7. Child Custody (UCCJEA/PKPA)

Question 1

What is required for state to enforce child custody orders?

Answer 1

Home state jurisdiction

• Child domiciled in state (at least 6 consecutive months before proceedings)
• Child domiciled in state during last 6 months + Parent/Guardian domiciled in state

NO home state jurisdiction

1) NO other state accepts home state jurisdiction/State has jurisdiction + petition already filed in State
2) Child + Parent have significant connection with State
3) Available substantial evidence re child care in State

Question 2

What methods of enforcement are available for states?

Answer 2

Single state

• Contempt proceedings
• State habeas corpus proceedings
• Suits in equity
• Uniform Child Custody & Jurisdiction Enforcement Act (UCCJEA) (avoid jurisdictional disputes/promote interstate cooperation/facilitate interstate enforcement)

Sister state
- Federal Parental Kidnapping Prevent Act (PKPA) (avoid jurisdictional disputes/discourage ‘forum shopping’ by parents dissatisfied with existing custody order pursuant to child’s home state)

Question 3

When may jurisdiction be denied to a state for enforcement?

Answer 3

Inconvenient forum + more appropriate forums available

Unjustifiable conduct (wrongfully taking child from state)

Question 4

What is required for modifying child custody orders?

Answer 4

Burden of proof => Applicant

1) Elapsed time/Endangered child (emotionally/physically/mentally)
2) Substantial/Material change in circumstances

Question 5

How may court grant single child custody?

Answer 5

Child’s best interests (court must provide substantial assistance in reaching interests => Then appoint counsel/guardian)

• Child’s wishes (at least 12 years of age)
• Parents’ wishes
• Child’s relationship with parents
• Child’s adjustment to home/school/community
• Child’s physical/mental health
• Gender (Tender Years doctrine - Grants mother custody unless gender bias found/unfit mother)
• NOT adultery/financial ability

Primary caregiver (two qualified parents)

Question 6

How may court grant joint child custody?

Answer 6

Parents' fitness
Parents' agreement
Communication with child
Child's wishes (at least 12 years of age)
Parents' involvement
Geographical proximity
Similarity of homes
Effect on child's psychological development
Child's physical capacity

Question 7

How may court grant TP child custody?

Answer 7

Unfit parent

Full abandonment

Physical incapacity (NOT depression)

Question 8

How may court grant visitation rights?

Answer 8

Child’s best interests (court must provide substantial assistance in reaching interests => Then appoint counsel/guardian)

• Child’s wishes (at least 12 years of age)
• Parents’ wishes
• Child’s relationship with parents
• Child’s adjustment to home/school/community
• Child’s physical/mental health
• Gender (Tender Years doctrine - Grants mother custody unless gender bias found/unfit mother)
• NOT adultery/financial ability

Question 9

Who may exercise visitation rights?

Answer 9

Biological parent (fit) (SDP rights)

TP (stepparent)
- TP child custody

Question 10

How may court limit visitation rights?

Answer 10

Injury to child (rare absolute denial)

Removal of child from state (motivated by benefit to parent)

In child’s best interests + TP-child relationship