Child Custody

Question 1

Legal custody

Answer 1

The right of a parent to make major decisions regarding the minor child.

Question 2

Physical custody

Answer 2

The right to have the child live with a parent and the obligation to provide for routine daily care and control of the child.

Question 3

Joint custody

Answer 3

Both parents share legal and/or physical custody

Question 4

Uniform Child Custody Jurisdiction and Enforcement

Act

Answer 4

Court must possess SMJ to adjudicate under UCCJEA

Priority for SMJ

Initial custody determination (home-state jx)

Significant-connection jx

Default jx

Question 5

Initial custody determination (home-state jx)

Answer 5

Child’s home state for at least 6 months or from child’s birth

A court will have jx is if the child is absent but the state has been the child’s home state for the last 6 months or 1 of the parents continues to live there.

Question 6

Significant-connection jx

Answer 6

If no state has or accepts home-state jx, a court in another state will have SMJ if the child and parent have a significant connection w/ the state and substantial evidence available in that state about the child that is relevant to custody determination.

Question 7

Default jx

Answer 7

If no state has jx through home-state, or significant connection jd, then ta court in a state that has appropriate connections to the child has SMJ.

Question 8

Exclusive continuing jx

Answer 8

Once a court makes an initial ruling in a custody case, that court has exclusive continuing jx over the matter until the court determines:

Parties no longer reside in the state or
Child no longer has significant connection to the state

Question 9

Can a court decline jx in custody case?

Answer 9

Even if a court has initial or exclusive-continuing jx, the court may decline to exercise jx in a custody case if if finds the forum inconvenient after considering a variety of factors.

Rests w/in the court’s discretion

Question 10

Temporary Emergency jx

Answer 10

A court that does not otherwise have jx may obtain temporary emergency jx and enter an order if the child is endangered and requires immediate protection.

Question 11

Standard for determining child custody

Answer 11

Best interest and welfare of the child

Domestic violence must be considered in awarding custody

Fundamental constitutional right to care, custody and control of child.

Court will consider the child’s wishes if he is mature enough to express preference

Question 12

Who has standing to bring a child custody suit

Answer 12

Anyone

Question 13

Peterson Presumption

Answer 13

Under the Peterson Presumption (Peterson v. Rogers, 337 N.C. 397 (1994)), the parent will prevail in a custody dispute between a parent and non-parent, including grandparents, unless a judge finds the parent unfit, or that the parent has neglected the child or engaged in conduct inconsistent with his parental status.

Presumption may be overcome if the third party is found to be a parent by estoppel or de facto parent.

“inconsistent” with parental rights

Question 14

Noncustodial parent rights

Answer 14

Generally a right to reasonable visitation w/ child

Question 15

3rd party visitation rights

Answer 15

Generally third parties, grandparents/former stepparents do not have a right to visitation unless the parents are unfit or the third party has acted in loco parentis with the child prior to divorce

Question 16

Custody modification

Answer 16

Onece a custody order has been entered, the court retains SMJ to modify the order while the child is a minor.

NC applies the change in circumstances standard, requiring a substantial or unforeseen change since the issuance of the prior order.

Question 17

Geographic relocation of custodial parent

Answer 17

Court may consider:

Whether the move will improve the child’s life;

Motives of each parent in relocating or opposing relocation;

The likelihood of visitation of the noncustodial parent

The burden of proof is on the parent objecting to the relocation.

An application should be made in advance of the relocation, and it must be based on anticipate present facts, no speculative ones.

Question 18

Termination

Answer 18

A CS order terminates when the custodial parent dies or when the child reaches age of majority.

When a custodial parent dies, custody generally goes to the surviving parent.