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Bar Prep Questions + Rule of Law > Family Law > Flashcards

Family Law Flashcards

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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.

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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.

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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

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4
Q

what can parties agree to in antenuptial (pre-marital) agreements?

A

to the disposition of property at divorce and to alimony.

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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.

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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.

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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

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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)

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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.

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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.

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11
Q

marriage

what are the requirements?

A

license

ceremony with authenticated officiant

no legal impediments to marriage

capacity to consent

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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

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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)

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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

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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

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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.

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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.

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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.

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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.

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20
Q

support:

during marriage do spouses owe each other support?

A

Yes! doctrine of necessaries

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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.

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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.

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23
Q

what are they 2 types of tortious interference with marriage?

A

alienation of affection

criminal conversation

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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

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25
Q

tortious interference with marriage

criminal conversation

A

marriage of spouses

adultery between the defendant and the spouse during the marriage

proof of damage is required and is highly subjective

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26
Q

what is an annulment?

A

a declaration that a marriage is invalid

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27
Q

when is an annulment available?

A

defective marriages that are legally void or voidable

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28
Q

what is a void marraige?

A

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

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29
Q

uniform marriage and divorce act view on the validity of the marriage after removal?

A

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

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30
Q

what. is a voidable marriage?

A

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

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31
Q

what is the effect of an annulment?

A

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

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32
Q

divorce and separation

what determines jurisdiction?

A

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

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33
Q

can more than one state have proper jurisdiction over the divorce?

A

yes! cases can proceed in both states and once one state renders judgment the other will lose subject matter jurisdiction

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34
Q

what are the grounds for divorce?

A

no fault

fault

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35
Q

what is no fault divorce?

A

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

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36
Q

what is fault-based dirvoice?

A

adultery

desertion for a specified time

cruelty (physical or mental)

habitual drunkenness or abuse of drugs commencing after marriage

insanity

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37
Q

what is needed for adultery in a fault based divorce?

A

often proven by circumstantial evidence of opportunity and inclination

corroboration of adultery is often required

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38
Q

what is desertion in a fault based divorce?

A

unjustifiable departure from the marital home for a specified period with no intent to return

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39
Q

what are the defenses to no-fault divorce?

A

generally unavailable, but one spouse can claim reconciliation to restart the time clock for living separate and apart

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40
Q

what are the defenses to fault divorce?

A

rarely used but still exist

collusion

connivance

condonation

recrimination

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41
Q

what is the defense collusion to a fault divorce?

A

the parties agree to simulate the grounds for divorce

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42
Q

what is the defense connivance to a fault divorce?

A

the plaintiff willingly consented to the other spouses’ misconduct

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43
Q

what is the defense condonation to a fault divorce?

A

the plaintiff forgave the marital offense with full knowledge of the offense.

generally requires sex after forgiveness

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44
Q

what is the defense recrimination to a fault divorce?

A

the plaintiff is also guilty of marital fault

doctrine of unclean hands

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45
Q

what is legal separation?

A

permitted for the same grounds as divorce

referred to as “divorce from bed and board”

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46
Q

what is the effect of legal separation?

A

parties are still married

parties can seek to have their rights regarding property, spousal support, child custody, and child support decided

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47
Q

what happens to property during a legal separation?

A

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

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48
Q

why do people get a legal separation?

A

religious reasons, elderly, or keep status for insurance or tax benefits

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49
Q

what are the 3 main approaches to divide property at divorce?

A

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)

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50
Q

what is community property?

A

all property acquired during marriage is owned one-half by each spouse and property owned before marriage is separate.

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51
Q

are property distribution decrees modifiable?

A

NO!!!!

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52
Q

what is the process used in division of property?

A

classification

division

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53
Q

what is the classification process used in division of property?

A

determine what is marital property and what is separate property

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54
Q

what is the division process used in division of property?

A

make an equitable division of the marital estate no matter how the property is titled

REMEMBER: equitable division does not necessarily mean equal

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55
Q

what is separate property?.

A

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.

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56
Q

what is marital property?m

A

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

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57
Q

what are some special issues in classifications of property?

A

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

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58
Q

special issues in classifications of property

what is commingling?

A

separate property can become marital if the property is inextricably intertwined

courts will attempt to trace property

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59
Q

special issues in classifications of property

what is transmutation of separate property?

A

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

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60
Q

special issues in classifications of property

improvement of separate property?

A

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

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61
Q

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…..

A

marital

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62
Q

special issues in classifications of property

property acquired before marriage but paid for after marriage?

A

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

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63
Q

special issues in classifications of property

pensions

A

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.

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64
Q

special issues in classifications of property

processional license or degree

A

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
Q

special issues in classifications of property

tax consequences

A

property division is not taxable

66
Q

what is equitable division

A

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
Q

what are the factors used when making equitable divisions of marital property?

A

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
Q

how can the court divide the property when doing an equitable division?

A

in kind or by contribution

69
Q

alimony

what is it?

A

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
Q

what are the different types of alimony?

A

permanent periodic support

lump sum support

rehabilitative support

reimbursement support

71
Q

what is permanent periodic support?

A

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
Q

what is lump sum support

A

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
Q

what is rehabilitative support

A

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
Q

what is the purpose behind the rehabilitation support?

A

designed to restore disadvantaged spouses’ earning capacity to the point that he/she is no longer economically disadvantaged relative to the other spouse

75
Q

what is reimbursement support?

A

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
Q

what are the factors to be considered when awarding alimony?

A

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
Q

what are the TWO PRIMARY CONSIDERATIONS WHEN AWARDING ALIMONY?

A

need of the claimant spouse

and

ability of the other spouse to pay

78
Q

what is a modification of spousal support based on?

A

substantial and continuing change of circumstances affecting the needs of the recipient spouse or the ability of the other spouse to pay

79
Q

modification of spousal support

will the courts approve of a voluntary reduction

A

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
Q

when will termination of periodic payments take place?

A

remarriage of the recipient

death of either spouse

in some jdx, on the cohabitation with another person

81
Q

when will termination of lump sum payments take

place?

A

they survive death and are not modifiable

82
Q

what are the tax consequences of spousal support?

A

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
Q

what is a separation agreement?

A

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
Q

modifications to the separation agreement

A

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
Q

rights of unmarried persons

contracts between cohabitants

A

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
Q

child support

A

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
Q

child support

what approach do a majority of the jurisdictions take?

A

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
Q

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?

A

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
Q

child support paid in independently of visitation

TRUE OR FALSE?

A

TRUE!

90
Q

how long does child support last for?

A 
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
Q

how do you determine jdx over child support orders?

A

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
Q

how do you determine jdx over child support orders?

original jurisdiction

A

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
Q

how do you determine jdx over child support orders?

jurisdiction to enforce

A

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
Q

how do you determine jdx over child support orders?

jurisdiction to modify

A

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
Q

modification of child support orders

what is child support modification based on?

A

substantial and continuing change of circumstance affecting the needs of the child or the ability of the parents to pay

96
Q

modification of child support orders

is a voluntary reduction ground for modification?

A

will not be a ground for modification.

past due child support cannot be modified and is not a basis for prospective modification.

97
Q

tax consequences of child support orders

are child support payments taxable?

A

they are not considered income to the recipient nor deductible to the payor

98
Q

enforcement of child support awards

how are they enforced?>

A

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
Q

what does the uniform child custody jurisdiction and enforcement act apply to?

A

interstate custody disputes

100
Q

what is the primary test for initial award of custody?

A

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
Q

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

A

OR

102
Q

initial award of custody

if there is no home state, a court may assume jurisdiction if:

A

the child has a significant connection with the state and there is substantial evidence of the child’s well-being in the state

103
Q

initial award of custody

what happens if state with home state or significant connection jurisdiction declines?

A

a state can assume deferred jurisdiction

104
Q

initial award of custody

what happens if no other state exercises jurisdiction?

A

then any state can by default

105
Q

interstate custody and jurisdiction

modfication of an existing decree

A

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
Q

interstate custody and jurisdiction

declining jurisdiction

A

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
Q

temporary emergency jurisdiction

requirements

A 
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
Q

child custody

A

an umbrella term that includes legal and physical custody

109
Q

what is legal custody

A

includes the rights to make decisions regarding the child

110
Q

what is phsycial custody

A

includes the possession and control of the child

111
Q

what is the hallmark consideration of any custody or visitation case?

A

the best interest of the child

112
Q

what are the factors that the courts consider for child custody?

A

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
Q

what are the different types of custody and visitation awards?

A

joint custody

sole custody

custody of a non-parent

visitation

  • parent visitation
  • non parent visitation
114
Q

what is joint custody?

A

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
Q

what is sole custody?

A

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
Q

what is custody to a non-parent

A

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
Q

visitation

parent visitation

A

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
Q

visitation

non-parent visitation

A

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
Q

modification of custody

A

brought by motion of a party or the court in the original action.

the party seeking the modification bears the burden of proof.

120
Q

what is the standard for modification of custody?

A

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
Q

what is the overriding concern for modification of custody?

A

best interest of the child

122
Q

relocation:

A

many states have statues

GENERALLY: require notice to the other parent and a court hearing to determine whether relocation is permitted

123
Q

relocation:

what do the courts consider?

A

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
Q

enforcement of custody awards

violations of custody and visitation can be enforced through….

A

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
Q

enforcement of custody awards

out of state decree

A

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
Q

enforcement of custody awards

child kidnapping

A

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
Q

PKPA (federal parental kidnapping prevention act)

A

mandates that states give full faith and credit to another state’s child custody determination, if jdx is proper

128
Q

international kidnapping

A

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
Q

non marital children

standard applied?

A

intermediate scrutiny applies in an equal protection anaylsis!!!

REMEMBER: SUBSTANTIAL RELATIONSHIP TO AN IMPORTANT GOVERNMENT INTEREST

130
Q

non marital children

what is a parentage action?

A

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
Q

non marital children

presumption of parentage

A

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
Q

non marital children

presumption of parentage

can this be rebutted?.

A

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
Q

non marital children

unwed fathers

a child can be considered the child of an unwed father if:

A

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
Q

non marital children

unwed fathers

do they have rights to custody?

A

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
Q

non marital children

unwed fathers

can they be precluded from tort recovery?

A

Yes for the death of a child they did not legally recognize.

136
Q

non marital children

paternity suit

A

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

137
Q

termination of parental rights and adoption

what types of termination are there?

A

voluntary termination

involuntary termination

138
Q

termination of parental rights and adoption

what is voluntary termination

A

parents may voluntarily relinquish all rights to their children

139
Q

termination of parental rights and adoption

what is involuntary termination?

A

the state may not interfere in family decision making UNLESS the decision endangers the well-being of the child

140
Q

why may the state seek to terminate parental rights?

A

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

141
Q

adoption

what are the types of adoption?

A

agency
- licensed adoption agencies act as intermediaries

private
- private persons act as intermediaries

142
Q

adoption

requirements

A

termination of biological parents rights

creation of new parent rights

143
Q

adoption

requirements

how are parental rights terminated?

A

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.

144
Q

adoption

requirements

how are the new parental rights created?

A

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

145
Q

adoption

adoption records

A

are generally sealed unless biological parents consent to contact

146
Q

adoption

consequences of adoption

A

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

147
Q

assisted reproduction

A

an alternative to adoption

necessary that a person other than the intended parents are involved (surrogate or gamete provider)

148
Q

assisted reproduction

uniform parentage act (UPA)

A

now contains provisions related to assisted conception but has not been adopted by many jurisdictions

149
Q

assisted reproduction

maternity

mother-child relationship is established by:

A

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

150
Q

assisted reproduction

paternity

how is it established?

A

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.

151
Q

assisted reproduction

gamete donors

A

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

152
Q

assisted reproduction

posthumous conception

A

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.

153
Q

assisted reproduction

gestational agreements

A

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

154
Q

assisted reproduction

what is the gestational mother referred to as:

A

surrogate

generic surrogate: use of carrier’s own gametes

gestational surrogate: gametes are not her own

155
Q

assisted reproduction

when must the court approve a gestational agreement?

A

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)

156
Q

assisted reproduction

gestational agreements

does subsequent marriage or divorce of intended parents do anything to the agreement?

A

NO

157
Q

assisted reproduction

gestational agreements

can the agreement be terminated and if so when?

A

yes by any party at any time before embryo transfer

158
Q

assisted reproduction

gestational agreements

what happens if the agreement is unenforceable?

A

the gestational mother is considered the mother of the child regardless of biology

159
Q

assisted reproduction

gestational agreements

if the agreement is approved?

A

intended parents must file notice of birth and court will issue order of parentage

Bar Prep Questions + Rule of Law (15 decks)

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