July 28, 2014
When parents of minor children end their relationship, there are often questions about what to do about the children’s personal belongings. If the minor child is spending some time with each parent, here are some considerations both parents should keep in mind:
1 – For comfort or special items like a lovey or stuffed animal, it is best to allow the child to bring the item from house to house. It gives the child some consistency and can make the transition easier.
2 – For clothes and toiletries, we tell parents it’s best to have these items at both houses. Having a toothbrush, hairbrush, and clothes at each parents’ house will avoid the risk of forgetting the necessary items at the other parent’s home. Each parent should also have weather appropriate clothing at their house, such as winter coats, hats, boots, sunscreen, bug spray, etc. so the child is well prepared for the weather.
3 – Special gifts sometimes present tricky situations. One parent may give the child an expensive gift, and want the child to keep the gift at that home. However, from the child’s point of view, he or she may be really excited about the toy and want to bring it to the other parent’s house. If you are not willing to allow the child to take the gift to the other parent’s home, you should explain that to the child well in advance.
Transferring from one home to another can be tough on kids. Consider your child’s best interest when you decide how to handle their personal belongings. Making the transition easier for the children will make the transition easier on the parents as well.
July 26, 2014
In Virginia, it’s illegal to be intoxicated by drugs or alcohol in public. The officer has the discretion to transport you to a detoxication center (or drunk tank) in lieu of arrest.
Pursuant to Virginia Code 18.2-388, if any person “profanely curses or swears or is intoxicated in public” he may be charged with a Class 4 misdemeanor. Therefore, in order to prove this charge, the prosecutor has to prove you were (1) intoxicated, and (2) in public.
Virginia Courts have defined “in public” to mean visible to the community, in open view. Keep in mind this could include your own front porch or front yard. Virginia Code 4.1-100 defines intoxicated as “when a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior.” This definition mandates that the prosecutor prove some intoxicating behavior (not just the smell of alcohol) to get a conviction.
Fairfax County has adopted its own version of the state law, codified in Fairfax County Ordinance 5-1-1. The ordinance states that “if any person profanely curse or swear or be drunk in public he shall be guilty of a Class 4 misdemeanor.”
Public intoxication or drunk in public is noted as a “ticketed” offense – meaning you could pay the fine online. However it is not a simple ticket. You are pleading guilty to a criminal misdemeanor which will remain on your record.
July 22, 2014
A question I get often is what are my parental rights if there is no custody order in place?
In most states, the answer is it depends.
If you were married to the other parent, and are listed on the child’s birth certificate, then you are recognized as the parent of the child. Therefore, you have parental rights to custody. If there has been no court order for custody, then both parents have equal rights to custody of the child. The parents can either come up with an agreement, or go to court to get a formal order.
If the parents are unmarried, and the father is not listed on the birth certificate, then the father is not recognized as having any parental rights. Therefore, if there is no court order for custody, then the father has no rights to legal or physical custody. The father must either sign an affidavit of acknowledgment of paternity, or get a DNA test to affirm paternity. Once the paternity is affirmed, the father has parental rights to the custody of the child. If paternity has been established, but there is no court order regarding custody, then both parents have equal rights to the custody of the child.
It is important to determine who has parental rights for two reasons. First, without parental rights, Parent A has no right to see or visit the child if Parent B refuses to cooperate. Second, without parental rights, Parent B will not be able to get child support for the child if Parent A is not recognized as the parent.
July 17, 2014
At midnight, the District of Columbia ordinance reducing marijuana possession to a $25.00 fine went into effect. The legislation amended the possession or transfer of up to one ounce of marijuana from a criminal misdemeanor to a civil violation.
The public consumption of marijuana remains a criminal violation, however. Furthermore, federal law enforcement agencies (U.S. Park Police, Secret Service, etc.) may still arrest someone for possession under the federal drug statute. However, D.C. police have historically made the majority of marijuana possession arrests. The D.C. police will abide by the D.C. ordinance and issue a civil fine only. In an effort to clear up confusion, the D.C. Police Department has prepared wallet sized cards laying out the facts of the new law, and has also posted information on their website.
The District’s $25.00 fine for possession is similar to existing decriminalization laws in California, Connecticut, Maine, Massachusetts, Nebraska, New York, Oregon, Rhode Island, and Vermont. Three states – Alaska, Colorado, and Washington – impose no civil or criminal penalty for the private possession of small amounts of marijuana.
Advocates of the legalization of marijuana have submitted a petition to have the residents vote on the issue in November. The District’s Board of Elections will meet in August to certify the issue to the ballot. However, voter initiatives are not binding, and have been overturned by the D.C. Council in the past, or thwarted by Congress.
July 14, 2014
Last week, the Senate held a hearing on child trafficking and re-homing. The practice of re-homing involves parents giving away their adopted children to strangers they meet online. The little-known practice gained some press when Reuters news service investigated the issue last year.
At the hearing, testimony from advocates urged Congress to restrict online advertisements for custody. They also requested that all non-relative custody transfers be supervised and ordered by a court of law. Senator Kay Hagan (D-N.C.) testified that children were being transferred to homes and families that the adoptive parents had never met, and in some cases had a history of child abuse and neglect. In many cases, the adoptive parents turn to re-homing because they are overwhelmed with the child’s behavioral problems. Re-homing is faster and cheaper than a formal adoption – which requires a background check, a home inspection, and a hearing in court.
Since money doesn’t directly change hands, it’s not trafficking. So there is currently no federal law prohibiting the practice. So far, only four states (Wisconsin, Colorado, Louisiana, and Florida) have passed laws placing restrictions on advertising children, transferring custody, or both. We will see if Virginia and the District of Columbia propose legislation as well. Since re-homing is happening over the Internet, and many times across state borders, some Senators are asking for a federal response to the problem. It makes sense that if a child is going to transfer homes, the court should be involved. No parent should be able to transfer custody over the internet.
July 9, 2014
Many people wonder – can I move to another state with my civil protective order? How will the state enforce it?
If you have a Washington, DC Civil Protective Order, it can be enforced in another state, as long as it meets federal standards. The Violence Against Women Act provides that all valid CPOs granted in the United States will receive full faith and credit in all states and courts. So each state must enforce out-of-state CPOs in the same way it enforces its own orders.
How do you know if your CPO meets federal standards? Under federal law, a CPO is valid anywhere in the United States as long as: (1) It was issued to prevent violent or threatening acts, harassing behavior, sexual violence, or it was issued to prevent another person from coming near you or contacting you, (2) the Court that issued the order had jurisdiction over the people and subject matter, and (3) the defendant received notice of the order and had an opportunity to tell his or her side of the story.
If your CPO meets the federal standards, then it is enforceable everywhere in the United States. Make sure you keep your CPO with you if you decide to move out of state.
July 6, 2014
Sometimes parents will ask if the grandparents have any rights to visitation during their divorce or custody case. In 2000, the United States Supreme Court decided Troxel v. Granville, which stated that parents have a fundamental right to the “care, custody, and control of their children.” The Court went further to say that cases considering non-parent visitation (including grandparents), must apply a presumption that fit parents are acting in the best interests of their children.
So what does this mean for grandparents? It means that unless there is a visitation statute passed by the state legislature regarding non-parent visitation, the biological parents have the right to custody, care, and control.
In the District of Columbia, there is no statutory provision for grandparent visitation. The parents have the choice whether the child can visit with his or her grandparents. Overruling parental decisions about contact with grandparents is extremely difficult.
In Virginia, any person with a legitimate interest in the care and custody of a child can petition for custody under Virginia Code 20-124.2. A person with a legitimate interest includes grandparents under the Virginia Code. However, in order to get visitation the grandparents must prove that the child would suffer actual harm with out the visitation. This is a very high standard to meet, and so it’s nearly impossible for grandparents to get visitation if the parents won’t allow it.
Grandparents have the option of trying mediation, and perhaps a visitation schedule can be worked out with the parents. But the Supreme Court has made it pretty clear that the best way to have a relationship with your grandchildren is to have a good relationship with your children.
July 1, 2014
As summer starts, many working parents start to wonder when they can leave children home alone. There is no federal law regarding the age at which children may stay home or babysit. Very few states have any laws on the subject either. National SAFEKIDS campaign recommends that no child under the age of 12 should be left home alone. Fairfax County has child supervision guidelines of standards to adhere to if a child is going to be left alone.
Most authorities recommend to take into consideration the skills and maturity of the child. Some questions to think about:
- Is your child mature enough to be left alone? Age and maturity are two different things. A child who does not know how to respond to a knock at the door, or forgets to lock the door is not ready to be left at home.
- Can your child handle fear, loneliness, and boredom? Many children are used to having people around – at school, at home, at religious events. Can your child entertain himself?
- Is there a responsible adult nearby (a relative or neighbor) who your child can call for assistance? Even if your office is close by, there may be times you are unavailable to answer the phone. Who can your child turn to in those times?
- Does your child know emergency procedures? Is there an emergency kit? Role playing with your child can help him or her understand what to do in case of an accident.
- Can your child perform everyday tasks, such as making snacks, using the phone, and writing messages?
- Does your child solve small problems without assistance, or know when it’s okay to ask for help?
- If there are siblings at home, does your child manage conflicts with siblings without adult intervention?
In the situation where parents are sharing custody during summer break, the parents should discuss whether they believe the children are responsible enough to be left at home. If one parent thinks the children are okay to be left at home, and the other disagrees, consider going to a children’s counselor to seek some guidance.