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
2
Q
V. A. Definition
A
Physical or Legal
3
Q
V.B. Standards for Custody Decisions= Child’ Best Interest
A
- Parent’s presumptively entitled to custody
- Factors Considered
- Parents wishes
- Child wishes (typically >12)
- Residential and Relational continuity
- school
- Siblings
- AND Physical and mental health of all involved.
- Factors NOT Considered
- One parents misconduct
- Religion
- primary caregiver status
4
Q
V. C. Visitation
A
- Sole physical Custody Granted= Other parent must be given reasonable visitation rights-
- presumption in favor of joint visitation unless harmful
- independent of child support obligations
- limitations may be imposed for misconduct.
- 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.
- Remedy for violation of visitation Rights= Contempt
- consistent with willful desire, court may modify
5
Q
V. D. Joint Custody
A
- 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
6
Q
V. E. Procedural Issues= Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)
A
-
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.
- Court has jurisdiction only if:
- Exclusive & Continuing Jurisdiction- Court that issued Custody Decree retains exclusive jurisdiction until all parties have left or no longer any significant connection.
-
Temporary Emergency if:
- Child present
- Abandonment or abuse
-
Declining Jurisdiction
- Inconvenient forum
- Unjustifiable conduct
- Counsel for Child- Courts may appoint to protect interests
- Also Applies to Termination of Parental Rights*
7
Q
V. F. Enforcement
A
-
Intrastate Enforcement
- Contempt
- Suits in Equity
-
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.
8
Q
V. G. Modification
A
- 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
- Burden of Proof= Party seeking modification
- 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
- Federal law (PKPA)- May not modify if:
9
Q
V. F. Custodial Dispute between Parent’s and Third Parties
A
- Strong presumption in favor of fit parents
- rebuttable by best interests of child (child in long-term caretaker relationship and ending it would be detrimental to child)
- 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