Exam Rules - Domestic Relations Flashcards
What is legal custody
Legal custody is the right of a parent to make major decisions about a child’s life. Legal custody typically encompasses education, religion, and health issues.
What is physical custody
Physical custody is the right of a parent to have their minor child reside with them. Typically, when a parent is granted only legal custody, they are entitled to reasonable visitation. Parents have a constitutional right to have contact with their children and thus the denial of visitation is exceedingly rare. Such denials only occur when visitation poses a serious threat to the child’s physical, mental, or emotional health.
What rights does a biological father have
An unwed biological father has a substantive due process right to have contact with his child if the father demonstrates a commitment to the responsibilities of parenthood.
Can a court modify a spousal support order
Yes, a Virginia court can increase, decrease or terminate payment, as circumstances demand, unless the parties contracted otherwise. New decrees only operate prospectively.
What must be found to authorize an increase in spousal support
(1) involuntary and unforeseen (2) material change in parties’ circumstances
What is the penalty for defaulting on child support
Avoiding child support payments is a misdemeanor with a fine of up $500 or imprisonment of no more than 12 months
When can a court deviate from the child support guidelines
The court can deviate from Virginia’s child support guidelines after making a (1) written finding that adhering to the guidelines would be (2) unjust or inappropriate (3) based on the relevant evidence of the particular case under the relevant statutory guidelines
When is marital property determined
At the time of the last separation of the parties
How long does a couple have to perform the solemnization after receiving a marriage license
60 days
What are the grounds for a annulling a void marriage
Bigamy, Incest, Nonage
What are the grounds for annulling a voidable marriage
Fraud, duress, mental incapacity, intoxication, impotency, felony conviction, concealed parenthood, prostitution
What is the legal effect of judicial separation
Judicial separation extinguishes each spouse’s right in property acquired after the separation, but does not allow either spouse to remarry.
What are the grounds for judicial separation
Cruelty or abandonment
What are the grounds for fault divorce
(1) Adultery, sodomy, or buggery (2) conviction of a felony (3) willful desertion (4) cruelty
Is there a waiting period for receiving a fault based divorce
There is no waiting period if the grounds for divorce are adultery or conviction of a felony with imprisonment of 1+ years. Abandonment and cruelty have a 6 month waiting period if there are no children, 1 year if there are children.
What are the requirements for a no-fault divorce
Living separate and apart without cohabitation for 1 year or 6 months. The parties must intend to live separate and apart permanently at the beginning of the uninterrupted period. A sexual encounter between the spouses after separation without the intent to resume cohabitation does not restart the period.
What is the “marital presumption”
A child born to a married woman is the child of her husband. This can be rebutted through a preponderance of the evidence.
When does a VA court have jurisdiction over child custody proceedings
(1) VA is and has been the child’s home state for a period of 6 months or since birth or (2) was the child’s home state in the past 6 months and the child is absent form the state, but a parent continues to live in the state
What factors are considered for child custody
(1) age and physical condition of the child and each parent (2) Relationship between each parent and the child (3) needs of the child (4) child’s preference if the child is of sufficient maturity (5) siblings (6) domestic violence
What must a third party demonstrate to earn visitation rights when both parents oppose their rights
(1) the denial of visitation would cause actual harm to the child (clear and convincing evidence); and (2) the visitation will serve the child’s best interest (preponderance of evidence).
