Family Law Flashcards
Adoption process
- Biological parents rights’ must be terminated
- A new parent-child relationship must be created between the child and the adoptive parent
Generally requires biological parents’ consent
Paternity of child born from artificial insemination of a wife by donor sperm during a legal marriage
Uniform Parentage Act (UPA) - spouse = child’s legal parent unless within 2 years after the child’s birth he sues & determines he didn’t consent
Presumption - child of a married woman
Child of a married woman = the marital child of her spouse
Custody dispute
Parent vs. Nonparent
Parent gets custody
UNLESS
(a) voluntary relinquishment
or
(b) can show parent is unfit (abuse, neglect, abandonment)
When is a parent unfit
abuse
neglect
abandonment
Who is the legal father of a child born during wife’s affair?
presumption - the wife’s spouse NOT the scumbag she cheated with
can be overcome by a POE or C&C standard (*depends on state*)
Emily cheated on her husband during the marriage. As a result of the affair, had a kid (still during the marriage). Who is the father and who gets custody if she dies?
- scumbag has to prove his paternity. will have to overcome presumption by POE/C&C depending on state
- scumbag has to show that under the Due Process Clause he is entitled to custody because he has attempted to take parental responsibility (visit, financial support)
- By doing this-scumbag gets same presumption that he is entitled to custody
- husband can try to argue that scumbag is unfit
When can a minor consent without parents?
- if they are emancipated
- non-emancipated minor + state law provides exception (ex: abortion, birth control, STD treatment)
Usually cannot consent on surgeries/medical treatment without parental consent
Whether State B should enforce State A’s child support order?
*State B was the state that did not enter the order
General Rule: State A court has continuing and exclusive jurisdiction over the support order
- UIFSA governs SMJ over interstate modification of child support
- court in another state can only enforce original order UNLESS:
- (a) parties no longer reside in the issuing state
- or
- (b) parties consent to non-issuing court’s jurisdiction to modify
Guided by the Full Faith and Credit Clause
- must enforce if court had valid jurisdiction + proper notice
- (FFCCSA) Full Faith and Credit for Child Support Act
If State A’s order is in arrears…State B can enforce the State A order under UIFSA
- UIFSA = Uniform Interstate Family Support Act (adopted in all states and DC)
-
State B may serve as initiating tribunal to request that the court of State A:
- enforce the order issued in State A
-
modify the order issued in State A
- **State B need not have PJ over party in arrears
- **but modification requires PJ/SMJ
- does NOT apply to property distributions
Which court has jurisdiction over a child support order?
General Rule: State A court has continuing and exclusive jurisdiction over the support order
- UIFSA governs SMJ over interstate modification of child support
- court in another state can only enforce original order UNLESS:
- (a) parties no longer reside in the issuing state
- or
- (b) parties consent to non-issuing court’s jurisdiction to modify
What are the requirements necessary to modify a child support order?
Modification requires PJ and SMJ
General Rule: Issuing court has continuing and exclusive jurisdiction over the support order
- UIFSA governs SMJ over interstate modification of child support
- court in non-issuing state can only enforce original order UNLESS:
- (a) parties no longer reside in the issuing state
- or
- (b) parties consent to non-issuing court’s jurisdiction to modify
Requirements to modify child custody
- material change in circumstances
- most states require > 2 yrs have passed unless child’s present environment is endangering physical, mental, or emotional health
- proper court (PKPA, UCCJEA)
- modification is in BIOC
Requirements for a migratory divorce - extent to which a state must extend full faith and credit to the ex parte divorce decree of a sister state
Ex: Florida grants Adam a divorce, Kim has never been to FL and remains in IL
Can have another court without PJ enter divorce ex parte
- will have to be recognized under FF&C as long as
- (1) sister state had JURISDICTION
- ex: one of the parties was _domiciled in the jxdn_
- there is a REBUTTABLE PRESUMPTION that the state granting the divorce is the bona fide domicile of the P
- (2) decree is VALID in the sister state
But must have PJ over the parties if you want to bind property out of the state
Licenses / professional degrees about property division
earning capacity
Can they be distributable at divorce?
Majority: generally not property that can be distributable
Rationale - has none of the usual attributes of property (valuation, not transferable/purchased/inherited)
=/= marital property even when it could not have been obtained without support from the other spouse
Alternatives for KO when AO divorces her:
- theory of unjust enrichment
- goes to “contribution factor” in alimony
- reimbursement alimony awards
Growing Minority of States: subject to equitable distribution
Adam’s increased earning capacity - how can Kim benefit from this during their divorce?
Majority of states, it is not divisible property
Alternatives for KO when AO divorces her:
- theory of unjust enrichment
- goes to “contribution factor” in alimony
- reimbursement alimony awards
