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July Exam - Family Law > Child Custody > Flashcards

Child Custody Flashcards

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1
Q

Uniform Child Custody Jurisdiction and Enforcement Act - Purposes

A
  • UCCJEA
  • avoid jurisdictional disputes re child custody + violation
  • promote interstate cooperation
  • facilitate the interstate enforcement of custody + visitation orders
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2
Q

Home State Jurisdiction

A
  • FREQUENTLY TESTED
  • primary test for figuring out whether court has jurisdiction for initial custody determination

Court has jur to initially enter or modify a child custody or visitation order if the state:
- is the child’s home state OR
- was the child’s home state w/in past 6 months + the child is absent from the state, but a parent or person acting as a parent (guardian) continues to live in the state

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3
Q

Child’s Home State

A
  • the state in which the child lived w/ a parent (or person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding (or the state where the child has lived since birth if the child is younger than 6 months old), disregarding temporary absences
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4
Q

When “Home State” Rule Does Not Apply

A

Court has jur to enter or modify a child custody or visitation order if no other state has or accepts home state jurisdiction AND:
- child + at least one parent (or person acting as a parent) have a significant connection w/ the state, AND
- substantial ev concerning the child is available in the state

  • also, ct has jur to enter or modify a child custody or visitation order if no other state has jur under another test or if another state w/ jur defers
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5
Q

Modification of Existing Decree

A
  • issuing court has continuing exclusive jur

Another state can only exercise jur if:
- no child or parent (or persons acting as parents) continues to reside in the issuing state OR
- the child no longer has a significant connection w/ the issuing state AND substantial ev relating to the matter is no longer available in the state
-> only the issuing state can decide if this second test is met

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6
Q

Declining Jurisdiction

A

Ct that has jur under one of the above tests may decline to exercise its jur if it determines:
- that it’s an inconvenient forum under the circumstances AND
- that a court in another state is a more appropriate forum

  • additionally, court may decline to exercise jur if party seeking to invoke court’s jur has engaged in unjustifiable conduct (ex: parent wrongfully took the child from another state)
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7
Q

Temporary Emergency Jurisdiction

A
  • court may exercise temporary emergency jur if child has been abandoned or it’s necessary in an emergency to protect the child b/c the child, sibling or parent is subjected to or threatened w/ abuse
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8
Q

Enforcement of Another State’s Custody Order

A
  • custody or visitation order of one state can be registered in another state + enforced in that state like one of its own orders
  • in appropriate circumstances, court can order the respondent to appear in person + award immediate physical possession of the child to the petitioner
  • court may issue a warrant to take physical possession of the child if the child is imminently likely to suffer serious physical harm or be removed from the state
  • prosecutor, law enforcement officer, or other public official may take any lawful action to locate a child, obtain the return of a child, or enforce a custody or visitation order at a court’s request or if there is a reasonable belief that the person holding the child has violated a criminal statute
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9
Q

Child Custody Generally

A
  • custody of a minor can mean legal custody or physical custody
    -> legal custody = right to make major decisions affecting the child’s life
    -> physical custody = actual possession + control of the child
  • joint custody can mean joint legal custody, joint physical custody, or both
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10
Q

Best Interest of the Child Standard

A
  • the standard applied in awarding custody + visitation
  • trial court has a TON of discretion
  • if, after considering all relevant factors, court must decide between 2 qualified parents, custody will often go to the parent who has been the primary caregiver (parent most involved in the child’s day-to-day life)
    -> note that most states don’t allow for showing preference based on gender or financial ability
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11
Q

Factors Considered for Best Interests of the Child Standard

A
  • wishes of the parents
    -> bear in mind parents have a constitutionally-protected right to care, custody + control of their children
  • child’s preference
  • child’s relationship w/ parents, siblings, + others involved w/ parents
  • child’s adjustment to home, school, + community
  • parents’ mental + physical health
  • who has been the child’s primary caregiver
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12
Q

Child’s Preference

A
  • preference of children under age 8 generally not considered
  • preferences of children over age 12 often given great weight
  • questioning of the child typically occurs n the judge’s chambers
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13
Q

Counsel for the Child

A
  • courts can appoint counsel or guardian ad litem for the child in a custody dispute
  • typically only done if the counsel or GAL can provide substantial assistance in determining what is in the child’s best interest
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14
Q

Interference with Parent-Child Relationship

A
  • tortious injury
  • interference with custody
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15
Q

Tortious Injury

A
  • child may not recover against one who tortiously injures their parent, but parent may recover when a child is tortiously injured
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16
Q

Interference with Custody

A
  • parent whose lawful custody is interfered with may recover tort damages in actions for abduction or enticement
  • in addition, parties who conspire to conceal info about a newborn child’s birth or location may be held liable for their participation in a civil conspiracy
17
Q

Joint Custody

A
  • many iterations (includes joint physical + joint legal)
  • encouraged in most jurisdictions + will be awarded if the parties agree
  • courts will not award joint custody if parents are openly hostile or unable to communicate
18
Q

Factors Considered When Determining Whether Joint Custody Appropriate

A
  • fitness of both parents
  • whether the parents agree on joint custody
  • parents’ ability to communicate + cooperate concerning child’s well-being
  • child’s preference
  • level of involvement of both parents in child’s life
  • geographical proximity of the two homes
  • similarity or dissimilarity of the homes
  • effect of the award on the child’s psychological development
  • parents’ ability to physically carry out the joint custody order
19
Q

Sole Custody

A
  • can be awarded to one parent if there’s strong ev that demonstrates it’s in the best interest of the child
  • if court awards sole custody, other parent will almost always be entitled to reasonable visitation w/ the child
  • very hard to deny a parent any visitation whatsoever unless some type of harm to the child will result
20
Q

Custody to Nonparent

A
  • in disputes between parents + third parties, decision does not rest solely on child’s best interest
    -> natural parent has a constitutional right to raise their child
  • absent voluntary relinquishment, parent is entitled to custody unless nonparent can show that it’ll result in harm to child or that the parent is unfit
  • BUT, based on certain circumstances (abandonment, neglect or abuse) court may find that the biological parent has lost the right to rear the child, + nonparent should get custody
21
Q

Parental Visitation

A
  • court may limit parent’s right to visitation (ex: by ordering supervised visitation) if that parent engages in conduct that might injure the child
    -> BUT absolute denial of visitation is rare
  • contempt = primary remedy for violation of visitation orders
    -> consistent + willful denial of visitation rights could result in modification of custody
22
Q

Nonparental Visitation

A
  • nearly all states have statutes entitling some third parties (ex: grandparents to visitation)
  • typically applied when there are extraordinary circumstances, such as where child’s parents have divorced or died
  • typically, nonparent may seek visitation if in best interest of child
    -> determinative factor is often the prior relationship between the child + the third party
  • BUT if a parent is fit, their wishes on nonparent visitation are constitutionally protected + must be given “special weight”
    -> judge can’t override fit parent’s decision re third-party visitation merely b/c would be in best interests of the child
23
Q

Modification of Custody Decrees

A
  • custody orders are always modifiable
  • burden of proof is on the party seeking the change
24
Q

Standard for Modification of Custody Decrees

A
  • generally modified only if substantial and material change in circumstances affecting the child’s well-being
  • some states require certain amount of time to elapse between prior custody order + request for modification, unless existing arrangement is harmful to the child
    -> child’s best interest always the overriding concern
25
Q

Relocation

A
  • relocation statutes address change in child’s primary residence
  • generally require notice to the other parent + a court hearing to determine whether relocation is permitted
  • custodial parent usually allowed by court to move out of state if in best interest of child, if the move is motivated by a benefit to the family, + if it’s not intended to thwart the relationship with the other parent
26
Q

Enforcement

A
  • child custody awards may be enforced by contempt proceedings, state habeas corpus proceedings, + suits in equity
  • under UCCJEA, out-of-state decrees will be enforced if a certified copy has been filed w/ the clerk of court
    -> won’t remove the original court’s jurisdiction, but will allow enforcement of the order in the state
27
Q

Parental Kidnapping Prevention Act

A
  • federal law
  • full faith + credit must be given to another state’s custody or visitation determination if the Act’s jurisdictional reqs are met
  • if the child is removed from the original state, the custodial parent must file the custody order in the new jur + seek enforcement or obtain a writ of habeas corpus from that jur
  • jur standards in the PKPA are substantially the same as those in the UCCJEA, except that emergency jur isn’t temproary under PKPA
28
Q

Relief for Removal to Foreign Countries

A
  • International Parental Kidnapping Prevention Act
  • Hague Convention on Child Abduction

July Exam - Family Law (11 decks)

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