Child Custody Flashcards
What are the types of child custody?
Legal (right to make major decisions) and physical
Joint custody can mean joint legal, physical, or both
What is the primary test for whether or not a court has jurisdiction to initially enter or modify a child custody award?
The home state jurisdiction test: a court has jurisdiction if the state
(1) is the child’s home state (the state where the child has lived with a parent or person acting as a parent for at least 6 consecutive months immediately before commencement of proceeding, or since birth if younger than 6 mos)
(2) was the child’s home state w/in the past 6 mos and the child is absent from the state but the parent/guardian continues to live there
When does the home state rule not apply?
A court will have jurisdiction if no state has or accepts home state jurisdiction and the child and at least one parent or guard has a:
(1) significant connection with the state and
(2) substantial evidence concerning the child ins available
If no court has jurisdiction under another test, court has jurisdiction
What is the nature of the jurisdiction of the court making the initial child custody/visitation determination?
Exclusive and continuing until the court determines that (1) nether the child or its parents/guardians continue to reside in the state, or (2) the child no longer has significant connection/substantial evidence w/ the state
When may a court that has jurisdiction under either the home state or significant/substantial test decline jurisdiction?
If it determines that it is an inconvenient forum
If the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct (like wrongfully taking the child from another state)
When does a court have temporary emergency jurisdiction?
Where the child has been abandoned or it is necessary to protect child, sibling, or parent from abuse
How is another state’s order enforced?
Order can be registered in another state and enforced as if it was one of that state’s orders
Court can order respondent to appear in person and award immediate physical possession to petitioner, may issue a warrant for physical possession if the child may be imminently harmed or removed from the state
What is the standard applied in awarding custody and visitation
The best interest of the child
Factors:
(1) wishes of child (over 12 given great weight, under 8 may be disregarded)
(2) wishes of parents
(3) relationship with parents/siblings, others
(4) adjustment to home, school, and community
(5) physical and mental health of all involved
What is the effect of primary caregiver status?
While in most states, preference based on gender or financial ability is not allowed. If, after weighing all of the relevant factors, the court is split between two qualified parents, the tiebreaker will go to the parent who has been the primary caregiver (most involved in day to day of child’s life)
What factors are involved in determining whether joint custody is appropriate?
Fitness of both parents
Agreement of parents to joint custody
Ability to communicate and cooperate concerning child’s wellbeing
Child’s preference
Level of involvement of both in child’s life
Geographical proximity of both homes
Similarity/dissimilarity of both homes
Effect of award on child’s psychological development
Ability to physically carry out joint custody
If parents have agreed to it, court usually honors that unless not in child’s best interests
When does the child get counsel in custody disputes>
Courts usually may appoint counsel or guardian ad litem for the child, but only when counsel can offer substantial assistance in reaching the child’s best interests
What are the visitation rights of the noncustodial parent?
Where there is an award of sole physical custody to one parent, the other must be given reasonable visitation rights, which may be limited (e.g., supervised visitation) if the parent engages in conduct that might injure the child. Absolute denial of visitation is rare
Can the custodial parent move the child out of jurisdiction?
Usually yes so long as not intended to frustrate visitation rights and motivated by benefit to parent
What is the remedy for violation of visitation orders?
Contempt. Modification of custody may result from consistent and willful violation
When can third parties get visitation rights?
Most jurisdictions allow third party visitation (usually for grandparents) if parents are divorced or one parent has died. Standard is best interest of the child and determinative factor is usually the prior relationship with the child.
CONSTITUTIONAL ISSUE: a judge may not override a fit parent’s decision regarding a third party’s visitation rights just because it would be in the child’s best interests
