Custody and Support of Children, Rights of Parents and Others Flashcards
1) Custody
a) Custody determinations, generally
i) Custody is determined by looking at the best interests of the child. Some factors to look at in considering the best interests of the child include:
(1) Child’s preference: In all states, the preference of a child who is mature enough to form and express a preference is relevant to a custody determination. However, the weight given by states is different:
(a) Some states say the child’s wishes control if they are choosing between two fit parents.
(b) Other states say the child’s wishes may be discarded
(c) Some states are in between (i.e., making it a factor).
(2) Parent’s religious faith:
A court may not favor one religion over another. And, a court may not evaluate the religion when determining which parent should have custody; however, the court may evaluate the parent’s ability to provide for the physical and mental health needs of the child.
(3) Any other factor that is relevant to the child.
(a) Factors such as marital fault (e.g., one parent having an affair that destroys the marriage) will not be considered unless it affected the child’s welfare.
(4) Note: Meaningful contact with both parents is recognized as important for a child’s
well-being. Thus, there is a presumption in favor of both parents spending time with the child (i.e., by means of visitation) unless visitation is not in the child’s best
interest.
1) Custody
b) Kinds of custody
i) There are two types of custody over a child:
(1) Physical custody—this is the right of a parent to have a child live with him or her.
(2) Legal custody—this is the decision-making power of a parent (the right to make
important decisions).
ii) There are two types of custody given to parents:
(1) Joint custody—Many courts find that joint custody is a viable option only for parents
who are able and willing to cooperate with one another in making decisions for their child. Courts must consider any parental conflicts when deciding to grant joint
custody.
(2) Sole custody—This is when only one parent has sole legal or physical custody. This
is usually granted when the other parent is unfit. Courts are moving away from granting this kind of custody.
1) Custody
c) Custody modifications
i) One can modify custody only if there is a substantial change in circumstances.
Generally, this change must be unforeseen at the time of the initial judgment.
(1) Ex.: One parent’s relocation that significantly impairs the other parent’s opportunity to exercise custody and visitation rights provided in the initial order constitutes a substantial change in circumstances.
ii) The UMDA (Uniform Marriage and Divorce Act) authorizes a modification within two
years of the initial decree only if there is reason to believe the child’s present environment may seriously endanger his physical, mental, moral, or emotional health.
(1) Ex.: A change in the child’s preference may (particularly when the child is older) constitute a substantial change of circumstances.
2) Child support
a) Child support guidelines
i) Federal legislation requires that all states (as a condition of federal funding) employ
numerical child support guidelines and establish a rebuttable presumption that the
award that results from applying the guidelines to the facts is correct. The guidelines
must be applied in all cases, regardless of the parents’ marital status.
(1) The court will look at income and earnings of the parents, the number of children
and their ages, any special needs of the children, etc.
2) Child support
b) Modification of child support
i) In order to obtain modification of a future support obligation, the petitioner must show a substantial change in circumstances.
(1) A significant involuntary income reduction would warrant relief.
(2) A voluntary reduction in income is approached in two ways by courts:
(a) Refusal to modify: some courts refuse to modify whenever the income shift was
voluntary.
(b) Multi-factor test: other courts look at a multi-factor approach that includes looking at whether the party had good faith.
(3) The non-paternity of a child may not be enough to modify the child support obligation.
(a) Some courts say that a prior legal judgment bars non-paternity evidence based
on res judicata or collateral estoppel principles; some courts rely on equitable doctrines of estoppel and laches to achieve the same result.
(b) Others focus on the interest of the father. Some courts say it is in the best interest of the child to know the identity of the natural father.
2) Child support
c) Retroactive modification
i) Retroactive modification: Federal law absolutely forbids retroactive modification of
child support obligations absent circumstances such as fraud.
(1) Ex.: If a mother went from having custody of a child 50% of the time to 10% of the time, this is a substantial change in circumstances that would warrant a modification of the custody decree as well as child support. However, it would be a prospective change (moving forward) rather than retroactive.
ii) Unpaid child support: If child support is merely unpaid, then the amount unpaid may
not ordinarily be modified. (Some states will devise a way to protect the obligor if the
hardship is particularly severe.)
2) Child support
d) Length of child support
i) General rule (never been tested): Parents do not need to pay child support after the
child reaches the age of majority (18). Some states require support beyond this when the child is incapable of supporting him or herself because of a mental or physical disability, or if the child is still in high school.
ii) Exceptions
(1) Educational support or support for college
(a) In a number of states, a divorced parent may be required to pay for college or other educational support for a child over the age of majority. However, if the child is employable and disobeys reasonable parental commands, then parents may terminate support.
(b) Emancipation (never been tested): if a child is emancipated (financial independence, maturity, marriage, has children, etc.), a parent may terminate support.
2) Child support
e) Agreements regarding child support or custody
These agreements are generally not enforceable if they are not in the best interest of the child.
3) Relocation of parent and child
a) Generally, a move sought in good faith that will serve the child’s best interests will ordinarily be granted. The court will balance the impact on visitation by the noncustodial parent against the benefits of the move to both the child(ren) and the custodial parent. There are a few different views:
i) Some states place the burden of proof on the relocating parent and require that parent to show that the move would be in the child’s best interest.
ii) Other states place the burden of proof on the objecting parent to show that the move does not serve the child’s best interest (and other states go one step further and state that the objecting parent has to show the move would be harmful to the child).
iii) Lastly, some states allow the parent to move unless they are vindictive, or unless the
evidence shows an alternative reasonable visitation schedule is unavailable (in which case the court will not allow the parent to take the child).
4) Rights of parents and others
a) Right to make decisions
a) Right to make decisions
i) Decisions by a fit parent must be given some deference.
(1) Thus, statutes that give “no special weight” to a parent’s determination of his or her
child’s best interest (including who can visit the child) are unconstitutional.
ii) Parental decisions include:
(1) Decisions regarding religious upbringing
(2) Decisions regarding medical care (July 2019)
(a) Ex.: The parent decides whether a child receives surgery. A doctor who performs surgery on a child with only the child’s consent is liable in tort. There are some exceptions: usually emergency cases, or specific types of cases (e.g., venereal disease). Some states also make exceptions for older children near the age of majority.
iii) However, parental rights are not absolute and can be limited “if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.”
(1) Ex.: The state had a vaccination mandate. The parents of an unvaccinated child challenged this mandate as being outside of their constitutional right to parent. “The spread of preventable, contagious illnesses is a ‘significant social burden,’ ” and thus there was no basis to strike down this law.
4) Rights of parents and others
b) When does the father have rights?
i) Biological fathers generally have rights: under the U.S. Constitution, a biological father who has a significant relationship with his biological child has a substantive due
process right in that relationship.
(1) However, the state may make the parent exercise his rights within a specific time
limit.
(a) Ex.: If there is a statute that states an unmarried putative father must establish his paternity within two years, it will likely be upheld.
(2) Biological parents also have responsibilities to support their child, even if they did
not want a child.
(a) Ex.: Father did not want to have a child but his girlfriend became impregnated by him. He is required to support the child.
ii) Rights of a father (or parent) when another person wants to adopt a child
(1) An involved father who demonstrates a “full commitment to the responsibilities of
parenthood” will likely be able to successfully oppose an adoption petition by another person and is entitled to notice of such adoption proceedings.
(a) The U.S. Supreme Court has upheld state statutes that grant the unmarried father only a limited opportunity to object to his child’s adoption.
(i) However, if a father lives with a child for most of the child’s life and is an equal
participant in the child’s care, pays child support, takes an initiative to establish paternity and obtain joint custody, etc., then his parental rights cannot be severed without his consent or showing of parental unfitness.
(ii) On the other hand, if the father is minimally involved, the state will not grant the unmarried father a right to veto the child’s adoption.
(2) If a parent abandons a child, that child can be adopted by another without consent.
There are two tests to determine whether abandonment occurs:
(a) Subjective test: the courts that follow this test require proof that the parent subjectively intended to terminate the relationship.
(b) Objective test: the courts that follow this test look at whether the parent has acted in ways that indicate an intent to maintain a parent-child relationship.
iii) Common law presumption of parenthood
(1) Under common law, if a mother was married at the time she gave birth, her husband was presumed to be her child’s father. The Supreme Court has said such common law presumptions (codified by statute in many states) are constitutional.
4) Rights of parents and others
c) Adoption
i) Rights of biological parents
(1) An adoption order is a complete and final transfer of parental rights and responsibilities. Thus, biological parents have to consent to the adoption. (However, note the exception above for an uninvolved father.)
(2) Revocation of consent to adoption by biological parent: in most states, consent to an adoption may be revoked prior to the entry of the final adoption decree under
specific circumstances (e.g., fraud or showing adoption is not within the best interest of the child) or within some specified time limit.
ii) Rights of adoptive parents
(1) Dissolution of adoption (when a parent wants to undo an adoption of a child)
(a) Views on dissolution of adoption
(i) Traditional rule: a court could not dissolve an adoption order for any reason.
(ii) Modern rule: some states allow dissolution of adoption in special circumstances, like an undisclosed mental or physical illness.
(b) Factors a court will consider in evaluating a dissolution:
(i) length of the relationship,
(ii) child’s needs, and
(iii) parent’s motives.
iii) Equitable adoption (never been tested)
(1) Even if formal adoption procedures are not followed, some courts say that
a child is “equitably” adopted if the parent and child assume the roles of parent and child without a formal confirmation. Usually a child asserts this when the child wants to inherit from the parent.
iv) Assisted reproduction
(1) Note: Under the 1973 UPA, still followed by many states, a child conceived by artificial insemination by a donor is the legal child of the mother’s husband if he consented in writing and if the insemination was performed by a medical doctor.
(a) Under the Uniform Parentage Act (UPA), an individual who gives written consent
with the intent to be the parent of a child conceived by assisted reproduction is the parent of the child. UPA § 703.
(i) Absent consent, an individual who intends to be the parent of a child is the parent of a child conceived by assisted reproduction if either:
1. prior to conception, the individual and woman giving birth to the child expressly agreed to be the parents of the child; or
2. the individual resided with the child and woman giving birth to the child for the first two years of the child’s life and the individual was openly held out as the child’s parent. UPA § 704(b).
(b) Donor eggs—a woman donates her eggs to a recipient for purposes of conceiving a child.
(c) Gestational agreements—when an adult woman agrees to have a child through assisted reproduction. Court approval is generally required as well as a number of other steps, depending on the state.
4) Rights of parents and others
d) Grandparent and third-party rights
i) Custody dispute between a parent and a third party
(1) If there is a custody contest between a parent and a third party, custody in the parent is presumed to be in the best interest of the child. To rebut this presumption,
the third party must prove that the parent is unfit or that granting custody to the
parent would be highly detrimental to the child. Can take into account the child’s
preference (see above).
ii) Troxel v. Granville case
(1) In this case, the Supreme Court evaluated a state statute that said “any person” could petition for visitation rights “at any time” and authorized a court to grant visitation whenever it concluded that “visitation may serve the best interest of the child.” A plurality of the Supreme Court found that the statute provided inadequate
protection for a parent’s constitutionally protected liberty interest in the care, custody, and control of her child. Because the statute required the court to give “no special weight” to a parent’s determination of her child’s best interest, the court found it “contravened the traditional presumption that a fit parent will act in the best
interest of his or her child.”
iii) A grandparent visitation or custody statute that does not require the court to give any special weight to a parent’s determination of her child’s best interest is almost always unconstitutional as it violates a parent’s fundamental right to parent.
