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family law Flashcards

1
Q

define marriage

A

civil contract b/w two people with capacity to consent

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2
Q

what constitutes consideration for a marriage contract to be valid?

A

mutual exchange of promises is sufficient consideration

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3
Q

how can a marriage contract be modified or terminated?

A

only with state intervention

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4
Q

what are the two types of marriage?

A
  1. ceremonial marriage
  2. common-law marriage (most jxdns have abolished)
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5
Q

what does a ceremonial marriage require?

A
  1. license
  2. solemnization
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6
Q

what are the requirements / parameters most states impose for a marriage license?

A
  1. age requirement (all)
  2. waiting period (many)
  3. medical testing (some)*
  4. expiration of license (range)
  • even in those states requiring premarital medical testing, a marriage license cannot be denied on the basis of the results
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7
Q

age requirement for a marriage license in most jxdn

A

18 years old

most jxdn also allow marriage for people under 18yo provided that the party has parental consent

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8
Q

range of marriage license expiration (in # of days)

A

varies from 10 - 30 days after issuance

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9
Q

when will a license NOT be issued?

A
  1. if a party is already married to someone else
  2. if the parties are too closely related (by blood or marriage)
  3. if the marriage is a sham or induced by fraud
  4. if the parties are incapable of understanding the act of marriage
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10
Q

under which constitutional clause must all states and the federal government recognize a same-sex marriage legally entered into in another state?

A

full faith and credit

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11
Q

characteristics of a solemnization

A

solemnization is a formal marriage ceremony

  • 2+ witnesses (most jxdn)
  • officiant (judge, person of the clergy, or political official) (most)
  • marriage license must be filed
  • proxy marriage may be allowed (some)
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12
Q

requirements for a common-law marriage

A

CCCC

  1. CAPACITY to marry (legal and mental)
  2. CONSENT (parties agree that they are married - must show evidence of present intent to be married)
  3. COHABITATION (no min. time period)
  4. CONDUCT (hold themselves out to public as be married)

some states also require a min. time period to be domiciled in the state in order to recognize a common-law marriage

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13
Q

what is some of the evidence a court will consider in determining whether to recognize a common-law marriage?

A
  • common children
  • joint debt or assets
  • title to property
  • bank accounts
  • insurance forms
  • tax returns

etc…

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14
Q

will a state that does NOT recognize common-law marriage on its own still recognize a common-law marriage from another state?

A

yes (full faith and credit)

EXCEPT if the state has a strong public policy against recognizing the common-law marriage

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15
Q

what is a heartbalm action and what did heartbalm actions historically include?

A

civil tort actions for money damages based on broken engagements or infidelity

historically included:
1. breach of promise to marry;
2. alienation of affection;
3. seduction;
4. criminal conversation

*NO LONGER RECOGNIZED - assume these actions have been abolished unless stated otherwise

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16
Q

the marriage relationship provides a right to _____ for the marital or family relationship under the Constitution

A

privacy

court will generally not get involved while marriage / family unit is intact

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17
Q

what are the three ways by which to terminate a marriage?

A
  1. annulment
  2. divorce (dissolution)
  3. death
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18
Q

what is an annulment?

A

judicial decree that VOIDS a marriage

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19
Q

what is the main difference between an annulment and a divorce?

A

annulment voids a marriage and declares it as having never been valid

divorce terminates a valid marriage

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20
Q

when is annulment available as an option to terminate the marriage? (two types)

A

when the marriage is
1. VOID ab initio - as if it never happened; judicial decree NOT required
or
2. voidable - valid until a party seeks annulment; requires judicial decree

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21
Q

annulment:
grounds for void marriage

A
  1. bigamy (prior existing marriage)
  2. incest
  3. mental incapacity
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22
Q

annulment:
grounds for voidable marriage

A
  1. age
  2. impotence
  3. intoxication
  4. fraud, misrepresentation, duress, coercion, force
  5. lack of intent
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23
Q

annulment \ void marriage:
in cases of a prior existing marriage (bigamy), when there is a first marriage and a second marriage, which of the two marriages is considered void?

A

second marriage

UNLESS the impediment (first marriage) is removed (some states - Enoch Arden rule)

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24
Q

annulment \ void marriage:
in cases of a prior existing marriage, who has the burden?

A

party trying to prove the first (prior existing) marriage has the burden

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25
Q

annulment \ void marriage:
what constitutes mental capacity (so as to render a marriage NOT void)?

A

parties must be lucid for the moment of marriage contract

parties must be able to understand the duties and responsibilities to which they are engaging

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26
Q

annulment \ voidable marriage:
when can an underage party no longer seek annulment?

A

when they reach the age of majority and continue to cohabitate with their spouse

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27
Q

annulment \ voidable marriage:
who can seek annulment on the basis of age?

A

a party who is
(a) under the age of marriage consent AND
(b) did not seek parents’ consent

OR
parent of the minor child can seek annulment

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28
Q

annulment \ voidable marriage:
when can a party / couple seek annulment on the basis of impotence?

A

when one party is naturally and incurably impotent

UNLESS the other party knew about the impotence prior to marriage

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29
Q

annulment \ voidable marriage:
when is intoxication a proper ground for annulment?

A

if either party was incapable of contracting (at the time of marriage) due to alcohol or drugs

UNLESS the parties continue to cohabitate after the marriage – functions as a ratification

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30
Q

annulment \ voidable marriage:
when is fraud grounds for a voidable marriage?

A
  • if it goes to the essence of the marriage
  • if it was in existence at the time of the marriage (can’t be about future facts)
  • if the parties immediately ceased to live together once the fraud was discovered
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31
Q

annulment \ voidable marriage:
examples of insufficient grounds for fraud that justifies an annulment

A
  • spouse lied about wealth
  • spouse has poor morals
  • spouse has bad habits
  • spouse has bad temper

NOTE: jxdns differ as to whether a false claim of pregnancy amounts to fraud that justifies an annulment

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32
Q

annulment \ voidable marriage:
when is a marriage voidable for lack of intent?

A
  • parties had no intention of being married and somehow got past the licensing stage
  • examples: sham, joke, marriages of limited purpose (e.g. purely for immigration)

EXCEPTIONS:
- if marriage has since been consummated, cannot be annulled

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33
Q

annulment:
available remedy after an annulment

A

court’s goal is to put the parties in the same position they were in before the marriage. parties still have some rights:

  • the party SEEKING the annulment can request equitable distribution of property
  • if state has a statute allowing courts to award spousal support in annulment, can also request spousal support
  • many states w/o the statute will still allow temporary spousal support (during suit’s pendency)
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33
Q

defenses to annulment: void marriage

A
  • deny the impediment
  • other party can still pursue divorce action (type of action may impact spousal support and property distribution)
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34
Q

defenses to annulment: voidable marriage

A

equitable defenses:
- unclean hands
- laches
- estoppel

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35
Q

annulment:
what is the putative spouse doctrine and why would it be invoked?

A

purpose is to protect a party who is unaware of an impediment to their marriage that renders it void or voidable.

allows that party to use the state’s divorce provisions, even if marriage is later found void.

normally invoked to provide equitable relief to the party who believed in good faith in the marriage’s validity

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36
Q

define divorce

A

legal dissolution of a marriage

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37
Q

divorce:
what is one requirement that must be fulfilled prior to filing for divorce in most states?

A

residency requirement
- at least one party must be a resident of the state
- length of residency requirement varies: (a) from state to state or (b) whether the couple was married in the state and/or (c) whether the grounds for divorce happened in that state

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38
Q

divorce:
approximately how many jxdns recognize no-fault divorce?

A

all jxdns recognize no-fault ground for divorce

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39
Q

divorce:
what ground(s) for divorce do the majority of states recognize?

A

both no-fault and fault (most states are mixed-fault).

substantial minority of states recognize no-fault as the ONLY basis for divorce

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40
Q

divorce \ no-fault:
standard / requirement(s) for no-fault divorce

A

irretrievably broken and no prospect of reconciliation (majority jxdns)

couple must be separated for a given period of time before filing divorce action (50% jxdns)

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41
Q

divorce:
why would you pursue fault grounds if no-fault is so widely available?

A

presence of fault is mainly used to determine support like alimony

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42
Q

divorce \ fault:
grounds for fault-based divorce

A

how many and which of these are available, if any, depends on jxdn.

  1. Adultery
  2. Cruelty
  3. Desertion
  4. Habitual drunkennes
  5. Bigamy
  6. Imprisonment
  7. Indignity (not avail. in most jxdn)
  8. Institutionalization
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43
Q

bigamy is ground for what type(s) of marriage termination?

A

annulment AND divorce

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44
Q

divorce \ fault:
when is adultery a proper ground?

what are some common defenses to adultery?

A

if charging spouse can show opportunity and inclination by the other spouse (to have voluntary sex with someone else)

circumstantial evidence OK

DEFENSES:
recrimination, unclean hands, connivance, condonation, consent

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45
Q

divorce \ fault:
when is cruelty a proper ground?

which defense(s) is commonly seen in cruelty cases?

A

course of conduct that makes cont’d cohabitation unsafe or improper

  • physical harm req. (most jxdn)
  • physical or emotional (few jxdn)

DEFENSES:
recrimination, unclean hands

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46
Q

divorce \ fault:
when is desertion a proper ground?

what are some commonly asserted defenses to desertion?

A

one spouse voluntarily leaves marital home w/o cause or consent, with INTENT to remain away permanently

(some jxdn) - also rec. if one spouse forces the other one out AND there is fear of harm if other one returns - “constructive desertion”

DEFENSES:
recrimination; unclean hands; consent; justification

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47
Q

divorce \ fault:
when is habitual drunkenness a proper ground?

what are some commonly asserted defenses to habitual drunkenness?

A

frequent habit of getting drunk (not necessarily alcoholism) causes impairment in the marriage

DEFENSE:
assumption of the risk

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48
Q

divorce \ fault:
when is bigamy a proper ground?

A

one party knowingly entered into a prior and existing legal marriage before entering into the current one

grounds for divorce and also annulment (VOID)

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49
Q

divorce \ fault:
when is imprisonment a proper ground?

A

if the imprisonment period meets a specified period of time

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50
Q

divorce \ fault:
when is indignity a proper ground?

A

it’s usually not a basis (maj. jxdn)

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51
Q

divorce \ fault:
when is institutionalization a proper ground?

A

if no reasonable prospect of discharge or rehabilitation

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52
Q

divorce:
defenses to divorce

A

8 defenses
- only apply to fault
- must be affirmatively pleaded

  1. RECRIMINATION (both spouses commit a marital wrongful act of like conduct) and UNCLEAN HANDS (used when P’s own behavior is in question)
  2. CONNIVANCE: P gave D consent to participate in marital wrong
  3. CONDONATION: knowledge & forgiveness AND resumption of marital relations w guilty party
  4. COLLUSION: not really relevant bc no-fault is available
  5. PROVOCATION
  6. INSANITY: lacks capacity to know diff b/w right and wrong
  7. CONSENT (desertion, adultery)
  8. JUSTIFICATION (desertion): left home bc of other party’s misconduct

*RELIGION is NOT a defense to any marital wrong

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53
Q

divorce:
what is limited divorce?

A

parties live apart but still considered legally married

court determines property division & support

widely recognized but rarely used

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54
Q

divorce:
what is a separate maintenance action?

A

decree of support for a party but does not authorize them to live apart. still considered legally married.

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55
Q

divorce:
what is the interlocutory period

A

time between the divorce being initially granted and finalized. neither spouse can remarry during this period

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56
Q

divorce:
what can a mediator assist with?

A

child support, custody, visitation, parenting time, etc.

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57
Q

division of property:
community property

A

MINORITY

  • equal distro of marital property
  • only 9 states (in W, SW + Wisconsin)
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58
Q

division of property:
equitable distribution

A

MAJORITY

requires fair and just distribution of marital property

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59
Q

division of property:
what is NOT considered marital property

A
  1. acquired before marriage
  2. acquired after separation
  3. gifts (except those b/w spouses), inheritance
  4. excluded in pre- or post-nup
  5. sold for value in good faith before the date of final separation
  6. mortgaged or encumbered in good faith before the final separation
  7. award or settlement payment received for cause that ACCRUED prior to marriage
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60
Q

division of property:
how are increases in the value of separate property treated?

A

if increase in value is due to either spouse’s efforts, then marital property
(e.g. if both spouses contribute to mortgage payments, each entitled to an equitable value in the increase of the home)

if improvement due to marital property funds (e.g. salary after marriage), then also = marital property

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61
Q

division of property:
burden of proof

A

party claiming something is NOT marital property has burden of proving that it is separate

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62
Q

division of property:
what might courts take into account when deciding how to distribute marital property?

A
  • length of marriage
  • prior marriages?
  • economic circumstances of each spouse
  • income, medical needs, retirement
  • contributions to education or career advancement of one spouse to other
  • needs for future acquisitions
  • value of any separate property
  • reduction in value of marital property by one spouse (dissipation or fraud)?
  • custodianship of minor children
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63
Q

division of property:
how are retirement benefits treated?

A

equitable distribution - can be both marital and nonmarital property if started accruing prior to marriage, divided proportionately

current / present value only (not future)

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64
Q

division of property:
how are personal injury claim proceeds treated?

A
  • pain, suffering, disability: separate (injured)
  • consortium: separate (non-injured)
  • lost wages, income, medical expenses: marital
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65
Q

division of property:
how are stock options treated?

A

treated as marital property if acquired during the marriage (even if it won’t be exercised until after divorce)

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66
Q

division of property:
how are equitable distribution payments transferred between spouses taxed?

A

equitable dist. payments transferred b/w spouses are NOT treated as taxable income

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67
Q

division of property:
how can a property division be modified, and under what circumstances?

A

property divisions are non-modifiable once they occur.

changes in circumstance are not considered WRT property division. but may have an impact on spousal or child support obligations.

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68
Q

define spousal support

A

the obligation of one spouse to provide financial support to the other in the form of income

also known as maintenance or alimony

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69
Q

spousal support:
what factors are considered in determining the amount of support?

A
  • financial resources of both parties
  • std of living during marriage
  • time needed to find a job / complete ed
  • duration of marriage
  • contributions to marriage (e.g. sacrifices to enhance earning capacity of other spouse)
  • parties’ ages and health
  • marital misconduct (many jxdns preclude this as a factor; some consider adultery in particular when determining support)
  • children (future responsibilities)
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70
Q

spousal support:
what does the party seeking modification have the burden to show?

A

party seeking modification must show that there has been a significant and continuing change in circumstances in either:
* the recipient’s needs OR
* the payor’s financial abilities (voluntary income reduction does not count)

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71
Q

spousal support \ modification:
what factors may affect modification?

A
  1. death (estate usually not obligated)
  2. remarriage (payor: court may modify; recipient: court may terminate)
  3. retirement (some deny mod., some grant mod., some consider reason for ret.)
  4. cohabitation
    * how long?
    * jointly contribute to HH $?
    * both support children of other?
    * how much do they support each other?
    * held out to be married, and for how long?)
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72
Q

court jxdn:
what is usually the residency requirement range for SMJ?

A

6 weeks - 2 years
* AND full faith and credit applies if one spouse is a res for that period of time

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73
Q

what are the equity powers granted to matrimonial courts?

A
  • divide property
  • order divorce or annulment
  • issue orders re child custody
  • order spousal and child support
  • award atty’s fees
  • enforce separation agreements

etc…

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74
Q

what is a split domicile?

A

when court has jxdn over one party but not the other

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75
Q

what is an ex parte divorce? when is this option available to the court?

A

an ex parte divorce would only allow the court to determine marital status.

available when court doesn’t have PJ over both spouses (only one). such a court cannot issue orders on property division, spousal support, or child custody or support

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76
Q

when is a collateral attack on jxdn available, and what must the D show?

A

D spouse can attack an ex parte order for lack of jxdn

can show that P spouse was not domiciled in the divorcing state

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77
Q

what rights to indigent parties have in matrimonial court?

A

no right to legal counsel

but court CAN award atty’s fees and costs if one party is indigent

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78
Q

child support:
usually until what age?

what are the exceptions?

A

usually until 18 yo

three exceptions:
* if child is in high school full time when they reach age of majority, can be extended until they are 19
* if child’s physical or mental condition requires support past age of 18
* through college (depending on state) BUT contingent on child complying w reasonable parent demands

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79
Q

child support is entirely separate from which rights?

A

visitation rights: visitation cannot be denied because the payor failed to pay child support

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80
Q

the right to receive child support belongs to who?

A

child

cannot be bargained away; any child support provisions in pre or post-nup agreements will not be enforced

but parents can agree regarding payment scheduling and timing

81
Q

to which rights are nonmarital children entitled?

A
  1. child support
  2. govt benefits
  3. death benefits
  4. inheritance rights
82
Q

by when does paternity need to be established?

A

paternity needs to be established before the father dies

83
Q

how can nonmarital kids become marital kids?

A
  • if the parents marry after the child’s birth
  • if the father consents to putting his name on the child’s birth certificate
  • if the father holds himself out to be the father OR
  • by judicial decree
84
Q

are paternity axns private or public?

A

private

85
Q

what are the legal benefits of establishing paternity?

what rights and duties does paternity give rise to?

A
  • right to custody
  • right to visitation
  • duty to support
86
Q

what are the legal consequences of paternity not being established?

A

if paternity is not established, any child support case filed against that individual is dismissed

87
Q

evidence of paternity

A
  • blood test
  • prior statements by deceased family members
  • D’s own knowledge of paternity
  • physical resemblance b/w child and D
88
Q

is there a time limit on filing a paternity claim? why or why not?

A
  • no time limit
  • time limit would violate EPC
  • child or child’s mother can always bring suit
  • BOP varies by jxdn
89
Q

what is the marital presumption?

A

a child borht to a married woman is presumed to be the chlid of the woman’s husband

90
Q

what is required for the marital presumption to apply to cases of artificial insemination?

A
  • father consented to the procedure
  • procedure was performed by a doctor
91
Q

marital presumption:
how do various jxdns approach the question of when and whether a wife can deny that her husband is the father?

A

* some states: wife is estopped from denying the husband’s paternity
* some states: allow court to exclude evidence of mother’s rebuttal if not in BIC
* 50% states: allow wife to present evidence that husband is not the father (impotent, sterile, not accessible (e.g. deployed))

92
Q

child support \ estoppel:
when is a husband who is not the bio father estopped from denying his duty to pay child support?

A
  • if he **represented / promised **that he would provide for the child
  • if wife relied on that promise or representation
    AND
  • if wife suffered or would suffer economic detriment from relying on that promise

some states would still allow husband to show that they are not bio father and thus, that they do not owe child support

93
Q

child support \ estoppel:
when can estoppel NOT be used?

A

cannot be used to block bio father of his rights

94
Q

child support \ PJ:

what statute is most relevant to PJ in the child support context and why?

which states have adopted it?

A
  • Uniform Interstate Family Support Act (UIFSA)
  • long-arm provision to est PJ over out-of-state parent
  • adopted in every state
95
Q

child support \ PJ:
what are the statutory grounds by which a court can obtain PJ over out-of-state parent (+ name the statute)?

A

Uniform Interstate Family Support Act (UIFSA)
Grounds — how to obtain PJ over an out-of-state parent:
* personal service on D
* consent of D (e.g. entering an appearance)
* past residency with child in state
* past residency while providing child support
* D directed child to reside in the state
* D engaged in act of conception in that state that led to child’s birth
* D asserted parentage via putative father registry of the state
* any other basis consistent w FED & ST const for exercising PJ

96
Q

child support:
what forms of income can be factored into calculating child support (depending on ST guidelines)?

A
  • wages
  • dividends
  • interest
  • capital gains
  • rental income
  • retirement benefits
  • SSI
97
Q

child support:
name three public policy principles that guide child support

A
  1. parents have a fundamental obligation to support their children
  2. the combined income is important (ie what would the child receive as support if home were intact?)
  3. goal to minimize litigation
98
Q

child support:
what must both parents submit to the court for child support to be calculated?

A
  • affidavit re: net income
  • child support guidelines worksheet
99
Q

child support \ calculating support:

what is the income shares model?
how popular is it among the states?

A

income shares model –most jxdns
1. add both incomes
2. determine amt of child support based on total income
3. allocate responsibility respective to each person’s net income

100
Q

child support \ calculating support:

what is the percentage-of-income model?
how popular is it among the states?

A

percentage-of-income model –some jxdns
* uses % of non-custodial parent’s income
* determined by the # of children being supported

101
Q

child support \ calculating support:
what is required if the court were to deviate from the state’s child support guidelines?

A

must specify why it is deviating

102
Q

child support \ calculating support:
what is the most important consideration in calculating child support?

what other factors might be considered?

A

MOST IMPORTANT = BIC

other considerations:
* age of child
* unusual needs (special ed, medical needs)
* support obligations of the parties themselves
* assets of parties
* medical expenses outside of insurance coverage
* relative std of living
* duration of marriage

103
Q

child support \ modification:
is this permitted?

if so, when?

A

yes - permitted in most jxdns bc child’s needs might change based on parent’s circumstances, and overarching consideration is BIC

requires a substantial change in circumstances

104
Q

child support \ modification:
what is required for a child support modification to be permitted?

what does that mean in numbers in most states?

A
  • for a child support modification to be permitted, most states require a significant change in circumstances (re: child’s needs or parents’ fiancial situation)

e.g. new job, remarriage of parent + new obligations, increase in income, decrease in health

most states require about a 10% change

105
Q

child support \ modification:
which party has the burden to substantiate a change in circumstances warranting an modification?

A

burden is on the party requesting a modification

106
Q

child support \ modification:
when is a modification NOT allowed to be sought?

A

when party voluntarily reduces income. court will impute an income amount on that parent instead

EXCEPT if the change was made in good faith and no hardship to the child

this comes up on the exam a lot

107
Q

child support \ modification:
if modification is granted, from when does it apply?

A

modification is retroactive to the date of service of the motion for modification

108
Q

child support \ termination:
what does it mean when child support extends into college (in those jxdns that allow this)?

A

post-majority support

109
Q

child support \ termination:
when can child support be terminated (apart from automatic age terminations)?

A
  • child marries
  • chlid emancipation
  • termination of parental RIGHTS
  • child dies
  • parent dies (but courts CAN require life insurance policy)
110
Q

child support \ modification:
how can jxdn for child support modification e moved?

A
  1. by agreement of the parties
  2. if neither party nor the child live in the “court of continuing jxdn”

even if registered in another tribunal—
if non-modifiable in ST 1, then non-modifiable in ST 2

110
Q

child support \ termination:
does a child’s pregnancy result in automatic termination?

A

no

111
Q

child support \ tax:
what are the limitations on how child support is included on tax forms?

A
  • paying parent cannot deduct child support from income
  • receiving parent cannot include child support as income
  • BUT the parent who pays medical expenses CAN deduct those expenses
112
Q

child support \ enforcement:
how may child support be enforced?

A
  • contempt orders (civil, criminal)
  • wage garnishment
  • withholding tax refunds
113
Q

child support \ enforcement:
what are the difference between civil and criminal contempt?

A

civil contempt:
* payor must violate a court order for failure to pay
* courts may levy a fine, or order incarceration, until amt is paid
* jxdns split on whether appt of counsel is constitutionally required in indigent cases

criminal contempt:
* usually requires finding beyond a reasonable doubt that the failure to pay was WILLFUL
* court can impose a jail term
* counsel constitutionally required indigent cases

114
Q

child support \ enforcement:
apart from contempt orders, wage garnishment, and withholding of tax refunds, what other snxns are available to the court to enforce child support?

A
  • intercept tax refunds
  • suspend driver’s license
  • suspend professional license
  • report to credit bureau
  • seize property or assets
  • order insurance or bond
  • atty’s fees
  • order a job search or
  • seize passport (if more than $5,000)
115
Q

child support\ enforcement:
why was the UIFSA created?

A
  • to simplify the collection of child support from one state to another.
  • if an order is registered in the second state, it is enforceable from the first state
116
Q

child support \ enforcement:
which state(s) may modify an order of child support if the order is registered in a second state?

A

only the original state may modify the order

117
Q

child custody

what is the overarching std in determining child custody decisions?

A

best interests of the child (BIC)

118
Q

child custody

what is legal custody

A

right to make major decisions for the child (religion, education, medical)

119
Q

child custody

what is physical custody?

A

right to make everyday decisions for daily care and control of the child (routine; usually includes right to have child reside with parent)

120
Q

child custody

what type of custody applies to the majority of cases and may be statutorily favored?

describe parents’ main rights and responsibilities under this type of custody

A

joint custody

  • parents must be willing to cooperate for the best interest of the child
  • neither parent has a superior right to make decisions on behalf of the child
  • child usually maintains residence w both parents but not necessarily 50-50
121
Q

child custody

which statute determines which state can have jxdn, change it, or decline it?

what kind of jxdn (PJ or SMJ)?

A

Uniform Child Custody Jxdn and Enforcement Act (UCCJEA)

SMJ

122
Q

child custody

how many bases of SMJ are there under the UCCJEA?

what are they (first few in order of hierarchy)?

A

five bases of SMJ under UCCJEA

  1. home-state jxdn (initial custody determination)
  2. significant-connection jxdn
  3. appropriate connections (default) jxdn
  4. temporary emergency jxdn
  5. exclusive continuing jxdn
123
Q

child custody \ UCCJEA

what are the requirements of initial custody determination / home-state jxdn?

A

home state has jxdn
* home state = where child lived with a parent for 6 months (or since birth, if child is less than six months old)

if child moved, home state can still have jxdn if:
* it WAS the home state within the past 6 mths AND
* a parent or guardian still lives there

124
Q

child custody \ UCCJEA

what are the requirements of significant connection jxdn?

A

second in hierarchy
ct has significant connection if:
* no other state is the home state
* child AND one parent have significant connections to a new state AND
* there is substantial evidence in that sate concerning the child (including, e.g. the child’s testimony)

125
Q

child custody

what are the requirements of default jxdn?

what is it otherwise known as?

A

third, after home-state & significant connections
default jxdn applies when:
* there is no court that has home-state jxdn,
* there is no court that has significant connection jxdn, AND
* a court in a new state has appropriate connections to a child

also known as appropriate connections jxdn

126
Q

child custody

when can a court assume emergency jxdn?

A

a court can assume emergency jxdn if:
1) child is in danger AND
2) child requires immediate protection

if no prior custody order in place, then emergency order stays in place until home state changes it

127
Q

child custody

what is exclusive continuing jxdn?

A

exclusive continuing jxdn means that the court that made the initial rulings in the custody case CONTINUES to have jxdn until:
1. parties no longer reside in the state OR
2. child no longer has a significant connxn to the state AND no substantial evidence of the child’s condition remains available in that state

128
Q

child custody

when can a court decline jxdn when the forum is inconvenient (list factors)?

A
  • WHEN** domestic violence** occurred
  • length of time child has resided outside of jxdn
  • distance bw competing jxdns
  • parties’ relevant financial circumstances
  • agreement of the parties
  • nature and location of evidence that is relevant n the case
  • each court’s ability to decide the issues expeditiously and the procedures necessary to present the evidence
  • familiarity of each state’s court with the facts and issues
129
Q

child custody \ enforcement

how might a court enforce another state’s orders?

A
  1. registration of order
  2. expedited enforcement of a child custody determination
  3. warrant for child custody
  4. law enforcement
130
Q

child custody \ enforcement

how to register an order (of another state)

A

parties must:
* get a certified copy of the order
* register it with the new court
* new court can then grant relief under that order

131
Q

child custody \ enforcement

expedited enforcement of a child custody determination – requirements

A

respondent must appear next day after being served with an order, or petitioner will be awarded immediate physical possession

UNLESS
the custody order was not registered AND one of the following exists:
* ct did not have jxdn
* order had been stayed or vacated
* notice was improper

OR
order was registered but stayed, vacated, or modified

132
Q

child custody \ enforcement

warrant for child custody – requirements

A

warrant for physical custody can be issued at petitioner’s request if child is likely:
* to suffer serious physical injury OR
* to be wrongfully removed from the state

133
Q

child custody \ enforcement

when can law enforcement officials obtain return of the child or enforce an order?

A
  • if officer believes the person holding the child violated a criminal statute OR
  • if such action is requested by the court
134
Q

child custody

which statute applies the UCCJEA to parents serving in the military?

A

Uniform Deployed Parents Custody and Visitation Act (UDPCVA)

135
Q

child custody \ UDPCVA

what are the three main characteristics of the UDPCVA?

A
  • if no imminent deployment, then courts cannot use potential deployment negatively against military parent
  • sets out procedures for temporary custody and out-of-court agreements
  • prohibits permanent orders before or during deployment (UNLESS military parent consents)
136
Q

child custody

which statute did the UCCJEA replace and why?

A

UCCJEA replaced the Uniform Child Custody Jxdn Act (UCCJA). Old statute had four main flaws:
* did not allow another state to modify a custody order if original state still had jxdn
* conflicted w PKPA
* did not address visitation
* did not give first priority to home state of child

137
Q

child custody \ PKPA

what does the PKPA do, what does it stand for, and what are its main characteristics?

A

Parental Kidnapping Prevention Act
PURPOSE: discourage forum shopping
* applies to kidnapping cases and to interstate parental responsibility disputes
* PKPA supersedes any conflicting state law (Supremacy Clause)
* allocates powers and duteis bw the states regarding child custody disputes; noncompliant state’s order will NOT get full faith and credit

138
Q

child custody

what is the international PKPA?

A

prohibits children from being taken out of the country

Hague Convention requires return of the child UNLESS return would put child in grave physical or psychological danger

139
Q

child custody

when is a parent NOT determined to be in the best position to care for the child?

A

if parent is demed unfit

140
Q

child custody

what is the primary factor to be considered in child custody determinations?

what other factors may be relevant as well?

A

Primary: who was the primary caretaker during the marriage and separation (prior to divorce)?

Other factors:
* race – CANNOT be used
* religion – typically not a factor
* past sexual conduct –parent’s past sexual conduct usually not relevant UNLESS it has a negative impact on the child
* 3d party rights
* child’s preference –if child is of sufficient maturity; child will not be brought into court unless ordered by ct and for good cause
* guardian ad litem
* siblings – avoid separating (unless keeping together is not in BIC)
* domestic violence –rebuttable presumption in favor of non-abusive parent

141
Q

child custody

why is visitiation rarely denied? what limitations may be placed?

A

parents have a constitutional right to see their child, but visitation must be in BIC

  • DENIAL: only allowed if it would seriously endanger the child (not in best interest)
  • other limitations include: requiring supervised visitation, restricting overnights, etc.
142
Q

child custody

when may 3d party visitation typically be granted?

what protected rights do 3d parties usually have for ongoing visitation after a divorce?

A
  • usually granted only in cases of in loco parentis prior to divorce
  • no protected rights for 3d parties for ongoing visitation
143
Q

child custody

what standard is used in considering a parent’s decision to deny a nonparent visitation?

A

“special weight” given to the decision because a parent has a fundamental right to care for and control their child

144
Q

child custody

how is grandparent visitation determined state by state?

A

most states have a specific statute regarding grandparent visitation?

no states guarantee grandparent visitation

145
Q

child custody

what factors do courts look at when grandparent visitation is denied?

A
  • the fit parent’s decision
  • the conditions of visitation set forth by the applicable statute
  • BIC
146
Q

child custody \ unwed biological father

what must an unwed biological father demonstrate in order for visitation rights to be enforced?

A
  • must demonstrate a commitment to parenting responsibilities
147
Q

child custody \ unwed biological father

how might an unwed biological father’s paternity petition be precluded?

A

the unwed bio father’s paternity petition might be denied if the mother is married to another man and refuses to join the paternity action

148
Q

child custody

how does a parent’s sexual relationship impact the court’s decision with respect to that parent’s visitation rights

A

unlikely to result in restricted visitation by that parent

UNLESS the parent’s sexual relationship or cohabitation adversely affects the child

HIV / AIDS is never a basis for denial

149
Q

child custody \ interference

how might courts remedy interference or refusal to comply with a visitation order?

A
  • change in custody arrangement
  • contempt proceedings
  • make-up time
150
Q

child custody

what are some potential remedies for failure to abide by the court’s visitation order [ie in allowing the other parent to see child]?

A
  • compensatory visitation (make-up time)
  • atty’s fees & court costs
  • impose fine
  • order jail time
  • tort damages for lost time with child
151
Q

child custody

what is the impact on visitation of a failure to pay child support?

A

nothing

152
Q

child custody

when can a parent request habeas corpus (of the child)?

A

parent who has legal but not physical custody can request habeas proceedings

BUT a better option is to pursue a suit in equity

153
Q

child custody \ enforcement of foreign decrees

when can custody and visitation orders be enforced in a different state?

under which statutory or constitutional authority?

A
  • can be enforced if the original order was registered in the second state
  • full faith and credit clause
154
Q

child custody \ enforcement of foreign decrees

under what circumstances can a new court modify a custody and visitation order from a different state [once it is registered in the second state]?

which state has SMJ?

A

usually the new court CANNOT modify the order

UNLESS
* prior court has denied jxdn
* out-of-state party is given sufficient notice

original state retains SMJ

155
Q

child custody \ modification

what is the standard for modification of a child custody order in most states?

A

substantial and unforeseen “change in circumstances”

unforeseen at the time the final judgment was entered

156
Q

child custody \ relocation

what are the different state approaches in determining whether a move is appropriate?

A
  • BIC (some states)
  • relocating parent given presumptive right to relocate so long as child’s welfare is not prejudiced (some states)
157
Q

child custody \ relocation

who has the burden in relocation cases and what must they show (talk about the different state approaches)?

A
  • relocating parent has burden to demonstrate a “legitimate and reasonable purpose” for relocation (most states)
  • objecting parent has burden to show that relocation is not in BIC or will harm the child (some states)
158
Q

child custody \ relocation

what is the most common trend for courts to follow in relocation cases?

A

usually will allow a parent to relocate provided that there is a legitimate reason. courts weigh factors against each other

159
Q

child custody \ relocation

which factors might courts weigh in deciding a relocation case?

A
  • non-relocating parent’s potential involvement w child
  • child’s ability to preserve relationship w nonmoving parent
  • child’s age and needs
  • chlid’s preference
  • movan’t history of promoting parenting time
  • enhancing effect on the child’s life
  • each parent’s motive
  • any other factor
160
Q

child custody

in what type of custody arrangement would the nonmoving parent have the most protection in relocation cases?

A

joint custody

161
Q

child custody \ modification

what procedures do some states provide with respect to custody if the custodial parent beings to live with a non-marital partner?

what is the usual impact of these procedures?

A
  • some states permit a hearing to modify custody if custodial parent is living with a non-marital partner
  • usually modification is not granted UNELSS it is shown that cohabitation adversely impacts the child
162
Q

child custody \ termination

when do parental responsibility orders terminate?

A
  • upon death of parent OR
  • when child reaches age of majority
163
Q

child custody \ parental consent

what are the consequences for a doctor who performs a procedure without parental consent?

exceptions?

A

liable in tort

EXCEPTIONS:
* emergency
* child is older and mature
* public health issues

164
Q

child custody \ parental consent

what might a court do if a parent’s religious beliefs contradict the BIC? (e.g. in the medical sense wrt blood transfusions, etc.)

A
  • court can intervene and declare the child in need and neglected
  • some states will also allow exceptions (to the parental consent requirement) in emergencies W/O finding the parent was neglectful
165
Q

marital agreements

what are the three main types of marital agreements and what are their respective purposes?

A
  1. pre-marital agreement (ante-nuptial) – terms relate to property, spousal support in case of death or divorce, etc.
  2. separation agreements (post-nuptial) –made b/w spouses plannning for ultimate divorce, can decide property division, spousal support, cusotdy, visitation, etc.
  3. property settlement agreement (marital settlement agreement) –finalizes the ecomoic issues between parties to an impending divorce; may be entered into prior to the divorce decree
166
Q

marital agreements

which clauses are either unenforceable or always modifiable?

A

clauses related to child support and child custody are always either unenforceable (pre-marital) or modifiable (post-marital / separation)

otherwise, courts will usually uphold a marital agreement’s “cannot modify” provision

167
Q

marital agreements

when are property settlement agreements and post-marital agreements unenforceable?

A

unenforceable if there is either fraud or unconscionability

168
Q

marital agreements

what are the most important requirements for a marital agreement to be valid?

A
  • full disclosure [of income, assets, and debts]
  • fair and reasonable terms
  • voluntary
  • in writing (SOF)
  • signed (SOF)
169
Q

marital agreements

which two statutes govern the validation / enforcement of marital agreements?

A
  • Uniform Premarital Agreement Act (UPAA) (26 states w/ amend.)
  • Uniform Premarital and Marital Agreements Act (UPMAA) (2 states)
170
Q

marital agreements

how do choice of law decisions work wrt premarital agreements?

A

most significant relationship

most courts use the law of the state with the “most significant relationship” to the agreement and the marriage

171
Q

marital agreements

how are separation / post-nuptial agreements most often enforced?

what happens otherwise?

A

usually enforced through enforcement of the final divorce judgment
* a separation agreement is usually merged into the final divorce decree
* when no merger, enforcement is based on breach of contract claim

172
Q

marital agreements

what is the standard of proof for a marital agreement to be deemed invalid?

A
  • the standard to prove a marital agreement’s invalidity is by clear and convincing evidence
173
Q

marital agreements

what does the UPAA require of a party against whom enforcement of a. marital agreement is sought [ie to invalidate the agreement]?

A

UPAA requires that the party against whom enforcement is sought prove:
1. involuntariness OR
2. that agreement was unconscionable at the time it was executed — meaning that party did not receive or waive fair & reasonable disclosure, AND party “did not have, or reasonably could not have had, an adequate knowledge” of the other’s assets and debts. UPAA §6(a).

174
Q

marital agreements

how might a marital agreement be invalidated in non-UPAA states?

A
  • voluntariness, fairness, and asset disclosure are relevant to enforceability in ALL jxdns
  • non-UPAA courts can invalidate on any other grounds as well
175
Q

marital agreements

are marital agreements enforceable once a marriage is voided?

A

no, unless enforcement of the agreement would avoid an inequitable result

176
Q

marital agreements

what do courts consider when determining whether a marital agreements terms are fair and reasonable?

A
  • wealth, age, and health of parties
  • is agreement procedurally an substantively fair? looking for things like fraud, duress, force, undue influence, or mediator misconduct
177
Q

marital agreements

the agreement’s fairness is evaluated as applied to which part of the contract’s life?

A

majority: fairness at time of execution
minority: fairness at time of enforcement (i.e. at time of divorce

178
Q

marital agreements

what is the current trend that most courts follow re: enforcing a marital agreement?

A

most courts will enforce an agreement as long as there was full dislosure, even if the agreement is not necessarily fair

179
Q

marital agreements

what does it mean for an agreement to be voluntary?

A

courts look at things like:
* time pressure
* previous business experience of the parties
* whether the parties are represented by counsel

180
Q

marital agreements

when might a court choose not to enforce an agreement by its terms?

A

if it would leave one spouse woefully impoverished and dependent on the state

181
Q

marital agreements

how do courts approach property division b/w unmarried cohabitants?

A

if there is an express contract that is enforceable, courts will follow contract terms

if no express contract, courts turn to equitable distribution of property to avoid unjust enrichment

182
Q

marital agreements

when is a cohabitation agreement unenforceable?

A

a cohabitation agreement is unenforceable if the only consideration is sexual relations

also, courts are less likely to enforce implied cohabitation agreements

183
Q

adoption

what happens to the prior parent-child relationship upon adoption?

A

the prior parent-child relationship is legally terminated & a new parent-child relationship is created

184
Q

adoption

what kinds of records may the child be able to access about their birth parents?

A

medical records

185
Q

adoption

what kind of requirement do most states have in common wrt adoption?

A

residency requirements for the county in which the doption will take place

186
Q

adoption

list some of the legal effects of adoption

A
  • adoptive parents have all the rights and responsibilities of bio parents
  • child has all the rights of a bio child
  • bio parents have no rights of viistation in most jxdns, UNLESS parties agree otherwise
  • stepparents can visit (sometimes), depending on how substantial the relationship was b/w stepparent and child.
187
Q

adoption

are adoptions dissolvable?

A

no, EXCEPT potentially in cases of undisclosed mental or physical illness. Courts review:
* child’s needs
* parents’ motives
* length of relationship

188
Q

adoption

which federal statute governs adoption alternatives, and what kinds of alternatives does it govern?

A

Uniform Parentage Act (UPA) –adopted in 9 states
* assisted reproduction
* surrogacy
* related “frozen embryo” issues that may arise under such circumstances

189
Q

DV

what kind of violence can typically be classified as domestic violence? who does the perpetrator need to be?

who do state DV statutes tend to protect?

A

usually limited to a continuum of behavior displaying physical violence (not mental or emotional) inflicted by someone who is in a relationship with the victim or who isa family or household member

most statutes include:
* spouses
* children
* former spouses
* household members
* family members
* unmarried parents who have a common child
* some statutes also include dating relationships

190
Q

DV

what kind of relief is available to most DV victims and what does the process of obtaining that relief look like?

A
  • civil injunctive relief (like a “no-contact” order)
  • order is usually about 1 year to an indefinite period

process for obtaining the order usually involves two steps:
* ex parte order w limited injuncitve relief (TRO); AND THEN
* notice to D & hearing for PRO

191
Q

DV

what happens if D violates injunctive order for DV?

A

fines, imprisonment

192
Q

child’s rights

when is parental consent for medical care not required?

A
  • in limited emergency where child’s life is at risk
  • abortions (varies by state, age, etc.)
  • treatment of STIs
  • birth control
193
Q

child’s rights

whose jxdn is a child under if they carry out a criminal act?

A

usually juvenile courts and laws
(purpose is to provide “supervision and rehabilitation”)

194
Q

child’s rights

what are the legal effects of emancipation?

A

CHILD:
* no longer a minor
* has duties and obligations of an adult

PARENT:
* no longer has a duty to support

in order to petition for the court for a decree of emancipation, child must be self-supporting and no longer living with parents

195
Q

parental rights \ termination

what are some of the grounds for terminating parental rights?

A
  • abandonment
  • neglect
  • failure to support
  • inflicting serious harm
  • etc.
196
Q

UPA

what is “assisted reproduction” under the UPA §102?

A

implanting an embryo or fertilizing a woman’s egg with a man’s sperm without sexual intercourse

197
Q

UPA

what is required for a gestational (surrogacy) agreement to be approved?

when can a gestational agreement be terminated and by whom?

A
  • all parties involved must petition the court
  • court must have jxdn
  • appropriate govt agency must perform a home study of intended parents
  • all parties must have entered into agreement voluntarily
  • parties must have made medical arrangements for care associated w agreement
  • agreement may NOT limit right of gestational mother to make healthcare decisions about herself or the embryo
  • consideration to gestational mother (if any) must be reasonable

intended parents must file a notice of the child’s birth for the court to declare them to be the legal parents

can be terminated
* for cause
* any time before the gestational mother becomes pregnant
* by any party (including court)

198
Q

UPA

how do courts decide whether transplantation of a frozen embryo will take place in the absence of an agreement and in the face of changed circumstances rendering this decision necessary?

what does the resolution of these issues normally turn on?

A

courts will weigh the interests of the parties in determining whether transplantation will take place

resolution of the issues normally turns on whether the embryo is classified as a person or property

justice (6 decks)

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