Children Flashcards
Children - Nonmarital Children - Right to Support
Nonmarital child cannot be denied support, government benefits, or wrongful death claims.
Children - Nonmarital Children - Right to Inheritance
Can inherit from father’s estate as long as paternity proved prior to father’s death.
Children - Nonmarital Children - Becoming Marital Child
Can become marital child if parents marry after child’s birth, father consents to being named on the birth certificate, father acknowledges, or judicial decree.
Children - Paternity - Evidence to Establish
Evidence = blood test ordered by court, prior statements regarding paternity by deceased family members, medical testimony about probability/improbability of conception, father’s acknowledgement.
Children - Paternity - Time Limit for Filing Petition Usually Unconstitutional
Time limit for filing paternity petition is unconstitutional unless there is a reasonable opportunity to pursue and the limit is substantially related to the government’s interest in restricting such an action.
Children - Paternity - Marital Assumption
Child born to married woman is assumed to be the child of that woman and her husband.
Children - Paternity - Paternity be Estoppel
Husband who is not the biological father of his wife’s child may be estopped from denying his obligation to pay child support when: there is a representation that he would provide for the child, wife relied on the representation, and wife suffered economic detriment as a result of the reliance (e.g. did not pursue support from bio father).
Children - Child Support - Personal Jurisdiction Over Out-Of-State Parent
Personal jurisdiction obtained via long-arm provision of Uniform Interstate Family Support Act (UIFSA).
Children - Child Support - Guidelines For Calculating
Types of guidelines = income shares (most states; child should receive same proportion of parental income as if parties continued to live together) + percentage of income (uses percentage of supporting parent’s income x number of children to determine minimum amount of support).
NB: determination of parental income usually includes income from any source.
Children - Child Support - Deviations from Guidelines
Rebuttable presumption that amount calculated pursuant to guidelines is correct. Court must set forth specific findings to support deviation.
NB: cost of providing medical insurance is included in the guideline in most states.
Children - Child Support - Modification of Support
Standard = substantial change in circumstances regarding the child’s needs or the parent’s financial situation.
Most jurisdictions, no reduction for voluntary reduction in obligor’s pay.
Children - Child Support - Termination of Support
Grounds for termination = child reaches age of majority (although can continue if in college or disabled), child marries, parental rights are terminated, child or parent dies. Support may be terminated if child is emancipated before age of majority.
Children - Child Support - Jurisdiction for Modification of Child Support
Court that makes the original order has continuing jurisdiction (another court may not modify), until the parties, including the child, no longer reside in that state of the parties expressly agree to let another court to exercise jurisdiction.
If an aspect of child support may not be modified under the law of the state that made the original order, it may not be modified under the laws of any other state.
Children - Child Support - Tax Consequences of Support
Child support is not income to recipient and not deductible by payor.
Children - Child Support - Enforcement of Awards
Civil contempt - obligor with the ability to pay can be sent to jail until the amount owning is fully paid.
Criminal contempt - obligor who willingly fails to pay may be subject to jail sentence.
Other sanctions = interception of tax refund, report to credit bureau, suspension of driver’s/occupational license, seizure of assets, garnishment, ordering payment of attorney’s fees.