The Hague Convention: International Custody Disputes and Steps to Keep Your Children Safe

By: Steven Goldman, Esq.

Custody disputes, when not handled effectively, are some of the most difficult, heart-wrenching and financially draining situations a parent can encounter in a domestic relations case. Litigation is expensive, emotionally taxing, and often results in at least one parent believing that his or her role in the child’s life has been marginalized.

International custody disputes raise the stakes even higher because court orders from the United States may not even be recognized in other countries. If your child is traveling or residing within a country, with the other parent, and that country does not recognize your court order, that country’s judiciary system will do nothing to return your child to you in the United States.

How can that be? In which countries could this occur? What steps can be taken to prevent this from happening?

First, a framework to understand the rules that are currently in place:

1980 Hague Convention on the Civil Aspects of International Child Abduction

More commonly referred to as the “Hague Convention,” this treaty was signed by a number of countries to assist one another in cases involving child abductions. Without the treaty, sovereign nations cannot interfere with another’s legal systems, judiciaries, or law enforcement, and so child custody orders are unenforceable. However, the Hague Convention sets forth the following rules for all signatories:

• Each country must have a Central Authority, which is a main point of contact for parents and other local governments involved in abduction cases. Central Authority is responsible for helping locate abducted children, encouraging amicable solutions to parental abduction cases, and facilitating the safe return of children as appropriate.
• Countries are expected to conduct expedited proceedings of Hague Convention applications. Courts must explain delays if it takes more than 6 weeks.
• If custodial rights were violated when the child was taken from the child’s home country, a custody order is not necessary to begin Hague Convention proceedings.

In order to commence Hague Convention proceedings, a parent must show the following:

• The child is under the age of 16
• The child was “habitually resident” in one convention country and wrongfully removed to another convention country
• A person can only have one “habitual residence,” which pertains to the customary residence of the child prior to the removal. Habitual residence can be altered only by a change in geography and the passage of time, not by changes in parental affection and responsibility, nor the child’s citizenship. See Friedrich v. Friedrich, 983 F.2d 1396 (1993)
• The place where a person had been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from a child’s perspective. See Feder v. Evans-Feder, 63 F.3d 217 (1995)
• Removal or retention of the child is wrongful (i.e., a violation of custodial rights)
• A “violation of custodial rights” is a breach of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the removal or retention
• At the time of removal or retention, those custodial rights must have been actually exercised, or would have been exercised but for the removal or retention
• The Hague Convention was in force between the two countries when the removal or retention incurred (a list of all countries that are partners to the Hague Convention can be found on the websites of the Hague Conference and the U.S. Department of State).

Compliance with the Hague Convention

One must not assume that a partner to the Hague Convention will immediately comply with its responsibilities. For example, in May 2018, the U.S. Department of State cited Japan as one of the countries showing a pattern of noncompliance with the Hague Convention. It found that “22 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months.”

Further, it found that the enforcement process is “excessively long” and it is “very difficult to achieve enforcement of Hauge return orders.” The U.S. Department of State issues an Annual Report on International Child Abduction in which it summarizes the status of all signatories to the Hague Convention.

Notwithstanding the issues surrounding noncompliance with the Hague Convention, there are legitimate reasons for denying the return of a child to his or her country of habitual residence:

• If there is a grave risk that the return would expose the child to physical or psychological harm, or otherwise place the child in an “intolerable situation”
• The child objects to being returned and has attained an age and maturity at which the court can take account of the child’s views
• More than one year has passed since the wrongful removal and the child has become settled
• The party seeking return consented to or acquiesced to the removal or retention
• Return of the child would violate human rights
• The party seeking return was not exercising rights of custody at the time of the removal

Steps to Prevent Your Child’s Wrongful Removal/Retention

For these reasons, it is prudent practice to be very specific about international travel when drafting a custody agreement. International travel requirements will be extremely helpful in pleading for the return of a child under the Hague Convention as they will help show that a party ignored specific protocols and that, therefore, the removal or retention of the child was “wrongful.”

Here are a few tips to help safeguard your family:

1. The agreement should require advance notice of travel, a complete itinerary for the travel, including an exact return date, and means to communicate with the other parent and the child during the travel. If a party wishes to differentiate travel to countries that are signatories to the Hague Convention and those that are not, that must be included in the agreement as well;
2. The agreement should also reference control of a child’s passport during periods of non-travel and a process for transferring the passport prior to travel;
3. When traveling internationally, always carry a certified copy of your custody order. Bring a digital copy with you as well, for convenience, but do not rely on the digital copy as an official record; and
4. If your child custody matter is being litigated, those specific terms should be argued, with reasons to support the inclusion of those terms in the final custody order.

If you or your loved one is faced with this frightening experience, please immediately contact your country’s officer, as well as a local domestic relations attorney with experience in international custody disputes, and begin filling out a Hague Application at the U.S. Department of State website.

If you need assistance beginning the process, have further questions about your child’s international travel, or simply wish to draft a comprehensive custody agreement that covers all aspects of international travel, the experienced Virginia divorce and family law attorneys at Curran Moher Weis are here to help you throughout the process.

Contact us to set up a consultation on our website, or by calling us at (571) 328-5020. Consultations are available in Fairfax and Alexandria, Virginia.

HOW IS HOME OWNERSHIP DETERMINED IN A DIVORCE?

By Daniel Schy, Esq.

As the busy spring housing market kicks into gear, it is a relevant time to shed light on one of the most complex aspects of divorce – what to do with the marital home.  This question is complex for many reasons, but primarily because it encompasses the substantial, sensitive mix of financial, emotional, and legal considerations.

From a legal standpoint, Virginia utilizes a process called equitable distribution to divide the assets and debts of the marriage, including real property.  Critical to the understanding of how real property can be distributed is understanding the difference between having a legal interest in real property and having an equitable interest in it.  Generally, the former refers to the individual(s) who are titled on a property, and, while the legal interest may affect the Court’s authority to address which party receives real property in a divorce, it typically will not impact the equitable interest each party may have.  More succinctly, a spouse can have an equitable interest even if he/she isn’t on the title.

The first step in the equitable distribution of property, such as a home, is identifying what real property is, in fact, an asset of the marital estate.  The Court must determine whether the home is separate property, marital property, or some hybrid of the two.

Separate Property:

There are several ways property may be considered separate property, with the most common situation in divorce cases arising from one spouse’s purchase of the property prior to marriage.  There are others – obtaining real property by the use of separate funds, by gift, or by bequest – but the overarching concept is that certain property may retain a separate nature.  For instance, if one spouse purchases a home and pays off the mortgage using separate income, then the home will be considered a purely separate asset.  The Court has no authority to distribute separate property in a divorce.

Marital Property:

Most property acquired during marriages will be considered marital property.   Income earned during the marriage is considered marital property, and, consequently, real property paid for by marital property will likewise be marital.  For instance, the parties purchase a home after they marry and use income earned during the marriage for a down payment and to pay the subsequent mortgage.  This property will be considered a purely martial asset regardless of whether it was only one or both spouses whose income contributed to the mortgage payments, and the Court will use the factors set forth in §20-107.3 of the Code of Virginia to determine how the property will be distributed. 

Hybrid Property:

As the name suggests, the classification of hybrid property occurs when there exists both a marital interest and a separate interest in the real property.  For example, one spouse purchases a home prior to the parties’ marriage, using his/her separate funds for a down payment and making payments from his/her income toward the mortgage leading up to the parties’ marriage.  Subsequent to the marriage, the income earned during the marriage is used to continue making payments on the mortgage.  As a result, this party is likely to be classified as hybrid property.

Other situations where a property can become hybridized is where one spouse makes a contribution of their own separate property to the equity in the home, and where one spouse’s significant personal labor and efforts can be linked to an appreciate of the separate property during the marriage.

The separate interest in the hybrid property cannot be distributed, and will remain the property/interest of that party, and the remaining portion that is martial will be subject to equitable distribution.  In many, but not all, similar situations, the party making the initial down payment may be permitted to a greater share of any equity in the home.

Does Legal Title Matter?

The short answer is: sometimes.  While the equitable interest discussion typically dominates the conversation when distributing real property, legal interest can also be of consequence.  More specifically, legal title can impact the distribution of assets because the Virginia Code specifically prohibits the Court from dividing or transferring property or titled in only one of the parties’ name.

For example, if the divorcing parties purchase a home during their marriage, but because one spouse has poor credit, he/she isn’t on the mortgage or the title.  Each party would still have an equitable interest, but the Court would not have the authority to transfer the property from the spouse who is titled to the spouse who isn’t titled.  The Court can only do so if both parties are titled on the real property.

So What Happens to the Home?

In a situation where the Court cannot transfer the title to a party who is not on the title, the Court has the authority to order a monetary award. This would be payable as a fixed sum or over a period of time in fixed amounts, to the non-titled party as for his or her equitable interest in the house.

If both parties are on a home title, the Court may grant it to one of the parties, while typically also awarding the other spouse payment for his/her equitable interest in the real property.  In doing so, the Court must consider the factors set forth in §20-107.3 of the Code of Virginia to make that determination.

For example, the Court could find that the real property is marital property, but elects to award it to one spouse.  The Court also finds that there is $100,000 of equity in the real property, and divides that equitable interest evenly.  While the Court has awarded the house to one party, it will usually also order that spouse to pay the other party his or her share of equitable interest.  Alternatively, the Court may also order the sale of the property and apportion the proceeds (or debts, if the sale price fails to cover that which is owed on the mortgage) to either party or both parties.

When you hear someone going through divorce litigation say, “I want the house,” while that may happen, it does not come without the cost of buying out the other spouse’s interest. It is an extreme rarity for a spouse to be awarded a home encumbered by a mortgage but to have the other spouse continue to be completely liable on the mortgage with no financial responsibility on the spouse receiving the home.

There are far more nuances than can be covered in a brief overview of what to do with your home during divorce.  The circumstances of each case will dictate how the distribution of real property should occur, and having a trusted attorney assisting is critical to understanding your options.

The attorneys at Curran Moher Weis have the knowledge and experience to help you navigate this and other complex issues of your divorce.  Contact us here or call us at (571) 328-5020 to set up a consultation today.

WHO GETS THE PETS IN A DIVORCE?

By Carl Schoenherr , Esq.

Most people think about custody as it pertains to children in a divorce, but what happens when a couple has a pet?

Are pets treated the same as children, and does the court care about the best interest of the family pet?  For many people, pets are part of their family, and the issue of who gets the family pet in a divorce can be especially important, challenging and emotional. Unfortunately, this area of law can be particularly ambiguous when it comes to Virginia law, but I’ll “shed” some light on that in this blog.

According to Virginia law, pets are personal property, and just like any other personal property, they are subject to division by the court in a divorce case under Section 20-107.3 of the Virginia Code.  This section of the code focuses on equitable distribution – the process the courts use to identify and determine the value of assets and liabilities, determine which of those are considered marital vs. separate, and then divide these according to a series of factors (having to do with the marriage, acquisition, and care of the property).

Inherent in this process are a couple of takeaways for those who are concerned about the custody of the family pet.

First, the best way to ensure you get a pet in a divorce is to prove that he/she is your separate property. .  If you can prove the pet was purchased, or adopted, by you prior to the marriage without any funds from the other party, then the presumption would be that you get to keep the pet.  The other party would need to prove that they acquired an interest in the pet over the course of the marriage by significantly increasing the pet’s value through his/her own efforts.  Note that the courts are looking at the value to the general public, not value to an owner, so this increase can be difficult to prove

If the court determines that a pet is marital property, then the court uses the factors contained in the code to divide the property.  Some examples of things a court may look at include:

• Contributions, monetary and non-monetary, that a party made to the acquisition, care, and maintenance of the pet;
• Which party is in the best position to continue to maintain the pet;
• Any history of abuse or neglect of the pets; and
• Where any children who have bonded with the pet might be residing pursuant to a custody or visitation order.

Furthermore, the factors include a catch all, which provides sufficient leeway for additional arguments about where the pet should reside, which could potentially include the “best interests” of the pet.  Tailoring your evidence in a case to support the factors above, such as evidence as to who cared more for the pet, who spent more time with the pet, etc., will increase your chances of a court awarding you the pet in a divorce.   A court may order the pet and any value assigned to you outright, or award you the pet, but order you to pay a portion of its assigned value to the other spouse.

For many parties, the process of using the courts to decide whose “property” the pet is can seem cold and unfair.  This is especially true when the court assigns a dollar value to the pet that can never measure up to the sentimental value you place on him/her.  However, you have an alternative to using the courts.  Because the law considers pets “property,” a court will not set aside any agreement regarding the pet, unless the agreement is unenforceable as a contract.  Once you have an agreement regarding the pet, that agreement can be incorporated into and enforced by the court as part of the final order.

If you need assistance reaching an agreement, be sure you are working with a knowledgeable family law attorney who can counsel you on all of your options, such as mediation or other dispute resolution techniques.  The experienced attorneys at Curran Moher Weis are here to help you through that process and other complex aspects of a divorce and property division. Contact us for a consultation here.

HOW FEDERAL EMPLOYEES’ GROUP LIFE INSURANCE SPOUSAL BENEFITS WORK IN A VIRGINIA DIVORCE

By Grant T. Moher, Esq.

Divorcing parties have essentially always been able to agree to maintain life insurance for one another, and for the court to enforce those agreements.  Until recently, though, Virginia courts have not had the ability to require a spouse to maintain life insurance for the other absent the parties’ agreement.

Now, section 20-107.1:1 of the Virginia Code is in effect, and Virginia courts have the ability to require spouses paying support to maintain a policy of life insurance to benefit the recipient spouse.  Virginia has a large federal workforce, and federal employees are covered by the Federal Employees’ Group Life Insurance Program (“FEGLI”).  Under section 20-107.1:1, can a court now require a federal employee who has a spousal support obligation to name his or her former spouse as a beneficiary of some or all of his or her FEGLI policy?  The answer is yes.

I have spoken to a great many family law practitioners who are not aware of the current federal laws regarding FEGLI, and who believe that state court orders requiring the designation of beneficiaries on FEGLI policies are not enforceable due to the law of federal preemption.  While this was once true, it is no longer the case and has not been the case for 20 years.

The following is a description of the evolution of the law regarding FEGLI, and sheds light on why it is not commonly known that court orders to require the maintenance of FEGLI policies are, in fact, enforceable:

In Ridgeway v. Ridgeway, 454 U.S. 46 (1981), Army Sergeant Ridgway and his former wife got divorced in Maine.  The Maine divorce decree required Sergeant Ridgway to maintain the parties’ three children as beneficiaries on his Servicemembers Group Life Insurance (“SGLI”) Policy provided to him through his employment with the Unites States Army.

Sergeant Ridgway remarried and changed his SGLI policy to provide for payment of the death benefit to his new wife.  Sergeant Ridgway died, and the state court had to confront the question of who should receive the death benefit.  Ultimately, the United States Supreme Court held that the death benefit must be paid to Sergeant Ridgway’s new wife, because to hold otherwise would run afoul of the Supremacy Clause of the United States Constitution, which dictates that federal laws trump state laws where there is a conflict between the two.  In so holding, the Court found that the federal law of SGLI, which provided that a servicemember’s beneficiary designation controlled how his or her SGLI benefits were paid, trumped the Maine state court order requiring a different beneficiary to receive payments.

At the time of the ruling, FEGLI operated essentially the same as SGLI, so at that time, a state court order requiring the naming of a life insurance beneficiary could not override the employee’s beneficiary designation on file with the Federal Government’s Office of Personnel Management (“OPM”).

The law regarding FEGLI beneficiary designations was changed, however, in 1998.  That year, the United States Congress passed Public Law 105-205, which provided for the first time that state court orders directing the maintenance of insurance and the naming of beneficiaries overrode the employee’s beneficiary designation.  The only caveat to this was that to be effective, the state court order had to be transmitted to the employee’s agency (or to OPM generally if the employee was retired) prior to his or her death.  Subsequent regulations interpreting Public Law 105-205 published on April 6, 1999 describes the change in the law as follows:

The Federal Employees’ Group Life Insurance (FEGLI) law sets an order of precedence for payment of benefits following the death of an insured employee, annuitant, or compensationer (5 U.S.C. § 8705). First in the order of precedence is a designated beneficiary. There has been no statutory limitation on changing designations.  When a divorce decree requires an individual insured under FEGLI to name his/her children or former spouse as the beneficiary, it is possible the individual may not comply or may comply and then change the designation at a later date. This action, while potentially in violation of the court order, did not violate the FEGLI law.

Pub. L. 105-205, 112 Stat. 683, enacted July 22, 1998, requires benefits to be paid in accordance with the terms of a court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement relating to a court decree of divorce, annulment, or legal separation, regardless of whether or not the insured individual actually completes a designation complying with the court order, if the court order is received in the appropriate office before the death of the insured individual. To the extent provided in the court order, the court order supersedes any prior designation by the insured individual. Pub. L. 105-205 also prohibits an insured individual from changing his/her designation, unless the person(s) named in the court order agrees or unless the court order is subsequently modified by the court that originally issued it.

Why, then, do so many practitioners believe that court orders directing FEGLI beneficiaries can be overridden?  The answer likely lies with the Federal Government’s published Handbook for Attorneys on Court-ordered Retirement, Health Benefits and Life Insurance.

The Handbook was originally published by the Federal Government to educate attorneys on the various retirement, health, and life insurance benefits enjoyed by Federal Government employees, as well as to assist attorneys in generating the proper forms to divide the benefits between divorcing spouses.  (The Handbook can be found on OPM’s website, www.opm.gov. Regarding FEGLI, it provides that beneficiary designations can be changed by the employee at any time.)

However, the handbook was last updated in 1997 – a year before Public Law 105-205!  The Federal Government has simply never gotten around, in the last 20 years, to updating the Handbook to reflect the current state of the law regarding FEGLI beneficiary designations.

It should be noted, however, that the Federal Government does not appear to have enacted a provision similar to Public Law 105-205 for the SGLI policies that cover military members.  Thus, a court order requiring a divorcing Servicemember to designate his or her former spouse as a beneficiary under his or her SGLI would not survive the Servicemember’s later decision to change his or her beneficiary.

It is essential to hire a divorce attorney who is knowledge about the nuances and complexities of family law. The experienced attorneys at Curran Moher Weis make a point to stay up to date on these matters, and to serve as an educated, supportive guide for our clients as we navigate their divorce together.

If you are a federal government employee or spouse pursuing a divorce, contact us to discuss a plan that will set you up for as successful and painless of a process as possible.

What Happens to Accounts for Children in Divorce?

Oftentimes, during marriage, parents make financial plans for their children’s future, particularly their educational future. Considering the rising costs of higher education, many parents believe this to be an essential part of their financial plan during their marriage. The question, however, is what happens to these types of accounts when two parents decide to divorce?

There are many types of custodial accounts or college savings accounts. Two of the most common such accounts that we often address in divorce are a 529 Plan and a Uniform Transfers to Minors Act (“UTMA”) account. A UTMA account is a savings account that an adult controls for the benefit of a minor, but the account is ultimately transferred to the child when the child becomes an adult. Funds accumulated in a UTMA account can be withdrawn at any time so long as they are being used “for the benefit of the child.”

A 529 Plan is similar, except that the funds accumulated in the account are owned by the parent or custodian and must be used specifically for a child’s qualified education expenses, such as tuition and fees and room and board. As the parent controls the funds in the account, use for any other purpose may result in penalties and tax consequences.  While there are many other features of these accounts, it is best to speak with a financial professional to ascertain the pros and cons of each. Specifically, each account has different tax advantages and consequences.

For purposes of divorce, college savings accounts, such as 529 Plans, may be subject to property division. Pursuant to Section 20-107.3 of the Code of Virginia, any asset earned or acquired during the marriage by either spouse is presumed to be marital property subject to equitable distribution. Oftentimes, a college savings account falls under this categorization because the parties created and contributed to the account during their marriage. In addition, some Virginia courts have held that because the 529 Plan can be revoked (albeit not without penalty or negative tax consequences), a 529 Plan is similar to a savings account that would otherwise be subject to equitable distribution. Further, because a Virginia court is unable to distribute property in a divorce to a non-party, which in this case would be the parties’ child or children, the court cannot order that the 529 Plan or the funds held in such an account be given to the parties’ child or children.

This is somewhat perplexing to many clients, who view the funds accumulated in a 529 Plan as money that belongs to the children. In that case, the parties may reach a settlement that directs that one parent remain the custodian of a child’s 529 Plan and that the parties agree that the funds will not be withdrawn for any purpose other than for the child’s qualified education expenses. The parties may also add terms in any such agreement about any continuing periodic contributions to the 529 Plan, an age cap at which the funds must be used for the child’s education expenses, and what will happen with excess funds held in a 529 Plan, or agree to exchange statements for a child’s 529 Plan on a regular basis so both parents, even after divorce, are kept informed.

UTMA accounts, on the other hand, may not be subject to division in a Virginia divorce. Because the funds held in a UTMA account are gifted to the child and are the property of the child for which the account is held, the funds are not part of the marital estate. As such, the funds held in a UTMA account may be sheltered from equitable distribution in a divorce.

That being said, everyone’s financial circumstances are different, and there are many options for addressing 529 Plans and UTMA accounts in a divorce. So, it is important to discuss your particular case with an experienced family law attorney who can explain all options to you.

Curran Moher Weis Signs on as Main Sponsor for 2019 Heroes vs. Villains Run for Justice

For the 7th consecutive year, Curran Moher Weis will sponsor the Annual Heroes vs. Villains Run for Justice 5K – and in 2019, serve as the main, Superhero-level sponsor of the event.

This will be a milestone year, marking 10 years that the Fairfax Law Foundation has hosted the race, which supports pro bono legal service programs for Fairfax County residents who could not otherwise afford representation. The Foundation’s program also provides legal education programs and interactive activities for area students.

Curran Moher Weis has sponsored the event every year since our inception in 2012, as part of our effort to give back to the Northern Virginia community we serve. Our exceptional attorneys and staff will be out in full force at the event – running, volunteering and cheering on race participants.

Stop by the Curran Moher Weis booth for even more fun, including games and activities to keep children – and adults – occupied before and after the race! And follow us on Twitter (twitter.com/curranmoherweis) or Instagram (instagram.com/curranmoherweis) for the latest news, and photos, leading up to and on race day.

More Information:

Fairfax Law Foundation Heroes vs. Villains Run for Justice 5K

Sunday, April 7, 2019 (Kids’ Fun Run: 8:30 a.m. | 5K: 9 a.m.)

Fairfax Corner (4100 Monument Corner Drive | Fairfax, VA 22030) | Course Map

Register to run, or sign up as a volunteer.

How Holidays Work in Divorces and Child Custody Cases

By Grant T. Moher, Esq.

A New Year is almost upon us, and couples going through a separation or divorce this season are likely experiencing the difficulty of agreeing to holiday custody and visitation agreements. With a New Year comes another 12 months of special days that divorcing, or divorced, parents have to determine how to manage – from Christmas, to Federal holidays that result in long weekends, like Martin Luther King, Jr., Day and President’s Day, to children’s birthdays and summer school breaks.

As you plan for the year ahead, this blog will help you better understand how holiday visitation schedules work for these unique situations.

1. Federal Monday Holidays

Often, parents want to evenly divide Federal Monday holidays (e.g. Martin Luther King, Jr. Day, President’s Day, Memorial Day, Labor Day, etc.) – even if the weekend that Monday follows was spent with the other parent. Unless there is a very important reason for this, it is typically better for children to spend Federal Monday holidays with the parent with whom they spent that adjacent weekend. This facilitates out-of-town travel and activities that may run from the weekend into the holiday and makes it easier on and less disruptive to the children.

2. Children’s Birthdays

Sometimes parents want language in an agreement obligating both parents to share time with the children on their actual birthdays or celebrate the birthdays together. There are important factors to consider to make this approach work. If parents are getting along well enough to have a joint birthday party for the children, they don’t need an agreement to force them to do it. If parents do not have such a relationship, forcing a joint party or negotiating a split of time on the actual day can result in a tense and unpleasant atmosphere. If parents aren’t on terms that allow them to have an amicable joint celebration, a better scenario is for each parent to have an individual celebration for the child on his or her time, such as on the nearest weekend.

3. Summers

Commonly during summers, parents will each have some uninterrupted weeks with the children. Depending on the level of cooperation between the parents, agreements may need to include provisions for how those weeks will be determined. In situations where parents are likely to disagree on weeks, there are several methods of resolving disputes. For example, some choose to state that in odd-numbered years (2019, 2021, etc.) one parent’s chosen weeks take precedence, and in even-numbered years the other parent’s preferences take precedence.

Another possibility is to require that a parent’s week start and end on a particular day that encompasses his or her already-scheduled weekend. The upside to this approach is that it is impossible for the parents to schedule weeks that conflict with each other. The downside is that a major event (e.g. a wedding or family reunion) may fall outside of these potential weeks.

Since events come up, and other situations could occur that need advance planning, such as summer camps, I typically advise parents to give notice of their chosen weeks as early as reasonably possible in the New Year. There is nothing to guarantee both parents will agree to those weeks and that further issues won’t arise, such as when parents do not provide ample notice of their preferred weekends, language can be built into agreements to get ahead of this.

4. Thanksgiving and the issue of three weekends in a row

Where parents have a regular schedule that involves alternating weekends and the custody schedule provides that Thanksgiving encompasses both the holiday and the weekend immediately following it, one party or the other can end up having three weekends in a row with the children. This happens if one parent’s Thanksgiving falls on the other’s weekend. Sometimes parents are fine with this. However, if they are not, the good news is there are multiple ways to solve this.

One way is to make Thanksgiving encompass only the Wednesday through Friday of the holiday and not the weekend. This solves the problem of three weekends in a row, but this may not be desirable when one or both parents customarily travel over the holiday and want the entire weekend to do so. Another option is to “reset” the schedule if it were to result in one parent having three weekends in a row, such that the weekend immediately following Thanksgiving weekend would switch to the parent who did not have the children over Thanksgiving weekend and the weekend immediately prior to it.

5. Spring break

It is customary in custody schedules to make provisions for spring break.  Children and their parents often travel during this week as it is normally the longest break schools have between winter break and summer recess.  Some custody schedules alternate the entirety of spring break each year and some schedules split the spring break in half, with each parent having time with their children.  Whether you choose to alternate or split spring break, it is critically important to define exactly which days spring break covers.  Most school calendars define spring break as the Monday through Friday of the week, leaving off the weekends.  Thus, if the intention is to include the immediately preceding or following weekend, the custody schedule must clearly define this.  The same is true if the custody schedule splits the spring break week in half; parents need to know what the start and end date is to calculate the halfway point.

Example of a Holiday/Summer Schedule:

While holiday/summer schedules can be adjusted in virtually any way, sometimes people want to begin with a generic template to give them an idea of how to start. The following is a common schedule that can be modified, and can at least give a basic idea of how such schedules can look.

Note, the following is provided for example purposes only. Visitation schedules must be developed and tailored to meet the unique needs of each couple and their child(ren). It is important to seek support from a family law attorney with extensive experience counseling on the best visitation schedule for you.

A.  Holiday Visitation

Holiday visitation shall be as set forth below. To the extent that the holiday visitation set forth below conflicts with the regular weekly custodial schedule, the holiday visitation shall supersede it.

1. Spring Break
   The parties shall alternate the children’s school Spring Break each year, defined as 5:00 p.m. on the Sunday after school releases until 5:00 p.m. the Friday before school reconvenes. Father shall have Spring Break in even-numbered years. Mother shall have Spring Break in odd-numbered years.
2. Thanksgiving
   Thanksgiving shall be defined as the time school lets out on the last day of school before the Thanksgiving holiday until 5:00 p.m. on the Friday immediately following the holiday. Mother shall have the children for Thanksgiving in odd-numbered years. Father shall have the children for Thanksgiving in even-numbered years.
3. Winter Break
   The children’s winter break from school shall be divided in half. In odd-numbered years, Mother shall have the children for the first half of the winter break, and Father shall have children for the second part of the winter break. In even-numbered years, Father shall have the children for the first part of the winter break, and Mother shall have the children for the second part of the winter break.
4. Fourth of July
   The parties shall alternate the Fourth of July holiday each year, defined as 10:00 a.m. on the holiday until 10:00 a.m. the next morning. Mother shall have Fourth of July in odd-numbered years. Father shall have Fourth of July in even-numbered years.
5. Father’s Day
   In all years, Father shall have the children from 9:00 a.m. until 5:00 p.m. on Father’s Day.
6. Mother’s Day
   In all years, the mother shall have the children from 9:00 a.m. until 5:00 p.m. on Mother’s Day.

B.  Summer Visitation

Each parent shall have the children for two (2) uninterrupted weeks during the summer, which may be taken consecutively. Each parent shall designate their week by April 1st each year. If the parties’ chosen weeks are in conflict, mother’s choice shall control in odd years and Father’s shall control in even years. Unless otherwise agreed in writing, weeks shall start at 5:00 p.m. on the Friday beginning a party’s weekend, and continue through the following Friday at 5:00 p.m.

Visitation schedules can be complicated and can cause tensions to run high amongst parents. The attorneys at Curran Moher Weis have decades of experience in guiding parents through negotiating a custody and visitation schedule that is optimal for parents and most importantly, their children. Contact us for more information, and check back on our blog regularly for the latest advice on this and other important divorce and custody matters.

Divorce, Custody, and Child Support for Parents of Children with Special Needs (Part I)

By: Demian J. McGarry, Esq., and Nicole Grejda, Esq.

This is the first in a series of blogs Curran Moher Weis attorneys will be publishing on divorce and child support involving children with special needs. We invite you to bookmark our blog and check back regularly for further input on this important topic.

If you have a child with special needs, you already face a great deal of unique challenges. Those challenges become increasingly complex if you are also navigating a divorce and/or a child custody, visitation, or child support determination in Virginia.

At Curran Moher Weis, we believe that when a marriage or partnership involving children dissolves, it is of the utmost importance to consider solutions that benefit the child(ren) – especially those with special needs. That starts with ensuring you have an experienced family law attorney who understands the complexities of these issues and can help you understand them as well. This blog series will shed light on this special area of focus for our firm.

Custody and Visitation of Children with Special Needs 

In divorce cases in Virginia, the court is asked to determine a custody and visitation schedule that is in the best interests of the child.  When a child has special needs, several points of consideration factor into the court’s decision.

One factor the court must consider is “the age and physical and mental condition of the child, giving due consideration to the child’s change developmental needs.” This means the court will consider how experienced and knowledgeable a parent is regarding the administration of medication to the child, how involved a parent is in the child’s necessary services, such as individualized educational programs (IEPs) and occupational, physical, or mental health therapy, and how much time a parent can devote to the daily care of the child.  If parents are conflicted about how to care for a child, the court may consider which parent has acted in the child’s best interests to that point, and which parent articulates the best plan for the child going forward.  The court will also consider how prepared and able each parent is to have the child with him or her.

Child Support Involving Children with Special Needs 

The court is commonly asked to determine the appropriate amount of child support payable by one parent to the other for the benefit of the child, under “guidelines” set forth in Virginia Code Section 20-108.2.

The amount of support calculated with those guidelines is presumed correct unless there is relevant evidence that a deviation would be in the best interest of the child based on factors set forth in Section 20-108.1(B). One factor that must be considered pursuant to Section 20-108.1(B)(8) is “any special needs of a child resulting from any physical, emotional, or medical condition.” A court may consider, for example, the cost of medication, medical equipment, nursing services in the home, medical transportation, and the cost associated with treatment plans.

Although child support typically terminates when a child reaches the age of majority or otherwise emancipates, for a special need child, child support can be extended for significantly longer.  For example, pursuant to Virginia Code Section 20-124.2(C), the court may order that child support continue to be paid for any child over the age of 18 who is: (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 […]; (b) unable to live independently and support himself; and (c) residing in the home of the parent seeking or receiving child support.

While we’re sharing these codes of Virginia law as information to know about these issues, don’t worry about remembering them.  That’s our job.

Special Needs Trust/ABLE Account 

The court may also order that child support payments be paid to a Special Needs Trust or an ABLE account.

Special Needs Trusts are often created to address the unique needs of the child and to ensure that child support payments or other funds are used to meet those unique needs. Special Needs Trusts also provide an additional benefit: if money is held in a Special Needs Trust for the benefit of the child instead of being paid directly to the child to meet his or her living expenses, then the child is not deemed ineligible to qualify for government benefits such as social security income and/or Medicaid. A child will therefore be able to receive support from the Special Needs Trust in addition to any applicable government benefits.

An ABLE account is a tax-advantaged savings account for a person who becomes disabled prior to the age of 26. As long as the funds held in the ABLE account are used for “qualifying expenses,” then the earnings on the account investments are not taxed. Similar to a Special Needs Trust, funds in an ABLE account do not risk the child being deemed ineligible to qualify for government benefits.

Supplemental Security Income (SSI) 

Divorcing parents of children with special needs, or those navigating a child support matter, also need to be aware of the numerous public resources that may be available to them.  Parents may receive Supplemental Security Income (SSI) on behalf of their physically and/or intellectually challenged child.  SSI:

• Is designed to help aged, blind, and disabled people, who have little or no income; and
• Provides financial assistance to meet basic needs for food, clothing, and shelter.

Parents also need to be aware that in Virginia, a custodial parent’s receipt of SSI benefits for a special needs child does not entitle the non-custodial parent to a credit or reduction in their child support. SSI benefits received for a child are designed to supplement other income, not substitute for it.

Medicaid Waivers 

Medicaid waivers can be a critical element in the care plan for a physically and/or intellectually challenged child. A Medicaid waiver is a provision in Medicaid law which allows the federal government to waive rules that usually apply to the Medicaid program. The intention is to allow individual states to accomplish certain goals, such as reducing costs, expanding coverage or improving care for certain target groups. Thanks to these waivers, states can provide services to their residents that wouldn’t usually be covered by Medicaid. For instance, in-home care for people who would otherwise have to go into long-term institutional care.

In Virginia, there are six different Medicaid waiver programs, three of which are relevant to minors:

• the CCC Plus Waiver;
• the Intellectual Disability Waiver; and
• the Individual and Family Support Waiver.

Coverage under these waivers may provide for in-home attendant care, respite care and nursing care at various levels.  Attendant care is direct support in the home and community with personal assistance, activities of daily living, using the community, taking medication and care of other health needs. They can either be provided by an agency or by consumer-directed services. Consumer-Directed Services offer the individual/family the option of hiring workers directly, rather than using traditional agency staff.  Respite care services provided for unpaid caregivers (e.g. parent) of eligible individuals who are unable to care for themselves that are provided on an episodic or routine basis because of the absence of or need for relief of those unpaid persons who routinely provide the care.  To put it simply, respite care provides the much needed physical and mental health breaks for the caregiving parent so they can leave the home.

Parents should maximize benefits available to them under the waiver as coverage can significantly reduce the out-of-pocket unreimbursed medical expenses that they may otherwise be obligated to pay under a child support order. The scope of the unreimbursed medical expenses statute contained in Virginia Code §20-108.2(D) is broad enough to cover attendant and respite care.

Make Sure Your Attorney Has Expertise in Special Needs Cases

Special needs issues in divorce, custody and child support situations continue to increase. Often, these issues create a mine field for families trying to navigate this very complicated and niche area. Consultation with a family law attorney who is familiar with special needs issues can ensure that your interests are protected and objectives maximized.

Curran Moher Weis attorneys are dedicated to supporting parents of children with special needs, and have decades of experience successfully guiding them through these complex matters. Contact us to set up a consultation, and stay tuned for future posts, as we help you learn more about this important topic.

DOES CHILD SUPPORT COVER PRIVATE SCHOOL TUITION?

By Demian J. McGarry, Esq.

Around the country, children – and their parents – are settling back into school routines for the year, whether at public, private, charter or other schools. For parents who have, or want, their child(ren) in private schools, but are also considering or undergoing a divorce or child support case at this same time, they often want to know whether and how those costs would be covered by child support.

At Curran Moher Weis, I and my fellow attorneys regularly help parents navigate school choice in child support cases. Here is what you need to know:

There are typically two situations to consider – either you have a child or several children already in private schools, or you want your child to attend private school in the future, such as upon graduation from elementary school to middle school or middle school to high school.  You and the other parent may or may not agree on the choice of private school or whether your child should go to private school at all. Faced with the many other costs of separation, as existing and new financial obligations are divided out, how do you continue to pay for private school or ask for coverage of the costs in the future? And can a parent be required by court order to pay for or contribute towards private school tuition?

As is the case with many aspects of divorce and child support cases, there is no straightforward answer. There are a host of factors a court considers for deciding whether a noncustodial parent should be ordered to contribute to a child’s private school expenses.

Primarily, those factors include:

• The availability of satisfactory public schools;
• The child’s prior attendance at private school;
• The financial circumstances of the parties;
• The child’s special emotional or physical needs, religious training and family tradition.

These also do not factor to the same degree, nor in isolation, in the court’s decision. Prior or current enrollment in a private school at the time the request for contribution is sought, weighs heavily on the court’s decision. A court does not want to disrupt the continuity of a child’s education and educational environment that includes the child’s peers and school-related extracurricular activities. However, that has to be weighed against the financial circumstances of the parties and the other factors listed.

If your child is not yet enrolled in private school, but you want him/her to be, it is a tougher road to haul to convince a court to add private school tuition on top of a child support obligation.  In this scenario, the other factors come into play as well, such as the quality of the public schools in the area and any special emotional or physical need of the child. The court does not take the degradation of public schools lightly. In these situations, it is often useful to secure an educational consultant to serve as an expert who can provide an objective comparison of the schools to explain what unique need the proposed private school can meet for the child(ren) that their public school cannot. Those unique needs could be related to academics, safety or mental well-being, such as in the case where a public school had repeatedly failed to rectify a bullying situation for the child.

When private school is considered in litigation, it is often the case that the parent desiring private school over a hesitant parent will have to compromise in some way, either by accepting a reduced monthly child support or spousal support award in exchange for the other parent’s contribution to private school, or taking a reduced interest in marital property they would otherwise be entitled to in exchange for the other parent paying for or contributing to private school. To avoid the uncertainty and additional strain that comes with litigating private school cost, it behooves parents to try and reach an agreement on their own.

There are, of course, a litany of other questions to be considered and thus, issues to be navigated. In preparing an agreement, parties need to be mindful of not only the current private school attended or sought after, but any future change. There have been cases where an agreement binds a parent to pay for a particular school and then when a parent seeks to change the private school, is unsuccessful because the parties’ agreement did not anticipate or leave open that possibility. The agreement should include the scope of the obligation:  Will it be only for K-4, K-6 or K-12?  Do the parents want to put a cap on the obligation?  Do you want the parent to pay their obligation directly to the school or to you?  Does the school selection have to be mutual, and if so, can the other parent veto a choice without justifying the reasonableness of their decision?

Finally, if a parent is concerned about the future costs or their own future circumstances, it is important to include a clause that states the court has jurisdiction to modify the private school obligation in a future support proceeding. Otherwise, the parties may be bound by the black letter of their contract and a harsh result could occur with a parent being on the hook who may not be financially able to shoulder the cost.

Fortunately, there is a well- developed body of law on private school tuition contribution, and the experienced domestic relations attorneys at Curran Moher Weis can help guide you in reaching a settlement or litigating your objectives regardless of which side of the issue you may happen to ascribe. Learn more about our talented family law attorneys, and contact us here to set up a consultation.

What Is the Difference Between an Annulment and Divorce?

By Jenna Maresco, Esq.

Many might remember the famous “Friends” episode where Ross and Rachel seek an annulment after getting married in Las Vegas. Ultimately, they are denied an annulment by a judge and forced to divorce instead. It begs the question prospective clients often ask, “What’s the difference between an annulment and divorce?”

The simple answer is, in the rare situation when an annulment is granted, it is as if no marriage ever existed. Under Virginia law, there are only a few grounds for an annulment of marriage. Rarely do those apply to most couples, leaving divorce as the only legal means to end their marriage.

Now, let’s get a bit more technical. Under Virginia law, a party can file a suit for annulment under very limited circumstances. First, there may be grounds for an annulment if the parties did not follow the proper procedure for getting married, which requires obtaining a license and solemnizing the marriage. An annulment may also be granted when the marriage itself was void for one of the following reasons: (1) the marriage was entered into before an existing marriage for either party had been legally dissolved; or (2) a marriage was entered into between related individuals, including an ancestor and descendant, brother and sister, or uncle/aunt and niece/nephew.

In addition, there may be grounds for an annulment when one party to the marriage did not have the capacity to consent to the union, whether because of mental incapacity or infirmity, or because one party was under the age of 18. Finally, a party may file a suit for annulment if either party is:

• Impotent at the time of the marriage;
• A convicted felon
• Pregnant by an individual other than her husband;
• Found to have fathered a child with a woman other than his wife within 10 months after the marriage; or
• Found to have been involved in prostitution without the knowledge of the other party.

A party cannot obtain an annulment if the party seeking an annulment has cohabitated with the other party after knowledge of the facts that party is basing his or her claim for annulment on. A suit for annulment is also unavailable when the parties have been married for at least two years.

If the few limited grounds for annulment do not apply, then a party must end his or her marriage through a divorce proceeding.  Even if a party believes he/she has grounds for annulment, it is important to note that most grounds render the marriage as voidable as opposed to outright void – meaning even then, there is no guarantee that a court would grant an annulment.

There are certainly different implications of proceeding with an annulment versus proceeding with a divorce. If there are children, a party can still seek custody and child support, just like any other unmarried parent. However, in those cases, a court has no authority to award spousal support or divide the parties’ assets and debts if it annuls the marriage. Because of the complexities involved in annulments vs. divorces, it is important to clarify the difference early on in a consultation.

If you find yourself in this situation, set up a consultation with one of Curran Moher Weis’ family law attorneys to determine whether your marriage dissolution qualifies as an annulment or divorce, and we’ll set you on a path to the most effective resolution.

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