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How do Virginia Courts Determine Child Custody?

7/25/2014

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By: Lloyd Jeong

When deciding which parent (or other person) is granted custody of the child, the Virginia courts determine what is in the “best interests of the child.”  To make this determination, the courts consider ten factors as listed in Virginia Code § 20-124.3:

  1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs; 
  2. The age and physical and mental condition of each parent; 
  3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child; 
  4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
  5. The role that each parent has played and will play in the future, in the upbringing and care of the child; 
  6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child; 
  7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child; 
  8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference; 
  9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and 
  10. Such other factors as the court deems necessary and proper to the determination. 

No one factor is decisive by itself.  Courts will consider all of the factors above and weigh them against each other before making a final decision.  For example, if there is a custody dispute between a wealthy parent who has a history of domestic violence and a less affluent parent, the court may decide to grant custody to the parent with less financial resources after weighing all ten of the factors.
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Renting Nightmares: How Horrible Before it’s “Non-Habitable” and My Lease Can Be Terminated?

7/23/2014

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By: Emili Kensing

There comes a time in all renters’ lives where a pipe has leaked or pests have infiltrated, making a mess—as well as an unhappy place—of your residence.  But sometimes the effects of these mishaps are either not appropriately repaired or are so horrible that it makes living there unsafe or unsanitary.  This is when habitability—the ability to live cleanly and safely in a certain place—becomes an issue.

Although habitability may seem fairly straightforward, habitability can be a tricky issue, since there’s not much of a standard to decide what is and what is not habitable.  Thus, habitability circumstances brought before the court are decided on a case by case basis.  Guy v. Tidewater Inv. Props., 41 Va. Cir. 218, 227 (Va. Cir. Ct. 1996). But “Basic Virginia Law for Non-Lawyers” lists a few situations that are definitely non-habitable:

  1. Supply running water, reasonable amounts of hot water at all times, and reasonable heat in season (unless the tenant has independent utilities or the utilities are supplied directly by an independent utility company);
  2. Maintain in good and safe working order all electrical, heating, plumbing, sanitary, ventilating, air-conditioning, and other facilities and appliances supplied, or required to be supplied by the landlord;
  3. Keep all common areas clean and provide appropriate waste receptacles in common areas shared by two or more dwelling units;
  4. Comply with all housing and fire code requirements; or
  5. Provide locks and peepholes and in properties with five or more dwelling units in one building, and install deadbolt locks and peepholes in any exterior swinging entrance doors (unless the door has a glass panel).

If a landlord does not comply with these requirements, a tenant may terminate the lease—after a notice of non-habitability and opportunity to fix the problem has been given to the landlord.  Isbell v. Commercial Inv. Assocs., 273 Va. 605, 616 (Va. 2007). 

Basically, if the conditions threaten your health or safety, it’s likely a violation of your warrant of habitability.  But make sure to consult a lawyer before attempting to terminate your lease to ensure that no actions can be taken against you.

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Guide to Litigation Forms in Virginia General District Court

7/11/2014

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By: Emili Kensing

Virginia General District Court has a variety of forms to help litigants file and defend lawsuits in a more efficient manner.  Although the forms themselves are relatively straight forward (and come with instructions), the names of the forms are not as easily understood.  Below is a simple chart to help litigants determine the appropriate form to file for the most common circumstances (there are dozens of other forms that can be seen here). 
Objective
Claim to collect money
Claim to recover property
Provide details of case to defendant 
(ordered by court)
Provide defense to plaintiff 
(ordered by court)
Compel landlord to fix an issue with the property
Evict a tenant
Enforce judicial order
Dismiss a filed lawsuit
Request a restraining order
Form
Warrant in Debt
Warrant in Detinue
Bill of Particulars

Grounds of Defense

Tenant’s Assertion and Complaint
Summons for Unlawful Detainer
Motion for Show Cause Summons
Motion for Voluntary Nonsuit
Petition for Protective Order
Remember: Claims up to $5,000.00 may be filed in Small Claims Court and claims over $5,000.00 may be filed in General District Court (or Circuit).  A detailed explanation of the Virginia court system can be seen in this prior post.

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