By Katarina Nguyen

A protection order is the same thing as a restraining order in that both are designed to protect you against an abuser. In DC, a protection order requires that the person who is subject to the order, the respondent, stay away from you, the petitioner. However, a protection order can provide many other types of protection and relief, as explained in Section II below. You can obtain a protection order if the “respondent has committed or threatened to commit one or more criminal offenses against [you]” (see DC Code Section 16-1003(a)). There is no filing fee to request and obtain a protection order.

I. Types of Protection Orders

DC has three types of protection orders: the first is a Civil Protection Order, which is used when the person threatening or committing a crime against you is a family member, roommate, someone you dated or had a sexual relationship with, someone with whom you share a child, spouse, ex-spouse, or someone who dated your current boyfriend, girlfriend, or spouse (see DC Code Section 16-1001(6)-(9), (12), and DC Code Section 16-1003(a)). This type of protection order is also used in cases of stalking, sexual assault, and sexual abuse. A Civil Protection Order can last up to one year.

The second type is a Temporary Protection Order, which offers much of the same protections of a Civil Protection Order, but only lasts for up to two weeks (see DC Code Section 16-1004(b)). Because it is granted ex parte, or without the abuser present, this order is meant as a placeholder while you schedule and hold a hearing for the Civil Protection Order (though if the respondent fails to show up to the hearing, then the Civil Protection Order can be granted ex parte as well).
 
The final type is an Emergency Temporary Protection Order, which is similar to a Temporary Protection Order, except that it lasts for only five days (see DC Police’s Guide on Protection Orders). Only a police officer and an advocate from Survivors and Advocates for Empowerment (SAFE) can request this type of protection order.

II. How a Protection Order Protects You

A protection order provides a variety of protections (see DC Code Section 16-1005(c)). The respondent can be ordered to:

• Give up possession of any firearms, restricted from carrying, using, or purchasing a firearm;
• Stop committing or threatening to commit crimes against you and any other person named in the petition ("protected person");
• Stay away from you and any other protected person, including at specific locations
• Refrain from contacting with you and any other protected person;
• Refrain from entering the home, or vacate the home if you both live together and you own/rent or jointly own/rent the home;
• Participate in psychiatric or medical treatment or counseling for, parenting, drugs, alcohol, domestic violence, and so on;
• Pay your attorneys' fees and court costs;
• Return personal property owned by you alone or jointly with the respondent, including keys;
• Provide you with financial assistance or spousal support for your expenses, including rent, mortgage, and bills;
• Pay you child support;
• Keep you and/or your children on his/her health insurance plan; and/or

• Reimburse you for property damage, medical costs, and other expenses you incurred due to the respondent's actions.

 
In addition to the above, the Court could also grant the following relief to the petitioner:

• Grant you temporary custody of the children and, assuming the respondent shows that visitation will not hurt the children's emotional development or endanger them (see DC Code Section 16-1005(c-1)), arrange for a visitation schedule that protects your safety;
• Order the police to assist in enforcing the terms of the order, such as by having them escort you to collect personal belongings or to collect the keys from the respondent for you;
• Grant you custody of a pet that belongs to you, the respondent, or lives in either household; and/or

• Order any other relief that you show you need to protect you from harm.

III. Filing for a Protection Order

A. Eligibility

To qualify for a protection order in DC, you must live or work in DC and at least one incident must have occurred in DC (see DC Code Section 16-1006). A protection order granted in DC is effective in all states in accordance with the U.S. Violence Against Women Act, which applies to all protective orders, regardless of whether the petitioner is a man or woman. Depending on the state, you may have to register your DC protection order with the court to make enforcement easier for the state. However, federal law requires the states to uphold a DC protection order regardless of whether it has been registered. If you move, you should also notify the DC court of your new address.
 
The time limit for filing for a protection order is two years. However, it is recommended that you file as soon as possible as judges view a long delay in filing less favorably. This is because the court will think that you were not really in danger, or else you no longer believed you were in danger, if you waited too long after the threat or crime. The judge will ask you why you waited so long after receiving the threat or injury to file for a protection order. If the judge is not satisfied with your reasons, he or she is more likely to deny your petition.

B. Evidence Gathering

When seeking a protection order, be sure to have the abuser's work and home address, phone number, a physical description, and any aliases he or she uses. Also bring any evidence of harassment, stalking, or abuse inflicted upon or threats made to you or your children that you collected, such as police reports, hospital records, pictures, journals, notes, letters, emails, text messages, recordings, 911 calls, damaged clothing or objects, and so on. You should also contact any witnesses and ask if they would be willing to testify on your behalf at the Civil Protection Order hearing.
 
If seeking temporary custody of a child, have with you the addresses the child has lived at for the past five years and with whom the child lived at each address. You will also need to know if there is any pending court case concerning custody of the child and whether you know of any other person besides yourself or the respondent who claims to have custody of the child.
 
If seeking temporary child support from the respondent, you must bring proof of your income and the respondent's income to the Civil Protection Order hearing. This includes two recent pay stubs, tax returns for the last two years, or a completed financial statement. If there are any other child support orders that affect you or the respondent, then bring copies of them as well.
 
If seeking to have the respondent vacate your home, you must bring the lease or deed to the Civil Protection Order hearing. In addition, if seeking to have the respondent reimburse you for medical costs, property damage, and other expenses you incurred due to his or her actions, bring those bills, invoices, receipts, or estimates to the hearing.

C. Starting the Process - The Temporary Protection Order

To file for a protection order, you must go to the Domestic Violence Intake Center and fill out the Petition and Affidavit for Civil Protection Order form (available here). Because the filing process can take several hours, it is recommended you have plenty of time to arrive at court before it closes at 4:00 pm. If you have an emergency situation, including if the Domestic Violence Intake Center's offices are closed, you can contact the Domestic Violence Unit at Police Headquarters.
 
If filing with the Domestic Violence Intake Center, you can choose whether to file for just a Civil Protection Order or also a Temporary Protection Order, which must be filed with the Civil Protection Order. An intake officer will assist with filling out the paperwork. When writing about the incidents, use descriptive words and include as much details, times, and dates as possible. If you and the respondent share children who live with you, you can also file for child support. When you are finished with the paperwork, a court advocate will talk with you about the hearing and can help provide other resources, including counseling, emergency funds, and shelter housing.
 
If filing for a Temporary Protection Order, you will have a hearing in front of a judge that day. You must show the judge that you are “is immediately endangered by the respondent” (see DC Code Section 16-1004(b)(1)). For instance, if being threatened with death or bodily harm, that would be considered immediate danger. In cases of stalking, if the behavior is continuous or escalates in severity, this would constitute immediate danger. If you have a message from the respondent saying he or she is coming to find you, combined with a threat of committing a crime against you, that could also be a case of immediate danger. If granted, the Temporary Protection Order will remain in effect until the Civil Protection Order hearing, or up to two weeks. If denied, you will still have the Civil Protection Order hearing scheduled.

D. Service

Regardless of whether a Temporary Protection Order is granted, during the period between filing and the Civil Protection Order hearing, the respondent must be served. Service, or delivering the petition to the respondent, cannot be done by you or any other party to the petition (see DC Code Section 16-1004(d)). You can arrange to have a non-party person who is 18 years of age or older to deliver the petition to the respondent. This person must sign a Return of Service confirming the petition was delivered, which you must bring to the hearing. You can also hire a private process server or request that the police serve the petition upon the respondent.

E. The Civil Protection Order Hearing

At the Civil Protection Order hearing, if the respondent does not appear at court and you have proof that the respondent was properly served, then you can obtain a default ruling if the judge finds there is reasonable belief that the harm you stated in the petition occurred. However, if the judge finds that the respondent was not properly served, you can ask to continue the case to give you time to serve the respondent again. If you have a Temporary Protection Order, you can also ask that it be extended until the continued hearing date.
 
If the respondent does appear, there is a negotiation requirement in DC where you meet with an attorney negotiator to see if you and the respondent can reach an agreement about the Civil Protection Order, such as if the respondent consents to the protection order. If an agreement is reached, the judge will review the agreement and make sure that all parties understand the details of the agreement. The judge will then sign the agreement, which will last for one year. On the other hand, if no agreement is reached during negotiations, you will present your evidence and any witnesses, including yourself, of the injuries or threats, and the respondent will submit evidence in defense. The judge will then decide whether to grant the Civil Protection Order if there is good cause to believe that the respondent committed or threatened to commit a prohibited act against you. If the judge states that a decision to grant or deny your petition will be made at a later date, be sure to ask that the Temporary Protection Order be extended until such time.

F. After the Hearing

If the judge denies your petition for a protection order, you should contact a domestic violence resource center to get advice on staying safe. You can also reapply for a protection order if a new violation is committed or a threat to commit a crime is made against you. You may also consider appealing the judge's decision.
 
If the judge grants your Civil Protection Order, you should review the order and make sure there are no mistakes (if there are, see the clerk about correcting the order). Then make several copies, one to keep with you and the others to give to others, such as the front desk of your workplace, your children's school or daycare, sympathetic neighbors, and so on. Include a picture of the respondent with the copy.
 
While the protection order is in effect, if you are a renter, you can ask your landlord to change the locks if you make the request in writing (see DC Code Section 42-3505.08). If the respondent is a tenant in your apartment, you will have to include a copy of the protection order that states the respondent must stay away from you. The landlord will have five business days to change the locks to all entrance doors to your apartment. While the landlord pays the initial cost, you may have to reimburse the landlord if, within 45 days, you receive a bill with proof of the cost. There may also be an administrative fee associated with the lock change that you may have to pay as well if, for instance, your lease provides that the landlord can change the locks upon request for a fee.

IV. Violations of the Protection Order

If you discover that the abuser has violated the protection order, contact the police and provide any evidence of the violation. This evidence can include a journal or log, voicemail messages, letters or envelopes, cell phone bills, emails, and pictures. If there are witnesses to the violation, ask if they would be willing to testify at a hearing. If you were injured as a result of the violation, go to the hospital immediately afterwards, inform the staff that you have a protection order, and take pictures of the injuries. One could be held in contempt of court for violating a protection order, which is punishable by a $1,000 fine and/or up to 180 days imprisonment (see DC Code Section 16-1005(f)-(h)).
 
You can also notify the court of a violation and bring proceedings against the respondent yourself by filing a motion to adjudicate civil contempt or a motion to adjudicate criminal contempt. You would file a motion for the former if the respondent did something such as failing to pay ordered child support. You would file a motion for the latter if the respondent harmed or threatened to harm you.

V. Extending, Modifying, or Vacating the Protection Order

Prior to the expiration of the protection order, you can file a motion to extend the protection order (see DC Code Section 16-1005(d)). At the same time, the respondent (and you) can file a motion to vacate the protection order if he or she can argue there is good cause as well. In addition, you can file a motion to change the terms of the protection order. If filing any of these types of motions, you must show “good cause” to the court to extend, modify, or vacate the protection order. Any motion you file must be served on the respondent in the manner explained previously.

VI. Resources

For additional help, see the DC Police's Guide on Protection Orders and Pamphlet, the DC Coalition Against Domestic Violence and Women Empowered Against Violence Pamphlet, the DC Courts Guide on Domestic Violence Matters, and Womens Law Guide on Civil Protection Orders.
 
If you need assistance filing a protection order or representing you in court, please feel free to contact us for a free phone consultation.

By Katarina Nguyen
 
A protective order is the same thing as a restraining order--both are meant to protect you and Virginia uses the term protective order instead of restraining order. A protective order is meant to protect you from someone who has physically or sexually harmed you or threatened to harm or kill you by preventing this person from even contacting or approaching you.
 
If you’re filing for a protective order, you are called the “petitioner” and the offender is called the “respondent.”
 
In Virginia, there are two categories of protective orders: general protective orders and those in cases of family abuse. General protective orders are codified under Virginia Code Sections 19.2-152.7:1 to 19.2-152.12, and family abuse protective orders are codified under Virginia Code Sections 16.1-253, 16.1-253.1, 16.1-253.4, and 16.1-279.1.
 
General protective orders are filed in the General District Court, while family abuse protective orders are filed with the Juvenile and Domestic Relations ("JDR") District Court. You can obtain a family abuse protective order at any time, including during the pendency of a divorce, support, custody, or visitation case. Each variety offers the same essential protection of preventing the respondent from contacting or coming near you, while the family abuse variety offers specific related relief, such as giving you possession of the residence and/or vehicle and ordering the respondent pay temporary child support.
 
I.  Obtaining a Protective Order
 
The first step is determining whether you need a general protective order or a family abuse protective order. Family abuse protective orders are issued in cases of family abuse committed by a “family or household member” against you or another member of your family.
 
General protective orders are used for everyone who does not fall under the family abuse protective order definition.
 
The process for obtaining protective orders in either category is virtually identical and the Virginia court system has aimed to streamline this process. For instance, there is no filing fee required when seeking a protective order.
 
A.  Types of Protective Orders
 
There are multiple types of protective orders, depending on how immediate the threat of harm is.
 
The first is the Emergency Protective Order (Virginia Code Section 16.1-253.4 for family abuse protective orders, and Section 19.2-152.8 for general protective orders), which only lasts three days. Emergency Protective Orders are typically obtained by a law enforcement officer because the situation is so dire that you cannot wait to have a petition filled out and processed by the court. To secure further protection after the Emergency Protective Order expires, you must file for a Preliminary Protective Order before the emergency protective order expires (Virginia Code Section 16.1-253.1 for family abuse protective orders, and Section 19.2-152.9 for general protective orders). A preliminary protective order typically lasts either 15 days or until the date of a full hearing. You are not required to get an emergency protective order before filing for a preliminary protective order.  At the full hearing, the court determines whether to award the third type, which is a Final or Full Protective Order (Virginia Code Section 16.1-279.1 for family abuse protective orders, and Section 19.2-152.10 for general protective orders). Final protective orders may last up to two years.
 
B.  Types of Harm Sufficient for a Protective Order 

To obtain a general protective order, you need to demonstrate to the judge that the offender has subjected you to an act of violence or a threat of violence. Alternatively, you can show that the offender is the subject of a petition or warrant for arrest for committing a crime involving an act of violence or threat of violence. You must show that a protective order is necessary to protect the health and safety of yourself and/or your family.
 
To obtain a family abuse protective order, you need to demonstrate to the judge that the offender has subjected you to family abuse, as defined under Virginia Code Section 16.1-228, which can include acts of violence, threats of violence, sexual assault, forceful detention, and stalking. This abuse needed to have taken place within a reasonable period of time prior to your filing for a protective order. You must show that a protective order is required to protect the health and safety of yourself and/or your family.
 
The relief or protections available differs depending on the type of protective order. A full Protective Order can order the respondent to get treatment or counseling or that you receive temporary custody or visitation of a minor child in cases of a family abuse protective order, whereas a Preliminary and Emergency Protective Order cannot provide as much relief because a full hearing has not been held.
 
C.  Filing Your Petition for a Protective Order 

If you believe you have grounds to file for a protective order, you must fill out Form DC-383 for a general protective order, which is available for download here, along with instructions on how to fill out the form here. For a family abuse protective you must fill out Form DC-611, which is available for download here, along with instructions on how to fill out the form here (Note: you can delete the “Virginia Beach” insertion at the very top of the form and specify the court in which you are filing).
 
You must provide the contact information for the respondent and describe how he or she has harmed or threatened to harm you or members of your family. If seeking a family abuse order, you must check the appropriate boxes describing your relationship to the respondent. You can then check the box stating you are seeking a Preliminary Protective Order during the interim leading up to the full hearing. After that, you check the boxes for each type of relief you are seeking (see subsection D below for more details). On the second page, for service of the petition, you only need to fill in your name and the name and address of the respondent. The rest is filled out by the court and the serving officer. You are not required to disclose your address and phone number in the form. This information is kept confidential by the court.
 
You may be required to fill out a separate affidavit detailing the supporting facts showing good cause if seeking a Preliminary Protective Order. Good cause is when you can show an immediate and present danger of an act of violence or threat of violence, or you provide evidence to show probable cause that an act of violence of threat of violence recently occurred.
 
D.  Available Relief  

For family abuse protective orders, the following relief is available:

• Prohibiting further acts of family abuse or criminal offenses that result in injury to person or property
• Prohibiting such contact with you and/or your family as the judge deems necessary for your health and safety
• Granting you possession of the home at the exclusion of the respondent, if you and the respondent live together
• Prohibiting the respondent from necessary utility services to the home, or requiring the respondent to restore such services
• Granting you temporary exclusive possession or use of a motor vehicle jointly owned by you and the respondent or owned by you alone
• Prohibiting the respondent from terminating the auto insurance, vehicle registration, and taxes on the motor vehicle, or requiring the respondent to maintain the above
• Requiring the respondent provide you and/or your family with suitable alternative housing, including requiring him or her to pay the deposit needed to connect or restore necessary utility services in the alternative housing
• Granting temporary custody or visitation of a minor child or children to you
• Provide you with temporary child support for the minor children
• Granting you possession of a companion animal, as defined under Virginia Code Section 3.2-6500 (assuming you meet the definition of an owner under the same Section)
• Any other relief necessary for your protection

 
For general protective orders, the following relief is available:

• Prohibiting acts of violence, force, or threat or criminal offenses that may result in injury to person or property
• Prohibiting such other contact with you and/or your family as the judge deems necessary for your health and safety
• Granting you possession of the companion animal, as defined under Virginia Code Section 3.2-6500 (assuming you meet the definition of an owner under the same Section)
• Any other relief necessary to prevent acts of violence, force, threat, criminal offenses resulting in injury to your person or property, or communication or contact of any kind by the respondent

 
E.  The Hearing  

At the full hearing, the respondent will have the opportunity to defend his or herself against your allegations. You have to show by a preponderance of the evidence (i.e., more likely than not or 51%) that (1) you were subjected to an act of violence or threat of violence, (2) the respondent was convicted of a criminal offense due to an act of violence or threat of violence, or (3) a warrant was issued against the respondent alleging he or she committed an act of violence or threat of violence. If the court believes you are at risk for harm, it will grant your petition and issue a full Protective Order.
 
II.  After Getting a Protective Order 

A.  Extending Your Protective Order 

When the expiration date of your protective order is approaching, you may apply to extend the Protective Order using Form DC-630 for a period of up to 2 years if the respondent continues to pose a threat to you or your family. The same form is used for both family abuse and general protective orders. The form is available for download here, along with instructions on how to fill out the form here. (The second page is for the clerk and serving officer to fill out.) There is no limit on the number of extensions that can be requested. If granted, a new Protective Order is issued.
 
B.  Dissolutions and Modifications of Existing Protective Order 

Both you and the respondent also have the right to file a motion to modify or dissolve the Protective Order. If modified, the court will issue a new Protective Order.
 
C.  Violations of the Protective Order 

If the respondent violates the Protective Order and you feel threatened, you should call the police immediately. The respondent can be punished under Virginia Code Sections 18.2-60.4 and 16.1-253.2. If a family abuse protective order was violated, then you must first file Form DC-635 in the JDR District Court, available for download here and instructions here, which is a motion for show cause detailing how the respondent violated the order. If a general protective order was violated, you must file Form DC-420 in General District Court, which is available for download here and instructions here. If the court grants your motion, the respondent will be found guilty of a Class 1 misdemeanor. After the second offense, the respondent may be imprisoned for at least 60 days if violence or the threat of violence was involved. The court will also enter an additional protective order for up to 2 additional years beginning from the date of conviction.
 
III.  Other Resources 

For additional help on determining whether you qualify for a protective order and what type to seek, the Virginia court has I-CAN. Once you register, you fill out the questionnaire, which takes approximately 30 minutes. This website does not file a petition for you, but helps determine what forms you will need.
 
If you need assistance filing a protective order or representing you in court, please feel free to contact us for a free phone consultation.

By Steven Krieger

Hiring a contractor for a renovation or remodel project is a major decision – some renovation or remodeling projects cost more than a new car.  Certainly, you want to interview several contractors and check the referrals to find one you feel comfortable with, but perhaps the most important piece of information to verify is the contractor’s license. 
 
A consumer (or anyone) may verify a contractor’s license by confirming with the Virginia Department of Professional and Occupational Regulation (“DPOR”). Unfortunately, there are individuals and business entities that claim to be licensed contractors, but do not actually hold a valid contractor’s license.  Just because the contractor has set-up an LLC or a Corporation (or simply put the LLC, Inc. or Corp. at the end of their name without properly setting up the business entity) to shield the individual owner from liability does not necessarily mean that the contractor has a valid license to perform contracting tasks.  A business license is not a contractor’s license.
 
Possessing a valid contractor’s license is critical because the Virginia Contractor Transaction Recovery Act provides relief to eligible consumers who have “incurred some type of loss through the improper or dishonest conduct of a licensed residential contractor” through the Contractor Transaction Recovery Fund.
 
Unfortunately, if the contractor is not licensed, the consumer homeowner is not able to seek relief through the Contractor Transaction Recovery Fund.  A consumer could certainly file a complaint with DPOR about an unlicensed contractor and “[i]f an investigation indicates the individual or business is not properly licensed, DPOR may take criminal action.”  But, criminal action does not necessary put any money back in the consumer homeowner’s pocket. 
 
Previously, I’ve written about the Virginia Consumer Protection Act (“VCPA”), which is a powerful tool for consumers because it allows consumers to recover reasonable attorney’s fees.  This is significant because a consumer may not want to engage an attorney to sue the contractor if the attorney’s fees are not recoverable from the contractor.
 
The VCPA identifies 54 different violations to help protect consumers in Virginia. Number 46 says that the following is unlawful: “[v]iolating the provisions of clause (i) of subsection B of § 54.1-1115.”  Virginia Code § 54.1-1115(B) states: “[a]ny person who undertakes work without (i) any valid Virginia contractor’s license or certificate when a license or certificate is required by this chapter.”
 
So, the question becomes: who is required to possess a license as “required by this chapter,” which is Chapter 11 Contractors from Title 54.1 Professions and Occupations.  Virginia Code § 54.1-1100 is the definition section of this chapter and defines a contractor and what license class (A, B, or C) the contractor is required to possess.
 
A contractor is defined as: “any person, that for a fixed price, commission, fee, or percentage undertakes to bid upon, or accepts, or offers to accept, orders or contracts for performing, managing, or superintending in whole or in part, the construction, removal, repair or improvement of any building or structure permanently annexed to real property owned, controlled, or leased by him or another person or any other improvements to such real property. For purposes of this chapter, "improvement" shall include (i) remediation, cleanup, or containment of premises to remove contaminants or (ii) site work necessary to make certain real property usable for human occupancy according to the guidelines established pursuant to § 32.1-11.7.”
 
Based on this definition, the term “contractor” is pretty broad, so anyone who provides a consumer homeowner an estimate to perform any remodeling, renovation, or improvement work around your home likely falls into the definition of a contractor and is required to have some type of license – even if the “contractor” plans to sub out all of the work.
 
However, this is one exception: if the project is under $1,000, the contractor is not required to have a Class C license unless “the total value of all such construction, removal, repair, or improvements undertaken by such person within any 12-month period is less than $150,000.”  In other words, your handyman, who charges you $200 to repair a bit of drywall is not required to have a license – unless this handyman is really doing a lot of work during the year that exceeds $150,000.
 
If the contractor does not have a valid license, then the contractor may have violated § 59.1-200(A)(46) of the VCPA, which allows the consumer homeowner to file a complaint against the unlicensed contractor to recover whatever financial damages were caused by the contractor in addition to reasonable attorney’s fees (and potentially punitive damages if the violation was intentional).
 
Although, the consumer homeowner may not be able to recover financially through DPOR and the Contractors Recovery Fund from damages sustained by an unlicensed contractor, the VCPA does allow the consumer homeowner to recover from the unlicensed contractor.
 
If you’re a consumer homeowner struggling with an unlicensed contractor (or even a licensed contractor), please feel free to contact my office for a consultation. 

By Brian Silver
 
Arrest records can be a hindrance to an innocent person’s ability to obtain employment, receive an education, or establish credit. An expungement is used to seal all police and court records pertaining to a specific criminal case. While the records are not permanently destroyed, the public’s access to them is restricted. In Virginia, an individual’s right to expunge criminal records is governed by Virginia Code § 19.2-392.2[1] The statute details when an individual is eligible for an expungement, the legal components that a judge will use to determine the petitioner’s eligibility, and the steps an individual has to take in order to petition for an expungement.
 
After the record is expunged, you may legally deny the existence of the record. Additionally, you cannot be denied any permit, license, or employment based on the expunged record.[2] After expungement, the only time when another individual may be granted access to the record is when a law-enforcement agency needs the record for purposes of an employment application to work for the agency, or for a pending criminal investigation where life or property would be jeopardized without immediate access to the record.[3] If your record is expunged, you may also have the ability to expunge your DNA profile that was authorized due to the arrest.[4]
 
I. Am I Eligible for an Expungement?
 
You hold the right to petition for an expungement if any of the following circumstances apply; (1) you were acquitted of a crime;[5] (2) criminal charges against you were dismissed;[6] (3) the prosecution entered a declaration of nolle prosequi;[7] (4) someone else committed a crime using your identification information;[8] or (5) you received an absolute pardon.[9]
 
In order to be eligible for an expungement, you must maintain a claim of innocence for the crime you were charged with. However, an exception to the rule exists if you receive an absolute pardon.[10] After being found guilty of a crime, the state may later grant you a pardon in one of three manners; (1) a simple pardon, whereby the state officially forgives your crime; (2) a conditional pardon, whereby an individual who is still imprisoned may be eligible for early release; and (3) an absolute pardon, whereby the state officially recognizes your innocence. Only under the third scenario will you have the ability to petition for an expungement. If you plead nolo contendre, or “no contest,” you would not be eligible, as you would be pleading guilty for sentencing purposes.
 
II. How Does a Court Weigh the Merits of my Petition?
 
When considering whether to grant your expungement petition, a court will determine whether allowing your criminal record to remain public presents a “manifest injustice.”[11] While courts use several factors to draw its conclusion, demonstrating that the record’s publicity could harm your employment, educational, or credit prospects can assist in displaying that a “manifest injustice” is present. Additionally, in cases involving an acquittal, the decisions from each court involved in your case may be utilized. For example, a court may be more likely to expunge your record if you were acquitted by a trial court, rather than if you were found guilty by a trial court and later acquitted by an appellate court. If the court finds that disclosure of your record presents satisfies the criteria, your record will be expunged.
 
An exception to the “manifest injustice” standard exists if the record you are looking to expunge was for a misdemeanor charge and you otherwise have a clean criminal record. In this case, unless good cause for keeping the record disclosed is shown by the Commonwealth, you are entitled to have the record expunged.[12]
 
III. How Do I File a Petition?
 
1. First, you will need to file a petition with the appropriate Circuit Court in the city of county where your case was handled.[13] Three additional copies of your petition will be needed throughout the process, including one that you should keep as proof of filing with the court. Along with the petition, you will need to provide a copy of either the warrant or indictment with the court where the case took place.[14] The following must be included in the petition; (1) the date of arrest; (2) the name of the arresting agency; (3) the specific charge you wish to be expunged; (4) the date of the final disposition of the charge to be expunged; (5) your date of birth; and (6) your full name at the time of the arrest.[15]
 
2. The petition is then served on the Commonwealth Attorney (CA), who is the named Defendant.[16] Once the petition has been filed, a hearing is set approximately eight to ten weeks later on the Circuit Court’s civil motions docket.
 
3. The CA then has 21 days to respond to the petition upon being served.[17] The CA will state in its response that it either does or does not object to the expungement. If it does not object, then the scheduled hearing will simply consist of an order directing the judge to expunge the records. If the CA objects, a hearing will be held to determine whether the records’ disclosure presents manifest injustice to you.
 
4. During the time period between filing the petition and the hearing, you would need to obtain two copies of your fingerprints.[18] Unfortunately, the set obtained when the arrest occurred are not available for this process. New fingerprint cards can be obtained at the corresponding Sheriff’s Department, which are then sent along with a copy of your petition to the State Police.[19] The final copy of your petition is retained by the Police Department. The State Police run a criminal history report and mail the report back to the court. The fingerprints need to be obtained as soon as possible after you file the petition to prevent any delay in getting the report back to the court, as it usually takes four to six weeks for the court to receive the report from the State Police.
 
5. If the expungement is granted, the court's order is sent to the State Police, the entity responsible for expunging the records.[20] If the petition for expungement is denied, then the records continue to exist and be disseminated.
 
IV. Cost
 
The following are the costs for each expense incurred during the process:[21]

• Filing fee: $86
• Sheriff’s service fee for filing: $12
• Fingerprints: $15

If you are looking to expunge a record because someone else committed a crime using your identity, you are not required to pay the fee for filing the petition, though other fees still apply.[22]
 
You are not required to hire an attorney to file a petition for expungement, but it almost certainly
will be easier and more convenient.  Feel free to contact us.


[1] Virginia Code § 19.2-392.2.
[2] Virginia Code § 19.2-392.4(B).
[3] Virginia Code § 19.2-392.3(B).
[4] Virginia Code § 19.2-310.7.
[5] Virginia Code § 19.2-392.2(A).
[6] Id.
[7] Id.
[8] Virginia Code § 19.2-392.2(B).
[9] Virginia Code § 19.2-392.2(I).
[10] Virginia Code § 19.2-392.2(I).
[11] Virginia Code § 19.2-392.2(F).
[12] Virginia Code § 19.2-392.2(F).
[13] Virginia Code § 19.2-392.2(C).
[14] Id.
[15] Id.
[16] Virginia Code § 19.2-392.2(D).
[17] Virginia Code § 19.2-392.2(D).
[18] Virginia Code § 19.2-392.2(E).
[19] Id.
[20] Virginia Code § 19.2-392.2(K).
[21] Virginia Code § 17.1-275.
[22] Virginia Code § 19.2-392.2(B).

By: Justin Ewaniszyk

Note: If you're a landlord or tenant in Virginia, check out our Virginia blog post The Eviction Process in Virginia: A Guide for Landlords and Tenants.

In Washington DC, both Tenant and Landlords have certain rights and obligations that they should know about before and during the eviction process. Those rights are governed by D.C. Code §42–3505.01, and it’s important for both Landlords and Tenants to understand the eviction procedure or the court may not grant your request. In other words, a Landlord cannot simply change the locks, turn off the utilities, remove Tenant’s belongings, or physically remove Tenant from the property without proper cause, notice, and a court order evicting Tenant.[1] Similarly, a Tenant may not simply withhold rent.

Step 1: Provide Notice to Tenant(s)
There are many possible reasons to evict a Tenant, but the two most common reasons are: 1) failure to pay rent; and/or 2) failure to comply with the obligations under the lease.[2]  If a Landlord believes a Tenant has failed to pay rent, or violated a portion the lease, then Landlord must send Tenant a "Notice to Cure or Vacate."[3] If Tenant does not correct the issue, if the issue is correctable, then Landlord may file for eviction. (Note: A Landlord may not evict a Tenant whose lease has expired, so long as that Tenant continues to pay rent.)

• Failure to Pay Rent: If Tenant fails to pay rent, Tenant must be provided with a 30-day notice to pay the rent in full by Landlord, unless this right to notice was waived in the lease agreement. If Tenant fails to make the payment on or before the 30 days expire, Landlord may bring an eviction action in court.
• Failure to Comply with Correctable Obligations under the Lease: If Tenant violates a portion of the lease agreement, Landlord must provide Tenant with a 30-day notice to fix the violation. The notice must adequately describe the violation and cannot be waived by Tenant in the lease agreement. If Tenant fails to fix the violation on or before the 30-days expire, Landlord may bring an eviction action in court.
• Failure to Comply with Non-Correctable Obligation under the Lease: Since Tenant is unable to cure a lease violation and the violation is material to the lease, Landlord may initiate the eviction proceedings.[4]

Step 2: Service of Eviction
If Tenant fails to pay the overdue rent or correct the lease violation after the 30 days after the notice was sent, Landlord may file an eviction lawsuit in court. Landlord must then serve Tenant with a “Complaint” which specifies a time and date for the initial eviction hearing.[5] If Tenant fails to show up for the initial court date, and a judgement is rendered for Landlord, Landlord is required to file a “Notice to Tenant of Payment Required to Avoid Eviction” form with the court indicating the amount of money the judgement was entered for, which will then be sent to Tenant by the court.  Tenant is able to avoid the eviction if Tenant is able to pay the full amount owed at any time up until the U.S. Marshall arrives to remove Tenant.  The final notice that Tenant should receive is the official eviction notice called a “Writ of Eviction” and it is issued after the court has ordered a “judgement for possession” to Landlord. However, if Tenant and Landlord show up at the date and time specified in the “Complaint”, then the court will hear them both regarding the eviction.

Step 3: Court

• Initial Hearing:
  1. Roll Call: At the initial hearing, which is dated in the complaint, the judge will call all the cases to make sure all parties are present. If a Tenant fails to show up at this initial hearing, the court will enter a default judgement for Landlord, which means Landlord is given possession of the property by the court. If Landlord fails to show up for the roll call, the court will dismiss the case, meaning that Landlord will have to refile the suit against Tenant if Landlord still wants an eviction.
  2. Opportunity to Settle: After the roll call, the judge will dismiss the room to give the parties an opportunity to settle. The parties, if they chose to settle may either: (a) agree to a “Consent Judgment,” which means that Landlord gets a financial judgment against Tenant, but not a judgment for possession, Landlord cannot use this to evict Tenant; or (b) sign a “Settlement Agreement,” which is a separate agreement between the parties to settle the issue, but does not result in a judgement for Landlord. Both options must be approved by the court when court resumes, and ensure that Tenant will pay the rent owed or correct the lease violation by an agreed upon date.
  3. Unable to Settle: If the parties are unable to settle the matter, the judge will then call forward the parties to decide if the case deserves a trial. If there is a genuine dispute about the facts of the case and Tenant requests a trial, it is likely that the judge will order a trial date for the parties to attend.
• Trial: If the parties are unable to resolve the dispute and the judge believes a trial is appropriate, a trial date will be set and each party will have an opportunity to present their evidence (documents and verbal testimony) and the judge will resolve the dispute for the parties.
• Judgment: If Tenant (a) doesn’t show up to initial hearing, thus giving a default judgement to the landlord, (b) breaks the consent agreement, or (c) loses at trial, then the court will enter a judgement for possession to Landlord, will issue a writ of eviction, and will enter a financial judgment against Tenant if appropriate.  After the judgement is made for Landlord, the actual process of removal will begin.

Step 4: Removal
If a judgement for possession is entered for Landlord, they must then file a “Writ of Restitution” or “Writ of Eviction” with the court at least 2 days after the judgement, which then becomes active 3 days after filing. Tenant will receive a copy of this writ which will indicate the first date which they may be evicted. This writ gives the right to Landlord, with assistance from the U.S. Marshall, the legal authority to remove Tenant and their possessions from the property. If the eviction is based on nonpayment of rent, Tenant can defeat the Writ of Eviction at any time prior to actual eviction by paying all owed debts to Landlord, including: back rent, current rent, court costs and fees. Assuming that Tenant is unable to pay the owed rent, or is being evicted for some reason other than their non-payment, Tenant will be required to leave the property upon arrival of the U.S. Marshall, who will supervise the eviction.

If you’re a landlord or tenant, please feel free to contact us for a consultation.

[1] D.C. Code §42–3505.01(a)
[2] D.C. Code §42–3505.01(a-b)
[3] D.C. Code §42–3505.01(b); § 42-3206 (The “Notice” must be served in both English and Spanish by: (1) personal service to Tenant; (2) service to someone that is over 16 years old and resides on the property; or (3) posting a notice on Tenant’s door, only after a “diligent effort” to achieve notice by personal service has failed twice, and must be accompanied by a mailed copy to Tenant within 3 calendar days of posting).
[4] See D.C. Code §42–3505.01(c) discussing illegal activity in the property.
[5] The “Complaint” must be served 7 days before the appearance date and may be served by (1) personal service to Tenant; (2) substituted service to someone specified to the court that is over 16 years old and resides on the property; (3) certified mail, as long as Tenant personally signs for the letter; or (3) posting a notice on Tenants door, only after a “diligent effort” to achieve notice by personal service has failed twice, and must be accompanied by a mailed copy to Tenant within 3 calendar days of posting

By Steven Krieger

As a consumer, you likely have many interactions with businesses each and every day.  Most of those interactions are innocuous and you never give them a second thought. However, on occasion, you may have a really wonderful experience with a particular business or a really terrible experience with another business.
 
If you’re active on social media (and even if you’re not), you may decide to leave a review for the business on a website like Yelp, Angie’s List, Google+, Bing, or Yahoo, to inform your fellow consumers about the details of your experience.
 
In fact, many businesses encourage consumers to leave positive reviews.  If a positive review was written, everyone is happy.  

But, what happens when your experience is negative?  Typically, the consumer attempts to resolve the dispute with the business and the business has an opportunity to do “do right” by the consumer.  Unfortunately, sometimes the dispute cannot or will not be resolved and the consumer goes online and leaves a negative review about the business and the experience.
 
Local business (big or small) take these negative reviews very seriously.  In fact, if the business is able to identify the consumer who left the review, the business may file a complaint in court and will likely claim that the review is defamatory. 
 
Defamation is the general term that describes a printed (libel) or spoken (slander) statement that hurts ones character or reputation.  A negative review posted online will likely harm a business and could be defamatory -- libel, specifically.  However, if the statements are truthful or entirely subjective, the consumer has a valid defense against such a defamation claim.
 
But, even if the consumer has a valid defense, the consumer still must defend the defamation claim, which will cost the consumer time and money.  In the 1990’s, business began to sue or threatened to sue consumers primarily for the purpose of intimidating consumers into removing the negative reviews. The Public Participation Project explains it best: “[t]hese types of lawsuits are known as Strategic Lawsuits Against Public Participation (SLAPPs).  SLAPPs are used to silence and harass.  [Businesses filing these complaints in court] don’t go to court to seek justice, but instead, to intimidate those who disagree with them or their activities” and who speak out.  In 1992, Delaware became the first state to pass an Anti-SLAPP Act.  Currently, there are almost thirty states that have passed some type of Anti-SLAPP Act and the Public Participation Project is trying to pass federal Anti-SLAPP legislation. The Anti-SLAPP acts were passed to help consumers defend against harassing lawsuits filed to stifle First Amendment freedom of speech rights.
 
D.C. passed an Anti-SLAPP act that became effective on March 31, 2011 and was codified as D.C. Code § 16-5501 to 16-5505.  The D.C. Anti-SLAPP explains that these SLAPP suits should be dismissed if (1) “the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest,” and (2) the business cannot “demonstrate[] that the claim is likely to succeed on the merits.” See D.C. Code § 16-5502(b).
 
In other words, if the consumer who posted the negative review on Yelp or anywhere else online is able to demonstrate that the review (or any other type of statement -- online or offline) was made to further some type of advocacy on an issue of public interest, then the business must demonstrate that the business is likely to win the case if the court allows the case to proceed. Otherwise, the lawsuit filed by the business must be dismissed and the consumer’s negative review may remain online.
 
In addition to allowing the consumer to immediately file a motion to dismiss and avoid the hassle of time-consuming and expensive litigation, the D.C. Anti-SLAPP Act of 2010 allows the consumer to recover attorneys’ fees if the consumer prevails with the Anti-SLAPP defense in whole or in part.  Specifically, §16-5504(a) states: “[t]he court may award a moving party who prevails, in whole or in part, on a motion brought under § 16-5502 or § 16-5503 the costs of litigation, including reasonable attorney fees.”
 
The attorneys’ fees provision is critical because without the ability for the consumer to recover these fees, the consumer may not be able to afford an attorney to file the special motion to dismiss and the consumer may decide to simply remove the negative review instead of defending the lawsuit, which is exactly what the business was hoping for all along.
 
If you’ve had a negative experience with a business and posted a negative review for the business online (Yelp, Angie’s List, Google+, Bing, Yahoo, or anywhere else – online or offline), which resulted in the business filing a lawsuit against you in D.C., the D.C. Anti-SLAPP Act was designed to help you defend yourself against this type of lawsuit from a business that likely has access to more resources, including money, than you.
 
If you’re defending yourself against a SLAPP suit, please feel free to contact my office for a consultation.  

By: Audrey Henderson

Virginia Code § 20-108 provides that a court may modify a prior order that awarded child support.  To change the court-ordered child support payments, there must have been a material or substantial change in circumstances.  The party petitioning for an increase or decrease in child support bears the burden of proof by a preponderance of the evidence that a material change in circumstance occurred that justified that change.  Edwards v. Lowry, 232 Va. 110, 112 (1986).

A prominent example of a material change is when a parent has a change in financial circumstances.  If a parent were to motion for a reduction in child support payments, they must make a full and clear disclosure regarding his or her ability to pay.  Hammers v. Hammers, 216 Va. 30, 31-32 (1975).  However, there are some instances where the court will not modify a child support payment.  If a parent takes on a new business venture or changes employment, he or she bears the risk of losing money, yet they are still obligated to pay child support.  Antonelli v. Antonelli, 242 Va. 152, 156 (1991).  Furthermore, case law holds “the risk of reduction in income as a result of a parent’s intentional act, even if done in good faith, is insufficient grounds for reducing the amount of support due under a pre-existing order.”  Hamel v. Hamel, 18 Va. App. 10, 13 (Va. Ct. App. 1994).  Lastly, if a parent has a reduction in income that is due to his own voluntary acts or to his own neglect, he must still pay child support.  Hammers, 216 Va. at 31-32.  

Another example of a material change in circumstance is when the needs of a child changes, including childcare costs.  Parents may argue that as their children get older they don’t need to be placed in childcare anymore, and thus a reduction in child support payments may be justified.  Shoup v. Shoup, 37 Va. App. 240, 254 (Va. Ct. App. 2001).  However, some parents argue for an increase in support because their children may attend private school or even participate in extra-curricular activities that require greater sums of money.  Joynes v. Payne, 35 Va. App. 386, 407 (Va. Ct. App. 2001).

Courts will also consider the change of physical custody from one parent to another as a material change in circumstance.  See Rippe v. Rippe, 3 Va. App. 506 (1986).  Also, if a parent intentionally withholds visitation rights from the other parent without a sufficient reason, the courts may consider this to be a material change in circumstance as well.  Va. Code Ann. § 20-108. 

There are some instances where the court does not consider an event to be a material change in circumstance, and therefore will not increase, decrease, or terminate child support.  For instance, if a parent earns income from secondary employment for the purpose of paying off a previous court-ordered child support debt, that income will not be calculated into his or her gross income.  Va. Code Ann. § 20-108.2(C).  Additionally, the court will not take into consideration the financial responsibilities of having other children who are not a party to the current proceeding, and thus they will not likely modify the child support payments in such instances.  Id.  

For information about how to initially calculate child support, please see my prior post: How Do I Calculate the Amount of Child Support I Owe or that is Owed to Me?

By: Audrey Henderson

“[P]arents owe a duty of support to their minor children.”  Kelley v. Kelley, 248 Va. 295, 298 (1994).  The payment of child support cannot be contracted around by the parents, and furthermore, a court cannot be barred from exercising its power to calculate child support from such an agreement.  Id.  

Virginia Code § 20-108.2(B) provides a guideline of monthly basic child support obligations. The basic child support obligation is calculated based on the combined income of the parents and how many children the couple has (both natural born and adopted).  Id.  A court may allow an exemption that would make the child support obligation lower than the statutory minimum provided by the guideline.  Id.  Exemptions may include: (1) if the obligor is “unable to pay child support because they lack sufficient assets from which to pay the support and who, in addition, are institutionalized in a psychiatric facility”; (2) if the obligor is “imprisoned for life without chance of parole”; (3) if the obligor is medically disabled; or (4) if the obligor is “involuntarily unable to produce an income.”  Furthermore, if the gross income of the obligor is equal to or less than 150% of the federal poverty line, the court may set an amount that is lower than the statutory minimum, provided that the amount doesn’t impair the other parent’s ability to maintain sufficient housing and provide basic needs for the child.  Id.   

When the court computes the parent’s income, it includes income from: “salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes, or awards.”  Va. Code Ann. § 20-108.2(C).  However, there are some incomes that are not included when computing child support payments.  These include: “benefits from public assistance and social services programs, federal supplemental security income benefits, child support received, or income received by the payor from secondary employment income” that is for the purpose of paying a court-ordered child support debt from another relationship.  Id.  Examples of secondary employment incomes are “incomes from an additional job, from self-employment, or from overtime employment.”  Id.  In addition, if one of the parents is already paying child support from a previous relationship and that child is not a party to the current proceeding, then that amount will be deducted from the gross income of that parent.  Id.   

As per the establishment of a child support obligation, both parents are also required to pay “any reasonable and necessary unreimbursed medical or dental expenses.  Va. Code Ann. § 20-108.2(D).  This is calculated pursuant to the parents’ proportion of gross incomes.  Id.  These types of expenses may include “eyeglasses, prescription medication, prosthetics, orthodontics, and mental health or developmental disabilities services, such as services provided by a social worker, psychologist, psychiatrist, counselor, or therapist.”  Id.  A court will also take into consideration the costs for health care coverage, vision care coverage, and dental care coverage and add those expenses to the basic child support obligation.  Va. Code Ann. § 20-108.2(E).  Furthermore, if the custodial parent puts the child in some sort of licensed child-care system, those child-care costs will be added to the support obligation.  Va. Code Ann. § 20-108.2(F).  However, the court must “consider the willingness and availability of the noncustodial parent to provide child care personally in determining whether child-care costs are necessary or excessive.”  Id. 

The amount of child support will also depend on your type of custody.  The Virginia Code notes three types of custody: sole custody support, split custody support, and shared custody support.  Sole custody is where one parent has full physical and legal custody of a child or children.  Split custody is where both parents have physical custody of the child or children.  Shared custody support is where a parent has “custody or visitation of a child or children for more than 90 days of the year.”

To rebut the presumption of the amount of child support set out by the statutory guidelines, the court evaluates all the relevant evidence.  Va. Code Ann. § 20-108.1(B).  This leads to a very fact specific inquiry and every case will be different.  Id.  The court will look at fifteen factors, but each factor may not be applicable in every case.

Virginia Code § 20-108.1(B) lists fifteen factors that Virginia courts evaluate to determine a rebuttable presumption of child support.

1. Actual monetary support for other family members or former family members;
   
2. Arrangements regarding custody of the children, including cost of visitation travel;
   
3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an education or vocational program likely to maintain or increase the party’s earning potential;
   
4. Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential;
   
5. Debts of either party arising during the marriage for the benefit of the child;
   
6. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
   
7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
   
8. Any special needs of a child resulting from any physical, emotional, or medical condition;
   
9. Independent financial resources of the child or children;
   
10. Standard of living for the children or children established during the marriage;
    
11. Earning capacity, obligations, financial resources, and special needs of each parent;
    
12. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;
    
13. Tax consequences to the parties including claims for exemption, child tax credit, and child care credit for dependent children;
    
14. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
    
15. Such other factors as are necessary to consider the equities for the parents and children.
    

Stay tuned for my next blog post "How Do I Change or Modify Child Support that is Owed to Me or that I Owe?"    

By: Melanie Eisenhart

Understanding how a court will evaluate a petition for modification to a custody order can make a significant difference in the outcome of that court’s ruling. In Virginia, courts initially decide custody based on what is in the best interest of the child. To determine this, a judge will consider the following ten factors on a case-by-case basis from Va. Code Ann. § 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. See Huck v. Huck, No. 1604-14-1, 2015 Va. App. LEXIS 184, at *6 (Va. Ct. App. June 2, 2015) (unpublished) (comparing the evidence related to the mental health of both parents, including the father’s anger and bullying and the mother’s anxiety and depression, the court refused to favor one parent over the other in consideration of this factor). 
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. See Forbes v. Forbes, No. 1081-12-1, 2013 Va. App. LEXIS 176, at *6 (Va. Ct. App. June 11, 2013) (unpublished) (denying the father’s motion to modify custody because the mother had a family support system living nearby).
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. See Sims-Bernard v. Bernard, No. 2090-12-2, 2013 Va. App. LEXIS 282, at *10 (Va. Ct. App. Oct. 8, 2013) (unpublished) (refusing the mother’s request for custody modification because, though her daughters stated a preference to living with their mother, this was not in their best interest due to the mother’s “mental abnormalities” in attitude towards their father).
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; See Craven v. Williamson, No. 1023-11-4, 2012 Va. App. LEXIS 2, at *3 (Va. Ct. App. Jan. 10, 2012) (unpublished) (determining that evidence presented at trial indicated a history of abuse when the father frequently lost his temper and yelled at his children, in addition to him “stomping” on one child in anger). 
10. Such other factors as the court deems necessary and proper to the determination. 

Once a custody order is entered, the parent seeking modification ordinarily must establish both that the circumstances have materially changed since the last custody order and that the best interests of the child require a modification of custody.[1] To determine this, the court looks at the evidence presented and compares it to the ten best interest factors discussed above.[2] Most importantly, while making this decision courts are not required to weigh each of the ten factors equally or to elaborate on the amount of weight or consideration it gives each factor.[3] However, the court’s findings must be supported by evidence on the record or this will be considered an abuse of the court’s discretion.[4]

An example of how courts may evaluate the ten best interest factors independently and in conjunction with one another can be found in Bostick v. Bostick-Bennett.[5] In this case, the court compared the father’s degree of parental stability (factor three) with the mother’s ability to actively support the child’s relationship with the other parent (factor six), and initially granted sole custody to the father because it found that he could offer the child a more stable living environment.[6] The mother, though not unfit, could not provide the same level of support to the child as the father; however, the court allowed for visitation to foster and encourage the relationship between mother and child.[7] A short time later, when the father petitioned the court to relocate his child to North Carolina, his request was denied because he failed to prove a material change in circumstances that would warrant the child’s removal from Virginia.[8] Looking at the evidence presented, the court concluded that maintaining a relationship between the child and her mother would be in the best interest of the child, and that this relationship would be jeopardized if the father was granted his request to move to another state.[9]

Material Change in Circumstances

While the ten statutory factors are important to the modification of a custody order, a petitioner must first show the occurrence of a material change in circumstances.  Next the petitioner should focus on these factors to demonstrate that a modification of custody is in the best interest of the child.

Virginia Code § 20-108 sets out one way for courts to determine if a material change has occurred by stating that the “intentional withholding of visitation of a child from the other parent without just cause may constitute a material change in circumstances justifying a change of custody in the discretion of the court.” A change in circumstances is not limited to negative events that may occur in the home of the custodial parent, though.[10] A material change may also broadly include changes that the child experiences, such as their level of maturity or any special educational needs, or may include positive changes to the circumstances of the noncustodial parent, such as remarriage or the increased ability to provide a stable home environment.[11] Ultimately, however, no change in custody will be allowed if the change in circumstances is not in the best interest of the child.[12]
 
In Haring v. Hackmer,[13] the mother alleged a material change in circumstances occurred that would justify modification to the custody order that originally granted the father sole custody of their child. Namely, the mother argued that the father’s circumstances had declined when he remarried, moved his daughter to a new school due to relocation within the state, his financial situation had deteriorated, he had an unstable employment history, the daughter's mental and physical health had deteriorated since living with him, he allowed his daughter's medical insurance to lapse, and had not ensured that their daughter received proper medical and dental care.[14] Conversely, the mother alleged that her circumstances had improved because she relocated within the state and had established a successful insurance business.[15] Considering the evidence presented at trial, the court found no material change in circumstances, and the mother’s motion for modification was denied.[16]

Courts have also found that the following conditions do not indicate a material change in circumstances:

• Rude behavior or inefficient communication regarding visitation scheduling between parents. Thurmond v. Gropper, 45 Va. Cir. 168, 172 (Va. Cir. Ct. 1998). 
• The custodial parent’s denial of visitation or the child’s statement that he does not want to return to the custodial parent’s home.  Heretick v. Cintron, No. 1377-00-2, 2001 Va. App. LEXIS 172, at *9 (Va. Ct. App. Apr. 3, 2001) (unpublished).
• A change in work schedule allowing a parent to work from home and care for the child, an increase in the length of a subsequent marriage, or the custodial parent’s home being located in a neighborhood with few children. Humphries v. Davis, No. 0775-98-2, 1998 Va. App. LEXIS 635, at *4-5 (Va. Ct. App. Dec. 8, 1998) (unpublished). 

In contrast, courts have found that the following conditions do indicate a material change in circumstances:

• Making and then suddenly canceling plans to relocate to another country at the detriment of causing an unstable living environment for the child. Laing v. Walker, No. 1693-94-3, 1995 Va. App. LEXIS 592, at *5 (Va. Ct. App. July 18, 1995) (unpublished). 
• Showing by the noncustodial parent can show that the remarriage of the noncustodial parent has provided for a more stable living environment, that the child has become increasingly withdrawn since living with custodial parent, and that the child preferred to live with the noncustodial parent. Turner v Turner, 3 Va. App. 31, 34, 348 S.E.2d 21, 23 (1986).
• Failure by the custodial parent to sufficiently support the children when their grades declined, when compared to the noncustodial parent who frequently met with the children’s teachers. Schoonover v. Schoonover, No. 0554-99-3, 1999 Va. App. LEXIS 518, at *5-6 (Va. Ct. App. Sept. 7, 1999) (unpublished). 

Without a material change in circumstances and evidence that a change in custody is in the best interest of the child, a court will not grant the petition to modify custody. 

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[1] Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983).
[2] Cintron v. Long, No. 2169-99-2, 2000 Va. App. LEXIS 487, at *11 (Va. Ct. App. July 5, 2000) (unpublished). See generally Mason v. Moon, 9 Va. App. 217, 220, 385 S.E.2d 242, 244 (1989) (noting that “in custody disputes between a natural parent and a nonparent, the law presumes the best interest of the child will be served when in the custody of the natural parent”).
[3] Id.
[4] Id.
[5] Bostick v. Bostick-Bennett, 23 Va. App. 527, 478 S.E.2d 319 (1996).
[6] Id. at 530, 478 S.E.2d at 320.
[7] Id. at 536, 478 S.E.2d at 323.
[8] Id. at 530, 478 S.E.2d at 320.
[9] Id. at 534, 478 S.E.2d at 322.
[10] Keel, 225 Va. at 612, 303 S.E.2d at 921.
[11] Id.
[12] Id.
[13] No. 1085-08-4, 2009 Va. App. LEXIS 402 (Va. Ct. App. Sept. 8, 2009) (unpublished).
[14] Id. at *5.
[15] Id.
[16] Id. at *6.

By: Audrey Henderson

There are two ways a court may change or modify a spousal support award: (1) where both parties agree to modify the amount, or (2) where a material change in circumstances or change in event happens that would involve a change in the spousal support amount. 

Agreement to Modify by the Parties

The most efficient way to change a spousal support order is by agreement of the parties because a court cannot unilaterally change an agreed upon spousal support award according to the terms or stipulation or contract signed by both of the parties.  See Blackburn v. Michael, 30 Va. App. 95, 100 (Va. Ct. App. 1999).

Material Change in Circumstances or Change in Event

However, if the parties cannot agree to a modification themselves, then upon the petition of either party, a “court may increase, decrease, or terminate the amount or duration” of any spousal support using the factors mentioned in my blog post How Do I Calculate the Amount of Spousal Support I owe or that is Owed to Me?  Va. Code Ann. § 20-109(B).  See also Thomas v. Thomas, 217 Va. 502, 505 (1976) (“where changed circumstances are demonstrated,” either spouse can petition for an increase, decrease, or termination of spousal support).  The court may make these changes if (1) there has been a material change in the circumstances for either of the parties, or (2) if an event the court anticipated during the duration of the award did not in fact happen.  Id. 

The party moving for a modification of spousal support has additional burdens and thresholds to overcome.  He or she must prove “both a material change in circumstances and that this change warrants a modification of support.  Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605 (Va. Ct. App. 1989).  The material change in a spouse’s circumstance must occur after the court’s award decree.  Hiner v. Hadeed, 15 Va. App. 575, 577 (Va. Ct. App. 1993).  The change in circumstances that allow a court to modify the spousal support must be financial and economic ones.  Hollowell v. Hollowell, 6 Va. App. 417, 419 (Va. Ct. App. 1988).

For example, the court in Reece v. Reece granted the husband’s request for a decrease in spousal support because he “proved that his financial circumstances had materially changed . . . after he involuntarily lost his job” as opposed to voluntarily leaving his job.  Reece v. Reece, 22 Va. App. 368, 373 (Va. Ct. App. 1996).  Additionally, there was no evidence that the husband refused a comparable employment opportunity that would “deliberately minimized his income for the purpose of reducing his ability to support [his] wife.”  Id. at 374-75. 

But, simply losing your job is not necessarily enough to secure a reduction in spousal support.  For example, in Smull, the husband was working full time at a corporation when the corporation lost a contract.  Smull v. Smull, 45 Va. Cir. 336, 336 (Va. Cir. Ct. 1998).  The husband was involuntarily placed on part time duty with the corporation.  Id.  He then decided to begin a new career that paid much lower than his corporate job.  Id.  Subsequently, the court denied his request to decrease his spousal support payments reasoning that his inability to pay was due to his own negligence of not securing a comparable job that had the same earning capacity as his corporation job.  Id. at 337.               

Circumstances that May Terminate Spousal Support

Spousal support may not last forever.  In fact, there are three common instances that usually end spousal support.

1.     Habitual Cohabitation

If a spouse whom is receiving spousal support and has been habitually cohabitating with another person in a relationship that is analogous to a marriage for one year or more, the other spouse can petition the spousal support.  Va. Code Ann. § 20-109(A).  The court must terminate the spousal support in this situation unless the divorced parties had a stipulation or contract that said otherwise or unless the spouse receiving the spousal support proves by a preponderance of the evidence that the termination of the support would be unconscionable.  § 20-109(A)(i)-(ii).    

2.     Remarriage

Va. Code Ann. § 20-110 states that if the spouse receiving the spousal support remarries, then the spousal support must terminate the date of the new marriage.  The spouse receiving the support has an affirmative duty to notify the other spouse paying the support to cease payments.  Id.    

3.     Death

Unless the parties had some sort of stipulation or contract that stated otherwise, spousal support must terminate upon the death of either of the parties.  Va. Code Ann. § 20-109(D).