Child Custody Flashcards
Interstate Custody and Jurisdiction
Initial Award of Custody
1-primary test-Home State
Either: a. state where child has lived w/ parent for at least 6 consecutive months, or b. state that was the child’s home state within the last 6 months and the child is absent from the state but a parent continues to live in the state
2-if there is no Home State, court can assume jurisdiction if the child has a significant connection with the state and there is substantial evidence of the child’s well-being in the state
3-if state w/ Home State or significant connection jurisdiction decline, a state can assume deferred jurisdiction
4-if no other state exercises jurisdiction, any state can by default
Interstate Custody and Jurisdiction
Modification of an Existing Decree
The issuing state exercises: continuing exclusive jurisdiction UNLESS:
1-no child or parent continues to reside in the state OR
2-the child no longer has a significant connection w/ the state and there is no substantial evidence in the state
Interstate Custody and Jurisdiction
Declining Jurisdiction
1-a court may NOT exercise jurisdiction of: a. a proper proceeding was already pending elsewhere when petition is filed, unless the other court defers OR b. the person seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct
2-a court may decline to exercise jurisdiction if it determines it is an inconvenient forum
Interstate Custody and Jurisdiction
Temporary Emergency Jurisdiction
1-requirements:
i-child is physically present and
ii-the child has been abandoned OR
iii-it is necessary to protect child because child, sibling, or parent is subject to abuse
Child Custody Generally
1-custody is an umbrella term that includes legal and physical custody
i-legal custody includes the right to make decisions regarding the child
ii-physical custody includes the possession and control of the child
2-in any custody or visitation case, the hallmark consideration is: the best interest of the child (BIOC)
3-factors that courts consider vary among jurisdictions but generally include: wishes of the parents; preference of the child; relationship of the child w/ the parents and siblings and others involved w/ parents; child’s adjustment to home, school and community; mental/physical health of parents; primary caregiver
4-trial court is vested w/ a great deal of discretion to determine custody and visitation
Types of Custody and Visitation Awards
Joint Custody
1-can mean joint legal, joint physical, or both–joint custody is intended to promote the involvement of both parents in the child’s life
2-in most jurisdictions, it’s encouraged and will be awarded if the parents agree
3-if parents are openly hostile or unable to communicate, courts will not award joint custody
4-courts consider a myriad of factors, and also consider geographic proximity, ability to communicate, and whether the parents agree
Types of Custody and Visitation Awards
Sole Custody
1-can be awarded to one parent when strong evidence demonstrates that it’s in the BIOC–other parent will be entitled to reasonable visitation unless harm to the child will result
Types of Custody and Visitation Awards
Custody to a Nonparent
1-because of Constitutional protections afforded to a parent, in a custody dispute between parent and non parent the standard is not just BIOC
2-parent is entitled to custody unless the non parent can show harm to the child OR unfitness
3-after a finding of harm or unfitness, courts will then perform a best interest analysis
Types of Custody and Visitation Awards
Visitation
1-parental visitation: a. absolute denial of visitation to a parent is rare–courts may deny and will restrict visitation if injury to the child may result
2-nonparent visitation: a. every state has a statute that allows 3rd parties, generally grandparents, to seek visitation; b. non parent visitation generally applies in some extraordinary circumstances such as divorce, separation, or death
Modification of Custody
1-generally brought by motion of a party or the court in the original action–party seeking modification bears burden of proof
2-standard: whether custody or visitation issue, modification requires substantial & material change of circumstances affecting the child’s well being since prior determination of custody
3-overriding concern: BIOC
NOTE-states generally require a certain amount of time to elapse since entry of the order, unless the child’s present environment is harmful to the child
Relocation
1-many states have statutes to address the relocation of the primary residence of the child–statutes generally require notice to the other parent and a court hearing to determine whether relocation is permitted
2-to determine relocation, courts will consider whether relocation: i-is in the child’s best interests; ii-motivated by a benefit to the family; and iii-not intended to thwart the relationship w/ the other parent
Enforcement of Custody Awards
1-violations of custody and visitation can be enforced through civil contempt proceedings
2-state habeas corpus proceedings–this is limited to physical child custody
3-suit in equity–this remedy asks the court to enjoin conduct in violation of the custody order
4-out of state decrees–will be enforced if a certified copy is filed w/ the clerk of court–will not remove continuing exclusive jurisdiction of another state, but will allow enforcement of the order in the state
5-child kidnapping:
i-if the child is removed from the state, the custodial parent must file the custody order in the new jurisdiction and seek enforcement, or obtain a writ of habeas corpus from the new jurisdiction
ii-child kidnapping is a state crime, generally a felony
iii-PKPA (Federal Parental Kidnapping Prevention Act)-mandates that states give full faith & credit to another state’s child custody determination, if jurisdiction is proper; jurisdiction and modification requirements under PKPA are very similar to UCCJEA
iv-International kidnapping-the International Parental Kidnapping Prevention Act (IPKCA) and the Hague Convention of Child Abduction provide international relief when a child is wrongfully removed to a foreign country
