Family Law Flashcards
1
Q
Bigamy
A
if person marries more than one person at a time, only first is valid.
BUT equity doctrine provides a strong presumption that most recent marriage was valid.
2
Q
Bigamy Defenses
A
- mistaken belief that first spouse was dead or
- good faith belief the previous marriage was dissolved
3
Q
Bigamy: Uniform Marriage and Divorce Act
A
parties to prohibited marriage who cohabit after removal of impediment are lawfully married as of date of removal of impediment
4
Q
Ceremonial Marriage - Procedural Requirements
A
- license
- solemnization
5
Q
Ceremonial Marriage: License
A
persons intending to marry must obtain a marriage license from a county / parish official.
Most states require they swear oath and state no impediments
many states have waiting period between issuance of license and marriage but judge can excuse for good cause
a few jurisdictions require the parties to get blood tests and have a physician attest they are free of communicable diseases
6
Q
Ceremonial Marriage: Solemnization
A
persons who performed ceremony must sign marriage license and return to clerk’s office. But failure to do this does not invalidate unless parties did not comply because they did not want to marry.
some states allow marriage by proxy (need to authorize in writing)
in some states, good-faith effort to comply with procedural requirements will be considered complete performance
minority of states require strict compliance with statutory formalities
7
Q
Ceremonial Marriage: State of Mind Requirements
A
both parties must have:
- mental capacity to enter marriage and
- voluntarily intend to enter marriage freely without fraud, duress, or coercion
court will determine it’s a sham if:
- entered into for limited purpose or
- parties had no intent to participate in the status and obligation of the marriage
if coerced or defrauded person is “fixed” but continues to live as married person, marriage is ratified and valid
8
Q
Common Law Marriage
A
created when a couple:
- agrees to be presently married
- has the legal and mental capacity to enter into the marriage
- holds themselves out in public as married
- lives together
Abolished in most states but all states recognize C.L. marriage that was valid in another state if parties had sufficient contact with tha tstate
9
Q
Putative Marriage
A
person who enters marriage in good faith believing marriage will be valid but it is invalid, can take on rights of legal spouse for some purposes, such as alimony and property but cannot take away the rights of the preexisting legal spouse
in many states, putative marriage becomes valid marriage if encumbrance preventing marriage is removed
10
Q
Premarital Contracts
A
if marriage void, premarital contract enforced only where necessary to prevent inequitable result.
if valid marriage, need six requirements to be enforceable:
- written and signed by party to be charged
- both parties have legal capacity to enter into contract
- signed free of fraud, duress, and misrepresentation
- agreement must accurately disclose income, assets, and liabilities of each party to allow both parties to understand what they are getting and giving up [can be waived by party who is owed disclosure]
- cannot be procedurally or substantive unfair at the time it was entered [but modern trend is to enforce if full disclosure]
- no violation of public policy
11
Q
Factors for Determining Voluntariness of Premarital Agreement
A
- whether one party did not have independent lawyer
- whether one party had little time to review and sign premarital agreement
- whether there was a disparity in the bargaining power of the parties
- whether there was a disparity in the financial or legal sophistication of the parties
12
Q
Premarital Agreement: Violation of Public Policy
A
four common provisions violate public policy (and only those sections would be invalidated):
- child support and custody provisions (always reviewable; consider under BIOC)
- spousal support provisions (modify or eliminate support of one spouse to degree that party would be dependent on state)
- provisions that will divorce upon occurrence of some event or that penalize for initiating divorce
- provisions that limit remedy available to victim of domestic violence
13
Q
Premarital Agreement: Choice of law
A
when agreement silent about jurisdiction, states apply law of state where
- agreement was made OR
- with most significant relationship to the parties
14
Q
Premarital Agreement: Statute of Limitations
A
tolled until marriage ends
15
Q
Contract Between Unmarried Cohabitants
A
traditionally not upheld.
under modern trend, cohabitants can acquire property and support rights by:
- entering into contracts with each other as long as consideration is something other than sex
- establishing the basis for equitable rights or
- registering as domestic partners
16
Q
Property Rights: Common Law
A
majority rule.
spouses manage their own property during marriage. each owns pre-marital property earned during marriage, gifted property, and inherited property. Must take affirmative steps to own jointly.
17
Q
Property Rights: Community Property
A
minority rule.
spouses manage their own separate property but owns half of community property (property acquired during marriage that is not gift or inheritance)
18
Q
Financial support
A
duty to financially support each other. Courts will balance ability of one party to support the other and the needs of the dependent spouse.
19
Q
Desertion
A
some states have laws that forbid desertion and nonsupport and allow spouse to sue for financial support without initiating divorce
20
Q
Necessaries
A
creditors can recover money from spouse when creditor provided necessities to other spouse.
Some states impose duty to pay for necessities on more affluent spouse, some on both spouses equally, and some have abolished doctrine
21
Q
Rights and Responsibilities of Cohabitants
A
no special rights automatically attach to two people who live together.
Wrongful-death/loss-of-consortium almost uniformly unavailable
22
Q
Doctrine of Nonintervention
A
courts tend not to interfere with matters inside of marriage because expectation of privacy.
State intervention will only be at beginning and end
23
Q
Parental Rights
A
fit parents presumed to make decisions in their child’s best interest.
Rights:
- to choose nonpublic school education (but must meet certain standards)
- to care, custody, and control, including right to make decisions about how to raise and 3P visitation
24
Q
Terminating Parental Rights
A
court must find that:
- child is in danger of serious physical or emotional harm and
- there is nothing less drastic than termination of parental rights available to protect the child
25
Ending a Marriage: Methods
- legal separation
- annulment
- divorce
- death
26
Legal Separation
does not end marriage or change status of parties but allows parties to stop living together
27
Annulment
once annulled, treated as though never existed legally.
28
Annulment: Void v. Voidable Marriages
void marriages invalid without court intervention
voidable requires annulment proceeding (can only be filed by spouses).
Cannot be annulled if:
- spouse challenging marriage ratifies it
- one spouse dies
- equitable defense applies
29
Annulment: Reinstatement
void marriage cannot be reinstated unless state has adopted:
- uniform marriage and divorce act: states marriage can become valid if spouses continue to live together after removal of impediment
- enoch arden doctrine: can remarry if (1) spouse absent without explanation for number of years or (2) good-faith belief that spouse dead
30
Annulment: Property Rights
common law: return parties to position they would be in had they not married
community property: putative spouse doctrine to divide spouses' property as it would be divided upon divorce
31
Annulment: Spousal Support
some states allow permanent spousal support to be awarded while others will only allow temporary during pendency of annulment proceeding.
Most jurisdictions will not reinstate alimony awards from previous marriage when second annulled.
32
Annulment: Children
most states classify as marital children and child support / custody handled same as in divorce proceedings
33
No-Fault Divorce
all states allow no-fault divorce based on irreconcilable differences or incompatibility. One spouse's disagreement cannot prevent divorce.
Some states require period of separation before divorce (can waive or shorten if spouses consent)
34
Fault-Based Divorce: Common Grounds
- abandonment
- adultery
- cruelty and indignity
- impotence
- incarceration
- alcohol or drug abuse
- insanity
35
Abandonment
- one spouse has left the marital home
- without justification or consent
- with the intent to never return
- time requirement met (usually 1-5 years)
36
Abandonment: Without Justification
some states require the other spouse to commit acts that are grounds for divorce.
others allow behavior that made living together impossible
37
Constructive Abandonment
does not need to physically leave if other spouse:
- makes continuing to live together detrimental to health / safety
- partakes in conduct that is demeaning / intolerable
38
Adultery
alleged guilty spouse had:
- opportunity and
- inclination to commit adultery
39
Cruelty and Indignity
usually need pattern of physical abuse but one can do it if bad enough.
some states include serious emotional abuse. Some require emotional abuse to cause health problems.
some states have separate ground for mental and emotional abuse - indignity
40
Impotence
most states require impotence to be permanent
41
Incarceration
for a period (1-3 years or more)
some states limit to conviction of felony or particularly heinous crimes
42
Alcohol or Drug Abuse
- start or continue after the parties are married
- be more than occasional use
- endure for time defined by the state statute
- have occurred close in time to the divorce filing
some states allow acceptance of risk to negate this ground
43
Insanity
- institutionalization for mental illness
- no reasonable chance of recovery
44
Defenses to Fault-Based Divorce
- collusion
- connivance
- condonation
- recrimination
45
Collusion
agreement between spouses to deceive the court by falsely claiming that one party was at fault or by agreeing not to use an available defense
46
Connivance
one spouse facilitates the wrong of the other or willfully ignores the wrongdoing
47
Condonation
forgiveness of the guilty spouse by the innocent spouse by words or actions
48
Recrimination
both spouses guilty of the same wrong
49
Divorce: SMJ
usually present if court has PJ over either of the parties to the marriage
50
Divorce: Personal Jurisdiction
exists if one party to the divorce action lives in the court's area of jurisdiction.
some states require party filing for divorce to live in state for period of time before filing
51
Divorce: Personal Jurisdiction Over Only One Party
ex parte divorce.
court must:
- grant divorce in an in rem proceeding (affects legal status of spouses)
- divide marital property in the state if defendant has minimum contacts
- cannot decide other matters, like out-of-state property division or child/spousal support
52
Jurisdiction: Annulments
many states have specific courts for annulments.
can be brought in any place where either party resides or sometimes where marriage took place
53
Jurisdiction: Foreign Decrees
states must recognize divorce decrees from other states if at least one spouse was domiciled in that state at the time of divorce.
for all other matters, full-faith-and-credit clause only applies if granting state had PJ over defendant
54
doctrine of comity
no requirement to honor divorces outside US but states usually honor if do not violate public policy
55
interlocutory decrees
some states issue preliminary divorce decrees that become final after a set period of time.
during this time, spouses legally married and other spousal rights still in effect
56
Division of Property: Common Law Majority Approach.
marital property divided equitably; separate property to owner.
57
Equitable Division Factors
- disparity of income and value of property owned by each spouse
- duration of the marriage and whether one spouse is economically dependent
- age and health of each spouse and whether both spouses are self-supporting
- who has custodianship of minor children and should remain in marital home
- whether loss of inheritance rights, pensions rights, and health insurance benefits will cause one spouse to be in precarious financial position
- awards of support or maintenance
- monetary and nonmonetary contributions to separate property, earning capacity, or increases in marital property
- liquidity of marital property
- tax consequences
- whether one spouse committed waste of marital property
- whether division of property would avoid economic waste
58
Division of Property: Common Law Minority Approach
all property owned by spouses (marital and separate) divided equitably
59
Division of Property: Community Property Approach
marital property (community property) divided equally; separate property awarded to owner
60
Division of Property: Modification
property division orders cannot be modified after the divorce
61
Division of Property: Unmarried Cohabitants
absent a contract, most states allow for division under equitable principles.
longer the relationship, the more likely the courts are to divide the property under equitable principles
62
Marital / Community Property
anything acquired during marriage that is not separate property (i.e., acquired after marriage but before divorce action or permanent separation)
63
Separate Property
- property acquired before marriage
- inherited property
- property acquired by gift unless gift is between spouses and there are no facts to show the gift was intended to be separate property
64
Division of Property: Commingling
if property mixed and impossible to trace, treated as community property
65
Division of Property: Transmutation
one spouse can unilaterally change separate property to community property but both spouses need to consent to change community to separate
66
Division of Property: Personal Injury Awards
pain and suffering for compensation for direct harm: separate property
lost earnings, reimbursements for medical expenses: marital / community property
loss of consortium: property of non-injured spouse
67
Division of Property: Education, Degrees, Earning Capacity
professional degrees and licenses are not divisible.
some states allow a spouse that contributed to earning power to recover contribution.
68
Division of Property: Improvements to Property
entitled to reimbursement for any community funds used to pay for improvements to separate property
those funds will be divided as community property
69
Division of Property: Property Purchased on Credit
inception of title rule: if a spouse purchased property on credit pre-marriage and debt remains separate after marriage, community estate entitled to reimbursement for funds used to pay debt
source of funds rule: value of property divided proportionately as separate or community based on invested funds
70
Division of Property: Increases in Values and Rents and Profits
increases in value of, and rents and profits from, marital / community property = marital / community property.
for separate property, different approaches: some nonmaterial, some require contribution to render the increase in value a marital asset.
71
Division of Property: Pensions
if earned during marriage, marital / community.
where start to accrue before marriage, most states will calculate marital portion by multiplying the pension benefit by a fraction: time earned during marriage / total time earned
social security benefits are not pensions and not subject to distribution (belong to earning spouse)
72
Division of Property: Professional Goodwill
states differ on whether separate or community
73
Division of Property: Stock Options
community property, even when cannot be exercised until after divorce
74
Separation / Divorce Agreements: Enforcement
merge into final judgment for divorce if:
- entered into voluntarily, without fraud or duress
- legal capacity to contract
- contract formalities met
- terms fair and reasonable and do not violate public policy
- adequate disclosure of income, assets, and liabilities
75
Separation / Divorce Agreements: Terms
parties can agree that a spouse will do more than is required by law.
But courts can set aside / modify that:
- are not in BIOC or
- would impoverish one spouse to degree that spouse would become dependent on state for support
76
Separation / Divorce Agreements: Unmarried Cohabitants
traditionally, not upheld.
today, most states allow.
- when live together for a long time and contribute financially to property titled jointly, court likely to find that parties intended to share property equally. If not titled jointly, can claim equitable interest based on financial contributions
- when unmarried cohabitant has provided valuable services and no express contract, court may allow for those services or older palimony
77
Spousal Support: Types
- temporary: during divorce proceeding; promote fairness
- permanent: awarded for life where marriage was long and contributed greatly to family's care and has poor economic prospects
- rehabilitative: specific time period to allow for development of skills/education necessary to enhance earning ability
- limited duration: specific time; marriage short and great discrepancy between parties' earning capacity
- lump sum: fixed amount; cannot be modified absent fraud
- reimbursive: repay spouse who supported other spouse during pursuit of a professional degree; can be series of payments or lump sum
78
Spousal Support: Factors
- financial resources and ability to meet their needs independently
- time needed to reach self-sufficiency
- standard of living establishing during marriage
- duration of marriage
- age, physical, and emotional condition of spouse seeking support
- whether higher-earning spouse can pay support and meet that spouse's own needs
- fault that is particularly egregious
- how obligations to provide childcare and to pay child support will affect each party's ability to work and to provide for that party's own needs
- each party's contributions to marriage
79
Palimony
available to unmarried cohabitants only in a few states when cohabitants have lived together for a long time
80
Spousal Support: Enforcement
can be enforced through civil and criminal contempt proceedings.
cannot be discharged in bankruptcy proceedings
81
Spousal Support: Modification
lump-sum support awards are not modifiable.
Can modify / terminate period payments when / if:
- receiving spouse remarries
- receiving spouse cohabits with 3P (most states do not automatically terminate)
- when obligor or receiving spouse dies
- if changed circumstances that were (a) unanticipated when spousal support awarded and (b) create a material change in obligor's ability to pay or receiving party's needs
82
Child Support Obligations
both parents expected to provide, regardless of marital status
cannot be waived
83
Establishing paternity
- rebuttable marital presumption
- voluntary acknowledgment of paternity under oath / in writing
- father's consent to his name on the birth certificate
- parents' marriage after child's birth (with father's acknowledgment in some states)
84
Establishing Paternity: Estoppel
in some states, person may be estopped from offering evidence to rebut presumption if there was detrimental reliance by mother
85
Filiation or Paternity Proceeding
evidence that can be used to determine paternity includes:
- genetic/blood testing
- statements by or to family members about paternity
- medical testimony about when conception likely occurred
- voluntary acknowledgment of paternity
- medical documentation that man is sterile
- resemblance of child to father
86
Paternity Disestablishment
courts reluctant to disestablish paternity of a person erroneously identified as father when there's an established relationship with the child.
some courts allow disestablishment when unmarried person has not held himself out as child's father or paid child support or when married person had limited contact with child.
a few states allow disestablishment by statute when genetic testing reveals no probability of paternity
87
Rebutting Marital Presumption: Child's Best Interest
some states will not allow rebuttable presumption if not in child's best interest:
- age of child
- how long presumed parents has performed role of parent
- relationship between child and presumed parent
- harm to child that would occur if presumption rebutted
88
Paternity: Unmarried Biological Father
entitled to protection of parent-child relationship if:
- grasps opportunity to develop relationship with child
- assumes obligations of parenthood
- not unfit (no evidence of abuse or neglect)
If mother's spouse has been acting as parent, state may protect the stepfather over claim of bio father.
89
Unmarried Bio Father: Adoption
traditionally, unmarried fathers could not prevent children from being adopted.
today, some states give a man full parental rights while others require that the man demonstrate a substantial commitment to child
90
Calculating Child Support
states have specific formulas / guidelines. if vary from guidelines, judge must set forth reasons for variance
common factors:
- number of children
- parents' income and assets
- children's age
- any special needs of children
- medial expenses
- health-insurance needs
- standard of living
- other support obligations
- best interest of child
91
Calculating Child Support: Types of Models
- income shares model (majority)
- percentage of income model (minority)
- Melson formula (small minority)
92
Income Shares Model
child should receive the same proportion of parental income that child would receive if parents lived together
93
Percentage of Income Model
sets support as a percentage of the noncustodial parent's income and does not consider the custodial parent's income
94
Melson Formula
income shares model but also considers minimum amount each parent must retain to meet their own basic needs
95
Child Support: Modification
can be modified upon party's showing of a material change in circumstances.
Modification is not retroactive.
96
Child Support: Modification - Loss of Income
involuntary loss = changed circumstance.
In some states, voluntary loss is not a basis but most assess whether loss was made in good faith and whether decreasing child support would cause child significant hardship. Courts will consider:
- likely duration of voluntary loss
- likelihood that voluntary loss would inure to child's benefit
- overall reasonableness of voluntary loss
97
Child Support: Modification - Remarriage
some states treat new dependents as reason to modify while others will not reduce
98
Child Support: Methods of Enforcement
- withhold wages
- intercept income tax refunds (if $500 behind)
- lien on property
- deny or refuse to renew licenses
- civil contempt
- criminal contempt / criminal action (greater than 5k or more than a year late)
- deny or revoke passports (more than 5k)
- pay attorney's fees
- disallow discharge in bankruptcy action
- report to credit bureaus
99
Child Support: Termination
- child or parent with obligation dies
- child reaches age of majority and (a) no longer in high school and (2) not disabled (disability must make it impossible for adult child to be self-supporting)
- child emancipated
100
Uniform Interstate Family Support Act (UIFSA)
all states must enforce orders under full faith and credit clause if:
- OG court had proper jdxn over issues and parties
- parties were given reasonable notice and opportunity to be heard
101
UIFSA - Modification by Issuing State
retains continuing, exclusive jurisdiction as long as:
- party or child resides in state OR
- if neither party nor child resides there, parties consent
102
UIFSA: Modification by Other States
other states may modify if issuing state loses jurisdiction or parties consent
103
UIFSA: Governing Law
if another state modifies, state must follow law of issuing state. BUT if one jurisdiction has longer SoL, that law governs. If two different states have issued child support decisions, decision of child's home state governs
104
UIFSA: Personal Jurisdiction
grants PJ over parents who don't reside in state for child support / determining parentage. 8 methods of PJ:
- serving parent with summons in state where court located
- parent consents
- parent resided with child at one time in state where court is located
- parent resided in state where court is located in the past and paid support or prenatal expenses while living there
- parent directed or caused the child to live in state where court located
- conception of child may have occurred in the state where court located
- parent registered parentage in registry in state where court located
- another constitutional basis
105
Determination of Custody: BIOC
- primary caretaker
- older child's wishes
- child's interactions and relationships with parents, siblings, and others
- mental and physical health of all parties, including history / threat of physical violence
- child mistreatment and domestic violence
- child's adjustment to home, school, and community
- parent's willingness to foster the child's relationship with the other parent
- parents' wishes
Will not usually consider race, gender, ethnicity, relative financial resources.
106
Joint Custody Factors
- child's preferences
- parents' fitness
- whether parents can cooperate and communicate
- how involved the parents have been in the child's life
- how close the parents' home are to each other
- similarity of the two homes
- effect of joint custody on child's psychological development
107
Visitation - Parents
if parent not granted physical custody, allowed to visit unless would seriously endanger the child.
108
Third-Party Custody
3P seeking custody or visitation over parent's objection must overcome presumption by clear and convincing evidence that parent is fit to look after child and is in BIOC to remain with parent.
109
De Facto Parent
3P can be named a de facto parent if:
- biological / legal parent had little contact with a child and
- 3P has had a substantial relationship with a child to the extent of providing the child with daily parental concern, affection, and care over a substantial period.
3P typically limited to de facto parents and only if in BIOC
110
Custody Modification
can be modified if:
- substantial change in circumstances since time of initial custody order
- change in custody would be in BIOC
some states grant modification only if child's physical, mental, emotional, or moral health endangered
111
Custody Modification: Relocation
courts balance impact on visitation rights and parent-child relationship of parent who is not relocating against reasons for relocation and benefits.
Factors:
- child's age
- child's preference
- effect of relocation on child's development
- whether parent moving is acting in good faith
- whether move will enhance lives of child and parent seeking relocation
112
Custody Termination
custody order terminates when child reaches age of majority.
if custodial parent dies, custody goes to living parent with need for court order if living parent is fit
113
Custody Enforcement: Single-State
can enforce through:
- civil contempt
- tort damages
- if physical custody, state habeas corpus to get child back
114
Custody Enforcement: Multi-State
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides four jurisdictional bases to determine if SMJ over custody matter. Priority:
- home-state jurisdiction
- significant-connection jurisdiction
- default jurisdiction
- temporary emergency jurisdiction
115
Uniform Child Custody Jurisdiction and Enforcement Act: Home-State Jurisdiction
home state is either:
- state where child lived with parent or person acting as parent for at least 6 consecutive months (or birth)
- state that was child's home state within 6 months pre-filing and one parent continues to live there
116
Uniform Child Custody Jurisdiction and Enforcement Act: Significant-Connection Jurisdiction
if no home state, court can exercise jurisdiction if:
- child and at least one parent or person acting as parent must have a significant connection with the state other than mere physical presence AND
- substantial evidence must be available in state concerning child's care, protection, training, and personal relationships
Factors:
- length of time child lived in state
- nature and location of relevant evidence
117
Uniform Child Custody Jurisdiction and Enforcement Act: Default Jurisdiction
if no state fits home-state or significant-connection tests, state in which proceeding is filed becomes state with jurisdiction
118
Uniform Child Custody Jurisdiction and Enforcement Act: Temporary Emergency Jurisdiction
can be exercised when child abandoned or when urgent protection needed because child, sibling, or parent subjected to or threatened with mistreatment or abuse
119
Custody Enforcement Jurisdiction: Inconvenient Forum
even if court has jurisdiction, court might decide to decline if the forum is inconvenient. Factors:
- which state could best protect the parties and the child if domestic violence has occurred and is likely to continue
- length of time resided outside the state
- distance between state declining jurisdiction and state assuming jurisdiction
- parties' financial circumstances
- agreement of parties concerning which state should assume jurisdiction
- nature and location of evidence, including child's testimony
- ability of the court in each state to decide the issues quickly and the procedures necessary to present the evidence
- familiarity of each state's court with the facts and issues in the pending litigation
120
Custody Enforcement Jurisdiction: Unclean Hands
court can decline jurisdiction if the party engaged in unjustifiable misconduct that resulted in court's jurisdiction over the case
121
Parental Kidnapping Prevention Act
deters interstate abductions by parents
122
International Parental Kidnapping Crime Act
crime for parent to remove or attempt to remove child from US or retain child outside US with intent to obstruct other parent's custodial rights
123
Uniform Deployed Parents Custody and Visitation Act
in custody proceeding involving a military service member's child, parent's past or future development may be considered but it may not serve as the sole basis for determining custody
124
Intrafamily Immunity
prohibits one family member from suing another.
traditionally, applied to immediate family members.
most states have reduced today:
- child can sue parents for intentional torts / negligence other than negligent discipline, supervision, care
- family members can sue each other for damage to property
- interspousal immunity abolished
- relief for domestic violence by family member
- parents can sue each other for tortious interference of visitation or custodial rights
125
Adoption: Types
- adoption agency
- independent adoption between biological and adoptive parents
- private adoption facilitated by attorney / doctor
126
Adoption: Standard
must be in BIOC.
have to terminate bio parent's rights before adoption.
in some states, a child of certain age must consent
127
Adoption: Voluntary Termination of Bio Parent's Rights
both bio parents must consent to adoption (personal appearance, written document, agency). some states allow consent before child born and other requires a minimum time after birth to have passed.
can revoke consent for set period of time. in some states, revocable until formally adopted
some states additionally require that the parent be informed about meaning and consequences of adoption, right to have independent legal advice, availability of counseling, and procedures for release of identifying information
128
Adoption: Fraud or Duress
can set aside adoption if:
- parental consent was procured by fraud or duress
- procedural requirements were not followed
- estoppel or laches apply
129
Adoption: Unmarried Fathers
if unaware of child at time of adoption or did not register in putative father registry, cannot object later but have right to develop relationship.
notice of adoption must be given if
- parental rights protected under constitution
- registered as putative father
consent not required of unmarried father who has not asserted legal relationship or attempted to connect with child
130
Adoption: Payment of Expenses
most states allow for payment of birth mother's medical expenses but prohibit any other payments between adoptive and bio parents
131
Adoption: Involuntary Termination
can allow adoption without consent if court finds:
- child neglected, abused, or abandoned or
- consent is being unreasonably withheld and is not in BIOC
some states require courts to appoint counsel for indigent parent facing involuntary adoption petition
132
Adoption: Placement
most states require investigation of adoptive parents' suitability before approval (can be waived if close relative)
minority of states find that placement with relative is in BIOC absent showing of good cause and give preference to adoptive parents who are infertile
Multiethnic Placement Act prohibits discrimination on basis of race, national original, or ethnicity unless
- international adoption or
- adoption for Native American children
133
Indian Child Welfare Act
preference hierarchy for placement of Native American child:
- relative of child
- members of the same tribe
- other Native American families
can only be placed with non-Native American family where no possible placement exists with Native American family
134
Adoption: Disclosure of Information
if adoptive parents discover agency willfully withheld info relevant to decision to adopt, may sue for tort of wrongful adoption or for dissolution of adoption
135
Adoption: Legal Effects
adoptive parents have same rights and duties as bio parents. adoptive children have same rights as bio children.
most states will not allow visitation by natural parents, but some courts will only allow if in BIOC. About half the states allow the bio and adoptive parents to make enforceable agreements for post-adoption contact. Some states only enforce if in BIOC. If state does not allow enforcement, invalidates adoption because did not give up all parental rights
136
Artificial Insemination
state laws differ on sperm donors' rights and obligations but agree that no rights / obligations if:
- not the mother's partner and
- donated sperm to be used in an artificial insemination procedure supervised by licensed physician
137
In Vitro Fertilization
most clinics require parties to sign a document agreeing to disposition of excess frozen embryos in case of death, divorce, and abandonment
if no agreement, courts balance parties' ownership interests.
inheritance rights of children conceived posthumously using frozen embryos vary by state
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Surrogacy
some state laws require surrogacy be used only by a person unable to conceive. no federal regulation.
about half of states have no surrogacy regulation.
small minority hold that surrogacy contracts are void because violate public policy and a few states criminalize it
some states expressly allow surrogacy contracts but regulate the practice
Uniform Parentage Act (minority) allows court-approved gestational agreements permitting payment to surrogate, who is allowed to make her own decisions about her health and fetus's health. court approving agreement will require proof of parties' infertility and study of parties' home to prove parental fitness. parties can terminate for good cause before or after pregnancy achieved
