Child Support and Custody

Question 1

Does each parent have an obligation to provide for their child?

Answer 1

Yes, based on their ability to pay and the need of the child(ren)

Question 2

child support guidelines

Answer 2

• Standards based on income and number of children (income share)
• Courts can deviate from guidelines

Question 3

Can courts base child support payments on vistiation rights?

Answer 3

No

Question 4

What is the duration of child support?

Answer 4

• 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

Question 5

United Interstate Family Support Act (UIFSA)

Answer 5

• Adopted by all 50 states
• Provides methods of enforcement and guidelines for modification of support orders issued in another state

Question 6

original jurisdiction

Answer 6

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

Question 7

jurisdiction to enforce

Answer 7

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

Question 8

jurisdiction to modify

Answer 8

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

Question 9

When will a court modify a child support order?

Answer 9

Based on substantial and continuing change of circumstances

Voluntary reduction in income not sufficent

Question 10

How does a court enforce a child support award?

Answer 10

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

Question 11

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 11

Passed to avoid jurisdiction disputes re: child custody and vistiation, promote interstate cooperate, and facilitate the interstate enforcement of custody and visitation orders

Question 12

home state jurisdiction

Answer 12

• 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)

Question 13

When does the “home state” rule not apply?

Answer 13

1. No other state has or accepts home state jdx
2. Child and at least one parten have significant connection to the state
3. Substantial evidence conerning the child is available in the state

Question 14

jurisidction to modify

Answer 14

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

Question 15

When may a court decline jdx in a child custody case?

Answer 15

• Forum non conveniens
• Party has engaged in unjustifiable conduct

Question 16

When can a court exercise temporary emergency jurisdiction?

Answer 16

• Child abandonment
• Child, sibling, or parent threatened with abuse

Question 17

best interest of the child

Answer 17

• 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

Question 18

guardian ad litem

Answer 18

• Counsel for the child
• Generally only appointed if they can provide substantial assitance in determining what is in the child’s best interst

Question 19

Interference with the Parent-Child Relationship

Answer 19

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

Question 20

Types of Custody

Answer 20

1. Joint custody
2. Sole custody
3. Custody to nonparent

Question 21

joint custody

Answer 21

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

Question 22

sole custody

Answer 22

• Awarded based on strong evidence that demonstrates BIOC
• Noncustodial parent generally gets reasonable vistiation unless some harm to child will result

Question 23

custody to nonparent

Answer 23

• 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

Question 24

parental visitation

Answer 24

• 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

Question 25

nonparental visitation

Answer 25

• Nearly all states entitle nonparents to vistiation rights
• Typically applied in extraordinary circusmtances (ex: parent has died)
• BIOC standard applies
• Prior relationship is generally the determinative factor
• SCOTUS: if parent is fit, wishes re: nonparental visitation are given “special weight” (overriding wishes requires more that BIOC)

Question 26

When will a court modify a custody decree?

Answer 26

• Burden of proof is on the party seeking the change
• Substantial and material change in circumsrtances affecting child’s wellbeing
• Courts may limit time between changes
• BIOC standard

Question 27

relocation

Answer 27

• Statutes generally require notice to other parent and ocurt hearing to determine whether relocation is permitted
• Courts look at BIOC, motivation, whether there is an intention to thwart relationship w/ other parent

Question 28

How does a court enforce a child custody order?

Answer 28

• Contempt proceedings, state habeas corpus proceedings, suits in equity
• Parental Kidnapping Prevention Act - full faith and credit to foreign custody and visition rights