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HomeMy WebLinkAbout03-0538IN RE: ANDREW SCOTT GELBURD · IN THE ORPHAN'S COURT OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 03-0538 AMENDED PETITION FOR APPOINTMENT~F "::~, !, A GUARDIAN FOR THE ESTATE OF A MIN~OR ~ 1. Petitioners, Jeffrey S. Gelburd and Marcia M. Gelburd,.-husband land wife, are the natural parents of Andrew Scott Gelburd and reside at 600 Rtlltop Drive, New Cumberland, Cumberland County, Pennsylvania. 2. Andrew Scott Gelburd was born on October 18, 1990 and resides with his parents at 600 Hilltop Drive, New Cumberland, Cumberland County, Pennsylvania. 3. Andrew Scott Gelburd is the owner of record of 2,730 shares of stock in F & M Bank Corp· of Timberville, Virginia· 4. The stock is presently valued at approximately $25 per share, for a total value of $68,250· 5. The subject stock was a bequest to Jeffrey S. Gelburd who intended to use it to fund the college education of this three (3) children. Mr. Gelburd registered the stock in Andrew Scott Gelburd's name to mitigate the income tax burden· 6. Petitioners now wish to sell the stock and invest the proceeds locally on Andrew's behalf to fund the college education of Andrew and his two siblings· 7. Under the laws of the Commonwealth of Virginia, this transfer cannot take place without a court appointed guardian. (See Attachment "A"). 8. Under Pennsylvania law, a guardian is necessary because the value of this estate exceeds $25,000. See 20 Pa.C.S.A. § 5101· 9. Pursuant to 20 Pa.C.S.A. § 5111 (a), the court of the county in which the minor resides may appoint a guardian of the estate of the minor· 10. Under 20 Pa.C.S.A. § 5112, a court may not appoint a parent of the minor as guardian of the estate except as a co-guardian with another fiduciary. 11. James M. Robinson, Esquire, an attorney licensed by the Supreme Court of the Commonwealth of Pennsylvania and a member of the Cumberland County Bar Association, has been the family attorney and has known the entire family for many years. He is qualified to be appointed by the Court pursuant to 20 Pa.C.S.A. § 5112 and is, in fact, a preferred person under 20 Pa.C.S.A. § 5113. 12. The Court should not require these guardians to post a bond, as allowed under 20 Pa.C.$.A. § 5122(d), because Jeffrey $. Gelburd is the natural parent and guardian of the person of Andrew Scott Gelburd and James M. Robinson is an officer of the court. 13. Andrew Scott Gelburd presently has no guardian other than his natural parents, the Petitioners herein, with whom he has lived for his entire life. 14. There are no interests of the proposed guardians that are adverse to the interests of the minor. WHEREFORE, for all the above reasons, the Petitioners, Jeffrey S. Gelburd and Marcia M. Gelburd, respectfully request this Court to appoint Jeffrey $. Gelburd and James M. Robinson, Esquire as co-guardians for the estate of Andrew Scott Gelburd for the sole purpose of selling and reinvesting the subject stock. Respectfully Submitted TURO LAW OFFICES Date J2~t' _n~es M' R°~ns,south Pitt tstrSe°e~' Esquire Carlisle, PA 17013 (717) 245-9688 $. C. No. 84133 Attorney for Plaintiff VERIFICATION We verify that the statements made in the foregoing Petition are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. bat~ efl :e/y/S. ~elbuYd I~arcia M. Gelburd ~rl~ ~ ~ LUU~ IN RE: ANDREW SCOTT GELBURD · IN THE ORPHAN'S COURT OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 03-0538 ORDER OF COURT ___~~ O~ 2004, Jeffrey S. Gelburd, AND NOW, this __ day , father of the minor, and James M. R uire,attorney for the family, are appointed as co-guardians for the estate of Andrew Scott Gelburd and no bond shall be required· By the Court, James M. Robinson, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 LAWRENCE H. HOOVER, JR. DAVID A. PF. NROD JOHN N. CRIST DALE A. DAVENPORT ROBERT F. KEEFER RICHARD A. BAUGH DILL1NA W. STICKLEY HOOVER, PENROD, DAVENPORT ATTORNEYS AT LAW 342 SOUTH MAIN STREET HARRISONBURG, VIRGINIA 22801 February 20, 2003 Mr. Jeff Gelburd 600 Hilltop Drive New Cumberland, PA 17070 & CRIST FACSIMILE 540 -433 -3916 TELEPHONE 540 -433- 2444 Dear Mr. Gelburd: I refer to your phone calls about transferring the shares of stock in F & M Bank Corp. owned by your son, who is a minor. In Virginia, the Clerk of the Circuit Court where the minor resides can appoint a guardian for the estate of a minor and the guardian would have the authority to authorize the transfer of the shares of stock owned by the minor. I am enclosing copies of the relevant statutes from the Virginia Code that confers this authority. The Clerk of your court in New Cumberland may have some comparable statutory authority. If you or someone in your family can be appointed guardian or legal representative for your son and send us documentation to that effect, the Bank would be able to transfer your son's shares. I apologize for not getting this information to you more promptly. Very truly yours, HOOVER, PENROD, DAVENPORT & CRIST /L,~qvrence~. Ho6ver, Jr. ~or the Fi~ LHHjr./edm Enclosures cc: Sylvia Bowman Farmers & Merchants Bank Attachment "A" § 31-4 CODE OF VIRGINIA § 31-5 CHAPTER 2. APPOINTMENT OF GUARDIAN BY COURT OR CLERK. Sec. Sec. 31-4. Jurisdiction of appointments. 31-7. 31-5. How appointments made. 31-6. Guardians to give bond; surety thereon. 31-6.1. Redetermination of guardian's bond. When court may appoint temporary guardians; bond; powers and du- ties. § 31-4. Jurisdiction of appointments. -- The circuit court or the circuit court clerk of any county or city in which a minor resides-or in which he has any estate, if he is an out-of-state resident, may appoint a guardian for the estate of the minor, and may appoint a guardian for the person of the minor unless he has a guardian appointed as aforesaid by his father or mother. (Code 1919, § 5316; 1926, p. 588; 1928, pp. 25, 1085; 1930, p. 686; 1938, p. 4; 1942, p. 205; 1944, p. 28; 1989, c. 55; 1999, c. 16.) Cross references. -- For constitutional pro- vision as to power of clerks of circuit courts to appoint guardians, see Va. Const., Art. VI, § 8. For provisions as to right of appeal from order of court appointing guardian, see § 8.01-670. Law Review. -- For article, "Updating Vir- ginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). Section does not affect power of chan- cery court to appoint. -- The chancery courts in this State have always had the power to appoint guardians. The power is not taken from them by this statute. Durrett v. Davis, 65 Va. (24 Gratt.) 302 (1874). § 31-5. How appointments made. -- If the minor is under the age of fourteen years, the court or clerk may nominate as well as appoint his guardian; if the minor is above that age he may, in the presence of the court or clerk, or in writing acknowledged before any officer qualified to take acknowl- edgments, nominate his own guardian, who, if approved by the court or clerk, shall be appointed accordingly; but if the guardian nominated by the minor is not appointed or if the minor resides without the Commonwealth or if, after being summoned by the court or clerk, he does not nominate a person deemed suitable and competent by the court or clerk, a guardian may be nominated and appointed in the same manner as if the minor were under the age of fourteen years. In no case shall any person not related to the infant be appointed guardian until thirty days have elapsed since the death or disquali- fication of the natural or testamentary guardians, and the next of kin have had an opportunity to petition the court for appointment and unless the court or clerk is satisfied that such person is competent to perform the duties of bas office. (Code 1919, § 5317; 1926, p. 589; 1928, p. 1085; 1946, p. 223; 1954, c. 468; 1999, c. 16.) Cross references. -- As to the appointment of a nonresident as guardian of a resident infant, see § 26-59. Role of guardian. -- Although the Code of Virginia does not define the term "guardian," implicit in the statutes is a recognition that a guardian is a person who has either the custody and control of the estate of a minor or the custody of the person of a minor, or both. In re OqX/eil, 18 Va. App. 674, 446 S.E.2d 475 (1994). Grounds for denial of guardianship award. -- Where it appears that the parties are attempting to accomplish some fraud or abuse of the power of guardianship, the trans- is not in the best interests of the Af~ditionally, the chancellor, in determining tchflhd best interests of the child, may decline to.a.w~t guardianship to any person deemed by be incompetent to discharge the duties °_f?,a~i' office. In re O'Neil 18 Va App 674, 446 ~ 475 (1994). Necessity of notice prior to ceeding. -- Reasonable notice to all parties is required in a proceeding involving oPerate petition for the transfer ofguardianshiF' minor child to protect the fights of such~' 472 § 31-6 GUARDIAN AND WARD § 31-7 parties and to ensure the best interests of the child- In re O~Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994)' Use of best interests analysis in transfer decision. -- Where the grandparents had legal custody of the child, the chancellor's consider- ation of a petition for transfer of guardianship is limited to a determination of whether the trans£er is in the best interests of the child, and the chancellor should therefore deny such a petition only where it appears from the record that the transfer of guardianship of the person would be detrimental to the best interests of the child. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994). Incorrect use of balancing test in trans- fer analysis. -- Where it is established that the petition seeking legal guardianship of the person of a minor child is unopposed by the child's natural guardian(s) and Occurs subse- quent to or contemporaneously with a volun- tary temporary transfer of custody to the pro- spective legal guardian of the person of the child, the chancellor, in determining whether to grant the petition, applied an incorrect stan- dard by balancing a potential financial benefit to the prospective legal guardian of the person against the best interests of the child. In re O~Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994). Insurer may condition coverage on ob- taining guardianship. -- Because the statu- tory definition of legal custody in this Common- wealth includes the power to direct medical care, legal guardianship of the person was not a necessary legal status for grandparents who had such custody to obtain to direct such care for their granddaughter. However, the status of legal custodian does not require a non-govern- mental entity such as their insurance carrier to recognize their financial responsibility for her medical care. Therefore, their insurance carrier could decline to recognize the child as an in- sured person until the grandparents obtained the status of legal guardians of the person in order to comply with their contract. In re O2qeil, 18 Va. App. 674, 446 S.E.2d 475 (1994). § 31-6. Guardians to give bond; surety thereon. -- Before the appoint- ment of any guardian for the estate of a minor, the person seeking appointment shall, in the court or before the clerk, take an oath that he will faithfully perform the duties of his office to the best of his judgment and give his bond in an amount at least equal to the value of the minor's personal estate coming under his control. Every guardian for the estate of a minor shall provide surety upon his bond unless it is waived pursuant to § 26-4 or, in the case of a testamentary guardian, the testator's will waives surety; however, the court or Clerk, on its or his own motion or the motion of another, may at any time, require surety upon a guardian's bond. Every order appointing a guardian shall state whether or not surety is required. When the same guardian qualifies upon the estate of two or more wards who are members of the same family, only one qualification and one guardianship bond shall be required. (Code 1919, § 5318; 1926, p. 589; 1928, p. 1085; 1954, c. 398; 1995, c. 225; 1999, c. 16.) Cross references. -- As to when bank or trust company not required to give security, see § 6.1-18. As to allowing guardian to give bond without surety when estate in his hands is not more than $5,000, see § 26-4. Law Review. -- For 1995 survey of wills, trusts, and estates, see 29 U. Rich. L. Rev. 1175 (1995). § 31-6.1. Redetermination of guardian's bond. -- Upon a guardian's request, the clerk shall redetermine the penalty of the guardian's bond in light of any reduction in the current market value of the estate under the guardian's control, whether such reduction is due to disbursements, distributions, valu- ation of assets, or disclaimer of fiduciary power, if such reduction is reflected in an accounting that has been confirmed by the court or an inventory that has been approved by the commissioner of accounts. This provision shall not apply to any bond set by the court. (1999, c. 16.) § 31-7. When court may appoint temporary guardians; bond; powers and duties. -- Until a guardian appointed by the court or clerk has given bond, or while there is no guardian, the court or clerk may, from time to time, 473 § 31-8 CODE OF VIRG~NLt § 31-8.1 appoint a temporary guardian, who shall give bond as aforesaid, and during the continuance of his guardianship have all the powers and perform all the duties of a guardian, and be responsible in the same way. (Code 1919, § 5319; 1999, c. 16.) CHAPTER 3. CUSTODY AND CARE OF WARD AND ESTATIZ. Sec. 31-8. Custody, care and education of wards; ward's estate. 31-8.1. Parental duty of support. 31-8.2. Same; limited authority of commis- sioner of accounts. 31-9. Termination of guardianship. 31-14. Powers of courts over guardians. 31-14.1. Powers of guardian. Sec. 31-15. Custody when parents are separated. 31-16. Access by certain persons to child in custody of another. 31-17. Notice to be given of application; con- trol of court over its order. 31-18. Provisions governing such proceed- ings. 31-18.1. ~ransition rule. § 31-8. Custody, care and education of Wards; ward's estate. -- Unless a guardian of the person of a minor is appointed by a parent, the court or the clerk, a guardian of a minor's estate who is appointed as aforesaid, and gives bond when it is required, shall have the custody of his ward, except as otherwise provided in §§ 31-1, 31-2, and 31-15. The guardian of a minor's estate shall have thepossession, care, and management of the minor's estate, real and personal, and, after first taking into account the minor's other sources of income, support rights and other reasonably available resources of which the guardian is aware, shall provide for the minor's health, education, mainte- nance and support from the income of such estate and, if income is not sufficient, from the corpus thereof. (Code 1919, § 5320; 1930, p. 686; 1989, c. 535; 1999, c. 16.) Editor's note. -- Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provided that the amend- ment to this section by Acts 1993, c. 929, cl. 1, would become effective June 1, 1998, "only if state funds are provided by the General Assem- bly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not pro- vided. Guardian is not personally responsible for the support and education of his wards unless he consents to become bound for them. Barnum v. Frost's Adm'r, 58 Va. (17 Graft.) 398 (1867). But ward's estate is responsible. --A guardian placing his ward with a third person to be supported and educated, though he may undertake to pay the ward's expenses, does not thereby relieve the ward's estate, but the per- son with whom the ward has been placed may proceed in equity to subject the profits of the ward's estate to the payment of her expenses. :~ Barnum v. Frost's Adm'r, 58 Va. (17 Gratt.) 398 (1867). 474 . § 31-8.1. Parental duty of sup_p, ort. -- A. Notwithstanding the pr?i- stuns of § 31-8, a guardian of a minors estate shall not make any distribution of income or corpus to or for the benefit of a ward who has a living parent, whether or not the guardian is such parent, except to the extent that. distribution is authorized by (i) the deed, will or other instrument under the ,e?ta, te is de_rived, or (ii) the court, upon a finding that (a) the parent.is unam.e co com.~etely fulfill the parental duty of supporting the child, (b), t,~e paren~ canno~ mr some reason be required to proviSe such support, .or. ~?~ea proposed distribution is beyond the scope of parental duty of suppp~.. circumstances of a specific case. The existence of a parent-child ,§ 31-8.2 GUARDIAN AND WARD § 31-14 shall be determined in accordan_ce with the provisions of § 64.1-5.1. The court's authorization may be contained in the order appointing the guardian or it may ~be obtained at any time prior to the disbursement in question; however, in extenuating circumstances where the interests of equity so require, the court's authorization may be obtained after the disbursement in question. B. A guardian who desires to make any distribution specified in subsection A when neither (i) an existing court order nor (ii) the deed, will or other instrument under which the estate is derived authorizes it, shall file a petition in the court wherein his accounts may be settled, naming the ward as a defendant and setting forth the reasons why such distribution is appropriate. The court or clerk shall appoint an attorney-at-law as guardian ad litem to represent the ward. Proceedings on the petition shall otherwise conform in all respects to a bill in chancery, except that the evidence may be taken orally and the petition may be filed in court upon five days' notice to the ward, unless it is shown that he is under the age of fourteen. No attorney's fees shall be taxed in the costs, nor shall there be any writ tax upon the petition. The court may fix reasonable attorney's fees for services in connection with the filing of the petition, and the court shall fix the guardian ad litem's fee. Such fees shall be paid out of the estate unless the court directs that they be paid by the petitioner. The clerk shall receive a fee of one dollar for all services rendered thereon, to be paid by the guardian, out of the estate. Any notice required to be served under this section may be served by any person other than the guardian. Notwithstanding the preceding provisions of this subsection, if the court determines that an emergency exists, an order authorizing a distribution may be entered without the appointment of a guardian ad litem, with the court making such further provisions in its order for the protection of the ward's estate as it may deem proper in each case. (1999, c. 16.) § 31-8.2. Same; limited authority of commissioner of accounts. -- A commissioner of accounts for the jurisdiction wherein a guardian qualifies may authorize the same distributions under the same circumstances as the court may authorize under § 31-8.1 A, except that (i) the total distributions authorized in any one year shall not exceed $3,000 and (ii) the commissioner shall, in his report to the court on the guardian's next accounting, explain the necessity for the distributions so authorized. The provisions of§ 31-8.1 B shall not apply to proceedings under this section, but the commissioner shall give five days' written notice of the scheduled hearing date to any minor who is fourteen years of age or older. The commissioner shall not charge a fee in excess of $100 for such hearing. (1999, c. 16.) § 31-9. Termination of guardianship. -- Unless the guardian dies, is removed, or resigns the guardianship, he shall continue in office until the minor attains the age of majority or, in the case of testamentary guardianship, until the termination of the period limited therefor. At the expiration of the guardianship, he shall deliver and pay all the estate and money in his hands, or with which he is chargeable, to the person entitled to receive the same. (Code 1919, § 5320; 1930, p. 687; 1972, c. 825; 1973, c. 401; 1999, c. 16.) §§ 31-10 through 31-13: Repealed by Acts 1999, c. 16. § 31-14. Powers of courts over guardians. -- The circuit courts may hear and determine all matters between guardians and their wards, require settlements of guardianship accounts, remove any guardian for neglect or breach of trust, and appoint another in his stead, and make any order for the custody, health, maintenance, education and support of an infant and the 475 § 31-14.1 CODE OF VIRGIN/A § 31-14.1 management, disbursement, preservation and investment of his estate. (Code 1919, § 5326; 1999, c. 16.) Cross references. --As to sale of ward's ~'ealty to promote his interest, see § 8.01-68. As to jurisdiction of court to remove old guardian and to appoint new one, see also, §§ 26-3, 26-47. Jurisdiction of chancery. -- Under this section, the court of chancery, as representing the parental and protecting power of the Com- monwealth, has jurisdiction to determine con- troversies concerning the guardianship of a. minor, to make orders for his support, if any property capable of being so applied be within the reach of the court, and in extreme cases even to control the right of a father to the custody of his child. Buchanan v. Buchanan, 17p Va. 458, 197 S.E. 426 (1938). § 31-14.1. Powers of guardian. --A. Whether appointed by a parent, the court or clerk, a guardian of a minor's estate shall have the following powers and the powers set forth in § 64.1-57 as of the date the guardian acts which, subject to the provisions of subsection B, may be exercised without any prior authorization: 1. To ratify or reject a contract entered into by the minor; 2. To pay any sum distributable for the benefit of the ward by paying the sum directly to the ward, to the provider of goods and services, to any individual or facility that is responsible for or has assumed responsibility for care and custody, or to a ward's custodian under a Uniform Transfers (or Gii~s) to Minors Act of any applicable jurisdiction; 3. To maintain life, health, casualty and liability insurance for the benefit of the ward; 4. To manage the estate following the termination of the guardianship until its delivery to the ward or successors in interest; 5. To execute and deliver all instruments, and to take all other actions that will serve in the best interests of the ward; 6. To initiate a proceeding to seek a divorce, or to make an augmented estate election under § 64.1-13; and 7. To borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals and security as the guardian deems advisable, including the power to borrow from the guardian, if the guardian is a bank, for any purpose; to mortgage or pledge such portion of the ward's personal estate, and real estate subject to subsection B, as may be required to secure such loan or loans; and, as maker or endorser, to renew existing loans. B. The court or the commissioner of accounts, if a guardian is appointed other than by the court, may impose requirements to be satisfied by the guardian prior to the conveyance of any interest in real estate, including but not limited to (i) increasing the amount of the guardian's bond, (ii) securing an appraisal of the real estate or interest, (iii) giving notice to interested parties as the court or commissioner deems proper, and (iv) consulting by the guardian with the commissioner of accounts. 1. If the court or commissioner imposes any such requirements, the guard- ian shall make a report of his compliance with each requirement, to be filed with the commissioner of accounts. Promptly following receipt of the ,gu.~ard- ian's report, the commissioner shall file a report with the court stating wneme, r the requirements imposed have been met and whether the conveyance ~s otherwise consistent with the guardian's duties. The conveyance shall not be closed until a report by the commissioner of accounts is filed with the court and confirmed as provided in §§ 26-33, 26-34 and 26-35. 2. If the commissioner does not impose any such requirements, he shall, upon request of the guardian of the minor, issue a notarized statement providing that "The Commissioner of Accounts has declined to impose any requirements upon the power of (name of guardian), Guardian of (name of 476 § 31-15 GUARDIAN AND WARD § 31-15 ~inor), to convey the following real estate of the minor: (property identifica- ~on)' The conveyance shall not be closed until the guardian has furnished such a statement to the proposed grantee. C. Any guardian may at any time irrevocably disclaim the right to exercise any of the powers conferred by this section by filing a suitable written disclaimer with the clerk of the court wherein his accounts may be settled. Such disc~.'~ner shall relate back to the time when the guardian assumed the guardians p and shall be binding upon any successor guardian. (1999, c. 16.) § 31-15. Custody when parents are separated. -- When any husband and wife live in a state of separation, without being divorced, and have a minor child of the marriage, any court of record having equity jurisdiction in, or the juvenile and domestic relations court of, the city or county in which the child is, or the judge in vacation, may, in the discretion of the court or judge, upon the petition of the mother or father, award to the petitioner the custody and control of the child for such time, under such regulations and restrictions, and with such provisions and directions, as the case requires and as will best promote the welfare of the child. In such case or in any other case in which the parents are living apart, whether partially or absolutely divorced or not, the court or judge or any court of competent jurisdiction, in awarding the custody of the child to either parent or to some other person, shall give primary consideration to the welfare of the child, and as between the parents there shall be no presumption or inference of law in favor of either. The court or judge in the enforcement of its orders may direct its officer to take possession of the child or children and dispose of them as it directs. (Code 1919, §§ 5320, 5327; 1930, p. 687; 1944, p. 215; 1983, c. 478.) Cross references. -- For provision as to custody of children upon decree of dissolution of marriage or divorce, see § 20-107.2. Editor's note. --Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provided that the repeal of this section by Acts 1993, c. 929, cl. 2, would become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, in- cluding all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Common- wealth.' The funding was not provided. Law Review. -- For survey of Virginia law on domestic relations for the year 1975-76, see 62 Va. L. Rev. 1431 (1976). For survey of Vir- ginia law on domestic relations for the year 1976-77, see 63 Va. L. Rev. 1418 (1977). For recent developments with regard to the "tender years" doctrine in Virginia, see 12 U. Rich. L. Rev. 593 (1978). For survey of Virginia domestic relations law for the year 1977-1978, see 64 Va. L. Rev. 1439 (1978). For comment, "The Uni- form Child Custody Jurisdiction Act in Vir- ginia,' see 14 U. Rich. L. Rev. 435 (1979). For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981). For comment, "Babies Behind Bars: Should Incarcerated Mothers Be Allowed to Keep Their Newborns With Them in Prison?," see 16 U. Rich. L. Rev. 677 (1982). Welfare of children is controlling con- sideration. -- In deciding the difficult ques- tion of custody of minor children whose parents are living separate and apart, it is important to keep in mind that the welfare of the children is the primary, paramount and controlling consid- eration. All other matters are secondary. Hall v. Hall, 210 Va. 668, 173 S.E.2d 865 (1970). The primary and controlling consideration is the child's welfare. All other matters are sec- ondary. Burnside v. Burnside, 216 Va. 691, 222 S.E.2d 529 (1976). Right of court to award custody is tran- sitory. -- The right of the court, under this section, to award to the mother the custody of minor children, together with such provisions and directions as to the court may seem neces- sary, is transitory and shifts with the abode of the children. The court where they chance to be living has jurisdiction. White v. White, 181 Va. 162, 24 S.E.2d 448 (1943). The venue conferred under this section is transitory and shifts with the abode of the children. Rochelle v. Rochelle, 225 Va. 387, 302 S.E.2d 59 (1983). In dealing with children of tender years, the mother is the natural guardian, and if she is a fit and proper person, other things being equal, she should be given the custody. Burnside v. Burnside, 216 Va. 691, 222 S.E.2d 529 (1976). Any use of "tender years inference" in 477 To Date From the desk of G~EORGE E. ItOFFER Subject IN RE: ANDREW SCOTT GELBURD · IN THE ORPHAN'S COURT OF · CUMBERLAND COUNTY, PENNSYLVANIA 'NO. 03-':';~,~g ~ PETITION FOR APPOINTMENT OF A GUARDIAN FOR THE ESTATE OF A MINOR 1. Petitioners, Jeffrey S. Gelburd and Marcia M. Gelburd, husband and wife, are the natural parents of Andrew Scott Gelburd and reside at 600 Hilltop Drive, New Cumberland, Cumberland County, Pennsylvania. 2. Andrew Scott Gelburd was born on October 18, 1990 and resides with his parents at 600 Hilltop Drive, New Cumberland, Cumberland County, Pennsylvania. 3. Andrew Scott Gelburd is the owner of record of 2,730 shares of stock in F & M Bank Corp. of Timberville, Virginia. 4. The stock is presently valued at approximately $25 per share, for a total value of $68,250. 5. Petitioners wish to sell the stock and invest the proceeds locally on Andrew's behalf to fund Andrew's college education. 6· Under the laws of the Commonwealth of Virginia, this transfer cannot take place without a court appointed guardian. (See Attachment "A"). 7. Andrew Scott Gelburd presently has no guardian other than his natural parents, the Petitioners herein, with whom he has lived for his entire life. 8. There are no interests of the proposed guardian that are adverse to the interests of the minor. WHEREFORE, for all the above reasons, the Petitioners, Jeffrey S. Gelburd and Marcia M. Gelburd, respectfully request this Court to appoint Jeffrey S. Gelburd guardian for the estate of Andrew Scott Gelburd. Respectfully Submitted TURO LAW OFFICES Date (7`17) 24,5-9688 S. C. No. 84'133 Attorney for Plaintiff LAWRENCE H. HOOVER, IR. DAVID A. PENROD JOHN N. CRIST DALE A. DAVENPORT ROBERT F. KEEFER RICHARD A. BAUGH DILLINA W. STICKLEY HOOVER, PENROD, DAVENPORT ATTORNEYS AT LAW 342 SOUTH MAIN STREET HARRISONBURG, VIRGINIA 22801 February 20, 2003 Mr. Jeff Gelburd 600 Hilltop Drive New Cumberland, PA 17070 g CRIST FACSIMILE 540 -433 -3916 TELEPHONE 540 '433- 2444 Dear Mr. Gelburd: I refer to your phone calls about transferring the shares of stock in F & M Bank Corp. owned by your son, who is a minor. In Virginia, the Clerk of the Circuit Court where the minor resides can appoint a guardian for the estate of a minor and the guardian would have the authority to authorize the transfer of the shares of stock owned by the minor. I am enclosing copies of the relevant statutes from the Virginia Code that confers this authority. The Clerk of your court in New Cumberland may have some comparable statutory authority. If you or someone in your family can be appointed guardian or legal representative for your son and send us documentation to that effect, the Bank would be able to transfer your son's shares. I apologize for not getting this information to you more promptly. Very truly yours, HOOVER, PENROD, DAVENPORT & CRIST ,/~,a_L '6,r_ence/lCI. Fto~ver, Jr. For the Firm LHHjr./edm Enclosures cc: Sylvia Bowman Farmers & Merchants Bank Attachment "A" § 31-4 CODE OF VIRGINIA § 31-5 CHAPTER 2. APPOrNTMENT OF GUARDIAN BY COURT OR CLERK. Sec. 31-4. Jurisdiction of appointments. 31-5. How appointments made. 31-6. Guardians to give bond; surety thereon. 31-6.1. Redetermination of guardian's bond. Sec. 31-7. When court may appoint temporary guardians; bond; powers and du- ties. § 31-4. Jurisdiction of appointments. -- The circuit court or the circuit court clerk of any county or city in which a minor resides'or in which he has any estate, if he is an out-of-state resident, may appoint a guardian for the estate of the minor, and may appoint a guardian for the person of the minor unless he has a guardian appointed as aforesaid by his father or mother. (Code 1919, § 5316; 1926, p. 588; 1928, pp. 25, 1085; 1930, p. 686; 1938, p. 4; 1942, p. 205; 1944~ p. 28; 1989, c. 55; 1999, c. 16.) · C. ross references. -- For constitutional pro- v~smn as to power of clerks of circuit courts to appoint guardians, see Va. Const., Art. VI, § 8. For provisions as to right of appeal from order of court appointing guardian, see § 8.01-670. Law Review. -- For article, "Updating Vir- ginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970). Section does not affect power of ehan. cery court to appoint. -- The chancery courts in this State have always had the power to appoint guardians. The power is not taken from them by this statute. Durrett v. Davis, 65 Va~ (24 Gratt.) 302 (1874). § 31-5. How appointments made. -- If the minor is under the age of fourteen years, the court or clerk may nominate as well as appoint his guardian; if the minor is above that age he may, in the presence of the court or clerk, or in writing acknowledged before any officer qualified to take aclmowl- edgments, nominate his own guardian, who, ff approved by the court or clerk, shall be appointed accordingly; but if the guardian nominated by the minor is not appointed or if the minor resides without the Commonwealth or if, after being summoned by the court or clerk, he does not nominate a person deemed suitable and competent by the court or clerk, a guardian may be nominated and appointed in the same manner as if the minor were under the age of fourteen years. In no case shall any person not related to the infant be appointed guardian until thirty days have elapsed since the death or disquali- fication of the natural or testamentary guardians, and the next of kin have had an opportunity to petition the court for appointment and unless the court or clerk is satisfied that such person is competent to perform the duties of his office. (Code 1919, § 5317; 1926, p. 589; 1928, p. 1085; 1946, p. 223; 1954, c. 468; 1999, c. 16.) Cross references. --As to the appointment of a nonresident as guardian of a resident infant, see § 26-59· Role of guardian. -- Although the Code of Virginia does not define the term "guardian," implicit in the statutes is a recognition that a guardian is a person who has either the custody and control of the estate of a minor or the custody of the person of a minor, or both. In re O~eil, 18 Va. App. 674, 446 S.E.2d 475 (1994). Grounds for denial of guardianship award. -- Where it appears that the parties are attempting to accomplish some fraud or abuse of the power of guardianship, the trans- fer is not in the best interests of the chil& Additionally, the chancellor, in determining the best interests of the child, may decline to award .: guardianship to any person deemed by himt~ be incompetent to discharge the duties oftha~;. office. In re O'Neil, 18 Va. App. 674, 446 $.E.2d' 475 (1994). Necessity of notice prior tc ceeding. -- Reasonable notice to all parties is required in a proceeding involving a~; private petition for the transfer ofguardix .am~hi~ '~ of a minor child to protect the rights o! su -~ 472 § 31-6 GUARDIAN AND WARD parties and to ensure the best interests of the ch/Id. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994)- Use of best interests analysis in transfer decision. -- Where the grandparents had legal custody of the child, the chancellor's consider- ation of a petition for transfer of guardianship is limited to a determination of whether the transfer is in the best interests of the child, and the chancellor should therefore deny such a petition only where it appears from the record that the transfer of guardianship of the person would be detrimental to the best interests of the child. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994). Incorrect use of balancing test in trans- fer analysis. -- Where it is established that the petition seeking legal guardianship of the person of a minor child is unopposed by the chi]frs natural guardian(s) and Occurs subse- quent to or contemporaneously with a volun- tary temporary transfer of custody to the pro- spective legal guardian of the person of the § 31-7 child, the chancellor, in determining whether to grant the petition, applied an incorrect stan- dard by balancing a potential financial benefit to the prospective legal guardian of the person against the best interests of the child. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994). Insurer may condition coverage on ob- taining guardianship. __ Because the statu- tory definition of legal custody in this Common- wealth includes the power to direct medical care, legal guardianship of the person was not a necessary legal status for grandparents who had such custody to obtain to direct such care for their granddaughter. However, the status of legal custodian does not require a non-govern- mental entity such as their insurance carrier to recognize their financial responsibility for her medical care. Therefore, their insurance carrier could decline to recognize the child as an in- sured person until the grandparents obtained the status of legal guardians of the person in order to comply with their contract. In re O~Neil, 18 Va. App. 674, 446 S.E.2d 475 (1994). § 31-6. Guardians to give bond; surety thereon. -- Before the appoint- ment of any guardian for the estate of a minor, the person seeking appointment shall, in the court or before the clerk, take an oath that he will faithfully perform the duties of his office to the best of his judgment and give his bond in an mount at least equal to the value of the minor's personal estate coming under his control. Every guardian for the estate of a minor shall provide surety upon his bond unless it is waived pursuant to § 26-4 or, in the case of a testamentary guardian, the testator's will waives surety; however, the court or Clerk, on its or his own motion or the motion of another, may at any time, require surety upon a guardian's bond. Every order appointing a guardian shall state whether or not surety is required. When the same guardian qualifies uPon the estate of two or more wards who are members of the same family, only one qualification and one guardianship bond shall be required. (Code 1919, § 5318; 1926, p. 589; 1928, p. 1085; 1954, c. 398; 1995, c. 225; 1999, c. 16.) Cross references. -- As to when bank or trust company not required to give security, see § 6.1-18. As to allowing guardian to give bond without surety when estate in his hands is not more than $5,000, see § 26-4. Law Review. -- For 1995 survey of wills, trusts, and estates, see 29 U. Rich. L. Rev. 1175 (1995). § 31-6.1. Redetermination of guardian's bond. -- Upon a guardian's request, the clerk shall redetermine the penalty of the guardian's bond in hght of any reduction in the current market value of the estate under the guardian's control, whether such reduction is due to disbursements, distributions, valu- ation of assets, or disclaimer of fiduciary power, ffsuch reduction is reflected in an accounting that has been confirmed by the court or an inventory that has been approved by the commissioner of accounts. This provision shall not apply to any bond set by the court. (1999, c. 16.) § 31-7. When court may appoint temporary guardians; bond; powers and duties. -- Until a guardian appointed by the court or clerk has given bond, or while there is no guardian, the court or clerk may, from time to time, 473 8 31-8 CODE OF VIRGINIA 8 31-8.1 appoint a temporary guardian, who shall give bond as aforesaid, and during the continuance of his guardianship have all the powers and perform all the duties of a guardian, and be responsible in the same way. (Code 1919, 8 5319; 1999, c. 16.) CHAPTER 3. CUSTODY AND CARE Or WARD AND ESTATE. Sec. 31-8. Custody, care and education of wards; ward's estate. 31-8.1. Parental duty of support. 31-8.2. Same; limited authority of commis- sioner of accounts. 31-9. Termination of guardianship. 31-14. Powers of courts over guardians. 31-14.1. Powers of guardian. Sec. 31-15. 31-16. Custody when parents are separated. Access by certain persons to child in custody of another. 31-17. Notice to be given of application; con- trol of court over its order. 31-18. Provisions governing such proceed- ings. 31-18.1. Transition rule. § 31-8. Custody, care and education of wards; ward's estate. -- Unless a guardian of the person of a minor is appointed by a parent, the court or the clerk a ardian ' ' - · . , . gu of a minor s estate who m appointed as aforesaid, and gives bond when it is required, shall have the cUStody of his ward, except as otherwise provided in 88 31-1, 31-2, and 31-15. The guardian of a minor's estate shall have the possession, care, and management of the minor's estate, real and personal, and, aider first taking into account the minor's other sources of income, support rights and other reasonably available resources of which the guardian is aware, shall provide for the minor's health, education, mainte- nance and support from the income of such estate and, if income is not sufficient, from the corpus thereof. (Code 1919, 8 5320; 1930, p. 686; 1989, c. 535; 1999, c. 16.) Editor's note. --Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provided that the amend- ment to this section by Acts 1993, c. 92,9., cl. 1, would become effective June 1, 1998, only if state funds are provided by the General Assem- bly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth.~ The funding was not pro- vided. Guardian is not personally responsible for the support and education of his wards unless he consents to become bound for them. Barnum v. Frost's Adm'r, 58 Va. (17 Graft.) 398 (1867). But ward's estate is responsible. --A guardian placing his ward with a third person to be supported and educated, though he may undertake to pay the ward's expenses, does not thereby relieve the ward's estate, but the per- son with whom the ward has been placed may proceed in equity to subject the profits of the ward's estate to the payment of her expenses. Barnum v. Frost's Adm'r, 58 Va. (17 Gratt.) 398 (1867). § 31-8.1. Parental duty of sup__p, ort. -- A. Notwithstanding the provi- sions of 8 31-8, a guardian of a minor s estate shall not make any distribution of income or corpus to or for the benefit of a ward who has a living parent, whether or not the guardian is such narent, except to the extent that the distribution is authorized by (i) the deed, will or other instrument under wh/ch the ,e?a. te is de?i.v?d, or (ii) the court, upon a finding that (a) the parent is _u~_.am~e co com, p?~e~y fulfill the parental duty of supp~rtin~ the child, (b) the parent cannot mr some reason be re tared or (c) s q ' to provide suc~ support, p.roposed distribution is beyond t~he scope of parental duty of support in ~e circumstances of a specific case. ~ne existence of a parent-child relations P 474 ;§ 31-8.2 GUARDIAN AND WARD § 31-14 shall be determined in accordemce with the provisions of§ 64.1-5.1. The court's authorization may be contained in the order appointing the guardian or it may ~'~be obtained at any time prior to the disbursement in question; however, in extenuating circumstances where the interests of equity so require, the court's authorization may be obtained after the disbursement in question. B. A guardian who desires to make any distribution specified in subsection A when neither (i) an existing court order nor (ii) the deed, will or other instrument under which the estate is derived authorizes it, shall file a petition in the court wherein his accounts may be settled, naming the ward as a defendant and setting forth, the reasons why such distribution is appropriate. The court or clerk shall appoint an attorney-at-law as guardian ad litem to represent the ward. Proceedings on the petition shall otherwise conform in all respects to a bill in chancery, except that the evidence may be taken orally and the petition may be filed in court upon five days' notice to the ward, unless it is shown that he is under the age of fourteen. No attorney's fees shall be taxed in the costs, nor shall there be any writ tax upon the petition. The court may fix reasonable attorney's fees for services in connection with the filing of the petition, and the court shall fix the guardian ad ]item's fee. Such fees shall be paid out of the estate unless the court directs that they be paid by the petitioner. The clerk shall receive a fee of one dollar for all services rendered thereon, to be paid by the guardian, out of the estate. Any notice required to be served under this section may be served by any person other than the guardian. Notwithstanding the preceding provisions of this subsection, if the court determines that an emergency exists, an order authorizing a distribution may be entered without the appointment of a guardian ad ]item, with the making such further provisions in its order for the protection of the wards estate as it may deem proper in each case. (1999, c. 16.) § 31-8.2. Ss,~e; limited authority of commissioner of accounts. -- A commissioner of accounts for the jurisdiction wherein a guardian qualifies may authorize the same distributions under the same circumstances as the court may authorize under § 31-8.1 A, except that (i) the total distributions authorized in any one year shall not exceed $3,000 and (ii) the commissioner ~ ......~ -,~-~uu~ons so au~nonzea. '~'ne provisions of§ 31-8 1 B shall not apply to proceedings under t~i~'s ~se?tip9, but the commissioner shall give five days' written notice of the scneauleei heanng date to any minor who is fourteen years of age or older. The commissioner shall not charge a fee in excess of $100 for such hearing. (1999, c. 16.) § 31-9. Termination of guardianship. -- Unless the guardian dies, is re.moved, or resigns the guardianship, he shall continue in office until the n~nor attains the age of majority or, .in the case of testamentary guardianship, until the termination of the period limited therefor. At the expiration of the guardianship, he shall deliver and pay all the estate and money in his hands, or with which he is chargeable, to the person entitled to receive the same. (Code 1919, § 5320; 1930, p. 687; 1972, c. 825; 1973, c. 401; 1999, c. 16.) §§ 31-10 through 31-13: Repealed by Acts 1999, c. 16. § 31-14. Powers of courts over guardians. -- The circuit courts may hear and determine all matters between guardians and their wards, require settlements of guardianship accounts, remove any guardian for neglect or breach of trust, and appoint another in his stead, and make any order for the custody, health, maintenance, education and support of an infant and the 475 § 31-14.1 CODE OF VIRGINL~ § 31-14.1 management, disbursement, preservation and investment of his estate. (Code 1919, § 5326; 1999, c. 16.) Cross references. --As to sale of.ward's ?ealty to promote his interest, see § 8.01-68. As to jurisdiction of court to remove old guardian and to appoint new one, see also, §§ 26-3, 26-47. Jurisdiction of chancery. -- Under this section, the court of chancery, as representing the parental and protecting power of the Com- monwealth, has jurisdiction to determine con- troversies concerning the guardianship of a. minor, to make orders for his support, if any property capable of being so applied be within the reach of the court, and in extreme cases even to control the right of a father to the custody of his child. Buchanan v. Buchanan, 17_0. Va. 458, 197 S.E. 426 ~1938). cA §_ ?1-14,.1.~ Powers,.of gu~ardi .an. ~-A. Whether appointed by a parent, the uur~ or cmrz, a guarman ota minor s estate shall have the following powers and the powers set forth in § 64.1-57 as of the date the guardian acts which, subject to the provisions of subsection B, may be exercised without any prior authorization: 1. To ratify or reject a contract entered into by the minor; 2. To pay any sum distributable for the benefit of the ward by paying the sum directly to the ward, to the provider of goods and services, to any individual or facility that is responsible for or has assumed responsibility for care and custody, or to a ward's custodian under a Uniform Transfers (or Gifts) to Minors Act of any applicable jurisdiction; 3. To maintain life, health, casualty and liability insurance for the the ward; benefit of 4. To manage the estate following the termination of the guardianship anti] its delivery to the ward or successors in interest; 5. To execute and deliver all instruments, and to take all other actions that will serve in the best interests of the ward; 6. To initiate a proceeding to seek a divorce, or to make an augmented estate election under § 64.1-13; and 7. To borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals and security as the guardian deems advisable, including the power to borrow from the guardian, ff the guardian is a bank, for any ose: to m w ' purp . ortgage or pledge such portion of the ard s personal estate, and real estate subject to subsection B, as may be required to secure such loan or loans; and, as maker or endorser, to renew existing loans. B. The court or the commissioner of accounts, if a guardian is appointed other than by the court, may impose requirements to be satisfied by the guardian prior to the conveyance of any interest in real estate, including but not limited to (i) increasing the mount of the guardian's bond, (ii) securing an appraisal of the real estate or interest, (iii) giving notice to interested parties as the court or commissioner deems proper, and (iv) consulting by the guardian with the commissioner of accounts. 1. If the court or commissioner imposes any such requirements, the guard- ian shall make a report of his compliance with each requirement, to be filed with the commissioner of accounts. Promptly following receipt of the guard- ian's report, the commissioner shall file a report with the court stating whether the requirements imposed have been met and whether the conveyance is otherwise consistent with the guardian's duties. The conveyance shall not be closed until a report by the commissioner of accounts is filed with the court and confirmed as'provided in §§ 26-33, 26-34 and 26-35. 2. If the commissioner does not impose any such requirements, he shall; upon request of the guardian of the minor, issue a notarized statement pro~ding that "The Commissioner of Accounts has declined to impose any reqmrements upon the power of (name of guardian), Guardian of (name 476 ~ 31-15 GUARDIAN AND WA_RD ,. § 31-15 [':~ic.~i~. , ..... s -~,,, estate of the minor: (property identifica- : ~ minor), to convey the follo~ ..... ~i~*~: tion). The conveyance shall not be closed until the guardian has furnished such a statement to the proposed grantee. : ~ ;! C. Any guardian may at any time irrevocably disclaim the right to exercise i! ethre powers conferred by this section by filin~ a ,' · disclaime with the clerk of the court ---~ ........ . s-~table written Such dis anner shall relate back t- +~-~ -~ ..... z.may be settled. u ,,,= ~me wnen me guaralan assumed the .'i guardianship and shall be binding upon any successor guardian. (1999, c. 16.) : § 31-15. Custody when parents are separated ~.~ and wife live in a state ofseo-~;~ u~ .... ~. · .When any husband - .... ~, ...~uuu~ oelng cUvorced, and have a minor ?~!:::: child of the marriage, any court of record having equity jurisdiction in, or the · d juvenile and domestic relations court of, the city or county in which the child is, or the judge in vacation, may, in the discretion of the court or judge, upon ~ ;,~the petition of the mother or father, award to the petitioner the custody and ~. control of the child for such time, under such regulations and restrictions, and ~?~,,with such provisions and directions, as the case requires and as will best promote the welfare of the child. In such case or in any other case in which the parents are living apart, whether partially or absolutely divorced or not, the court or judge or any court of competent jurisdiction, in awarding the custody of the child to either parent or to some other person, shall give primary ~:~ consideration to the welfare of the child, and as between the parents there · .sh,~ll be n,o presumph.o..n or inference of.law ~.n favor ofe~ther. The court or judge · m me eraorcement of ~ts orders may direct ~ts officer to take possession of the child or children and dispose of them as it directs. (Code 1919, §§ 5320, 5327; 1930, p. 687; 1944, p. 215; 1983, c. 478.) Cross references. ~ For provision as to Welfare of children is eontrolllng eon- custody of children upon decree of dissolution of sideration. __ In deciding the difficult ques- marriage or divorce, see § 20-107.2. tion of custody of minor children whose parents Editor's note. ~ Acts 1993, c. 929, cl. 3, as are living separate and apart, it is important to amended by Acts 1994, c. 564, cl. 1, a~d Acts keep in mind that the welfare of the children is 1996, c. 616, cl. 3, provided that ~he repeal of the primary, paramount and controlling consid- this section by Acts 1993, c. 929, cl. 2, would eration. Ail other matters are secondary. Hall v. become effective June 1, 1998, "only ff state Hall, 210 Va. 668, 173 S.E.2d 865 (1970). funds are provided by the General Assembly The primary and controlling consideration is sufficient to provide adequate resources, in. the child's weffare. All other matters are sec- eluding all local costs, for the court to carry out ondary. Burnside v. Burnside, 216 Va. 691, 222 the purposes of this act and to fulfill its mission S.E.2d 529 (1976). to serve children and families of the Common- Right of court to award custody is trau- wealth.~ The funding was not provided. Law Review. ~ For survey of V-rrginia law sitory. ~ The right of the court, under this section, to award to the mother the custody of on domestic relations for the year 1975-76, see minor children, together with such provisions 62 Va. L. Rev. 1431 (1976). For survey of ~r~r- and directions as to the court may seem neces- ginia law on domestic relations for the year sary, is transitory and shh% with the abode of 1976-77, see 63 Va. L. Rev. 1418 (1977). For the children. The court where they chance to be recent developments with regard to the ~tender living has jurisdiction. White v. White, 181 Va. years" doctrine in V'rrginia, see 12 U. Rich. L. 162, 24 S.E.2d 448 (1943) Rev. 593 (1978). For surveyof~n-ginia domestic The venue conferred under this section is relations law for the year 1977-1978, see 64 Va. transitory and shifts with the abode of the L. Rev. 1439 (1978). For comment, ~rhe Uni- children. Rochelle v. Rochelle, 225 Va. 387, 302 form Child Custody Jurisdiction Act in Vir- S.E.2d 59 (1983). gun , see 14 U. Rich. L. Rev. 435 (1979). For an In dealing with children of tender years, overview of ~r~rginia Supreme Court decisions the mother is the natural guardian~ and if on domestic relations, see 15 U. Rich. L. Rev. she is a fit and proper person, other things 321 (1981). For comment, "Babies Behind Bars: being equal, she should be given the custody. Should Incarcerated Mothers Be Allowed to Burnside v. Burnside, 216 Va. 691, 222 S.E.2d Keep Their Newborns With Them in Prison?," 529 (1976). see 16 U. Rich. L. Rev. 677 (1982). Any use of ~tender years inference" in 477 VERIFICATION We verify that the statements made in the foregoing Petition are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date _~r'ey S~elburd Marcia M. Gelburd