Domestic Relatons Acronynms

Marital Agreements
Test to Enforce (SaVeD) 1. Signed Writing by Both Parties 2. Voluntarily Agreed to 3. Disclosure of financial Situation or a voluntary waiver of the right to disclosure (if agreement is otherwise unconscionable) What can an antenuputial agreement cover? (WILD ROSe) 1. Making arrangements to carry out the agreement, including Will and trusts 2. Disposition of rights in and death benefits from life Insurance policies 3. Choice of Law 4. Disposition of property upon the conclusion of the marriage 5. Rights to buy, sell and otherwise manage property 6. Any Other matter as long as it does not violate public policy or a law imposing criminal sanctions 7. Spousal Support *not child support and custody agreements EVASION STATUTES If a domiciliary of VA leaves the state and marries in another state or country intending to return to VA and does ultimately return, the marriage generally will be treated as if it had been solemnized in VA. Exceptions to this general rule occur with (IBiS) 1. Incest 2. Bigamy 3. Same-sex Marriage Name Change A petition to change a minor s name is adjudicated using the best interest test . The burden in such a hearing rests w/the party attempting to change the minor s name. The Supreme Court has identified some factors which could prove a name change is in the child s bets interest: (ACED) 1. Abandonment (of natural ties between parent and child) 2. Choice (of name if child is of sufficient age & discretion) 3. Embarrassment 4. Detriment (to the child of a substantial nature if the current name is maintained)

Duty of Support by Parents. Emancipation Terminates Duty. Triggers: (MOPeDS) 1. Marriage of child 2. Age 18 and Over 3. Prior to age 18 presumption against emancipation a. Requires implied or express agreement of parent if based on self-sufficiency ground b. Burden rests with the party trying to establish emancipation 4. Active Duty in the Armed Forces 5. Self-Sufficiency-capable of supporting self and managing affairs. Lives away from parents DOMESTIC VIOLENCE Protective Order may enjoin abusing spouse from: (Full CouRT) 1. Future acts of family abuse; 2. Contacting the abused parties; 3. Remaining in the residence occupied by the parties; 4. Terminating any necessary utility services to the residence Court can Also Order: (SPAT) 1. Suitable alternative housing for the abused spouse and family; 2. Participation in treatment, counseling, or other rehabilitive programs; 3. Any other relief necessary for the protection of the abused spouse and family 4. Temporary possession of the residence, motor vehicle, and B. Ex parte Preliminary Protective Order: May be issued for good cause when the petition is supported by an affidavit or sworn testimony before the judge or intake officer: (I PuFF BAd DUST) 1. Immediate and Present danger of family abuse or evidence sufficient to establish probable cause that family abuse has recently occurred constitute good cause 2. Full hearing must be held within Fifteen days. At hearing, the court may issue a protective order pursuant to VA Code. a. Burden of proof to obtain an order of protection: petitioner has proven the allegation of family Abuse by the POE. 3. DUration: a. May not be issued for a Specified period, but no longer than 2 yrs. b. Either party may at any Time file a written motion requesting a hearing to dissolve or modify the order TERMINATION OF MARRIAGE 1. ANNULMENT-Where a party may seek judgment that a marriage is invalid, the result of which is to treat the parties as if they have never been married.

Grounds for Annulment (must exist at time of entry into marriage) (CIDAnCaP): 1. Lack of Consent a. Fraud 2. Incest/Consanguinity 3. Defective Licensing or Solemnization 4. NonAge-at least 16 but under 18 need parental consent 5. Lack of Capacity-mental incapacity or infirmity 6. Marriage Prior to the dissolution of a previous marriage a. Polygamy/Bigamy Gounds for Annulment only available to aggrieved party (IF PoP): 1. Impotency-must be natural or incurable & existing at time of marriage contract 2. Felony Conviction-only available where conviction predates the marriage & party unaware 3. Concealed Parenthood-wife at time of marriage is carrying another man s child w/out his knowledge or husband fathers a child born to another woman w/in ten months after date of solemnization 4. Prostitution-Prostitution predates marriage and aggrieved party unaware Effects of Annulment are different based on whether the marriage was Void, or merely Voidable: Void (also referred to as void ab initio ) (NoCLiP) Void (also referred to void ab initio) 1. No Spousal Support 2. Custody and Child Support 3. Legitimate Children 4. Property will not be subject to equitable distribution where the marriage is void ab initio When a CT. grants dissolution of a voidable marriage, the children are legitimate, the court will grant spousal support, child custody and equitable distribution of property Types of Void Marriages (SINBaD) 1. Same sex marriages 2. Incest-Ancestor or descendant, brother and sister (inc. whole or half blood, adoption) 3. Nonage 4. Bigamy (and bigamous cohabitation are class 4 felonies in VA; rebuttable presumption first marriage dissolved at the time second marriage is entered into or second marriage is valid) 5. Defective Licensing or Solemnization VOIDABLE MARRIAGES-The marriage exists, so it must be annulled 1. Legal decree is required to dissolve 2. Subsequent cohabitation/consummation will ratify marriage; marriage cannot then be invalidated 3. Only a party to marriage can seek annulment of voidable marriage

TYPES OF VOIDABLE MARRIAGES 1. Impotence 2. Fraud 3. Durress (shotgun) marriages 4. Mental Incapacity 5. Parenthood 6. Undisclosed Felony Conviction 7. Prostitution I FeeD My PUP

DEFENSES TO ANNULMENT (bars to annulment) (CLERO): 1. 2. 3. 4. 5. Cohabitation after knowledge of Facts Laches-suits for annulment must be brought w/in two years of marriage Estoppel by Conduct Ratification Other Defenses: (lack of proper jurisdiction(s) , res judicata, etc)

DIVORCE SERVICE OF PROCESS FOR OUT OF STATE DEFENDANT-May be achieved through bi-lateral divorce or VA s long arm statute (AOMP) 1. Agreement to Support--personal jurisdiction(s) exists if person executed in VA an agreement to pay spousal or child support to a VA domiciliary or member of the armed forces 2. Order to Support Personal jurisdiction(s) exists if person has been ordered to pay or child support pursuant to an order entered by any court in VA 3. Matrimonial Domicile Personal jurisdiction(s) exists if a person has maintained a matrimonial domicile in VA and the other party to the matrimonial relationship also resides in VA at time of: a. Separaton b. Cause of action arose c. Commencement of suit 4. Paternity Matters Person jurisdiction(s) exists upon proof of personal service on nonresident who either conceived or fathered a child in VA **Strict Compliance w/requirements for service of process is necessary or divorce or annulment may be invalid.

GROUNDS FOR DIVORCE There are 4 grounds for divorce from bed and board (a mensa) and four grounds for absolute divorce (a vinculo) (C&D)- Divorce a Mensa: 1. Cruelty & Reasonable Apprehension of Bodily Harm a. Cruelty: i. cruelty sufficient to authorize a divorce is anything that renders cohabitation unsafe because it tends to bodily harm, or that endangers life, limb or health. Angry words, abusive language, insults and annoyances may endanger life or health as effectively as personal violence and can then afford grounds for divorce. Bad tempers, impatience, uncongenial nature, etc., are not grounds for divorce. ii. Successive Acts: Cruelty generally requires successive acts of ill treatment, even if they do not result in personal injury. A single act may rise to the level of cruelty if it: 1. Endangers life 2. Is done w/an intent to do serious bodily harm 3. Results in reasonable apprehension of serious danger in the future, or 4. Is apparent that the act is likely to be repeated b. Desertion and Abandonment i. Actual breaking off of marital cohabitation w/intent to desert in the mind of the deserter. There is no specified time for separation, and it does not matter if the deserted spouse voices no objection, so long as the other intends to desert 1. Certain types of separation are NOT desertion: a. Justified Leaving i. Certain conduct by a spouse may justify leaving even though it does not rise to the level of a ground for divorce. Conduct that justifies breaking off marital cohabitation is that which creates conditions so intolerable that the other spouse cannot be reasonably expected to remain in the home. A gradual breakdown in the marital relationship does not justify breaking off marital cohabitation b. Separation by Marital Consent i. If both parties consent to the separation, then it is not desertion by either. Consent is presumed to continue until there is a w/drawal of that consent and an offer to resume cohabitation. The party offering to resume cohabitation has the burden of establishing: 1. That the offer was in good faith; and 2. That the offer was refused w/out justification c. Separation Pending Divorce i. Generally it is not desertion to separate from a spouse after instituting a non-frivolous suit for divorce during the pendency of that suit. This rule is not to be so inflexibly applied to shield fraud or oppression.

GROUNDS FOR DIVORCE A VINCULO MATRIMONII (FADS) 1. Conviction of a Felony a. subsequent to the marriage, where the spouse was sentenced to more than one year of confinement, subsequently confined and where cohabitation has not resumed after knowledge of such confinement is a ground for a divorce a vinculo w/no waiting period. 2. Adultery, Sodomy or Buggery a. Evidence of adultery committed outside the marriage is a ground for an absolute divorce with no waiting period. Evidence must be clear and convincing , based upon proven facts and reasonable inferences. Circumstantial evidence may suffice but proof should be strict, satisfactory and conclusive and such as to lead the guarded discretion of a reasonable and just person to the conclusion of the s guilt. Considerable or strong suspicion of guilt alone is insufficient. This burden is very high, as the court will look not only to whether there were suspicious circumstance(s) but also if a credible explanation exists to explain those circumstance(s) . 3. Cruelty or Desertion a. Cruelty causing reasonable apprehension of bodily harm, and willful desertion or abandonment are grounds for a divorce a vinculo to be granted to the innocent party after a waiting period of one year. Constructive desertion is possible if, for example, cruelty by one spouse forces the other to leave the marital home. The offending spouse has constructively deserted the innocent spouse. Constructive desertion is also possible when both parties remain in the marital home, where there is a will breach and neglect of marital duties as to practically destroy home life. b. Insanity After Desertion: If deserter is insane after desertion but before one yr has passed, the ground of desertion is still deemed complete on yr after the initial date of desertion. c. No duty to reconcile: the deserted plaintiff has no duty to allege or prove an offer of reconciliation d. Continuous one yr period: Must be continuous. One single act of sexual intercourse w/no intent to reconcile is not a resumption of marital cohabitation or an intent to end the desertion e. The modern approach is to examine the justification for one spouse s decision to establish a new marital home and the other spouse s reason for refusing to follow f. Standard of Proof: Desertion is not a crime and does not need to be proved by clear and convincing evidence. 4. Separation without Cohabitation a. Is a no fault ground for divorce. Generally a divorce a vinculo on this ground may be granted on application of either party if and when the husband and wife have lived separate and apart w/no cohabitation and w/out interruption for one yr. i. Six months for parties w/no minor children ii. Res Judicata, insanity and recrimination do not bar either party from obtaining a divorce on this ground. iii. Intent on the part of at least one party to permanently separate is required and must be shown to have existed at the beginning of the uninterrupted yr iv. Mere representation of Counsel regarding separation is insufficient. Evidence of the separation or any stipulation regarding the separation agreed to by the parties must be presented to the court.

Note: Where there are dual or multiple grounds for divorce, it is up to the trial judge to choose the grounds upon which to grant the divorce.

DEFENSES TO DIVORCE: (RoCCCS) 1. Recrimination- Recrimination (n) in Law is a defense in an action for divorce in which the accused party makes a similar accusation, as of adultery or cruelty, against the plaintiff. 2. Collusion-Both Parties agree to deception in order to obtain a divorce 3. Connivance-One Party s corrupt consent (express or implied) to the miconduct alleged 4. Condonation a. Elements are i. Forgiveness ii. Full knowledge of marital offense b. Subsequent marital misconduct will revive condoned conduct as viable ground for divorce 5. Statutory Defenses to Adultery, Sodomy or Buggery a. Voluntary knowledge of the offense, a lapse of more than five yrs from the time of the adulterous act to the institution of the suit for divorce, and connivance operate to bar the issuance of a divorce on the ground of adultery, sodomy or buggery FACTORS CONSIDERED IN AWARDING SPOUSAL SUPPORT: Fault of one party may be considered when determining whether to award spousal support, as well as the amount. Adultery by supported Spouse acts as bar to spousal support unless the court determines from clear and convincing evidence that denial of spousal support to the guilty party would result in manifest injustice. Temporary alimony or pendent Lite awards can be made to give a spouse sufficient means for support during divorce action and to enable spouse to prosecute or defend divorce action , to provide for the custody or maintenance of the minor children during the pendency of the suit, provide spouse with exclusive use and possession of family home, preserve the estate, etc. SPOUSAL SUPPORT AGREEMENTS Parties may also fix terms of support & property distribution via postnuptial contract that is executed on or after a separation. This isn t automatically revoked by reconciliation--the terms and intention of the parties control. (FADS CoPEE CODES) 1. Financial Resources: obligations and needs of ea parting including pension, profit sharing and retirement plans 2. Age and physical and mental capacity of both parties, and any special circumstance(s) of the family 3. Duration of marriage 4. Standard of living established during the marriage 5. Contribution of ea party to the family well-being whether monetary or nonmonetary 6. Property Interests, tangible and intangible, of both parties 7. Equitable Distribution of marital property made under VA Code 8. Extend to which age, mental or physical capacity or special circumstance(s) of any child of the parties would make not seeking work outside the home appropriate.

9. Earning Capacity of ea party, inc the skills, education, training and emp opportunities for persons w/such capacity 10. Opportunity for, ability of, and time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills necessary to increase earning capacity 11. Decisions of the parties regarding employment, career, education, economics and parenting made during marriage and their effect of the parties earning potential, including time spent out of the job market 12. Each party s contribution to the attainment of education, training, career position or profession of the other 13. Such other factors such as tax consequences, as are necessary to promote equally between the parties. No Recoupment: VA statute creates no positive duty for repayment of spousal support after a divorce decree is reversed on appeal. No inherent authority can be inferred by the courts to require such repayment. The equitable doctrine of restitution is unavailable. PROPERTY DIVISION 1. Distribution is a 4 part process: a. Determine the ownership and worth of all property b. Determine whether all property is marital or separate, or what portion of commingled property is marital or separate c. Determine the rights and interests of ea party in the marital property and whether an award of marital property is warranted for either party d. Divide marital property that is jointly owned and marital debts and, if appropriate, grant a monetary award to one spouse or another i. VA does not have a presumption of equal distribution FACTORS IN DISTRIBUTION OF MARITAL PROPERTY (WAD ACHeD LiTE O) 1. Monetary and nonmonetary contributions of ea party to the family s Well-being 2. Monetary and nonmonetary contributions of ea party to the Acquisition, care and maintenance of that party 3. Duration of the marriage 4. Age, physical and mental conditions of the parties 5. Circumstance(s) and factors contributing to the dissolution of the marriage. This is where the court considers FAULT. a. FAULT nuances i. Though fault is one factor that the CT. must consider in equitable distribution, it does not necessary follow that the guilty spouse s equitable award will be reduced due to his fault ii. The court need not only consider fault that amounts to the actual grounds of the divorce. They may also consider evidence of a party s fault that contributed to the dissolution of the marriage even if divorce is based on no fault separation grounds. iii. For equitable distribution grounds, fault must have an adverse impact on the identity or value of the marital party iv. Use of a home equity credit line after separation for attorney s fees, living expenses, children s education and loan payment has been held not to be waste.

6. How and wHen specific items of such marital property were acquired. 7. Debts and liabilities of ea spouse and the bases therefore, as well as the property which may serve as security for those debts and liabilities 8. Liquid or non-liquid character of all marital property 9. Tax consequences to ea party 10. Use or Expenditure of marital property by either party for a nonmarital separate purpose or the dissipation of such funds, when done in anticipation of divorce or separation, or after the last separation of the parties 11. Any Other factors the court deems necessary or appropriate to consider

DEFINING SEPARATE PROPERTY (ADViL) 1. Real or personal property Acquired prior to marriage (and assets/liabilities acquired/incurred in exchange for such assets/liabilities) 2. Real or person property acquired during the marriage by Descent, bequest, devise, survivorship or gift from a source other than the other party 3. All property acquired during the marriage in exchange for or from the proceeds of the sale of separate property, proVided that it is maintained as separate property. a. Marital effort rule: i. Separate property is transmuted to marital property where there is an appreciation in value of the separate property due to active efforts of either or both of the parties during the marriage. The burden of showing whether the increase in property value was passive or active is on the owner-spouse. 4. Acquired property by either party after Last separation of the parties. VALUATION OF BUSINESS-A basic starting point in the business valuation process is derived from the IRS and includes the following factors: (NO BED Go SaM) 1. 2. 3. 4. 5. 6. 7. 8. Nature of the business and the history of the enterprise from its inceptions Economic Outlook of the specific industry in general Book Value of the stock and the financial condition of the business Earning capacity of the company Dividend paying capacity of the company Whether or not the enterprise has Goodwill or other intangible value Sale of the stock and the size of the block of stock to be valued Market Price of the stocks of corporations engaged in the same or similar business

FACTORS CONSIDERED IN AWARDING CHILD CUSTODY (A PRE PRO HOt) 1. Age and physical and mental condition of the child, with due consideration to the changing dev needs of the child 2. Age and Physical and mental condition of Each parent 3. Relationship between each parent and the child, with due consideration to the positive involvement with the child s life and the ability to accurately assess and meet the emotional, intellectual and physical needs of the child

4. NEEDs of the child, with due consideration to the child s other important relationships, such as siblings, peers and extended family 5. Child s Reasonable Preference must be considered in the court deems the child to be of reasonable intelligence, age, understanding and experience to express one 6. Role that each parent has played, and the future role of ea parent in the upbringing and care of the child 7. PrOpensity of ea parent to actively support the child s contact and relationship w/the other party, the ability of ea parent to cooperate in matters affecting the child, and the willingness and ability of ea parent to maintain a close continuing relationship w/the child 8. History of family abuse 9. Other Factors the court deems necessary and property to the determination a. Immoral Behavior i. Adultery and homosexuality do not necessary render a parent unfit, unless the circumstance(s) have had an adverse impact on the children. The standards for homosexuality, however, seem to be different: 1. Adultery: decision is based on the child s exposure to immoral behavior rather than the existence of the behavior alone. If child is unaware, parent is not deemed unfit due to adultery. 2. Homosexuality: Same logic. Depends on how much child is shielded from the behavior. RELOCATION Unless the court, for good cause shown, orders otherwise, in any custody or visitation proceeding, the court shall require 30 days advance written notice be given to the court and the other party by any party planning to relocate and any intended change of address. REMOVAL FROM VIRGINIA The court will permit the removal of a child from VA only if that removal would be in the child s between interests. ACCESS TO PARENTS RECORDS NOW REPEALED A parent s licensed mental health care provider may be required to testify on behalf of or against a parent or any of the parent s adult relatives. DISOBEDIENCE Disobeying a valid custody order can result in a civil contempt conviction. The violator may also be subject to a monetary award to the custodial parent for expenses incurred in attempting to enforce the decree. GRANDPARENT S VISITATION Court must now find that harm to the child will result from denial of visitation. MODIFICATION OF CUSTODY 1. All custody questions (inc visitation and residence) are modifiable. a. Test to Modify: The court will consider whether there has been a change of circumstance(s) since the last custody award and that whether a change in custody will be in the best interest of the child. SUPPORT

1. Guidelines: Support is governed by Child Support Guidelines. There is a rebuttable presumption in any proceeding for child support, that the amount of award set out in the child support guidelines is correct. a. A CT. may deviate from the application of the child support guidelines only after making a written finding that the application of the guidelines would be unjust or inappropriate based on relevant evidence.

CRITERIA FOR DEVIATION FROM CHILD SUPPORT GUIDELINES (ACIDD GaS IS CaD TWO) 1. Actual Monetary Support for other family members or former family members 2. Custody Arrangements re the children, inc the cost of visitation travel 3. Imputed income to a party who is voluntarily unemployed or under-employed (not when the child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party s empl shall be evaluated w/consideration of the good faith and reasonableness of employment decisions made by the party) 4. Debts of either party arising during the marriage for the benefit of the child 5. Direct Payments ordered by the court for maintaining life ins coverage, education expenses, or other court-ordered direct payments for the benefit of the child. 6. Extraordinary Capital Gains such as capital gains resulting from the sale of the marital abode 7. Any Special Needs of a child resulting from any physical, mental or emotional condition 8. Independent Financial Resources of the child or children 9. Standard of Living for the child or children 10. Earning Capacity, obligations, financial resources and special needs of ea parent 11. Equitable Distribution , where property distributed earns income or has an income earning potential 12. Tax consequences to the parties inc claims for exemptions, child tax credit, and child care credit for dependant children 13. A Written Agreement, stipulation, consent order, or decree between the parties which includes the amount of child support 14. Such Other Factors as are necessary to consider the equities for the parents and children y Parents cannot privately alter the terms of the child support w/out the court s approval

UNIFORM CHILD CUSTODY JURISDICTION ENFORCEMANT ACT (UCCJEA) 1. VA has adopted this act who s main purpose is to provide one court w/continuing jurisdiction(s) over a child to protect the child s best interests. a. Jurisdiction(s) will usually lie in a state w/the closest connection to the child since records and evidence are readily available. 2. Jurisdiction(s) : a VA court competent to decide child custody matters has jurisdiction(s) to make a child custody determination, if one of the following is met: a. VA is the home state of the child, or was the child s home state w/in six months prior to the proceedings commencement and one parent or person acting as a parent continues to live in VA b. VA has significant contacts w/the child and one parent. Requires 3 factors be present: i. Child and at least one parent has significant connection to VA and ii. Substantial evidence exists in VA concerning the child s present or future care, protection, training, and personal relationships and iii. No court has home ST. jurisdiction(s) as described above or a court that does declines it on the grounds that VA is a more convenient forum

CHILD SUPPORT 1. Overseen by DSS 2. Failure to pay is a criminal offense-person may be fined (not exceeding $500), confined in jail not exceeding 12 months or both 3. THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) a. An interstate compact of uniform provisions now in force in all states. Allows a person owed support to pursue an action in VA for that support against an out of state obligor rather than having to travel to that obligor s state. i. Person owing support files an action w/an initiating tribunal in VA, which forwards the proceeding to another state ii. Any duty to support is a duty iii. Jurisdiction(s) ; may be brought in the VA courts iv. Expanded Personal jurisdiction(s) : under UIFSA VA courts may exercise jurisdiction(s) over nonresidents if: 1. Ind is personally served w/process w/in CW 2. Inv submits to VA s jurisdiction(s) by consent 3. The ind resided w/the child in VA 4. The ind resided in VA and paid prenatal expenses or provided support for the child 5. The child resides in VA as a result of acts or directives of the ind 6. The exercise of personal jurisdiction(s) is authorized under VA law 7. There is any other basis consistent w/the state and fed constitution for the exercise of personal jurisdiction(s) PATERNITY Parties who may bring paternity action (ChIPPeD) 1. Child 2. Person standing In Loco Parentis to the child or having legal custody of the child or 3. Parent 4. Person claiming Parentage 5. Dept of Social Services or the Dept of Juvenile Justice Standard of proof is by clear and convincing evidence ALL RELEVANT EVIDENCE IS ADMISSIBLE, INCLUDING BUT NOT LIMITED TO (SOMe SCAM) 1. The results of Scientifically reliable genetic tests, inc blood tests; 2. Evidence of Open Cohabitation or sexual intercourse between known parent and alleged parent 3. Medical or anthropological evidence relating to alleged parentage of the child based on tests 4. Evidence of the alleged parent consenting to or acknowledging the common use of such parent s Surname by the child; 5. Evidence of the alleged parent Claiming the child as his child on any statement, tax return or other document filed by him w/any state, local or fed govt or any agency 6. A true copy of an Acknowledgment of paternity under oath;

7. An admission by a Male between the ages of fourteen and eighteen who is represented by a guardian ad litem, under oath

FINAL PATERNITY ORDERS (SCoRe) 1. May include any provision directed against the appropriate party to the proceeding, concerning the duty to Support, inc an equitable apportionment of the expenses incurred on behalf of the child by the natural parent or any other person or agency who incurred the expenses 2. May also include provisions for the Custody and Guardianship of the child, visitation privileges w/the child, or any other matter in the best interest of the child 3. When VA has paid expenses of the mother s pregnancy and delivery through its Medicaid program, the court may order Reimbursement. WRONGFUL DEATH: Children w/in VA s wrongful death statute includes nonmarital children of the father whose death gives rise to the wrongful death action. Standard of proof is preponderance of the evidence. Pedigree Exception: An exception to the hearsay rule that allows consideration of hearsay evidence regarding a person s family relationship as proof of existence of the relationship if no better evidence is obtainable and the declarant is deceased or out of state family member. Pedigree Exception is the legal principle that allows a witness to testify as to his name and certain family details under the American and English common law concepts of evidence with no additional foundation. Otherwise, establishing the identity of the witness would waste much of the court's (and the jury's) time. Pedigree is, like many old rules of evidence, either a rule or an exception, depending upon how it is used DEFINITION OF ABUSED OR NEGLECTED CHILD- An abused or neglected child is one whose physical or mental health is harmed or at substantial risk of a harm. (IN CASE) 1. Injury a. Child upon whom parent crates or inflicts physical or mental injury by non-accidental means, threatens to do so, or allows such injury to be inflicted or creates substantial risk of death, disfigurement or impairment of bodily or mental functions. 2. Neglect a. Parent fails or refuses to provide care necessary for the child s health. But treating a child in good faith by solely spiritual means (ex; prayer) is not neglect 3. Lack of Parental Care a. Child w/out parental care caused by unreasonable absence of parent or physical/mental incapacity of parent 4. Abandonment a. Child abandoned by parent(s) who are suppose to care for him/her 5. Sex Crimes a. Parent commits or allows to be committed any act of sexual exploitation or any sexual act on child in violation of the law. 6. Exposure to known Sex Offender a. Parent knowingly leaves child alone in a dwelling w/a person parent knows has been convicted of an offense against a minor that requires registration as a violent sexual offender, unless said offender is a relative

**A family court may order ex parte that a child be taken into protective custody w/out parental consent if: 1. There is a probable cause to believe that by reason of abuse or neglect there exists an imminent and substantial danger to the child s life, health or physical safety and reasonable efforts have been made and there are not less drastic measures than removal of the child from the custody of the current parent/guardian. TERMINATION OF PARENTAL RIGHTS-The family court may order the termination of parent rights (TPR) if it serves the best interests of the child and the court finds any of the following grounds, codified in VA law: (CRAVe CUPS) 1. Failure to Maintain Contact w/Child in Foster Care a. The parents have failed to maintain continuing contact w/and plan and provide for the child 6 months after being placed in childcare. 2. Failure to Remedy: a. The parents have been unwilling or unable to substantially remedy the conditions which led to the original foster care placement w/in a reasonable time, not to exceed 12 months 3. Abandonment a. The child was abandoned, under circumstance(s) that make the identity or whereabouts of the parents undeterminable and b. The child s parents, guardians, or relatives have not come forward to identify and claim the child w/in three mos after the court order placing the child in foster care was issued; and c. Diligent attempts have been made to locate the parents 4. Child s Veto Right a. Parental rights will not be terminated if the child is at least 14 or who has otherwise reached an age of discretion as decided by the court and objects to the termination. 5. Crimes Against own Children a. Parent has been convicted of murder, manslaughter or an attempt of either offense or a comparable offense where the victim was a child of a parent or parent has been convicted of felony assault or felony sexual assault where the victim was a child of the parent. 6. Uncorrected Neglect or Abuse a. Child has been placed into foster care by court commitment, entrustment agreement or voluntary relinquishment by the parents, and b. The neglect or abuse suffered by the child posed a serious & substantial threat to that child s life, health or development, and c. It is not reasonably likely the conditions which led to the neglect can be substantially corrected or eliminated in a reasonable amount of time. The following are prima facie evidence which can fulfill this prong: i. Mental or emotional illness suff that there is no reasonable expectation the parent can properly care for the child ii. Habitual addiction or abuse of drugs or alcohol of parent iii. Failure to respond to or avail self of rehabilitative options 7. Prior Termination

a. Parental rights have been termed in the past w/regards to siblings 8. Subjection to Cruelty a. Parent has subjected the child to torture, or chronic or severe abuse or sexual abuse, inc failure b. to protect child from such conduct if the failure to protect evinced a wanton or depraved indifference to human life or resulted in death or serious bodily harm to child.

PETITION TO TERMINATE PARENTAL RIGHTS-Action may be brought by child protective services or any interested person. 1. Must be: a. Service on the parent; b. Written notice must also be given to foster parents; c. Relatives providing care for child and pre-adoptive parents 2. Burden of Proof a. Clear and Convincing evidence 3. TPR hearing a. If parent not represented by counsel; or b. Not in default and c. Unable to afford legal representation, d. The CT. must appoint attorney for the parent; also e. A Guardian ad litem must be appointed. 4. Effect of TPR a. Divests the parent(s) of all rights and responsibilities toward the child, except the right of the child to inherit. b. Child s right of inheritance is terminated only by a final order of adoption. INTERSPOUSAL AND PARENTAL IMMUNITY 1. Interspousal Immunity has been completely abolished as a defense against tort; 2. Parents are not fully immune from tort charges by their children. Parents may be liable if: a. The child is emancipated; b. The tort in question is an automobile accident c. There is a master servant relationship between the parent and the child Rules: Adultery: a. It is no longer true that in a suit for divorce on grounds of adultery, the guilty party must be caught in the act. It is enough to prove adultery by circumstancial evidence, so long as the adultery is proved by clear and convincing evidence and the proof is strict, satisfactory and conclusive. b. There must also be third-party corroboration on ea ground of divorce. Rules: The defense of Condonation: Forgiveness of an act may constitute a ground for divorce bars the right to obtain a divorce based on that act, unless the forgiveness was conditional. Rule: Constructive desertion: 1. Abandonment and desertion is the actual breaking off of matrimonial cohabitation w/the intent to desert or abandon. In order to be entitled to a divorce, the desertion must have continued for a period of a year. 2. Desertion can exist even when the parties remain under the same roof, and it can exist when a will breach and neglect of marital duties that destroys life occurs.

Scenario: Wife and husband get married, have two kids. Wife gets big promotion in another city and takes it. Husband stays put. After one yr., husband files for divorce. Wife agrees to settlement to include spousal support and child support. Wife does well at her job going up the corporate ladder.

Husband is finding it increasingly difficult to pay the bills. He asked ex-wife to increase monthly payments but she refused. Wife got irritated and contested the custody arrangement.