Virginia Lawyers Weekly VA Lawyers Weekly
A Virginia circuit court has ruled that provisions in a property settlement agreement, or PSA, which regulated introduction of the parties’ romantic partners to their child were unconstitutionally vague, void as against public policy and unenforceable.
Judge David Bernhard of the Fairfax County Circuit Court said “[f]or the Court to incorporate in its order that the parties must take ‘great care prior to introducing’ their romantic partners to their child, the Court necessarily must be able to discern what such a command means here. It cannot.”
The judge also rejected the father’s contention that the PSA’s split of the child’s medical expenses by a fixed percentage should override the statutory presumption of a proportional split according to the parties’ income as determined at trial.
The opinion is Powell v. Knoepfler-Powell (VLW 022-8-039).
‘Great care’
The issue before the court concerned a clause in Melanie Knoepfler-Powell and Michael Powell’s PSA which was incorporated into their final divorce order. The clause mandated that “the parties are to exercise ‘great care prior to introducing’ their ‘boyfriends or girlfriends with whom they may have a romantic relationship’ to their child.”
The clause also “prohibit[ed] the parties from having overnight guests of the opposite sex who are not ‘related’ to the parties when the child is present in their home.”
The mother was willing to void both provisions. The father, who had married the woman he lived with, was willing to eliminate the restriction on overnight guests but not the requirement regarding introducing their child to romantic partners.
Romantic restrictions
Bernhard pointed out that the U.S. Supreme Court “has held within the recognized fundamental right of privacy there is a guarantee of the freedom to associate in several types of intimate relationships.”
However, the judge said, “when government action restricts a personal right but not one deemed fundamental, the evaluative test is lessened” to the rational basis standard.
According to Bernhard, the law in Virginia is “[l]ess clear … to what extent it is appropriate for a court to restrain the associations or speech of a parent in the context of what is in the best interests of a child.”
“The Court must tread lightly, if at all, in imposing prior restraint on the associations and speech of a parent who has given no cause to the Court to conclude that she will act in any way harmful to the parties’ child,” the judge opined.
Bernhard found that the requirement to exercise “great care prior to introducing” romantic partners to the child “suggests there is to be an uncertain degree of selectivity with whom they may associate in the presence of their child. In the instant case, ‘great care’ to one parent may mean ‘less care’ to another. The restrictive sentence does not further direct what is meant by such terms, leaving them essentially to interpretation arbitrarily by each parent.”
Because he could not determine how this instruction should be interpreted, Bernhard concluded that it was “hopelessly vague, unenforceable, and shall not be included in the Court’s revised custodial order.”
Medical expenses
The father argued that the mother had agreed in their PSA to pay a fixed percentage of their child’s unreimbursed medical bills, and that the court should incorporate those terms into their final divorce order.
The court noted that the Virginia Code “sets forth how the default presumption that parents are to pay for unreimbursed child medical expenses in proportion to their incomes is to be evaluated in juxtaposition to a deviating agreement.”
Although the court may consider a PSA’s terms, the judge held that those terms are “only of significant statutory weight when such agreement ‘includes’ and thus resolves the entirety of a child support dispute or when equity dictates such a deviation.”
Because the father presented “no compelling equitable reasons to deviate from the presumptive rule,” Bernhard declined to do so.
Attorney reactions
According to family law attorneys, clients request romantic partner restrictions fairly often.
Lorna Rhoades of the Hofheimer Family Law Firm in Virginia Beach said this decision “is a reminder that a romantic partner restriction must be written as clearly and as narrowly as possible; otherwise, we run the risk that the court will void the provision.”
Her colleague Katherine Wilcox noted that this was a “unique” case because the father was in a committed relationship leading to marriage and the mother didn’t seem opposed to voiding the clause.
“It’s never one size fits all,” she said.
Meanwhile, Nick Kalagian of the Central Virginia Legal Aid Society in Charlottesville said the language in this case “was too vague,” but that judges are generally fine with specific requirements.
Paul Dull of the Friedman Law Firm in Chesterfield agreed, adding that “sometimes people agree to … terms, such as no introductions before dating six months or the parents must meet the significant other first.”
