Child Support and Custody Flashcards
Does each parent have an obligation to provide for their child?
Yes, based on their ability to pay and the need of the child(ren)
child support guidelines
- Standards based on income and number of children (income share)
- Courts can deviate from guidelines
Can courts base child support payments on vistiation rights?
No
What is the duration of child support?
- Child reaching age of majority (or sometimes, graduating high school, whichever comes later)
- Death of the child
- Emancipation of child
- Termination of parental rights
- Child support may be indefinite for severely disabled child
United Interstate Family Support Act (UIFSA)
- Adopted by all 50 states
- Provides methods of enforcement and guidelines for modification of support orders issued in another state
original jurisdiction
Where first petition inder UIFSA is filed
Another state can exercise jdx where
* Second petition is filed before time to answer the first has expired
* Petitioner objected to jdx in first action
* Second state is child’s home state
jurisdiction to enforce
Court that initally issued irder has jdx to enforce
Another state can enforce under UIFSA
* Direct enforcement allows obligee to mail order to obligor’s out-of-state employer, automatically triggering withholding of income
* Registration allows issuing state to send order to second state where it is registered and filed as foreign judgement, treated as if issued in that state
jurisdiction to modify
Court issuing the controlling order has continuing exclusive jdx
Court in another state may modify if no party resides in the issuing state OR the parties consent
When will a court modify a child support order?
Based on substantial and continuing change of circumstances
Voluntary reduction in income not sufficent
How does a court enforce a child support award?
By holding nonpaying party in contempt (usually civil)
Other sanctions include interception of tax refund, forfeiture of licenses, seizure of real estate, attachment of wages, order paying attonrney’s fees
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Passed to avoid jurisdiction disputes re: child custody and vistiation, promote interstate cooperate, and facilitate the interstate enforcement of custody and visitation orders
home state jurisdiction
- Is child’s home state
- Was child’s home state w/in past six months and child is absent BUT parent/guardian continues to live there
Home state: where child lived with parent/guardian for at least six consecutive months before commencement of proceeding OR state of birth (if < 6 months old)
When does the “home state” rule not apply?
- No other state has or accepts home state jdx
- Child and at least one parten have significant connection to the state
- Substantial evidence conerning the child is available in the state
jurisidction to modify
Issuing court has continuing exclusive jurisdiction
Another state can exercise jdx where
* No child or parent continues to reside in state
* Child no longer has significant connection w/ issuing state AND substantial evidence relating to matter is no longer available in the state
When may a court decline jdx in a child custody case?
- Forum non conveniens
- Party has engaged in unjustifiable conduct
When can a court exercise temporary emergency jurisdiction?
- Child abandonment
- Child, sibling, or parent threatened with abuse
best interest of the child
- Wishes of the parents
- Child’s preference (starting about age 8-12)
- Child’s relationship with parents, siblings, others invovled
- Child’s adjusment to home, school, community
- Parties’ mental and physical health
- Who has been the primary caregiver
Courts have great discretion in determining BIOC
Financial ability and gender are generally not considered
guardian ad litem
- Counsel for the child
- Generally only appointed if they can provide substantial assitance in determining what is in the child’s best interst
Interference with the Parent-Child Relationship
Tortious injury
* Parent may recover for injury to child but not vice versa
Interference w/ custody
* Tort damages for abduction or enticement
* Civil conspiracy if concealing info about newborn child’s birth or location
Types of Custody
- Joint custody
- Sole custody
- Custody to nonparent
joint custody
Factors
* Fitness of parents
* Agreement by parents
* Parents’ ability to communicate and cooperate re: child’s wellbeing
* Child’s preference
* Level of invovlement in child’s life
* Geographical proximity of homes
* Similarity or dissimilarity of homes
* Effect of award on child’s psych. development
* Parent’s ability to physically carry out joint custody order
sole custody
- Awarded based on strong evidence that demonstrates BIOC
- Noncustodial parent generally gets reasonable vistiation unless some harm to child will result
custody to nonparent
- A natural parent has a constitutional right to raise their child
- Absent voluntary relinquishment, parent is entitled to custody unless nonparent can show it will result in harm or parent is unfit
parental visitation
- Court may limit right to visitation if that parent engages in conduct that might injure the child
- Complete denial of visitation is rare
- Right to parental visitation is independent of child support obligation
- Consistent and willful denial of rights may lead to modification
