Child Custody Flashcards
Types of Child Custody
Legal Custody: the right of a parent to make major decisions regarding their child (e.g., health, education, religion)
Physical Custody: the right to have the child reside with a parent or guardian and the obligation to provide routine daily care and control of the child.
Joint Custody: both parents are willing and able to cooperate with respect to the wellbeing of the child; typically, neither parent has a superior right to make major decisions.
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
The purpose of the UCCJEA is to dictate which court has jurisdiction to decide child custody and visitation.
1) Initial Custody Determination (Home-State Jurisdiction)
- A court has subject matter jurisdictions if it is (a) the child’s home state (and has been the home state for a period of six months or since birth, if the child is less than six months old); or (b) was the child’s home state in the past six months, and the child is absent from the state, but one of the parents still lives there.
2) Significant-Connection Jurisdiction (If Home-State Jurisdiction is NOT met)
- A court can enter or modify an order if (a) no other state has or accepts home-state jurisdiction, (b) the child and at least one parent have a significant connection with the state, and (c) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.
3) Exclusive Continuing Jurisdiction
- Courts that make the initial ruling in a custody case have exclusive continuing jurisdiction over the matter until the court determines that (a) both parties no longer reside in the state, or (b) the child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state.
Best Interests of the Child Standard
Many courts consider who the primary caretaker of the child was during the marriage, separation, and prior to the divorce.
Courts will consider the wishes of an older child if sufficiently mature and will consider the child’s reasoning.
Courts will generally NOT use race or religion in determining custody.
Third Party Rights
Legal parents are presumptively entitled to custody of their children, unless it can be established that the legal parent is unfit or it would be detrimental to the child.
If a natural parent has had little to no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption.
Visitation and Parenting Time
Generally, the noncustodial parent is allowed reasonable visitation with a minor child.
Parents have a constitutional right to visitation with their children.
A court may deny visitation if contact would seriously endanger a child’s physical, mental, or emotional health.
Unwed Bio Father: has substantive due process rights to have contact with child, but ONLY WHEN the father demonstrates a commitment to the responsibilities of parenthood.
Third Parties: visitation typically limited to cases in which they have acted in loco parentis with the child prior to the divorce.
Relocation
If the custodial parent is proposing to relocate with the minor child in a way that impairs the noncustodial parent’s ability to visit the child, they must show a legitimate and reasonable purpose.
Court will consider factors such as:
- the best interests of the child
- the relationship of the non-relocating parent with the child
- age and needs of the child
- the child’s preference
- the quality of life of relocating parent and child
- each parent’s motive
Trend: allow a parent to relocate, provided there is a legitimate reason
Modification of Custody Order
The Home-State Jurisdiction has exclusive continuing jurisdiction.
The parent seeking modification must show A SUBSTANTIAL CHANGE IN CIRCUMSTANCES.
