What happens to my social media if something happens to me?

September 26th, 2017
This year, the Uniform Fiduciary Access to Digital Assets Act went into effect in Virginia.  This Act has important privacy concerns for users of social media, emails, and other digital assets.  The bill allows for fiduciaries to manage digital property.  Electronic communications, however, are restricted unless the user consents to such access prior to death or incapacity, or if ordered by a court.
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Who are fiduciaries?

Fiduciaries include agents under a power of attorney, trustees acting under a trust, and executors and administrators of a deceased individual’s estate.  Court appointed guardian and conservators are also fiduciaries.

What are digital assets?

Digital assets are electronic records in which an individual has a right or interest.  It does not include the device on which the records are stored.  Virtual currency, web domains, and computer files are examples of digital assets.

What are electronic communications?

Electronic communications are communications in whole or in part by wire, radio, electromagnetic, photoelectronic, or photooptic system.  It includes text messages, e-mails, and social media messages.  It does not include wire or oral communications, tone-only pagers, communications of tracking devices, or transfer of funds by a financial institution. 

How can I consent or prohibit access?

Consent, or prohibition, of access may be given in the power of attorney, will, or trust naming the fiduciary. 
Some custodians have a terms-of-service or online tools that allow a user to designate a recipient or prohibit disclosure to named persons.  The use of such an online tool will override any contrary directions in the user’s power of attorney, trust, last will and testament, or other writing.  The written consent or prohibition in power of attorney, trust, last will and testament, or other writing, however, overrides a terms-of-service agreement that does not require the user to take affirmative action other than a generic assent to the terms of service. 
In other words, the online tool provided by a custodian of electronic communications or assets will be honored if the user takes an extra step to consent to or prohibit disclosure, or consents by some means other than the generic “I accept terms and conditions” button.  If the online tool does not have this affirmative action, then the estate planning tools can be used to consent or prohibit access. 

Can my child’s mother move to another state and take my children?

August 18th, 2017

By: Kristina Beavers

There are two parts to this question.  The answer to the first part is ‘yes’, your child’s mother (or father) can move to another state.  An adult in the United States is free to move anywhere in the country.

A Relocation Case

This is called a ‘relocation’ case in the child custody world and the mother may not be allowed to take the child with her.  In Virginia, there are special criteria to allow a parent to move a child away from the other parent.  A move that would be a benefit to the mother is not always the best thing for the child and the child’s relationship to the other parent.  This is really part of the ‘best interest of the child’ standard.  The courts feel that being allowed access to both parents is usually in the best interest of the child.  But there are additional items that need to be addressed in a relocation case, such as an independent benefit to the child from allowing the move and the history and frequency of contact with the non-custodial parent.  The courts will also look at the child’s contact with local extended family and friends.

I often tell parents that a ‘normal’ custody/visitation case in the Juvenile and Domestic Relations District Court (JDR) is about the only time I might recommend handling a case without an attorney.  However, because of the details that are necessary to prove in a relocation case, I almost always recommend the assistance of an attorney.  It is just too important to leave to chance.

Contact us for more information

If you have questions about this, please contact the office of Beavers Law, P.C. at 757-234-4650 to schedule a consultation with one of our attorneys.  You can also visit us on the web at www.BeaversLaw.com.

Pavan & Virginia’s Assisted Conception Laws

July 31st, 2017
What does Pavan v. Smith mean for Virginia’s LGBTQ couples interested in utilizing a surrogate mother to start a family?
In Pavan, the United States Supreme Court reversed a decision out of Arkansas that refused to name a birth mother’s wife as a parent on a birth certificate.  Arkansas law permits the naming of a birth mother’s husband as a parent on a birth certificate in cases of artificial insemination.  The Pavan decision opens with “As this Court explained in Obergefell v. Hodges, 576 U. S. ___ (2015), the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’ Id., at ___ (slip op., at 23).” The Supreme Court went on to declare that a birth mother’s same-sex spouse may be named as a parent on a birth certificate when state law permits an opposite-sex spouse to be named in cases of artificial insemination.  Read the full decision here.
Virginia’s Assisted Conception laws allow a woman and her husband to enter into a contract with a surrogate mother, and, if she is married, her husband.  The Attorney General has stated that the written law should apply equally to same-sex couples, however, the General Assembly has never revised the law.  This lack of revision has left many LGBTQ couples unsure if they will be able to enforce their parental rights under the law even if they are named on the birth certificate.  Pavan reiterates that same-sex couples are entitled to all the same rights and responsibilities under the law as opposite-sex couples.  This decision strengthens same-sex spouses’ right to enforce surrogacy contracts, and other rights and responsibilities of being a lawful parent, under Virginia’s Assisted Conception laws.

How to get temporary custody of my grandchildren to register them for school

July 28th, 2017

School Registration

About this time of year, I get a lot of phone calls from grandparents who want to get temporary custody of their grandchildren so the child can be registered for the coming school year.

Often, the grandparent tells me that the parent has agreed to a temporary arrangement where the child will live with the grandparent for now, but be returned to the parent when (fill in the blank with the condition that the parent wants).  Often, this agreement is in writing and sometimes notarized.

However, these agreements are not considered a legal transfer of custody. Some school districts will not allow a child to be registered in school without legal custody.

First, check with your local school district to find out what is required to get the child registered.  Often, a school will allow a child to be registered if there is a pending petition for custody.

Temporary Custody

The courts do not generally order a temporary change in custody unless it is considered just a step toward a permanent order of custody.  A temporary change in custody can be requested when the parties go to court for their initial meeting with the court staff.  This temporary change is only in effect until the court has the ability to hear the entire case and make a permanent decision.

Often, a parent will be hesitant to agree to a permanent change in custody, but the parent should be aware that the custody decision is really only permanent until it is changed by another permanent order from a court.  A permanent change in custody might be modified if there has been a ‘material change in circumstances’.   This material change could possibly be the same condition the parent noted previously.

If you have questions about this, please contact the office of Beavers Law, P.C. at 757-234-4650 to schedule a consultation with one of our attorneys.  You can also visit us on the web at www.BeaversLaw.com.

Hers, Mine and Ours

June 5th, 2017

By: Shannon Forrest

Generally, if you were married when you acquired it – whatever the item is – it is marital property. There are exceptions to this rule, but not many. There may be different rules in other states, but this is the rule in Virginia. In other words, even if you have been working hard, received your wages and bought a “toy”, a motorcycle, for example, from your own paycheck, “half” of that motorcycle is still the other spouse’s.

Is it only in your name? Well, you’re married, so that title is a legal fiction. A Court may act much the way a Trustee does in a Bankruptcy, and change the title of the item, just so it is split equitably. “Equitably” means “fairly”, not necessarily 50:50. For example, the Court might look at why you are getting divorced, that is, the grounds for your divorce and distribute the property 30:70. In fact, the Court considers 11 factors when dividing property fairly.

This Rule is why, when an attorney hears you are getting married, he immediately mentions a Prenuptial Agreement. It is one of the few ways to preserve property that does not become “hers, mine and ours”.

A note about retirement. Retirement, earned during the marriage, is considered marital property, even if it is paid as monthly income. Generally, the Court awards half the “marital portion” of a spouse’s retirement. The “marital portion” is the total amount of retirement you earned during the marriage. The Court uses a special Order that allows companies to apply this formula to retirement accounts so that they are split fairly. Again, a retirement account is treated like a piece of property, and the general rule of “hers, mine and ours” applies to it.