Child Support/Custody (Study A Lot)

Question 1

Paternity when the child is born to a married woman

Answer 1

1. legal presumption that her husband is the biological father of her child
2. can rebut presumption, usually by lack of sexual access at the time of conception.
3. Presumption applies if wife gets married when she’s pregnant.

Question 2

Paternity of child born through artificial insemination by anonymous sperm donor

Answer 2

1. if husband consents to insemination, he is presumed the father even if he isn’t biologically so

Question 3

Paternity of child born to an unmarried woman

Answer 3

1. if a man acknowledges paternity, and mother agrees, it’s settled.
2. But if no father steps up, need paternity suit
   
   1. burden of proof: C&C evidence
   2. Standard now is DNA evidence

Question 4

Subject Matter Jurisdiction for Child Custody

Answer 4

1. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
   
   1. Proper state for custody jurisdiction is the child’s home state
   2. Home state: where the child now lives and has been living there with a parent for at least 6 continuous months
   3. If no home state, SMJ where the home state was 6 months prior
   4. If no current home state or 6 months prior, jurisdiction is the state with the greatest connection to the child

Question 5

Exclusive Jurisdiction under the UCCJEA

Answer 5

1. Once proper state enters an order, it has continuing and exclusive jurisdiction
   
   1. so you can’t go to another state and file for a modification

Question 6

Child custody rule

Answer 6

1. court will make determination of custody based on BIC standard
   
   1. joint custody or exclusive available
2. No presumption in favor of one parent
3. Factors to consider (don’t memorize):
   
   1. physical, mental, and emotional condition of the child and both parents
   2. relationship forged with each parent and child
   3. Willingness each parent would have to let the other parent visit if they got exclusive custody
   4. Child’s preferences if kid is over age 12
   5. If parent has new companion, if that person is someone you want with the child
   6. Whether the arrangement could keep the siblings together
   7. History of domestic violence/child abuse
   8. If the parents live close together/can cooperate

Question 7

How to write a child custody answer

Answer 7

1. Pretend the kid is real and write down what you would actually do regardless of the parents or what the rules even say

Question 8

Custody Requests by Nonparents

Answer 8

1. BIC standard still applies
2. Presumption that custody of the biological parent is in the best interest of the child
   
   1. Nonparent must overcome this presumption
   2. Courts are very demanding and essentially require nonparent to prove parent is unfit

Question 9

Parental Relocation

Answer 9

1. if the primary custodian wants to move, have to notify court 30 days in advance of any planned relocation
2. Court will only allow child to be removed from Virginia if the relocating parent can prove that it’s in BIC
3. Court will consider whether reason for relocation is legitimate or fabricated
4. Court will consider whether relocation will impact noncustodial parent’s relationship with the child
   
   1. court can modify order to make the noncustodial parent’s relationship with the child as meaningful and continuous as possible

Question 10

Child custody modification

Answer 10

1. Either party can petition for it
2. Must show change in circs that affects BIC
   
   1. e.g. exclusive custodial parent is in a new relationship with a bad guy
3. Make sure to note in exam stability of the child’s arrangements

Question 11

Noncustodial parent and visitation

Answer 11

1. noncustodial parent always gets visitation
   
   1. it is assumed that it is in BIC to have continuing connection with both parents

if noncustodial parent will be a harm/threat to the kid, courts will order supervised visitation

Question 12

Nonparent who requests visitation

Answer 12

1. e.g. grandparents
2. parent has constitutional right to raise kid as they see fit and should choose who has access to the kid
3. Can only get visitation in spite of parent’s wishes by showing some kind of detriment to the child by not having visitation

Question 13

BIC standard in other situations

Answer 13

1. if it involves kids, but not even with custody, BIC is the standard. Even if it’s someone who finds an abandoned baby

Question 14

Child Support Duty

Answer 14

1. bio parents owe duty of support
2. if parent lives with child, their obligation is usually not addressed by the judge. Being fulfilled whenever the child’s needs are met
3. support orders usually go to noncustodial parent
4. Duty extended until child is 18, or, if still in school at 18, when the kid turns 19, or HS graduation, whichever comes first
5. If child is disabled, support obligation can be extended throughout the child’s lifetime

Question 15

How much Support Each Parent must give

Answer 15

1. Court will go to guidelines and determine if there is justification for a variance
2. If court varies from guidelines, there must be findings on the record in case of meaningful appellate review
3. Variance factors:
   
   1. special needs of the child
   2. economic circumstances of the party including income, assets, etc…

Question 16

Child Support in Prenup or Separation Agreement

Answer 16

1. that part of the agreement is always subject to judicial review. Cannot be waived

Question 17

Child Support Modification

Answer 17

1. Need material change in circumstances
   
   1. e.g. payor got fired, inflation, etc…
2. If parent remarries and has new child with the spouse, typically not a reason to decrease child support
3. If parent has increase in income, other parent can file for an increase
4. Can only modify future payments, not past due

Question 18

Ways to enforce child support payments

Answer 18

1. Garnish wages
2. Asset seizure
3. Contempt of court

Question 19

Enforcing child support payments if a payor parent moves out of state

Answer 19

1. Uniform Interstate Family Support Act, UIFSA
   
   1. adopted by all jurisdictions
   2. Provides that support order can be directly enforced across state lines
      
      1. can send it to employer or to court
   3. Provides that state that issued initial support order still has jurisdiction over the support order so long as any party still lives there