§ 31-8.1. Parental duty of support
A. Notwithstanding the provisions of § 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 parent, except to the extent that the distribution is authorized by (i) the deed, will or other instrument under which the estate is derived, or (ii) the court, upon a finding that (a) the parent is unable to completely fulfill the parental duty of supporting the child, (b) the parent cannot for some reason be required to provide such support, or (c) a proposed distribution is beyond the scope of parental duty of support in the circumstances of a specific case. The existence of a parent-child relationship shall be determined in accordance 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 the procedures governing a civil action; 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 14. No attorneys' fees shall be taxed in the costs, nor shall there be any writ tax upon the petition. The court may fix reasonable attorneys' 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 as provided in subdivision A 18 of § 17.1-275 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; 2002, c. 832; 2005, c. 681.)
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