Children Flashcards
How is responsibility for support of children usually allocated?
Both parents have joint responsibility to provide support, necessaries, and costs of care and growth of their minor children.
Is an ex-spouse required to pay for private school or college?
Parents generally have no obligation to pay for a child’s private school or college education.
What standard is applied to custody and parenting responsibility decisions?
The best interests of the child governs custody and parenting responsibility. The child’s relationship will be maintained with both parents unless it is inconsistent with the best interests of the child.
What is the stability objective?
- In custody decisions, the court seeks to maintain the existing pattern of interaction between a parent and child, taking into account the natural changes resulting from divorce.
- Protecting a child from abuse or harm will take precedence over a particular visitation schedule.
What has the US Supreme Court held with regard to parental rights?
Parents have a right to raise their children as they see fit, including their customs, manners, and beliefs. A statute allowing courts to order grandparents’ visitation rights against the wishes of the parents violates this right.
What is required for a court to override parents constitutional right to raise their children as they see fit?
There must be clear and convincing evidence of:
- parental surrender
- abandonment of the child
- serious neglect to the health or safety of the child, or
- unfitness
What does a permanent parenting plan establish?
- residential and visitation schedules
- decision-making authority
What does federal law require in a permanent parenting plan?
One party must be designated the “primary residential parent” with whom the child spends a majority of time.
What factors does a court consider in establishing a permanent parenting plan?
- each parent’s historical involvement in meeting the child’s day-to-day needs
- the physical and emotional stability each parent can provide
- harmful behaviors
- the wishes of the children
What areas of decision-making authority will be subject to a permanent parenting plan?
- non-emergency healthcare
- education
- religious upbringing
Under what circumstances will a court order sole decision-making authority?
- conflict
- geographic separation
- domestic violence
When will the requirement that a permanent parenting plan contain a non-judicial dispute resolution process be waived?
when there is a history of domestic violence
What does it mean for a state to have an “age of discretion”?
Some states allow children who have reached a certain age to decide which parent they want to live with.
What circumstances would justify limiting a parent’s residential time with a child?
A parent’s residential time with a child may be limited where there is:
- willful abandonment of the child for an extended period of time
- refusal to perform parental functions
- physical, sexual, or emotional child abuse
- a history of domestic violence
What is the general rule regarding custody and visitation of non-parents?
As a general rule, non-parents may not petition the court for custody or visitation rights.
In states that recognize limited grandparents’ rights, when are these limited rights available?
When the grandparent serves as a caregiver of the child.
When is a primary residential parent’s relocation at issue (in some states)?
when the primary residential parent seeks to move outside of the child’s school district
What factors will the court use to determine if a relocation outside the school district should be allowed?
- child’s relationships with family members
- effect on the relationship with the other parent
- reasons for relocation or opposition (good faith)
- needs of the child
- overall impact of the move on the child’s development
- qualify of life and benefits to the child in a new location
What possible criminal liability could there be in connection with a permanent parenting plan?
Interfering with custody or visitation schedule may be a crime in some states.
What rights does a parent have if the other parent failed to comply with a permanent parenting plan?
- A parent’s non-compliance DOES NOT excuse the other parent’s obligations. The non-breaching parent must seek judicial relief: enforcement, contempt, or modification.
- A non-breaching parent may NOT withhold child support because the other parent has not complied.
Other than the non-breaching parent, who can take action when a parent fails to comply with obligations under a permanent parenting plan?
A state agency can initiate a neglect action.
What source of law governs child support?
The Model Uniform Interstate Family Support Act, which has been adopted in all states.
Under the Model Uniform Interstate Family Support Act, what rules apply to modification by another court?
A court cannot modify another court’s child support order if at least one parent still resides in the issuing state.
When is child support modified?
as conditions change
How is child support set?
Child support is based on a state schedule that takes both parents’ income into account and is adjusted for other expenses.
How are future expenses treated in a child support determination?
future expenses that may be shared “pro rata” as they arise (sports, lessons, camps).
What reasons support deviations (up or down) from the standard child support figure?
- support required for other children
- extraordinary time spent with the paying parent
- spousal resources
When are adjustments or modifications to child support made?
every two years by statute, or more frequently if the parents agree
When do adjustments or modifications apply?
Going forward. There are no retroactive adjustments or modifications.
What transportation expenses are included in child support?
long-distance travel expenses to accommodate visitation
How are long-distance transportation expenses allocated?
paid by both parents in proportion to their income
What health care costs are added into child support?
extraordinary healthcare costs in excess of an established monthly limit
How are extraordinary healthcare expenses allocated?
pro rata
What type of insurance might be required of a parent paying child support?
life insurance
How does education factor into child support?
There is no absolute obligation for a parent to support a child beyond the age of 18 or high school graduation. Sometimes a court will impose a post-secondary school support obligations considering:
(a) ability of both parents to contribute
(b) aptitude of the child
(c) whether either or both parents obtained post-secondary school education
(d) whether the parents intended to contribute toward post-secondary educational costs while they were married
When must post-secondary educational support be requested?
Before the child support obligation terminates.
What tax consideration is factored into child support?
Federal tax exemptions for dependent may be allocated by the court to either parent, to be divided between the parents, or to be alternate between the parents.
What source of law governs paternity in most states?
Most states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act, which established rules for paternity.
Why is paternity significant?
The court can only establish the rights an obligations of a legal parent, which only includes natural parents unless there has been a formal adoption.
When is there a presumption of paternity?
(1) if the child was born during the man’s marriage to the child’s natural mother, or
(2) within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, divorce, or a decree of separation, or
(3) if after the child’s birth, the man marries the mother and makes a writing:
(a) acknowledgement of paternity filed with the registrar of vital statistics (b) named on the child's birth certificate & agreed to it (c) written promise to support the child as his own
What is the time limit for a presumed father to seek a declaration of non-paternity?
2 years from the child’s birth, unless an exception applies
What exceptions exist to the 2 year time limit for a presumed father to seek a declaration of non-paternity?
(a) the presumed father never cohabited or had sexual intercourse with the mother during the time of probable conception, or
(b) the presume father never openly treated the child as his own
Can a court require a putative father to submit to genetic testing in a paternity action?
Yes, if paternity is contest, the court may require genetic testing.
What if a putative father refuses genetic testing?
Then the putative father will be adjudicated the father of the child.
What does the court consider in deciding whether to require genetic testing?
- probability of the outcome
- assumption of the father’s role
- how long the moving party waited to bring the action
- child’s age
- possible harm
How are egg and sperm donors treated by the court?
Egg and sperm donors are not parents of a child conceived by assisted reproduction.
When a child is conceived by assisted reproduction who is the child’s father?
Where applicable, a consenting husband of the woman who gives birth to a child by assisted reproduction will be the legal father of the child. Failure to sign a consent form will not defeat paternity if the husband openly treats the child as his own.
What determines maternity in a surrogacy arrangement?
(i) the woman who gives birth to a child resulting from a donated egg is presumed to be the mother
(ii) unless there is a written surrogacy agreement
(iii) signed by the egg donor, her doctor, the donnee, and any other intended parties
(iv) filed under seal in the registry of vital statistics
What is required of the natural parent for the court to order an adoption?
The natural parent must consent to the adoption and agree to relinquish all parental rights unless there has been an abandonment.
What is the statute of limitations for a consenting natural parent to move for an adoption to be set aside?
one year
What notice is required for an adoption?
A natural parent must be given notice:
- if by personal service in-state, 20 days before the hearing
- if by personal service out of state, 30 days
- if not by personal service, then by first class and certified mail 30 days before the hearing and by publication once a week for three consecutive weeks beginning 30 days before the hearing
What is the legal effect of adoption?
- The adopted child becomes the legal child, heir, and lawful issue of the adoptive parent.
- The adoptive parent gains parental rights and obligations.
- The parental rights of the original parent(s) is/are terminated.
If a child has an interest in a family law proceeding, how will the child’s interest be represented?
The court may appoint a guardian ad litem to determine and represent the best interests of the child.
