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Bar prep - family law > 5 - children > Flashcards

5 - children Flashcards

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1
Q

children

A 
child support
child custody
non marital children
termination of parental rights and adoption
ART
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2
Q

children - child support

A 
generally
duration of child support
jdx over child support orders
modification of child support orders
tax consequences of child support orders
enforcement of child support awards
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3
Q

children - child support

generally

A
  1. Both parents share equally the duty to support their children based on the CHILD’S need and the ABILITY to pay. An AGR by parents does not meet the needs of the child will NOT be enforced by a court.
  2. Courts have less discretion in child support awards because of the proliferation of child support guidelines.
  3. Majority of jdx follow the INCOME SHARES approach, which considers the # of children and the income of the parents to determine a base line of child support.
  4. Courts are given discretion to add amounts for health insurance and other extraordinary educational expenses. Courts can deviate from the guidelines IF it is in the BIOC.
  5. Child support is paid INDEPENDENT of visitation.
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4
Q

children - child support

duration of child support

A
  1. Generally, age of majority (18) OR
  2. death of child OR
  3. emancipation of child OR
  4. termination of parental rights
    Some states will allow child support to continue past 18yo if the child is still in high school or until some age of completion of education. (not college usually)
    Support may continue for some longer period if the child is disabled.
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5
Q

children - child support

jdx over child support orders

A

UIFSA, original jdx, jdx to enforce, jdx to modify

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6
Q

children - child support
jdx over child support orders
UIFSA

A

Uniform Interstate Family Support Act (UIFSA) has been adopted by all 50 states and DC to simplify the collection of child support when parties move out of state.

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7
Q

children - child support
jdx over child support orders
original jdx

A
  1. Jdx is proper where the 1st petition under UIFSA is filed.
  2. Another state can only exercise jdx IF
    a. The 2nd petition is filed before the time to answer the 1st has expired
    b. The petitioner objected to jdx in the 1st action
    c. The 2nd state is the child’s home state where the child is living.
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8
Q

children - child support
jdx over child support orders
jdx to enforce

A
  1. The issuing court has continuing jdx to enforce
  2. Another state can enforce by
    a. direct enforcement - obligee mails the order to the obligor’s employer in another state and the employer will withhold wages
    b. registration - child support order is registered in another state and is then subject to enforcement in that state.
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9
Q

children - child support
jdx over child support orders
jdx to modify

A

Once the court enters a valid child support order, it maintains CONTINUING EXCLUSIVE JDX during the life of the order UNLESS no parties reside in the issuing state OR the parties consent to another state’s jdx.

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10
Q

children - child support

modification of child support orders

A
  1. Child support is modifiable based on a SUBSTANTIAL CHANGE OF CIRCUMSTANCE affecting the needs of the child OR the ability of the parents to pay.
  2. Like spousal support, a voluntary reduction in income will NOT be a ground for modification. Additionally, past due child support cannot be modified and is NOT a basis for prospective modification.
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11
Q

children - child support

tax consequences of child support orders

A

Child support payments are NOT income and NOT deductible.

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12
Q

children - child support

enforcement of child support awards

A
  1. Child support can be enforced through traditional civil and criminal CONTEMPT proceedings
  2. As a result of federal legislation, parties may seize property, use wage withholding, intercept tax refunds and revoke licenses to enforce child support payments.
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13
Q

children - child custody

A 
Interstate custody and jdx
child custody generally
types of custody and visitation awards
modification of custody
relocation
enforcement of custody awards
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14
Q

children - child custody

interstate custody and jdx

A

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to interstate custody disputes (more than 1 state)
1) Initial award, 2) modification, 3) declining jdx, 4) temporary emergency jdx

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15
Q

children - child custody
interstate custody and jdx
initial award

A

Primary test - home state
home state - either state where child has lived with parent for the last 6 consecutive months OR that state and child is absent from the state but a parent continues to live in that state
If no home state, court can assume jdx if the child has a SIGNIFICANT CONNECTION with the state AND SUBSTANTIAL EVIDENCE of the child’s well-being in the state.
If state w/Home State or significant connection jdx decline, a state can assume deferred jdx.
If no other state exercises jdx, any state can by default

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16
Q

children - child custody
interstate custody and jdx
modification

A

Issuing state exercises CONTINUING EXCLUSIVE JDX
unless:
1. No child or parent continues to reside in the state OR
2. The child no longer has a significant connection w/the state and there is no substantial evidence in the state. (Only issuing state can determine this)

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17
Q

children - child custody
interstate custody and jdx
declining jdx

A
  1. A court may NOT exercise jdx IF
    a. a proper proceeding was already pending elsewhere when petition is filed, unless the other court defers OR
    b. The person seeking to invoke the court’s jdx has engaged in unjustifiable conduct
  2. A court may decline to exercise jdx if it determines it is an inconvenient forum.
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18
Q

children - child custody
interstate custody and jdx
temporary emergency jdx

A

Requirements:

  1. Child is physically present AND
  2. The child has been abandoned OR it is necessary to protect child because child, sibling, or parent is subject to abuse.
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19
Q

children - child custody

child custody generally

A

legal and physical custody
BIOC
factors that courts consider
trial court

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20
Q

children - child custody
child custody generally
legal and physical custody

A

Custody is an umbrella term that includes legal and physical custody.
Legal custody includes the RIGHTS TO MAKE DECISIONS regarding the child.
Physical custody includes the POSSESSION AND CONTROL of the child.

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21
Q

children - child custody
child custody generally
BIOC

A

In any custody or visitation case, the HALLMARK consideration is BIOC.

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22
Q

children - child custody
child custody generally
factors that courts consider

A

Factors that courts consider generally include:

  1. Wishes of the parents (constitutionally protected c/c/c of children)
  2. Child’s preference (12yo are given weight)
  3. Relationship of the child w/parents and siblings and others involved w/parents
  4. Child’s adjustment to home, school and community
  5. Mental and physical health of the parties
  6. Parent who was the primary care giver (but no gender preference)
  7. Any other consideration in BIOC
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23
Q

children - child custody

types of custody and visitation awards

A

joint custody
sole custody
custody to nonparent
visitation

24
Q

children - child custody
types of custody and visitation awards
joint custody

A

Joint custody can mean joint physical custody, joint legal custody, or both.
Joint custody is intended to promote the involvement of both parents in the child’s life
In most jdx, it is encouraged and will be awarded if the parents agree.
If parents are openly hostile or unable to communicate, courts will not award joint custody.
Courts consider a myriad of factors, and also consider geographic proximity, ability to communicate, and whether the parents agree.

25
Q

children - child custody
types of custody and visitation awards
sole custody

A

Sole custody can be awarded to one parent when STRONG EVIDENCE demonstrates that it is in the BIOC.
The other parent will be entitled to reasonable visitation UNLESS harm to the child will result.

26
Q

children - child custody
types of custody and visitation awards
custody to nonparent

A

B/c of constitutional protections afforded a parent, in a custody dispute between a parent and nonparent, the standard is NOT simply BIOC.
The parent is entitled to custody UNLESS the nonparent can show 1) harm to the child OR 2) unfitness (abandonment, neglect, abuse, surrendered custody)
After a finding of harm or unfitness, courts will then perform a best interest analysis.

27
Q

children - child custody
types of custody and visitation awards
visitation

A

After examining joint custody, sole custody, and custody of nonparent, we look at visitation, both parental visitation and nonparent visitation.

28
Q

children - child custody
types of custody and visitation awards
visitation - parental visitation

A 
Absolute denial of visitation to a parent is rare.
Restricting visitation (supervision) is the preference to denial.
29
Q

children - child custody
types of custody and visitation awards
visitation - nonparental

A

Every state has a statute that allows 3rd parties, generally grandparents, to seek visitation.
Nonparent visitation generally applies some extraordinary circumstance, such as divorce, separation, or death.
If a parent is fit, his or her wishes on nonparent visitation are constitutionally protected and must be given special weight.

30
Q

children - child custody

modification of custody

A
  1. Generally brought by motion of a party or the court in the original action. Party seeking the modification bears the burden of proof.
  2. Standard: Whether custody or visitation issue, modification requires SUBSTANTIAL AND MATERIAL CHANGE OF CIRCUMSTANCES affecting the child’s well being since prior determination of custody
  3. Overriding concern: BIOC
    Note: States generally require a certain amount of time to elapse since entry of the order UNLESS the child’s present environment is harmful to the child.
31
Q

children - child custody

relocation

A
  1. Many states have statutes to address the relocation of the primary residence of the child. Statutes generally require NOTICE to the other parent and a court hearing to determine whether relocation is permitted.
  2. To determine relocation, courts will consider whether relocation:
    a. Is in the BIOC (not necessarily the parent’s)
    b. Motivated by a benefit to the family (not animus)
    c. Not intended to thwart the relationship with the other parent (not animus)
32
Q

children - child custody

enforcement of custody awards

A
  1. Violations of custody and visitation can be enforced through civil contempt proceedings
  2. State habeas corpus (limited to physical custody of child)
  3. Suit in equity - asks the court to enjoin conduct in violation of the custody order
  4. Out of state decrees - will be enforced if a certified copy is filed w/the clerk of the court. Will not remove continuing exclusive jdx of another state, but will allow enforcement of the order in the state.
33
Q

children - non marital children

A

generally
presumption of marriage
unwed fathers
paternity suit

34
Q

children - non marital children

generally

A
  1. Children born out of wedlock have increased constitutional protections over the years. Intermediate scrutiny applies in an equal protection analysis (substantial relationship to an important government interest)
  2. A parentage action can be brought to establish a biological relationship and settle issues of paternity. Once parentage is established, the parent owes support and has rights of custody and visitation.
35
Q

children - non marital children

presumption of marriage

A

The husband of the mother is presumed to be the father IF
1. The child is born during the marriage OR
2. The child is born within 300 days of termination of marriage OR
3. The child is born during a void or voidable marriage.
The presumption can be rebutted but requires heightened proof - generally c&c. (DNA, medical impossibility)
In some cases, however, even if H can prove he is not the bio father of the child, many states prohibit disestablishment of paternity based on BIOC

36
Q

children - non marital children

unwed fathers

A

child considered child of unwed father
rights to custody of his child
preclusion from tort recovery

37
Q

children - non marital children
unwed fathers
child considered child of unwed father

A

A child can be considered the child of an unwed father if:

  1. After the birth of the child, the father marries the mother.
  2. The father holds the child out as his bio child
  3. The father consents to his name on the birth certificate
  4. The father acknowledges paternity (usually requires formality, OR
  5. There is a judgment decreeing paternity
38
Q

children - non marital children
unwed fathers
rights to custody of his child

A

Unwed fathers are protected by the Due Process Clause and can have rights to custody of their child if they demonstrate parental responsibility.
This includes acknowledgement of paternity, supervision, education, protection, care, and support.

39
Q

children - non marital children
unwed fathers
preclusion from tort recovery

A

Unwed fathers may be precluded from tort recovery for the death of a child he did not legally recognize.

40
Q

children - non marital children

paternity suit

A
  1. Paternity suits are generally used by unwed mother to obtain child support from the father. Once paternity is established, the father can assert rights of custody and visitation.
  2. SoL is tolled during the minority of the child, so will last at least until the child reaches 18.
  3. Level of proof varies - can be C&C or preponderance
  4. Blood or tissue sampling is the superior method of establishing paternity, but testimonial and other medical evidence can be sufficient.
41
Q

children - termination of parental rights and adoption

A

Termination of parental rights

Adoption

42
Q

children - termination of parental rights and adoption

termination of parental rights

A

voluntary termination

involuntary termination

43
Q

children - termination of parental rights and adoption

voluntary termination of parental rights

A

Parents may voluntarily relinquish all rights to their child, often done in preparation for adoptions.

44
Q

children - termination of parental rights and adoption

involuntary termination of parental rights

A

The state may NOT interfere in family decision making UNLESS the decision endangers the well-being of the child.
The state may seek to terminate parental rights for: infliction of serious physical harm on the child or other children in the household, abandonment, neglect or deprivation, failure to provide support for the child w/o cause for a specified time period (usually a year), mental health of parent that results in inability to care for the child, or parental unfitness.
Generally, parents cannot seek to terminate the rights of the other parent.

45
Q

children - termination of parental rights and adoption

adoption

A

types of adoption
requirements
adoption records
consequences of adoption

46
Q

children - termination of parental rights and adoption

adoption - types of adoption

A

Agency adoption - licensed adoption agency acts as intermediary
Private adoption - private persons act as intermediaries to arrange adoption

47
Q

children - termination of parental rights and adoption

adoption - requirements

A
  1. Termination of bio parents rights
    a. Consent of bio parents required unless i) rights were already terminated or if unreasonably withheld against the BIOC
    b. Consent of unmarried father - required of father is actively involved in child’s life (may not be necessary if parent has abandoned the child, failed to support for a certain length of time, or never attempted to establish a relationship)
  2. Creation of new parents rights
    a. Consent of the adoptee - required in some states for adoptees over a certain age (12 or 14)
    b. Home study (can be waived for relative adoptions)
    c. Payment of money PROHIBITED (except possibly medical costs)
48
Q

children - termination of parental rights and adoption

adoption - adoption records

A

Adoption records are generally sealed unless bio parents consent to contact.

49
Q

children - termination of parental rights and adoption

adoption - consequences of adoption

A

Adoption severs all rights and obligations of bio parents to child and creates duties to adoptive parents and child.
In some states, the adoptive child still has the right to inherit from bio parents in limited situations.

50
Q

children - ART

A 
generally
maternity
paternity
gamete donors
posthumous conception
gestational agreements
51
Q

children - ART, generally

A

Assisted reproductive technology (ART) is often used as an alternative to adoption.
In some cases, it is necessary that a person other than the intended parents is involved (surrogate or gamete provider).
The Uniform Parentage Act now contains provisions related to assisted conception but has not been adopted by many jdx.

52
Q

children - ART

maternity

A

Mother-child relationship is established by:

  1. birth of the child (unless valid gestational AGR)
  2. adjudication of woman’s maternity
  3. adoption by the mother
  4. adjudication confirming mother of child born to a gestational surrogate
53
Q

children - ART

paternity

A

A husband who is married to a woman who has a child through assisted conception is the child’s father UNLESS he proves his lack of consent within 2 yrs after birth.

54
Q

children - ART

gamete donors

A
  1. Egg or sperm donors are NOT parents of a child conceived through ART.
  2. Some jdx have allowed the sperm donor to have rights IF agreed in writing by the DONOR AND the WOMAN.
55
Q

children - ART

posthumous conception

A

If a gamete provider consented IN WRITING that his or her gametes could be used after death to conceive a child, that child can be considered the child of a deceased parent.

56
Q

children - ART

gestational AGRs

A

Some states have failed to enact legislation on surrogacy b/c they characterize the AGR as the sale of a child.
Gestational mother is also referred to as the surrogate.
Gestational mother, her husband (if married), and intended parents MUST enter into a written AGR.
Court MUST approve the AGR if:
Court has jdx, child welfare agency has conducted a home study unless waived, agreement is found to be voluntary, provision has been made for health care costs until birth (AGR cannot limit rights of surrogate to make decisions regarding her health care or that of the fetus). If surrogate is promised consideration, it is reasonable.
If the AGR is unenforceable, the surrogate is considered the mother of the child, regardless of biology.
If the AGR is approved, intended parents must file notice of birth and court will issue an order of parentage.

Bar prep - family law (5 decks)

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