Children

Question 1

What is necessary to effect an adoption?

Answer 1

1) Any (i) single adult; (ii) married couple; OR (iii) 2 unmarried adults in a intimate relationship can adopt another person (adult or child)
2) Any child or adult can be adopted

Adoptee under 18: needconsent of both biological parents & anyone else with legal custody (unless voluntary surrender or their rights have been terminated)

Adoptee OVER 14:adoptee must consent

3) In NY there is a policy of religious matching where possible
4) Family court has original jurisdiction over adoption proceedings; the Surrogate’s Court has concurrent jurisdiction

Question 2

How does a court determine child custody?

Answer 2

Standard = best interests of the child (BIC)
MUST say this in an essay involving a CHILD

FACTORS TO CONSIDER
- Look to parents health or whether there is drug abuse
- History of domestic violence (disqualification)
- Any other criminality
- Quality of new relationships of parents
- If kid is over 12, whether he’s expressed preferences
- Preserve sibling unity or significant family members

- Joint custodyawarded ONLY if parents get along			
- Should be geographically close
- Parent v. non-parent (same standard of BIC)
- Non-parent wins ONLY by showing that biological parent is (1) unfit; OR (2) there are extraordinary circumstances

NOTE: if parent is making good faith effort to be a good parent, court won’t likely take away custody

Relocation:IF custodial parent wants to move away, must go to Court & show that the move will be in BIC by the preponderance of the evidence

Visitation:is almost NEVER denied to biological parent; UNLESS parental rights have been terminated

- Not conditioned on paying child support
- Not conditioned on incarceration
- Grandparent right to visit:Parents have due process right to raise child as see fit →GP must show special circumstances sufficient to establish a “substantial state interest in allowing the visitation”

Question 3

Which state has jurisdiction over a child custody case?

Answer 3

A state can enter a custody orderIF

- It’s CURRENTLY the home state; OR									
- WAS SO within the last 6 MOS

Home state = state where kid has lived with parent for 6 MONTHS prior to commencement of proceeding

NOTE: No other state can issue a conflicting order over a state with valid jurisdiction

Question 4

When can a court terminate parental rights?

Answer 4

In Family Court, case must be established by clear and convicing evidence

Parent who’s the ∆ (rights being terminated) is entitled to appointed counsel

6 GROUNDS FOR TERMINATION

1) Abandonment: parentfails to visit/communicate with the child for at least 6 months
2) Perm. Neglect: child has been removed and is in agency care; Parent has failed for at least 1 year to plan for future of child or remain in contact with that child, even though physically and financially able to do so
3) Incarceration can be PROBATIVE of neglect (but not auto)
4) Abuse: physical/sexual
5) Disability: parent is unable to take care of kid due to mental disability
6) Parent murdered a sibling of a child

NOTE: Once rights are terminated, NO visitation rights for terminated parent

Question 5

What is a non-custodial parent’s obligation to pay child support?

Answer 5

Both biological parents must support their children through age 21 (or through college if, financial ability by parents)

Amount of Support:there are statutory guidelines that serve as a minimum, but can be modified if more is given by parent

A court order is ONLY addressed to a non-custodial parent (after a marital termination; non-marital child after filiation proceeding)

Follow-on considerations (given continuing obligation)

Modification of child support:permissible based on changed circumstances (automatic if there has been a 3 year time since last assessment; or if income has changed by 15% up or down)

Termination: death of parent/child OR when child reaches age of 21

Enforcement: by…

- Seize & sell property
- Attach parent's wages
- Seize drivers & professional licenses
- Hold parent in contempt of court (jail time)

Question 6

When must NY defer to the child support order of another state?

Answer 6

If valid, then ALWAYS!

Under the Uniform Interstate Family Support Act, every state must defer to the state that is the home state of the child that is receiving the support

Only the court which issued the original support order will have original, continuing, AND exclusive jurisdiction – this jurisdiction will continue until all parties leave the state

Makes support orders enforceable across state lines