Family Flashcards
Full Faith and Credit Act
Under the full faith and credit act, full faith and credit must be given to another court’s child support order if the court had jurisdiciton over the matter and the parties, and the parties had reasonable notice and an opportunity to be heard.
Uniform Interstate Family Support Act
Provides methods of enforcement and modificaitons of support orders issued in another state.
Another state can exercise jurisdiction only if:
* the second petition is filed before the time to answer the first has expired
* The petitioner objected to jurisdicition in teh first action
* The second state is the child’s home state
Another state can enforce a child support order in two ways:
1. direct enforcement - send to employer
2. Registration - issuing state sends order to residing state and its filed as a foreign judgment.
Modifying Child support orders
generally, the court that issues the child support order has continuing and exclusive jurisdiction to modify. Another state can only enforce it unless no party resides in the issuing state or parties consent to jurisdiciton elsewhere.
Child support is modifiable based on a substantial and continuing change of circumstance affecting the needs of the child or the ability of the parent to pay. (employment, growth of child, inflation, income, retirement, disabling illness)
- past due installments of support cannot be retroactively modified.
- can be enforced by contempt, intercepting tax refund, forfeiure of licenses, seizure of real estate, attachemnt on wages, order to pay attorney’s fees.
modification of existing decree of child custody
Under the Uniform Child Jurisdiction and Enforcement Act, the issuing court has continuing and exclusive jurisdicition until that court determines that:
* neither the child nor the parents continue to reside in the state, or * the child no longer has a significiant connection with the state and substantial eidence relating to the child’s care, protection, training and personal relationships is no longer available in the state.
* Court can decline jurisdicition if inconvenient forum or person invoking jurisdicition engaged in unjustifiable conduct.
Custody orders can always be modified - the burden of proof is one the party seeking modification.
* Custody will be modified only if there has been a substantial and material change in circumstnaces affecting the child’s well being. Child’s best interest is overriding concern.
ENFORCEMENT
May be enforced by contempt hearings, state habeas corpus proceedings, suit in equity.
under UCCJEA out of state decrees will be enforced if a certified copy has been filed with the clerk (doesn’t remove original state’s exclusive jurisdicition, but allows enforcement)
Under Parental Kidnapping Prevention Act full faith and credit must be given to another state’s custody/visitation decree if UCCJEA jurisdictional requirements are met.
Initial Custody determination
A court has jurisdiction to initially enter or modify a child custody or visitation order if the state:
* is the childs home state, or
* was the child’s home state wihtin the past 6 months and the child is absent from the state, but a parent continues to live in the state.
Court can decline jurisdicition if inconvenient forum or person invoking jurisdicition engaged in unjustifiable conduct.
home state
the state in which the child lived with a parent for at least 6 consecutive months immediately beofre the commencement of the proceeding, disregarding temporary absences.
When home state rule does not apply
a court can have jurisdiction to enter or modify a child custody/visitation order if no other state has or accepts home state jurisdiciton and:
* the child and at least one parent have signigicant connection with the state, and
* substantial evidence concernign the child is available in the state.
Child custody generally
Custody of a minor can mean legal custody (the right to make major decisions affecting the child’s life) or physical custody (actual possession and control of child)
Standard applied in awarding custody/visitation: best interest of the child. Factors:
* the wishes of the parents
* Child’s preference (for children 8 or older)
* Child’s relationship with parents and others involved
* Child’s adjustment to home, school, and community
* parties’ mental and physical health
* who has been the child’s primary caregiver
trial court is vested with great deal of discretion
In most states preference can’t be shown to one parent because of gender or financial ability
Tortious interference with the parent child relationship
parents have cause of action when child is tortiously injured, but child does not for when parent is injured.
parent whose lawful custody is interfered with may recover tort damages in actio for abduction or enticement. One who hides birth or location may be liable for civil conspiracy.
Factors when considering joint custody
- fitness of both parents
- whether the parents agree on joint custody
- the parent’s ability to communicate and cooperate concerning the child’s well being
- the childs preference
- the level of involvement of both parents in the child’s life
- the geographical proximity of the two homes
- the effect of the award on the child’s psychological development
- the parent’s ability to physically carry out the joint custody order
In most jurisdicitions joint custody is encouraged and will be awarded if both parties agree.
Visitation
If one parent is given sole custody, the other is usually entitled to reasonable visitation.
Court may limit right to visitation of parent engages in conduct that might injure child, but complete denial is rare.
Typically a nonparent may seek visitation if it is in the best interest of the child. Consider relationship between the child.
However, SCOTUS has said, if the parent is fit, their wishes on nonparent visitation are consitutionally protected and must be given special weight.
Factors to consider when awarding alimony
- Standard of living during marriage
- length of marriage
- age and physical and emotional condition of parties
- financial resources of parties
- contribution of each to the marriage (including homeare, childcare, support in career advancement)
- time needed for dependent spouse to obtain training or education to get employment
- ability of payer to maintain needs and pay
- marital fault deendingon jurisdicition.
awarding child support
Amount based on monetary need and ability to pay, bu court generally must follow statutory guidelines based on number of children, age, and special needs and the parents income.
Enforcement contempt; judgement against noncomplying party; seizure of wages; order to pay attorney’s fees; wage withholding; other
modificaiton A substantial change in circumstances affecting the needs of the children or the ability of the parents to pay.
termination Duty of support usually terminates upon emancipation, age, marriage or termination of parental rights.
Awarding spousal support
Amount Court has wide discretion. Considers factors such as prior standard of living, duration of marriage, financial resources of both parties, time and training needed for recipient spouse to become employable, etc.
Enforcement Contempt; judgment against noncomplying party; seizure of real estate; attachment of wages; order to pay attorneys’ fees; and other methods under UIFSA.
Modification A substantial change in circumstances regarding the needs of the recipient spouse or the payor spouse’s ability to pay.
Termination Periodic (permanent or rehabilitative) spousal support terminates on the death of either spouse or remarriage of the recipient spouse.
