The expected and unexpected in Virginia law
BY Colleen Sheehy Orme
There are threads of everyday life that are woven with the law. Consequently, there are cases, some unusual, some unexpected, some unpredictable and some compelling where one needs to be aware of dotting the i’s and crossing the t’s.
Whether it be the extraordinary or the ordinary, these Northern Virginia attorneys navigate the courts to protect their clients, each highly focused in their area of expertise.
Case: Medical Directive Dilemma
Attorney Deborah Cochran of Cochran Owen LLC, located in Vienna, specializes in financial and estate planning needs. Cochran illuminates a scenario of which many parents are completely unaware.
She shares the story of a local family whose son was playing soccer at the University of Chicago. The parents were viewing his game from Northern Virginia when their son was injured and went down. The radio announcer then says, “Our hearts go out to his friends and family.” Upon hearing those words, his parents fear the worst. They frantically call the hospital and are shocked to discover that the hospital refuses to release any medical information because their son is 19-years old.
“Medical directives are probably the most important thing that everyone needs to have,” says Cochran. “Most people do not realize that once a child is 18 they are technically an adult, so you don’t have access to their medical information without permission.” Anybody who is over 18 needs to sign a medical directive or a HIPPA waiver so that their parents, or whomever, can access their medical information and fax it to the hospital.”
Cochran elaborates, “Even people who have a medical directive should go back and update them periodically, and you can name more than one person who can talk to the doctors.”
When asked to name the most important thing that people do wrong in estate planning, Cochran replies, “Most couples need to coordinate documents. A will is not enough if you have minor children. You should have a revocable trust. If you have minor children it’s easy to make sure that everything flows into the trust if both parents die because you just make the trust the beneficiary. Additionally, money left for your kids should be in a lifetime trust. That way, if they ever get divorced or sued, it’s fully protected from creditors.”
Case: Frozen Embryos: Uncharted Territory
Two other estate planning attorneys, Lauren Keenan and Lori Murphy of Bean, Kinney & Korman of Arlington, have recently encountered a quite unusual, not to mention controversial, estate planning issue.
Murphy explains that while sitting with a client one day, she asked her client to describe her assets. Murphy then went on to ask her client if she had any storage units. Her client responded that, in fact, she did have something in storage … frozen embryos. Immediately, Murphy realized this was something unique, and she and Keenan began to research the topic.
“When we started the research we looked at what other states had done on this topic. Some of the states have clear rules that they follow, and they can be broken into three schools of thought,” says Keenan. “Louisiana treats an embryo as human life. They would not consider it property. Illinois also treats an embryo as human life. Tennessee treats it as sort of a hybrid, personal property versus human life.”
Keenan continues, “We didn’t really have a clear case in Virginia. Virginia has case law that seems to indicate that Virginia treats it as a property. States are divided, and there are different rules of thought.”
“We do have to look at statute first,” says Murphy. “You have to look at what your state provides. We do have a sense of how a statue would work. When statutes aren’t clear, that’s when we go into case law for research.”
Clearly this is unchartered territory. Says Murphy: “In an estate plan, I think there are clients that are going to feel very strongly out there that those frozen embryos are much more important to them than personal property but as future babies and human life.”
When asked how to tackle this delicate situation effectively, Murphy responds, “I think it’s how we define the word ‘children’ in an estate plan, ‘any child born of my frozen embryos and that person should be deemed a child for the purposes of my estate.’” Murphy adds, “Make sure if you have a frozen embryo in storage you are working with an estate planning attorney familiar with the topic. States are divided, and there are different rules of thought.”
“It’s unique to our area and our demographic and the professional couples we represent, so I think this is a new and emerging area, and, frankly, our law hasn’t caught up with this area,” says Murphy.
Case: Protecting Special Needs Children
A surprising, May 2011 report leads to attorney Bill Reichhardt, of William B. Reichhardt & Associates, which is located in Fairfax.
The report, “Reducing Disproportionality in Suspensions and Reassignments of Students with Disabilities,” (Fairfax County Council of PTAs), in 2009 – 2010, says that “suspensions and reassignments made up 43.5 percent of all such cases for students with disabilities while such students continue to comprise approximately 14 percent of the total student population.”
“Probably about 49 percent of our practice is school and education law,” says Reichhardt. “In that arena we do a fair amount of work representing parents of special needs children. We also represent parents of kids who are facing disciplinary action from schools. Not many practice in this area, or not many people do enough of the practice that crosses the area of understanding school law, special education law, criminal defense and school disciplinary action.”
Reichhardt is an expert on special education. It may be a dispute making sure a child is eligible by state and federal law for special services within the school system. It could be a child who is eligible but may not be receiving appropriate services and placements. Lastly, it could be a child with disabilities facing other circumstances related to the disability, for example, discipline. “We represent parents of children with or without disabilities in disciplinary action and in criminal defense, either school related or not,” says Reichhardt.
A niche specialty that is critical. “To keep the point simple, we know statistically, and we know from our own practice and observation, that children with special needs, especially in the area of emotional disability, are at higher risk for involvement in the juvenile justice system and school disciplinary system.”
This is just the tip of the iceberg for Reichhardt who is an ardent child advocate and a champion for change in how schools are handling children, discipline, school and parental communication. He is working toward educating visionary changes to support children, families and schools rather than frustrate them.
Case: Making the Case for Custody
Katharine Maddox, a partner in the Maddox Law Firm, located in Tysons Corner, is dedicated to family law. “I am passionate about all of it, but my true passion is
custody. Custody is the real reason I am a family law attorney. My parents separated when I was 3-years old, and it has certainly shaped me as a person, and it impacts my own advice,” Maddox shares.
Maddox discusses one of the most difficult custody cases she ever had. Her client, a high-level senior executive feared for his children’s safety. He was in a marriage where he worked long hours, and his wife was a stay-at-home mom. At the time, his children were ages 3 and 9.
His wife had massive rage issues and rapidly changing moods. She would call him at work and tell him he better come home or she was going to kill the baby. He would rush home and find her laughing and playing with the kids.
“The abuse to the children, it wasn’t in your face; it was for the most part along the lines of neglect. From the hours of 9 a.m. to 7 p.m. the mom might forget to feed them. She would take long naps and let the toddler run around the house unsupervised, once letting her toddler play within 30 feet of a highway—overall, a basic failure to supervise.”
This mom was also a hoarder, and it wasn’t just things; it was animals. At any given time she would have 12 or more animals in the house, and she wouldn’t feed them or let them outside to go to the bathroom. Maddox explains, “Because of the mom’s actions, the rage, the neglect, we got permission from the court to have her undergo a psychological evaluation.”
Marcia Maddox was the lead attorney for the first trial, and a protective order was entered, and at the conclusion of the custody trial the father was awarded sole custody with the mom having only supervised visitation. There were several other custody trials, but the dad still retained sole custody of the children.
“It was Katharine’s combination of empathy, caring and absolute mastery of family law,” says her client. “That is how I knew she was the right one to help protect my children.”
When asked if he would pass along any other advice, her client advises, “Keep meticulous notes even as you’re in the midst of the situation. Keep a handwritten journal. It carries great weight with the court when you have taken the time to systematically, meticulously and passionately take notes and capture over time as things happen. I intended to be very active in the pursuit to protect my children.”
“What is important is not that we are trying to de-parent anybody, but that this was a seriously mentally ill woman who was incapable of caring adequately for these children,” says Maddox. “All of the experts have agreed that the dad’s No.1 priority has been on protecting the children.”
Case: Mediation Versus Litigation
There are instances of family law and other circumstances where mediation can be an effective tool. Enter attorney Charles Dunn, whose office is located in Fairfax.
“I tell all my clients that unless the other person is extremely unreasonable or has a substance abuse problem, or is assaultive or combative, that mediation is the best way to resolve a dispute as opposed to litigation,” says Dunn. He adds, “Litigation is extremely stressful, expensive and takes a lot of time.”
“There is a cottage industry of retired judges that do mediation. These retired judges usually like people to sign a binding agreement at the end of mediation,” says Dunn, who speaks highly of the retired judges. “The retired judge will be able to tell if, at the end of mediation, the people can’t get to a yes (within 5 percent) of what’s going to happen in court in respect to money, property, visitation, custody.”
Dunn is a huge proponent of mediation, though he will be the first to advise that one must use caution when signing agreements.
“There are times when counsel will suggest an outline and say, ‘This is the deal,’ but we will do a more formal, complete property settlement later. That is fraught with danger,” says Dunn. “If it has enough language in it that is final, it will be OK, but there is danger because if there is wording in there that we will do a final agreement later, there could be problems. Fill in the blanks on the final deal before you leave.”
Dunn reinforces this further. “If an agreement says it’s subject to a final agreement, that agreement is not valid. It is not able to be enforced. You get a final, formal agreement. Do not sign a memo agreement even if it says it’s final.”
The only exception Dunn makes to leaving without finalizing the agreement is if he feels the process has drawn on into the evening hours and that the parties may be better refreshed and come back another day to tackle the final agreement so that there is no buyer’s remorse the next day.
Case: Pets as Precious Property
Legal practices that pertain to issues with families need not only apply to humans, and in this day and age where people think of and refer to their pets as being “one of the family,” it is only fitting that there be laws regulating what will happen to a pet in an instance of separation, death, or even potential run-ins with other humans or animals.
So how can one benefit from understanding the legalities in regards to our pets? It’s just one more way of being a responsible pet owner. For example, if your dog were to bite someone, do you realize it could be listed on the dangerous dog registry online with the Commonwealth of Virginia? You would need either $100,000 worth of insurance or a $100,000 bond. Also, if you receive a dangerous dog summons, it functions like a criminal case even though it’s a civil one because it’s the Commonwealth against you. As a pet owner do you realize that under the law in Virginia, it is pretty clear that your dog or cat is your personal property? “That said, they still do have some unique status,” says Heidi Meinzer, an attorney with Bean, Kinney & Korman who specializes in companion animal law. “If your dog or cat is stolen from you, it is considered grand larceny no matter what. There is some acknowledgement that value goes beyond what you have paid for this animal—something not quite the level of a dependent, but something more than a chair or a table.”
Or that in Virginia companion animals are considered personal property. What does that mean? It means that in a child custody case, the judge says “I’m going to do what is in the best interest of the child.” However, with personal property I am just going to split the property up.
How does one adequately prepare for their pet in their absence? “If you have [a] person who is the most reliable person in the world who will take your dog if you end up sick or in a coma or pass away, you may not need estate documents,” says Meinzer. However, it may benefit you to draw up some documentation.