Two Things to Know about Grandparent Visitation

Grandparents or other family members sometime want to petition for court ordered visitation time with a child.  There are a number of reasons why a Grandparent would want to petition for visitation.  For example, one of the parents is deceased or incarcerated and the other parent doesn’t foster a relationship with the other parent’s family.

Virginia Code Section 20-124.1 grants a court the authority to award visitation to a person with a legitimate interest.  Grandparents, step parents and other family members are included in this definition so long as they have properly intervened in the lawsuit.

The rules for grandparent visitation depend on whether both parents object to the visitation or if one parent objects to the visitation and one parent supports grandparent visitation. *

If Both Parents Object:

If both parents object to a grandparent having visitation with the child, then the grandparent must show that the denial of visitation would result in actual harm to the child’s health and well-being.  If the grandparent is able to satisfy the actual harm standard, the grandparent must also demonstrate that court ordered visitation would be in the child’s best interest.  See Williams v. Williams, 24 Va. App. 778 (1997).

 

If One Parent Objects and One Parent Supports Visitation:

If only one parent objects to the grandparent having visitation, then the grandparent doesn’t need to satisfy the first requirement of showing actual harm to the child.  The grandparent only needs to show that visitation with the grandparent will be in the best interest of the child.  Removing the need to show actual harm lowers the grandparent’s burden and greatly improves a grandparent’s probability of success.

 
 

Grandparent visitation cases are challenging and can involve complex legal arguments.  If you need help with a custody, visitation or divorce case in Chesterfield, Colonial Heights, Dinwiddie, Fort Lee, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 and schedule a consultation to discuss your troubles in more detail.

 

*The rules for grandparent visitation apply to petitions for visitation by other family members or persons who qualify as persons with a legitimate interest.  We use grandparents in this post as the most common example of a party with a legitimate interest.

Can I be legally separated in Virginia?

Short Answer: No

How do I get a legal separation is one of the questions I am asked most frequently in consultations with potential divorce clients.  There is no such thing as legal separation in Virginia.  In Virginia you are either 1) Married and living together; 2) Married and living apart; or 3) Divorced.

 

In order to obtain a no-fault divorce in Virginia, you and your spouse must have lived separate and apart without any cohabitation and without interruption for one year.  However, a divorce may be granted upon a period of separation of only six months if the parties have entered into a valid property settlement agreement and there are no children born or adopted by the parties.

 

The period of separation is based on public policy.  The state wants married couples with children to be absolutely certain that divorce is the best option for their family.  Typically, living separate and apart meant that one party had to move out of the marital residence and establish a new residence elsewhere.  However, the economic downturn has forced some couples to try and live separate and apart under the same roof.  This can be dangerous as some courts refuse to accept these arrangements.  If the court refuses to accept your alternative living arrangement, your separation period will not begin to accrue until one party moves out of the marital residence.  To improve your chances of having a court accept your living separately under one roof, we recommend that you and your spouse do the following (this is not an exhaustive list):

 

  • One spouse should deliver a formal letter to the other stating the intention to live separate and apart as of a certain date
  • Abstain from sexual relations with your spouse
  • Sleep in separate bedrooms
  • Do Not share food
  • Do Not Cook and Shop for each other
  • Do Not do each other’s laundry
  • Do Not give gifts to each other
  • Do Not attend social functions together
  • Do Not go out to eat together
  • Do Not hold yourself out to be a married couple
  • Separate Phone bills, email accounts, and bank accounts
  • Consider paying off and closing joint accounts and credit cards
  • Divide up household expenses, i.e. the electric bill

**This is not an exhaustive list.  Additionally, performing each item of this list does not guarantee that a judge will accept your alternative living arrangement.

 

If you need help with a divorce or custody case in the Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 and schedule a consultation to discuss in more detail.

Loose lips sink ships

Loose lips sink ships is defined by The Free Dictionary by Farlex as a warning to Don’t talk carelessly because you don’t know who is listening.  The phrase was popular in World War II among the Allies because they were worried that vital war information could be communicated to the enemy.

In a criminal case, the defendant’s words are often used to make the case and gain a conviction. The 5th Amendment to the U.S. Constitution recognizes how damning one’s words can be by stating that no person can be compelled to testify against himself or herself.

Miranda warnings to those taken in custody state that a person in custody has the right to remain silent and that anything the person says can and will be used against the person in a court of law.  The use of Miranda warnings in television shows has elevated the phrase Miranda Warning to pop culture status.  Early in my legal career, a legal defense group sold hats that stated, “Nobody Talks – Everybody Walks.”

While the government cannot compel a criminal defendant to testify against himself or herself, the government can and will take any incriminating words it can legally get from a defendant and use them in court against the defendant. If the government uses these words out of context at trial the defendant may have to waive his or her Constitutional right to be silent in order to try to clarify what was said. This could be a damned if I do or damned if I don’t situation. It’s easily to see how this could be a no win situation for a criminal defendant.

The best way for a criminal defendant to stay out of this situation is not to say anything to anyone but his defense attorney!

If you are in trouble and need an attorney in the communities of Chesterfield, Colonial Heights, Dinwiddie, Emporia, Hopewell, Nottoway, Petersburg, Powhatan, Prince George, Richmond, Surry or Sussex and you want to discuss your rights give Jay a call at (804) 668-5327 or Click Here to schedule an appointment.

Teachers Under Fire!

Strategically Deterring Unwarranted Criticism

Teachers are under fire. Those in the education field are subject to intense scrutiny. This pressure often pits administrators, parents and even other teachers against each other. It’s called the blame game and is often used to spew unwarranted criticism toward someone that cannot protect himself or herself. It’s essentially bullying those who are believed to be weaker.

The best way to avoid being targeted is to show the others that you are strong enough to defend yourself and are prepared to counterattack if necessary. There is a simple strategy that will declare to the underworld that spewing unwarranted criticism toward you is not good for them.

DOCUMENTATION – DOCUMENTATION – DOCUMENTATION

Getting into the habit of writing things down will help you protect your interests. You can create paper trails by using logs, calendars, letters, email and journals.

Be open and notorious about letting others involved in the educational process know that you’re documenting everything. Put out the notebook on the table right in front of the person. This lets the person know that you care about the situation but also implicitly lets the person know that you have a record of the conversation or situation. In the cold war, the Soviet Union knew that the United States had nuclear missiles. This knowledge kept the Soviet’s behavior in check.

Put your documentation in a safe place. During the Cold War, the United States hid its nuclear missiles from the Soviets on submarines. The Soviets couldn’t get ahold of the missiles making the deterrence even stronger. Your documentation needs to be hidden away from others. This gives you control of the situation. Do not store or put any of your documentation on school property. Get copies of the documents and bring them home.

Invest in a scanner for your phone. Anything your phone can take a picture of can be scanned into PDF files which can be sent from your phone to your home computer.

Don’t rely on anyone else’s documentation. If another person with adverse interests to you has documentation that is helpful to you and hurts their cause, it’s not likely that the document will surface in a way that helps you protect yourself.

Documentation is the great equalizer that will protect you from unwarranted criticism and conflicts.

If you are a teacher in the communities of Chesterfield, Colonial Heights, Dinwiddie, Emporia, Hopewell, Nottoway, Petersburg, Powhatan, Prince George, Richmond, Surry or Sussex and you want to discuss your rights give Jay a call at (804) 668-5327 or Click Here to schedule an appointment.

Attorneys are expensive. Get your money’s worth!

Hiring an attorney is about more than knowledge and experience. There are a lot of lawyers to choose from in the marketplace today. Truth is there are probably too many lawyers. While your lawyer’s experience and knowledge are important, other qualities should also be considered. Most lawyers have the basic level of knowledge to get the job done. We all have to pass an exam simply to have the right to do the job.

Hiring an attorney is much like hiring a contractor to build your new house. It is unlikely that you would hire a contractor before reviewing a set of blueprints, discussing a budget and developing a timeline for completion of your new home. Your attorney should sit down with you and develop a plan. The first step in developing a plan is a discussion of your goal or desired result. Second, the attorney should discuss with you the strengths and weaknesses of your case. If your attorney tells you, your case doesn’t have any weaknesses, that you don’t have anything to worry about, or that he never loses, you need to grab your wallet and run out of his office. Every case has both strengths and weakness.

Next, your attorney should discuss a budget or an estimate of the total cost of representation. An attorney will ask you to pay a retainer for his or her services. This is typically only a down payment and not the total costs of services. Early on you and your attorney need to discuss both best and worst case scenarios for the total cost of your case. An attorney’s services are billed by the hour. That means you can be in the hole for thousands of dollars before you even know it.

Finally, your attorney should be solution oriented. When you build a house, you may have to forgo the sun porch or upgraded counter-top because its too expensive. With litigation, a win at all cost may not be the best solution for you. There may be alternative ways of resolving a dispute. Your attorney should be open to and discuss alternatives. Your goal should be a solution to your problem, not just winning on principle.

Does your Legal Advisor Reside in Cyber Space?

It’s on the Internet – it must be true and accurate!

There are many sources of legal information on the internet for individuals to review and gain knowledge. There is so much information that it can be difficult for the person with no legal training to separate trash from treasure.

Here are our suggestions as you troll through cyberspace looking for legal information or advice:

1) Don’t fall for fool’s gold. Any site that makes outlandish promises is probably too good to be true.

2) Read the tone of the information. If it tells you must act immediately then you may want to be a little more skeptical. You certainly do not want to sit on your legal rights and let a legal claim be lost, but very few legal claims have a deadline that is immediately due unless you’ve sat on your legal rights for some time.

3) Separate the sales pitch from the information. Evaluate the information and determine if it is trying to inform you or sell you something. This can be difficult because most firms, including ours, provide you information with the hope that you’ll see a need and believe that that firm is the appropriate place to help you with your legal need. There’s a balancing point – if it seems to be more of a sales pitch than useful information, you may want to be skeptical of the information.

4) The Information on the Internet doesn’t come with a warranty. There are many reasons that most, if not all legal web sites have disclaimers. Laws can change without website being updated and the reader may misinterpret or misunderstand what is written.

5) Making the best use of information that is on the internet. Much of the legal information on the internet can be used to give you background on a legal topic. Getting a general overview of how your legal problem is addressed prior to visiting an attorney can help you prepare for the visit and will allow you and attorney to accomplish more during the visit.

10 Considerations on Whether or Not to Post a Bond

What Every Criminal Defendant Should Know

“The judge just granted you a bond, what are you going to do?”

The Answer: “I’m gonna get the @#$% out of here!”

The Reply: “No kidding, I didn’t think you were going to Disney World!”

This singular focus on getting out of jail can make clients immune to the use of common sense. This obsession can interfere with their ability to make decisions. This affects the attorney’s ability to resolve the case in a favorable manner.  Believe it or not, there are times when it makes sense for an individual to remain in jail while waiting for trial.

Some items that should be considered prior to posting bail:

1)      What am I going to be doing while waiting for trial?

2)      How strong is the case against me?

3)      Is my incarceration inhibiting my attorney’s ability to work on my case?

4)      When is my trial date?

5)      Do I have a job and if so, will my employer work with me?

6)      If I stay in awaiting trial, is there a chance that I could get a time-served sentence?

7)      What impact does posting the bond have on my family’s finances?

8)      What is my role in my family setting and how will my absence affect them?

9)      Will I be able to stay away from the situation or similar situations that led to my arrest on my current charges?

10)  Do I have a drug problem and will my stay at the jail help me get started on treatment or keep me from using?

Each of these questions are interrelated and need to be answered by the client before deciding to post bond.  I’ve seen many instances where a person posted bond and ended up in more trouble than if he would have just stayed in jail until his trial date.

There should be a good reason to post bond.  The positive reasons for posting bond should outweigh the negative consequences of posting bond.  A good answer as to whether you should post bond can be obtained by considering each of the questions listed above.

In most cases, a person is legally entitled to a reasonable bond.  However, posting a bond should put you in a better place legally and economically than if you stayed put until trial.  If the costs outweigh the benefits, you may not want to post that bond.

3 Things to Consider When Dating While Separated

Moving On Too Quickly Can Be Costly

Should you date while separated from your spouse? Moving on and dating again is a fact of life. However, moving on too soon can be a minefield that can impact your divorce, custody case and your future.

The Basics
There is no legal separation in Virginia. In order to obtain a divorce, you must live separate and apart from your spouse. The period of separation is one year if you have children with your spouse or six months, if you don’t have children and you have a property settlement agreement. Financial hardship or clogged court dockets often stretch the period of separation further than a year. Bottom line, you are still married until a final decree of divorce is entered by the court.  Unless you have a property settlement agreement allowing you to live as if you are single (sometimes called an adultery waiver), you risk damaging your case by dating too soon.

  1. Adultery
    Virginia code section 18.2-365 makes it a misdemeanor for any married person to have sexual intercourse with someone who is not his or her spouse. While the law is rarely enforced, you do risk prosecution by maintaining an intimate relationship during the period of separation.
  2. Equitable Distribution
    Equitable Distribution is the process by which a court divides marital property. A court is allowed to consider one party’s adultery when dividing the marital property. Usually, the court will only consider pre-separation adultery. However, your new significant other could make your spouse suspicious that something was going on before you separated. This could lead to a more extensive examination of your financial records, your phone records and your social media accounts. Finally, many divorces are worked out by agreement between the parties. However, the hard feelings caused by you moving on too quickly can sometimes make settlement impossible.
  3. Custody
    Child custody is the area where your new significant other can cause the most trouble. First, you need to determine what kind of baggage your new boyfriend or girlfriend carries with them. For example, if they have a criminal record or custody battle of their own. Additionally, some guardians ad litem have reservations about new people coming into a child’s life. This can impact the guardian’s recommendation on custody and could sway the court to award custody to your spouse. Further, some courts still put provisions into custody orders barring overnight guests of the opposite sex, unrelated by blood or marriage. A court can hold you in contempt for a violation of this provision.

So can you date if you’re separated from your spouse? Answer: it depends. If you need help with a divorce or custody case in the Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804)668-5327 and schedule a consultation to discuss in more detail.

Saving your family from the heartbreak of deciding to pull the plug

“What is an Advance Medical Directive”

An Advance Medical Directive allows you to state your wishes in writing about medical treatment and care. An Advance Medical Directive is aimed at preventing the legal fight that ensnared Terry Schiavo’s family as a result of her husband’s decision to remove her feeding tube.

There are two types of advance directives: a written directive and the appointment of a healthcare agent. The two types are explained in greater detail below. The two are not mutually exclusive. In fact, having a written directive and a healthcare agent affords you the greatest protection, as one cannot anticipate all possible medical events.

Written Directive – often referred to as a “living will”, the written directive lists what kinds of healthcare you want or don’t want if you are incapacitated and unable to express your own wishes. A written directive may address any type of care (i.e. psychiatric treatment), not just end of life or pull the plug issues.

Healthcare Agent -, you can appoint an agent to make healthcare decisions on your behalf. The appointment of an agent is sometimes referred to as a “Power of Attorney for Healthcare.” You may limit the authority of the agent in the directive. Ensure that you chose someone who is accessible and capable of making potentially difficult decisions about your care.

Advance Directives are not just for the elderly. Even if you are young and healthy, you should have an advance directive. Terry Schiavo was in her mid-twenties when she went into cardiac arrest and was left comatose.

The Virginia State Bar provides free advance directive forms on its website. Visit http://www.vsb.org/site/public/healthcare-decisions-day to download your free form. An advance directive does not be notarized.

Advance Medical Directives, along with wills and powers of attorney, are a necessary part of any estate plan. If you need help If you need help with estate planning in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804)668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.