Child Custody

Question 1

What are the definitions of:
- legal custody
- physical custody

Answer 1

Legal custody -> the right of a parent to make major decisions about the child’s life (e.g., health, education, religion)

Physical custody -> the right of a parent to have the child reside with the parent and the obligation to provide for routine daily care and control of the child

Question 2

How does joint custody work?

What’s the difference between joint legal custody and joint physical custody?

Answer 2

Joint custody
-> parents must both be willing and able to cooperate with respect to the wellbeing of the child

Joint legal custody - neither parent has a superior right to make major decisions about the child’s life.

Joint physical custody - does not necessarily require 50-50 time-sharing arrangement but both parents have the right to have the child live with them.

Question 3

What is the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act?

Answer 3

To prevent jurisdictional disputes with courts in other states on matters of child custody and visitation

Question 4

What is the initial custody determination jurisdiction (home state jurisdiction) ?

Answer 4

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

-> is the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old),

OR

-> was the child’s home state in the past six months, and the child is absent from the state, but a parent (or guardian) continues to live in the state

Question 5

What is the significant-connection jurisdiction?

Answer 5

A court can enter or modify an order IF

-> no other state has or accepts home-state jurisdiction

-> the child and at least one parent have a significant connection with the state

AND

-> there is substantial evidence in the state about the child’s care, protection, training, and personal relationship

Question 6

What is the default jurisdiction?

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

What is 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

Can a court decline jurisdiction? For what reason?

Answer 8

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

Question 9

How does temporary emergency jurisdiction work?

Answer 9

Child in danger, requires immediate protection

Question 10

For how long does an emergency order stay in effect for?

Answer 10

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

Question 11

How does registration of another state’s orders work?

Answer 11

Registration of another states’ order -> need not be accompanied by enforcement request at the same time.

Question 12

When can a court grant a warrant to one party in order to take immediate physical possession of the child?

Answer 12

Warrant for child custody -> if the child is likely to suffer serious physical injury or be removed from the state

Question 13

When does an expedited enforcement of a child-custody determination hearing happen?

Answer 13

Expedited enforcement of a child-custody determination -> a hearing is held on the first judicial day after service of the order (or on the first possible judicial day)

Question 14

What is the best-interests- of-the-child standard?

Answer 14

Standard for determining child custody -> “best interests and welfare of the child”

Question 15

In the following situations, what is presumed to be in the best interest of the child?

-> between parents
-> between parents and third-party
-> child’s preference
-> siblings
-> domestic violence from one parent

Answer 15

Between parents -> the primary-caretaker during the marriage, separation, and prior to the divorce is a factor

Third-party rights
-> parents presumptively entitled to custody of their children in cases against third parties
—-> Exceptions - the legal parent is unfit or parental custody would be detrimental to the child

Child’s preference -> taken into account t if the child is of sufficient maturity

Siblings -> generally not separated from each other

Domestic violence -> almost always a factor
—-> some states have created rebuttable presumptions in favor of the nonabrasive spouse

Question 16

What factors can never be considered when determining what is in the best interest of the child?

Answer 16

Race, religion -> cannot be used as factors in determining custody

Question 17

Can the parents’ sexual conduct be a factor in determining what is in the best interest of the child?

Answer 17

Parents’ sexual conduct -> a factor only if the parents conduct has or will have a negative effect on the child

Question 18

What is a guardian ad litem?

Answer 18

Guardian ad litem -> a court-appointed attorney to advocate for the child’s preferences and act on her behold

Question 19

How does visitation for noncustodial parents work? What are they reasonably allowed?

What are restrictions?

When can they be enforced?

Answer 19

Allowed reasonable visitation (or “parenting time”) with a minor child

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

Circumstance that can allow for restrictions to arise out of -> sexual relationship or cohabitation - can be a basis for a restriction only if there is an adverse impact on the child

Question 20

Under what circumstances is denial of visitation allowed and under what circumstances is it never allowed?

Answer 20

Allowed -> denial of visitation only when it would seriously endanger a child’s physical, mental, or emotional health

Not allowed -> parent cannot be denied visitation due to a failure to pay child support

Question 21

How does visitation for third parties work?

-> Stepparents and same-sex nonbiological co-parents

-> Grandparents

-> Unwed biological father

Answer 21

A fit parent has a fundamental right to the care, custody, and control of his children; the parent’s decisions regarding third-party visitation must be given special weight

Visitation is sometimes granted to stepparents and same-sex nonbiological co-parents
-> typically limited to individuals who acted in loco parentis with the child prior to the divorce

Grandparent visitation -> subject to the special weight given to a fit parent’s decision

Unwed biological father -> has a fundamental right to have contact with his child if he demonstrates a commitment to the responsibilities of parenthood

Question 22

What are the sanctions used to enforce visitation rights?

Answer 22

Sanctions
-> compensatory visitation, attorney’s fees, court costs, fines, jail time
-> tort damages awarded to parent for the prior of time that the child is wrongfully out of the parent’s custody

Question 23

When can you modify a child custody order?

Answer 23

Change-in-circumstances standard (most states) in which an unforeseen and substantial change allows for the modification to take place?

Question 24

Can relocation be permitted under the child custody order?

Answer 24

Relocation may be permitted (minority of states think this is an inherent right) if there is a legitimate and reasonable purpose for the move.
-> relocation can’t be done to prejudice a noncustodial parent’s visitation rights with child.

Question 25

When is visitation terminated?

Answer 25

A child-custody order terminates upon the child reaching the age of majority

Question 26

What happens to the child at the death of the custodial parent?

Answer 26

Death of custodial parent - the surviving parent is usually awarded custody of the child

Question 27

Under what situation does a third party need parental consent?

Answer 27

Medical care
-> parental consent must be obtained regardless of the parents’ marital status except in the case of an emergency

Question 28

Under what circumstance can a parent’s religious belief be overrode by the court?

Answer 28

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

Question 29

Under what circumstances can a parent’s right to oversee the upbringing of their child be overrode by the court?

Answer 29

Upbringing
-> a parent has a right to raise her child as she sees fit, including decisions relating to the child’s religious upbringing; however, parental decisions may be limited to protect the health/safety of the child or if there is a significant social burden (e.g., contagious illness)