child custody Flashcards
1
Q
What is the Tender Years Doctrine?
A
The Tender Years Doctrine is a principle that preferred awarding custody of a child of tender years to the mother.
2
Q
What happened to the Tender Years Doctrine?
A
The Tender Years Doctrine has been abolished.
3
Q
what should the court do in placing a child in the custody of someone or an instution in regards to relgion
A
the court shall, whenever practicable, select a person or an agency or institution governed by persons of the same religious faith as that of the parents of such child
4
Q
what should the court do in placing a child in the custody of someone or an instution in regards to relgion when the relgion of the parents are different
A
placment based on child’s religion
5
Q
what should the court do in placing a child in the custody of someone or an instution in regards to relgion when the relgion of the parents are different and the child’s faith is not determined
A
placement based on either partent’s relgion
6
Q
A
7
Q
What must the court consider in determining the best interests of the child?
A
The court must consider the child’s reasonable preference for custody.
8
Q
What factors influence the weight placed on a child’s preference for custody?
A
The weight is based on the child’s age, experience, maturity, judgment, and ability to express a preference.
9
Q
What must the court consider when making a decision regarding custody of a minor child?
A
The court must give weight to evidence of domestic violence as defined in Section 16-25-20 or Section 16-25-65.
This includes factors such as physical or sexual abuse and evidence of the primary aggressor as defined in Section 16-25-70.
10
Q
What types of domestic violence evidence must the court consider?
A
The court must consider evidence of physical or sexual abuse.
Additionally, if appropriate, evidence of which party was the primary aggressor.
11
Q
What defines the primary aggressor in domestic violence cases?
A
The primary aggressor is defined in Section 16-25-70.
12
Q
What happens if a victim of domestic violence leaves the home?
A
The court cannot automatically punish them by denying custody of the child.
13
Q
Who is considered a victim of domestic violence?
A
Someone who has not started the violence.
14
Q
A
15
Q
Can someone who committed domestic violence get visitation rights?
A
Yes, they can still get visitation rights if the court decides it is safe for the child and the victim during visitation.
16
Q
What does being the primary aggressor mean?
A
It means that the person has been found to be the main instigator of domestic violence when both sides made complaints.
17
Q
what can a court order in a visitation order? 8
A
- order for a safe exchange of the child
- order that the viistation be supervised
- make someone guilty of DV attend a program before they can do visitation
4 make someone guilty of DV abstain from drugs/alchol 24 hours before they can do visitation and during
- make someone guilty of DV pay a fee
- prohibit overnight visits
- require a bond of somoen guilty of dv
8 impose any other conditions
18
Q
What must a court establish if it allows a household member to supervise visitation?
A
The court must establish conditions to be followed during the visitation.
19
Q
A
20
Q
What can a judge do regarding visitation?
A
A judge may prohibit or limit visitation when necessary to ensure the safety of the child or the parent who is a victim of domestic violence.
21
Q
Who can initiate the motion to prohibit or limit visitation?
A
The motion can be initiated by the judge’s own motion or by any party.
22
Q
What may the court order if visitation is restricted for safety reasons?
A
The court may order the address of the child and the victim to be kept confidential.
23
Q
Under what circumstances can visitation be restricted?
A
Visitation can be restricted to provide for the safety of a child or parent who is a victim of domestic violence.
24
Q
What must a court order regarding treatment costs for a child injured by domestic violence?
A
The court must order the offender or primary aggressor to pay the actual cost of any medical or psychological treatment for a child physically or psychologically injured due to domestic violence.
25
26
What is a de facto custodian?
A de facto custodian is someone who has acted as the child's main caregiver and financial supporter.
27
What is required to prove someone is a de facto custodian?
Proven by clear and convincing evidence.
28
What is the requirement to be considered a de facto custodian for a child under 3 years old ?
The child must have lived with the person for at least 6 months.
29
What is the requirement to be considered a de facto custodian for a child 3 years or older
The child must have lived with the person for at least 1 year.
30
What may the family court grant to a de facto custodian?
The family court may grant visitation or custody of a child to the de facto custodian.
31
What must the family court find to grant custody or visitation to a de facto custodian?
The court must find by clear and convincing evidence that the child’s natural parents are unfit or that other compelling circumstances exist.
32
what is joint custody
* Both parents have equal rights and responsibilities for major decisions concerning child, including child’s education, medical and dental care, extracurricular activities, and religious training
o Court may designate one parent to have sole authority to make specific, identifiable decisions while both parents retain equal rights and responsibilities for all other decisions
33
what is sole custody
Sole custody = one person (usually a parent, but not always) has full custody of the child.
That person has the right and responsibility to make major decisions about the child's life
34
What must each parent do in a temporary hearing regarding custody?
Prepare, file, and submit a parenting plan to the court.
35
What should the parenting plan cover?
It should cover how much parenting time each parent will have and who will make major decisions about education, medical and dental care, extracurriculars, and religious training.
36
Can parents submit a joint parenting plan?
Yes, parents can submit a joint parenting plan if they agree.
37
What must the court consider when making custody orders?
The court must consider the parenting plans when making temporary and final custody orders.
38
What happens if a parent doesn’t file a parenting plan?
The court can still issue an order.
39
What is the court's role in custody determination?
The court shall make the final custody determination in the best interest of the child based upon the evidence presented.
40
What types of custody may the court award?
The court may award joint custody to both parents or sole custody to either parent.
41
What must the court consider if custody is contested?
The court shall consider all custody options, including, but not limited to, joint custody.
42
What must the court state in its final custody order?
In its final order, the court shall state its determination as to custody and shall state its reasoning for that decision.
43
Can the court allocate parenting time?
Notwithstanding the custody determination, the court may allocate parenting time in the best interest of the child.
44
What can a court include when issuing or changing a custody order?
A court can include approving a parenting plan, awarding sole custody to one parent, awarding joint custody, and any other custody arrangement deemed best for the child.
45
What does awarding sole custody entail?
It involves granting sole custody to one parent, with visitation or parenting time for the other parent.
46
What must a joint custody order specify?
It must specify where the child will live, how the parents will communicate about major decisions, and any other relevant arrangements.
47
What are examples of big decisions parents must consult about in joint custody?
Big decisions include health, school, religion, and activities.
48
17 best intrest of the child factors that the court must considder for custody (dont need to memorize all)
The child’s temperament and developmental needs.
How well each parent understands and meets those needs.
The child’s preferences (if old/mature enough).
The parents' wishes about custody.
How the child gets along with each parent, siblings, and important others.
Whether each parent encourages a good relationship with the other parent.
Whether a parent tries to manipulate or involve the child in their conflict.
Whether a parent disparages (bad-mouths) the other parent in front of the child.
How involved each parent is in the child’s life.
How the child is adjusting to home, school, and community.
The stability of the current and proposed homes.
The mental and physical health of everyone involved (disability alone isn’t enough to deny custody).
The child’s cultural and spiritual background.
If there’s been abuse or neglect of the child or siblings.
If there’s been domestic violence and how it affects the child.
If a parent relocated more than 100 miles away (unless it was for safety).
Anything else the court thinks is important
49
50
What happens if a court gives sole custody to one parent?
That parent should help the child have reasonable phone or electronic contact with the noncustodial parent.
51
Under what conditions might a parent not have to facilitate contact with the noncustodial parent?
If there was abuse, neglect, or abandonment.
52
What must the court say for contact with the noncustodial parent to be considered?
It must be in the child's best interest.
53
What should parents do when a court orders joint custody?
Each parent should facilitate opportunities for reasonable telephonic and electronic communication between the minor child and the other parent, as appropriate.
54
Under what condition should communication between the child and parents occur?
As provided for by court order if the court determines that this type of communication is in the best interest of the child.
55
What rights do parents have regarding their minor children's educational and medical records?
Each parent has equal access and the same right to obtain all educational records and medical records of his or her minor children.
56
What rights do parents have concerning their children's school activities?
Parents have the right to participate in their children’s school activities and extracurricular activities that are held in public locations.
57
Are there any limitations to parents' rights to access records and participate in activities?
Yes, these rights can be prohibited by an order of the court or State law.
58
What should the court do if a parent is voluntarily unemployed or underemployed?
The court should calculate child support based on a determination of potential income.
59
What is the basis for calculating child support for an unemployed or underemployed parent?
The calculation is based on potential income which would otherwise ordinarily be available to the parent.
60
What is the function of a family court judge regarding credibility?
Resolving questions of credibility is the function of a family court judge who heard the witnesses' testimony.
61
Why should appellate courts defer to family court findings on credibility?
An appellate court lacks the opportunity for direct observation of witnesses, so it should accord great deference to the family court's findings when matters of credibility are involved.
62
In what type of cases is deference to family court findings especially important?
This is especially true in cases involving the welfare and best interests of children.
63
What are a breadwinner's work habits relevant to?
Custody decisions when considered in the context of the time spent with the children.
64
What is required for joint or divided custody to be awarded?
Joint or divided custody should only be awarded where there are exceptional circumstances.
65
What are the two considerations for fitness decisions in custody cases?
Fitness decisions normally turn on either whether a parent has been the primary caretaker or whether a parent has engaged in conduct affecting the child's welfare.
66
Is there a legal rule requiring custody to be awarded to the primary caretaker?
There is no rule of law requiring custody to be awarded to the primary caretaker.
67
What is the assumption regarding custody awards?
There is an assumption that custody will be awarded to the primary caretaker.
68
How does a parent's morality affect custody decisions?
The effect of a parent's morality is limited to its relevance to the welfare of a child.
69
How much weight is given to a child's preference in custody disputes?
Little weight is given if the child's wishes are influenced by the permissive attitude of the preferred parent.
70
What are the two conditions under which a trial judge is not required to take children's testimony?
1. Counsel fails to request testimony.
2. The guardian ad litem testifies about the children's preferences.
71
What is the role of a child's preference in custody analysis?
The preference of any child is merely a factor in a custody analysis--it is not determinative.
72
What must immoral behavior do for a court to consider it in a child custody case?
It must actually harm the child's well-being — just being immoral isn't enough.
73
What is flagrant promiscuity?
Flagrant promiscuity refers to really extreme sexual behavior.
74
Is flagrant promiscuity considered in child custody cases?
Yes, it is a special exception: even if it doesn't directly hurt the child, it can still matter legally.
75
what does abandoned mean
left without provision for reasonable and necessary care or supervision.
76
defintion of child
someone under 18
77
what does home state mean? what if the child is less than six months old
home state= stae where kid lived w partnet/person acting as parent for at least 6 months in a row before the proceeding
less than six months old= state where the child lived from birht
78
issuing court?
court that makes a child custody decsoin
79
issuing state
state where a child custody determination is made
80
person acting as a parent
pereson who has custody of child and has been awarded legal custody
81
What is the significance of the Indian Child Welfare Act (ICWA) in custody cases?
If the case involves an 'Indian child' as defined under ICWA, then the usual custody laws do not apply where ICWA governs. ICWA takes priority.
82
What must a state court do if a tribal court made a custody decision following similar standards?
The state court must recognize and enforce that tribal decision, just like it would enforce a decision from another state.
83
How must a court in South Carolina treat foreign custody decisions?
A court must treat a foreign country like it treats a U.S. state, showing the same kind of respect to custody decisions made there.
84
What is the exception to the rule of treating foreign custody decisions equally?
If the foreign country's child custody laws seriously violate basic human rights, then the court doesn’t have to apply this article or enforce that foreign custody decision.
85
who is bound by a child custody decision and when
binds everyone involved, as long as they have been given an oppotunity to be heard
86
how quikcly to jurisdiction issues get taken care of in custody hearings
asap
87
Can a court in this state communicate with a court in another state about a child custody case?
Yes, a court in this state can talk to a court in another state about a case under this child custody law.
88
Can the parties join in the communication between courts?
Yes, the court can let the parties join in the communication.
89
What must happen if the parties cannot participate in the communication?
If the parties can’t participate, they must still get a chance to share facts and arguments before the court decides anything about jurisdiction.
90
Do courts need to inform parties about communications regarding scheduling or procedural matters?
No, if the courts are just talking about scheduling, calendars, records, or small procedural things, they don’t have to tell the parties or make a record.
91
What is required for communications about facts of the case or jurisdiction between SC courts and other courts in other jurisdictions
For other types of communication, a record must be made, the parties must be informed quickly, and the parties must be allowed to see the record.
92
when can a court in sc have jurisdiction to make intial decsions about child custody
if sc was the home state of the child or if the court of a nother state doesnt have jurisdction and the parent has connection w SC
93
when does this state fam court have temp emergency jurisdiction
if the child is present in the state and the child has been abandoned or its needed to protect the child
94
Why is preserving sibling relationships important?
It is an important factor in determining the best interests of children.
95
When should the separation of siblings be avoided?
The separation of siblings should be avoided unless there are 'exceptional circumstances' present.
96
four things to prove to show psychological parent-child relationship
You can become a "psychological parent" if the real parents supported it, you lived with the child, you acted like a true parent without getting paid, and you stayed long enough for a strong parent-like bond to form.
97
Is the existence of a psychological parent-child relationship sufficient for custody?
No, it is inadequate ground to justify awarding permanent custody to the psychological parent.
98
Under what circumstances can grandparents ask for visitation?
Grandparents can ask for visitation only if the parents are dead, divorced, or separated.
99
What must the court ensure regarding grandparent visitation?
The court must make sure it’s good for the child and doesn’t hurt the bond with the parents.
100
What factors does the court consider for grandparent visitation?
The court considers how close the child and grandparents were before the lawsuit.
101
What must be proven for a court to award grandparent visitation if a parent objects?
One of two things must be proven:
1. The parent is unfit, proven by clear and convincing evidence.
2. There are compelling circumstances strong enough to overcome the presumption that the parent's decision is in the child's best interest.
102
What is the standard of proof required to show a parent is unfit?
The standard of proof required is clear and convincing evidence.
103
what do courts say about relocation of a child for custody purposes? what needs to be shown for or against relocation of one of the custodial parent (6)
there is a presumption against relocation;
Reason for seeking/opposing move
Quality of relationships between kid and parent
Impact of move on relationship with noncustodial parent and feasibility of visitation
Potential advantages of move
Integrity of motives
Likelihood to increase quality of life
