Did You Know? Is interference with parental rights recognized as a tort in Virginia?-a clarification

Did You Know? Is interference with parental rights recognized as a tort in Virginia? — A clarification

We are publishing this revised version of last week’s “Did You Know?” email to clarify that the background information in our earlier email consists of allegations, not findings of fact by the Virginia Supreme Court. The factual allegations in the underlying complaint are set out in the Court’s opinion in order to frame an answer to the certified question. This case is still pending in U.S. District Court for the Eastern District of Virginia. The allegations are accepted as true in the opinion, because the certified questions of law arose out of a motion to dismiss for failure to state a claim under FRCP 12(b)(6).

In Wyatt v. McDermott, a case published April 20, the Virginia Supreme Court recognized for the first time the tort of interference with parental rights, in the context of an adoption. In the U.S. District Court suit, the birth father alleges that he was unaware of plans for adoption made by the child’s mother. The Virginia Supreme Court decision answered two questions certified to it by the U.S. District Court for the Eastern District of Virginia:

1. Whether the Commonwealth of Virginia recognizes tortious interference with parental rights as a cause of action.

2. If so, what are the elements of the cause of action?

While there is no statutory basis in Virginia for the tort of interference with parental rights, the Virginia Supreme Court evaluated the common law basis for the tort, finding that this cause of action was valid both at common law and today because “rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded the parent-child relationship.” Although wrongful interference with custodial rights is codified in Virginia in § 18.2-49.1 as a criminal offense, the statute does not provide any civil remedies.

The elements of the tort are: (1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent’s parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent’s consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3) the outside party’s intentional interference caused harm to the complaining parent’s parental or custodial relationship with his/her child; and (4) damages resulted from such interference.

The burden of proof is by preponderance of the evidence. The Court also discussed the availability of potential affirmative defenses by the defendants in these cases if there is a good faith argument that the child’s physical, mental, or emotional health is in jeopardy.

The information is derived from Virginia CLE^® editorial staff research, retrieved April 27, 2012 from http://www.magnetmail.net/actions/email_web_version.cfm?recipient_id=647096301&message_id=1923772&user_id=VACLE&group_id=822678&jobid=10032192

Changes you need to make to your important documents to effectuate your Separation Agreement.

You are not done with your divorce related tasks just because you and your spouse have signed a Separation Agreement.  There are many important documents that need to be reviewed and revised after the Separation Agreement is signed to effectuate the terms of your agreement.  These can include life and health insurance policies, pension documents, Deeds, Wills and other important legal documents.  Failure to make the changes to these documents contemplated by your Separation Agreement can have serious consequences.  The 4^th Circuit Court of Virginia has refused to enforce waivers contained in a Separation Agreement – even after the Separation Agreement became part of a Final Decree of Divorce -- because the insured did not change her beneficiary designation before she died.  This resulted in her ex-husband being permitted to keep the life insurance proceeds paid out by wife’s ERISA-approved plan despite his signing of a separation agreement waiving any claim to benefits from wife.

            In Boyd v. Metropolitan Life Insurance Company, the wife had worked for an airline before her untimely death.  Her employee life insurance plan allowed her to change her beneficiary at any time by sending a signed, dated written request to the carrier.  The plan made clear that the carrier would disburse benefits to her estate, but it did not specify any procedure for beneficiaries to follow in order to waive their claims to benefits.  Wife and husband separated six years after wife designated husband as her beneficiary on her plan.  During the following divorce, a South Carolina Court entered their separation and property settlement agreement, which included the waiver “the right to receive proceeds, funds or property as a beneficiary under any life insurance policies.”  However, the wife never changed the name of the beneficiary and the plan’s carrier paid the proceeds to husband.  The appellants filed suit, and later, this appeal.

            The 4^th Circuit has made it very clear that plan documents, not the divorce decree, are controlling on disbursements under a pension plan.  So don’t forget to change YOUR beneficiaries!

Keeping Your Legal Fees and Expenses Under Control

            Fees are a sensitive area to discuss for both the client and the lawyer.  However to ensure that your case is provided the attention it deserves and that you are comfortable about the basis for the agreed upon fee, it is important that you are informed about the types of fees and expenses you are likely to incur.

            Below are 5 tips to keeping your legal fees under control:

·         Utilize a counselor, if needed.  It will be less expensive for you to seek emotional counseling and be able to vent it you seek a licensed professional counselor.  Seeking counseling does not negatively affect your case.  In fact, the courts have actually come to look favorably on those who are seeking to help themselves.

·         Plan your phone calls.  Remember you are being billed for your time with a lawyer over the phone.  Make a list of questions that you have prior to calling and check the items off as they are answered.

·         Establish a relationship with office staff.  The office staff is there to serve you.  If you simply need information regarding your case, it is more efficient and less expensive for you to utilize the non-attorney staff, who should know when the attorney’s input is needed to answer your questions.

·         Utilize the firm website.  If the firm has a website, use it.  In today’s world, many firms have taken the time to develop and continually maintain a website.  Utilizing their website, may answer many of your questions regarding the general operation of the firm or even general legal questions.

·         Be cooperative.  To best serve you, your attorney needs to know everything that is asked as it relates to your case.  It may difficult or even embarrassing at times, but by divulging to your attorney, they can best protect you and may be able to prevent the other side from revealing in open court or in a deposition points that you wish to remain confidential.  Remember your communications with your attorney are confidential, meaning that what you tell us within bounds is legally protected information unless you state otherwise.