Children in Marriage

Question 1

Child Support

Answer 1

• Federally mandated - every state has child support guidelines
• GA follows detail statutory scheme set under the “child support obligation table” promulgated by the GA Child Support Commission.
• Courts have less discretion than they do for spousal support because of the child support guidelines

Question 2

Child Support Required for Child Visitation?

Answer 2

• Doesn’t require child support payments.
• However, non-payment can be used as a defense to a contempt action (not letting other spouse see the child) based on unclean hands doctrine.

Question 3

Termination of Child Support

Answer 3

• Ends at 18
• Does not include college expenses.
• A court can extend support to age 20 if child is still in high school.

Question 4

Modification of Child Support

Answer 4

• Only for substantial changes in circumstances.

- Would be based on change of need of child or ability to pay by parent

Question 5

Uniform Interstate Family Support Act (UIFSA)

Answer 5

• Allows recovery of child support from a non-resident of GA.
• The Act prefers petitions in the child’s home state.
• Purpose - simplify collection of child support

Question 6

Remedies for EITHER non-payment of child or spousal support

Answer 6

1. Contempt, including jail time until payments are brought current;
2. Judgment or levy, wherein the spouse becomes a judgment creditor;
3. Garnishment of wages
4. Attorneys fees

Question 7

Remedies for non-payment of child support only

Answer 7

1. Automatic wage withholding
2. Interception of tax refunds - can be collected if individual is delinquent by $500
3. Child Support Recovery Act, under which the State provides collection services. CSRA makes it federal offense to willfully fail to pay past due child support to child in another state if has been unpaid for 1 year or more or if amount due is greater than 5k.
4. Non-renewal of professional licenses (except lawyers)

Question 8

Child Custody and Visitation Determinations

Answer 8

-GA courts consider both legal custody (the right to make major decisions affecting the child’s life) and physical custody (the actual possession and control of the child). Can be joint or sole.

Question 9

When can Georgia make and initial award of custody pursuant to the UCCJEA - (Uniform Child Custody Jurisdiction Enforcement Act)?

Answer 9

1. If GA is the home-state of the child (or was the child’s home state w/in 6 months of proceeding)
   HOME STATE = the state where the child has lived with a parent for 6 consecutive months
2. If no state has home jurisdiction, then GA can assume jurisdiction if child has significant connections with GA and there is substantial evidence of child’s well-being in GA.
3. If no state has home jurisdiction and all other states decline because GA is more appropriate, GA can assume jurisdiction.
4. If no other state exercises jurisdiction, GA can by default.

Purpose of Act

Question 10

Ongoing jurisdiction of an existing GA custody degree

Answer 10

GA will exercise CONTINUING EXCLUSIVE JURISDICTION (the whole point of the UCCJEA) of an existing GA decree unless:

a. No significant connection or substantial evidence in GA, or
b. No child or parent reside in GA.

Question 11

Georgia Court’s modification of another a state’s custody decree

Answer 11

Mod. of another state’s decree: GA must have jurisdiction under either 1 or 2 of the UCCJEA AND the other state court no longer has continuing, exclusive jurisdiction.

Question 12

Declining Jurisdiction in Child Custody Case

Answer 12

1. GA court must not exercise jurisdiction if proper proceeding was already pending elsewhere when petition was filed in GA, unless the other court defers
2. If a party is engaged in unjustifiable conduct, the GA court must not exercise jurisdiction, unless all parties agree, the other state court defers, or by default.
   ex. Wrongfully taking child from another state

Question 13

Temporary Emergency Jurisdiction

Answer 13

Can be exercised by GA if:

1. Child is physically present in GA; and
2. The child has been abandoned OR it is necessary to protect the child (subject to abuse)
3. Orders remain in effect until a valid custody order is entered or until GA becomes home state because it becomes the final determination.
   - If a valid custody order exists or is pending in another state, the GA court MUST specifiy the time limit for the emergency order.

Question 14

Best Interest of the Child Standard

Answer 14

-Used for both custody and visitation. Factors include:
1. The parents’ wishes or agreement, though not binding;
2. The wishes of the child
-14+ child’s wishes controls if courts finds they
are in best interest of child.
-11-13, not controlling but considered)
3. The interaction and relationship of child w/ parents, siblings, and others who affect the best interests of child
4. The child’s adjustment to the home, school, and community (Don’t want to put out of comfort zone)
5. The mental and physical health of the individuals involved
6. Parental conduct and fitness
7. Any other relevant factors - ex. support from relatives

-No longer a presumption in favor of either parent

Question 15

Nonparent Burden in Establishing Child Custody

Answer 15

• GA courts will only decide custody issues against a parent in favor of a nonparent when the parent is shown to be unfit by clear and convincing standard.
• Parents have a constitutional liberty interest in raising their children.

Question 16

Modification of Child Custody

Answer 16

• The overriding concern is the best interests of the child.
• Generally, these custody awards are only modified for a substantial and material change in circumstances.

Question 17

Visitation RIghts of Parents

Answer 17

• Parents: When one parent gets sole custody, the other must be given reasonable visitation rights.
• Injury to the child is HUGE factor that can limit visitation.

Question 18

Nonmarital Children

Answer 18

One born to an unmarried woman is judged under an intermediate scrutiny level.

1. State statute cannot exclude nonmarital children from inheriting from intestate fathers. (Father can exclude child by will, though)
2. Nonmarital children cannot be precluded from suing for parent’s wrongful death solely because of their status as non-marital children.
3. A parent’s duty to pay child support does not depend on the child’s status as a marital or non-marital child.

Question 19

Paternity

Answer 19

Duty of support attaches with paternity. Custody may be asserted by the father.

*Paternity must be established by clear and convincing evidence.

Question 20

Requirements for Adoption

Answer 20

1. Consent of the adoptee: 14+ must consent to adoption in writing and acknowledged by a court.
2. Consent of the natural parents: Required consent of biological parents. Factors weighed by court when unmarried. Consent unnecessary when a person cannot be located, has abandoned or failed to support the child;
3. Investigation and court approval;
4. Only actual and legal expenses can be paid in connection with adoption;
5. Adult adoption is also permissible in GA.

Question 21

Expenses paid by adopting family

Answer 21

Only actual expenses and legal expenses can be paid under Georgia law in connection with the adoption of a child. Don’t won’t to promote baby selling.

Question 22

Legal Disabilities of Childhood

Answer 22

Contracts by minors are voidable at the option of the minor, except for contracts made for necessaries.

• Children 14+ may make will.
• Minimum age for tort liability is 13.

Question 23

Determining the Amount of Child Support to be Paid

Answer 23

Guidelines dictate a formula bases on a sliding scale that take into account:

1. Number of Children
2. Their Ages
3. Special Needs of Children
4. Parents’ Incomes (Not just salary)
5. Time spend with the child/children

Question 24

Jurisdiction for Child Custody and Visitation Decisions

Answer 24

When more than one state is involved, GA, like all other states, determines custody according to the provisions of the UCCJEA (Uniform Child Custody Jurisdiction Enforcement Act)

Question 25

Considerations for Awarding Visitation to Grandparents

Answer 25

• Grandparents have limited rights to seek visitation in divorce or custody proceeding
• Court must find that awarding such rights are:
  1. In the best interest of the child, and
  2. There would be harm to child unless visitation granted
• **Ga courts are also required to consider and may find harm is reasonably likely to result where:
  1. The child has lived with the GP 6 months or more
  2. GP has provided financial support for at least a year
  3. There is an established pattern of regular visitation or child care, or
  4. Any other circumstances indicated emotional or physical harm is likely to occur

Question 26

Standard of appeal for overturning trial court custody award?

Answer 26

• Must show trial court has abused its discretion

- Very unlikely to win

Question 27

When is a court not likely to award joint custody?

Answer 27

Courts generally will not award joint custody where the parents are so hostile to one another that cooperation is unlikely.