Child-related Issues

Question 1

How does the court calculate child support?

Answer 1

It’s based upon:

— Number of children

— Children’s age

— Special needs

— Parent’s income

Question 2

In most states, when will the duty to pay child support terminate?

Answer 2

child reaches 18, or

Child Marries

Paying parent dies (although there is an increased trend for payments to continue from their estate)

Question 3

When can child support payments be modified?

Answer 3

When there is a substantial change in either the child or the paying parent’s circumstances.

Question 4

If a parent paying child support loses their job in January, but doesn’t seek a modification to their payment obligations until March, can they claim back the previous support that they paid after their circumstances changed?

Answer 4

No, paying parent cannot ask to amend the arrears.

Question 5

What remedies are available where a parent does not pay their child support?

Answer 5

— Wage Reduction Order (addresses to employer which deducts and forwards directly to custodial parent)

— Account freeze

— Sale of personal property

— Inform Federal Tax Internal Revenue Service + State Tax Authority to divert any TAX REFUND

— Inform State Lottery Commission

— Have their driving or professional license suspended

— Go after them for being in CONTEMPT of court

Question 6

Which Act can be used to ensure enforcement of child support across state lines?

Answer 6

The Uniform Interstate Family Support Act

Question 7

If courts in two different states order child support, which controls?

Answer 7

The court in the CHILD’s home state.

Question 8

A child lives in State A with their custodial parent, the paying parent lives in State B, where the court has entered a child support order. The paying parent want to travel to a State C (where they also work) to get the order modified. Can the State C court modify the order, if it’s a fair amendment?

Answer 8

No, provided the Parent continues to live in the original forum state in which they brought the claim, another court cannot exercise jurisdiction.

Question 9

If a custodial parent wants to ensure that the child support judgment from State court A is recognised by State court B, where the paying parent resides, what can they do?

Answer 9

Take the order to State court B and register it. State B court should then note it and enforce it.

Question 10

Can parties agree (by contract) All separation issues?

Answer 10

Parties can agree the terms of their separation but the court will usually reviews child-related provisions and can modify them.

Question 11

Can spouses modify a separation agreement after its agreed? How?

Answer 11

It depends on whether it’s merged or incorporated by reference

MERGED = copy terms of the agreement into the divorce decree and then dispose of the separation agreement. No agreement anymore, so it is MODIFIABLE.

INCORPORATED = Remains a separate agreement, so only modifiable if there is a alteration clause in the agreement.

Question 12

What are the two types of child custody?

Answer 12

Physical — where does the child reside?

Legal — which parent gets to make decisions about the child’s wellbeing and upbringing

Question 13

Do the types of child custody have to be assigned to one parent?

Answer 13

No, they can be shared.

Question 14

Which State has jurisdiction to decide child custody where there are multiple states involved (because one parent may now be living in a different location to their child)?

Answer 14

Uniform Child Custody Jurisdiction & Enforcement Act provides:

— Child’s “home state” has jurisdiction

Question 15

What generally counts as the child’s home state?

Answer 15

Where child has lived for at least 6 consecutive months with parents prior to proceedings

Question 16

If the child has not spent at least 6 consecutive months in their “home state” prior to the child custody proceedings, does that state still count as the child’s home state? And what happens if the child kept moving?

Answer 16

No, you look to the state where the child last spent 6 consecutive months.

If there is no state that the child spent 6 months, then look for the state where the child has the greatest connection.

Question 17

Once you have determined which court should hear the child custody case, what factors should the court take into account?

Answer 17

The court should apply the Best Interests of the Child Standard (not the parents)

Question 18

What factors make up the BIC Standard when it comes to determining child custody?

Answer 18

— Fitness or both parents

— Any household abuse by a parent

— Does either parent have a new partner? How do they behave towards the child?

— Which parent is more likely to accommodate visitation rights?

— How to keep all siblings together

— Could placement with one parent encourage a bond with other relatives?

Question 19

Can a non-parent seek custodial rights?

Answer 19

Yes, and you apply the BIC Standard, but there is a presumption that it will be on the best interests of the child to place them with their biological parent.

Question 20

Who is entitled to visitation rights?

Answer 20

Only the non-custodial parent. Other relatives have to meet the BIC Standard to prove its in the best interests of the child.

Question 21

Does non-payment of child support limit that parent’s visitation rights?

Answer 21

No

Question 22

Can a child custody order be modified?

Answer 22

Yes, if there is a change in circumstances affecting the BIC Standard.

Question 23

How do you determine paternity?

Answer 23

Is woman is married, then the husband is presumed to be the father.

Non-marital child then either the mother or child can bring a suit to litigate paternity

Question 24

In which circumstances can a state purpose termination of parental rights? And what is the name of the proceeding?

Answer 24

It’s called an Involuntary Termination Proceeding and states may Perdue where the parent:

— Abandons the child

— Neglects the child

— Abuses the child

Question 25

If the state seeks to terminate your parental rights through an Involuntary Termination Proceeding, what must the state prove?

Answer 25

That the parent is incapable of looking after their child and the problem cannot be fixed.

Question 26

What are the three steps for adoption?

Answer 26

1. Consent from ALL necessary parties
2. Investigate the prospective parents
3. Conduct a hearing during which adoption is finalised

Question 27

In order to obtain consent from all necessary parties, who does that involve?

Answer 27

— Both biological parents (unless their rights are Involuntarily terminates)

— Adoptee, if over 12 years old

— Anyone else with legal custody

— In some jurisdictions, the State must also agree

Question 28

When you see an exam question about child custody, what are the three things you should broadly consider?

Answer 28

1. Which court has jurisdiction (i.e. which is child’s home state)
2. Apply BIC Standard to determine custody
3. Other issues: visitation, modification of the order or other relative’s rights

Question 29

In determining whether a child can be given up for adoption, what will the court consider if the child’s father, who is not married to the mother, objects?

Answer 29

— Father’s involvement in the child’s life

— Whether he lived with or cared for the child

— Whether he regularly visited

— Whether he paid child support

— Whether he admitted paternity