Family Law Flashcards
(24 cards)
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
Advantages of a fault-based divorce vs. a no-fault divorce
- Property division: usually only “economic fault” / dissipation of assets
- Whether to award alimony: some courts will consider; others will not theory that purpose of alimony isn’t punitive but rather to continue one spouse’s duty to the other arising out of the marriage
Likely NO ADVANTAGES!!
Modification of Child Support Order
- Jurisdiction - SMJ (UIFSA), PJ; FFCSOA
- Material change in circumstances
- affecting needs of child OR
- parental ability to pay
PROSPECTIVE ONLY
No retroactive modification
Validity of Settlement Agreements entered into during the marriage
must be FAIR and VOLUNTARY
governed by general K principles (consideration is entry into the marriage)
in writing
voluntary
signed by the party to be charged
full and fair disclosure of each party’s financial worth
knowing
no evidence of undue influence, duress, fraud, overreaching
Set aside if fraud, duress, coercion + unfair agreement OR if violates public policy
Unconscionability is determined at the time the agreement was entered into
When will a court set aside a premarital/marital agreement
Set aside if fraud, duress, coercion + unfair agreement OR if violates public policy
Unconscionability is determined at the time the agreement was entered into
Whether alimony should be awarded (generally)
is a spouse’s need legitimate (AKA did the need arise b/c of the marriage)
does the other spouse have the ability to pay?
Types
- Permanent
- Periodic/Temporary Spousal Support
- Rehabilitative
- Reimbursement
Whether to award alimony factors
- extent spouse’s economic dependency resulted from marriage
- standard of living during the marriage
- age, physical, emotional conditions of the parties
- length of marriage
- earning capacity and potential of both parties/financial resources of the parties
- whether payor would have ability to meet his own needs
- contributions during the marriage (economic and non-economic)
- time needed to obtain education or training to enable either party to find employment
- property awarded at divorce/separate property
Purpose of alimony
to provide support for a spouse whose economic dependency resulted all or in part due to the marriage
awarded when it is necessary to ensure adequate income stream
not punitive (so usually courts won’t take fault/cheating into account)
What are the rights of a court exercising jurisdiction over an ex parte divorce to order the division of marital property:
(1) that is located in the state exercising jxdn
(2) that is located in the sister state
For #1 - only will have an effect on property located within the rendering state
For #2 - no effect UNLESS rendering state has PJ
Bases for jurisdiction to decide child custody
PKPA
Court may decide child custody only if:
#1 Home State Jurisdiction - home state OR lived with parent 6+ months immediately before custody action
#2 Significant Connection Jurisdiction - no home state + child AND at least 1 parent has a significant connection to the state
#3 Emergency Jurisdiction - child is physically present in state AND child abandoned/or/emergency to protect child
#4 More Appropriate Forum Jurisdiction - no other state has jurisdiction
