child custody Flashcards
what are the three types of custody?
(1) legal custody
(2) physical custody
(3) joint custody
legal custody
the right of a parent to make major decisions about the child’s life (i.e., health, education, religion)
physical custody
the right of a parent to have the child reside with the parent and the obligation to provide the routine for daily care and control of the child
joint custody
parents must be willing an able to cooperate with and respect the wellbeing of the child
what are the types of joint custody? (2)
(1) joint legal custody
(2) joint physical custody
joint legal custody
neither parent has a superior right to make major decisions
joint physical custody
does not necessarily require 50-50 time-sharing arrangement
what is the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?
to prevent jurisdiction disputes with courts in other states and on matters of child custody and visitation
how is priority given regarding subject-matter jurisdiction regarding child custody?
(1) home state jurisdiction
(2) significant-connection jurisdiction
(3) default jurisdiction - appropriate connections
home state jurisdiction
a court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state:
- is the child’s home state (the state in which the child has lived with a parent or guardian for at least SIX CONSECUTIVE MONTHS prior to the custody proceeding, or since birth, if the child is less than six months old), OR
- was the child’s home state in the past six months and the child is absent from the state, but a parent (or guardian) continues to live in the state
significant-connection jurisdiction
a court can enter or modify an order if:
- no other state has or accepts home-state jurisdiction
- the child and at least one parent have a significant connection with the state, and
- there is substantial evidence in the state about the child’s care, protection, training, and personal relationships
default jurisdiction (appropriate connections)
if no state has jurisdiction through home-state or substantial connection jurisdiction, court in state with appropriate connections to the child has jurisdiction
exclusive-continuing jurisdiction
a court that makes initial ruling has exclusive
jurisdiction over matter until parties no longer reside in state, or child no longer has
significant connection to state
when can a court decline jurisdiction regarding entering or modifying a child custody order?
if court has either initial or exclusive-continuing
jurisdiction, it may decline to hear case if it finds forum to be inconvenient
temporary emergency jurisdiction
If there is no prior custody order, an emergency order remains in effect until a decision
by the child’s home state; applies in instances where the child is in danger or requires immediate protection
enforcement of another state’s orders - registration of another states’ order
does not need to be accompanied by enforcement request
enforcement of another state’s orders - expedited enforcement of child-custody determination
a hearing is held on the first judicial day after service of the order (or on the first possible judicial day)
enforcement of another state’s orders - warrant for child custody
if the child is likely to suffer serious physical injury or be removed from the state
what is the standard for determining child custody?
best interests of the child standard (best interests and welfare of the child)
best interest of the child factors - between parents
the primary-caretaker during the marriage, separation, and prior to the divorce is a factor
best interest of the child factors - race/religion
race and/or religion cannot be used as factors in determining child custody
best interest of the child factors - parents’ sexual conduct
a factor only if the parent’s conduct has or will have a negative effect on the child
best interest of the child factors - third-party rights
parents presumptively entitled to custody of their children in cases against third parties
best interest of the child factors - third-party rights EXCEPTION
the legal parent is unfit or parental custody would be detrimental to the child
best interest of the child factors - child preference
taken into account if the child is of sufficient maturity
best interest of the child factors - guardian ad litem
a court-appointed attorney to advocate for the child’s preferences and act on her behalf
best interest of the child factors - siblings
generally not separated from each other
best interest of the child factors - domestic violence
- almost always a factor
- some states have created rebuttable presumptions in favor of the non-abusive spouse
visitation (parenting time) - noncustodial parent
- allowed reasonable visitation (or “parenting time”) with a minor child
- denial of visitation only when it would seriously endanger a child’s physical, mental, or emotional health
- however, restrictions MAY be imposed (e.g., supervision, denial of overnight visits, etc.)
visitation (parenting time) - noncustodial parent: sexual relationship or cohabitation
can be a basis for a restriction only if there is
an adverse impact on the child
can a parent be denied visitation due to a failure to pay child support?
no
visitation (parenting time) - third parties
- A fit parent has a fundamental right to the care, custody, and control of his children;
the parent’s decisions regarding third-party visitation must be given special weight - Visitation is sometimes granted to stepparents and same-sex nonbiological co-parents
- Typically limited to individuals who acted in
loco parentis (“in [the] place of a parent”)
with the child prior to the divorce
- Typically limited to individuals who acted in
visitation (parenting time) - third parties: grandparent visitation
subject to the special weight given to a fit parent’s decision
visitation (parenting time) - third parties: unwed biological father
has a fundamental right to have contact with his child if he demonstrates a commitment to the responsibilities of parenthood
enforcement of child custody - sanctions
e.g., compensatory visitation, attorney’s fees, court costs, fines, jail time
- Tort damages awarded to parent for the period of time that the child is wrongfully out
of the parent’s custody
what is the standard for modifying child support?
substantial change in circumstances standard (most states)
modification of child support - relocation
may be permitted if there is a legitimate and reasonable purpose for the move
termination of child support
a child-custody order terminates upon the child reaching the age of majority (usually 18)
termination of child support - death of custodial parent
the surviving parent is usually awarded custody of the child
parental consent - medical care
- Parental consent must be obtained regardless of the parents’ marital status except in
the case of an emergency - A parent’s religious beliefs can be overridden by a court to prevent serious harm to the
child
parental consent - upbringing
a parent has a right to raise her child as she sees fit, including decisions relating to the child’s religious upbringing; however, parental decisions may be limited to protect the health/safety of the child or if there is a significant social burden (e.g., contagious illness)
