Child Custody Flashcards
what is physical custody?
where child resides
what is legal custody?
decision-making authority
what is a parenting plan?
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.
what is the tender years presumption?
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.
what is the prevailing test in child custody decisions?
➢Best Interests of the Child (Standard based on statutory factors)
what are the ALI principles for child custody?
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
Florida’s Best Interest of the Child
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)
Constitutional factors in child custody
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.
free exercise clause?
court cannot interfere with parents right to practice religion or not to practice any religion
establishment clause
requires separation between church/state and forbids excessive government entanglement with religion (ex. Court cannot weigh merits of parents’ religions)
How do courts treat issues of sexual orientation in custody decisions?
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
Domestic Violence and Custody:
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
- Involved use of dangerous weapon; or
- There exists pattern of DV within reasonable time proximate to proceeding
Fitness Factors for Fit Parents:
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
Florida and DV:
- Custody should be shared unless detrimental to child
- 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
Factors used to overcome DV Presumption:
- Batter’s treatment program
- Substance abuse counseling, or parenting classes
- Compliance with conditions of probation or parole
- Compliance with conditions of restraining order
- No further acts of DV
what is the friendly parent provision?
Requiring courts to consider which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent
disability as a Custody Factor:
Modern view: focuses on effect of the parent’s disability on the child (like nexus view)
Joint custody
*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
Visitation rules
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.
Visitation un UMDA
(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.
Supervised Visitation:
- Some states create rebuttable presumption against unsupervised visitation if parent presents credible evidence of physical or sexual abuse
- At some point, supervised visitation can evolve to unsupervised visitation
- 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
Restriction on visitation
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.
Denial of visitation
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
Can a court suspend visitation for a parent’s nonpayment of support?
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.
