Child Custody Flashcards
What are the factors a court will consider when deciding what is in the best interest of the child?
1) the wishes of the child, taking into account the maturity and ability to express reasoned and independent preferences as to decision making;
2) The child’s adjustment to home, school, and community;
3) The mental and physical health of all individuals involved;
4) The ability of the parents to cooperate and make decisions;
5) The level of conflict between the parents;
6) The level of each parent’s participation in the past significant decision-making;
7) Any prior agreements of the parents;
8) The wishes of the parents;
9) The child’s needs;
10) The distance between the parents residences, cost and difficulty of transporting the child, schedules, etc.;
11) Any possible restrictions on decision making;
12) Willingness and ability of parents to facilitate and encourage a close and continuing relationship between the other parent and the child;
13) Physical violence or threat of physical violence against the child by the child’s parent;
14) The occurrence of abuse against the child or another member of the household;
15) Whether the parent is a sex-offender;
16) Any other factor the court considers relevant.
What are the types of custody?
Sole Custody - One parent has the right to make decisions regarding child’s health, education, and welfare;
Joint Legal Custody - Shared responsibility and rights to make decisions about health, education, religion and non-emergency medical care;
Visitation - Right to spend time with child at specific times or as agreed.
What is a parenting coordinator?
Sometime to assist the parents/families to ensure that the process of the separation/divorce runs smoothly. They are there to try to solve the issues between the parents without the requirement that it goes to the court. Basically, the oversee and assist with the issues and family as a whole.
What is the “continuity of care” theory?
Parenting plans are based on this theory. It is based on the idea that the children should be looked after in a way that the children stay close with their parents and the children have one true home.
What must be in a parenting plan?
1) Allocation of all significant decisions for the children (including education, health, religion, extracurricular activities);
2) Living arrangements and provisions for parenting time;
3) Mediation provision;
4) Each parent’s access to medical, school and extracurricular records;
5) Parent with majority of parenting time for school purposes;
6) Child’s residence for school enrollment;
7) Parent’s residence, work address, and phone numbers;
8) 60 Day notice restriction for parental relocation;
9) Notifying other of emergencies or significant child related issues;
10) Transportation;
11) Provision for communication with child during parenting time;
12) Provisions for resolving relocation issues;
13) Provisions for future modifications to parenting plan;
14) Right of First Refusal;
15) Other provisions required to address best interest of the child or facilitate parental cooperation.
What is the right of first refusal?
If parent has parenting time and is unable to take the child during their time, the other arent must be contacted first to be asked if they would like to take the child during that time before a 3rd party is contacted to take care of the child during that time.
What is the changed circumstance test and when is it used?
When the court is modifying an existing order, then the changed circumstances test applies. The test is:
1) There must be a substantial change of circumstances; and
2) The court must hear the case and decide it based on the change of circumstances and the best interest of the child.
What is the difference between determining a custody/ parenting order and modifying a court order.
When determining the custody order for the first time (i.e. creating an original order) then it is based on the best interest of the children.
However, when the court is modifying an existing order, then the changed circumstances test applies.
What are the restrictions on modifying parenting orders?
1) No modification may be made earlier than 2 years after the entry of custody judgement unless there is a reason to believe that the child’s present environment may seriously endanger the child’s mental, physical, moral, or emotional health;
2) No modification may occur unless the court finds by clear and convincing evidence that a substantial change has occurred and modification is in the best interests of the child;
(3) No change of circumstance will be required if the following is proven:
(a) If modification is in the child’s best interest; and
(b) Any of the following is proven:
(i) Modification reflects actual arraignment for 6 months prior;
(ii) modification is minor;
(iii) Modification is necessary;
(iv) Parties agreed to the modification.
Can a modification to a parenting plan happen when a parent stops paying child support?
No. Simply because a parent is not paying their child support does not mean parenting time can be removed. These are two separate issues.
What are the Eckerd Factors for determining parenting time based on Relocation?
The court will consider the following when deciding whether removal is in the est interest of the child:
1) Likelihood of enhancing general quality of life for custodial parent and children;
2) Motives of custodial parent in seeking the move;
3) Motives of non-custoail parent in resisting the move;
4) Visitation rights of non-custodial parent;
5) Whether a realistic and reasonable visitation schedule can be reached if the move is allowed;
6) Court may also consider:
(a) Role of extended family;
(b) Reasonable allocation of responsibilities;
(c) Wishes of the child and and the child’s maturity;
(d) Minimize impairment of parent-child relationships;
(e) Any other relevant factors.
What must the custodial parent provide if they are planning on moving?
1) 60 days written notice, unless not possible;
(a) if the non-relocating parent signs the notice, then no other further action is needed. If no agreement, relocating parent must file a petition with the court.
2) Notice filed with the court;
3) Provided date of relocation;
4) Address of new residence;
5) How long the relocation will last.
How will the court handle an abuse of parenting time?
Allow an expedited procedure which will be based on the preponderance of the evidence to prove what is in the best interest of the child.
If the parent has withheld for a reason in the child’s best interest, then it is no abuse. However, it must be proved by a preponderance of the evidence.
What are remedies for abuse of parenting time?
1) Additional terms and condition placed on parenting time;
2) Parent educational program;
3) Make-up parenting time;
4) Family or individual counseling;
5) Contempt of court;
6) Imposition of civil fine for each violation;
7) Any other provision that promotes the best interest of the child.
Why is it in the best interest of the parent to file for joint custody rather than sole custody?
If both parents file for sole custody, then the court can only grant sole custody. However, if one parent files for sole custody and the other files for joint custody then the court can give either joint or sole custody to either parent.
