child custody Flashcards
uniform child custody jurisdiction and enforcement act
exclusive jurisdictional basis for making a child custody determina- tion—physical presence of, or personal jurisdiction over, a party or child is not necessary or sufficient to exercise jurisdiction.
jurisdiction of child-related matter in divorce suit
When a divorce suit is filed in circuit court and child-related matters are at issue, JDR court is divested of jurisdiction, and the circuit court will determine these issues
— UNLESS both parties agree to a referral.
child custody jurisdiction according to UCCJEA
PRIMARY TEST = home state jurisdiction
– a court has jurisdiction to initially enter or modify a child custody or visitation order if the court is in the home state of the child
– home state = child has lived with parent for at least 6 months [or since birth if child under 6 months]
– if no state meets that test, jurisdiction is proper in the state that was the home 6 months ago
EXCLUSIVE AND CONTINUING JURISDICTION
- the court that made initial child custody or visitation determination has continuing and exclusive jurisdiction to modify the order until:
(a) neither child nor parent resides in the state
(b) the child has no more significant connection with the state and substantial evidence relating to the child not available in the state
[so original court has jurisdiction so long as child has significant connection with 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:
(a) The child and at least one parent (or a person acting as a parent) have a significant connection with the state AND
AND
(b) Substantial evidence concerning the child is available in the state
temporary emergency jurisdiction for abandonment or abuse
A court has temporary emergency jurisdiction if the child has been abandoned in the state or jurisdiction is necessary in an emergency to protect the child because the child, a sibling, or a parent is subject to or threatened with abuse.
how to decide whether to grant custody
best interest of the child standard
no presumption in favor of either parent
no preference for awarding custody to same gender
joint custody of both parents or exclusive custody of one parent
DISCRETIONARY FACTORS
* The physical/mental/emotional condition of the child and both parents
- Relationships
- Cooperation with visitation (that is, willingness to allow the other parent access to the child)
- Child’s preference
Courts are more likely to consider the wishes of older children (usually, age 12 and up). The judge will usually interview the child in chambers and will take the child’s expressed preference into account as part of the best interests analysis. - New partner of parent (that is, whether a parent’s new partner is someone that the court would be comfortable having around the child)
- Placement of siblings
- History of violence or abuse
issues considered when considering joint custody
location
ability to cooperate
disputes between parents and non parent
Technically, the best interest of the child standard applies even when a NONparent seeks custody.
BUT there’s a presumption that keeping the child in the custody of the biological parent is in the best interest of the child.
To overcome that presumption, the nonparent petitioner typically must show that the biological parent is UNFIT.
parental relocation
The court requires 30 days’ advance written notice of plans to relocate.
The court will only permit the child to be removed from the state of Virginia if the relocating parent can show that it is in the best interest of the child.
Parental relocation may lead to a change of custody. The court can modify the terms of the custody arrangement in order to ensure that the non-custodial parent’s relationship with the child remains contin- uous and meaningful.
modification of custody order
change in circumstances that affects the best interests of the child
ex: consider child’s interest in a stable situation, certainty, regularity, schools, etc.
rules for visitation
parental
non parental
PARENTAL VISITATION
– noncustodial parental visitation rarely denied
– only denied if poses danger to the child (and even then, courts will order supervised visitation)
NONPARENTAL VISITATION
– parents have a constitutional right under DPC to raise kids as they see fit = parent’s determinations regarding third-party visitation [including grandparents] is given special weight
– to override parent’s objections, non parents must show
(a) visitation is in BIC
and
(b) denial of visitation would cause detriment to the child [concrete negative effect constitutes state interest sufficient to overcome parental objection]
** if both parents oppose, third party must show that denial of visitation would cause actual harm to the child
foster care visitation
Virginia has a specific statute that allows courts to grant visitation rights to the natural parents or grandparents of a child who is in foster care if there was an ongoing relationship between the party seeking visitation and the child before the child was placed in foster care and the court finds that visitation is in the child’s best interests.
