Charlottesville Divorce Lawyer Rob Hagy

VA Psychiatrist Could Be Compelled To Testify in Child Custody Case.

Interesting case out of New York involving the military and child custody.  In a child custody proceeding, a psychiatrist working for the Department of Veterans (otherwise known as the "VA") could be compelled to testify in a custody proceeding.  The father in the case was a veteran who suffered from post-traumatic stress disorder and wanted the psychiatrist to testify. The VA objected to the testimony of the psychiatrist claiming that the New York state court lacked authority to compel the psychiatrist, an employee of the VA, which is a federal agency, to testify in his official capacity as an employee.  The VA claimed that federal agencies have the power to restrict the testimony of their employees under agency regulations and that it was not consenting to the psychiatrist's testimony. The attorney for the father, the attorney for the mother, and the attorney for the child all agreed that the psychiatrist's testimony was important to the case.  The Court held that the best interests of the child controlled and ordered that the psychiatrist would testify.

The Court noted that:

"Inasmuch as one of the missions of the VA is to provide medical assistance to those who have served in the military, their current policy in this case may have a "chilling effect" on the willingness of other veterans to seek medical assistance from the VA if the VA will not permit physicians to testify even though requisite releases have been executed by the patients."

-Rob Hagy, Charlottesville Divorce Lawyer

Continuance Properly Denied Where Parent Failed to Subpoena Child in Custody of Other Parent; Father's Testimony Enough to Establish Day Care Costs; Portion of Military Pension Earned During "Temporary" Separation Still Marital Property

In the case of Reese v. Reese, the Virginia Court of Appeals, in an unpublished decision, ruled that the trial court correctly denied a mother’s request for a continuance of a custody hearing where she failed to exercise diligence in securing attendance of child witness and correctly determined the father's child care costs.  However, the trial court erred in its determination of the appropriate marital share of father’s military pension.

Mother failed to subpoena the child witness, the parties' daugther, instead relying on the fact that she listed in the child in her witness list.  At trial, father failed to bring the daughter with him.  Mother sought a continuance and the trial court ruled the father mother failed to exercise due dilligence in seeking the daughter's attendance at trial.  Due diligence requires, at a minimum, that a party attempt to subpoena the witness or provide a reasonable explanation why a subpoena was not issued.

Wife also contends that the trial court erred in finding that husband spent $800.00 per month in child care costs based upon his testimony alone.  The trial court accepted the testimony without corroboration finding that the amount was not unreasonable.  Because the credibility of a witness and the weight accorded the evidence are matters solely for the trial court determine, the Virginia Court of Appeals upheld the decision to accept the oral testimony alone as proof of the child care costs.

As for the matter of the military pension, the Virginia Court of Appeals ruled the trial court made a mistake by excluding vrom consideration that portion of the military pension acquired by husband while they were only temporarily separated.

Armed Forces Members Fail in Constitutional Attack on the Uniformed Services Former Spouses' Protection Act

In a case involving current and retired members of the armed forces challenging law allowing their retirement pay to be divided in state divorce proceedings, dismissal of individual plaintiffs' claims, and summary judgment in favor of defendant on association's claims, were affirmed by the U.S. 4th Circuit Court of Appeals in the case of Adkins v. Rumsfield, as, although the district court erred in finding it lacked subject matter jurisdiction over the individual plaintiffs' claims, plaintiffs failed to state cognizable claims against the constitutionality of the Uniformed Services Former Spouses' Protection Act under substantive and procedural due process, the armed forces clause, the full faith and credit clause, and equal protection.