Child Custody Flashcards

1
Q

V. Child Custody

A

A. Definition

B. Standards for Decision

C. Visitation

D. Joint Custody

E. Procedural Issues

F. Enforcement

G. Modification

F. Custodial Disputes Between Parents and Third Parties

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2
Q

V. A. Definition

A

Physical or Legal

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3
Q

V.B. Standards for Custody Decisions= Child’ Best Interest

A
  1. Parent’s presumptively entitled to custody
  2. Factors Considered
    • Parents wishes
    • Child wishes (typically >12)
    • Residential and Relational continuity
      • school
      • Siblings
    • AND Physical and mental health of all involved.
  3. Factors NOT Considered
    • One parents misconduct
    • Religion
    • primary caregiver status
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4
Q

V. C. Visitation

A
  1. Sole physical Custody Granted= Other parent must be given reasonable visitation rights-
    1. presumption in favor of joint visitation unless harmful
    2. independent of child support obligations
    3. limitations may be imposed for misconduct.
  2. Removal of Child from Jurisdiction by Custodial Parent- Good faith states have different facts that matter.
    • Permitted over objections of Non-custodial parent
    • Some factors to consider:
      • Childs best interest
      • Legitimate purpose and reasonable
      • harm to child
      • relocating vindictive motive.
    • Burden? States split
      • Some put burden on relocator
      • burden on objector.
  3. Remedy for violation of visitation Rights= Contempt
    1. consistent with willful desire, court may modify
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5
Q

V. D. Joint Custody

A
  1. Factors Considered:
    • Fitness of parents
    • Whether there is agreement of joint custody
    • Parent’s ability to communicate and cooperate
    • Preference of child
    • Each parent’s level of involvement in life of child
    • Geographic proximity of parents
    • Effect on child’s phsyche
    • Parent’s ability to carry out joint custody
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6
Q

V. E. Procedural Issues= Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)

A
  1. Initial Child-Custody Jurisdiction
    • Court has jurisdiction only if:
      • Child’s Home State- on date or 6 months before proceeding
      • OR
      • Home State Inapplicable (No other state, Home declined juris.)
        • Significant connection with state
        • AND
        • Substantial Evidence available in state re Child, etc.
  2. Exclusive & Continuing Jurisdiction- Court that issued Custody Decree retains exclusive jurisdiction until all parties have left or no longer any significant connection.
  3. Temporary Emergency if:
    • Child present
    • Abandonment or abuse
  4. Declining Jurisdiction
    • Inconvenient forum
    • Unjustifiable conduct
  5. Counsel for Child- Courts may appoint to protect interests
  6. Also Applies to Termination of Parental Rights*
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7
Q

V. F. Enforcement

A
  1. Intrastate Enforcement
    1. Contempt
    2. Suits in Equity
  2. Interstate Enforcement
    • Parental Kidnapping Prevention Act (PKPA)- Federal law, FFC for another states custody or visitation orders.
    • Uniform Child Custody Jurisdiction & Enforcement Act(UCCJEA)- State law, an ex parte custody determination entitled to FFC if in Child’s Home state.
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8
Q

V. G. Modification

A
  1. When permitted? = Change in Circumstances
    • Throughout Child’s minority
    • BUT
    • Only When Substantial & unforeseeable change in circumstances
      • Parental relocation
      • Custodial parent’s cohabitation (less common today)
      • Change in Child’s preference
    • AND
    • Child’s Best Interest
  2. Burden of Proof= Party seeking modification
  3. Interstate Modification of Child Custody Order
    • Federal law (PKPA)- May not modify if:
      • Either Child or Any party Continues to reside in issuing state
      • AND
      • Issuing State’s Courts do not decline to exercise jurisdiction
    • State Law (UCCJEA)- Issuing State retains continuous and exclusive Jurisdiction
      • Unless or until all parties and child have left the state.
      • unless or until issue in court determines no longer significant connection and substantial evidence no longer available
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9
Q

V. F. Custodial Dispute between Parent’s and Third Parties

A
  1. Strong presumption in favor of fit parents
    1. rebuttable by best interests of child (child in long-term caretaker relationship and ending it would be detrimental to child)
  2. Courts must accord special Weight to fit parents’ visitation decisions
    • Statutes may allow nonparent visitation, but cannot be allowed anytime petitioned by third party
    • Exception: De Facto Parents
    • One Legal Mother & One legal Father
      • no paternity makes a father a third party
      • Effect of adoption
        • Majority- Adoption severs all biological ties
        • Minority- Non-parent with substantial relationship may get visitation under state statue
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