Child custody Flashcards
Types of custody
(1) Legal custody: the right of a parent to make major decisions with respect to the child;
(2) Physical custody:
(a) the right to have the child reside with a parent or guardian; and
(b) the obligation to provide for routine daily care and control of the child.
Joint custody
Joint custody generally requires that both parents be willing and able to cooperate with respect to the wellbeing of the child.
Generally, under joint custody, neither parent has a superior right to make major decisions.
Uniform Child Custody Jurisdiction and Enforcement Act: home-state jurisdiction
Under “home-state jurisdiction,” a court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state:
(1) Is the child’s home state and has been her home state for at least six consecutive months—or since birth, if the child is less than six months old; or
(2) Was the child’s home state in the past six months, and the child is absent from the state, but one of the parents still lives there.
Uniform Child Custody Jurisdiction and Enforcement Act: significant-connection jurisdiction
A court can enter or modify a child-support order if:
(1) No other state has or accepts home-state jurisdiction;
(2) The child and at least one parent have a significant connection with the state; and
(3) There is substantial evidence in the state concerning the child’s care, protection, training, and personal relationships.
Uniform Child Custody Jurisdiction and Enforcement Act: exclusive-continuing jurisdiction
Courts that make an initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:
(1) Both parties no longer reside in the state; or
(2) The child:
(a) no longer has a significant connection to the state; and
(b) any substantial evidence connected to the child’s condition is no longer available in the state.
Best interests of the child
The standard for determining child custody is the best interests of the child:
(1) Ability to financially support the child;
(2) Relationships with family members;
(3) General familial stability;
(4) Other factors bearing on the fitness of the parent or parents.
A court will consider the wishes of an older child if the court can determine that the child has sufficient maturity to express a preference. In doing so, the court will look at the child’s reasoning.
Best interests of the child standard: third-party rights
Legal parents are presumptively entitled to custody of their children in cases against third parties, including against grandparents or stepparents.
A custody law is unconstitutional if it does not require a court to give “special weight to the parent’s determination of her child’s best interest.”
Modification of a child custody order
The burden is on the parent seeking modification to establish that the modification is warranted. Most jurisdictions require a substantial change in circumstances to modify the custody order.
Modification of a child custody order: relocation
Relocation will almost always constitute a substantial change in circumstances.
Thus, in most jurisdictions, the custodial parent seeking relocation bears the burden of demonstrating that the relocation is for a legitimate and reasonable purpose—as opposed to restricting the noncustodial parent’s visitation.
In determining whether to modify the custody order and allow the parent to relocate, a court will consider factors including:
(1) The bests interests of the child;
(2) The relationship of the non-relocating parent with the child;
(3) The age and needs of the child;
(4) The child’s preference; and
(5) The quality of life of the relocating parent and child.
Best interests of the child: primary-caretaker doctrine
The primary-caretaker doctrine not only encompasses the day-to-day care of the child but also includes the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past.
Uniform Child Custody Jurisdiction and Enforcement Act: default jurisdiction
If no state has jurisdiction through home-state jurisdiction or substantial-connection jurisdiction, then a court in a state that has appropriate connections to the child has jurisdiction.
