Family Law Flashcards
What are “heart balm” actions?
Cause of action for breach of contract to mary
In most states, are causes of action for heart balm actions allowed or not?
Not allowed
What kinds of actions related to marriage are barred?
- Breach of promise to marry
- Seduction of an unmarried female
- Alienation of affections
- Criminal conversation
What kinds of actions related to marriage are barred?
- Breach of promise to marry
- Seduction of an unmarried female
- Alienation of affections
- Criminal conversation
What are the requirements of the (now-abolished) action for alienation of affections?
- Misconduct by D
- Loss of spousal affection/consortium AND
- Causal link between the misconduct and the loss
Who could bring the (now-abolished) action for seduction of an unmarried female?
Father
What are the requirements of the (now-abolished) action for alienation of affections?
- Misconduct by D
2 Loss of spousal affection/consortium AND - Causal link between the misconduct and the loss
The (now-abolished) action for seduction of an unmarried female could be brought against ______.
Any man who had unlawful sexual relations with a man’ daughter via persuasion, promises, or bribes but without physical force
What are the requirements of the (now-abolished) action for alienation of affections?
- Misconduct by D
2 Loss of spousal affection/consortium AND - Causal link between the misconduct and the loss
Who could bring the (now-abolished) action for seduction of an unmarried female?
Father
What is the (now-abolished) action for criminal conversation?
Adultery claim against 3rd party for committing adultery with one’s spouse
The (now-abolished) action for seduction of an unmarried female could be brought against ______.
Any man who had unlawful sexual relations with a man’ daughter via persuasion, promises, or bribes but without physical force
What is the (now-abolished) action for criminal conversation?
Adultery claim against 3rd party for committing adultery with one’s spouse
Actions may be brought to recover gifts if the sole consideration for the transfer was _________.
A contemplated marriage which has not occurred
Action may be brought for gifts given in contemplation of marriage. In this context, consideration means ________.
“motive” or “reason” as opposed to legal consideration
Premarital contracts are also known as _________.
Prenuptial agreements
What is a premarital contract?
An agreement between prospective spouses:
1. Made in contemplation of marriage AND
2. To be effective upon marriage
In all states, the enforceability of such prenuptial agreements turns on three factors:
- Voluntariness
- Fairness AND
- Disclosure
What are the formality requirements of a premarital agreement?
- In writing AND
- Signed by both parties
A premarital agreement is enforceable without consideration because ________.
the marriage itself is considered sufficient consideration
A premarital agreement because effective upon _____________.
Marriage
Parties to a premarital agreement are permitted to contract with respect to:
- Right to manage and control property
- Disposition of property
- Spousal support
- Will, trust, or other arrangements to carry out the provisions of the agreement
- Death benefits from a life insurance policy
- Choice of law governing the construction of the agreement
- Any other matter not in violation of public policy or statute imposing criminal penalty
If there is no choice of law provision, what law governs a contract?
- State where contract was executed OR
- State with the most significant relationship to the parties
What premarital agreements are prohibited?
- Adversely affect right of child to support
- Agreement respecting child support/custody (voidable based on child’s best interest)
- Waiver of alimony not permitted if agreement causes spouse to become public charge
In all states, the enforceability of premarital agreements turns on:
- Voluntariness
- Unconscionability AND
- Disclosure
What are the requirements of the (now-abolished) action for alienation of affections?
- Misconduct by D
2 Loss of spousal affection/consortium AND - Causal link between the misconduct and the loss
Who could bring the (now-abolished) action for seduction of an unmarried female?
Father
The (now-abolished) action for seduction of an unmarried female could be brought against ______.
Any man who had unlawful sexual relations with a man’ daughter via persuasion, promises, or bribes but without physical force
What is the (now-abolished) action for criminal conversation?
Adultery claim against 3rd party for committing adultery with one’s spouse
One party’s insistence on signing _________ does not, in itself, render an agreement involuntary
Premarital agreement
What is the doctrine of unfair surprise?
Premarital agreement presented very close to wedding date.
Depending on the facts, this may make agreement involuntary
A premarital agreement is unconscionable when executed if:
- No fair and reasonable disclosure of property/financial obligations of other party
- Didn’t voluntarily and expressly waive (in writing) any right to disclosure AND
- Didn’t have adequate knowledge of property or financial obligations of other party
Void marriages are enforceable only _________.
To the extent necessary to avoid an inequitable result
Anyone at least _______ years of age has the legal capacity to marry
18
If someone wants to marry while under 18, ___________ is required.
Consent of both parents
In some states, minors without parental consent can still marry with _____________.
Consent of a judge
Mutual consent to marriage is defined as:
- Assent then present in the parties
- Freely, voluntarily, and understandingly given
- Representing a mutual intention of marital relationship by competent contracting parties
Same-sex marriages were federally recognized in the year _______.
2013
State-level bans on same-sex marriage were held unconstitutional in the year _______.
2015
A marriage resulting from an incestuous relationship will be held _______.
Void
A marriage between blood _____ and _____ is void.
Ancestors
Descendants
A marriage between _____, _____, and _____ siblings is void.
Full-blood
Half-blood
Adopted
A marriage between lineals who are _____________ are void.
Up or down one generation
Lineals who are up or down one generation are _______.
Aunts, uncles, nieces, nephews, etc.
Marriage between ______ cousins is voud.
First
What is bigamy?
Marriage to more than one spouse
Is bigamy legal?
No
Someone is married. Without legally terminating that marriage, they marry a second time. What effect?
The second, bigamous marriage is void.
What are “marriage-saving doctrines”?
Laws creating a presumption against a finding of a bigamous marriage
How do marriage-saving doctrines work?
Presume validity of the marriage in question. Other states will accept the marriage as valid as soon as the impediment has been removed.
What is a ceremonial marriage?
A legally valid civil marriage that:
1. Follows all statutory requirements AND
2. Has been solemnized before an authorized religious/civil official
Most states require that parties obtain a ________ prior to solemnization of the marriage.
Marriage license
Generally, a license to marry requires:
- Satisfactory proof that each party to marriage at least 18 years old or has the consent of parents or judicial approval
- Satisfactory proof that marriage not prohibited AND
- Results of any medical examination required by the laws of the state
Most states require a ______ period before the marriage license.
Waiting
Marriage licenses will expire if ________ does not occur within a certain period
Solemnization of the marriage
Compliance with marriage license statutes is generally not essential to validity of the marriage unless ____________.
The applicable statute makes such compliance essential
Solemnization is also known as _________.
Marriage ceremony
Who may solemnize a marriage?
- Judge of court of record
- Public official whose powers include solemnization of marriage OR
- In accordance with any solemnization mode recognized by a religious/cultural group
The requirements of solemnization are:
- An officiant
- Witness (in most states, at least two)
- Exchange of promises
Violation of solemnization statutes will only invalidate a marriage if:
- Person performing the ceremony was not authorized to do so AND
- Some other requirement(s) has not been met
What does common law marriage accomplish?
Creats marital obligations and rights identical to those flowing from a ceremonial marriage
What are the requirements for a common law marriage?
- Capacity to enter a marital contract
- Present agreement to be married
- Cohabitation AND
- Hold out a marital relationship to the community
While most states do not permit common law marriages, how do universally accepted conflict-of-laws principles allow for them?
A marriage under the law of the place in which it was contracted will be valid elsewhere UNLESS it violates a state’s strong public policy interest
How can common law marriage be dissolved?
Only via divorce
Who is a putative spouse?
Any person who has cohabited with another to whom she is not legally married in the good faith belief that she was married to that person
A person ceases being a putative spouse when _________.
Knowledge that she is not legally amrried
What are the requirements of a putative spouse?
- Cohabitation AND
- Good faith belief of legal marriage
The effect of a putative spouse is _________.
She receives all rights conferred upon a legal spouse
Rights of a putative spouse do not superseded:
Rights of:
1. Legal spouse OR
2. Other putative spouses
What is a meretricious relationship?
Stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist.
NOT a putative spouse
If cohabitants sue former partners for purportedly shared property, they must show that they are entitled to part of the property based on:
- Express contract
- Implied-in-fact contract
- Constructive/resulting trust
- Quantum meruit
- Partnership theory
What is quantum merit?
Compensation for a cohabitant’s contributions to the other cohabitant’s benefit
When will the court impose a constructive or resulting trust on cohabitants?
To prevent the unjust enrichment of one party at the expense of another
Payment to a cohabitant under the doctrine of quantum merit is limited to _______.
What would be fairly paid for the cohabitant’s activities in the public sphere
What is the partnership theory for collecting from a cohabitant?
The couple engaged in a joint economic venture for which one party can recover against the other
At common law, husband and wife were regarded as one; in other words, _______.
Legal existence of wife was merged with that of her husband
At common law, what were a wife’s disability?
- No capacity to contract for herself
- Cannot sue/be sued unless husband jointed as P or D
- Husband acquired right to possession & use of wife’s real/personal property
- Husband liable for tort’s wife
Who controls separate property, the spouse or the couple?
The individual spouse
A married person may own, hold, control, dispose of, or encumber her separate property without:
- Consent/joinder of her spouse AND
- Her spouse having any interest in that property
What is separate property?
- All property owned by each spouse before marriage
- Property brought into the marriage by gift, will, or inheritance AND
- Any rents, issues, and profits derived from SP
What is marital property?
All property acquired by either spouse during an ongoing marriage other than by gift or inheritance
All marital property is subject to _____ upon divorce.
Division
Marital property continues to accrue until _______.
The marriage is dissolved
Financial instruments are marital property when they are _____________, even if the instrument is in only one spouse’s name.
Purchased with funds that were marital property
Women were allowed to have property rights upon the enactment of _________.
Married women’s property act
What happens when there is a tenancy by the entirety?
Husband and wife own undivided share with the right of survivorship
What is the language of a tenancy by the entirety?
To H & W with the right of survivorship
How is a tenancy by the entirety created?
- Valid marriage
- Four unities:
a. Time
b. Title
c. Interest
d. Possession - Right of survivorship
How is a tenancy in the entirety severed?
- Death
- Divorce
- Mutual written agreement between husband and wife
What effect does unilateral conveyance have on a tenancy by the entirety?
Does not sever
What effect does execution by creditors have on a tenancy by the entirety?
No severance
What is the duty to support one’s spouse?
- Husband and wife are liable for necessaries incurred by the other
- Spouses are liable as principals and agents
What are necessaries?
All things proper for sustaining human life
What is the name change requirement for marriage?
Trick question; there is no such requirement
At common law, may spouses sue one another for torts?
No; interspousal tort immunity exists
At modern law, may spouses sue one another for torts?
Yes
Even where a spouse is immune from tort liability for torts committed against the other spouse, that immunity does not extend to ________
Criminal prosecutions for spousal abuse
Is there a spousal exemption to rape?
In most states, no.
In some states, a person cannot be guilty of criminal sexual conduct if victim is D’s legal spouse unless they’re living apart because of a court order
At common law, what is the right to family privacy?
Right to be free from publicizing of one’s private affairs which:
1. Public has no legitimate concern OR
2. Intrusion would cause mental suffering, shame, or humiliation
Fundamental rights of family privacy whose restriction is subject to strict scrutiny include:
Right to…
1. Marry
2. Procreate
3. Purchase and use contraceptives
4. Keep family together
5. Custody of children AND
6. Control upbringing of one’s children
What rights fall within a parent’s right to control the upbringing of one’s children - and thus, their restriction is subject to strict scrutiny?
- Right of parents to educate their children outside of public schools
- Right of parents to decide care, custody, and control of their children
- Visitation rights
For what family right under privacy is the level of scrutiny unknown, but it is still a fundamental right?
Right to homosexual activity
Prior to viability, what level of restriction may be imposed on abortion?
May not prohibit, but may regulate unless undue burden
After viability, what level of restriction may be imposed on abortion?
May prohibit unless necessary to protect the woman’s health or life
Which privilege protects spousal testimony in both criminal AND civil cases?
All communications between husband and wife:
1. Made during the course of marriage AND
2. Intended to be confidential
…are privileged
Does the privilege of confidential marital communications end with divorce?
No; communications that were made during marriage are still protected
What are the exceptions to the doctrine of confidential marital communications?
- Civil actions between spouses
- Criminal prosecution where one spouse charged with crime against spouse or children
Which privilege protects spousal testimony only in criminal cases?
Spousal testimonial privilege
What is spousal testimonial privilege?
Person is permitted to refuse to testify against her spouse as to anything
When can spousal testimonial privilege be invoked?
Only during valid marriage
Who is the holder of a spousal testimonial privilege?
Only the witness spouse
What is the exception for which spousal testimonial privilege does not apply?
Criminal prosecution where one spouse charged with crime against spouse or children
What is consortium?
Status and rights of both spouses resulting from the relationship
In general, a claim for loss of consortium encompasses what types of injuries?
- Love/affection
- Society/companionship (economic dependency)
- Sexual relationship
- Performance of material services
- Financial support
- Aid/assistance AND
- Fidelity
The elements of a loss of consortium action are:
- Injuries to spouse
- Loss and expenses of the P-spouse
- Liability of D for those injuries
Loss and expenses of the Plaintiff-spouse are limited to _________.
Damages incurred during impaired spouse’s lifetime
An action for loss of consortium requires that D must at least be _______.
Negligent
What causation is required for a successful action for loss of consortium?
Proximate cause of loss of consortium
In some states, a claim for loss of consortium must be derived from ________
An injured spouse’s tort claim
What are the requirements for the (now-abolished) tort of criminal conversation?
- Actual marriage between spouses AND
- Sexual intercourse between D and P’s spouse during the marriage
What is a declaration of nullity?
Action pursued when the underlying marriage is legally void
What does it mean for a marriage to be void ab initio?
Invalid from the outset; do not require a court decree to nullify the marriage
On what grounds is a marriage void ab initio?
- Incest
- Bigamy
Why can’t doctrines that would make a marriage void ab initio be waived?
These marriages violate strong public policy interests of the state
Beyond the parties, who can attack void ab initio marriages?
Third parties
If marriages are void ab initio, why would a declaration of nullity be of use?
Have the court settle other issues
What does the death of one spouse do to a marriage that is void ab initio?
The marriage can still be attacked
Where there is a voidable marriage, _______ is required.
Annulment
Can parties waive issues that would make a marriage voidable?
Yes
Who can challenge a voidable marriage?
Only spouses
What happens when a spouse in a voidable marriage dies?
Voidable marriage can no longer be voided
What is an annulment?
Action pursued to terminate a voidable marriage
If a marriage is annulled, the parties are treated as though _________.
They were never married
After an annulment, the process will be the same as divorce if:
- There are children OR
- Property has been accumulated
Who has jurisdiction over annulment?
Domicile of either party
In rare occasions, what states other than domicile have jurisdiction over annulment?
States where marital ceremony took place
Annulment decrees entered by a court of proper jurisdiction are entitled to ____________.
Full faith and credit
What are grounds for annulment?
- One party was under 18 without parental consent
- Lack of mental capacity
- Lack of physical capacity
A marriage is voidable when at least one spouse is under 18. What happens if they’re still married when the spouse turns 18.
The marriage is ratified
What lack of mental capacity is grounds for annulment?
- Mental incapacity or infirmity
- Influence of alcohol, drugs, or other incapacitating substances
- Force or duress
- Fraud involving essentials of marriage
What lack of physical capacity is grounds for annulment?
- Incurable inability to engage in normal sexual relation AND
- Other spouse unaware of incapacity at time marriage is solmenized
What is the most common defense to an action to annul a voidable marriage?
Ratification
When does ratification occur?
When parties continue the marital relationship after the impediment to the marriage is removed
Is alimony granted for an annulment
No
Upon annulment, alimony rulings from prior marriages will not be revived unless _________.
Great need demonstrated
What is divorce?
Judicial decree which terminates the marital relationship and changes the legal status of the married parties
No-fault divorce is available where:
- Irreconcilable differences OR
- Irretrievable breakdown of the marriage
Under a no-fault divorce statute, the parties are not required to prove fault or grounds for divorce other than:
Showing of:
1. Irreconcilable differences OR
2. An irretrievable breakdown of the marriage
Irreconcilable differences are also known as __________.
Incompatibility
When do irreconcilable differences exist?
Such a conflict of personalities exists so as to destroy the legitimate ends of matrimony and possible reconciliation
_____________ is not sufficient to show that differences are reconcilable
One party’s belief in possible reconciliation
What is the irretrievable breakdown of marriage?
- Where either/both parties are unable/refuse to cohabit AND
- There are no prospects for reconciliation
What were the traditional grounds for divorce?
- Cruelty
- Adultery
- Desertion & abandonment
- Habitual drunkenness or drug addiction
What is cruelty as a grounds for divorce?
Cruel/inhuman treatment of P by D such that D’s conduct makes it unsafe/improper for P to cohabit with D
For cruelty, courts distinguish ______ from mere incompatibility and _________ from trivial misconduct.
Cruel and inhuman treatment
Serious misconduct
As a general rule, cruel and inhuman treatment for cruelty must be shown to be ____ and _____.
Routine
Continuous
Acts of physical abuse have repeatedly been found to constitute cruelty when ___________.
They are shown to be part of a pattern of misconduct
What is mental cruelty?
Course of unprovoked conduct toward one’s spouse that causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable.
In order for mental cruelty to constitute cruelty, there must be ________
Course of conduct that endangers the physical or mental health of P so as to render continued cohabitation unsafe/improper
Verbal abuse and torment is sufficient mental cruelty to constitute cruelty as grounds for divorce if:
- Vicious AND
- Persistent
Adultery is sufficient mental cruelty to constitute cruelty as grounds for divorce if ___________.
Repeated often enough.
However, courts generally require additional cruel/inhuman treatment
How does continued cohabitation affect a claim of cruelty?
- After long enough time OR
- After separating and then resuming the marital relationship
What is adultery as grounds for divorce?
One spouse rejects the other by entering into personal, intimate sexual relationship with any other
How does cohabitation affect adultery as grounds for divorce?
Continued cohabitation beyond a few days after recieving knowledge is condonation
What is desertion and abandonment as grounds for divorce?
One spouse
1. Withdraws from the common dwelling without lawful cause AND
2. Constantly refuses to return
To constitute desertion as a ground for divorce, there must be a cessation of ________.
Cohabitation
Cohabitation consists of ______.
The continuing condition of living together and carrying out the mutual responsibilities of the marital relationship
What is intent to desert in relation to desertion and abandonment as grounds for divorce?
Intent
1. Not to return
2. Not to resume cohabitation
3. To terminate the marriage relation
For desertion and abandonment as grounds for divorce, most statutes require that desertion continue for _________.
A stated period of time
What effect does resuming cohabitation on desertion and abandonment as grounds for divorce?
Depends on jurisdiction, but:
1. Temporary resumption may or may not break continuity of statutory period
2. Long-term resumption will break continuity
What defenses exist against for-cause divorce?
- Collusion
- Connivance
- Condonation
- Recrimination
What is collusion as a defense to for-cause divorce?
Agreement between spouses to:
1. Simulate a ground for divorce OR
2. To waive raising a valid defense
What is connivance as a defense to for-cause divorce?
Consent by one spouse to the other spouse’s misconduct
Connivance as a defense to for-cause divorce is usually limited to ______.
Adultery
What is condonation as a defense to for-cause divorce?
Forgiveness of one spouse by the other for a breach of marital duty after knowledge of their commission
Condonation as a defense to for-cause divorce is also known as __________.
Reconciliation
Condonation as a defense to for-cause divorce is also known as __________.
Reconciliation
For condonation as a defense to for-cause divorce, what factors might a court consider?
- Expression of forgiveness
- Fact of cohabitation
- Length of time the parties cohabit after the injured spouse learns of matrimonial offense
- Whether cohabitation results from necessity
- Whether parties continue to have sexual relations
An essential element of condonation as a defense to for-cause divorce is _________.
Resumption of cohabitation & restoration of all marital rights
What is recrimination as a defense to for-cause divorce?
Other spouse was also guilty of misconduct for which a divorce may. begranted
In order to have a conversion divorce, the parties must live separate and apart continuously for a statutory period.
What does “living separate and apart” mean in this context?
- Something in addition to discontinuance of sexual relations
- Separation must be visible to the community
What is recrimination as a defense to for-cause divorce?
Other spouse was also guilty of misconduct for which a divorce may. be granted
Recrimination as a defense to for-cause divorce is also known as _______.
Dity hands
What is conversion divorce?
Conversion of legal separation into a divorce when parties have lived separate and apart for a specified time, intending to end the marriage
Attempted reconciliation won’t toll the statutory time period for separation where ___________
Evidence reflects that the parties didn’t resume all rights/duties attendant to the marital relationship
___________ was basically the doctrine of no-fault divorce before no-fault divorce existed.
Conversion divorce
Parties in marital status determination elements of a divorce case are subject to jurisdiction based on _______.
Their domicile
In divorce law, in personam jurisdiction applies to cases involving only _______.
Matters incident to marital status determination, like alimony, property division, or child support
What is an ex parte divorce?
Court has jurisdiction over only the divorce because only one party is present and domiciled in the state
In order for there to be jurisdiction over divorce, one of the parties must be ________ in the jurisdiction where the action for divorce is brought.
In some states, this is extended to ____________.
resident
Requiring P to be resident for a specified duration
Personal jurisdiction over D is not required for:
- Separation
- Divorce
- Annulment
Personal jurisdiction over D is required for:
- Property rights
- Support
- Alimony
What is the doctrine of sister state divorce decrees?
Courts will only recognize decrees regarding property rights, spousal support, or child support if the rendering court has personal jurisdiction over D spouse.
If that’s the case, full faith and credit is granted.
Foreign divorce decrees are recognized under the principles of ______.
Comity
What is preliminary relief?
Temporary relief is available pending the entry of a decree of dissolution by a court
What kinds of preliminary relief exist?
- Temporary parenting plan
- Temporary child support orders
- Temporary restraining orders
- Protection orders for DV
In some states, a divorce decree is considered ______ when issued and only becomes final after _________.
Interlocutory
Some specified period of time
Legal separation occurs via _______ agreements.
Separation
The parties may enter into a written separation agreement containing provisions for:
- Disposition of any property owned by either of them
- Maintenance of either of them
- Support, custody, and visitation of their children
What is a separation agreement?
A contract between a husband and wife who have decided to live apart.
Sets forth the manner in which the obligations of the marital relationship are to be carried out.
An action for legal separation does not ______________, but rather only orders the parties to live apart and adjudicates property.
Terminate the marriage
What are the requirements for a separation agreement?
- Intent of at least one spouse to dissolve the marital relationship or not to resume marital relations
- Voluntarily entered
- Statutory requirements (usually writing)
When have spouses voluntarily entered a separation agreement?
- Free from mistake, menace, fraud, duress or undue influence
- Full & fair disclosure by both parties AD
- Representation by independent legal counsel
Sufficient consideration for a separation agreement may be found in ___________.
Mutual promises of the parties
Terms of a separation agreement are binding on the court unless:
- Support, custody, and visitation of children OR
- Separation agreement unconscionable
Some states allow a court to refer the parties to a divorce action to a mediator who is __________.
Approved the court
Mediation involves __________.
Assistance of a neutral third party in attempting to resolve a dispute
A mediator is a _________.
Neutral third party
The mediator’s function is to assist the parties in their negotiations by:
- Helping the parties define the issues
- Overcome barriers to communication AND
- Explore different methods of resolving their dispute
__________ by mediators can be basis for setting aside a settlement agreement.
Significant misconduct
What are the duties of mediators?
- Impartial
- Promote informed decision making AND
- Explain the mediation process
When can a mediator NOT be impartial?
After disclosure of conflict, parties still agree to oversight by the mediator
Almost state now recognizes express contracts between cohabitants unless _______.
The sole consideration is sexual relations
Cohabitant rights based on contract theories are severely limited in scope, applying only to ________.
Rights inter se
What formalities are required for cohabitation agreements?
None
Compensation for loss of consortium is typically available only to _______.
Legally recognized spouse of the injured party
Why don’t courts typically expand liability for negligent infliction of emotional distres to cohabitants?
- Difficult to determine which cohabitants should be allowed to recover
- Problems of proving importance of the relatiopnship
- Would undermine strong public policy in support of marriage
It is rare that states will expand liability for negligent infliction of emotional distress to a cohabitating fiance. However, if they do, it may be for ___________.
Engaged cohabitants
Can cohabitants be compensated for wrongful death?
Usually, no.
A non-marital child is also known as _______.
An illegitimate child
Who is a non-marital child?
Child born to:
1. Unmarried woman OR
2. Married woman but fathered by a man who isn’t her husband
Who has the burden of showing whether a child is legitimate?
The person alleging illegitimacy
A child born to a married couple is presumed to be their legitimate offspring in absence of a clear demonstration that _________.
The husband couldn’t possibly be the father
The presumption of legitimacy arising from birth in wedlock supports the rule that _____________.
if a husband was able to have sex with his wife, it must be his child
The presumption of a child’s legitimacy can be rebutted via:
- Proof of husband’s infertility OR
- Lack of access to his wife
Access between husband and wife is presumed until _________.
The contrary is plainly proved
The presumption of legitimacy generally applies even when it shown that conception occurred _______.
Before the parties were married
States can exclude evidence regarding the illegitimacy of a child if __________.
Rebutting the presumption is contrary to the child’s best interest.
What kinds of marriages does a presumption of legitimacy apply to?
- Ceremonial marriage
- Common law marriage
Under the UPA, a man is presumptive natural father if after the child’s birth:
- Marries mother AND
- Voluntarily asserted his paternity of a child
How can a man voluntarily assert his paternity of a child?
- Writing filed with state agency maintaining birth records
- Agreed to and named as child’s father on child’s birth certificate OR
- Promised in writing to support the child as his own
A man is presumed to be the father of a child if he and the mother were married and the child is born within ________ after marriage terminates.
300 days
There is a presumption that a child was legitimately conceived even when parents were living ________.
Separate and apart
If there is a second marriage, the child will be regarded as that of the first husband if __________.
No evidence of sexual relations between second husband and wife during possible period of conception
What parties must be joined as parties in a proceeding to adjudicate parentage?
- Mother of the child AND
- Man whose paternity is to be adjudicated
What parties must be joined as parties in a proceeding to adjudicate parentage?
- Mother of the child AND
- Man whose paternity is to be adjudicated
A minor child is a _______ party to a filiation proceeding.
Permissible
A minor child is a _______ party to a filiation proceeding.
Permissible
During filiation proceedings, a guardian at litem may be appointed for a child if:
- Minor or incapacitated child OR
- Interests of child not adequately represented
Who has jurisdiction over filiation proceedings?
Court has personal jurisdiction over the individual
A court has personal jurisdiction over an alleged parent during filiation proceedings if there are minimum contacts.
When are there minimum contacts?
- Engaged in sexual intercourse in state AND
- Child may have been conceived by that act of intercourse
There is no SoL on filiation proceedings if _____________.
Child has no presumed, acknowledged, or adjudicated father
There may be filiation proceedings for an adult child, but only if:
- Child has no presumed, acknowledged, or adjudicated father AND
- Child initiates the proceeding
If a child has a presumed father, the SoL prevents filiation proceedings _________.
Within 2 years after birth of child
The SoL on filiation proceedings when there is a presumed father does not apply if:
- Presumed father or mother neither cohabited nor engaged in sexual intercourse during probable time of conception AND
- Presumed father never openly held out the child as his own
The two-year SoL on filiation proceedings does not violate ________.
Due process
What evidence is admissible in a filiation proceeding?
- Statements made regarding paternity
- Resemblance of child to D
- Medical testimony/records
- Blood or genetic testing
If there is blood/genetic testing, and the test shows D is not the father, then __________.
Case must be dismissed
A court may deny genetic testing during a filiation proceeding if:
Child has a presumed/acknowledged father AND
1. Mother/father estopped from denying parentage AND
2. Inequitable to disprove father-child relationship
What factors help determine whether it would be inequitable to use genetic testing to disprove a father-child relationship?
- Length of time between proceeding and time the presumed/acknowledged father had notice of possible nonpaternity
- Length of time during which presumed/acknowledged father had assumed role of father
- Facts surrounding presumed father’s discovery of nonpaternity
- Nature of relationship between the child and presumed/acknowledged father
- Age of the child
- Harm to child if paternity disproved
- Nature of relationship between child and any alleged father
- Chances of establishing paternity of another man and child support obligation in favor of the child AND
- Any other factors that might harm the child
What is the policy rationale for allowing courts to deny genetic testing during filiation proceedings?
States have an interest in preventing the disruption of intact marital families
What is legitimation?
Act of giving the character of legitimate children to those who were not so born
An illegitimate child will be legitimized as the father’s child only if:
- Voluntarily acknowledgment of paternity OR
- Judicial decree establishing paternity
Under the UPA, a man is the presumptive natural father if after the child’s birth:
- Marries mother AND
- Voluntarily asserted his paternity of child
Under the UPA, how does someone voluntarily assert his paternity of child?
- Writing filed with state agency maintaining birth records
- Agreed to/named as child’s father on child’s birth certificate OR
- Promised in writing to support the child as his own
Discrimination against non-marital children is subject to what level of scrutiny?
Intermediate
Constitutional or not?
A law provides benefit to all marital children, but not to non-marital ones.
Unconstitutional
Constitutional or not?
A law provides benefit to all marital children, but not to non-marital ones.
Unconstitutional
Constitutional or not?
A law provides benefit to some non-marital children, but not to others.
Subject to scrutiny
Under the US Constitution, an unwed biological father who has ______________ has a substantive due process right in that relationship.
a significant relationship with his biological child
Only when an unwed father demonstrates ___________ does he have substantial protection under due process.
Full commitment to the responsibilities of parenthood
An irrebuttable presumption that a husband is the father is okay if mother does not ___________.
Join the alleged father’s paternity petition
May an unmarried parent recover for wrongful death of non-marital child?
Mother, yes
Father, only if previously legally recognized the child
What is the citizenship of a child born abroad to an unmarried American mother?
Automatically granted US citizenship
What is the citizenship of a child born abroad to an unmarried American father?
Only American if paternity is established
A donor is not the parent of a child conceived via assisted reproduction unless __________.
he is a man who provides sperm with the intent of being a parent of the resulting child
A non-biological father who is the husband of an artificially inseminated mother is a father if:
- Husband consented in writing with intent to be the parent of the child AND
- Medical doctor performed the insemination
The consent of a woman/man to assisted reproduction may be withdrawn by that individual in a record at any time before ______.
Placement of eggs, sperms, or embryos
What is the effect of revoking consent to assisted reproduction?
Not the parent of resulting child
If a marriage is dissolved before placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless ______.
The former spouse consented in a record that, if assisted reproduction were to occur after a divorce, the former spouse would be a parent of the child
If a person who consented to be a parent by assisted reproduction dies before placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless ______.
The deceased spouse consented in a record that, if assisted reproduction were to occur after death, the deceased spouse would be a parent of the child
Upon birth of child to gestational mother, the intended parents shall file notice with the court that __________.
A child has been born to the gestational mother within 300 days after assisted reproduction
After parents file notice that a child was born to gestational mother after assisted reproduction, the court shall issue order that:
- Confirms that intended parents are parents of the child
- Orders child be surrendered to the intended parents AND
- Direct agency to issue birth certificate naming intended parents as parents of the child
A gestational agreement that is not _________ is not enforceable.
Judicially validated
If there is a nonvalidated gestational agreement, then the gestational mother becomes ___________.
Legal mother
If there is a nonvalidated gestational agreement, who becomes the legal father?
Gestational mother’s husband
If there is a nonvalidated gestational agreement, and the gestational mother decides to keep the child, what recourse do the intended parents have?
None
It is the policy of the law to look after the interest of children who are considered incapable of looking after themselves in order to:
- Protect them from their own folly AND
- Prevent adults from taking advantage of them
Infant contracts are _________.
Voidable
When may minors disaffirm contracts?
- While being minors OR
- Within a reasonable time of reaching majority
A child is liable for the value of ______ furnished to her even if she is too young to have legal capacity to contract for them.
Necessaries
What are necessaries?
All things proper and requisite for the sustenance of human life
What is the extent of a child’s liability for contracting for necessaries?
Reasonable value of necessaries furnished
A child may generally own and convey property, but __________.
Child can disaffirm any conveyance upon reaching the age of majority
Upon the disaffirmance of a deed made during infancy, the infant is entitled to ___________
Recover the property conveyed by her during infancy
An infant is liable for her own torts provided that the tort:
- Does not arise out of OR
- Is not connected to
…a contract
What is the standard of care by which a child must act in light of tort law?
Reasonable care, but measured to determine if they constitute negligence varies from that employed for adults
When will a child be liable for torts?
- Child makes a wilful act AND
- Tort is connected with contracts
A child cannot be criminally liable under the age of _______.
7
A child is (rebuttably) presumed to lack criminal capacity at what age?
Between ages of 7 and 14
A child bears full criminal responsibility after the age of ______.
14
Can children make valid wills?
No
Children cannot consent to ____ treatment.
Medical
A doctor who performs a medical procedure on a minor child without the parents’ consent is liable in tort unless:
- Implied consent for life-threatening emergency
- Public health concerns
- Older children
How can the state intervene to protect children when parents deny them needed medical care?
Chid can be adjudicated neglected, and the state can order the medical treatment
When parents object to medical care, the concept of “need” generally requires ___________
The child to face imminent death or serious injury without the medical treatment
Many states allow the state to order medical care of parental protest without a finding of parental fault if ___________.
Parents object to the child’s treatment on religious grounds
Parents are legally obligated to support their children. These obligations generally entail:
- Expression of love/affection for the child
- Expression of personal concern over the health, education, and general well-being of the child
- Necessary food, clothing, and medical care
- Adequate domicile AND
- Furnish social/religious guidance
Courts have uniformly rejected the argument of “unwanted child” to support obligations.
What is this argument?
One parent expressly stated that he did not want to have children
What is the reason for courts rejected the “unwanted child” defense to support obligations?
- Public policy in favor of children AND
- Implicit/explicit conclusion that a man who has sexual relations with a woman necessarily takes the risk that she may become pregnant
Most jurisdictions do not recognize any duty of a _____ child to support her parents.
Adult
What is emancipation?
Emancipation by the parent before the child reaches the age of majority
Filiation proceedings are also known as ________.
Establishing paternity
Who may bring an action to establish paternity?
- The child
- Mother of the child
- Man whose paternity of the child is to be adjudicated
- The state OR
- Representative authorized by law
Emancipation is more considered with ______ than with _______.
Extinguishment of parental rights/duties
Removing disabilities of infancy
An emancipated minor is a child who ___________.
Has been granted the status of adulthood
When a minor becomes emancipated, she can enjoy ________________.
All privileges and responsibilities of adulthood
A parent is obligated to support her child until __________ unless the child is sooner emancipated.
the child reaches the age of majority
What is partial emancipation?
Frees the child for only:
1. Part of the period of minority
2. Part of the parent’s right
3. Some specific purpose such as the right to her own wages
What is complete emancipation?
Occurs when the parent:
1. Renounces all the legal duties AND
2. Voluntarily surrenders all the legal rights of her position to the child
What are the three ways a minor can be emancipated?
- Court petition
- Marriage
- Military service
A court petition can lead to emancipation when the child:
- Leaves home and earns her own support
- Earns her own support while still living with a parent
- Refuses to see, visit, or live with an obligor-parent OR
- Receives public assistance in her own name
Although a marriage may release a child from parental authority, it does not change the status of a child from a minor to an adult without ________.
Some statutes expressly providing for the change
How does military service emancipate a minor?
After a minor is officially inducted into military service, the minor is emancipated during the course of her service
In regards to education, states may require that ____________, but parents may ___________
Children attend school up to a certain age
Decide where their children will attend school
When will state interests take priority over parental autonomy?
- Termination of parental rights
- Children in need of supervision
Because the right to raise one’s children is a fundamental right, ______ is required before parental rights can be terminated.
Due process
Grounds for the termination of parental rights must be proven according to what standard?
Clear and convincing evidence
What are grounds for court termination of parental rights?
- Infliction of serious physical harm
- Abandonment
- Neglect (aka deprivation)
- Failure to support w/o justifiable cause
- Mental illness so severe that parent incapable of caring for the child OR
- General parental unfitness
CINS stands for _______
Children in need of supervision
A CINS is a minor who ________.
Commits an offense that, if committed by an adult, would not be a crime
A child is considered in need of supervision if:
- Habitual truancy
- Beyond parent control (runaway behavior)
- Danger to herself or others
- Violates curfew
- Ungovernable
When is a child ungovernable?
Generally refuses to follow rules
Parental immunity for torts against children has been mostly abolished but still exists for _____________.
Acts of ordinary negligence which results in personal injury to children
Parents have substantial discretion in making decisions concerning __________.
Their children’s upbringing
No recent case in any jurisdiction has held that the parent-child immunity applies to _________________.
Willful, wanton, or malicious infliction of physical injury on a child by a parent
At common law, parents are not vicariously liable for their children’s liability as long as __________.
Parents were completely passive and didn’t contribute to child’s tortious conduct
If the law allows a child to marry who is younger than the age of consent to marry, that child would become __________ upon marriage.
An emancipated minor
_________ ceases when a minor child marries.
Parental support obligation
Parents will be held liable for their own negligence in allowing the child to ____________.
Do something that causes injury to a third party
Under modern law, parents are liable for ________ torts of their minor children.
Willful and intentional
Modern statutes limit the vicarious tort liability of parents for their children to ________.
Certain dollar amount
May a child recover from a person who tortiously injures her parents?
No
While a child rarely has a right to action for loss of consortium against someone who injured her parents, some states allow it when __________.
Loss of parental support resulting from the wrongful act of another
A parent who has her lawful custody interfered with may recover tort damages for ____ or _____.
Abduction
Enticement
A parent may recover for enticement or abduction of a child whenever she can show that ___________.
This has had the effect of depriving her of the child’s services
To establish a claim of tortious interference with child custody, P must show:
- She has legal right to establish/maintain a parental/custodial relationship with her minor child
- D took some action/affirmative effort
- Action by D was willful
- D had notice/knowledge that child had parent whose rights were invaded and didn’t consent
At common law, what state has jurisdiction over an adoption proceeding?
State where the adoptive parents are domiciled
At modern law, what state has jurisdiction over adoption proceedings?
Ask:
1. Whether state has a sufficiently strong connection with the child AND
2. Whether substantial evidence concerning the case is present there
When is there sufficiently strong connection with a child and a state so as to justify jurisdiction over adoption proceedings?
- Minor lived in state for at least 6 consecutive months (or if age under 6 months, soon after birth)
- Prospective adoptive parent lived in state for at least 6 consecutive months
- Agency that placed minor up for adoption located in state and best interests of minor
- Physical presence and abandonment, neglect, or emergency situation OR
- No other state has jurisdiction
In regards to adoption proceedings and jurisdiction, best interests of minor are determined based on:
- Significant connection with state AND
- Substnaitla evidence concerning the minor’s present and future care
Private placement is also known as _______ placement.
Independent
What is private placement?
When the parent/guardian personally selects a prospective adoptive parent for the direct placement of the child
A parent/guardian authorized to place a minor directly for adoption may place the minor only with __________.
A prospective adoptive parent for whom a favorable preplacement evaluation has been made
An agency authorized to place a minor for adoption shall furnish to an individual inquiring about its services with ________.
A written statement of its services, including:
1. Agency’s procedure for selecting a prospective adoptive parent for a minor
2. Schedule of its fees
Consent of _________ is generally required for adoption.
Child’s biological parents
A biological father’s consent might not be required if ____________.
Parents are not married
When an unwed father _______________, his interest in personal contact with his child acquires substantial protection under Due Process.
Demonstrates a full commitment to the responsibilities of parenthood
An adoption order entered without notice to the unmarried father was constitutional when ________________.
The state provided the father with an opportunity to obtain notice and a hearing through registration with a “putative father registry.”
An unmarried father may veto his child’s adoption when ____________.
state law grants a similarly situated unmarried mother a veto
States can apply either a ______ or ______ test to determine if a child has been abandoned.
Subjective
Objective
What is the subjective test for whether a child has been abandoned?
Courts require proof that the parent subjectively intended to abandon the relationship
What is the objective test for whether a child has been abandoned?
Whether the parent has indicated a commitment to maintaining the parent-child relationship
A committed father entitled to protection under the due process clause cannot have his parental rights severed without:
- His consent OR
- A showing of parental unfitness
Records of adoption cases are _____ and _____.
Confidential
Sealed
What are the effects of adoption?
- Parental rights & obligations of biological parents terminated AND
- Creates new parental rights and obligations in the adoptive parents
Parental rights/obligations of biological parents are terminated upon adoption. However, there is one exception.
A minority of states allow courts to require visitation that is in the best interests of the child
Gestational agreements are also known as ___________.
Surrogacy arrangements
Gestational agreements are also known as ___________.
Surrogacy arrangements
What is a gestational agreement?
An adult woman who agrees to bear a child conceived through assisted reproduction for intended parents
A prospective gestational mother, her husband, a donor/donors, and the intended parent may enter into a gestational agreement that:
- Gestational mother agrees to pregnancy by means of assisted reproduction
- All rights and duties relinquished by gestational mother, her husband, and donors AND
- Intended parents become parents of the child
A child born to gestational mother within _____ days of assisted reproduction pursuant to a validated gestational agreement is presumed to be the result of assisted reproduction
300 days
A gestational agreement does not apply to the birth of a child who ________.
Was conceived by means of sexual intercourse
A gestational agreement does not apply to the birth of a child who ________.
Was conceived by means of sexual intercourse
A gestational agreement may not limit the right of the gestational mother to ___________.
Make decisions to safeguard her health or that of the embryos/fetus
A court may issue an order validating the gestational agreement and declaring that the intended parties will be parents of the child born during the agreement term, but only on a finding that:
- Court has jurisdiction
- Child-welfare has done a home study of intended parents
- All parents voluntarily entered into the agreement and understand its terms
- Adequate provision for all reasonable health care expenses AND
- Consideration paid to prospective gestational mother is reasonable
A court may issue an order validating the gestational agreement and declaring that the intended parties will be parents of the child born during the agreement term, but only on a finding that:
- Court has jurisdiction
- Child-welfare has done a home study of intended parents
- All parents voluntarily entered into the agreement and understand its terms
- Adequate provision for all reasonable health care expenses AND
- Consideration paid to prospective gestational mother is reasonable
When does the court have jurisdiction to validate a gestational agreement?
- Mother or intended parents have been residents of the state for at least 90 days
- Prospective gestational mother’s husband is joined in the proceeding AND
- Copy of the gestational agreement is attached to the petition
When does the court have jurisdiction to validate a gestational agreement?
- Mother or intended parents have been residents of the state for at least 90 days
- Prospective gestational mother’s husband is joined in the proceeding AND
- Copy of the gestational agreement is attached to the petition
When does the court have jurisdiction to validate a gestational agreement?
- Mother or intended parents have been residents of the state for at least 90 days
- Prospective gestational mother’s husband is joined in the proceeding AND
- Copy of the gestational agreement is attached to the petition
How may a prospective gestational mother, her husband, or either of the intended parties terminate a gestational agreement?
Giving written notice of termination to all other parties
How
When may a prospective gestational mother, her husband, or either of the intended parties terminate a gestational agreement?
- After agreement is validated AND
- Before prospective gestational mother becomes pregnant
Upon birth of a child to gestational mother, the intended parents shall file notice with the court that __________
A child has been born to the gestational mother within 300 days after assisted reproduction
After intended parents file notice with the court that a child has been born to the gestational mother, the court shall issue an order that:
- Confirms that intended parents are parents of the child
- Orders the child be surrendered to intended parents AND
- Directs agency to issue birth certificate naming intended parents as parents of the child
After a gestational agreement has been validated, what effect does a subsequent marriage of gestational mother have on the agreement?
- Does not affect validity
- New husband’s consent isn’t required AND
- Husband is not presumed father of resulting child
A gestational agreement that is not ________ validated is not enforceable.
Judicially
The gestational mother is the legal mother of ________________.
The child born from a nonvalidated gestational agreement
If a gestational mother decides to keep a child, what recourse do intended parents have?
None
Traditionally, why could an adoption order be dissolved?
It couldn’t
Modernly, why could an adoption be dissolved?
In special circumstances, such as discovery of an undisclosed mental/physical illness
In evaluating dissolution of adoption claims, court typically look to:
- Length of the relationship
- The child’s needs AND
- Parent’s motives
Child custody can mean either _____ or ____ custody of a child.
Legal
Physical
What is legal custody of a child?
The right to make major decisions that affect the child’s life
What is physical custody of a child?
Actual possession and control of the child
Custody and visitation disputes are governed by the court’s determination of _________.
The child’s best interest
A child’s legal parent is presumptively entitled to custody because:
- Parental rights are protected by common-law and constitutional principles AND
- Parental custody is typically consistent with a child’s best interest
What factors are considered for determining the best interests of a child in regards to custody?
- Wishes of the parents
- Wishes of the child
- Residential/relational continuity AND
- Physical/mental health of all individuals involved
The wishes of the child are considered in terms of custody as part of the best interests conversation, but only _______.
For older children, typically 12+
In regards to custody determination, residential and relational continuity, what is considered?
- Child’s relationship with each parent, siblings & others
- Child’s adjustment to the home, school, & community
What factors will a court NOT consider in its determination of proper custody?
- One parent’s misconduct toward the other
- Religious beliefs
- Primary caregiver status
If sole physical custody is granted, the other parent must typically be given ___________.
Reasonable visitation rights
A parent’s right to reasonable visitation is independent of ____________.
Child support obligations
____________ cannot be withheld because a parent failed to pay child support obligations.
Visitation
Limitations on parental visitation rights may be imposed for ________.
Misconduct
A move sought in good faith that will _____________ will ordinarily be granted.
Serve the child’s best interests
If one parent seeks to move with a child and the other parent objects, there is increasing leniency toward which parent?
Parent with whom the child has primarily living
What decision-making standards will be used to judge parental relocation requests that inhibit visitation with the noncustodial parent?
- Child’s best interest
- Legitimate purpose, and the move is reasonable in light of that purpose
- Harm to the child
- Relocating parent’s vindictive motive
- Reasonable alternative visitation schedule after relocation
If there is a relocation request and the other parent opposes, but it is a joint custody case, standards are more protective of which parent?
Parent who is not relocating
In states that put the burden of proof on a relocating custodial parent to show that a move serves the child’s best interests, the parent must additionally show that the move is:
- For some legitimate purpose AND
- Reasonable in light of that purpose
In states that put the burden of proof on a objecting parent to show that a move does not serve the child’s best interests, the parent must additionally show that:
- Move is harmful to the child OR
- Relocating parent’s motive is vindictive
What is the remedy for violation of visitation orders?
Contempt
If there is a consistent and willful denial of visitation rights, the court may ______.
Modify the custody and visitation arrangement
In awarding joint custody, the most important factor to consider is:
The capacity of the parents to:
1. Communicate AND
2. Reach shared decisions affecting the child’s welfare
What general factors will a court consider in awarding joint custody?
- Fitness of both parents
- Whether parents agree to joint custody
- Parents’ ability to communicate/cooperate concerning child’s wellbeing
- Preference of the child
- Level of involvement of both parents in child’s life
- Geographical proximity of the homes
- Effect on child’s psychological development
- Parents’ ability to carry out the joint custody order
If parents agree to joint custody, the court will generally grant it unless ______.
Joint custody is not in the best interests of the child
If parents do not agree to joint custody, a court may not order such an arrangement unless __________.
It finds that this arrangement is in the child’s best interest
What does UCCJEA stand for?
Uniform Child Custody Jurisdiction & Enforcement Act
The UCCJEA was enacted with what purpose?
- Avoid jurisdictional competition and conflicts with courts of other states in matters of child custody AND
- Facilitate the enforcement of custody decrees of other states
A court has jurisdiction over child custody to make an initial custody determination only if:
- Home State Jurisdiction OR
- Significant Connection Jurisdiction
A state has temporary emergency jurisdiction if:
- Child is present in the state AND
- There is abandonment or abuse
When is there default jurisdiction for child custody issues?
- No other states has jurisdiction (or the state w/ jurisdiction declined to exercise it) AND
- It is in the best interest of the child for the court to assert jurisdiction
A court may decline jurisdiction of a custody case if:
- Inconvenient forum and another state would be better OR
- Person seeking jurisdiction engaged in unjustifiable conduct
Courts can appoint ________ or _________ to protect the child’s interest in a custody dispute.
Counsel
Guardian ad litem
A state that properly issued a custody decree retains exclusive and continuing jurisdiction unless:
- All parties and the child have left the state OR
- No longer any significant connection between child and person remaining in the state AND substantial evidence is no longer available
What are the intrastate tools for enforcement for child custody?
- Contempt proceedings
- Suits in equity
What are the interstate tools for enforcement for child custody?
- Parental Kidnapping Prevention Act
- Uniform Child Custody Jurisdiction & Enforcement Act
When is modification of a custody order permitted?
Throughout the child’s minority BUT
Only when substantial and unforeseen change in circumstances AND
Change will serve child’s best interests
When is modification of a custody order permitted?
Throughout the child’s minority BUT
Only when substantial and unforeseen change in circumstances AND
Change will serve child’s best interests
Most states disfavor modication of a custody arrangement that is sought shortly after ________.
Custody decree is entered
Most states disfavor modication of a custody arrangement that is sought shortly after ________.
Custody decree is entered
When might change in circumstances be sufficiently substantial and unforeseen as as to justify modification of a custody arranagement?
- Parent’s physical relocation significantly impairs other parent’s opportunity to exercise custody/visitation rights
- Custodial parent’s post-decree non-marital cohabitation
- Change will serve child’s best interests
Who has the burden of proof in a case regarding modification of a custody order?
Party seeking modification
What is the PKPA?
Parental Kidnapping Prevention Act
The federal PKPA governs _________.
Interstate modification of a child custody order
The federal PKPA provides that a state may not modify a custody decree issued by another state if:
- Either the child or any party continues to reside in the issuing state AND
- Issuing state’s courts don’t decline to exercise jurisdiction
What is Home State Jurisdiction for the purposes of determining initial child-custody jurisdiction?
Home state of the child:
1. W/in six months before commencement of proceeding OR
2. On date of commencement of proceeding
What is Significant Connection Jurisdiction for the purposes of determining initial child-custody jurisdiction?
- The child AND
- At least one contestant
…have a significant connection with the state
Under the UCCJEA, a state that ___________ retains continuing, exclusive jurisdiction.
Properly issued a custody decree
In a custody case between two parents, the standard is _________.
Best interest of the child
Who is presumptively entitled to custody against a nonparent?
A child’s fit legal parent
In most jurisdictions, to rebut the presumption favoring custody in the legal parent, a third party must show. that _________.
Awarding custody to the legal parent will be detrimental to the child
Before a fit parent’s visitation decision becomes subject to judicial review, the court must accord at least some special weight to __________.
The parent’s own determination
In some states, statutes authorize courts to order visitation for a nonparent who has a substantial relationship with a child if __________.
Visitation is in the child’s best interest
Statutes that permit any person to visitation of a child without ____________, even if they consider the child’s best interests, are unconstitutional
Giving any deference at all to the parent’s decision
States do NOT have to give deference to fit parents’ visitation decisions if the nonparent:
- Lived with the child AND
- De facto parent
A child has one legal ____ and one legal ____.
Mother
Father
Being a ______ parent is not sufficient for increased visitation rights.
Biological
What effect does adoption have on visitation rights under the majority view?
Court may not order visitation for a biological parent
What effect does adoption have on visitation rights under the minority view?
Visitation rights allowed for nonparent with substantial relationship with a child when visitation is in the child’s best interests
What are the three main approaches to the distribution of property upon divorce or dissolution?
- Equitable division of marital property
- Equitable division of all property
- Community property
What is equitable division of marital property?
In a majority of states, “marital” property is divided between spouses, but “separate property” remains the property of the owning spouse
Jurisdictions that use equitable division of all property upon marital divorce or dissolution are also known as ______ jurisdictions.
Hotchpot
What happens in jurisdictions that use equitable division of all property upon divorce or marital dissolution?
Court may divide all assets no matter how they were acquired
How is property divided in community property?
All property other than separate property acquired during marriage is:
1. Community property AND
2. Split 50/50 upon divorce/dissolution
In most states, _______ property remains the property of the owning spouse
Separate
What is separate property?
- Owned prior to marriage
- Brought into the marriage via gift, will, or inheritance
- Rents, issues, and profits of other separate property
The fact that a separate asset appreciates in value during the marriage doesn’t transform it into marital property unless _______.
Other spouse made significant efforts during the marriage to enhance its value/build equity
An asset that is initially separate property may be transformed into marital property via:
- Mixing SP with marital property to the extent that SP is no longer traceable
- Titling SP in the name of both spouses OR
- Marital funds enhance value or build equity
In all states, marital property is divided upon divorce without regard to _________-.
How that property is legally titled
Jurisdiction over the division of marital property upon divorce is ______ jurisdiction.
In personam
How is marital property defined?
All other property other than separate property acquired during marriage
All property acquired with funds that are ______________ is considered marital property.
Earned by a spouse during marriage
The product of a spouse’s ____ and ____ during marriage is ordinarily considered marital property.
Efforts
Skills
An increase in the value of a premarital asset resulting from _________ is divisible.
Significant spousal effort during marriage
In the majority of states, marital property continues to accrue until __________.
A final divorce decree is entered
In a minority of states, marital property continues to accrue until:
- After the date of permanent separation OR
- Date of divorce filing
What factors are relevant to the court deciding the disposition of marital property?
- Party circumstances
- Marriage duration
- Age/health of parties
- Income/earning capacity of parties
- Value of SP
- Origin of property
- Custody/child support
- Homemaker’s services
- Alimony/maintenance obligations
- Tax consequences
- Dissipation of marital assets
- Market value and emotional value of marital assets
- Conduct of each spouse during the marriage
- Liens, encumbrances, & debts
- Any other relevant factor
The circumstances of the parties, as considered for the division of property, includes the parties’ standard of _________.
Living
A marriage that lasts ___________ is a clear short-term marriage.
Five years or less
At the end of a clear short-term marriage, what will the courts attempt to do?
Return the parties to their positions upon entering the marriage
After the end of a short-term marriage, a court may forego _________.
Consideration of statutorily enumerated factors
If a marriage lasts between ____ and ____ years, the court may determine whether the marriage is clearly long or short term.
Five
Thirty
A marriage that lasts _____ years or more is clearly a long-term marriage.
30
Where a marriage is a clear long-term marriage, marital property should be divided in such a manner as to __________.
Put the parting spouses in the same economic position they would enjoy had there been no dissolution
What are homemaker’s services?
Domestic contributions by each party to the marriage
Some equitable distribution states have a presumption that a homemaker’s contribution is equal to _______.
A breadwinner’s
What is dissipation?
Use of marital property for the sole benefit of one of the spouses for a purpose unrelated to marriage at a time that the marriage is undergoing an irreconcilable breakdown
In virtually all states, _______ fault is relevant to property distribution.
Economic
How many states allow marital misconduct to affect property division or alimony?
Only about half
Of the states that permit consideration of marital misconduct, about half restrict its use to _____________.
Alimony determination
Are pensions considered marital property?
Only the portion earned during marriage
Are professional degrees/licenses considered marital property?
No
Are stock options considered marital property?
Yes, if they are earned during marriage
Are personal injury awards from torts considered marital property?
Yes, if cause of action accrues
1. Between marriage AND
2. Before final separation
Alimony is also known as _______.
Maintenance
Who has jurisdiction over alimony cases?
State with minimum contracts with the party
The state where a divorce is granted will only have jurisdiction over the alimony case if ____________.
The state also has personal jurisdiction over the D spouse in an alimony suit
Under the Uniform Divorce & Marriage act (and traditional law), a court may grant alimony for either spouse only if it finds that the spouse seeking alimony:
- Lacks sufficient property to provide for her reasonable needs AND
- Unable to support herself through appropriate employment
What are the modern factors used to determine the amount of alimony that may be granted?
- Duration of the marriage
- Standard of living during marriage
- Age of the parties
- Physical & mental condition the parties
- Contribution of each party to the marriage
- Employability
- Ability to meet own needs
In many states, spouses are considered ot be in need of alimony if their income is insufficient to maintain a _____ standard of living, rather than a ______ standard of living.
Marital
Modest
The calculation that determines whether someone receives alimony may - depending on the state - also include any ____ or _____ sacrifices made by one spouse on behalf of the other to support children or the other spouse’s career.
Career
Financial
In evaluating a spouse’s contributions to a marriage, a court may consider negative as well as positive actions. Negative actions might include:
Spouse’s:
1. Failure to make economic/noneconomic contributions AND
2. Misuse/dissipation of marital funds
What factors should not be included in determining the appropriate amount of alimony to grant?
- Marital fault
- Gender
What are the four types of alimony?
- Permanent periodic spousal support
- Lump sum
- Rehabilitative spousal support
- Reimbursement spousal support
What is permanent periodic spousal support?
Paid regularly for lifetime of the recipient
Permanent alimony is seldom awarded except in the case of:
- Long-term marriage AND
- Significant, long-term gap between the husband’s and wife’s economic prospects
When is permanent alimony modifiable?
When there is a:
1. Substantial AND
2. Actual
…change in circumstances
When will permanent alimony be terminated?
- Death of either spouse
- Remarriage of recipient spouse
Can there be alimony from annulment?
No
Traditionally, what effect would annulment of a later marriage have on permanent alimony?
None; there was technically no marriage, so there was nothing to break off alimony
Traditionally, what effect would annulment of a later marriage have on permanent alimony?
Alimony entitled terminated by a subsequently annulled marriage remain terminated
In addition to typical grounds for terminating alimony, some states also allow termination for ___________ with the opposite sex.
Cohabitation
How is lump sum alimony payable?
- All at once OR
- In periodic payments
Can lump sum alimony by modified?
No
How is lump sum alimony affected by the death of either spouse?
Survives
How is rehabilitative spousal support paid?
Regularly for a limited period of time
What is rehabilitative spousal support?
Temporary support:
1. At a sufficient level AND
2. For sufficient time
…to enable the spouse to
1. Update her education (or credentials) AND
2. Reestablish her career
When is rehabilitative spousal support modifiable?
If there is a substantial change in circumstances
When does rehabilitative spousal support terminate?
- Spouse reaches intended level
- Death of either spouse OR
- Remarriage of recipient spouse
What is reimbursement spousal support?
Payments to a spouse who supported the other while the other obtained a professional license or degree
How is reimbursement spousal support payable?
- All at once OR
- In periodic payments
Is reimbursement spousal support modifiable?
No
What effect does the death of a spouse have on reimbursement spousal support?
The award survives
If the divorce/separation agreement was executed or modified on/after ___________ the receiving spouse does not have to pay taxes on alimony checks.
January 1, 2019
Divorce/separation agreements executed before 2019 make alimony subject to tax.
How was it taxed?
Alimony payments included in gross income
______ or ______ parents have a duty to support their children.
Biological
Adjudicated
A third party may be estopped from disclaiming parental responsibilities when:
- Nonparent consent to act as a parent AND
- The child’s interests would be harmed by terminating parental relationship
What factors are considered when determining the amount of child support to award?
- Parents’ capacity to pay
- The parents’ income
- The needs of the children
How does high income affect child custody?
Court consider the level of luxury that was characteristic of the marriage/family life prior to divorce
A court has personal jurisdiction over nonresident spouses for child custody determinations if the parent:
- Engaged in sexual intercourse in state AND
- Child may have been conceived by that act of intercourse
The duty of a parent to pay child support is independent of a parent’s ______ rights.
Visitation
State laws that base the existence of child support obligations on the parents’ _______ status violate the Equal Protection Clause.
Marital
How is the duty to provide child support terminated?
- Emancipation of the child
- Termination of parental rights
- Employable children who disobey reasonable parental commands OR
- Death of the supporting parent
When will emancipation NOT terminate the duty to provide child support?
In some states, divorced parent may be required to provide for the education of a child over the age of majority
How does taxation affect child support payments?
- Not included as income of custodial spouse AND
- Not deductible by the payor parent
Alimony can only be modified if there is substantial change in circumstances that significantly reduces:
- Needs of recipient spouses OR
- Ability of payor spouse to pay
Child support can only be modified if there is a substantial change in circumstances that significantly reduces:
- Needs of the child OR
- Ability of parent to pay
Courts will generally find that a significant income reduction represents a substantial change warranting a change for child support only if the reduction was ___________.
Involuntarily
A significant voluntary income reduction will only lead to court alteration of child custody if:
- Reduction was made in good faith AND
- Not for the purpose of
a. Depriving the child OR
b. Punishing the custodial parent
A change in income can be grounds for modifying child support even if the change is ___________.
Temporary
Even if a voluntary income reduction was made in good faith and not for the purpose of depriving the child or punishing the custodial parent, some courts may not approve downward modification in child support amounts if __________
the reduction would constitute a “significant hardship” to the children
Even poor obligors who ___________ are typically required to make token child support payments.
Whose income fails below a value that the state deems essential for self-support
The issuing state may not retroactively modify child support because _____________.
Federal law forbids retroactive modification in all circumstances
The obligation to pay ___ and ____ installments of child support may not ordinarily be modified.
Accrued
Unpaid
Evidence of nonpaternity will not typically modify child support, even if it was part of the divorce settlement, because ___________
In addressing an issue covered in divorce, a motion for modifying child support would be a direct attack on a divorce judgment
At modern law, courts are beginning to show sympathy to erroneously identified fathers because of ____________.
The manifest injustice of requiring someone to support a child who is scientifically proven not to be theirs
What intrastate tools are used to enforce awards of child support?
- Contempt
- Judgment against noncomplying party
- Seizure of assets & garnishment of wages
- Order for payment of attorney’s fees
Willful failure to pay child support will result in _________.
Criminal contempt
Interstate enforcement/modification of both alimony and child support is governed by __________.
Uniform Interstate Family Support Act
What does UIFSA stand for?
Uniform interstate family support act
What interstate tools are used to enforce awards of child support?
- Registration of support order with other state
- Mailed to enforcement agency in obligor’s state or obligor’s out-of-state employer
A non-issuing court of a child support order unless:
- Parties no longer reside in issuing jurisdiction OR
- Parties consent in record to non-issuing court’s assertion of jurisdiction to modify
When may a prospective gestational mother, her husband, or either of the intended parties terminate a gestational agreement?
- After agreement is validated AND
- Before prospective gestational mother becomes pregnant
A non-issuing state may not retroactively modify the child support order because _____________.
Federal law forbids retroactive modification in all circumstances
