Child Custody

Question 1

Legal Custody

Answer 1

The right of a parent to make major decisions about the child’s life

Question 2

Physical Custody

Answer 2

The right of a parent to have the child reside with that parent and the obligation to provide for routine daily care and control of the child

Question 3

Joint Custody

Answer 3

Parents must both be willing and able to cooperate with respect to the wellbeing of the child

Joint legal custody - neither parent has a right to make major decisions

Joint physical custody - does not necessarily require 50-50 time sharing

Question 4

Home State Jurisdiction (initial custody determination)

Answer 4

A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation order if the state:

1. Is the child’s home state with a parent for at least six consecutive months prior to the custody proceeding (or since birth if child is less than six months old), OR
2. Was the child’s home state in the past six months, and the child is absent from the state, but a parent continues to live in

Question 5

Significant-Connection Jurisdiction

Answer 5

A court can enter or modify an order if:

1. No other state has or accepts home-state jurisdiction
2. The child and at least one parent have a significant connection with the state, and
3. There is substantial evidence in the state about the child’s care, protection, training, and personal relationships

Question 6

Default Jurisdictioin

Answer 6

If no state has jurisdiction through home-state or substantial-connection jurisdiction, court in state with appropriate connections to child has jurisdiction

Question 7

Exclusive-Continuing Jurisdiction

Answer 7

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

Question 8

When a Court Can Decline Jurisdiction

Answer 8

If the court has either initial or exclusive-continuing jurisdiction, it may decline to hear the case if it finds the forum inconvenient

Question 9

Temporary Emergency Jurisdiction

Answer 9

A child is in danger and requires immediate protection

If there is no prior custody order, an emergency order stays in effect until a decision is made by the child’s home state

Question 10

Registration of Another State’s Orders

Answer 10

Need not be accompanied by an enforcement request

Question 11

Expedited Enforcement of a Child-Custody Determination

Answer 11

A hearing is held on the first judicial day after service of the order (or the first possible day)

Question 12

Standard for Determining Child Custody

Answer 12

Best Interests and Welfare of the Child

Question 13

BIC Factors

Answer 13

1. Primary Caretaker
2. Child’s Preference
3. Domestic Violence
4. Siblings (generally not separated)

CANNOT consider race or religion

Parents’ sexual conduct is only relevant if it has or will have a negative effect on the child

Question 14

Third-Party Custody Rights

Answer 14

Presumption in favor of the parent re: entitlement to custody of their child against third parties

Exceptions: the legal parent is unfit or parental custody would be detrimental to the child

Question 15

Noncustodial Visitation

Answer 15

Allowed reasonable visitation with a minor child

Denied only when it would seriously endanger a child’s physical, mental, or emotional health

Restrictions (e.g., denial of overnight visits) mkay be imposed

Question 16

Third Party Visitation

Answer 16

Parent’s decisions regarding third-party visitation is given special weight - parent has fundamental right to control of his/her children

Typically limited to individuals who acted in loco parentis prior to divorce

Grandparent visitation - subject to special weight of parent’s opinion

Question 17

Unwed Biological Father Right to Visitation

Answer 17

Has a fundamental right to have contact with his child IF he demonstrates a commitment to the responsibilities of parenthood

Question 18

Sanctions for Wrongful Denial of Visitation

Answer 18

Compensatory visitation, attorney’s fees, court costs, fines, jail time

Tort damages can be awarded to parent for period of time child is wrongfully out of their custody

Question 19

Custody Modification

Answer 19

1. Change in Circumstances standard
2. Relocation - may be permitted if there is a legitimate and reasonable purpose for the move

Question 20

Parental Consent to Medical Care

Answer 20

Must be obtained regardless of parents marital status except for the case of an emergency

A parent’s religious beliefs can be overridden by a court to prevent serious harm to the child

Question 21

Upbringing Rights

Answer 21

Parent has rights to raise child as she sees fit HOWEVER a court may limit parental decisions to protect the health/safety of the child or if there is a significant social burden