Children Flashcards

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1
Q

Children - Nonmarital Children - Right to Support

A

Nonmarital child cannot be denied support, government benefits, or wrongful death claims.

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2
Q

Children - Nonmarital Children - Right to Inheritance

A

Can inherit from father’s estate as long as paternity proved prior to father’s death.

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3
Q

Children - Nonmarital Children - Becoming Marital Child

A

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.

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4
Q

Children - Paternity - Evidence to Establish

A

Evidence = blood test ordered by court, prior statements regarding paternity by deceased family members, medical testimony about probability/improbability of conception, father’s acknowledgement.

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5
Q

Children - Paternity - Time Limit for Filing Petition Usually Unconstitutional

A

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.

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6
Q

Children - Paternity - Marital Assumption

A

Child born to married woman is assumed to be the child of that woman and her husband.

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7
Q

Children - Paternity - Paternity be Estoppel

A

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).

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8
Q

Children - Child Support - Personal Jurisdiction Over Out-Of-State Parent

A

Personal jurisdiction obtained via long-arm provision of Uniform Interstate Family Support Act (UIFSA).

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9
Q

Children - Child Support - Guidelines For Calculating

A

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.

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10
Q

Children - Child Support - Deviations from Guidelines

A

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.

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11
Q

Children - Child Support - Modification of Support

A

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.

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12
Q

Children - Child Support - Termination of Support

A

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.

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13
Q

Children - Child Support - Jurisdiction for Modification of Child Support

A

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.

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14
Q

Children - Child Support - Tax Consequences of Support

A

Child support is not income to recipient and not deductible by payor.

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15
Q

Children - Child Support - Enforcement of Awards

A

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.

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16
Q

Children - Child Support - Enforcement in Other Jurisdictions

A

Uniform Interstate Family Support Act - governs modification and enforcement of child support.

Application of UIFSA = when obligor or child reside in jurisdiction different than one where original order was made.

Registration of order = allows enforcement in the same manner and to the same extent as a child support order issued by the original state.

Only original state may modify the order; other state only responsible for enforcement.

17
Q

Children - Child Custody - Legal/Physical Custody

A

Legal custody = the right of a parent to make decisions about a child’s life (e.g. health, education, religion).

Physical custody = the right of a parent to have the child reside with the parent and the obligation to provide for the daily care and control of the child.

18
Q

Children - Child Custody - Joint Custody

A

Joint legal custody = neither parent has superior right to make major decisions.

Joint physical custody = parent’s share time with the child; does not require 50/50 time-sharing.

19
Q

Children - Child Custody - UCCJEA

A

UCCJEA = Uniform Child Custody Jurisdiction and Enforcement Act

Purpose = to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.

20
Q

Children - Child Custody - Jurisdiction Over Initial Custody Determination (“Home-State” Jurisdiction)

A

Requirements for jurisdiction =

i) child’s home state (for 6 months prior to hearing or since birth if less than 6 months); or
ii) was the child’s home state in the past six months, and the child is absent from the state, but a parent or guardian continues to live in the state.

21
Q

Children - Child Custody - Significant Connection Jurisdiction

A

A court can enter or modify an order if: no other state has or accepts home-state jurisdiction; child and at least one parent have a significant connection to the state; and there is substantial evidence in the state about the child’s care, protection, training, and personal relationships.

22
Q

Children - Child Custody - Default Jurisdiction

A

If no state has home-state or substantial connection jurisdiction, court in a state with appropriate connections to the child has jurisdiction.

23
Q

Children - Child Custody - Exclusive Continuing Jurisdiction

A

Court that makes the initial ruling has exclusive jurisdiction until parties no longer reside in state, or child no longer has significant connection to state.

24
Q

Children - Child Custody - Declining Jurisdiction

A

When a court has initial or exclusive-continuing jurisdiction, it may decline to hear a case if it finds forum to be inconvenient.

25
Q

Children - Child Custody - Temporary Emergency Jurisdiction

A

Requirements = child is in danger and requires immediate protection.

If there is no prior custody order, an emergency order remains in effect until a decision by the child’s home state.

26
Q

Children - Child Custody - Enforcing Out-of-State Orders

A

Registration of out-of-state order - need not be accompanied by enforcement request.

Expedited enforcement = hearing held on first possible judicial day after service of order.

Warrant for child custody = if the child is likely to suffer serious physical injury or be removed from the state.

27
Q

Children - Child Custody - Best Interests of Child

A

Standard for determining child custody = “best interests and welfare of the child.”

28
Q

Children - Child Custody - Factors for Best Interests of Child

A

Factors = who is the primary care taker during the marriage, separation, prior to divorce and at time of hearing, child’s preference (if mature enough), keeping siblings together, domestic violence (almost always a factor and some states have presumption in favour of nonabusive spouse).

29
Q

Children - Child Custody - Non-Considerable Factors for Best Interests of Child

A

Non-considerable factors = race, religion, parent’s sexual conduct (unless it has a negative effect on the child).

30
Q

Children - Child Custody - Third-Party Rights

A

Parents presumptively entitled to custody in cases against third parties. Exception = the legal parent is unfit or parental custody would be detrimental to the child.

31
Q

Children - Child Custody - Visitation

A

Noncustodial parent has right to reasonable visitation with a minor child.

32
Q

Children - Child Custody - Grounds for Denial/Restrictions of Visitation

A

Grounds = only if it would seriously endanger the child’s physical or emotional health. Instead, restrictions (e.g. supervision, denial of overnight visits, etc. ) may be imposed.

No denial for failure to pay child support.

Sexual relationship or cohabitation can be basis for restriction only if there is an adverse impact on the child.

33
Q

Children - Child Custody - Third Parties

A

Parent’s decisions regarding third-party visitation must be given special weight. Parent has fundamental right to care, custody, and control of children.

Stepparents and same-sex nonbiological co-parents = sometimes granted visitation, but typically only if acted in loco parentis prior to divorce.

Grandparents = subject to special weight given to fit parent’s decision.

Unwed biological father = fundamental right to have contact with child if he demonstrates a commitment to the responsibilities of parenthood.

34
Q

Children - Child Custody - Enforcement for Visitation

A

Sanctions available = compensatory visitation, attorney’s fees, court costs, fines, jail time, tort damages awarded to a parent for the time child was wrongfully out of their custody.

35
Q

Children - Child Custody - Modification

A

Standard = change in circumstances (in most states).

36
Q

Children - Child Custody - Relocation

A

May be permitted if there is legitimate and reasonable purpose for the move. Court’s advance permission needed? What about if no visitation rights?

37
Q

Children - Child Custody - Termination

A

Order terminates upon child reaching age of majority (or emancipation?).

Death of custodial parent = surviving parent is usually awarded custody.

38
Q

Children - Parent’s Rights - Consent to Medical Care

A

Parent consent to medical care must be obtained regardless of marital status except in the case of emergency.

A parent’s religious beliefs can be overridden by a court to prevent serious harm to the child.

39
Q

Children - Parent’s Rights - Upbringing

A

Parent has right to raise child as she sees fit; however parental decisions make be limited to protect the health/safety of child or if there is a significant social burden (e.g. vaccination).