Child Custody

Question 1

What are the Two Main Tests for Initial Child Custody Determinations?

Answer 1

Primary Test — Home State Jurisdiction — A court has jurisdiction to initially enter or modify a child custody or visitation order if the state:

1. Is the child’s home state OR
2. Was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (a guardian) continues to live in the state

When “Home State” Rule Does Not Apply— A court has jurisdiction to enter or modify a child custody or visitation order if no other state has or accepts home state jurisdiction and:

1. The child and at least one parent (or person acting as a parent) have a significant connection with the state
2. Substantial evidence concerning the child is available in the state

Question 2

Which Court has Jurisdiction to Modify an Existing Child Support Decree?

Answer 2

The issuing court has continuing exclusive jurisdiction.

Another state can only exercise jurisdiction if:

1. No child or parent (or persons acting as parents) continues to reside in the issuing state OR
2. The child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state.

Question 3

When can a Court exercise Temporary Emergency Jurisdiction?

Answer 3

A court may exercise temporary emergency jurisdiction if the child has been abandoned or it is necessary in an emergency to protect the child because the child, sibling, or parent is subjected to or threatened with abuse.

Question 4

What are the Main Custody Terms?

Answer 4

• Legal Custody: The right to make major decisions affecting the child’s life
• Physical Custody: Actual possession and control of the child
• Joint Custody can mean either joint legal custody, joint physical custody, or both.

Question 5

What are the Main Factors Examined with the Best Interest of the Child Standard?

Answer 5

The standard applied in awarding custody and visitation is the best interest of the child. Factors considered in making that determination usually include:

1. The wishes of the parents
2. Child’s preference (generally only preferences of children over the age of 8 are considered)
3. Child’s relationship with parents, siblings, and others involved with parents
4. Child’s adjustment to home, school, and community
5. Parties’ mental and physical health
6. Who has been the child’s primary caregiver

Question 6

What are the Two Main Torts for Interference with the Parent-Child Relationship?

Answer 6

1. Tortious Injury: A child may not recover against one who tortiously injures their parent, BUT a parent may recover when a child is tortiously injured.
2. Interference with Custody: A parent whose lawful custody is interfered with may recover tort damages in actions for abduction or enticement. In addition, parties who conspire to conceal information about a newborn child’s birth or location may be held liable for their participation in a civil conspiracy.

Question 7

What are the Main Types of Custody?

Answer 7

1) Joint Custody — There are many iterations of joint custody, including joint physical custody and joint legal custody.

2) Sole Custody: Sole custody can be awarded to one parent if there is strong evidence that demonstrates it is in the best interest of the child.

• Visitation — When sole physical custody is given to one parent, the other parent is ALMOST always entitled to reasonable visitation.

3) Custody to a Nonparent: In disputes between parents and third parties, the decision does not rest solely on the child’s best interest. A natural parent has a constitutional right to raise their child.

• Absent voluntary relinquishment, the parent is entitled to custody unless the nonparent can show that it will result in harm to the child or that the parent is unfit. However, based on special circumstances (abandonment, neglect, or abuse), a court may find that the biological parent has lost the right to rear the child, and the nonparent should get custody.

Question 8

What are the Factors Examined when Considering Whether Joint Custody is Appropriate?

Answer 8

When determining whether joint custody is appropriate, courts often consider:

1. The fitness of both parents
2. Whether the parents agree on joint custody
3. The parents’ ability to communicate and cooperate concerning the child’s well-being
4. The child’s preference
5. The level of involvement of both parents in the child’s life
6. The geographical proximity of the two homes
7. The similarity or dissimilarity of the homes
8. The effect of the award on the child’s psychological development
9. The parents’ ability to physically carry out the joint custody order

Question 9

Are Child Custody Orders Modifiable?

Answer 9

Custody orders are always modifiable. The burden of proof is on the party seeking the change.

• Generally, custody awards will be modified only if there has been a substantial and material change in circumstances affecting the child’s well-being.
• As always, the child’s best interest is the overriding concern.

Question 10

How are Child Custody Orders Enforced?

Answer 10

Child custody awards may be enforced by contempt proceedings, state habeas corpus proceedings, and suits in equity. Further, under the UCCJEA, out-of-state decrees will be enforced if a certified copy has been filed with the clerk of court; this won’t remove the original state’s continuing exclusive jurisdiction, but it will allow enforcement of the order in the state.