Child Support / Custody Flashcards
Under the doctrine of equitable estoppel, a husband may be required to pay support for his wife’s child even when he is not the biological father when which requirements are met?
- There is a representation by the husband that he would provide for the child;
- The wife relied on his representation; AND
- The wife suffered an economic detriment as a result of the reliance
What kind of support is available to an unmarried cohabitant in a minority of jurisdictions?
Palimony. This is only available when the parties have lived together in a stable, long-term relationship.
When may a court deviate from the child support guideline, and how?
Deviations are permitted as the circumstances warrant.
The court must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the guidelines.
Who has jurisdiction to modify a child support order?
A state court with continuing jurisdiction may modify an existing order. Another state court may not modify an order rendered by a court of continuing jurisdiction in another state unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction.
Can states retroactively modify child support before the date of service of process?
NO. Although a modification to child support may be made for the period while the cause of action is pending, states cannot retroactively modify child support before the date of service of process.
Can a husband obtain prospective downward modification of his child support even though he voluntarily accepted a job with a lower salary?
Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child’s needs or the parent’s financial situation.
The parent requesting the modification has the burden of showing a substantial change in circumstances such as a significant decrease in income.
However, when a parent voluntarily changes his employment, a reduction in income alone is not sufficient proof of substantial changes in circumstances.
The courts will consider the parent’s earning capacity and other factors surrounding the change before deciding whether to modify the support order.
What is the purpose of the Uniform Child Custody Enforcement and Jurisdiction Act (“UCCJEA”)?
The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and requires the court to have subject-matter jurisdiction.
In an initial custody determination, a court has subject-matter jurisdiction to enter custody orders if the state is the child’s home state.
A state is the “home state” when:
- the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding.
A court can decline jurisdiction if the party has wrongfully removed a child from another state.
Most states have adopted the Uniform Child Custody Enforcement and Jurisdiction Act (“UCCJEA”).
What is physical custody?
Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child.
The standard for determining child custody is the best interests and welfare of the child.
What are some factors the courts use when determining child custody?
The standard for determining child custody is the best interests and welfare of the child.
In addition, courts can consider:
- who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody.
- Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody and some jurisdictions have created rebuttable presumptions in favor of the nonabusive spouse.
