Child Custody Flashcards
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
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
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
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
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
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)
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
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
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
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
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
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
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
14
Q
Interference with Parent-Child Relationship
A
- tortious injury
- interference with custody
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
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
