Archive for October, 2011

When does a Will become effective?

Sunday, October 30th, 2011

I’ve gotten a couple of questions lately about when a Will becomes effective.  One of these questions was from a son whose mother had a habit of writing and rewriting her Will on a regular basis to delete one or another of her children as a beneficiary based on who was the last person to visit the mother.  Another question was from a man whose brother had died and he wanted to know if a written, but unsigned, copy of a Will was effective.

A Will is a document that tells the world (and most importantly, the court) how you want your ‘stuff’ distributed after you have died.  Most people think of this as telling the world about your plan for the inheritance of your estate.

Contrary to popular belief, a Will does not become effective when it is written, or when it is signed, or even when it is executed correctly with all of the proper witnesses and signatures and put in a safe-deposit box.

A properly executed Will becomes effective the moment after the person who is the subject of the Will takes their last breath.  That is, only when the person who is the subject of the Will has died.

This is because as long as a person is alive, they can change their minds about what they want to do.  Most Wills have some verbiage that says something to the effect that the person revokes any and all existing Wills and that this is now their Last Will and Testament.  But if they are still alive, they can always come back next year, or next week, and do the same thing again.

Also, unless the Will was executed with all of the correct processes and procedures, it is just a bunch of words on a paper and basically worthless.  If you want your Will to be effective at your death, you need to have the proper execution formalities for your jurisdiction.

The last Will that was properly executed before your death is the one that the courts will find to be effective, even if you had changed your mind and thought you were making the right changes in later documents.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Can I sue for back child support if we just had a verbal agreement?

Sunday, October 23rd, 2011

I found this question in my email this week, and it is one that I get relatively often.

This is not just a question about child support.  It is also a question about whether or not you can enforce the terms of a verbal agreement.

Verbal agreements are valid.  You don’t necessarily need to have a written agreement to do anything, and we do it all the time.  Simple things like ‘I’ll meet you at noon for lunch’ is an agreement.  Or ‘I’ll pay for dinner if you get the tip’ is an agreement.  Most of the time these agreements work just fine and there are no problems.

But what if one party doesn’t do what was agreed?  What if I paid for dinner and you didn’t bring any money for the tip?  Or what if you brought money for the tip, but I didn’t bring enough money for dinner?

The problem is not whether the agreement was valid, the problem is whether or not you can enforce the terms of the agreement.

When you sue someone, you are asking the court to enforce the terms of your agreement.

The problem with verbal agreements is that there are often no other witnesses.  So if and when you go to court to ask the judge to enforce the agreement, the other person can just say that they didn’t make the verbal agreement.  Then it’s your word against theirs and the judge has a hard time finding sufficient evidence to enforce what you assert is an agreement.  Maybe the other person thought that they had only agreed to pay a tip up to one dollar?  Or maybe I agreed to pay for dinner, but only up to $10 and you ordered something much more expensive?  Or maybe I thought that the dinner was going to be that night and you cancelled and wanted to have the agreement reinstated for a dinner two months later?  And what if there was a witness to the agreement, but he is no longer available to testify, or maybe he forgot?  Maybe the other person thought it was a joke?  Or maybe the other person felt that they had to agree or something bad would happen to them?

Without something in writing, it is more difficult to prove the actual terms of the agreement.

Most people go to court to get a child support order.  An order of the court gives you extra power of enforcement because you can now bring a contempt charge if the person refuses to obey an order of the court.  The courts take these very seriously and a non-paying parent can be put in jail.

In the Commonwealth of Virginia, the amount that should be paid for child support is actually located in the Code of Virginia in Section 20-108.2 There are also online resources that can help you to calculate the correct amount of child support such as the Child Support Obligation Calculator on the Department of Social Services website.   The amount in the child support obligation calculator is the amount that the laws of Virginia say should be paid for the support of the child.  The laws of Virginia also allow the parents to agree to a different amount of support, so long as both parents agree that the different amount will be sufficient to pay for the child and that the custodial parent will not need to use government funds to supplement their household income.  The parents cannot agree to a lesser amount of support if the child is going to be eligible for TANF or WIC or any other government funds.  The parents may also agree to a higher amount of support if they wish.

If you are going to do this all on your own without the help of either the court or DCSE, then I suggest that you complete the form online and include a print-out of the calculation with a written agreement that is signed and dated by both parents.  However, I do not recommend doing it yourself.

My advice in these cases is for the parents to go to court to get the order.  It is not expensive, and you don’t necessarily need an attorney.  You can also go to the Department of Social Services, Division of Child Support Enforcement to file the paperwork and you may not need to go to court at all.

As long as both sides to an agreement do what they are supposed to do, there is never a problem.  But if one side does not perform as they agreed, it is much easier to enforce the agreement if there is a court order, or at least some writing as proof of the agreement.

In my experience, there is seldom a writing as a back-up to a verbal agreement to pay child support.  Also, a verbal agreement to pay child support is seldom enforced by the courts because there is just not sufficient evidence to prove that the agreement ever existed.  What usually happens is that the court will order support to be paid from the date of the petition for the court hearing until the child reaches the age of maturity, but there is seldom an award for ‘back’ child support because there really isn’t any provable ‘back’ support due.

Can I terminate my child’s father’s parental rights?

Saturday, October 15th, 2011

I get this question fairly often.  It is usually from a mother who also says that the father has no contact with the child at all and he hasn’t paid any child support.  Often, there is a comment that the father is in jail for some reason or another, and perhaps there is an order of protection for both the mother and child to keep the father away.

I’m not entirely sure why they want the father’s parental rights terminated.  If the father is not in the picture at all, then he is not a problem to either the mother or the child.

If the mother wants to make sure that she is the only one making any decisions for the child, she can always file for full legal and physical custody with no visitation, or very limited, or only supervised visitation from the father allowed.  If the father is really as absent as the mother says, he is not likely to argue against her and it is likely that the court will award her full custody.  If the father is actually in the picture, but a detriment to the child, then the court may order only supervised or no visitation with the child.

If the father objects to the full custody being given to the mother, he can argue that in court and the court will make a determination based on the best interests of the child.  The Commonwealth of Virginia is interested in doing what is best for the child, not supporting one side in an argument between the parents.

Also, so long as the father is the legal father, the mother can be awarded child support which must be paid by the father.  If the father does not pay his court ordered child support, he might be put in jail for that failure.  Again, not really a problem for a mother who apparently does not even like her child’s father.

If the mother is married to someone who is not the child’s father and she wants to have her new husband adopt the child, a step-parent adoption process can be followed which will end up as a sort of termination of the father’s parental rights when the father agrees to the adoption, or if the adoption is approved without the father’s consent.

There is also the situation where the mother wants to terminate a father’s parental rights because the mother is receiving social services and they have told her that they will go to court to have the father ordered to repay the public funds as child support.  The mother wants to receive the funds, but she does not want the father to have to pay.   And yes, sometimes the father is living in the home with the mother and the children.

The Commonwealth of Virginia has determined that it is the obligation of both parents to provide for their children.

So the short answer to the question of whether you can terminate your child’s father’s parental rights is generally ‘no’.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Who Gets Custody of the Children — Take 2

Sunday, October 9th, 2011

Some time ago I wrote a blog post on Who Gets Custody of the Children and the information there is still valid.

But that post assumed that the children were born during a marriage that was ending in divorce, which is not always true.  More and more children are being born into ‘relationships’ that do not have the benefit of a marriage ceremony.   And often these children have siblings with different fathers or mothers and the child may be very close to a step-parent.  And often the children are actually living with grandparents, or other relatives, who have taken over the parenting role.

What happens in these complicated situations?

The basic rule of  doing what is in the best interest of the child still stands, but there are some additional hurdles that must be considered.  First of all, there is a presumption in Virginia that being with the natural parents is in the best interest of the child. If someone other than a natural, biological parent wants to have custody of the child, they must first prove that the bias for the natural parent is wrong in this case.  Generally this means that the other person must prove that it would be harmful for the natural parent to be granted custody.

This often puts the entire family at odds with each other as Grandma goes into court and says that her own child is not a fit mother or father for the grandchild.  Often, there is evidence of drug abuse or other activity that the courts use to determine that the child really is better off with Grandma and Grandma is granted custody.

Or it might be that the biological parents are really too young to be able to take care of the child and they willingly give up custody to Grandma who might be in her late 30s or early 40s and is more established.  Grandma is also still at an age when she could have more children of her own and she is looking forward to being a mother again.

Fast forward a few years and now one or both of the biological parents are finishing school and getting on their feet and they now want to take over the parenting role for their child.

The courts will look at all of the evidence about the lifestyle of all of the parties, and at the relationship that the child has with each of them.  The judge will still make the decision based on what is in the best interest of the child given all of the facts surrounding this particular case.

If the biological parents have had little contact with the child, the courts might order that the primary custody stay with the grandparent for a time and the biological parents be given increasing visitation so that the child can form a relationship with the parent with a goal of moving custody to the parent in the future.

If the biological parents have had a lot of contact with the child and there is already a bond between the parent and child, the courts are more likely to grant custody to the parent and the grandparents will then become what they were meant to be….grandparents.

Based on what I said before, the grandparents with custody might decide that the best path for them to take is to keep the child from visiting with their biological parents and that way they can keep custody.  But remember #6 in the factors to be considered when determining custody.  The courts will not look kindly on any custodian who keeps the child away from the biological parents without a really good reason, and that in itself might be enough for the courts to decide that custody must be taken from Grandma and given to the biological parent.

Also, as I mentioned last week, relocation may be a problem.  As I said before, the courts cannot keep YOU from leaving the area, but the courts may be able to stop you from taking the child with you.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Can I move my child to another state?

Sunday, October 2nd, 2011

I often get calls from people who want to move to another state and want to know if it’s ok to take their children.

Like most things in law, the answer is ‘it depends’.

In Virginia, if there is any sort of court ordered custody arrangement, you must notify the court and the other parent at least 30 days in advance of when you plan to move.  Why?  So the other parent has a chance to bring this up with the court before you and the child relocate.  Will the court stop you from moving?  It depends on the reasons for the relocation and the ties that the child has to family in his/her current location.  Of course the court can not stop YOU from moving, but they may order that the child not be allowed to move with you.

What if you take the child anyway?  Can the court order you to bring the child back?  The answer is ‘yes’, and if you take the child against the court’s orders this is called kidnapping and it is not something that you should take lightly.

Also, the court order means you need to notify the other parent and the court prior to any move, not just a move to another state.  You also need to notify the court and the other parent if you just move to another town, across town, or even just move next door.

What if you don’t have any sort of court ordered custody?  In that case, either ‘legal’ parent may move and take the child with them.  Which brings up the next question, who is a ‘legal’ parent?

Generally, if the woman is married at the time of birth, her husband is presumed to be the father of the child, and he will be the ‘legal’ father even if everyone knows he is not the biological father.  In order to have this changed, you must go to court to get  paternity established so that another man can become the ‘legal’ father.

In the case of adoption, the court can name a legal mother and/or a legal father who is not related to the child biologically.

If you are a legal parent of the child and there is no court order regarding the custody of that child, then the answer to the question about a move is ‘yes’, you can move your child to another state even if this means moving the child away from the other legal parent.

If you think this might be a problem for you, then you might want to consider getting a court order to establish a custody arrangement.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.