February 2017 Example Ten-point Answers to Virginia Essay Questions

February 2017 - QUESTION 3 – VIRGINIA BAR EXAMINATION

      Archie and Veronica never married or lived together, but had a child on January 5, 2011, whom they named Archie, Jr. ("Junior"). Shortly before Junior's second birthday, Veronica filed a petition in the Virginia Beach Juvenile and Domestic Relations District Court ("J&DR Court") seeking a determination that she should have sole legal and physical custody of Junior. Archie attended the custody hearing in April 2013, and did not contest Veronica's request to have primary physical custody of Junior. At the conclusion of the custody hearing, the J&DR Court judge entered an order awarding joint legal custody to Archie and Veronica with primary physical custody to Veronica.

      Junior has thrived while living in a single-parent home with Veronica, and he currently attends kindergarten. Archie has been very involved in Junior's life, exercising regular visitation (with Veronica's permission), participating in pre-school and kindergarten activities, and receiving copies of Junior's educational and medical records. Archie is a successful architect and has provided Junior with his own bedroom in the rather large home which Archie designed for himself. Archie has always supported Junior's relationship with Veronica.

      Veronica's mother, Grandmother, also has been very involved in Junior's life, visiting and vacationing with Veronica and Junior frequently. Also, Grandmother takes care of Junior when Veronica is working or is otherwise unavailable, including overnight. Archie has always disapproved of Grandmother's relationship with Junior, as she routinely says negative things about Archie to Veronica. Junior clearly enjoys and benefits from his relationships with both Archie and Grandmother.

      In July 2016, Archie was found guilty of felony tax fraud. He served 60 days in jail and is currently on probation. Since Archie's release from jail, Veronica has refused to permit Archie to visit Junior, claiming that, "I will not have my son spend time with a convicted felon!" Meanwhile, Grandmother has begun to demand more and more time alone with Junior.

      In October 2016, Archie and Grandmother filed separate visitation petitions in J&DR Court. At the court proceeding on Archie's petition, Veronica objected to any visitation by Archie. Archie responded that he is entitled to reasonable visitation by reason of the Court's April 2013 Order granting him "joint legal custody" or, alternatively, simply because he is Junior's father.

      At the court proceeding on Grandmother's petition, Veronica objected to any court-ordered visitation. Although Veronica is not opposed to Grandmother having visitation with Junior, she is adamant that any visitation be on her terms. Archie objected to any visitation by Grandmother. However, neither Veronica nor Archie disputed that Grandmother and Junior have a very good relationship. Grandmother responded that, based on that undisputed fact, visitation by her is in Junior's best interests and that, based on that fact alone, the Court should grant her petition.

  (a) Is Archie likely to prevail on his argument that the Court's April 2013 Order entitles him to visitation with Junior? Explain fully.
     
  (b) Is Archie likely to prevail on his argument that he is entitled to visitation with Junior because he is Junior's father? Explain fully.
     
  (d) Is Grandmother likely to prevail on her "best interests" argument that her undisputed existing good relationship with Junior entitles her to visitation? Explain fully.
     
  (c) If any party wishes to appeal the decision of the J&DR Court judge, to what court should the appeal be taken? Explain fully.

February 2017 - QUESTION 3 – EXAMPLE ANSWER #1

      3(a)

      Conclusion: No, Archie is not likely to prevail on this ground. Absent a specific court order regarding visitation, since Veronica has primary physical custody of Junior, she can withhold Archie's visitation rights considering this ground solely.

      Rule: With respect to child custody and visitation, although inherently intertwined, these are generally considered two separate issues before the law. When ruling on domestic relations matters, including child custody and visitation, the court may rule specifically on one issue, and exclude others, saving the determination of such issues for a later date.

      With regards to custody, there is a distinction between legal custody and physical custody. Legal custody refers to the parents' abilities to make major life decisions for the child; these often include decisions regarding school, health, and religion. Physical custody refers to the parent the child lives with, who is responsible for the child's daily care and routines. Courts may grant "joint custody" which refers to the parents sharing in the custody aspects of the child's life, and this can be further broken down into the legal and physical categories.

      Although both parents are encouraged to foster positive relationships between both parents and the child, as this is beneficial for the child's development, absent a court order, there is no legal requirement that the parent with primary physical custody must permit the other parent to visit, if that parent reasonably believes it is in the child's best interests. The remedy for the other parent, who is deprived of visitation, is to seek court intervention (if the primary physical custody parent is being unfair or unreasonable), so appropriate visitation may be determined and provided for in a court order.

      Analysis: Because the 2013 order only disposed of the custody determination issue, and left visitation open for future review, Archie is not entitled to visitation with Junior on this basis alone. Veronica was awarded primary physical custody, which means she gets to decide Junior's daily care and routines. Because she feels justified (presumably believes this decision is in Junior's best interests) in preventing Junior from visiting with Archie, due to his felony conviction, she may prevent them from visiting until the court considers the matter once again. Archie's remedy is to file suit in court to have the court determine the appropriateness of visitation among both parents.

      Conclusion: No, Archie is not likely to prevail on this ground. Absent a specific court order regarding visitation, since Veronica has primary physical custody of Junior, she can withhold Archie's visitation rights considering this ground solely.

      3(b)

      Conclusion: Yes, Archie is likely to prevail on this ground because, as a parent, he has a constitutionally protected right to visit with his child.

      Rule: Parents have a constitutionally protected right to visit with their children. This is considered to be a fundamental due process right, in accord with the history and traditions of this country. As such, parents may not prevent the other parent from visiting with the child. However, court intervention may be sought to provide an appropriate visitation schedule, and decide where and on what terms visitation may take place.

      Analysis: Because Archie is Junior's father, he has a constitutionally protected right to visit with his child. As such, even though there is not currently a visitation order in place, he is entitled to time with Junior, just because he is his father. If Veronica is being unreasonable about visitation, which is seems like she is (because although he was convicted of felony tax evasion, he is likely not considered a threat to Junior's well being), Archie may seek court intervention to compel her to cooperate. The court would likely order a reasonable visitation schedule, especially considering the fact that Archie seems like a competent and respectable parent, the parents share in joint legal custody, and he is entitled to some physical custody rights under the 2013 order.

      Conclusion: Yes, Archie is likely to prevail on this ground because, as a parent, he has a constitutionally protected right to visit with his child.

      3(c)

      Conclusion: Grandmother is not likely to prevail on the best interests basis alone, she also needs to demonstrate that depriving her of visitation with Junior would cause irreparable harm to Junior.

      Rule: Third parties, who are not parents of the child, do not have a constitutionally protected right to visitation. Virginia courts give special weight to a fit parent's determination of whether visitation with the third party is appropriate. As such, grandparents may be prevented from visiting with the child. However, in order to obtain some visitation rights, the third party must show (i) depriving the child of visitation is likely to cause irreparable harm to the child; and (ii) it is in the child's best interests to visit with the third party.

      The best interests of the child standard is decided by the court considering a number of statutory factors. Such factors include (i) the age, physical and mental conditions of the parent (or third party); (ii)the age, physical and mental conditions of the child; (iii) the relationship the parent (or third party) has had with the child, throughout his or her life; (iv) the needs of the child, including fostering social relationships with child's peers and extended family; (v) the role the parent or third party has and will play in the child's development; (vi) the parents' (and third party) fostering relationships with the other parents (or third party); (vii) the demonstrated willingness and ability of the parent (or third party) to maintain a close and continuing relationship with the child, including cooperation and dispute resolution; (viii) the reasonable preferences of the child; and (ix) family history of sexual or other abuse; and (x) any other factors the court finds necessary and proper in making a good decision in the best interests of the child.

      Analysis: In this case, since Grandmother is seeking visitation, she does not have a constitutionally protected right to visit with Junior. The parents, which both appear to be fit parents, made their respective decisions concerning her visitation, and the court will give special weight to their determinations. She would need to show both that irreparable injury is likely to occur, and that visitation is in Junior's best interests (would not prevail on this basis alone).

       Since Grandmother and Junior have had a great relationship throughout Junior's life, it seems like it would be harmful if that relationship was forced to terminate. She has been very involved in his life, taking care of him when his parents are unavailable, even for overnight visits. Furthermore, when considering the best interests of the child factors, the court would likely find it to be in Junior's best interests to be able to spend time with her.

      However, Grandmother's argument that she merely needs to show that it is in Junior's best interests, alone, is insufficient. She would need to demonstrate the irreparable injury as discussed above.

      Conclusion: Grandmother is not likely to prevail on the best interests basis alone, she also needs to demonstrate that depriving her of visitation with Junior would cause irreparable harm to Junior.

      3(d)

      To appeal a decision from the JD&R Court judge, the appeal should be taken to the Circuit Court. The losing party must note its appeal to the Circuit Court within 10 days of the JD&R Court's final order, and within 30 days of the final order must pay the writ tax, court costs, and post a bond that the court deems sufficient.


February 2017 - QUESTION 3 – EXAMPLE ANSWER #2

      a. No, Archie is unlikely to prevail on the order. When the J&DR Court issues a joint custody order the visitation can be part of the order, but it does not have to be. In Virginia, primary physical custody, unlike sole custody does not give the spouse with primary physical custody unfettered power to prevent visitation by another parent with legal custody. Legal custody does not in and of itself grant a right to visitation. If the court does not specify visitation in the order, then it is generallly up to the custodial and non-custodial parents to agree on visitation. The court will look to the best interst of the child to determine visitation rights. Since visitation was not in the order, Archie does not have a right to visitation stemming from that order. As stated above the right to visitation is not automatic when ever a parent is granted legal custody. Therefore Arichie is unlikely to succeed on his argument that the order entitles him to visitation.

      b. Yes, Archie is likely to prevail on his argument for visitation with Junior because he is his father. In Virginia, parent have a right to visitation with thier children if it is in the best interest of the child. The right can be terminated if paternity of the child is in dispute or abuse of the fomer spouse or the child took place. There does not not appear to be a dipute over paternity and no allegations of abuse are present. Therefore the court will determine if visitation with Archi is in Junior's best interest Archie has a great relationship with Junior. And has a room for him at his house. He encourances the relationship between Junior and Veronica. And appears to be a good and supportive parent. Therfore the court would likely find that visitation is in the best interest of Junior and since Archie's parental right have not been terminated it Archie will likely succeed on his argument that he is entiteled to visitation as Junior's father.

      c. No, the Grandmother is not likely to prevail in her argument for visitation based on best interest of Junior. In Virginia, grandparents do not have any right to visitation. Visitation withgrand parents is at the sole discretion of the custodial parent. Virginia courts will not apply the best interest of the child standard to grandparents requesting visitation. Therefore the grand parent is unlikely to succeed.

      d. Anyone seeking appeal of the decision of the J&DR should appeal to the Circuit Court in Virginia Beach. All appeals from the J&DR are heard in Circuit court. Therefore any appeal should be brought in the Circuit Court of Virgina beach.