Child-Related Stuff

Question 1

How do courts determine how much to award in child support?

Answer 1

By referencing the state’s child support guidelines. Can deviate from the guidelines for extraordinary costs.

Typically based on monetary need and ability to pay.

Question 2

Can visitation be withheld because of a failure to pay child support?

Answer 2

No.

Question 3

What causes the duty to support a child to cease?

Answer 3

1. Child reaches age of majority
2. Death of child
3. Emancipation of child
4. Termination of parental rights

Question 4

What is a parent’s legal obligation in terms of child support?

Answer 4

Both parents share equally a duty to support their children. This duty cannot be contracted away.

Question 5

Who has original jurisdiction to enter a child support order?

Answer 5

Where the first petition under UIFSA is filed.

Question 6

When can another state exercise jurisdiction over child support under UIFSA?

Answer 6

Only if:

1. The second petition is filed before the time to answer the first has expired,
2. The petitioner objected to jurisdiction in the first action, and
3. The second state is the child’s home state.

Question 7

Who has jurisdiction to enforce a child support order?

Answer 7

1. The court that initially issued the order
2. Another court by direct enforcement (mailing it to employer) or registering the order in the state.

Question 8

Who has jurisdiction to modify a child support order?

Answer 8

The court that issued the order has continuing and exclusive jurisdiction. Other courts can’t modify it, unless no party resides in the issuing state or parties consent.

Question 9

When can child support be modified?

Answer 9

When there is a substantial and continuing change in circumstances.

Child support cannot be modified retroactively.

(Not a voluntary reduction in income)

Question 10

What does the Full Faith and Credit for Child Support Orders Act do?

Answer 10

Requires that full faith and credit be given to the child support orders of a court in another state if:

1. The court had jx over the matter and the parties, and
2. The parties had reasonable notice and an opportunity to be heard.

Question 11

Jurisdiction to enter or modify a child custody/visitation order

Answer 11

Home state test.

1. State is the child’s home state, or
2. Was the child’s home state within the last six months & a parent/guardian still lives there.

Question 12

What if no other state has or accepts home state jurisdiction to enter or modify a child custody order?

Answer 12

Then a court with significant connection jurisdiction can:

1. Child & at least one parent have a significant connection with the state, and
2. Substantial evidence concerning the child is available in the state.

Question 13

When can a non-issuing court modify a child custody order?

Answer 13

1. No child/parent resides in the issuing state, or
2. Child no longer has significant connection to state and substantial evidence not available there.

Question 14

When can a court decline jurisdiction to issue or modify a child custody order?

Answer 14

1. When inconvenient forum, or
2. Party seeking to invoke jx engaged in unjustifiable conduct.

Question 15

What is the best interests of the child standard?

Answer 15

Applied in child custody/visitation cases.

Factors:

• Wishes of the parents
• Child’s preference
• Child’s relationship with parents/others
• Child’s adjustment to home/school/community
• Parties’ mental/physical health
• Who has been the child’s primary caregiver

Question 16

When is a parent entitled to visitation?

Answer 16

When the other parent is given sole physical custody.

Question 17

Are third parties entitled to visitation?

Answer 17

Yes, but a judge may not override a fit parent’s decision regarding 3P visitation merely because it would be in the best interest of the child.

A fit parent’s wishes regarding 3P visitation are given special weight (due process stuff).

Question 18

When can a child custody order be modified?

Answer 18

Only if there is a substantial and material change in circumstances affecting the child’s well-being.

Question 19

When will a parent allow the custodial parent to relocate out of state with the child?

Answer 19

Permitted if:

1. In good faith (for a benefit and not to thwart relationship with other parent), and
2. In the best interests of the child.

Question 20

How can an unwed father establish his paternity rights?

Answer 20

1. Marrying the child’s mother
2. Holding the child out as his biological child
3. Consenting to be named on the birth certificate
4. Formally acknowledging paternity, or
5. Court order

Question 21

What is the presumption of parentage?

Answer 21

The mother’s husband is presumed to be the father if the child is born during the marriage or within 300 days of its termination.

Can be rebutted by clear and convincing evidence.

Question 22

What are grounds for involuntary termination of parental rights?

Answer 22

1. Serious physical harm to the child
2. Abandonment
3. Neglect
4. Failure to provide support without justifiable cause
5. Mental illness/incapacity
6. Parental unfitness

Question 23

Can a parent voluntarily relinquish all rights to their children?

Answer 23

Yes (adoption).

Question 24

Can an unwed father veto a prospective adoption?

Answer 24

Unwed father’s consent is only required when the father has assumed parental responsibility (e.g., live with, care for, visit regularly, admit paternity, pay child support).

Unwed father has no right to block adoption if not actively involved with child or if found to be an unfit parent.

Question 25

How is the parent-child relationship established in assisted reproduction?

Answer 25

Under the UPA:

1. Having given birth to the child (except surrogacy)
2. Adjudication of maternity
3. Adoption by the mother
4. Husband who is married to a woman who has a child through assisted conception is the child’s father unless he proves his lack of consent within two years after birth.

Question 26

What factors do courts consider when determining whether joint custody is appropriate?

Answer 26

1. Fitness of both parents
2. Whether the parents agree on joint custody
3. Parents’ ability to communicate and cooperate concerning the well-being of the children
4. Children’s preference
5. Level of involvement of each parent in the children’s lives
6. Geographic proximity of parents’ homes
7. Effect joint custody will have on the children’s psychological development

Custody often goes to the parent who has been the primary caregiver.

Question 27

What happens if an unwed father demonstrates commitment to parenthood by participating in child rearing?

Answer 27

The relationship between the father and child is protected by due process.

Question 28

What factors are considered with respect to an unwed father’s involvement with a child?

Answer 28

1. Whether the parents lived together (or whether the father visited regularly)
2. Whether father admitted paternity
3. Whether father paid child support
4. Whether faith had any responsibility for supervision, education, protection, or care of child