By Rob Hagy, Law Offices of Rob Hagy, P.C., 154 Hansen Road, Suite 202B, Charlottesville, Virginia. Call (434)293-4562 for more information or email for more information at firstname.lastname@example.org. I look forward to helping you!
The information provided on this web blog is public information and is not individualized legal advice. Do not take any legal action on any information contained in this blog!!! Always consulting with an attorney in your state about your legal issues. The presentation of information on this blog does not establish any form of attorney-client relationship with my firm or with me. While I have attempted to maintain the information on this blog as accurately as possible, this information may contain errors or omissions, for which I disclaim any liability. Case law from other jurisdictions discussed here are discussed for comparative purposes only. The author is licensed to practice only in the Commonwealth of Virginia and not in any other state.
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Time.com had an interesting article this morning about a N.J. Superior Court Judge's decision to deny a couple's adoption petition citing the the New Jersey state constitution which declares that "no person shall be deprived of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience." The judge reasoned that "the child (a toddler) should have the freedom to worship as she sees fit, and not be influenced by prospective parents who do not believe in a Supreme Being." The judge raised this issue sua sponte. The case has been appealed to N.J. Supreme Court.
The U.S. Supreme Court took up an issue which might interest people other than lawyers (in particular teachers, and some of you are involved in school systems, and parents) because the topic was pretty rare. On Tuesday of last week, the Supreme Court heard arguments in the case of Safford United School District v. Redding, which involved the constitutionality of a principal's near strip search of a 13 year old girl for drugs. Early returns indicate that the search may be upheld, but no decision has been issued. For some great analysis of the arguments in the case, please click here to access the Supreme Court of the United States Blog or SCOTUSblog.com.
In the case of Cherin v. Cherin, the Virginia Court of Appeals, in an unpublished opinion, rules that the trial court in the case properly gave a Massachusetts Divorce Decree full faith and credit in Virginia. Husband argues the trial court should not have granted full faith and credit to the Massachusetts judgment because he challenges that court’s personal jurisdiction over himand because the trial court refused to grant full faith and credit to a Virginia injunction prohibiting wife from proceeding in Massachusetts. Additionally, he argues wife was precluded from seeking a dismissal of the Virginia action under principles of equity and the unclean hands doctrine because she failed to comply with a Virginia order enjoining her from proceeding in Massachusetts.
The trial court was correct because the Full Faith and Credit Clause of the U.S. Constitution and Virginia law requires Virginia to respect the judgments of another state, in this case, the Massachusetts Divorce Decree. While the Virginia Court could inquire as to whether the Massachusetts Court entering the Decree had personal jurisdiction over the husband, if the inquiry reveals that the issue of personal jurisdiction was fully and fairly litigated in the foreign court, the Virginia Court cannot re-litigate that issue. Because the record discloses the Massachusetts court’s personal jurisdiction was fully and fairly litigated and finally decided in that court’s jurisdiction, husband was barred from relitigating that issue in Virginia.
The principles of equity and the unclean hands doctrine cannot apply because the Supremacy Clause of the U.S. Constitution prohibits use of the unclean hands doctrine to prevent application of that doctrine to the Full Faith and Credit Clause of the Constitution.
-Rob Hagy, Virginia Divorce and Family Law Attorney
On November 7, 2007, in the case of Dubay v. Wells, the 6th U.S. Circuit Court of Appeals ruled that a Michigan father's claim that he should have the right to decide whether to pay child support was without merit.
Matthew Dubay said his ex-girlfriend had assured him she could not get pregnant, then sued him for child support after his child was born. He argued his ex-girlfriend had the right to choose abortion, so he had the right to choose whether to bear financial responsibility for an unwanted child.
He contended Michigan’s paternity law violated his right to equal protection because it didn’t give men reproductive rights. In denying Dubay's claim, the court held that Michigan laws also require mothers to provide adequate support for their children and are gender neutral.
Men’s rights groups had dubbed the lawsuit a ''Roe v. Wade for men,'' drawing objections from women's rights groups.
In the case of US v. Kukafka, the U.S. 3rd Circuit Court of Appeals affirmed a Defendant's conviction and sentence for willful failure to pay his support obligation over his claims that: 1) the Child Support Recovery Act exceeds Congress's power under the Commerce Clause; 2) a provision in his divorce judgment requiring him to obtain an ecclesiastical divorce violated the Free Exercise Clause of the First Amendment; and 3) there was error in instructing the jury on willfulness.
In the case of Hiller v. Fausey, the Pennsylvania Supreme Court ruled that a father's due process right to direct the care, custody, and control of his child was not unconstitutionally infringed by the application of a law statute allowing visitation or partial custody to grandparents upon death of child's parent.
I just finished reading the Winter Edition of the Family Law Quarterly (the "FLQ"), published by the Family Law Section of the American Bar Association. It contained an article critiquing "Parental Alienation Syndrome" by Dr. Janet R. Johnston, a professor of justice studies at San Jose University called "Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child". It also provided a Review of the Year in Family Law which was dominated by the issue of same-sex marriage. Lastly, the FLQ provided a case digest of significant cases from all fifty states. Eleven Virginia cases made the case digest on a variety of topics. Here are the cases.
In Newman v. Newman, the Virginia Court of Appeals held that counsel for parties can sign an agreement for their clients and that there is nothing invalid or nonbinding about a consent order signed by counsel.
In Baldwin v. Baldwin, the Virginia Court of Appeals held that a Virginia Code amendment would not apply to all agreements or orders in cases regardless of age because such an application would impair the sacred obligation of contracts.
In Kane v. Szymczak, the Virginia Court of Appeals ruled a trial judge erred in making a custody and visitation decision that simply enumerated the numbered statutory factors the judge utilized in rendering the decision. That was not "communcating the basis for the decision" as required by Virginia Code Section 20-124.3.
In Roberts v. Roberts, the Virginia Court of Appeals ruled that a trial judge did not violate a father's constitutional rights by reducing his in person visitation to a thirty minute telephone call once a week where the reduction was due to his excessively purtannical conduct.
In Sullivan v. Jones, the Virginia Court of Appeals ruled that a reversal of a prior order allowing a relocation did not act as res judicatea and trump the change in circumstances test so a mother could still petition for visitation and ask for a relocation which was permitted.
In Wheeler v. Wheeler, the Virginia Court of Appeals ruled that a reolcation by a mother to Florida was in the best interests of the child since such relocation would improve mother's deteriorating economic conditions, provide financial security, and would allow children to live with primary caregiver who could stay at home where Father's relationship would not suffer due to relocation.
In Hodges v. Commonwealth, the Virginia Court of Appeals held that holds that food stamps and Medicaid assistance were not “public assistance moneys” as contemplated in Code Section 63.2-1908; and that the legislature did not exempt noncustodial parents receiving those forms of public assistance from reimbursing DCSE for moneys expended on behalf of their children.
In Hatloy v. Hatloy, the Virginia Court of Appeals held that a father was entitled to a reduction in child support even though father was making $55,000.00 plus 2x that in stock options where he was laid off due to economic downturn.
In Princiotto v. Gorell, the Virginia Court of Appeals held that a father could pay bills directly to third party suppliers instead of paying the mother child support where strong and conclusive proof showed mother was financiall irresponsible and the child support money would not be used for the children's benefit.
In Spero v. Heath, the Virginia Supreme Court held the trial court properly refused to grant father's petition for name change after genetic testing showed that father was indeed the child's father.
In Hoebelheinrich v. Hoebelheinrich, the Virginia Supreme Court held that it was proper for the trial judge to appoint the wife's expert to give an opinion on valuation of the husband's medical practice and then to follow the appointed expert's opinion, since the husband had been invited to suggest experts and failed to do so.
In the case of In Re: Harmony B., the Court of Appeal of the State of California, 4th Appellate District Division Two, a juvenile court's termination of parental rights was upheld against a father's challenge, claiming violation of due process, even though the court failed to inform him of his right to file a writ petition challenging the findings and orders at a referral hearing and that he was denied reunification services.
Virginia Code Section 20-108.2 This provision of Virginia law sets forth the child support guidelines-a table of reference for determining the base monthly child support obligation.
Virginia Code Section 20-124.3 This statute sets forth the factors that a court will consider in divorce proceedings, temporary proceedings, or modification proceedings to determine what custody and visitation arrangement would be best for the child or children involved.