Child Custody

Question 1

Adoption - unwed father

Answer 1

Generally, a child may not be adopted without consent from both biological parents. Whether consent of an unwed father is needed depends on his involvement with the child. If an unwed father demonstrates commitment to parenthood by participating in child rearing, the relationship between the father and child is protected by due process. Factors to be considered with respect to the father’s involvement include:
1. whether the parents lived together (or whether the father visited regularly);
2. whether the father admitted paternity;
3. whether the father paid child support; and
4. whether the father had any responsibility for supervision, education, protection, or care of the child.
An unwed father has no right to block adoption if he is not actively involved with the child or is found to be an unfit parent.

Question 2

Child custody factors considered by the court in awarding custody

Answer 2

The standard applied in awarding custody is the best interests of the child. The factors considered in making this determination include:
1. the wishes of the parents
2. the wishes of the child (although the preference of a young child is often given little weight, the preference of a child over 12 is usually given great weight)
3. the interrelationship of the child with his parents, siblings, and others
4. the child’s adjustment to home, school, and community; and
5. the mental and physical health of all individuals involved.
Many courts grant custody to the primary caregiver.

Question 3

When can a custody order be modified (aside from jurisdictional issues)?

Answer 3

Modification of a custody order must be done with the best interests of the child in mind. Removal of a child from the jurisdiction is a substantial, material change of circumstances warranting modification of the custody order. The court will follow the best interest of the child standard in fashioning a custody and visitation schedule. Courts consider:

1. the parents’ wishes
2. the child’s wishes
3. relationship of the child with each parent
4. the child’s adjustment to home, school, and community
5. the mental and physical health of the parties.

Question 4

Paternity of a child born from artificial insemination of a wife by donor sperm during a legal marriage

Answer 4

Under the Uniform Parentage act, the spouse of a woman who bears a child through assisted reproduction is the child’s legal parent, unless within 2 years after learning of the child’s birth he commences an action in which it is determined that he did not consent to the assisted reproduction. There is a rebuttable presumption that the child of a married woman is the martial child of her spouse. In a custody dispute between a parent and a nonparent, courts give great weight to the interests of the parent. Custody does not turn on the child’s best interests alone, as in disputes between parents. The prevailing view is that a parent has the right to custody over a nonparent, absent voluntary relinquishment, unless it is shown that the parent is unfit.

Question 5

Paternity of a child born during wedlock as a result of a wife’s affair

Answer 5

There is a rebuttable presumption that the child of a married woman is the marital child of her spouse. A parent generally has the right to custody over a nonparent. The presumption of a husband’ paternity can be rebutted by a preponderance of the evidence in some states and clear and convincing evidence by others. Most states have ruled that when a child has been left with a third party to rear, the biological parent has lost the right to rear the child, and the best interests test should apply.