Family Law Flashcards
(159 cards)
1
Q
Can someone make a claim for breach of the promise to marry?
A
Yes!
Rare today in most states
when used, provides for tort damages including actual damages as well as loss to reputation and mental anguish.
punitive damages may also be available.
2
Q
what are gifts in contemplation of marriage?
A
gifts made conditioned on the subsequent marriage, like engagement rings, are null if the marriage fails to take place.
consider the type of property given, the conditions attached and the intent of the donor.
3
Q
what are antenuptial (pre-marital) agreements?
A
many states have adopted the Uniform premarital agreements act (UPAA).
premarital agreements address rights of the parties in the event of death or divorce
4
Q
what can parties agree to in antenuptial (pre-marital) agreements?
A
to the disposition of property at divorce and to alimony.
5
Q
antenuptial (pre-marital) agreements
generally is a waiver of alimony upheld?
A
Yes unless doing so will cause disadvantaged spouse to become a public charge.
6
Q
antenuptial (pre-marital) agreements
can courts be bound by the provisions in an antenuptial (premarital) agreements?
A
courts will not be bound by provisions in the agreement regarding children- custody and support that is NOT in the best interest of child.
7
Q
antenuptial (pre-marital) agreements
what are the requirements for validity?
A
must be in writing and signed
entered into voluntarily without fraud, duress or overreaching
full disclosure of assets OR proof that party had independent knowledge
8
Q
antenuptial (pre-marital) agreements
under the UPPA, the court must determine what in order to find the agreement void?
A
that it was unconscionable when executed and then there whether there was a fair disclosure of assets or independent knowledge (also considered a waiver)
9
Q
antenuptial (pre-marital) agreements
what will some courts consider in questioning the validity?
A
the general fairness and whether the parties were represented by independent counsel.
10
Q
antenuptial (pre-marital) agreements
what law would be applicable to the agreement?
A
the parties can agree on the state law to apply and if not, the law of the state with the most significant relationship to the parties and the transaction OR the law where the agreement was executed will apply.
11
Q
marriage
what are the requirements?
A
license
ceremony with authenticated officiant
no legal impediments to marriage
capacity to consent
12
Q
marriage
what is a marriage license?
A
some stated require a medical certificate showing no disease
most states provide a 72 hour waiting period after the applicable before the ceremony can take place.
failure to meet procedural requirements will not invalidate the marriage
13
Q
marriage
what does it mean “no legal impediments to marriage”?
A
too closely related
- cannot marry ascendants, descendants, siblings, aunt/uncle, niece/nephew, whether by whole or half blood
- many states prohibit marriages between those related by marriage, step-relations, or adoption
married to someone else (bigamy)
14
Q
marriage
what does it mean to have capacity to consent to marry?
A
capacity: must have the mental ability to consent at the time of the ceremony
- consider someone under the influence of alcohol or drugs or mentally handicapped
age: must be of the age of majority, generally 18; parental (16-17) or judicial consent (under 16) required for underage person to marry
15
Q
marriage
common law marriage requirements
A
generally there are 3 requirements for a valid common law marriage:
consent to marriage (not just to cohabit)
-remember must have the capacity to consent and no legal impediments to wed
cohabitation
holding yourself out publicly as husband and wife
16
Q
marriage: common law marriage
in the states that do not permit common law marriage, will they recognize a common law marriage entered into in another state?
A
YES! they will regard the marriage as valid if entered into under the laws of a state that permits common law marriage.
17
Q
what is marriage by estoppel or putative marriage?
A
equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering into an invalid marriage.
in some states the putative spouse can acquire all of the rights of a legal spouse.
18
Q
property:
what happens to property in the event of a divorce?
A
each spouse owns and controls his or her own property but in the event of divorce, title will not be dispositive in the equitable division of property.
19
Q
property:
if spouses take title to property in their joint names what happens?
A
tenancy by the entireties is presumed and therefore one spouse cannot convey or encumber the property without the consent of the other.
20
Q
support:
during marriage do spouses owe each other support?
A
Yes! doctrine of necessaries
21
Q
support:
what is the doctrine of necessaries
A
can be used to make one spouse liable to 3rd parties for the other spouse’s purchases for necessary expenses, such as food, clothing and health care.
22
Q
spousal abuse orders
what are they and how long do they last?
A
laws in every state protect victims of domestic abuse both in and outside of marriage
the victim is entitled to a protective order against the other spouse which can be granted ex parte and can last for one month to several years depending on the jurisdiction.
23
Q
what are they 2 types of tortious interference with marriage?
A
alienation of affection
criminal conversation
24
Q
tortious interference with marriage
what is alienation of affection?
A
genuine love and affection between spouses who are validly married
love and affection was alienated and destroyed
defendant’s act caused the lost of love and affection
proof of damage is required and is highly subjective
25
tortious interference with marriage
criminal conversation
marriage of spouses
adultery between the defendant and the spouse during the marriage
proof of damage is required and is highly subjective
26
what is an annulment?
a declaration that a marriage is invalid
27
when is an annulment available?
defective marriages that are legally void or voidable
28
what is a void marraige?
fail to meet essential requirements, so invalid (utter nullity)
can be attacked by one of the parties or collaterally by a 3rd party
may or may not remedied by continued habitation after removal or impediment
EX: bigamy & too closely related
29
uniform marriage and divorce act view on the validity of the marriage after removal?
UMDA and some states permit the to be valid after removal of the impediment
ex: after the death of the prior spouse, void marriage can be validated
30
what. is a voidable marriage?
event or condition affecting adequacy of consent to marriage contract
treated as valid until annulled
can be attached only by or on behalf of a party to the marriage and in some cases only by the party who is sought to be protected.
marriage can be ratified by continued cohabitation after removal of infirmity
ex: non-age, incurable physical impotence, lack of capacity, duress, fraud, pregnant by another man
MUST affect an essential element
31
what is the effect of an annulment?
the marriage is set aside as if it never existed
child remain legitimate
child support can be awarded
spousal support may be awarded but not in all states
property generally treated as if never married; put spouses in "pre-marital" state
32
divorce and separation
what determines jurisdiction?
one of the spouses must be domiciled in the state seeking to enter the divorce
GENERALLY: if the spouse is a resident of the state for a min period of time (90 days to 6 months) then there is a presumption he is domiciled there and the court will have jurisdiction.
FINANCIAL ISSUES: the court must have personal jurisidiction over both parties
33
can more than one state have proper jurisdiction over the divorce?
yes! cases can proceed in both states and once one state renders judgment the other will lose subject matter jurisdiction
34
what are the grounds for divorce?
no fault
fault
35
what is no fault divorce?
allows for dissolution of marriage without regard to marital fault
CAN BE ALLOWED ON PROOF OF:
irreconcilable differences
- may require agreement of the spouses to get a divorce
living separate and apart for a specified period of time
- if the spouse agree, it is generally for a shorter period
- if it is unilateral no-fault, the time can be longer
incompatibility
36
what is fault-based dirvoice?
adultery
desertion for a specified time
cruelty (physical or mental)
habitual drunkenness or abuse of drugs commencing after marriage
insanity
37
what is needed for adultery in a fault based divorce?
often proven by circumstantial evidence of opportunity and inclination
corroboration of adultery is often required
38
what is desertion in a fault based divorce?
unjustifiable departure from the marital home for a specified period with no intent to return
39
what are the defenses to no-fault divorce?
generally unavailable, but one spouse can claim reconciliation to restart the time clock for living separate and apart
40
what are the defenses to fault divorce?
rarely used but still exist
collusion
connivance
condonation
recrimination
41
what is the defense collusion to a fault divorce?
the parties agree to simulate the grounds for divorce
42
what is the defense connivance to a fault divorce?
the plaintiff willingly consented to the other spouses' misconduct
43
what is the defense condonation to a fault divorce?
the plaintiff forgave the marital offense with full knowledge of the offense.
generally requires sex after forgiveness
44
what is the defense recrimination to a fault divorce?
the plaintiff is also guilty of marital fault
doctrine of unclean hands
45
what is legal separation?
permitted for the same grounds as divorce
referred to as "divorce from bed and board"
46
what is the effect of legal separation?
parties are still married
| parties can seek to have their rights regarding property, spousal support, child custody, and child support decided
47
what happens to property during a legal separation?
the court may divide marital property when legal separation is granted.
if so, after acquired property is separate property.
if no final property division at that time, property will be divided when (and if) divorce is granted
48
why do people get a legal separation?
religious reasons, elderly, or keep status for insurance or tax benefits
49
what are the 3 main approaches to divide property at divorce?
community property
equitable division of all property owned by either spouse
equitable division of marital property.
- each spouse takes his separate property and the property acquired during the marriage is divided equitably. (most popular)
50
what is community property?
all property acquired during marriage is owned one-half by each spouse and property owned before marriage is separate.
51
are property distribution decrees modifiable?
NO!!!!
52
what is the process used in division of property?
classification
division
53
what is the classification process used in division of property?
determine what is marital property and what is separate property
54
what is the division process used in division of property?
make an equitable division of the marital estate no matter how the property is titled
REMEMBER: equitable division does not necessarily mean equal
55
what is separate property?.
all real and personal property owned by a spouse before marriage, including assets held in individual retirement accounts
property acquired by a spouse at any time by gift, bequest devise or descent
property acquired in exchange for property acquired before the marriage
income from and appreciation of separate property
pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.
56
what is marital property?m
all property acquired by either or both spouses during marriage up to the final divorce decree
- some jdx use date of separation, or the date of filing for divorce
includes value of vested and unvested pension, vested and unvested stock options rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage
includes recovery in personal injury, worker's compensation, social security disability actions, and other similar actions for wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property
57
what are some special issues in classifications of property?
commingling
transmutation of separate property
improvement of separate property
property acquired before marriage but paid for after marriage
pensions
professional license or degree
tax consequences
58
special issues in classifications of property
what is commingling?
separate property can become marital if the property is inextricably intertwined
courts will attempt to trace property
59
special issues in classifications of property
what is transmutation of separate property?
separate property can become marital property based on the intent of the parties
EX: husband uses $10K of his separate property as a down payment on a home for him and his wife titled in both of their names. there can be a presumption of gift based on joint title and the $10K would be classified as marital property
60
special issues in classifications of property
improvement of separate property?
when separate property is improved by the use of marital funds
OR
the efforts of either spouse, courts in most jurisdictions will grant the marital estate or non-owning spouse reimbursement for the value added.
BUT
if neither spouse ever visited the property and the property had increased in value because an interstate exit was planned nearby, the increase value would remain separate because the increase was due to market factors, not the contribution of either spouse
61
EXAMPLE:
husband inherits a piece of property worth $1K during the marriage.
if the husband's labor improved the property and the improvements caused an increase in the value
OR
if marital funds were used to improve the estate
the increase due to the husband's effort would be.....
marital
62
special issues in classifications of property
property acquired before marriage but paid for after marriage?
courts are split!
majority view seems to be that property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property
63
special issues in classifications of property
pensions
considered to be marital property subject to division even if the non-working spouse did not contribute
courts use different formulas to calculate the share of the pension that was earned by the party during the marriage and the amount will be subject to division.
64
special issues in classifications of property
processional license or degree
are not considered to be marital property subject to division.
to avoid unfairness some jdx consider it when awarding alimony
a minority of jdx value the degree then award more property or alimony to the other spouse based on the valuation
65
special issues in classifications of property
tax consequences
property division is not taxable
66
what is equitable division
once the court ID's and values the marital property, the court will make an equitable division (not necessarily equal)
REMEMBER: the courts division of property is NOT subject to modification once the divorce is final.
67
what are the factors used when making equitable divisions of marital property?
age, education, background, and earning capabilities of both parties
duration of the marriage, and if there were any prior marriages
standard of living during the marriage
present income of both parties, and their vocational skills and employability
source of monthly used to purchase the property
health of the parties
assets, debts, and liabilities of the parties
needs of each of the parties
provisions for the custody of minor children
whether the distribution is in lieu of or in addition to alimony
each parties opportunity to acquire future income and assets
each party's contribution to the acquisition of or enhancement of the existing marital assets
each party's contribution as a homemaker to the family unit
AND
whether each party has dissipated marital property
REMEMBER: marital fault is not generally a consideration BUT can be!!!
68
how can the court divide the property when doing an equitable division?
in kind or by contribution
69
alimony
what is it?
paid to the economically dependent spouse
there are 4 kinds
court can award more than 1 kind
there is a trend to award less money than in the past becasue of the 2 earning households and less economic dependence
trial court vested with great discretion in awarding support
70
what are the different types of alimony?
permanent periodic support
lump sum support
rehabilitative support
reimbursement support
71
what is permanent periodic support?
ex:
periodic alimony of $2K per month to wife until her death or remarriage
duration:
indefinite
modification: can be increased, decreased, or terminated upon proof of substantial change or circumstances
72
what is lump sum support
ex: the sum of $36K paid at a rate of $1K per month for 36 months
duration:
for specified time period, can be payable in installments or in a lump sum
modification: none- treated like a contract right, binding on payors estate
73
what is rehabilitative support
ex:
rehabilitative alimony to wife of $1K per month for 36 months to gain education or skills
duration:
for a specified time period, unless modified by he court
modification: can be increased, decreased, or terminated upon proof of substantial change of circumstances
74
what is the purpose behind the rehabilitation support?
designed to restore disadvantaged spouses' earning capacity to the point that he/she is no longer economically disadvantaged relative to the other spouse
75
what is reimbursement support?
ex:
the sum of $20K as repayment for the supporting spouses' contribution to the increased education provided to the other spouse
duration:
for specified period of time; can be payable in installments or in a lump sum
modification:
treated as a contract right and can be awarded even if the supporting spouse is not otherwise eligible for spousal support
76
what are the factors to be considered when awarding alimony?
the standard of living established during the marriage
the duration of the marriage
the age and physical and emotional conditions of both parties
the financial resources of each party
- consider marital property, separate property, and whether the party will receive child support
the contribution of each party to the marriage; including but not limited to, services rendered in homemaking, childcare, education and career building of the other party
the time needed to obtain education or training to enable either party to find appropriate employment where applicable
AND
the ability of the payor spouse to meet his needs and pay support
in some jdx courts may consider marital fault
77
what are the TWO PRIMARY CONSIDERATIONS WHEN AWARDING ALIMONY?
need of the claimant spouse
and
ability of the other spouse to pay
78
what is a modification of spousal support based on?
substantial and continuing change of circumstances affecting the needs of the recipient spouse or the ability of the other spouse to pay
79
modification of spousal support
will the courts approve of a voluntary reduction
generally will not be sufficient to reduce the obligation (leaving job or incarceration).
it varies, but some courts will consider new legal obligations to another spouse or children in modifying spousal support
80
when will termination of periodic payments take place?
remarriage of the recipient
death of either spouse
in some jdx, on the cohabitation with another person
81
when will termination of lump sum payments take
| place?
they survive death and are not modifiable
82
what are the tax consequences of spousal support?
post 2019, spousal support payments are NOT income to the recipient nor deductible by the payor
divorce decrees entered and separation agreement executed before 2019, spousal support payment are deductible by the payor and are income to the recipient unless the instrument is modified to comport with the new rule
83
what is a separation agreement?
entered into after marriage and is enforceable if supported by consideration
there must be full and fair disclosure and the agreement must be entered into voluntarily
parties can waive alimony or property division and parties can agree on custody and child support but court is not bound by the parties' contract concerning children
84
modifications to the separation agreement
merged into the divorce decree:
if the divorce decree includes the terms of the agreement or expressly merges them, the provisions become part of the court order.
- it is modifiable by the court and subject to contempt
non-merger:
if the parties do not submit the agreement to the court, the contract is non-modifiable and is enforceable only by the contract remedies.
REMEMBER: child support and custody can always be modified if in the best interest of the child
85
rights of unmarried persons
contracts between cohabitants
are valid unless sexual relations is the only consideration (giving up career or taking care of the home may be enough).
express contracts regarding earnings and property rights will generally be enforced
implied contracts (partnership or construct trust) maybe used to award property.
86
child support
both parties share equally the duty to support their children based on the child's need and the ability of the parent to pay.
an agreement by parents that does not meet the needs of the child will not be enforced by the court.
courts have less discretion because of the proliferation of child support guidelines
87
child support
what approach do a majority of the jurisdictions take?
income shares approach
considers the number of children and the income of the parents to determine a base line of child support.
given discretion to add amounts for health insurance and other extraordinary educational expenses.
courts can deviate from the guidelines if it is in the best interest of the child.
88
child support example:
if mom earns $2K per month and dad earns $3K per month, their adjusted gross income is $5K per month.
per the chard, the basic child support obligation for 2 kids is $1,122 per month.
what will the mom be responsible for?
what will the husband be responsible for?
the mom is resposible for 40% of this amount or $448.80 becaxsue her $2K per month income is 40% of the total income of $5K.
the dad is responsible for 60% or $673.20.
mom is the custodial parent, dad will mom his share
89
child support paid in independently of visitation
TRUE OR FALSE?
TRUE!
90
how long does child support last for?
```
age of majority
OR
death of a child
OR
emancipation of child
OR
termination of parental rights
```
some states allow child support to continue past 18 if child still in high school until some age or completion of education
- MOST states will not extend child support to pay for college unless agreed on by the parties or provided by statue
support may continue for some longer period if the child is disabled
91
how do you determine jdx over child support orders?
the uniform interstate family support act (UIFSA) has been adopted by all 50 states and D.C. to simplify the collection of child support when the parties move out of state
92
how do you determine jdx over child support orders?
original jurisdiction
jurisdiction is proper where the first petition under UIFSA is filed
another state can only exercise jurisdiction if:
- the second petition is filed before the time to answer the first has expired
- the petitioner objected to jurisdiction in the first action
- the second state is the child's home state
93
how do you determine jdx over child support orders?
jurisdiction to enforce
the issuing court has CONTINUING jurisdiction to enforce
another state can enforce by:
direct enforcement
- obligee mails the order to the obligor's employer in anther state and the employer will withhold wages
registration
- child support order is registered in another state and is then subject to enforcement in that state
94
how do you determine jdx over child support orders?
jurisdiction to modify
once the court enters a valid child support order it maintains continuing exclusive jurisdiction during the life of the order unless no parties reside in the issuing state or the parties consent to another states jurisdiction.
95
modification of child support orders
what is child support modification based on?
substantial and continuing change of circumstance affecting the needs of the child or the ability of the parents to pay
96
modification of child support orders
is a voluntary reduction ground for modification?
will not be a ground for modification.
past due child support cannot be modified and is not a basis for prospective modification.
97
tax consequences of child support orders
are child support payments taxable?
they are not considered income to the recipient nor deductible to the payor
98
enforcement of child support awards
how are they enforced?>
through traditional civil and criminal contempt proceedings
parties may seize property, use wage withholding, intercept tax refunds and revoke licenses to enforce child support payments
99
what does the uniform child custody jurisdiction and enforcement act apply to?
interstate custody disputes
100
what is the primary test for initial award of custody?
home test
EITHER:
state where child has lived with parent for at least 6 consecutive months
OR
stat that was the child's home state within the last 6. months and the child is absent from the state, but a parent continues to live in the state
101
EXAMPLE OF HOME TEST (initial award of custody)
husband and wife married in OR and had 1 id. upon separation, wife takes kid to CA to live with her parents.
for the first 6 months of her absence________________ is the home state
OR
102
initial award of custody
if there is no home state, a court may assume jurisdiction if:
the child has a significant connection with the state and there is substantial evidence of the child's well-being in the state
103
initial award of custody
what happens if state with home state or significant connection jurisdiction declines?
a state can assume deferred jurisdiction
104
initial award of custody
what happens if no other state exercises jurisdiction?
then any state can by default
105
interstate custody and jurisdiction
modfication of an existing decree
the issuing state exercises continuing exclusive jurisdiction
UNLESS
no child or parent continues to reside in that state
OR
the child no longer has a significant connection with the state and there is no substantial evidence in the state
106
interstate custody and jurisdiction
declining jurisdiction
a court MAY NOT exercise jurisdiction if:
a proper proceeding was already pending elsewhere when petition is filed, unless the other court defers
OR
the person seeking to invoke the court's jurisdiction has engaged in unjustifiable conduct.
a court MAY DECLINE to exercise jurisdiction if it determines it is an inconvenient forum
107
temporary emergency jurisdiction
requirements
```
child is physically present
AND
the child has been abandoned
OR
it is necessary to protect child because child, sibling, or parent is subject to abuse
```
108
child custody
an umbrella term that includes legal and physical custody
109
what is legal custody
includes the rights to make decisions regarding the child
110
what is phsycial custody
includes the possession and control of the child
111
what is the hallmark consideration of any custody or visitation case?
the best interest of the child
112
what are the factors that the courts consider for child custody?
the wishs of the parent
the preference of the child
- children under the age of 8 are generally NOT considered but over the age of 12 are given great weight
- questioning occurs in chambers
the relationship of the child with the parents and siblings and others involved with parents
the child's adjustment to home, school and community
the mental and physical health of the parties
parent who was the primary caregiver
113
what are the different types of custody and visitation awards?
joint custody
sole custody
custody of a non-parent
visitation
- parent visitation
- non parent visitation
114
what is joint custody?
CAN MEAN:
joint legal, joint physical, or both
joint custody is intended to promote the involvement of both parents in the child's life.
is encouraged and will be awarded if the parents agree
consider factors like geographic proximity, ability to communicate, and whether the parents agree and can get along.
115
what is sole custody?
can be awarded to one parent when strong evidence demonstrates that it is in the best interest of the child.
the other parent will be entitled to reasonable visitation unless harm to the child will result.
116
what is custody to a non-parent
because of the constitutional protections afforded a parent, in a custody dispute between a parent and non-parent the standard is not simply the best interest for the child
the parent is entitled to custody unless the non-parent can show harm to the child OR unfitness
(abandonment, neglect, abuse, surrendered custody)
117
visitation
parent visitation
absolute denial of visitation to a parent is rare.
courts may deny and will restrict visitation (supervised) if injury to the child may result
118
visitation
non-parent visitation
every state has a statute that allows 3rd parties generally grandparents, to seek visitation.
```
applies in some extraordinary circumstance such as:
divorce
separation
OR
Death
```
if a parent is fit their wishes on non-parent visitation are constitutionally protected and must be given special weight
119
modification of custody
brought by motion of a party or the court in the original action.
the party seeking the modification bears the burden of proof.
120
what is the standard for modification of custody?
standard: whether custody or visitation issue, modification requires substantial and material change of the circumstances affecting the child's well-being since prior determination of custody
generally: states require a certain amount of time to pass since entry of the order unless the child's present environment is harmful to the child
121
what is the overriding concern for modification of custody?
best interest of the child
122
relocation:
many states have statues
GENERALLY: require notice to the other parent and a court hearing to determine whether relocation is permitted
123
relocation:
what do the courts consider?
is it in the child's best interest
motivated by a benefit to the family
and
not intended to mess with the relationship of the other parent
124
enforcement of custody awards
violations of custody and visitation can be enforced through....
civil contempt proceedings
state habeas corpus proceedings
- limited to physical custody
suit in equity
- asks the court to enjoin conduct in violation of the custody order
out of state decrees
child kidnapping
125
enforcement of custody awards
out of state decree
will be enforced if a certified copy is filed with the clerk of the court.
will not remove continuing exclusive jurisdiction of another state but will allow enforcement of the other in the state
126
enforcement of custody awards
child kidnapping
if the child is removed from the state, the custodial parent must file the custody order in the new jurisdiction and seek enforcement or obtain a writ of habeas corpus from the new jurisdiction.
generally a felony
127
PKPA (federal parental kidnapping prevention act)
mandates that states give full faith and credit to another state's child custody determination, if jdx is proper
128
international kidnapping
international parental kidnapping prevention act (IPKCA) and the hague convention on child abduction provide international relief when a child is wrongfully removed to a foreign country
129
non marital children
standard applied?
intermediate scrutiny applies in an equal protection anaylsis!!!
REMEMBER: SUBSTANTIAL RELATIONSHIP TO AN IMPORTANT GOVERNMENT INTEREST
130
non marital children
what is a parentage action?
can be brought to establish a biological relationship and settle issues of paternity. Once parentage is established, the parent owes support and has rights of custody and visitation.
131
non marital children
presumption of parentage
the husband of the mother is presumed to be the father if:
the child is born during the marriage
OR
the child is born within 300 days of termination of the marriage
OR
the child is born during a void or voidable marriage
132
non marital children
presumption of parentage
can this be rebutted?.
YES but requires heightened proof (clear and convincing)
even if the husband can prove he is not the biological father of the child, many states prohibit disestablishment of paternity based on the best interest of the child.
133
non marital children
unwed fathers
a child can be considered the child of an unwed father if:
after the birth of the child, the father marries the mother
the father holds the child out as his biological child
the father consents to his name on the birth certificate
the father acknowledges paternity (usually requires formality)
there is a judgment decreeing paternity
134
non marital children
unwed fathers
do they have rights to custody?
yes! they will be protected under the due process clause and can have rights to custody of their child if they demonstrate parental responsibility
this includes acknowledgment of paternity, supervision, education, protection, care and support
135
non marital children
unwed fathers
can they be precluded from tort recovery?
Yes for the death of a child they did not legally recognize.
136
non marital children
paternity suit
generally unwed mother to obtain child support from the father.
once paternity is established, the father can assert rights of custody and visitation
SOL is when the kid is at least 18
level of proof varies
blood or tissue sampling is the superior method of establishing paternity but testimonial and other medical evidence has been sufficient
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termination of parental rights and adoption
what types of termination are there?
voluntary termination
involuntary termination
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termination of parental rights and adoption
what is voluntary termination
parents may voluntarily relinquish all rights to their children
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termination of parental rights and adoption
what is involuntary termination?
the state may not interfere in family decision making UNLESS the decision endangers the well-being of the child
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why may the state seek to terminate parental rights?
infliction of serious physical harm on the child or other children in the household
abandonment
neglect or deprivation
failure to provide support for the child without cause for a specified time period (usually one year)
mental health of the parent that results in inability to care for the child
OR
parental unfitness
- physical or psychological
GENERALLY one parent can not seek to terminate the rights of another
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adoption
what are the types of adoption?
agency
- licensed adoption agencies act as intermediaries
private
- private persons act as intermediaries
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adoption
requirements
termination of biological parents rights
creation of new parent rights
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adoption
requirements
how are parental rights terminated?
consent of biological parents required unless:
rights were already terminated
if unreasonably withheld against the BIOC
consent of unmarried father:
required if father is actively involved in the child's life
may not be necessary if the parent has abandoned the child, failed to support for a certain length of time, or never attempted to establish a relationship.
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adoption
requirements
how are the new parental rights created?
consent of the adoptee
- in some states, adoptees over a certain age (12 or 14) must consent to adoption
home study
- most states require an investigation of the new home, but this can be waived for relative adoptions
payment of money prohibited!!!
- except for medical costs of pregnancy
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adoption
adoption records
are generally sealed unless biological parents consent to contact
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adoption
consequences of adoption
severs all rights and obligations of bio parents to child and creates duties to adoptive parents and child.
in some states: the adoptive child still has the right to inherit from bio parents
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assisted reproduction
an alternative to adoption
necessary that a person other than the intended parents are involved (surrogate or gamete provider)
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assisted reproduction
uniform parentage act (UPA)
now contains provisions related to assisted conception but has not been adopted by many jurisdictions
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assisted reproduction
maternity
mother-child relationship is established by:
birth of the child
UNLESS valid gestational agreement
adjudication of woman's maternity
adoption by the mother
adjudication confirming mother of child born to a gestational surrogate
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assisted reproduction
paternity
how is it established?
a husband who is married to a woman who has a child through assisted conception is the child's father unless he proves his lack of consent within 2 years after birth.
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assisted reproduction
gamete donors
egg or sperm donors are not parents of a child conceived through assisted conception
SOME JDX have allowed the sperm donor to have rights if agreed in writing by the donor and the woman
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assisted reproduction
posthumous conception
if a gamete provider consented in writing that his or her gametes could be used after death to conceive a child, that child can be considered the child of the deceased parent.
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assisted reproduction
gestational agreements
some states have filed to enact legislation on a surrogacy because they characterize the agreement as a sale of a child
gestational mother, her husband (if married) and intended parents must enter into a written agreement
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assisted reproduction
what is the gestational mother referred to as:
surrogate
generic surrogate: use of carrier's own gametes
gestational surrogate: gametes are not her own
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assisted reproduction
when must the court approve a gestational agreement?
court has jursidiction
child welfare agency has conducted a home study unless waived
agreement is found to be voluntary
provision has been made for health care costs until birth (agreement cannot limit rights of surrogate to make decisions regarding her health care or that of the fetus)
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assisted reproduction
gestational agreements
does subsequent marriage or divorce of intended parents do anything to the agreement?
NO
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assisted reproduction
gestational agreements
can the agreement be terminated and if so when?
yes by any party at any time before embryo transfer
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assisted reproduction
gestational agreements
what happens if the agreement is unenforceable?
the gestational mother is considered the mother of the child regardless of biology
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assisted reproduction
gestational agreements
if the agreement is approved?
intended parents must file notice of birth and court will issue order of parentage
