Family Law

Question 1

Child Custody Court Jurisdiction Hierarchy

HSAV

Answer 1

Child Custody Court Jurisdiction Hierarchy (HSAV, like High School Audio Video; Home, Significant, Appropriate, Vacuum)
1) Home State - the state in which a child lived with a parent or person acting as a parent for at least six consecutive months (or from birth) immediately before the commencement of a child custody proceeding
2) Significant Connection - if there is no home state, a significant connection jurisdiction is where the child and at least one parent or acting parent has a significant connection with the state other than mere physical presence and substantial evidence must be available in the state concerning the child’s care, protection, training, and personal relationships
3) More appropriate - If home state or significant connection jurisdiction declines jurisdiction because the court found there is a more appropriate forum, this more appropriate forum will have jurisdiction.
A Court can decline/deny jurisdiction for reasons such as the parent taking the child out of a previous home state without the other parent’s consent. This potential for denial can be rebutted by a showing that there was good reason to leave the state without other parent’s consent, the other parent’s disinterest in seeing or reuniting with child, and the departing parent’s actions toward giving non-departing parent the notice (in a timely fashion), the option and opportunity to see child, and sufficient information to challenge the departing parent’s conduct
4) Default or Emergency Jurisdiction - No other state or vacuum of jurisdictional options (last resort)

Question 2

Marriage License Requirements

TAPE

Answer 2

Marriage License Requirements (TAPE, Testing, Age, Period, Expiration)
Minimum age restrictions
Complete waiting period
Undergo premarital medical testing (some states)
Marry before expiration date

Question 3

A marriage license will not be issued when

BISh ICU

Answer 3

A marriage license will not be issued when (BISh ICU; Bigamy, Incest, Sham, Intoxicated, Consent, Understanding):
Bigamy: One party is married to someone else
Incest: The parties are too closely related
Sham: The marriage is a “sham”
Understanding: The parties are incapable of understanding the nature of the act
Intoxicated: One or both parties is under the influence of drugs or alcohol (most jurisdictions)
Consent: A party lacks consent due to duress or fraud

Question 4

Void Marriage Grounds

IBM

Answer 4

Void Marriage Grounds (IBM, Incest, Bigamy, Mental)
Bigamy
Incest
Mental Incapacity

Question 5

Spousal Maintenance Award Factors

MRS. LATCH

Answer 5

Spousal Maintenance Award Factors (MRS. LATCH, Misconduct, Resources, Standard, Length, Age, Time, Contributions, Health)
Financial resources
Standard of living
Time for spouse to find employment or training
Length of marriage
Contributions to the marriage
Age and health of parties
Marital misconduct
Some states do not consider this
Some states consider it as one of many factors
Some states preclude spousal support when there was marital misconduct

Question 6

Voidable Marriage Grounds

IF LAID

Answer 6

Voidable Marriage Grounds (IF LAID, Impotence, Fraud, Lack, Age, Intoxication, Duress)
Age
Impotence
Intoxication
Fraud
Duress
Lack of Intent

Question 7

Equitable Defenses against Voidable Marriage Claim

ULE

Answer 7

Equitable Defenses against Voidable Marriage Claim (ULE, Unclean, Laches, Estoppel)
Unclean Hands
Laches
Estoppel

Question 8

Common Law Marriages are defined as marriages when the parties

PAC

Answer 8

Common Law Marriages are defined as marriages when the parties (PAC, Public, Agree, Cohabit):
Hold themselves out in public as married
Agree they are married, AND
Cohabit as married

Question 9

What evidence can establish the Intent element of being deemed “common law married”

CPR

Answer 9

Intent to be “common law married” evidence (CPR, Cohabitation, Present, Reputation):
Words in the Present tense are preferred, OR in the absence of such
A court may accept
Cohabitation OR
Reputation as evidence
Note: Cohabitation alone is insufficient and words of intent to marry in the future do not reflect a present intent to be married.

Question 10

Unmarried Cohabitants Equitable Distribution Modes:

QRC

Answer 10

Unmarried Cohabitants Equitable Distribution:
To avoid unjust enrichment, the court will apply one of the following theories to the equitable distribution of property between unmarried cohabitants (QRC, Quantum, Resulting, Constructive):
Resulting Trust
Constructive Trust
Quantum Meruit

Question 11

Terminating a Valid Marriage

ADD

Answer 11

Terminating a Valid Marriage (ADD, Annulment, Divorce, Death):
Annulment
Divorce
Death

Question 12

Exceptions to Marital Property - In most states, all property owned during the marriage is marital property, except property

MS VAGInA

Answer 12

Exceptions to Marital Property - In most states, all property acquired during the marriage is marital property, except property (MS VAGInA, Mortgage, Sold, Valid, Acquired, Gift, Inheritance, Award):
Acquired before marriage
Excluded by a valid agreement between couples
Acquired by gift or inheritance
An award or settlement payment received for any cause of action or claim that accrued prior to marriage, OR,
Prior to separation,
Sold, granted, or conveyed in good faith and for value, OR
To the extent it has been mortgaged or otherwise encumbered in good faith and for value

Question 13

Grounds for Fault Divorce

BIC DADI I

Answer 13

Grounds for Fault Divorce (BIC DADI I, Bigamy, Imprisonment, Cruelty, Desertion, Adultery, Drunkenness, Indignity, Institutionalization)
Adultery
Cruelty
Desertion
Habitual drunkenness
Bigamy
Imprisonment
Indignity
Institutionalization

Question 14

Condonation is the defense to marital fault divorce in which the nonoffending spouse

FKR

Answer 14

Condonation is the defense to marital fault divorce in which the nonoffending spouse (FKR, Forgives, Knows, Resumes):
Knows of the misconduct,
Forgives the misconduct, AND
Resumes relations with the guilty party

Question 15

The Obligation to pay Child Support terminates when

AMISTED

Answer 15

The Obligation to pay Child Support terminates when (AMISTED, Age, Marries, Indefinitely, Service, Terminated, Emancipated, Dies)
The child
Reaches the age of maturity (or completes college in some jurisdictions),
Is Emancipated,
Marries,
Commences active duty military service,
Dies, OR
The parent
Has parental rights terminated, OR
Dies
But, if the child is incapable of self-support due to disability, support may be required indefinitely

Question 16

Equitable Estoppel may require a husband to pay support for wife’s child even though he is not the biological father when

PRE

Answer 16

Equitable Estoppel may require a husband to pay support for wife’s child even though he is not the biological father when (PRE, Provide, Relied, Economic):
The husband represents that he will provide for the child
The wife relied on his representation, AND
The wife suffered an economic detriment as a result of the reliance

Question 17

Uniform Premarital Agreement Act (UPAA) requires that someone who wants to invalidate a marital agreement prove

IDKU

Answer 17

Uniform Premarital Agreement Act (UPAA) requires that someone who wants to invalidate a marital agreement prove (IDKU, Involuntariness, Disclosure, Knowledge, Unconscionable):
Involuntariness; OR
The agreement was unconscionable when executed,
The party did not receive fair and reasonable disclosure, AND
The party did not have adequate knowledge of the other’s assets and obligations

Question 18

Paternity Evidence

MR BAD

Answer 18

Paternity Evidence (MR BAD, Medical, Resemblance, Blood, Acknowledgement, Deceased):
Blood tests
Prior statements by deceased family members
Medical testimony on the probability or improbability of conception
The defendant’s acknowledgement of paternity
Resemblance of the child to defendant (only in some states)

Question 19

Enforceability of Premarital Agreements Requires

FDR VWS

Answer 19

Enforceability of Premarital Agreements Requires (FDR VWS, Fair, Disclosure, Reasonable, Voluntary, Written, Signed):
Full disclosure
Fair and Reasonable
Voluntary
Written
Signed by Party to be Charged

Question 20

Marriage

LSC PROS

Answer 20

Civil Contract that (LSC PROS, License Solemnization Consent Promises Rights Obligations State)
Is made valid by a license AND
Solemnization, WHERE
Parties legally able to consent
Exchange consideration of mutual promises AND
Mutually impose rights and obligations, BUT
Modification or termination requires state intervention

Question 21

marriage licenses will not be issued when

SR ShUI
or alternate acronym (same elements):
BISh II

Answer 21

BISh II
Bigamy Incest Sham Incompetent Intoxicated

marriage licenses will not be issued when (SR ShUI, Someone, Related, Sham, Understanding, Influence):
Bigamy: One of the parties is married to someone else
Incest: The parties are too closely related as defined by statute
Sham: The parties entered into the marriage as a sham, OR
Incompetent: The parties are incapable of understanding the nature of the act
OR
Intoxicated: in some states, when one or both parties are under the influence of alcohol, drugs, or another substance that render the person incapable, or when the party lacked consent due to duress or fraud

Question 22

Common Law Marriages are defined as marriages when the parties

PAC

Answer 22

Common Law Marriages are defined as marriages when the parties (PAC, Public, Agree, Cohabit):
Hold themselves out in public as married
Agree they are married, AND
Cohabit as married

Question 23

Enforceability of Premarital Agreements Requires

FDR VWS

Answer 23

Enforceability of Premarital Agreements Requires (FDR VWS, Fair, Disclosure, Reasonable, Voluntary, Written, Signed):
Full disclosure
Fair and Reasonable
Voluntary
Written
Signed by Party to be Charged

Question 24

Grounds For VOIDABLE Marriage

IF LAID

Answer 24

Voidable Marriage - valid until one spouse seeks to legally void it. Must be a judicial decree to dissolve. Grounds for voidable marriage include (LAID IF, Lack, Age, impotence, duress, intoxication, fraud).
Age - generally an underage person who marries can apply in court to have the marriage voided, as can the minor’s parent/guardian. A non-minor married to a minor cannot apply to void, and a minor cannot apply to void upon reaching age of majority.
Impotence - a marriage is voidable if one party is “naturally and incurably” impotent, unless the other party knew about the condition before marriage
Intoxication - being under the influence at the time of marriage indicates an inability to enter a contract at that time, and this could be used to void marriage. However, living together after the marriage ceremony may weigh against the claim for voiding marriage.
Fraud, Misrepresentation, Duress, Coercion, Force - fraud in present facts, if the parties agree to cease living together immediately, can be used to void a marriage. Examples of sufficient fraud include concealment of defective morals, character, habits, fortune, and temper. False claims of pregnancy or religious beliefs have only been successful grounds for fraud in some states
Lack of intent - when parties engage in a marriage in jest or hilarity, and do not intend to be bound by the terms of the marriage contract. This can be found in “limited purpose” marriages procured, for example, for immigration purposes

Question 25

Fault-Based Divorce Grounds

AI BI CI DD

Answer 25

Fault-Based Divorce - most jurisdictions retain the option for fault-based divorce, but many only allow no-fault divorces. Fault can, however, be used when awarding maintenance (AI BI CI DD, Adultery, Imprisonment, Bigamy, Indignity, Cruelty, Institutionalization, Desertion, Drunkenness)
Adultery - voluntary sexual intercourse with someone other than one’s spouse. Usually proven by circumstantial evidence. Must be shown that a party had the opportunity and inclination to commit adultery, and the facts must provide enough evidence to conclude that the person was guilty of the adulterous act.
Cruelty - most jurisdictions require a demonstration of conduct harmful to plaintiff’s physical or mental health that makes continued cohabitation between the parties unsafe or improper. Conduct must be serious and cannot be based on one isolated incident.
Most jurisdictions require physical abuse for a divorce to be based on cruelty; a minor permit cruelty basis when only emotional or mental abuse is present
Desertion / Abandonment - without cause or consent, one party voluntarily leaves marital home with intent to remain apart permanently. Most jurisdiction require a specific minimum time of abandonment before it is considered “desertion.”
Some jurisdictions will permit a desertion basis for divorce when one spouse forces the other out of home with a fear of violence if the departed spouse returns
Habitual Drunkenness - some states permit habitual drunkenness as a ground for divorce if it is the cause of marital issues. Defendant need not be an alcoholic, but more than an occasional level of intoxication is required
A possible defense against such a divorce action is assumption of risk
Bigamy - grounds for annulment and, when the already married party knows he or she is already married, divorce
Imprisonment - imprisonment for a specified period of time may be grounds for divorce
Indignity - when one spouse exhibits negative behavior toward the other that renders that spouse’s condition intolerable and life burdensome
Indignity can include vulgarity, unmerited reproach, habitual laziness, neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, habitual humiliated treatment, repeated accusations of infidelity, sexually deviant behavior, serious temper tantrums, violence
Indignity is no longer recognized in the majority of states
Institutionalization - grounds for divorce if a spouse’s insanity or serious mental condition results in her being confined to a mental institution for a specified period of time prior to the commencement of the divorce, and there is no reasonable prospect of discharge or rehabilitation

Question 26

Defenses to Fault-Based Divorce

RC RC PC JC I

Answer 26

Defenses to Fault-Based Divorce - apply only to fault-based divorce and must be affirmatively pleaded when asserted (RC RC PC JC I, Recrimination, Connivance, Religion, Condonation, Provocation, Collusion, Justification, Consent, Insanity)
Recrimination - both spouses have committed the same or similar wrongdoing that is being used as grounds for the divorce. Court cannot grant the divorce request in this case, even if it would be a justifiable grounds for divorce if only one spouse had committed the act
Unclean Hands - the plaintiff’s own behavior or acts are questionable. Similar to recrimination.
Both recrimination and unclean hands are most commonly seen in desertion, adultery, or cruelty cases
Connivance - consent to or participation in the marital wrong
Condonation - forgiveness of the spouse for the marital wrong. Requires knowledge of the wrongdoing, forgiveness of the wrongdoing, and then a continuation of marital relations with the guilty party.
Under the common law, once an act was forgiven, it could not become future grounds for divorce.
Collusion - both parties conspired to fabricate grounds for divorce. Uncommon due to the no-fault option for divorce available nowadays.
Provocation - if the misconduct was provoked by the moving party, it is not grounds for divorce
Insanity - insanity is a valid defense when one spouse does not know the difference between right and wrong or lacks the ability to understand that an act is wrongful
Consent - a defense to desertion or adultery
Justification - a defense to desertion; it can be established if the spouse-defendant left home because of the spouse-plaintiff’s own misconduct
Religion - a litigant that challenges a divorce on religious grounds will fail in all jurisdictions

Question 27

Exceptions to Marital Property

MAGA EC

Answer 27

Exceptions to marital property - most states treat certain property as separate rather than marital property, including (MAGA EC, Mortgaged, Acquired, Gift, Award, Excluded, Conveyed):
Property Acquired Before Marriage or acquired in exchange for pre-marital property
Property excluded by the parties’ valid agreement entered into before, during, or after the marriage
Property acquired by gift or inheritance, or acquired in exchange for such property, except when between spouses
Property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of final separation
Property to extent is has been mortgaged or otherwise encumbered in good faith for value before the date of final separation, and
Any award or settlement payment received for any cause of action or claim that accrued before the marriage, regardless of when the payment was received

Question 28

Factors in Distribution of Marital Property

SCALPEL RICH NERVE

Answer 28

Factors in the distribution of marital property (SCALPEL RICH NERVE, Standard, Contributions, Age, Length, Prior, Earning, Liabilities, Retirement, Income, Custody, Health, Needs, Economic, Reduction, Value, Earnings)
Length of marriage
Prior marriages
Age, health, earnings, earning potential, liabilities, and needs of each spouse
Contributions to education
Needs for future acquisitions
Income, medical needs, retirement of both spouses
Contributions to increases in marital property, including homemaking and child-rearing services
Value of separate property
Reduction in valuation in marital property by one spouse
Standard of living
Economic circumstances of each spouse at the time of divorce; and
Custodianship of any minor children
Dissipation of Property - In most states, the fact that a divorce is granted on a fault ground is not a factor in ruling on distribution of property. However, dissipation of property may be a factor, such as when a spouse uses marital property for his sole benefit after the marriage has broken down, such as the purchase of expensive gifts for a paramour

Question 29

NOT Marital Property in Majority Jurisdictions

SoFT LiCC

Answer 29

SoFT LiCC (Social, Future, Termination, Licenses,
Compensatory, Consortium)

Professional Licenses or Degrees - majority of jurisdictions do not treat professional license or degree as a distributable property interest. Courts see these as an acquisition of knowledge rather than a property interest
Earning Capacity & Alimony: However, this may affect the court’s evaluation of a spouse’s earning capacity, which can have an effect on the determination of alimony
Cost-Value Approach: Court may also use its equity power to award a spouse reimbursement for his actual contribution toward the other spouse’s educational and related living expenses.
Compensatory damages for pain, suffering, disability, and loss of injured spouse
Consortium losses for non-injured spouse
Portions of an award attributable to loss of wages or medical expenses AFTER the termination is separate property
Future Interest - a possible future interest in property (i.e. inheritance) is not distributable
Social Security - not subject to equitable distribution.

Question 30

MARITAL PROPERTY in Majority Jurisdictions

LoGo MeRe CaSt

Answer 30

Lost, Goodwill, Medical, Retirement, Calculated, Stock

Retirement or pension benefits - considered marital property and thus subject to equitable distribution
Damages for lost wages, loss of earning capacity, medical expenses
Damages Portions calculated from the time of the accident until the termination of the marriage, and treats that portion as marital property
Goodwill - reputation and clientele of a professional practice is considered marital property in some jurisdictions
Stock Options - any acquired during marriage are marital property even if they will not be exercised until after the marriage

Question 31

Nuances of Marital vs. Separate Property

Answer 31

Treatment of Specific Types of Marital Property
Professional Licenses or Degrees - majority of jurisdictions do not treat professional license or degree as a distributable property interest. Courts see these as an acquisition of knowledge rather than a property interest
Earning Capacity & Alimony: However, this may affect the court’s evaluation of a spouse’s earning capacity, which can have an effect on the determination of alimony
Cost-Value Approach: Court may also use its equity power to award a spouse reimbursement for his actual contribution toward the other spouse’s educational and related living expenses.
Retirement or pension benefits - considered marital property and thus subject to equitable distribution
Personal-Injury Claim Proceeds
Marital Property - in some jurisdictions, if the cause of action accrues between the date of the marriage and the final separation, the proceeds from the settlement or award are marital property. As long as the cause of action accrued during the marriage, the proceeds are marital property - even if the claim is paid after the final separation
Separate and Marital Allocation - other jurisdictions view the nature of the award to determine whether it is separate or marital property and allocate it between nonmarital and marital property
Separate Property
Compensatory damages for pain, suffering, disability, and loss of injured spouse
Consortium losses for non-injured spouse
Portions of an award attributable to loss of wages or medical expenses AFTER the termination is separate property
Split Property
Lost wages, loss of earning capacity, medical expenses
Portions calculated from the time of the accident until the termination of the marriage, and treats that portion as marital property
Goodwill - reputation and clientele of a professional practice is considered marital property in some jurisdictions
Accumulated sick and vacation days. Jurisdictions split on issue of whether vacation and sick days are marital property. Some of the holdings:
Accrued vacation and sick days are marital property subject to division at the time of dissolution
Accrued vacation and sick days are marital property but are subject to distribution when received, as opposed to the time of dissolution
Accrued vacation and sick days are not marital property
Future Interest - a possible future interest in property (i.e. inheritance) is not distributable
Social Security - not subject to equitable distribution.
Post-separation Property
Majority: property acquired by one spouse until a divorce is granted can be marital property
Some States: property acquired by a spouse after permanently separating from the other spouse is separate property
Some States: the line between marital and separate property is drawn on the date that the divorce action is filed
Stock Options - any acquired during marriage are marital property even if they will not be exercised until after the marriage

Question 32

What is the hierarchy of UCCJEA jurisdiction for child custody matters?

HSDE

Answer 32

1. Home State
2. Significant Connection
3. Default Jurisdiction
4. Exclusive-Continuing
   – When Courts Can Decline
5. Temporary Emergency
6. Home State - the state in which the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding, or since birth, if the child is less than six months; OR Was the child’s home state in the past six months, and the child is absent from the state, but one of the parents (or guardians) continues to live in the state
7. Significant Connection - a court can enter or modify an order if

(i) no other state has or accepts home-state jurisdiction,

(ii) the child and at least one parent have a significant connecton with the state, AND

(iii) there is substantial evidence in the state concerning the child’s care, protection, training, and personal relationships

3. Default Jurisdiction (appropriate connections) - if no state has jurisdiction through home-state jurisdiction or substantial-connection jurisdiction, then a court in a state that has appropriate connections to the child has jurisdiction
4. Exclusive-Continuing Jurisdiction - courts that make ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:

i) the parties no longer reside in the state; OR

ii) the child no longer has a signficant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state

– When Courts Can Decline Jurisdiction - if a court has either initial or exclusive-continuing jurisdiction, the court may decline to exercise such jurisdiction if it finds the forum to be inconvenient after considering the following factors:

i) whether domestic violence has occurred and is likely to continue in the future, and which state could best protect the parties and the child;

ii) the length of time the child has resided outside of the jurisdiction;

iii) the distance between the competing jurisdictions;

iv) the parties’ relative financial circumstances

v) any agreement of the parties regarding which state should assume jurisdiction

vi) the nature and location of the evidence required to resolve the pending litigation, including the child’s testimony

vii) the ability of each state’s court to decide the issue expeditiously and the procedures necessary to present the evidence;

AND

viii) the familiarity of each state’s court with the facts and issues in the pending litigation

A court may also decline to exercise its jurisdiction if a party has “engaged in unjustifiable conduct,” such as wrongfully removing a child from another state

5. Temporary Emergency Jurisdiction - a jurisdiction that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection

Question 33

UCCJEA: What is Home State Jurisdiction?

Answer 33

Home-State Jurisdiction is:
i) the child’s home state, where he has lived with a parent or guardian for at least six consecutive months immediately prior to the proceeding, or since birth if less than 6 months old;
OR
ii) the child’s home state in the past six months, and the child is absent from the state, but one of the parents or guardians still lives there

Question 34

UCCJEA: What is Significant Connection Jurisdiction?

Answer 34

A court can enter or modify an order regarding child custody if:
i) no other state has or accepts home-state jurisdiction,
ii) the child and at least one parent have a significant connection with the state;
AND
iii) there is substantial evidence in the state concerning the child’s care, protection, training, and personal relationships

Question 35

UCCJEA: What is Default Jurisdiction (aka more appropriate jurisdiction)?

Answer 35

If no state has jurisdiction through home-state or substantial-connection jurisdiction, then a court in a state that has appropriate connections to the child has jurisdiction

Question 36

UCCJEA: What is Exclusive-Continuing Jurisdiction?

Answer 36

Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:
i) the parties no longer reside in the state;
OR
ii) the child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state

Question 37

UCCJEA: When can courts decline jurisdiction over child custody matters?

Answer 37

If a court has either initial or exclusive-continuing jurisdiction, the court may decline to exercise such jurisdiction if it finds the forum to be inconvenient after considering the following factors:
1. Whether domestic violence has occurred and is likely to continue in the future, and which state could best protect the parties and child
2. The length of time the child has resided outside of the jurisdiction
3. The distance between the competing jurisdictions
4. The parties’ relative financial circumstances
5. Any agreement of the parties regarding which state should assume jurisdiction
6. The nature and location of the evidence required to resolve the pending litigation, including the child’s testimony
7. The ability of each state’s court to decide the issue expeditiously and the procedures necessary to present the evidence;
AND
8. The familiarity of each state’s court with the facts and issues in the pending litigation

Question 38

UCCJEA: What is emergency jurisdiction in child custody cases?

Answer 38

A jurisdiciton that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection.

If a prior custody order is in existence, then the court rendering the emergency order must allow a reasonable time period for the parties to return to the state of original jurisdiction and argue the issues at hand before that court.

If there is no prior custody order, then the emergency order remains in effect until a decision is rendered by the child’s home state.

If no future determination is made, then the emergency order continues in full force and effect.

Question 39

What is the Supreme Court’s stance toward unwed father’s right to object to an adoption?

Answer 39

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

Question 40

What is an adoption registry as it relates to biological fathers?

Answer 40

An adoption registry’s purpose is to determine the identity and location of putative fathers and providing notice in the event of an adoption. A failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption.

Termination of parental rights in this fashion typically applies only to cases in which the father and child never developed a relationship.

Question 41

Under the common law, what was a husband obligated to do regarding support for his wife?

Answer 41

At common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctine. A necessary item was something suitable to the parties’ station in life, including medically necessary care.

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

However, this spousal support obligation (while the couple is still married) is limited by the common law doctrine of nonintervention, which disallows judicial intervention in an intact family. Thus, courts have relied on the nonintervention principle to deny a support petition when the couple is living together.

Question 42

Family Law: what is the extent of the nonintervention doctrine?

Answer 42

The common law doctrine of nonintervention disallows judicial intervention in an intact family. Thus, as long as a couple cohabitates, the court will deny a spousal support petititon based on the nonintervention principle.

Question 43

What is the purpose of the UCCJEA?

Answer 43

The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.

Question 44

What is the standard applied to the rights of a legal parent to have custody of their child over a third party?

Answer 44

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

Question 45

What is the theory of “parent by estoppel” or “de facto parent?”

Answer 45

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

Question 46

When will a court consider (but not necessarily grant) a child’s own preferences/wishes for their custody?

Answer 46

Most courts will consider the wishes of the child if the court can determine that the child has sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court.

“Considering” the child’s wishes is only one of many factors considered, and very unlikely to be the most significant factor.