MY FATHER, NEAL J. PATTENretired senior partner with the law firmof Patten, Wornom Hatten andDiamonstein in Newport News, VA,died on May 20, 2009. He was 92.

He received his undergraduate andlegal education at the University ofRichmond and was admitted to theVirginia State Bar in 1941. He returnedto Newport News that year and workedin the local shipyard during the waryears. After the war, he associated withthe notable law firm of Murray, Ford,West and Wilkinson. In 1949 he estab-lished his own law practice and in 1953,along with his lifelong friend and part-ner I. Leake Wornom Jr., formed Pattenand Wornom, the predecessor to Patten,Wornom Hatten and Diamonstein.

Dad served as an associate judge forthe Municipal, Juvenile and DomesticRelations Courts for the City ofNewport News from 1953 to 1961 andwas a Commissioner in Chancery in theCircuit Court of Newport News from1963 to 1995. He was a former presi-dent of the Newport News BarAssociation and was a retired member ofthe Virginia and American BarAssociations, and the Virginia TrialLawyers Association.

Dad loved the law and he loved beinga lawyer. He did not consider himself aspecialist, although in his earlier years,he did develop a reputation for hisexpertise in personal injury and con-demnation cases. Rather, he preferred tobe thought of as a general practitioner

of the law. He was comfortable as anadvocate representing one of the oppos-ing parties in a criminal or civil trial, asan advisor and counselor to businessclients, or as a real estate attorney help-ing a young couple buy their first home.

He always had the ability to see thebig picture in any transaction, yet whenthe occasion required, he could berelentless in his attention to preparationand detail. Young attorneys under histutelage, of which I was one, will notlikely forget his advice as to the threemost important things to remember intrying a lawsuit - preparation, prepara-tion and preparation. His legal skills inand out of the courtroom were superb.

Dad always considered it a privilegeto be able to serve the citizens of hiscommunity both as a jurist and as alawyer. He had a sense of justice in thehighest traditions of our profession. Heunderstood human frailties and he waspassionate in his belief that we aslawyers have a responsibility to serve oursociety and to help those who are unableto help themselves. He always saw hismission as a way to help people. He wasinstrumental in the organization andincorporation of Mary ImmaculateHospital in 1952 and served as its gen-eral counsel for many years. He wasactive in various civic organizations,including the Catholic Home Bureau,the Junior Chamber of Commerce andthe Community Chest. In the 1950’s,he served on the Virginia MilkCommission.

On a personal note, I had a very spe-cial relationship with my father. Wespent our lives together. My office wasalways a few steps from his. We workedon legal projects together, went to courttogether, lunched together, and pursuedour passions together. He was my men-tor, my boss, my partner, and most ofall, my friend. He taught me that ourclients are not just file numbers but arereal people: people who should and dobecome our friends. He taught me that,not only are their causes important, butso are their lives, their health and theirfamilies. These are the values that weshare at our law firm today, and we areall better for it.

SENIOR LAWYER NEWSVolume 19—Issue 1 Summer 2009 Frank O. Brown Jr., Editor

NEAL J. PATTEN • A Remembrance

Summer 2009 Page 1

by Donald Patten

[continued on page 2]

Dad was an active member of the Virginia State Bar formore than 60 years. For all those years, he was respected forhis competence, his judgment, his honesty, his integrity andhis upright character. He was always dignified, always cour-teous and always a gentleman. He has left an enduring legacyfor future generations of lawyers in Virginia.

ABOUT THE AUTHOR:

Donald Patten is a Senior Lawyer and is a partner in thelaw firm of Patten, Wornom, Hatten and Diamonsteinin Newport News, Virginia.

Page 2 Summer 2009

[continued from page 1]

Mortimer Caplin, age 92, a member of the VSB SeniorLawyers Conference, and a founding partner of the firmof Caplin & Drysdale, was made a Chevalier of theFrench Legion of Honor (France’s highest civilianaward). On March 2, 2009, the award was presented toMr. Caplin at the French Embassy in Washington, D.C.by French Minister of Defense Herve’ Morin, and it rec-ognizes Mr. Caplin’s service as a U.S. Navy Beach Masterduring the D-Day Invasion at Omaha Beach duringWorld War II. On June 6, 1944, Mr. Caplin, then aNavy lieutenant, was just offshore on a U. S. Navy vesselsupporting the landing forces. On June 7, 1944, Mr.Caplin came ashore and his unit’s responsibilities includ-ed taking care of the wounded and dead, opening lanesfor landing craft, repairing damaged boats, engaging inall ship-to-shore communications, and clearing thebeaches of battle debris in preparation for the follow-oninvasion forces. Chevalier is the highest rank amongLegion of Honor awardees. The Legion of Honor wascreated by Napoleon in 1802 to acknowledge servicesrendered to France by persons of great merit. The FrenchAmbassador to the United States, Francois Rivasseau,wrote to Mr. Caplin, “The French people will never for-get your courage and your devotion to the cause offreedom.”

Mr. Caplin was also named as a 2009 Brennan AwardRecipient by the University of Virginia’s National TrialAdvocacy College. The award was established in 1987 inhonor of United States Supreme Court Justice William J.Brennan, Jr.. Mr. Caplin was recognized for his invalu-able contributions to trial advocacy and the legalprofession.

Mr. Caplin is well-known for his years of professionaland public service, and for his philanthropic interests.He has served as Professor of Tax Law at the University

of Virginia Law School, and as Commissioner of InternalRevenue from 1961 to 1964. He has served on theboards of the American Bar Foundation, the Universityof Virginia Board of Visitors, the University of VirginiaLaw Foundation, and the University of Virginia MillerCenter for Public Affairs. He is also the recipient of theUniversity of Virginia’s Thomas Jefferson Medal in Law,one the University’s highest honors.

"These awards reflect values I've always held dear, suchas an unwavering commitment to excellence and publicservice," Mr. Caplin said. He has certainly set high stan-dards for the profession.

Senior lawyer Mortimer Caplin receives two prestigious awards

French Defense Minister Morin pinning the French Legionof Honor medal on Mr. Caplin’s lapel.

Summer 2009 Page 3

Judge Marilynn C. Goss of the RichmondJuvenile and Domestic Relations DistrictCourt has been named the 2009 recipient ofthe Tradition of Excellence Award by theVirginia State Bar’s General PracticeSection. The award recognizes more than aquarter century of practice representingVirginia’s indigent as an attorney for theCentral Virginia Legal Aid Society, beforeshe went on the bench in 2008. Judge Gossbecomes a member of the Senior Lawyers

Conference in 2009. The Tradition ofExcellence Award recognizes a lawyer whoembodies the highest tradition of personaland professional excellence and who hasbenefitted a community and enhanced theesteem of general practice attorneys inVirginia. It will be presented by the GeneralPractice Section on June 20, 2009, at theVirginia State Bar Annual Meeting inVirginia Beach.

Members of the Senior Lawyers Conference receive awards in 2009

Family Law Lifetime Achievement Award 2009Professor Peter N. Swisher

Peter N. Swisher, a member of the VSBSenior Lawyers Conference, a professor oflaw at the University of Richmond, and acontributor to the development of familylaw in Virginia, is the 2009 recipient of theLifetime Achievement Award by the VirginiaState Bar’s Family Law Section. The award

recognizes persons who have demonstratedexcellence and integrity and have made asubstantial contribution to the practice offamily law in Virginia. The award was pre-sented during the Family Law Section’sannual Family Law Seminar on April 24,2009, in Richmond.

Lewis F. Powell, Jr. Pro Bono Award 2009Clarence M. Dunnaville, Jr.

Clarence M. DunnavilleJr., Richmond attorney anda member of and formerBoard of Governors memberof the VSB Senior LawyersConference, whose civilrights work led him fromprotest demonstrations in

the 1950s, to preserving the legacies of the movement’s lead-ers and continuing courtroom battles on behalf ofdisenfranchised people in the 21st century, has been award-ed the 2009 Lewis F. Powell Jr. Pro Bono Award by the

Virginia State Bar.The award is bestowed by the VSB’sCommittee on Access to Legal Services to recognize dedica-tion to development and delivery of pro bono services thatbenefit poor and underserved persons in Virginia. Theaward was named for the late U.S. Supreme Court AssociateJustice from Richmond, Lewis F. Powell, Jr..

In February 2009, VSB President Manuel A. Capsalis alsopresented Dunnaville with a special VSB President’s Awardin recognition of his many contributions to the legal profes-sion in Virginia.The Powell Award was presented during theVSB’s Pro Bono and Access to Justice Conference on April20, 2009, in Richmond.

Tradition of Excellence Award 2009 — Judge Marilynn C. Goss

TRIAD is a cooperative effort of law enforcement agencies(police/sheriffs), senior citizens, senior organizations, andother providers, focused on reducing crimes against our eld-erly citizens. TRIAD was begun in 1988 as a partnership bythe American Association of Retired Persons (AARP), theInternational Association of Chiefs of Police (IACP), and theNational Sheriffs’ Association (NSA). TRIAD means a three-way commitment among law enforcement, senior citizens,and service providers to work together to reduce the criminalvictimization of the elderly and to enhance the delivery oflaw enforcement services to older persons. Virginia TRIAD'smotto is “Reducing Crime Against The Elderly.” A majorpurpose of TRIAD is to develop, expand and implementeffective crime prevention and education programs for oldercommunity members. Activities center on both pre-victim-ization (preventive) and post-victimization (victim/witnessassistance) aspects. Among the goals of TRIAD are to reducethe fear of crime and victimization among senior citizens: byincreasing awareness of scams, frauds and other crimes tar-

geting them; by strengthening communications between lawenforcement communities and seniors; and by educatingseniors about local and state resources that are available intheir communities. Virginia has a statewide coordinatingoffice in the Office of the Attorney General of Virginia, andVirginia has the highest number of active local groups in theUnited States, with more than 225 cities, counties and townsbeing covered by signed TRIAD agreements and programs.For more information and to locate the TRIAD program inyour community, go to:www.oag.state.va.us/Consumer/TRIAD/index.html.

In addition, Virginia's TRIAD Handbook may be foundat: www.oag.state.va.us/CONSUMER/TRIAD/TRIAD_Handbook.pdf.

Senior Law Day Programs are based upon a format devel-oped by Past Senior Lawyers Conference Chair William T.

Page 4 Summer 2009

TRIAD and Senior Law Day ProgramsThe Senior Law Day Programs and TRIAD are outstanding examples of efforts

being made by lawyers and law enforcement agencies for the benefit of our senior citizens.

by Frank Overton Brown, Jr.

Frank Brown addressing the meeting in Prince George County.

Wilson, who planned and implement-ed the first program with theAlleghany-Bath-Highland Bar Associa-tion in Covington. Since then, theprograms have been successfully pre-sented all over the Commonwealth andcontinue to be presented. As BillWilson has said, “In my judgment, theprograms are ‘win-win-win.’ The sen-ior citizens win because they arereceiving information about legal issuesaffecting their lives which they other-wise might not receive. If you havebeen present for or have participated inone of these programs, you know howattentively and appreciatively the sen-ior citizens receive the program andhow interested they are in the subjectmatter. The program is also a ‘win’ forthe lawyers and their bar associationsbecause it is impossible to be a part ofone of these programs and not see theenormous good that is being accom-plished. To be able to give informationto senior citizens and know that theyare receiving information vital to theirwell-being is a rewarding and profes-sionally satisfying thing to do. Theprogram is also a ‘win’ because it raisesthe image of the lawyers, the legal pro-fession, and the bar associations in theeyes of the public.” The purpose of theSenior Law Day Programs is to providesenior citizens with important infor-mation about their legal rights andresponsibilities on a wide variety oftopics of interest to senior citizens,such as Social Security, SSI, Pensions,Veterans’ Benefits, Railroad Retire-ment Act Benefits, Food Stamps,Federal Tax Relief, Real Estate TaxReductions for the Elderly, Medicaid,Medicare, Medigap and MedicareSupplemental Insurance, Long-TermCare Insurance, Nursing Homes,Assisted Living Facilities, Adult DayCare, Home Care, Continuing CareRetirement Communities, Landlord-Tenant Issues, Rental Assistance,Reverse Mortgages, Divorce and the

Elderly, Estate Planning and Probate,Advance Directives, Powers ofAttorney, Guardianships, FuneralServices, Protection of Legal Rights,Age Discrimination, GrandparentalVisitation Rights, Elder Abuse,Alternative Dispute Resolution, andAgency Contact information. The“blueprint” for this program (which isbuilt around the Senior CitizensHandbook) can be obtained by callingMrs. Patricia Sliger, VSB Liaison, at(804) 775-0500.

Cooperative efforts between TRIADorganizations and Senior Law DayPrograms can result in a synergismwhich magnifies the benefits to ourSenior Citizens.

On May 28, 2009, I had the privi-lege of participating in the PrinceGeorge County TRIAD meeting andof presenting a mini Senior Law DayProgram, titled “Getting Your PersonalAffairs In Order”. The meeting wascoordinated by Prince George CountySheriff H. E. (Bucky) Allin, and washosted by and held at Unity BaptistChurch on Mt. Sinai Road in PrinceGeorge. My participation was arrangedby Prince George County SeniorLawyer Carol Dois Woodward, whowill coordinate a full scale Senior LawDay Program at a future Prince GeorgeCounty TRIAD meeting. At the May28 meeting, which was very well-attended, copies of the 2009 edition ofthe Senior Citizens Handbook weredistributed to the attendees who wereoriented on the contents of theHandbook and were told of theupcoming full Senior Law DayProgram being coordinated by CarolWoodward. My presentation coveredthe Basics of Estate Planning, includ-ing protecting yourself against beingtaken advantage of, protecting yourown best interests, Wills, DurableGeneral Powers of Attorney, DurableHealth Care Powers of Attorney,

Advance Medical Directives, and theimportance of getting your personalaffairs in order with the assistance andadvice of a lawyer. There was a goodquestion and answer period at the endof my program.

As local bar associations continuetheir plans to present Senior Law DayPrograms to Senior Citizens in ourcommunities, I recommend coopera-tive efforts with the TRIAD Programsin those communities, in order to com-plement and to enhance the outreachto our Senior Citizens.

Summer 2009 Page 5

ABOUT THE AUTHOR:

Frank Overton Brown, Jr. is PastChair of the VSB Senior LawyersConference and practices law inHenrico County, Virginia.

An attendee reading the revised 2009Senior Citizen’s Handbook.

The relationship between a grandparent and a grandchildcan be one of great joy and importance for both grandpar-ent and youngster. But sometimes an event such as a parent’sdeath, divorce or estrangement can tear families apart, andalter or sever relationships. After such events, the child’s par-ents or guardian may block any further contact withgrandparents, who may then take legal steps to maintaincontact with the grandchildren they love.

As such situations became increasingly common, in the1970s state legislatures began enacting “grandparent visita-tion” statutes to protect the visitation rights of grandparentsand other caretakers. Today, all 50 states have some type ofgrandparent visitation law. These statutes allow grandpar-ents to ask a court to give them the legal right to maintaintheir relationships with their children’s children. Visitationstatutes, however, do not give a grandparent an absoluteright to visitation, and the laws vary widely from state tostate on crucial details such as who may petition for visita-tion rights, under what circumstances a grandparent mayfile such a petition, and on what legal grounds the petitionwill be granted.

States differ on the extent to which parents have a right tocontrol their children’s upbringing. Some states have viewedvisitation by grandparents as only a small infringement onthe right of a parent to raise a child. These states focus onwhat is in the “best interest of the child” in making deci-sions about whether or not to allow grandparents to visit. Inthese “permissive” states, even unrelated caretakers can oftenpetition for visitation rights, and grandparents can seek vis-itation even in cases where the family is intact (i.e., there hasnot been a divorce or a death in the family). In these states,courts may award grandparents visitation rights even if theparents object. Other states are more protective of a parent’sright to decide what is best for the child. These states have“restrictive” visitation statutes, meaning that generally onlygrandparents, not other caretakers, have visitation rights,and these rights may be pursued only if the child’s parentsare divorcing, one or both parents have died, or the childwas born out of wedlock. In other words, in these states theparents in intact families have the final word on whether ornot grandparents are allowed to visit. Still, the “best interest

of the child” is the legal standard in most states for deter-mining whether grandparents should be granted visitation.

There are no firm rules for determining when a court willgrant visitation; every case is decided on its own facts andmerits. Grandparents, however, can take steps to improvetheir chances of gaining visitation rights. In deciding visita-tion cases, courts often consider the previous relationshipbetween the grandparent and grandchild, and they lookfavorably on evidence of a consistent and caring relation-ship. For this reason, a grandparent should try to build ameaningful relationship with a child from the outset. If thechild’s parent rejects the grandparent’s efforts to visit, thegrandparent should keep a record of the grandparent’sattempted contacts and continue to make a reasonable effortto preserve the relationship with the grandchild, like send-ing gifts and cards. When it comes time to meet with anattorney, grandparents should have documentary evidenceand names of witnesses to support their claim that visitationis in the best interest of the child.

The Virginia Code specifically names grandparents as per-sons with a “legitimate interest” in custody and visitationcases. The Virginia Code requires the court to give “primaryconsideration to the best interests of the child,” and sets ahigher standard of proof for persons other than parents, byproviding that: “the Court shall give due regard to the pri-macy of the parent/child relationship but may upon ashowing by clear and convincing evidence that the bestinterests of the child would be served thereby award custodyand/or visitation to any other person with a legitimate inter-est.” The Virginia Code sets out ten factors that the courtmust consider in determining custody and visitation, anddoes not give grandparents a legal right to visit a grandchild,but a right to petition for visitation.

In June 1998, the Supreme Court of Virginia, in the deci-sion of Williams v. Williams, denied parental grandparents’visitation with their granddaughter that was opposed byboth of the child’s parents. The court affirmed the decisionof the lower court that the right of parents in raising theirchildren is a fundamental right protected by the UnitedStates Constitution. The court held that “...before visitationcan be ordered over the objection of the child’s parents, a

Page 6 Summer 2009

GRANDPARENT VISITATION RIGHTS

by Andrew H. Hook, CELA, CFP

court must find an actual harm to the child’s health or wel-fare without such visitation. A court reaches considerationof the best interests standard in determining visitation onlyafter it finds harm if visitation is not ordered.”

In May 1999, the Court of Appeals of Virginia, in thedecision of Dotson v. Hylton, granted the paternal grand-mother visitation with her granddaughter. The visitationwas favored by the child’s father, but was objected to her byher mother. The significant difference in facts between theWilliams decision and the Dotson decision was that in theDotson decision one of the parents favored the visitation.Where both of the living parents of a child object to visita-tion, the Virginia courts require that a grandparent showactual harm to the child without visitation. This is a restric-tive standard.

One way to avoid a court battle is to try professional medi-ation. In mediation, the disputing parties engage the servicesof a neutral third party to help them hammer out a legallybinding agreement that all concerned can live with. The dis-puting parties can control the process, and they have achance to explain their perspectives and feelings. In a court,on the other hand, the judge will ultimately make a decisionbased on laws that may seem unfair to one or both sides.

Summer 2009 Page 7

ABOUT THE AUTHOR:

Andrew H. Hook is a Senior Lawyer and is a Shareholderin the law firm of Oast & Hook, P.C., in Portsmouth,Virginia, concentrating in Elder Law.

VISIT THE SENIOR LAWYERS CONFERENCE WEB SITEThe Senior Lawyers Conference has updated its web site in an effort to continue to serve

our membership of 13,473 lawyers, 55 years of age and older, who focus on issues of interest to senior lawyers and promotion of the welfare of senior citizens, as well as provide resources for the public.

The new SLC site has a number of benefits including faster page loading and automated expiration for time-sensitive items. Please take a look at

http://www.vsb.org/site/conferences/slc/.NEW

WEB SITE

PROJECT 2025: ENHANCED ACCESS TO LEGAL ASSISTANCE

FOR OLDER AMERICANS IN VIRGINIA

Virginia Department for the Aging/Virginia Poverty Law CenterFREE Elder Law CLE Programs

In the Summer and Fall of 2009, as part of Project 2025, the Virginia Poverty Law Center will be presenting, atno charge to attendees, four CLE programs to lawyers who commit to handle for the elderly on a pro bono basis,either three drafting cases (wills, powers of attorney, advance medical directives) or one nursing home transfer/dis-charge case, working with a local Legal Aid Organization.

For more information, including dates and locations of the CLE Programs, contact the Project Coordinator: RobertGardner, MPA, Virginia Poverty Law Center, 700 East Franklin St., Suite 14T1, Richmond, VA 23219, Tel: (804)782-9430, Ext. 32; Fax: (804) 649-3746, e-mail: Robert@vplc.org. Your help is greatly needed.

Page 8 Summer 2009

On behalf of the VSB Senior Lawyers Conference, FrankO. Brown, Jr., Esquire presented his Ethics Program,“Protecting Your And Your Clients’ Interests In The Event OfYour Disability, Death Or Other Disaster” in Luray on March26, 2009, arranged by the Page County Bar Association forlawyers in their geographic region (see photo 1), in Abingdonon March 31, 2009, arranged by the Smyth County BarAssociation for lawyers in their geographic region (see photo2), and in Harrisonburg on May 13, 2009, arranged by theHarrisonburg/Rockingham County Bar Association forlawyers in their geographic region (see photo 3).

If your bar association wishes to have Frank Brown’s pro-gram presented to your members, please call Patricia Sliger,VSB SLC Liaison, at (804) 775-0500. Frank presents thisprogram at no charge to local and specialty bar associations,and it may be presented as a one hour, one and one-half hour,or two hour program, all of which qualify for full MCLEethics credit.

Protecting your and your clients’ interests in theevent of your disability, death or other disaster

Photo 1: Luray

Photo 2: Abingdon

Photo 3: Harrisonburg

The Senior Citizens Handbook is a resource for seniors, their families, andtheir caregivers to provide an overview of and contact information for oppor-tunities and choices facing senior citizens today.http://www.vsb.org/docs/conferences/senior-lawyers/SCHandbook09.pdf

Updated and completely revised, the Senior Citizens Handbook guides sen-iors with a summary of how specific laws affect Virginia’s elder citizens andpractical advice on issues facing seniors today with extensive resources, oppor-tunities, and services available to senior citizens.

Opportunities for seniors? It’s all right here.

Programs presented by the Senior Lawyers Conference utilizing the SeniorCitizens Handbook are available to the public. For more information, toschedule a program, or to order copies of the Senior Citizens Handbookplease call (804) 775-0576.

Production of the Senior Citizens Handbook is made possible in part withthe generous support of the Virginia Law Foundation.

Now available online: the 2009 Edition of The Senior Citizens Handbook