach on August 13, 2014. Posted in Divorce.

Susan Butler co-wrote the amicus brief filed by the Virginia Chapter of the AAML (American Academy of Matrimonial Lawyers) in the Fourth Circuit case in support of lifting the Virginia ban on same-sex marriage. The court in that case ruled that denial of marriage licenses to same sex couples in Virginia in unconstitutional.

Today, the Fourth Circuit decided to stay its ruling on the gay marriage ban. Marriage licenses could start being issued as early as next week. However, the Prince William County Clerk of Court Michele B. McQuigg has stated that she intends to seek an emergency stay from the United States Supreme Court. If the U.S. Supreme Court does not issue the emergency stay, same sex couples will be able to obtain marriage licenses in Virginia. A petition for review by the U.S. Supreme Court has been filed; it is not known yet whether the court will hear the case.

Understanding the Limits of What Paralegals Can and Cannot Do

Written by ShounBach on May 19, 2014. Posted in Family Law.

By: Danubia Arias, Paralegal

A paralegal is not allowed to give legal advice because it would be considered unauthorized practice of law. The unauthorized practice of law is rendering services that require the professional judgment of lawyers. While a paralegal may well know the answer to a specific legal question or understand different legal documents, he or she does not have a law degree, has not passed a bar exam, and is not regulated by the State Bar Association.

To the average client, it is not always clear what is or is not legal advice. Legal advice is telling or advising a client what they should do in a certain situation and it can also constitute giving the client any information that would lead them to make a legal decision for their case.

Even though a paralegal cannot give legal advice, accept a case, or represent a client in court, they do work very closely with the attorney and play a huge role in the communication between the lawyer and the client. The paralegal serves as a liaison between the client and attorney.

It is natural to reach out to the paralegal first with questions because his or her hourly rate is significantly lower than the attorney’s. If the paralegal cannot answer the question without providing legal advice, he or she can always refer the client to an attorney that can help.

Year: 2014