Archive | September 2012

SCOTUS brief: DOMA


“beacon of justice” by author

The Supreme Court is beginning its 2012-2013 term tomorrow (October 1).  While in this election year a lot of press and attention has been focused on challenges to affirmative action and the Voting Rights Act of 1965, there is much speculation that a challenge to the Defense of Marriage Act (DOMA), the Clinton-era law that prohibits the federal government from recognizing same-sex marriages, will make it to the high court.  Justice Ruth Bader Ginsburg has further fueled speculation by predicting that it will be before the court within the next year.

What is at stake?  As of this writing, six states and the District of Columbia recognize same-sex marriage, while two other states have referendums on laws pending this November.  Currently, DOMA prevents legally married same-sex couples from enjoying federal benefits enjoyed by opposite-sex married persons, including (but not limited to) joint federal tax filing and Social Security survivor benefits.  Several lower federal courts have ruled on various provisions of DOMA, putting pressure on the Supreme Court to have its say sooner rather than later. So far, the Court has not announced when (or if) it will hear oral arguments on DOMA, but on the eve of the first day of the new session, it is premature to speculate one way or the other.  We’ll see in the coming days and weeks.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

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Third-Party Custody and Visitation (Virginia)


“faceless” by author

The majority of child custody and visitation disputes involve the parents.  However, there are cases where someone other than either parent can obtain custody if there is sufficient evidence that it is in the best interests of the child for the court to do so.

Third party custody or visitation is limited only to “person[s] with a legitimate interest,” which is defined in the Code of Virginia § 20-124.1 as “includes, but is not limited to grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court,” and is “broadly construed to accommodate the best interest of the child.”  The person seeking custody has to show that the child’s parents or legal guardians are unfit by clear and convincing evidence, which is a high burden of proof.  If the court determines that he or she has standing to challenge parental preference, it will treat the person as co-equal with the parent(s) in proceedings going forward.  In other words, the third party “person with a legitimate interest” will have an fair shot to show the court that it is in the child’s best interest to grant custody to someone other than either of the parents.

There are a number of court cases further defining what “legitimate interest” entails.  A nice summary of these cases and more can be found here.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Pro Bono opportunity: DC Volunteer Lawyers Project


Recently, I learned of a pro bono organization that could help young or new attorneys gain hands-on experience and give back to the community.  The DC Volunteer Lawyers Project is always looking for new volunteer attorneys, so if you’re interested, please visit http://www.dcvlp.org/ for more information.

From their website:

The DC Volunteer Lawyers Project is a nonprofit organization whose mission is to provide high-quality, free legal services to low-income District of Columbia residents in family law cases.  Our volunteer lawyers provide pro bono legal representation to:
  • survivors of domestic violence in civil protection order, custody, visitation, divorce, child support and immigration cases
  • children in high-conflict custody cases
  • foster parents in adoption, guardianship, placement and licensing matters
  • third-party caregivers in custody cases
Founded in January of 2008, the DCVLP addresses the urgent need for more pro bono family law lawyers by tapping into an unused resource — experienced lawyers who have left full-time legal practice, many of them to raise families, and want to use their legal skills to help the community.  The DCVLP assists these lawyers in reentering the legal profession by providing training programs, a professional support network, and mentorship and supervision throughout the duration of a case.  The DCVLP also provides volunteers with malpractice insurance, an office for client meetings, online legal research tools and other resources they need to provide free, high-quality legal representation to indigent clients.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Divorce in Virginia — it’s not always no-fault


“who’s laughing now?” by author

No-fault (uncontested) divorce became commonplace late in the last century, and now it has become a lot easier to end a marriage than it had been historically.  Since the bonds of matrimony were chiefly religion-based, civil law made it exceedingly difficult to break them.  But even before the divorce revolution of the late-20th century, there were ways to get out of a marriage.  And, in fact, Virginia still has them on the books (Va. Code § 20-91(A)(1-6)).

Virginia, of course, has its uncontested divorce law at § 20-91(A)(9)(a).  The other “fault” grounds are:

1. Adultery,

2. Sodomy or “buggery” (sexual act against nature) committed outside the marriage,

3. Conviction of a felony by either party resulting in one year imprisonment, and

4. Cruelty or willful desertion, one year after the date of such act.  In cases of cruelty, the abused spouse will not be charged with desertion if s/he leaves the marital home as a result.

DC no longer has fault grounds for divorce — all proceedings must begin after living separate and apart for six months if it is voluntary and mutual.  If it is not mutual and voluntary, the period is one year.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

In the news: DNC moves forward with same-sex marriage


This morning (9/4/2012), the fight for marriage equality took another step forward when the Democratic National Committee became the first major political party to adopt same-sex marriage as part of its official platform:

We support the right of all families to have equal respect, responsibilities, and protections under the law. We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference. We oppose discriminatory federal and state constitutional amendments and other attempts to deny equal protection of the laws to committed same-sex couples who seek the same respect and responsibilities as other married couples. We support the full repeal of the so-called Defense of Marriage Act and the passage of the Respect for Marriage Act.

See the entire DNC platform here (opens in PDF reader).

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Child Support: the ABCs


“feeding time” by author

Determining child support is mostly a mechanical process.  The parents present the court with their gross monthly incomes and the court applies them to the guidelines based on the percentage of the whole each parent makes.  The guidelines, which are revised from time to time, are the default for determining support, but the court has some leeway to adjust amounts based on mitigating factors.  These include actual monetary support from other family members, special needs of the children, and earning capacity of the parents.

I’ve said it before, but it cannot be said enough that it is important to remember that child support is not for the parents but for the children.  The court will take its #1 rule in proceedings involving children — do what is in the best interests of the child — and apply it to its determination of child support.  Unlike other proceedings like custody or visitation, whatever personal feelings and acrimony that exist between the parents are not a consideration — it’s all about numbers.

Child support schedule – Virginia: Va. Code § 20-108.2.

Mitigating factors: Va. Code § 20-108.1(B).

Child support schedule and mitigating factors – DC: D.C. Code § 16-916.01.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.