Child Custody and Support Flashcards
How is paternity determined?
If mother is married, then child is presumed to be biological child of husband. Rebuttable presumption by showing physical impossibility or timing doesn’t match with conception of child.
A man’s paternity may be established by proof of:
(i) a written statement of the father and mother made under oath acknowledging paternity; or
(ii) scientifically reliable genetic tests (including blood test/ DNA tests) that show at least a 98% probability of paternity.
In the absence of the above, paternity may be established by clear and convincing evidence of relevant evidence, including:
(i) open cohabitation at probable time of conception;
(ii) medical or anthropological evidence;
(iii) results of genetic blood grouping tests;
(iv) consenting to common use of surname by the child;
(v) claiming the child on a tax return or other official document;
(vi) a copy of an acknowledgement of paternity under oath by an unwed father; and
(vii) an admission under oath by a male between the ages of 14 and 18 who is represented by a guardian ad litem.
Children born out of wedlock are referred to as…
Non-marital children
What is the Uniform Child Custody Jurisdiction and Enforcement Act?
Adopted in 49 states and DC; state has jurisdiction to enter initial custody order if is the home state of child or has been home state for 6 months prior to proceeding.
The forum/court issuing initial order has continuing, exclusive jurisdiction so long as the kid or parent continues to live there.
When making a child custody determination what is the standard and what factors does the court look to?
The standard is the best interest of the child. The factors that the court considers are:
- age and physical, mental condition of parents and child;
- any history of domestic violence (including sexual abuse),
- the role that each parent has played in raising the child
- the relationship existing between each parent and the child;
- if child is over age 12 whether s/he expresses any preferences;
- whether placement would allow continued contact with family (siblings/cousins/ extended family);
- whether shared custody is feasible (geographical)
- the propensity of each parent to allow the child contact with the other parent, and relative willingness and ability of each parent to maintain a close and continuing relationship with the child.
- other factors the court deems relevant
What happens when disputes arise between parents and non-parents (e.g. family member who help raise the kid)?
There is a presumption in favor of biological parent when non-parent wants to keep the child.
Nonparent has a heavy burden of proof.
If a custodial parent wants to relocate, what is required?
If the custodial parent wants to relocate must give court 30 days advance notice.
If the move is out of state, then court will only grant if demonstrably within the best interest of the child.
When is modification of custody allowed?
Modification of custody is allowed if it is in the best interest of the child (interest of stability in child’s arrangements).
When can a child be declared judicially emancipated and treated as an adult?
If the child is over the age of 16.
Can visitation rights be taken away?
Visitation rights are almost never taken away; if the custodial parent interferes with visitation rights then noncustodial parent can file for contempt.
Must a parent allow extended family to visit her child?
Parents have right to raise kids as they see fit (due process rights).
Don’t have to let extended family members visit the kid. If an extended family member seeks to challenge visitation, then the denial of visitation must be shown to be detrimental to the child.
What does every parent owe their child?
Every father and mother owes their child a duty of support.
Who are support orders typically directed at?
Support orders tend to be directed at non-custodial parents (after divorce or paternity case).
Who can make a support order?
Support order can be made by a judge or state department of social services.
How long does the obligation of child support continue?
Obligation continues child’s 18th birthday; can be extended to age 19 or HS graduation if the kid is still living at home.
If child has disability and not able to support himself, the obligation continues through out child’s life.
If a parent agrees to supporting child for longer, then okay if valid contract.
How is the amount of support for minor children determined?
May be determined by child support guidelines (every state has support guidelines), that provide an initial jumping off point, based on combined gross income of parents, and number of children.
If court deviates from the guidelines, it must consider all of the following substantive factors (and justify the deviation in writing):
- Monetary support of other family members;
- Custody arrangements, including the cost of visitation travel;
- Imputed income of party who is voluntarily unemployed or underemployed;
- Debts incurred for benefit of the child;
- Payments ordered by the court for life insurance, education expenses, etc…;
- Extraordinary capital gains;
- Any special needs of the child
- The child’s independent financial resources;
- Standard of living during the marriage;
- Earning capacity, obligations, financial resources, and special needs of each parent;
- Provisions made with respect to income-producing marital property.
- Tax consequences;
Written agreement that includes child support amount; and - Such other factors as necessary to consider the equities for the parents and child.
