Child Support & Custody

Question 1

Child Support

Answer 1

A child support order is generally entered only against the non-custodial parent.

Question 2

Child Custody

Answer 2

While both parents of a minor are living and are competent and fit, they are jointly entitled to the custody of the person of the minor. The parents have equal powers, rights and duties concerning the minor.

Question 3

Standard for Determining Custody and Parenting Time

Answer 3

Is the best interests of the child.

Question 4

Best Interests of the Child Factors

Answer 4

Include:

• the wishes of the child’s parent or parents as to custody
• the wishes of the child as to custodian (not controlling)
• the interaction and interrelationship of the child with parent or parents, siblings, and any other person who may significantly affect the child’s best interest
• the child’s adjustment to home, school, and community; and
• the mental and physical health of all individuals involved (DV weighs against joint custody)

Question 5

Aspects of Custody

Answer 5

Include:

• physical custody
• legal custody (the right to make decisions)

Question 6

Does Marital Fault Have Any Impact on Custody?

Answer 6

The fact that a parent was guilty of misconduct in connection with the divorce action will be relevant only insofar as the parent’s moral fitness affects the child’s welfare

Question 7

Visitation of Non-Custodial Parent

Answer 7

The non-custodial parent will generally be granted reasonable visitation rights, unless the court finds that visitation is detrimental to the best interests of the child.

Question 8

Visitation by Third Persons

Answer 8

Significant deference must be given to a legal parent’s wishes and objections to visitation

Question 9

Modification of Child Support Orders

Answer 9

Modifications of child support orders may be made only when there is a showing of a substantial and continuing change in circumstances making the prior order unreasonable.

Question 10

Can Child Support Obligations be Modified Retroactively?

Answer 10

Federal law prohibit it. States only allow it if the hardship is severe.

Question 11

Modification of Child Custody Arrangements

Answer 11

The prevailing view is that a court may modify a custody order upon proof of a material and substantial change in circumstances such that a change in custody will be conducive to the best interests of the child. Most courts require the change in circumstances to be unforeseen.

Question 12

Timing of the Custody Modification Petition

Answer 12

Most states disfavor, either by statute or case law, modification when sought shortly after a custody decree has been entered. Under the UMDA, if a modification petition is filed within two years of the original decree, it will only be heard if there is reason to believe that the child’s present environment may seriously endanger his physical, mental, moral, or emotional health.

Question 13

Interstate Enforcement of Family Support (UIFSA)

Answer 13

the UIFSA provides the governing law where more than one state is involved in a family support action.

Question 14

Initial Personal Jurisdiction Over Defendant

Answer 14

In a proceeding to establish, enforce, or modify a support order, a State X court may exercise PJ if:

• the person is personally served in state
• the consents by entering a general appearance or by filing a responsive document
• the person resided with child in the state
• the person resided in state and provided prenatal expenses or support
• the child resides in state as a result of the acts or directives of the person
• the person engaged in sexual intercourse in the state, and the child may have been conceived by the act
• the individual asserted paternity by filing with the DHS paternity registry; or
• there is any other basis consistent with the federal and state constitutions for the exercise of personal jurisdiction

Question 15

Continuing Exclusive Jurisdiction

Answer 15

Once a state has issued a child support order consistent with the jurisdiction requirements of the UIFSA, that state’s court has continuing exclusive jurisdiction over the order so long as:

• the child or any party still resides in the issuing state; and
• all of the parties do not consent to change jurisdiction to a new state

Question 16

Importance of Continuing Exclusive Jurisdiction

Answer 16

The state with continuing exclusive jurisdiction over the order is the only state that can modify the order, unless continuing exclusive jurisdiction is lost.

Question 17

Steps for Exam Q With a Child Support Modification Issue in More than One State

Answer 17

• Step 1 –> determine which court issued the original support order
• Step 2 –> if all the parties reside in a different state –> the issuing court no longer has continuing exclusive jurisdiction unless there is consent
• Step 3 –> if there is no consent –> the next step is to determine which state has jurisdiction to modify the court order
• Step 4 –> if the parties and the child all reside in the same state, that state has continuing exclusive jurisdiction to modify the order
• Step 5 –> as last resort the party seeking modification must register the order in the state with jurisdiction over the respondent and seek modification and enforcement there

Question 18

Interstate Enforcement of Child Custody (UCCJEA)

Answer 18

The UCCJEA is meant to create stability for custody determinations.

Question 19

UCCJEA: Initial Child-Custody Jurisdiction

Answer 19

Under the UCCJA, a state court can adjudicate over matters impacting the child if it has jurisdiction over the child

Question 20

4 Ways a State Court Can Establish Jurisdiction Over Child

Answer 20

1) To be the home state (when child has lived in state since birth or for the last 6 months)
2) Does state have significant connections to child (e.g. are there a lot of relatives in the state)
3) When the state is the more appropriate forum for the matter
4) Is the state the default jurisdiction
- physical presence or personal jurisdiction over a party is not necessary.

Question 21

UCCJEA: Continuing Jurisdiction

Answer 21

Once a state has made a valid child-custody determination under the UCCJEA, that state has exclusive jurisdiction over the determination until:

• a court determines that neither the child nor the child and one parent have a significant connection with the state, and substantial evidence is no longer available in the state regarding the child’s welfare; or
• a child or both parents move out of state

Question 22

UCCJEA: Two Reasons a State Can Decline to Exercise Jurisdiction

Answer 22

• State is an inconvenient forum

- Party engaged unjustifiable conduct to secure jurisdiction