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Carson’s Bar Review > Family Law > Flashcards

Family Law Flashcards

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1
Q

Is there a COA for breach of a promise to marry (e.g. engagement and then one person calls it off)? What kind of claim is it? What can you recover?

A

Not in most states, but in the states that do recognize it, it provides tort damages including actual damages (money already spent on the wedding) and emotional/reputational damages. Can also get punitive damages

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2
Q

If you call off the engagement, do you have to give back the ring?

A

Yes, gifts that are conditioned on the marriage must be returned

This only applies to gifts that were given in contemplation of marriage - not all gifts

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3
Q

What is another term for premarital contract?
What do they address?
What law governs?
Is consideration required?

A

Antenuptial agreement
Addresses rights on divorce or death
The Uniform Premarital Agreement Act (UPAA) in most states
Consideration inherent in the marriage itself is sufficient consideration

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4
Q

What can be covered in an antenuptial agreement?

A

Disposition of property upon divorce or death (might make a will or trust alongside it), might have a choice of law provision, can address alimony but the court might limit enforcement if it renders one spouse a public charge

Child custody and child support provisions NEVER bind the court and are either void or subject to judicial scrutiny.

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5
Q

Often Tested

What is required for an antenuptial agreement to be enforceable?

A

1) Signed writing
2) Entered into voluntarily (absence of duress, fraud, overreaching)
3) Full and fair disclosure of the parties assets or proof that the party the contract is being enforced against had independent knowledge (but UPAA only looks at this if the agreement is unconscionable)
4) Some courts consider if the agreement is fair and reasonable (if both parties are repped by counsel, much less likely to be unconscionable; one party having counsel is a red flag)

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6
Q

Can an antenuptial agreement be enforced if the marriage is found to be void?

A

Only to the extent necessary to avoid an unequitable result

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7
Q

What law governs an antenuptial agreement?

A

If there is a choice of law provision, it is respected

If there is no choice of law provision, then the state where the agreement was executed or the state with the most significant relationship to the parties

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8
Q

What are the procedural requirements for a marriage?

A

1) License (maybe waiting period or STD check)
2) Solemnized (authorized officiant varies by state)

*Failure to meet the procedural requirements of a marriage does not invalidate it

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9
Q

Highly Tested*

What are the legal prerequisites to be married?

A

“He was drunk, 17 and still married to his sister”

1) Can’t be too closely related (certainly nothing lineal or closer than a cousin)
2) No prior undissolved marriages
3) Mental capacity to consent at time of ceremony (can’t be too drunk)
4) No fraud/duress/coercion/force
5) Legal age (16/17 need parental consent, younger need judicial consent)

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10
Q

What is required for a common law marriage?

Where is common law marriage recognized?

A

1) Consent to marry (just wanting to move in doesn’t count; must have capacity and meet the legal prerequisites)
2) Cohabitation
3) Holding themselves out publicly as married

Common law marriage is abolished in most states but if one is formed in one state, it is recognized in others

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11
Q

I got married but my spouse duped me and did not meet the prerequisites of a valid marriage so now it’s invalid. What rights do I have?

A

Can invoke marriage by estoppel or putative marriage equitable doctrines.
These are used to protect spouses who entered into a marriage in good faith. In some states can acquire all the same rights as a legit spouse

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12
Q

Can individual spouses own property after marriage?

Does holding title govern in divorce?

A

Yes, individual spouses can own and control property in their own names, but title is not dispositive in the event of divorce

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13
Q

If spouses take title to real estate jointly, what is likely to happen?
What happens in an attempted conveyance?
What happens on divorce?

What is most other property? What happens on divorce?

A

Likely to have a tenancy by the entirety created in many states.
This includes a right of survivorship and one spouse cannot convey without the other.
On divorce, the spouses become tenants in common
———-
Most other property is marital property and the court has broad discretion as to what to do with it on divorce

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14
Q

What is each spouse’s obligation to support the other?

A

The “doctrine of necessaries” can be used to make one spouse liable to third parties for food, clothing, healthcare provided to the other spouse - EVEN if the spouses are living apart

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15
Q

Does spousal immunity still exist?

A

Generally no, spouses can sue each other, but spousal immunity remains for highly private matters and simple domestic negligence

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16
Q

If one spouse wants to seek a protective order for domestic violence against the other, how can it be granted? How long does it last?

A

Can be granted ex parte initially (without even notifying the other spouse) and can last for up to 1mo to a year depending on the state

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17
Q

What is the Alienation of Affection cause of action?

What must be proven? What kind of damages are available?

A

If a third party steals/eliminates the affection of one spouse, the other spouse has a COA against them for alienation of affection (but lots of states have abolished this)

Must present evidence that there was genuine love and affection in a valid marriage before the third party intervened and that the third party was the cause of the loss (adultery not required - could sue in-laws)
Damages must be proven (punitive damages available)
Largely abolished

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18
Q

What is the criminal conversation cause of action?

What must be proven?

A

When one spouse has sex with a third party, the other spouse can sue the third party for criminal conversation.

Must prove the existence of a valid marriage and the act of adultery (COA might still be available even if living apart)
Largely abolished

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19
Q

What is an action for negligent interference with consortium?

A

A spouse can sue a third party if their negligence caused injuries that prevented the other spouse from having sex

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20
Q

What are the privacy rights protected under the due process clause of the 14th amd (absent narrow tailoring to a compelling govt interest)?

A

Marriage, Procreation, Contraceptives, Abortion, Co-habitation, education outside public school, child rearing

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21
Q

What is annulment?

What is the result?

A

A doctrine that declares a marriage invalid because some condition that existed at the time of the marriage made it legally void or voidable. Parties go to court to get a void or voidable marriage annulled and deal with the children/property aspects of it
The result is that it is as if the parties were never married at all

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22
Q

What is the result of a void marriage?

A

Void marriages carry no legal significance and parties can just walk away no court needed, but parties bring annulment actions to determine property distribution and child custody resulting from the void marriage

Can even be attacked by third parties (e.g. IRS, insurance Cos) and any interested party can seek an annulment

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23
Q

Can a void marriage ever become valid?

A

Yes under the Uniform Marriage and Divorce Act if the reason the marriage is void goes away (e.g. the preexisting spouse dies), then the marriage can become valid IF the parties continue to cohabitate

No under other state law (need to reattempt the marriage or go common law)

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24
Q

What arguments can the duped spouse make trying to preserve the marriage?

A

BUT the duped spouse can make 2 arguments:
1) there is a presumption that the most recent marriage is valid
2) if the prior marriage ends (divorce/annulment/death then continued cohabitation validates the marriage under the UMDA rule

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25
Q

What are the issues that result in a VOID marriage?

A

Bigamy

Too closely related (Consanguinity)

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26
Q

What issues result in a VOIDABLE marriage?

A

~Underage (or underage with lack of parental/judicial consent), but can ratify by continuing the marriage after reaching statutory age
Inability to have sex (or the inability to have children if that is fraudulently misrepresented)
~Lack of capacity (mental incapacity/under influence at ceremony)
~Duress
~Fraud regarding an essential element of marriage (e.g. misrep as to ability or willingness to engage in sexual relations or bear children or lying that guy was the dad when he wasn’t)

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27
Q

What is the legal significance of a voidable marriage?
What is required for a voidable marriage to be voided?

How can a voidable marriage become an unvoidable marriage

A

Voidable marriage is legally valid until it is declared to be null.
One of the spouses can get a voidable marriage voided (annulled) by bringing a legal action (but no attacks on voidable marriages allowed in unrelated proceedings). Sometimes only the party who suffered from the impediment can bring the action to annul

Voidable marriages can be ratified by continued cohabitation and presenting as married after the removal of the impediment (eliminates the ability to be annulled)

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28
Q

What is a defense to an annulment action?

A

If seeking to annul a void marriage, must argue that the impediment never existed (I’m not your sister or I’m not married) or has been removed and cohabitation continued in a UMDA state

If seeking to annul a voidable marriage, must argue that either the impediment never existed or that it was ratified after the fact (can also defend with laches or estoppel but those are usually wrapped up in ratification)

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29
Q

How are children that are born into a marriage that is now annulled treated?

A

Just like children of an actual marriage in a divorce action

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30
Q

How is spousal support determined in an annulment action? Does spousal support from a prior marriage that terminated on remarriage spring back?

A

Spousal support only available in some states, and if spousal support from a previous marriage was terminated on remarriage, it will not be reinstated on annulment

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31
Q

How is property divided in an annulment?

A

Courts try to restore the parties to their pre-marriage position

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32
Q

Do other states respect an annulment decree?

A

In states without a statute on the issue, annulment actions are in courts of equity.
Among states, the state of domicile of either of the parties has jurisdiction to hear the annulment action. Some states also allow the state where the marriage was celebrated to have jurisdiction
———-
Annulment decrees with proper jurisdiction get full faith and credit

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33
Q

What kind of action is a divorce proceeding for jurisdiction purposes? What is the significance of this?

A

An in rem action (so certain types of constructive service like publication is effective)

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34
Q

What is required for a state to have jurisdiction over a divorce?
What is required for a state to have jurisdiction to divide property or impose alimony?
—–
Can more than one state have jurisdiction over a divorce? How does that work?

A
  • If either of the parties is domiciled in the jurisdiction and have met the minimum residency requirement (e.g. 90 days)
  • ## Personal jurisdiction over both parties is required to divide property or impose alimony (but exception for marital property within the state)More than one state can have jurisdiction over a divorce, so multiple proceedings can go in parallel until one court enters a judgment and that causes the other proceeding to be moot
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35
Q

What kind of jurisdiction is required to get full faith and credit from other states?

How are foreign divorce decrees recognized?

A

If at least one party is domiciled in the state, the divorce itself gets FF&C
Personal jurisdiction over the defendant is required for property rights, spousal support, child support, and other financial issues to be given FF&C
———-
Foreign divorce decrees are recognized under “comity” if one party was domiciled in the country rendering the judgment

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36
Q

Some states require mediation. What are the ground rules for mediation?
What are the mediator’s duties? What happens if the mediator violates any of these duties?

A

Decision reached must be the decision of the parties and not the decision of the mediator. The mediator must remain impartial and disclose any bias.
Mediator must….
- explain the process and the right to independent counsel
- ensure that the parties have enough info for informed decision making
- control for any power imbalance between parties
^If the mediator violates any of the above, the court may set aside the agreement

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37
Q

If one spouse is ready to be divorced and the other still thinks there’s hope, can they be divorced in a no fault state (assuming they have lived apart for long enough)?

A

Must show BOTH:
1) Both spouses agree that the marriage is irretrievably broken (unreconcilable differences) and they can no longer be married
2) Parties have been living apart for the specified and continuous period of time (shorter if both spouses want the divorce but 90 days-18 mo)
———-
Yes, one spouse’s believe that the marriage can be saved will not prevent divorce if the other spouse is done and they have lived apart for the required period.

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38
Q

What are the usual fault based grounds for divorce?

A

1) Adultery (filing spouse presents circumstantial evidence of opp and inclination - corroboration often required)
2) Willful Desertion/Abandonment (unjustified departure from the marital home for a specified period with no intent to return. Fleeing abuse is not unjustified)
3) Extreme Mental or Physical Cruelty
4) Drug Addition/Habitual Drunkenness commencing after the marriage
5) Insanity

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39
Q

What are the defenses to a no-fault divorce?

A

Have to deny the existence of one of the above grounds. Can claim that temporary reconciliation restarted the clock

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40
Q

What are the defenses to fault based grounds for divorce?

A

These are rarely used…
Collusion (agreement between the spouses to simulate grounds for divorce or forgo raising a valid defense)
Connivance (willing consent to the other spouse’s misconduct - can’t consent to adultery for years and then all of a sudden revoke)
Condonation (Knowledge + forgiveness then resumption of marital relations after)
Recrimination (Party seeking the divorce has also committed some misconduct for which divorce can be granted)

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41
Q

What showing is required for legal separation?

What is the effect of legal separation?

A

In the states that recognize it, legal separation requires the same showing as divorce.

Does not terminate the marriage, but all of the property rights, spousal support rights, custody and child support CAN be adjudicated in a separation proceeding (but don’t have to be)
IF the court divides the marital property at a separation proceeding, any after acquired property is separate property. (but if no division, then no separateness going forward)

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42
Q

*Highly Tested
What are the three approaches to division of property upon divorce?
—–
What is the most common approach?

A

1) Community Property Regime (community property split 50/50 and each spouse keeps their separate property)
2) Equitable Division Regime (Court divides all property regardless when/how it was acquired)
3) Equitable Division of Marital Property (Each spouse keeps their separate property and court divides the marital property equitably)
———
The most common is the equitable division of marital property

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43
Q

*Highly Tested
What is community property?
—–
What is separate property?

A

Marital property = all property acquired by the spouses during the marriage including earnings, vested/unvested pensions/stock options even if they vest after divorce, comp for wages lost/med expenses during the marriage due to personal injury

Separate property =
all property brought into the marriage by the spouses,
all gifted/inherited property,
property acquired in exchange for separate property,
pain/suffering awards,
personal damages like FUTURE med expenses/lost wages,
appreciation to separate property,
property acquired after legal separation that divided property

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44
Q

If a spouse receives a payment on a personal injury or other legal judgment, what should you think about when classifying it as marital or separate property?

A

You should think about what the payment is replacing.
If comp for wages lost during the marriage, it’s marital property
If comp for medical expenses incurred and paid with marital property, it’s marital property
If comp for future wages/med expenses to be incurred after the divorce, then it’s separate property

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45
Q

What process should you use for a property division question?

A

1) Classify property as Separate or Marital
2) Divide according to the regime in play (regardless who holds title)
- equitable division may be equal but it doesn’t have to be

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46
Q

Can property division decrees be modified?

Can alimony orders be modified?

A

No

Yes

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47
Q

How can separate property become marital property?

A

Either through:
Commingling (must be inextricably intertwined with marital property or the separate property of the other spouse so that it can no longer be traced - non separate bank account)
OR
Transmutation (Separate property treated in a way that evidences INTENT to make it marital property - like titling the property in both spouses names)

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48
Q

What happens when separate property is improved using marital property (or the spouses own effort)?

What happens when separate property increases in value due to market forces and not capital contributions/work?

A

If separate property increases in value due to market forces, that increase is all separate property

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49
Q

How is property that is acquired before marriage but is paid for after marriage classified?

A

Majority View: Ownership of property is split according to the % of funds paid towards it that were separate/marital
Minority (Inception of Title) View: Inception of title governs (and acquiring spouse will own) but the nonowning spouse is entitled to reimbursement of payments made with marital property

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50
Q

How is a pension/retirement account classified as marital or separate property?

A

The portion of the pension/account earned during a marriage is marital property subject to distribution

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51
Q

How is a professional license/degree classified as marital or separate property?

What is the mechanism to deal with one spouse working while the other goes to school?

A

It’s not distributable property

Some jurisdictions use alimony to compensate the supporting spouse for their contribution to the other spouse’s education

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52
Q

Is a property division in a divorce a realization event for tax purposes?

A

No

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53
Q

What is considered in an equitable division of marital property?

A

Trial court has a lot of discretion and there is no later modification. The following factors are considered:

  • age/ed/earning capacity
  • duration of marriage (can unscramble the egg?)
  • standard of living/needs
  • present incomes
  • source of funds to purchase property
  • health of the parties
  • alimony
  • contribution to the acquisition of assets or to homemaking
  • economic fault (dissipation of marital property)
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54
Q

Does marital fault affect property division?

Does marital fault affect alimony?

A

No

Yes (in some states)

55
Q

When (temporally) can alimony be awarded?

A

Can be awarded during marriage, during the divorce proceeding, or as part of a divorce decree

56
Q

*Highly Tested
What are the different types of alimony? Which are modifiable?
Can a court award more than one type?

A

1) Permanent Periodic Spousal Support (Modifiable)
2) Lump Sum (Nonmodifiable)
3) Rehabilitative Spousal Support (Modifiable)
4) Reimbursement Spousal Support (Nonmodifiable)
Multiple forms can be given

57
Q

What is Permanent Period Spousal Support alimony?
Duration?
Modifiable? Effect of Death?

A 
Regular payments to support a spouse who does not have the resources or capacity to be self-sustaining
Indefinite duration (until death or remarriage)
Can be modified upon proof of substantial change of circumstances. Terminated on death of either spouse
58
Q

What is Lump Sum spousal support?
Duration?
Modifiable? Effect of Death?

A

A fixed amount payable either all at once or in installments - often the present value of permanent periodic support
Duration is either a single payment or the installment period
No modifications (treated like a contract and binding on payors estate)
survives death of either spouse

59
Q

What is Rehabilitative Spousal Support alimony?
Duration?
Modifiable? Effect of Death?

A

Periodic payments for a limited time to enable spouse to gain skills to become self supporting
Duration is for a limited time (unless modified by the court) and terminates on remarriage of supported spouse
Modification upon proof of substantial change in circumstances. Terminates on death of either spouse

60
Q

What is Reimbursement Spousal Support alimony?
Duration?
Modifiable? Effect of Death?

A

Awarded to a spouse who supported the other spouse while they were in school. Can be awarded even if not eligible for other forms of support
Can be a fixed sum (at once or in installments), or for a specified time
No modifications (treated like a contract, enforceable against payors estate) Survives death of either spouse

61
Q

How is the type and amount of alimony determined?

A

The judge has a lot of discretion but includes the needs of the claimant and the ability of the other spouse to pay + MARITAL FAULT

62
Q

When can alimony be modified?

Is payor’s acquisition of new spouse/children cause for change?
Is a voluntary reduction in income a cause for change?

A

Permanent periodic support or rehabilitative support can be modified if there is a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor to pay

  • Legal obligations to support new children/spouse (but not step children) may be sufficient change if the change is unanticipated at the time the alimony was initially set
  • Self-induced reduction in income is not sufficient
63
Q

When is alimony terminated?

A

Permanent periodic support or rehabilitative support is terminated upon death of either spouse or remarriage of the supported spouse

Most jurisdictions would also terminate support if cohabitating in a marriage like relationship

Lump sum and reimbursement support survives the death of either spouse

64
Q

Is alimony taxable income or a deductible expense?

A

No for agreements after 2019

Yes for agreements before 2019

65
Q

What is a marital agreement?

A

An agreement between spouses who intend to remain married and alters/confirms marital rights/obligations during the marriage or at separation/dissolution/death.
Usually these agreements concern property rights and are treated using the same rules as antenuptial agreements

66
Q

What is a separation agreement?

What is required to be enforceable?

A

An agreement entered into after marriage where the parties agree to live apart and resolve economic issues (like alimony/property division) and child support/custody rights. Can waive alimony/property but court is not bound by the child support/custody provision.

To be enforceable, the agreement must be voluntary and there must have been full and fair disclosure + consideration

67
Q

What happens if a divorce decree says a separation agreement merges into the decree or the decree repeats the separation agreement?

What happens if the separation agreement is not merged into the divorce decree?

A

The separation agreement assumes the status of the judgment of the court so is enforceable and modifiable like a judgment

If the separation agreement is not merged into the divorce decree, then it remains a separate contract (end enforceable only in contract)

68
Q

Are child custody and child support provisions modifiable?

A

ALWAYS - if in the best interest of the child

69
Q

Are contracts between unmarried cohabitants regarding earnings and property rights enforceable?

A

Yes, but unenforceable if sex is the only consideration.

Sometimes courts imply contracts to award property between unmarried cohabitants (including former spouses who divorced and then started living together again)

70
Q

What is the baseline duty to support children?

A

Both parents share a burden to support their child based on their ability to pay and the needs of the child.

Child support guidelines (based on # of children and incomes) determine the baseline but courts can vary to accommodate health issues or other issues of the children

71
Q

Are child support and visitation rights considered together?

A

No - visitation cannot be withheld because of failure to pay child support

72
Q

Do children have a duty to support their elderly parents?

A

Yes in some states

73
Q

What is the duration of child support?

Is a parent required to pay for college?

A

Until child turns 18/age of majority, is emancipated, dies, or parental rights are terminated
But child support may be indefinite for a severely disabled child
——-
Courts can enforce agreements to pay for college, but courts cannot impose the obligation on a parent

74
Q

What law governs the jurisdiction over child support?

A

Uniform Interstate Family Support Act (in all 50 states) provides methods of enforcement and guidelines for modifications of support orders issued in another state

75
Q

What are the three types of jurisdiction you should know about under UIFSA?

A

1) Original Jurisdiction (jurisdiction to enter a child support order)
2) Jurisdiction to Enforce
3) Jurisdiction to Modify the Child Support Order

76
Q

When does a court have original jurisdiction to enter a child support order?

When can a court without original jurisdiction enter a child support order?

A

When that state was where the first petition under UIFSA was filed

Another court can exercise original jurisdiction to enter a child support order if BOTH:

  • 2nd petition is filed in the child’s home state before the time to answer the 1st petition has expired AND
  • Petitioner objected to jurisdiction in the first action
77
Q

What court has jurisdiction to enforce a child support order?

A

The court that initially issued the child support order has jurisdiction to enforce but the UIFSA helps parties enforce orders outside of that state by either (1) Direct Enforcement (2) Registration

78
Q

What are the two methods of enforcing a child support order outside of the state that entered the order?

A

Direct Enforcement (allows the obligee to mail the order to the obligor’s out of state employer and imposes automatic withholding unless there is timely objection)

Registration (a support order can be registered outside of the state where the order was issued. Issuing state sends the order to the state where the obligor resides for registration and filing as a foreign judgment. Then the order is enforceable using the same procedures available for a child support order issued in that state)
^Can to either or both

79
Q

What courts have jurisdiction to modify a child support order?

A

The court that issued the controlling child support order has “continuing and exclusive jurisdiction” to modify BUT another state can modify IF

  • no party lives in the issuing state OR
  • all parties consent to jurisdiction elsewhere
80
Q

What is the test to modify child support?

Can past due installments of child support be modified?

A

A substantial and continuing change in circumstances affecting the needs of the child or the ability of the parent to pay e.g. change in income, retirement, disabling illness, inflation

Voluntary reduction in income is not good enough

Past due installments of child support cannot be modified

81
Q

Are child support payments deductible or includable in income?

A

No

82
Q

How can child support payments be collected?

A

Can hold the nonpaying party in civil contempt (or criminal contempt if failure to pay is willful)
Can also intercept the nonpaying party’s tax refund, force the forfeiture of a lot of licenses, seize real estate, attach wages, order to pay attys fees

83
Q

How can alimony payments be collected?

A

Contempt, judgment against the non complying party, seizure of real estate, attachment of wages, order to pay attys fees

84
Q

What law governs child custody orders?

A

Uniform Child Custody Jurisdiction and Enforcement Act

UCCJEA

85
Q

Highly Tested*

What is the default test for determining which court has jurisdiction to make an initial child custody determination?

A

The primary test is Home State Jurisdiction
A court has jurisdiction to enter or modify a child custody or visitation order if the state is EITHER
- the child’s home state OR
- was the child’s home state within the past 6 months, child is now absent from the state but a parent or guardian continues to live in the state

86
Q

What is the child’s home state?

A

The state in which the child lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding
OR
The state where the child has lived since birth if younger than 6 mo old

Temporary absences disregarded

87
Q

*Highly Tested
When does the Home State test for jurisdiction over child custody not apply?

What test applies then?

A

Home state jurisdiction does not apply if no state has or accepts home state jurisdiction

The Significant Connection Substantial Evidence Test: A state has jurisdiction if the child + at least one parent/guardian have a significant connection to the state AND substantial evidence about the child is available in that state

A state also has jurisdiction if no other state has jurisdiction under either of the above tests or if a state with jurisdiction defers

88
Q

What courts can modify a child custody order?

A

Only the issuing court - this is called continuing exclusive jurisdiction BUT another state can modify if either:

  • no child or parent continues to reside in the issuing state OR
  • the child no longer has a significant connection to the state and substantial evidence about the child is no longer available in the state [only the issuing state can decide if the second test is met]
89
Q

When must a court with jurisdiction over a child custody matter decline jurisdiction?

A

Even if the court has jurisdiction, the court must decline jurisdiction IF:

  • there is already a proper proceeding elsewhere (unless that jurisdiction defers)
  • it determines that it is an inconvenient forum and that a better forum exists
  • the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct (e.g. wrongfully taking the child to the state)
90
Q

What is temporary emergency jurisdiction?

A

A court can exercise temporary emergency jurisdiction if the child has been abandoned in the state or is threatened with/subjected to abuse within the state. Just enough to keep the child safe

91
Q

When must a state give FF&C to another state’s determination of custody?

A

Must give FF&C if the other state had jurisdiction to enter the order

92
Q

What are the three types of custody of a child?

A

1) Legal custody (right to make major decisions affecting the child’s life)
2) Physical custody (actual possession and control of the child)
3) Joint custody (can mean either joint legal custody, physical custody, or both)

93
Q

What rule is applied when awarding custody and visitation?

A

Custody and visitation are awarded in the BEST INTERESTS OF THE CHILD. Lots of discretion but factors considered include:

  • wishes of the parents
  • child’s preference (little weight if <8, highly probative if >12)
  • child’s relationship with parents/siblings/others involved with parents (good or bad)
  • adjustment to home/school/community
  • mental and physical health
  • who has been the child’s primary caregiver
94
Q

What should you do on questions like property division, alimony, and child custody where the judge has a lot of discretion?

A

Should list the options, factors considered, take a guess and state the judge has discretion

95
Q

When do courts appoint counsel for the child? What is the term for that?

A

Counsel for child also call guardian ad litem

Only done if the guardian ad litem will meaningfully help the court determine the child’s best interest

96
Q

Can children recover for tortious injuries to the parent?

Can parents recover for tortious injuries to the child?

A

No

Yes

97
Q

If someone interferes with the lawful custody of a parent, what causes of action can the parent with custody bring?

What is the COA for concealing info about a child’s birth or location?

A

Can sue for abduction or enticement

If parents or others conspire to conceal info about the location of a child, they can be sued for civil conspiracy

98
Q

What are the options for who to grant custody to?

A

1) Joint Custody (most jurisdictions prefer)
2) Sole Custody
3) Custody to a nonparent

99
Q

What factors are considered in determining the terms of joint custody? What is Shared Custody?

A

Can be legal/physical
Shared custody is 50/50
- If the parent’s can’t communicate or are openly hostile, court won’t award joint custody because the child will be in the middle

100
Q

What must be present for an award of sole custody?

What usually comes along with sole custody?

A

Strong evidence that sole custody is in the best interest of the child
Visitation usually comes along with sole custody

101
Q

Why is granting custody to a nonparent relatively rare?

What procedure does a court use to evaluate a custody claim by a nonparent

A

Parents have constitutional protections that are considered alongside the best interests of the child.
Parent prevails over nonparent unless voluntarily relinquish or the nonparent can prove that it will result in harm to the child or that the parent is unfit. Once one of those is proven, the court conducts a best interests of the child analysis

102
Q

Visitation and custody are mutually exclusive

A

If someone has visitation, they do not have custody. If some one has custody, they do not have visitation

103
Q

What is visitation?

Do courts usually deny visitation?

A

Visitation is the right of a parent to visit the child when they are not granted custody
Visitation is rarely denied but might be limited if the parent engages in conduct that might injure the child (e.g. might require supervised visitation)

104
Q

What is the remedy if the custodial parent denies the other parent their visitation rights?

A

Contempt, habeas, suits in equity

If ongoing, custody might be reconsidered

105
Q

What is the analysis for a nonparent’s rights to visitation?

A

If the parent is fit, their wishes on nonparent visitation are constitutionally entitled to be given “special weight” and a judge cannot override the parent’s decision just because it’s in the best interest of the child - need extraordinary circumstances to grant third party visitation rights

106
Q

Who has the burden of proof in a child modification proceeding?

A

the party seeking to modify the existing custody arrangement

107
Q

When will child custody awards be modified?

A

If there is a significant and material change in circumstances that affects the child’s well being.
Child’s best interests is the overriding concern

Some courts require a certain amount of time to pass after the entry of an order unless there is harm to the child

108
Q

If a parent has gotten themselves together and now has a stable home life but the child has been in the custody of a grandparent and the child is doing well, can the parent now sue for custody on grounds of the constitutional presumption and a substantial and material change in circumstances?

A

NO - because the substantial and material change in circumstances has to affect the child’s well being to be considered, and the dad’s improvement does not affect the child’s wellbeing at the grandmothers. Grandmother could argue that dad’s constitutional rights are not as strong because he gave up custody before and that it would not be in the best interest of the child to uproot them

109
Q

What are restrictions on relocation of a child where custody is shared or visitation rights exist?

What does the court consider?

A

Most states have a statute requiring notice to the other party and a hearing to determine if the relocation is permitted

The court is likely to grant the relocation if all of:

  • move is in the best interests of the child
  • move is motivated by a benefit to the family
  • move is not intended to thwart the relationship with the other parent
110
Q

What is a nonmarital child?

A

A child born to an unmarried woman

111
Q

What kind of constitutional scrutiny is applied to discrimination based on legitimacy status of a child?

A

Intermediate scrutiny
Must be substantially tailored to an important governmental interest
Accordingly any statute meant to punish illegitimate children is unconstitutional

112
Q

What are some of the particular constitutional protections for illegitimate children?

A

1) cannot be precluded from inheriting through their fathers
2) SoLs on paternity suits are unconstitutional
3) same right to child support as marital children
4) Government benefits cannot be denied simply because of legitimacy
5) Nonmarital children may not be precluded from suing for wrongful death of a parent

113
Q

What is the purpose of a parentage action?

A

Brought to establish biological relationship and resolve maternity/paternity issues. This is important because then child support, custody, and visitation rights follow

114
Q

What is the presumption in a parentage action?

What is required to rebut the presumption?

A

The mother’s husband is presumed to be the father if the child is born during the marriage or within 300 days of the termination of the marriage EVEN IF the marriage is void/voidable

Clear and convincing evidence is required to rebut the presumption

115
Q

If paternity has long been relied upon, what happens of the father can prove he’s not actually the father?

A

Most states refuse to terminate the relationship regardless if the father can prove he’s not the father because it’s not in the best interests of the child

116
Q

What is a nonpaternity action?

A

It’s available in some states for men to prove they are not the father (and thus dodge rights/responsibilities) by clear and convincing evidence

117
Q

A child is always the lawful child of their mother. When is a child the lawful child of an unwed father?

A

1) If the parents married after the child’s birth
2) Father holds the child out as his biological child
3) Father consents to be named on the birth cert
4) Father formally acknowledges paternity
5) Court order establishing paternity (result of a parentage action)

118
Q

What are unwed fathers rights under the Due Process Clause? When does this usually matter?

A

Unwed fathers can have rights to custody if they demonstrate parental responsibility (by acknowledging paternity, supervising, educating, providing for, or otherwise showing commitment to the child)

This usually comes up when the mother is about to give the child up for adoption and the father does not consent. The question becomes if his consent is necessary and that is determined by the above

119
Q

How can bring a paternity suit? What is the purpose?

What is the SoL on a paternity suit?

What level of proof is required? What is the significance of a lab blood/tissue test?

A

Paternity suits are to establish paternity and trigger a duty of support, visitation/custody rights. Can also be used to allow the child to inherit

Paternity suit seeking support can be brought by the mother or the state if the state is providing support for the child

SoL is tolled for 18 years (when the child reaches majority), so action can be brought for at least that long

Usually clear and convincing evidence but sometimes preponderance. If a blood/issue sample says not the father, case must be dismissed

120
Q

What is the citizenship of a child born to an unmarried American parent outside of the US?

A

If the mother is a US citizen, then the child is automatically a citizen without regard to who the father is

IF the father is a US citizen, then the father has to take certain steps to establish paternity and make his child a US citizen

121
Q

How can parents have their parental rights terminated?

A

Can do so voluntarily or can do so involuntarily if notice and a hearing provided with the right to counsel (as required under Due Process because parentage is constitutionally protected)

122
Q

What are grounds for involuntary termination of parental rights?

What is the burden of proof in an involuntary termination suit?

How long does the state prefer to eliminate parental rights for?

A

Grounds for involuntary termination include infliction of serious physical harm on the child, abandonment, neglect, failure to provide support without justifiable cause, mental illness such that cannot care for the child

Grounds for termination must be proved by clear and convincing evidence

State prefers to temporarily end parental rights and then reunite parent with child after parent has been rehabilitated. If that’s not possible, then deprive permanently and place child in adoption

123
Q

Can parents decide between themselves to terminate all of one parent’s parental rights?

A

No. Court must be involved for complete termination, but parents can decide about custody/visitation

124
Q

What are the two types of adoption?

A

1) Agency adoption (licensed adoption agency acts as intermediary)
2) Private adoption (private persons arrange the adoption)

125
Q

What are the requirements for adoption?

A

1) Termination of natural parent’s rights (either involuntary termination or court can waive if it determines consent is being unreasonably withheld against the best interests of the child)
2) Creation of New Parental Rights (consent of adoptee if >12, home study/investigation/court approval but may be waived if relative, no $ can be paid except for medical costs related to pregnancy)

126
Q

Are records of adoption public?

A

No, generally sealed and not available to the public or to the adoptees unless the biological parents consent

127
Q

What are the legal consequences of adoption?

A

1) new birth certificate with adoptive parents as birth parents
2) biological parents rights and obligations terminate

128
Q

Where is venue proper for an adoption proceeding?

A

Most states require that the person seeking adoption be a resident of the county where the petition is filed, but some states permit filing in the county where the child is located

129
Q

Who is the mother of a child subject to surrogacy?

Is an adoption necessary?

A

The woman who gives birth is the mother of the child unless there is a valid surrogacy agreement (gestational agreement)

If there is a court order based on a surrogacy agreement, there is no need for an adoption

130
Q

Are egg and sperm donors the parents of a child conceived through assisted conception?

Can a sperm donor ever have rights?

A

No

Sperm donor can have rights if he agrees with the mother in advance

131
Q

Can a deceased sperm donor be considered the parent of a child conceived after death?
What rights does the child have if such consent is given?

A

Yes if the sperm donor consents to have his sperm used after death
The child then has full inheritance rights

132
Q

What is a genetic surrogate?
What is a gestational surrogate?
What type do most states allow?

A

Genetic surrogate is when a woman who is not an intended parent agrees to become parent through assisted reproduction using her own gametes

Gestational surrogacy is where a woman who is not an intended parent agrees to become pregnant through assisted reproduction using gametes that are not her own

Most states only allow gestational surrogacy

133
Q

What is required for a valid gestational/surrogacy agreement/contract?

A

Must voluntary, in writing, approved by a court before the transfer, accompanied by a home study (unless parties waive), and provide for healthcare costs until birth and provide reasonable consideration if the surrogate is promised consideration

Cannot limit the right of the surrogate to make healthcare decisions and can be terminated before transfer of embryo

134
Q

Under ____, a state that did not issue a child support order can enforce it if __________ and _________.

Under____, a state that does not have _______ over a nonpaying parent can still enforce a child support order against that parent.

A

Full Faith and Credit for Child Support Orders Act;
the issuing state had jurisdiction to enter the order;
the parties had reasonable notice and opp to be heard

UIFSA (Uniform Interstate Family Support Act); personal jurisdiction

Carson’s Bar Review (16 decks)

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