Family Law

Question 1

When does a court have jurisdiction over a child custody hearing?

Priority: High

Answer 1

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a court has jurisdiction to preside over custody hearings and enter or modify custody or visitation orders if the state is: (1) the child’s home state and has been the home state for a period of six months; or (2) was the child’s home state in the past six months and the child is absent from the state, but one of the parents continues to live in the state.

Question 2

When does a court have jurisdiction under the UCCJEA when there is no home-state jursdiction?

Priority: High

Answer 2

When there is no home-state jurisdiction, the UCCJEA permits a court to enter or modify an order if (1) the child and at least one parent have a significant connection with the state, and (2) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.

Question 3

What is the standard to determine child custody?

Priority: High

Answer 3

The standard for determining child custody is the best interests of the child, this standard gives the court great discretion.

Question 4

How does a court consider the wishes of a child for custody purposes?

Priority: High

Answer 4

Most courts will consider the wishes of the child if the court can determine that the child has a sufficient maturity to express a preference. If children are consulted, the court evaluates the reasons behind the preference.

Question 5

What factors does the court consider in evaluating the best interest of the child?

Priority: High

Answer 5

In evaluating the best intersts of the child, a court will consider: (1) the wishes of the parents; (2) the wishes of the child; (3) the age, financial well-being, and mental/physical health of each parent; (4) the existence of new people in each parent’s life; (5) the effect custody will have on the child’s relationships with extended family; (6) history of domestic violence; (7) stability of child’s home and school environments; and (8) ANYTHING ELSE THAT THE COURT BELIEVES WILL BE EQUITABLE TO EVALUATE.

Question 6

What are the constitutional rights of parents regarding their children?

Priority: High

Answer 6

A fit parent has a fundamental right to the care, custody, and control of their children and courts must give special weight to a fit parent’s decisions on care, custody, and control.

Question 7

How does the court consider custody between a parent and a third-party?

Priority: High

Answer 7

The parent is given preference and it is presumed that custody with the parent is in the best interests of the child.

Question 8

Can an adoption be dissolved?

Priority: Low

Answer 8

Generally, an adoption may not be dissolved. Some states have permitted dissolution in limited circumstances including the discovery of an undisclosed mental or physical illness.

Question 9

When can a child or spousal support order be modified?

Priority: High

Answer 9

Most jurisdictions permit an award of child or spousal support to be modified when there is a substantial change in circumstances regarding the child’s needs or parent’s financial situation.

The parent requesting the modification has the burden of showing a substantial change in circumstances such as a significant decrease in income.

Question 10

Can a support order be modified retroactively?

Priority: High

Answer 10

A modification award is made retroactive to the date of service of the motion on the opposing party, but the support obligations that have accrued prior to that date generally may not be modified.

Question 11

Can the court modify child support as a result of a voluntary reduction of income?

Priority: High

Answer 11

Generally, the amount of child support may not be reduced because the support obligor voluntarily quits their job or reduced their own pay.

In these cases, the courts will consider the obligor’s earning capacity and other factors surrounding the change

In some jurisdictions, modification will be allowed if the obligor parent acted in good faith.

Question 12

When can a court order child support after a child turns 18?

Priority: High

Answer 12

Some jurisdictions have the authority to order child support beyond the age of majority when the child is in college.

Question 13

In jurisdictions that require support for continuing education, when may support be terminiated?

Priority: High

Answer 13

In states that allow support for continuing education a child may lose the right to payments if they do not follow reasonable parental instructions.

Question 14

When is a premarital agreement enforceable?

Priority: High

Answer 14

In many states, a premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary.

The agreement must be in writing and signed by the party to be charged.

Question 15

When is a premarital agreement not enforceable under the UPAA?

Priority: High

Answer 15

Under the UPAA, the party against whom enforcement is sought must prove (1) involuntariness, or (2) both unconscionability at the time of execution and lack of disclosure and adequate knowledge of the other’s assets and obligations.

Question 16

Can a court refuse to enforce a premarital agreement for unfairness?

Priority: High

Answer 16

A court may not refuse to enforce a premarital agreement based on substantive unfairness unless it also finds lack of adequate disclosure or knowledge.

Question 17

What is required for full disclosure for a valid premarital agreement?

Priority: High

Answer 17

Full disclosure requires disclosure of all income, assets, and liabilities of both parties.

Question 18

When is a premarital agreement voluntary, and what factors are considered?

Priority: High

Answer 18

Entering into a contract/premarital agreement voluntarily generally means there was no fraud, duress, or misrepresentation.

Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel.

A party’s insistence on the agreement as a condition to marriage is not considered duress.

Question 19

What is the purpose of an equitable-distribution system?

Priority: High

Answer 19

The objective of the equitable-distribution system, which is used in most states, is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties.

Question 20

What is considered marital property?

Priority: High

Answer 20

In most states, all property acquired during the marriage is marital property and subject to equitable distribution.

Question 21

Is appreciation in nonmarital property subject to equitable distribution?

Priority: High

Answer 21

Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.

Question 22

What factors do courts consider in distributing marital property?

Priority: High

Answer 22

Courts consider a number of factors in determining the equitable distribution of property such as: (1) the length of the marriage, (2) the age, health, earning potential, and needs of both spouses, (3) the value of separate property, (4) the spouses’ standard of living, and (5) economic cicrumstances of each spouse at the time of divorce.

Question 23

When can a separation agreement be set aside?

Priority: Medium

Answer 23

Separation agreements can be invalidated, in whole or in part, if the court makes a finding of fraud or unconscionability.

Question 24

When is a separation agreement unconscionable?

Priority: High

Answer 24

A separation agreement/contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it.

The contract or part of the contract at issue must have been offensive at the time it was made.

Unconscionability may also be applied to prevent unfair surprise.

Question 25

When can property divisions be modified?

Priority: High

Answer 25

Though a support award can be modified subsequent to a divorce decree, the property division award cannot be modified.

Unlike support awards, which are subject to changing circumstances, the division of the marital assets was determined based upon known facts and circumstances as they existed at the time of the divorce.

Question 26

When may a spousal support award be modified?

Priority: High

Answer 26

Spousal support awards can be odified based upon a significant change in a party’s circumstances.

Question 27

What is the traditional approach to disestablishment of paternity?

Priority: Medium

Answer 27

Traditionally, courts have not modified established parent-child relationships, citing the child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity.

Question 28

How do some states allow disestablishment of paternity?

Priority: Medium

Answer 28

Some states have recently recognized the interests of erroneously identified fathers, and will allow them to challenge paternity if the challenge is brought within a reasonable time.

Question 29

How do some states allow disestablishment of paternity?

Priority: Medium

Question 30

What act governs child support disputes?

Priority: Low

Answer 30

Modification of child support orders, and other child support disputes, is governed by the Uniform Interstate Family Support Act (UIFSA).

Question 31

When does a court have jurisdiction over child support disputes?

Priority: Low

Answer 31

Under UIFSA, a state court does not have jurisdiction to modify an order of child support rendered by a court of another state if the original state has continuing exclusive jurisdiction.

Question 32

When may a court modify the child support order of another state?

Priority: Medium

Answer 32

A court must give full faith and credit to support orders of other states and generally cannot modify these orders unless all parties, including the child, no longer reside in the issuing state, or the parties expressly agree to another state’s jurisdiction in writing.

Question 33

When does a state court have subject matter jurisdiction?

Priority: High

Answer 33

State courts have subject matter jurisdiction over domestic relations issues such as divorce, annulment, custody, and support.

Question 34

When may a court exercise personal jurisdiction over domestic relations issues?

Priority: Medium

Answer 34

The court may exercise personal jurisdiction over an individual if that person is voluntarily present in the state and served with process while there.

A court may not exercise personal jurisdiction over a defendant unless the defendant has minimum contacts with the state in which the court sits and the exercise of jurisdiction would be fair and reasonable.

Question 35

What is necessary for a court to hear a family-related dispute?

Priority: Medium

Answer 35

A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiciton. Most states have residency requirements to establish subject-matter jurisdiction.

Question 36

What jurisdiction is necessary for an ex parte divorce?

Priority: High

Answer 36

Generally, a court may issue a divorce without personal jurisdiciton over the absentee spouse if the plaintiff-spouse is a domiciliary of the state. Many states have a durational residency requirement before a divorce action can be brought.

Domicile is determined by the persons physical presence in the state and intent to make the state their permanent home.

Question 37

What is the purpose of the UCCJEA?

Priority: Medium

Answer 37

The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody by requiring the court to have subject matter jurisdiction.

Question 38

When does a court typically have jurisdiction to enter custody orders?

Priority: High

Answer 38

In an initial custody determination, a court has subject-matter jurisdiction to enter custody orders if the state is the child’s home state.

Question 39

When is a state the “home state” of a child?

Priority: High

Answer 39

A state is the “home state” when the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding.

Question 40

When can a court decline jurisdiction for child custody matters?

Priority: Medium

Answer 40

A court can decline jurisdiction if the party has wrongfully removed a child from another state.

The failure of a parent to contest a move when they were informed will generally prevent assertion that the new state is not the home state.

Question 41

What is the doctrine of divisible divorce?

Priority: High

Answer 41

Under the doctrine of divisibile divorce, a court may have sufficient jurisdiction to grant a divorce, but lack such jurisdiction with respect to other divorce-related matters, such as property division, without personal jurisdiction over the other spouse.

Question 42

What are fault based grounds for divorce?

Priority: Medium

Answer 42

Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder.

Question 43

What is necessary to obtain a divorce for cruelty?

Priority: Medium

Answer 43

To prevail on the grounds of cruelty, most jurisdictions require that the plaintiff demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and that makes the continued cohabitation between the parties unsafe or improper.

The conduct of the defendant must be serious and typically cannot be based on one isolated incidents?

Question 44

What type of cruelty will suffice for an at-fault divorce?

Priority: Medium

Answer 44

The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty.

Question 45

What is physical custody?

Priority: Medium

Answer 45

Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child.

Question 46

How do courts consider the primary caretaker when deciding custody?

Priority: Medium

Answer 46

Courts can consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody.

The primary caretaker doctrine not only encompasses the day to day care of the child, but also includes the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past.

Question 47

How is domestic violence considered when deciding custody?

Priority: Medium

Answer 47

Nearly every jurisdiciton requires the court to consider the presence of domestic violence between the parties when awarding custody and some jurisdictions have created rebuttable presumptions in favor of the nonabusive spouse.

Question 48

When is a premarital agreement enforceable?

Priority: High

Answer 48

A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged, and any clauses relating to child custody and support are unenforceable.

Question 49

What must a party prove to invalidate a premarital agreement.

Priority: High

Answer 49

Under the UPAA, the party against whom premarital agreement enforcement is sought must prove (1) involuntariness or (2) unconscionability when the agreement was executed and that he or she did not have, or reasonably could not have had, adequate knowledge of the other’s assets due to lack of disclosure.

Question 50

How will courts classify property acquired by gift?

Priority: High

Answer 50

Property acquired by gift or inheritance is separate property.

Question 51

How is sexual conduct considered for child custody?

Priority: High

Answer 51

A parents’ sexual conduct is a factor in determining custody only if the parent’s conduct has or will have a negative effect on the child.

Question 52

What factors does the court consider for custody?

Priority: High

Answer 52

In determining the best interests and welfare of the child, the court will consider a number of factors, including the ability to financially support the child, relationships with family members, general familial stability, the child’s preference (if they are at an age to make such a choice), and who is the primary caretaker.

There is no presumption in favor of the mother.

Question 53

What factors does the court consider for custody?

Priority: High

Answer 53

In determining the best interests and welfare of the child, the court will consider a number of factors, including the ability to financially support the child, relationships with family members, general familial stability, the child’s preference (if they are at an age to make such a choice), and who is the primary caretaker.

There is no presumption in favor of the mother.

Question 54

Where are marriages valid?

Priority: High

Answer 54

In general, marriages are valid where they took place and are recognized in all other states.

However, if a marriage violates a particularly strong public policy of the domicile of either party it will be invalid.

Question 55

When are common-law marriages valid?

Priority: High

Answer 55

Common-law marriages are valid when the parties (1) agree that they are married, (2) cohabit as married, and (3) hold themselves out in public as married.

Question 56

When can an unwed father object to an adoption?

Priority: Medium

Answer 56

The right of an unwed father to object to an adoption cannot be denied if the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood.

Question 57

What are putative father registries?

Priority: Medium

Answer 57

Some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption.

Question 58

What happens if a father fails to register with a putative father registry?f

Priority: Medium

Answer 58

A putative father’s failure to register within a statutorily recognized period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption.

Question 59

What is spousal support and when is it awarded?

Priority: High

Answer 59

Spousal support is the obligation of one party to provide the other with support in the form of income.

It is awarded in a divorce if one spouse cannot provide for his own needs with employment.

Question 60

What is the common law necessaries doctrine?

Priority: Low

Answer 60

At common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctrine.

A necessary item was something suitable to the parties’ station in life, including medically necessary care.

Question 61

What is the necessaries doctrine today, and how is it limited?

Priority: Low

Answer 61

Most jurisdictions have modified the necessaries doctrine to apply equally to both spouses, and often refer to them as “family expense” statutes.

This spousal support obligation is limited by the common law doctrine of nonintervention, which disallows judicial intervention in an intact family.

Courts have relied on the nonintervention principle to deny a support petition when the couple is living together.

Question 62

What is the nonintervention doctrine?

Priority: Low

Answer 62

The nonintervention doctrine prevents a court from intervening in a domestic relations matter of an intact family.

Courts have relied on the nonintervention principle to deny a support petition when the couple is living together.

Question 63

What are parental rights generally?

Priority: Medium

Answer 63

A parent has a fundamental right to raise his child as he sees fit.

A fit parent has a fundamental right to the care, custody, and control of his children.

However, a parent’s authority over his child is not absolute. Laws are in place to protect children from harm, whether or not that harm is intentional.

Question 64

When may a parents right to control upbringing be infringed?

Priority: Medium

Answer 64

If a parent’s decisions will jeopardize the health or safety of the child or have the potential for significant social burdens then a parent’s power is limited.

States are permitted, under their police powers, to require vaccinations and to refuse admission to public school for students who fail to receive required vaccinations. Such statutes are not subject to constitutional challenge based on a violation of parental rights.

Question 65

What is the presumption of custody for parents?

Priority: High

Answer 65

Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit.

Legal parents are presumptively entitled to custody of their children in cases against third parties unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child.

Some jurisdictions apply the best interests of the child standard in all custody cases, even those between a parent and a third party. However, such a standard may run afoul of a parent’s constitutional rights.

Question 66

How have courts gotten around the presumption of custody?

Priority: Medium

Answer 66

If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended priod of time, then courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption.

Question 67

How have courts gotten around the presumption of custody?

Priority: Medium

Answer 67

If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended priod of time, then courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption.

Question 68

When, and how, will a court consider a childs wishes in custody disputes between a parent and a third party?

Priority: Medium

Answer 68

Most courts will give substantial weight to the wishes of the child if the court can determine that the child has sufficient maturity to express a preference.

Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court.

If children are consulted, then the court evaluates the reasons behind the preference.