Child Custody

Question 1

what is physical custody?

Answer 1

where child resides

Question 2

what is legal custody?

Answer 2

decision-making authority

Question 3

what is a parenting plan?

Answer 3

Written agreements by which parents specify caretaking and decision-making authority and how future disputes are to be resolved.

Many jurisdictions require parents to submit parenting plans to court.

Question 4

what is the tender years presumption?

Answer 4

The presumption that a child under a certain age should be with his/her mother

the court decided:Tender years presumption is gender-based presumption that violates Equal Protection

modern rule:Most courts award custody regardless of child’s gender.

Question 5

what is the prevailing test in child custody decisions?

Answer 5

➢Best Interests of the Child (Standard based on statutory factors)

Question 6

what are the ALI principles for child custody?

Answer 6

i. Prohibits courts from using certain factors in custody decision-making:
1. gender of either parent or child
2. race or ethnicity of the child, parent, or other in the household
3. sexual orientation or extramarital sexual conduct absent showing that such conduct causes harm to the child

Question 7

Florida’s Best Interest of the Child

Answer 7

ii. Florida’s Best Interest of the Child
1. Standard for custody and support
a. Neither parent has superior claim
2. Factors:

a. Ability to provide stable home for the child

b. Child’s preference (no age requirement where child has absolute choice)

c. Each parent’s willingness to allow visitation (“Friendly Parent” provision)

d. (and other factors)

Question 8

Constitutional factors in child custody

Answer 8

Race: The Supreme Court determines that reliance on race as the decisive factor in custody decisions violates equal protection.

Religio:
1) Religion can be one, but not sole, factor in custody decision
2) religion may be considered to extent that it affects child’s secular well-being
3) religion may be considered only for children with religious preferences or for whom religion is important part of identity

Although courts cannot favor one parent’s religion over the other’s, courts may examine the EFFECT of a religious belief or practice on the child.

Question 9

free exercise clause?

Answer 9

court cannot interfere with parents right to practice religion or not to practice any religion

Question 10

establishment clause

Answer 10

requires separation between church/state and forbids excessive government entanglement with religion (ex. Court cannot weigh merits of parents’ religions)

Question 11

How do courts treat issues of sexual orientation in custody decisions?

Answer 11

1)irrebuttable presumption of unfitness (per se rule)
(2)rebuttable presumption of unfitness that requires other parent to prove the absence of harm
(3)parent’s sexual orientation must have adverse impact to deny custody(nexus test) –majority view

*UMDA: parent’s sexual conduct is relevant to custody only if the conduct has an adverse effect on the child

Question 12

Domestic Violence and Custody:

Answer 12

i. Domestic violence is a factor in best interest analysis
ii. Domestic violence creates a rebuttable presumption against
awards of custody to abusive parent
1. Rebuttable presumption = must prove otherwise
iii. Rebuttable presumption exists if court finds credible evidence of DV and:
1. There is one incident which resulted in serious bodily injury; or

2. Involved use of dangerous weapon; or
3. There exists pattern of DV within reasonable time proximate to proceeding

Question 13

Fitness Factors for Fit Parents:

Answer 13

a. Fault (traditional view)
b. Parent-child relationship (bond, caretaking)
c. Mental physical health of parents
d. Sexual conduct (extramarital conduct, sexual orientation)
e. Domestic violence
i. Some look at conviction
ii. Some look at convictions and arrest
iii. And who the victim was (mother or child)
iv. or if children observed the DV
v. Depends on state statute
2. Sexual Orientation

Question 14

Florida and DV:

Answer 14

1. Custody should be shared unless detrimental to child
2. Rebuttable presumption created if parents has been convicted of a DV misdemeanor or higher
   a. If presumption exists and is not rebutted, parent will not have custody or visitation

Question 15

Factors used to overcome DV Presumption:

Answer 15

1. Batter’s treatment program
2. Substance abuse counseling, or parenting classes
3. Compliance with conditions of probation or parole
4. Compliance with conditions of restraining order
5. No further acts of DV

Question 16

what is the friendly parent provision?

Answer 16

Requiring courts to consider which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent

Question 17

disability as a Custody Factor:

Answer 17

Modern view: focuses on effect of the parent’s disability on the child (like nexus view)

Question 18

Joint custody

Answer 18

*Shared parenting” (both physical and legal custody is joint custody)

Court will always want to assign joint custody, when available, unless one of the factors shows it is not in the best interest of the child
1. Rule: One conflict does not warrant a trial court’s finding of an inability to cooperate

Question 19

Visitation rules

Answer 19

Modern view: Noncustodial parent is entitled to visitation

• Courts can impose condition on visitation
• Courts have broad discretion in fashioning visitation orders:
  ➢Time, place, circumstances of visitation
  ➢Conditions on visitation

Procedurally, if one parent requests court to order restrictions, that parent bears burden of proof about need for restriction.

Question 20

Visitation un UMDA

Answer 20

(a) A parent not granted custody of the child is entitled to reasonable visitation rights unlessthe court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral, or emotional health.

(b) The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health.

Question 21

Supervised Visitation:

Answer 21

1. Some states create rebuttable presumption against unsupervised visitation if parent presents credible evidence of physical or sexual abuse
2. At some point, supervised visitation can evolve to unsupervised visitation
3. Conditions that can move from supervised to unsupervised AND conditions that can be in place in order to have visitation
   a. Substance abuse program
   b. Anger management program
   c. Completion of batters’ intervention program
   d. Religious exercise
   e. Sexual conduct (LGBT; ex: child cannot be present with mother and girlfriend)
   f. Substance abuse
   g. Smoking

Question 22

Restriction on visitation

Answer 22

Where there is strong evidence that a parent committed child sexual abuse, any visitation granted must adequately protect the child by being supervised by monitors satisfactory to all parties and by taking place in a specified location.

Question 23

Denial of visitation

Answer 23

Child custody and visitation decisions should be guided by the best interests of the child. They are not intended to be punitive.

• The courts may deny or condition continuing visitation on the grounds of parental neglect.

i. Court retains jurisdiction of child custody and support and uses its contempt power to enforce (say on exam)
ii. Courts can sometimes deny visitation:
1. Must be a serious situation because both parents have equal right to the custody and care of their child

Question 24

Can a court suspend visitation for a parent’s nonpayment of support?

Answer 24

Rule: Denial of visitation is warranted only when the noncustodial parent is financially able to support his children but refusesto do so.

*Some courts require: willful and intentional failure to pay support which is detrimental to child.

Visitation generally will not be conditioned upon payment of child support.

Question 25

Statute and case law permit visitation rights to the following parties but often under certain conditions:

Answer 25

➢Grandparents
➢Stepparents
➢Siblings
➢Second parents

Question 26

Custodial interference

Answer 26

i. Can be considered a tort or a crime

ii. Someone can sue for interference in civil tort claim for money lost

iii. Criminal = to punish/ Deters people from interfering with custodial agreements

iv. CA statute:
1. A parent who is a victim of custodial interference may be awarded reasonable expenses to compensate for other parents interference with visitation right (plus fees)
a. Requires 3 occurrences within prior 6 months

Question 27

what are the Remedies for Custodial Interference:

Answer 27

Remedies for Custodial Interference:
1. Make-up parenting time
2. Abatement of support duty
3. Payment of attorney’s fees to collect
4. Attendance at parenting class
5. Community service
6. Change of custody (if not friendly parent)
7. Termination of parental rights

Question 28

Concealment is a Defense to Support

Answer 28

Child support does not accrue during period of concealment if:
➢active concealment continues until majority,
➢noncustodial father makes diligent efforts to locate custodial parent and child.
*Effect: custodial parent is estoppedto collect arrearages

Question 29

What are the different custody modification standards?

Answer 29

(1) Substantial change in circumstances
(2) UMDA: serious endangerment for nonconsensual changes or 2 years wait
(3) Best interests test