Custody and Visitation

Question 1

Evolving Presumptions and Best Interests of the Child

What is the history of presumption in custody disputes?

Answer 1

• paternal control = father gained full custody of children because head of household + had property interest in his wife + kids
• tender years = children under 7 should be with their mother, unless she is unfit.
• best interest = custodial arrangement provides for the child’s immediate needs and maximizes the chance of a successful childhood

best interest has more discretion, depending on the standards set per state to determine best interests

Question 2

Pusey v. Pusey

Holding?

Answer 2

• Tender years presumption (maternal preference) violates Equal Protection due to gender bias.
• rationale of the doctrine is no longer applicable because structures of families look different now + denies custody to fathers despite capability

Question 3

Painter v. Bannister

In a custody proceeding, is the presumption of parental preference relevant?

Answer 3

• Can be considered when determining best interests, but must use best interests standard to determine custody.
• father’s home is unstable bc of lack of stable job.
• grandparents’ home is stable + his behavior has improved since moving with them.
• Parental presumption – biological or legal parents enjoy a presumption of custody that non-parents like grandparents can overcome only with a particularly strong showing
• today, as a constitutional matter, a custody between a parent and a non-parent cannot turn merely on best interest

Question 4

**Best Interests of the Child **

What standard of best interests does UMDA impose?

Answer 4

1. the wishes of the child’s parent or parents as to his custody
2. the wishes of the child as to his custodian
3. the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest
4. the child’s adjustment to his home, school, and community and
5. the mental and physical health of all individuals involved

many states have adopted this approach, with their own considerations

Question 5

Garska v. McCoy

What is the primary caretaker presumption?

Answer 5

• that the parent who currently provides care is more competent to do so in the future and that children benefit from continuing to be cared for by the same person as in the past
• superseded by best interests, caretaking is one factor now.

1. factors to consider include:
   * Preparing and planning means
   * bathing, grooming and dressing
   * purchasing cleaning and care of clothes
   * medical care including trips to doctor
   * arranging for social interaction among peers after school ex. scouts meeting
   * arranging alternative care as babysitting
   * putting child to bed at night and attending child in middle of night
   * disciplining child
   * education including religion
   * teaching elementary skills such as reading or writing

Question 6

Primary Caretaker

Assuming we have a child of tender years, what do we determine first?

Answer 6

• use factors to determine primary caretaker
• if equal caretaking, then consider best interests and suitability of parents
• if one of the parents is primary caretaker, and minimally fit, presumption kicks in = custody for that parent

Question 7

Primary Caretaker

What if the child is older than tender years?

Answer 7

• If child is above the age of 10, then apply best interests analysis.
• NOT primary caretaker.

Question 8

Young v. Hector

What standard of review does the appellate courts use to review the trial court’s decisions?

Answer 8

• Abuse of discretion
• fact-specific as to the best interests analysis

Question 9

Young v. Hector

what factors influenced the court?

Answer 9

• must consider factors other than gender to determine custody
• mom was constant provider and dominant influence
• she has a better temperament and ability to control her anger

Question 10

Young v. Hector

What is ALI’s approximation approach?

Answer 10

• unless resolved by agreement of the parents, the court should allocate custodia responsibility so that the proportion of custodial time the kid spends with each parent is the proportion of time each parent spent performing caretaking functions for the child prior to their separation or if they never lived together, before filing.

Question 11

Joint Custody

What are the benefits of joint custody and the different forms of custody?

Answer 11

• avoids choosing one party over the other
• views them both as involved parents
• physical custody → time a parent has living with the child → involves the time that a child physically spends in the care of a parent. during this time, the child resides with the parent and that parent provides supervision for the child and makes day-to-day decisions
• legal custody → authority to make/ legal responsibility for a child and making major decisions regarding the child, including the child’s health, education, and religious upbringing

Question 12

Rivero v. Rivero

What is joint custody and what are the expectations?

Answer 12

• in order to accommodate flexibility, state law meant that each parent should have physical custody at least 40% of the time to constitute joint physical custody
• (each parent having child for at least 140 calendar days; anything else is primary physical custody with visitation)
• Joint physical custody requires approximate equal time-sharing. (approximate)

Question 13

Bruegman v. Bruegman

What factors do Courts consider when determining joint custody?

Answer 13

• some states have a presumption to joint custody

factors include:
* parental interests
* conflict
* domestic violence
* benefits vs. disadvantages

Question 14

Parental Characteristics, Nondiscrimination, and Parental Fitness

What can’t a court consider to determine best interests of child?

Answer 14

• race
• gender identity
• gender expression
• sexual orientation

Question 15

Palmore v. Sidoti

holding?

Answer 15

• Considering race alone in custody violates Equal Protection.
• private biases is not enough to justify removing child from a fit parent.
• no actual harm done, just possibility of future stigma that could result from bias

Question 16

Palmore v. Sidoti

what’s the narrow vs. broad interpretation of Palmore?

Answer 16

• narrow = race cant be the sole determinative factor.
• broad = prohibition of race in consideration
• or prohibits consideration of race when not in child’s best interests

Question 17

Ex Parte J.M.F.

what is needed to grant a custody modification?

Answer 17

• A noncustodial parent seeking a change of custody must show not only that he or she is fit to have custody but that the change would materially promote the child’s best interest
• Requires a showing that the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the child

Question 18

Ex Parte J.M.F.

what is the nexus test?

Answer 18

• court to consider parental conduct only if it has a direct effect or impact upon the children
  Intended as a way to rebut presumptions against gay/lesbian parents in custodial decision-making

criticism because test implies that children can be uniquely harm by a same-sex relationship

Question 19

Arneson v. Arneson

Holding?

Answer 19

• Disability is not a per se impediment to custody.
• Courts must consider a parent’s actual capabilities and adaptations, not make assumptions based on disability.
• Emphasizes factors like stability, primary caretaker, and promoting a positive relationship with both parents.

Question 20

Disability

What does UMDA have to say about disability?

Answer 20

• incl. physical and mental health 402(5)
• Carney v. Carney – emphasizes the “mental” aspects of parenting: “it requires no detailed discussion to demonstrate that the support and even more the control of the child is primarily a mental function to which soundness of mind is a crucial prerequisite”
• Essence of parenting “lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout these formative years, and often beyond”
• Compare how Arneson and Carney re: BIC accommodating differing visions of parenting

Question 21

Custody Modification and Relocation Disputes

What does UMDA say about custody modifications?

Answer 21

• cannot modify until 2 years after its date,
• unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may seriously endanger his physical, mental, moral, or emotional health.

Question 22

Arnott v. Arnott

What constitutes a material change in circumstances to allow a custody modification?

Answer 22

• relocation
• is it in best interests of child?
• Custodial parent interest in relocating
  Interests in relocating – salary, moving closer to family (can benefit of the child)
• Non Custodial parental interest in continuing a familial parental relationship with parent and the child’s interest in also continuing that relationship

consider factors including:
* any change in the ability of the parties to maintain the existing parenting agreement,
* a change in the ability of the child to maintain a close relationship with the remaining parent [the one staying in the jurisdiction],
* factors affecting the quality of life in the new location,
* the child’s geographic preference, and
* the relative merits available social and educational opportunities in the new location”

Question 23

Child Custody Jurisdiction

what is home state jurisdiction?

Answer 23

• the State in which a child lived with a parent at least 6 consecutive months immediately before the proceeding.

Question 24

Child Custody Jurisdiction

if the child is under six months old, what jurisdiction applies?

Answer 24

• the home state is the state in which they lived from birth with a parent.

Question 25

Child Custody Jurisdiction

Is physical presence necessary to make a child-custody determination?

Answer 25

• No.

Question 26

Child Custody Jurisdiction

What court has jurisdiction over custody arrangements?

Answer 26

• State that made initial custody judgment has exclusive jx, if kid lives there.
• Court may not modify child-custody determinations made by another State unless has jx to make an initial determination.

Question 27

Child Custody Jurisdiction

Is there any other option besides home-state or the state where the initial custody judgment occurred?

Answer 27

• courts can grant emergency jx if a child has been abandoned or to protect a child.

Question 28

Visitation

What does UMDA say about visitation rights?

Answer 28

• UMDA section 407(a): a parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds after a hearing that visitation would endanger seriously the child’s physical, mental, moral or emotional health
• Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the children whether or not there has been any change of circumstances.”

Question 29

E.A. v. R.A.

Holding?

Answer 29

• there is a rebuttable presumption in favor of visitation rights, even when the parent seeking visitation is incarcerated.
• in this case, not in child’s best interests because he’s autistic and needs

Question 30

Tran v. Nguyen

holding?

Answer 30

• Sexual abuse can be sufficient to deny visitation.
• if an order limits or denies parent right to access to children, it must not exceed BIC.

Question 31

Desantis v. Pegues

holding?

Answer 31

• Mere allegations of abuse are insufficient to deny visitation; clear and convincing evidence required.
• Visitation is a constitutionally protected right, requiring a high standard of proof for termination.
• Emphasizes the need for substantiated evidence beyond allegations.

Question 32

Visitation Determinations

What are determinations the Court will make related to visitation

Answer 32

• Whether to grant physical or virtual visitation
• court will consider
  1. wishes of the parents/child
  2. relationship between parents and child
  3. ability of parent seeking visitation to supervise + care for child
  4. mental and physical health of all individuals involved
  5. distance between parents’ residence
  6. cost and difficulty of transporting the child
  7. each parent’s and child’s daily schedule
  8. ability of parents to cooperate
• State statutes provide standards that apply when there is evidence of DV;
  1. whether visits should be supervised or
  2. whether visitation will not seriously endanger the child.
  3. Some states have default visitation schedules, others allow judicial discretion and parental preference.
  4. Standard: 2 weekends a month until Sunday + at least 5 weeks of summer, + some holidays.