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Family Law Flashcards

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1
Q

BREACH OF PROMISE TO MARRY

A
  • Actions for breach of promise to marry are rare today, and most states have abolished the claim.
  • In states that retain the action, it sounds like a contract claim, but it provides tort damages including actual damages (for example, money already spent on the wedding) and damages for loss of reputation, mental anguish, and injury to health and punitive damages may be available.
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2
Q

GIFTS IN CONTEMPLATION OF MARRIAGE

A

If the marriage does not take place, gifts conditioned on the marriage (for example, an engagement ring) must be returned.

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3
Q

ANTENUPTIAL (PREMARITAL) AGREEMENTS

A
  • Premarital contracts (also called antenuptial agreements) are valid contracts that address the rights of the parties upon divorce or death.
  • The marriage is sufficient consideration to support a premarital contract.
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4
Q

Under the Uniform Premarital Agreement Act (“UPAA”), which has been adopted by a majority of states, these agreements can cover ____

A

the disposition of property in the event of death or divorce; the making of a will, trust, or other arrangement to carry out the provisions of the agreement; the choice of law governing construction of the agreement; and any other matter not in violation of public policy or criminal statute.

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5
Q

Generally under the UPAA, parties can make agreements regarding alimony (also known as spousal support), but a court may _____

A

find the provision unenforceable if it leaves the disadvantaged spouse a public charge.

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6
Q

Watch for child custody and support provisions in pre-marital agreements. These provisions ____

A

never bind the court.
->In some states, custody and child support provisions are void as against public policy, while in others they are subject to judicial review.

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7
Q

For a premarital contract to be enforceable, most courts require the following:

A
  • The contract must be in writing and signed
  • The agreement must be entered into voluntarily, meaning without fraud, duress, or overreaching
  • There must be a full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets
    –> Under the UPAA, courts only examine this element if the agreement is unconscionable
  • Some courts consider whether the economic provisions are fair and reasonable
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8
Q

Although not required, if both parties are represented by independent counsel, courts are ____

A

far less likely to find overreaching and refuse to enforce the contract.

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9
Q

If a marriage is found to be void, a premarital agreement is enforceable ____

A

only to the extent necessary to avoid an inequitable result.

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10
Q

Premarital agreements often contain valid choice of law provisions. If the agreement at issue does not contain a choice of law provision, then its enforceability is governed by ____

A

the law of the state where it was executed or the state with the most significant relationship to the parties.

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11
Q

Marriage Requirements

A
  • License
    –> Note: The failure to meet procedural requirements of a license will not invalidate the marriage.
  • Ceremony With Authorized Officiant
  • No Legal Impediments to Marriage
  • Capacity to Consent
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12
Q

Marriage Requirements: License

A
  • Most states require that persons intending to marry obtain a license.
  • To do so, some states require that each party obtain a certificate from a physician stating that the party is free from particular communicable diseases.
  • Most states also require a waiting period between getting the license and having the ceremony (the period varies by state often, 48 or 72 hours)
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13
Q

Generally, a marriage must be solemnized by ___

A

a ceremony with an authorized officiant.
-> States vary on who can perform marriage ceremonies.

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14
Q

No Legal Impediments to Marriage -> Generally, to get married, the parties must:

A
  • Not be too closely related
    –> For example, cannot marry ascendants, descendents, siblings (including half-sibilings), aunt/uncle, niece/nephew
    –> States vary on whether first cousins can marry
  • Not have a prior undissolved marriage to a living spouse (bigamy).
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15
Q

Marriage requirements: Capacity to Consent

A
  • At the time of the ceremony, the parties must have the mental ability to consent.
  • The parties must understand their actions and voluntarily agree to them.
    –> Thus, someone under the influence of alcohol
    or drugs may lack the mental capacity to enter into a valid marriage.
  • Because the parties must intend to enter into marriage, a marriage may also be subject to attack if one party is induced to marry because of fraud, duress, coercion, or force
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16
Q

Because the parties must intend to enter into marriage, a marriage may also be subject to attack if _____

A

one party is induced to marry because of fraud, duress, coercion, or force.

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17
Q

Consent to marriage: Age is also a consideration. Both parties must be of the age _____.

A 16- or 17-year-old usually needs ___ to marry, and younger parties require ____.

A

of majority, usually 18

parental consent; judicial consent

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18
Q

A valid common law marriage requires three things:

A
  • Consent to marry, which includes having capacity and a lack of legal impediments
  • Cohabitation
  • The couple holding themselves out publicly as spouses
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19
Q

For a CL marriage no ____ is required. While abolished in most states if a valid common law marriage is formed under the laws of one state, it
will be ____

A

license or ceremony; regarded as a valid marriage in other states (even states that have abolished common law marriages).

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20
Q

MARRIAGE BY ESTOPPEL OR PUTATIVE MARRIAGE

A
  • This is an equitable remedy that some states use to protect an innocent party who acted in good faith when entering into an invalid marriage.
  • In some states, the putative spouse can acquire all of the rights of a legal spouse.
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21
Q

During marriage, each spouse owns and controls the property in their own name, but _____

A

title is not dispositive in the event of divorce.

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22
Q

Tenancy by the Entirety

A
  • In many states, if spouses take title to real estate jointly, a tenancy by the entirety is presumptively created.
  • A tenancy by the entirety includes a right of survivorship, and one spouse cannot convey or encumber the property without the consent of the other spouse.
  • Upon dissolution of the marriage, tenants by the entirety become tenants in common.
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23
Q

Marital Property

A
  • Most property acquired during marriage is marital property, no matter how titled.
  • Upon dissolution of the marriage, the court has broad discretion regarding the equitable distribution of this property.
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24
Q

OBLIGATION TO SUPPORT

A

During marriage, each spouse has an obligation to support the other.

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25
Q

Doctrine of necessaries

A

The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.

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26
Q

Also, principles of ____ may require that one spouse be held liable to a third party for the other spouse’s authorized purchases.

A

agency

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27
Q

With regard to suits between spouses in general, many states have abolished interspousal immunity, retaining exceptions only for ____

A

highly private activity (for example, marital privileges and consensual
acts) and simple domestic negligence.

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28
Q

SPOUSAL ABUSE ORDERS

A
  • All 50 states allow a battered spouse to seek some form of protective order against a violent spouse.
  • Initially, protective orders can be granted ex parte (that is, without notice to the other spouse) and can last from one month to several years depending on the jurisdiction
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29
Q

Causes of action for TORTIOUS INTERFERENCE WITH MARRIAGE (high level)

A
  • Alienation of Affection
  • Criminal Conversation
  • Negligent Interference with Consortium or
    Services
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30
Q

Alienation of Affection Action - Description

A
  • If a third party diverts the affection of one spouse so that the other is deprived of a marital relationship, the deprived spouse may have a cause of action for alienation of affection against the third person.
  • These actions have been abolished in many states.
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31
Q

Alienation of Affection Action - Requirements

A
  • Where they exist, these actions require evidence of genuine love and affection between validly married spouses, evidence that the love and affection was alienated or destroyed, and proof that the defendant’s actions caused the loss of love and affection.
    –> Adultery is not required (for example, in-laws have been sued for alienation).
  • Proof of damages is required
    –> Damages are highly subjective, and punitive damages are available in some jurisdictions.
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32
Q

Criminal Conversation - Description

A

When one spouse has sexual relations with a third person, the other spouse may have a cause of action against the third person for criminal conversation.
- Criminal conversation actions have been abolished in most states.

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33
Q

Criminal Conversation - Requirements

A

For these claims, only the existence of a valid
marriage and the act of adultery need to be proven; the spouses may have even been living apart at the time of the act.

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34
Q

Negligent Interference with Consortium or Services

A

In most states, either spouse may maintain an action for loss of the other’s consortium due to injuries from a defendant’s negligence.

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35
Q

FAMILY PRIVACY

A
  • Generally, the internal affairs of a family cannot be regulated by the courts.
  • Under the vast majority of circumstances, families have the right to privacy in their homes and freedom from governmental interference in their domestic affairs.
  • Parents have authority to make decisions about most matters concerning the upbringing of their
    child, but certain state interests (for example, prevention of abuse and neglect, compulsory education) take precedence over parental autonomy.
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36
Q

The United States Supreme Court has recognized a constitutional right of privacy as implicit in the concept of ____ and protected by the ____ Clause.

Because privacy is a fundamental right, any regulation of it is invalid unless ____

A

“liberty”; Due Process

it is necessary to protect a compelling government interest.

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37
Q

The following rights fall within the constitutionally protected right to privacy:

A
  • The right to marry
  • The right to procreate
  • The right to use or sell contraceptives
  • The right of related persons to live together
  • The right of parents to educate their children outside the public schools
  • The right of parents to decide issues concerning the care, custody, and control of their children
    *There is no longer a fundamental right to an abortion under the federal Constitution
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38
Q

ANNULMENT

A

An annulment is a backward-looking doctrine that declares a marriage invalid because an impediment that existed at the time of the marriage makes it legally void or voidable.

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39
Q

Annulment: Effect

A

Once an annulment decree has been entered, the parties are treated as though they were never married.

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40
Q

A void marriage is ___

A

invalid, an utter nullity, because it failed to meet
the essential requirements for a legal marriage. No subsequent act can ratify a void marriage.

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41
Q

Parties may walk away from a void marriage with no legal action, but ____

A

an annulment action is usually brought to determine property distribution and child custody.

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42
Q

____ may seek annulment of a void marriage, and the marriage is subject to collateral attack (in actions other than annulment actions) even after the death of one of the parties.

A

Any interested party

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43
Q

If the impediment causing the marriage to be void is
removed (for example, a spouse from a prior valid marriage dies), the Uniform Marriage and Divorce Act (“UMDA”) and some state statutes provide ____.

Other states do not, holding that _____

A

that the marriage becomes valid if the parties continue to cohabit

the marriage remains void and the parties need to marry after the impedment is gone to have a valid marriage.

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44
Q

Key examples of void marriages are those that involve:

A
  • Bigamy or Polygamy
  • Consanguinity
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45
Q

If either party has a ____, the marriage is void.

A

living spouse

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46
Q

When a question includes a prior marriage that was not successfully ended before the marriage in question, remember that the subsequent spouse has two possible arguments: (1) the strong presumption that the latest marriage is valid, and (2) if the prior marriage is later terminated by divorce,
annulment, or death, ____ validates the second marriage under the UMDA and similar statutes.

A

continued cohabitation

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47
Q

States generally presume that ____, and a party must overcome the presumption by strong evidence that the prior marriage subsists.

A

the most recent marriage is valid

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48
Q

Consanguinity

A
  • Marriages between parties who are too closely related (for example, direct lineal ascendants or descendants, or aunt, uncle, brother, sister, niece, or nephew) are prohibited.
  • Most states consider these marriages void.
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49
Q

A voidable marriage is ___. However, because
of an impediment that existed at the time of the marriage, ____ may bring an action to have the marriage annulled.

A

valid until declared null; one of the spouses (no
collateral attacks are permitted, and sometimes only the party who suffered the impediment can bring the action to annul).

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50
Q

Typically, a voidable marriage occurs when _____

A

some type of event or condition affects the adequacy of a party’s consent.

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51
Q

Unlike void marriages, marriages that are voidable can be ____ after the removal of the impediment, and this means the marriage cannot be annulled.

A

remedied (or ratified) by continued habitation

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52
Q

Issues that can make a marriage voidable include:

A
  • Nonage
  • Incurable Physical Impotence
  • Lack of Capacity
  • Duress
  • Fraud
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53
Q

Nonage

A
  • A spouse who was under the statutory age and married without getting the required consent can have the marriage invalidated.
  • These marriages are usually voidable.
  • The underage spouse may ratify the marriage by continuing in the relationship after reaching the statutory age.
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54
Q

Incurable Physical Impotence

A
  • The inability to have normal sexual relations with a spouse is a ground for annulment.
  • These marriages are voidable and thus subject to ratification.
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55
Q

Keep in mind that impotence (as a basis for a voidable marriage) is not the inability to have children. But, if the ability to have children was _____

A

misrepresented, then the marriage may be annulled based on fraud

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56
Q

Lack of Capacity (re: annulment)

A

A lack of capacity sufficient to annul a marriage may include a lack of understanding, whether due to mental infirmity or the influence of drugs or alcohol.

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57
Q

Fraud can affect consent for an annulment purposes if ____

A

it involves an essential element of marriage (for example, misrepresentation as to ability or willingness to engage in sexual relations or bear children)

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58
Q

Defenses to annulment - void marriages

A
  • The only way to defend an action to annul a void marriage is to deny the existence of the defect.
  • If the impediment has been removed and the parties continue the relationship, the marriage becomes valid in states following the UMDA
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59
Q

Defenses to annulment - voidable marriages

A
  • Ratification is the most common defense in an action to annul a voidable marriage.
  • Other equitable defenses (for example, laches or estoppel) may also be used, but they are usually subsumed in the ratification defense
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60
Q

Children of Annulled Marriage

A
  • The children of an annulled marriage are marital children.
  • Support and custody issues are handled in the same way as in a divorce action.
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61
Q

Annulment: Spousal Support

A
  • Generally spousal support is not awarded in annulment actions, but it is available in some jurisdictions.
  • Also, if spousal support from a previous marriage has been terminated by remarriage, it will not be reinstated following an annulment of that marriage.
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62
Q

Annulment: Division of Property

A

Courts attempt to place the parties in their pre-marriage position, and usually give each party that property to which they have legal or equitable title.

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63
Q

Annulment: Jurisdiction

A
  • In states without statutes on the subject, annulment actions are heard by the equity courts.
  • Among states, the state of domicile of either of
    the parties has jurisdiction to hear the annulment action.
    –> Many states also provide that the place of the celebration of the marriage also has
    jurisdiction.
  • Annulment decrees rendered with proper jurisdiction are entitled to full faith and credit.
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64
Q

Divorce: Jurisdiction

A
  • To have jurisdiction over a divorce, only one of the parties needs to be domiciled (that is, resident with intent to remain) in the jurisdiction.
  • Most states set a minimum residency period (for example, 90 days) before an action may be filed.
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65
Q

It is possible for multiple states to have jurisdiction over a divorce, and multiple cases could proceed until ____

A

one court renders a judgment causing the other to lose subject matter jurisdiction.

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66
Q

The divorce itself is viewed as an ____ action. Thus, he filing spouse’s ____may be the basis for granting the divorce; personal jurisdiction over the defendant spouse is not needed.

A

in rem; domicile alone

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67
Q

For a divorce in rem proceeding the defendant is entitled to _____, but certain types of constructive service (such as publication) may be permitted.

A

due process rights of notice and opportunity to be heard

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68
Q

If the filing spouse wants any remedies beyond simply a divorce decree (such as alimony or property division), then the court generally needs _____

A

personal jurisdiction over the defendant spouse

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69
Q

Recognition of Divorce Decree: Full Faith and Credit

A
  • As long as one of the parties was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states.
  • Provisions of the decree relating to property rights, spousal support, child support, and other financial issues are given full faith and credit only if the court had personal jurisdiction over the defendant.
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70
Q

Recognition of Divorce Decree: Comity

A

Courts are likely to recognize foreign divorce decrees if one party was domiciled in the country rendering the judgment.

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71
Q

Divorce: Mediation

A
  • In some states, the court may refer the parties to a divorce action to court-approved mediation.
  • A mediator is a neutral party who helps
    the divorcing parties work through issues such as child support, custody, and visitation.
  • Any agreement reached must be based on
    the decision of the parties and not the decision of the mediator, who may not advocate for either party or coerce a party to make a decision.
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72
Q

Divorce Mediator Duties:

A

Mediators must:
- Explain the mediation process
- Explain the right to independent counsel to the parties
- Ensure that the parties have enough information for informed decisionmaking
- Remain impartial and disclose any potential bias
- Control for any power imbalance between the parties

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73
Q

Mediator ____ may result in the court setting aside the agreement. All of the mediation proceedings and records are ____

A

misconduct; confidential.

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74
Q

A ____ terminates the marriage relationship.

A

decree of absolute divorce

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75
Q

Categories of grounds for divorce

A

No fault and fault grounds

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76
Q

Most states allow spouses to get a divorce without regard to marital fault. Generally, this requires showing one of the following:

A

1 - Both spouses agree that the marriage is irretrievably broken (also referred to as irreconcilable differences).
–> This is a form of bilateral no-fault divorce.
2 - The spouses have been living apart for a specified and continuous period of time.
–> This type of no-fault divorce can be bilateral or unilateral.
–> The relevant time period can range from
90 days to 18 months—the period is often shorter if both parties agree to divorce (that is, the divorce is bilateral) and longer for a unilateral no-fault divorce—and the parties are still married during that time.
3 - Both spouses agree they are now incompatible and can no longer be married.
–> This is a form of bilateral no-fault divorce.

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77
Q

The usual fault-based grounds for divorce are:

A

WAIVE
- Willful desertion (or abandonment): This requires an unjustified departure from the marital home for a specified period with no intent to return
- Adultery: Generally, the filing spouse presents circumstantial evidence of opportunity and inclination. Corroboration is often required
- Insanity
- Voluntary drug addiction or habitual drunkenness commencing after the marriage
- Extreme physical or mental cruelty

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78
Q

DEFENSES TO DIVORCE: No-Fault Divorce

A
  • The only defense to a no-fault divorce is to deny the existence of one of the above grounds.
  • One spouse may claim that a reconciliation restarted the clock for living separate and apart.
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79
Q

Defenses to fault-based divorce are rarely used, but still exist (high level):

A
  • Collusion
  • Connivance
  • Condonation
  • Recrimination
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80
Q

Recrimination

A

Recrimination is a defense that arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted.
-> This defense is rarely used

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81
Q

Collusion

A

Collusion is an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense.
-> In some jurisdictions,
collusion will prevent the granting of a divorce.

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82
Q

Connivance

A

Connivance is willing consent to the other spouse’s misconduct.
-> This is usually limited to adultery cases, and it has been abolished in many states.

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83
Q

Condonation

A
  • Condonation is the forgiveness of marital offenses with full knowledge of the wrongs.
  • Resumption of marital relations after the forgiveness is the key element of this defense.
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84
Q

LEGAL SEPARATION

A
  • An order of legal separation (sometimes called a “divorce from bed and board”) does not terminate the marriage, but the parties can have all of their rights regarding property, spousal support, custody, and child support adjudicated in this proceeding.
  • If the court permanently divides marital property, then any after acquired property is separate property
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85
Q

A legal separation can usually be enlarged into an absolute divorce if ____

A

the parties so request.

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86
Q

The approaches to division of property upon divorce are:

A

1 - Community property: All property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property
2 - Equitable division of all property: The court divides all property owned by either spouse, whether acquired before or after the marriage
3. Equitable division of marital property (most common and the rules that follow relate to): Each spouse takes their separate property, and the court only divides the property acquired during the marriage

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87
Q

Typically, there is a two-step process in property division:

A
  1. Classification: Determine what is marital property and what is separate property
  2. Division: Make an equitable division of the marital estate no matter how the property is titled
88
Q

Equitable division does not necessarily mean ____.

A

equal

89
Q

Property distribution decrees are ____

A

not modifiable.

90
Q

Generally, in a divorce, each spouse takes their ____. Marital property is ____.

A

separate property; all other property acquired during the marriage

91
Q

Separate property includes:

A
  • Property owned before marriage
  • Property acquired by gift or inheritance
  • Property acquired in exchange for separate property
  • Income and appreciation of separate property
  • Pain and suffering awards
  • Personal damages (for example, future medical expenses or future lost wages)
  • Property acquired after an order of legal separation that includes a final disposition of property
92
Q

Date of the end of the marital estate

A

Some jurisdictions use the date of separation as the end of the marital estate, and others use the date of filing for divorce.

93
Q

Marital property includes:

A
  • Property acquired during the marriage
  • Earnings
  • Employment benefits, pensions, and stock options
    –> The majority rule is that employment benefits, stock options, and pension rights (see below) earned during marriage are marital property even if they will not be exercised or vested until after the divorce.
  • Lost wages
    –> Many states hold that if a cause of action for lost wages due to personal injury accrues between the date of marriage and final separation, then the proceeds from the settlement or award are marital assets subject to distribution.
  • Reimbursement for medical bills incurred and paid with marital property
  • Recovery for damages to marital property
94
Q

Marital property is subject to ____

A

equitable distribution by the court.

95
Q

Separate property may become marital property through either:

A
  • Commingling: The separate property is inextricably intertwined with marital property or with the separate property of the other spouse to the extent that it can no longer be traced
  • Transmutation: The separate property is treated in a way that evidences an intention for the property to be marital property (for example, placing separate property in the names of both spouses
96
Q

When separate property is improved by the use of marital funds or the effort of a spouse, courts generally hold that _____

A

the property remains separate property, but most jurisdictions grant the marital estate or the nonowning spouse reimbursement for the value added to the separate property.
-> An increase in value due to market factors would remain separate property

97
Q

Approaches to the treatment of property acquired before marriage but paid for after marriage.

A
  • The majority view seems to be that property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property.
  • Other states focus on the inception of title and allow a reimbursement remedy.
98
Q

Marital Property Rules: Pensions

A
  • The portion of a pension earned during a marriage is marital property subject to distribution.
  • Courts use different formulas to calculate the share of the pension that was earned by the party during the marriage and the amount will be subject to division.
  • Some courts will give the non-earning spouse other funds from the marital estate to offset the amount of the pension plan.
99
Q

Marital Property Rules: Professional License or Degree

A
  • Most jurisdictions that have considered the matter have held that a professional license or educational degree is not distributable property.
  • However, to avoid unfair results, some jurisdictions use alimony to compensate supporting spouses for their contribution during the other spouse’s education or training.
100
Q

Tax Consequences of Property Division

A

Property division is not considered a taxable event.

101
Q

For equitable division the trial court is _____, and the court’s division of the property is not subject to modification once the divorce is final

A

given a great deal of discretion

102
Q

Factors considered in dividing the property usually include:

A
  • The age, education, background, and earning capabilities of both parties
  • The duration of the marriage, and whether there were any prior marriages
  • The standard of living during the marriage
  • The present incomes of both parties, their vocational skills, and employability
  • The source of the money used to purchase the property
  • The health of the parties
  • The assets, debts, and liabilities of the parties
  • The needs of the parties
  • The child custody provisions
  • Whether the distribution is in addition to, or in lieu of, alimony
  • Each party’s opportunity to acquire future income and assets
  • Each party’s contribution to the acquisition or enhancement of the existing marital assets
  • Each party’s contribution as a homemaker to the family unit
  • Economic fault (that is, whether either party has dissipated marital property)
103
Q

What isn’t a consideration for an equitable division of property

A

Marital fault is generally not a consideration (but it can be in some states).

104
Q

Courts can divide the property ____ (that is, actually dividing the assets) or by ____ (that is, awarding assets to one spouse and money to the other).

A

in kind; contribution

105
Q

ALIMONY: GENERAL PRINCIPLES

A
  • Alimony (also known as spousal support or maintenance) is paid to an economically dependent spouse.
  • It may be awarded while the parties are still married, during the divorce proceeding, or as part of the divorce decree.
  • The trial court is vested with great discretion in awarding alimony.
106
Q

TYPES OF ALIMONY (high level)

A
  1. Permanent Periodic Spousal Support
  2. Lump Sum
  3. Rehabilitative Spousal Support
  4. Reimbursement Spousal Support
107
Q

There are four types of alimony, and courts can award _____. Overall, the trend over the years is to award ____ than in the past because most families have two income earners or two people who are able to earn income even if one might not be working at the time.

A

more than on type in a single award; less money now

108
Q

Permanent Periodic Spousal Support (Description, Duration, Modification)

A
  • Permanent periodic spousal support is paid regularly (for example, monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining.
  • Duration: Indefinite.
  • Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.
109
Q

Lump Sum (Description, Duration, Modification)

A
  • A lump sum payment is a fixed amount payable either all at once or via a series of payments. This is often the present value of permanent periodic support.
  • Duration: For specified time period; can be payable in installments or in a lump sum.
  • Modification: None. This is treated like a contract right and is binding on payor’s estate.
110
Q

Rehabilitative Spousal Support (Description, Duration, Modification)

A
  • Rehabilitative spousal support consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting. It can be ordered along with permanent periodic or lump
    sum alimony.
  • Duration: For specified time period, unless modified by court.
  • Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.
111
Q

Reimbursement Spousal Support (Description, Duration, Modification)

A
  • Reimbursement spousal support is occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree. In many states, it can be ordered along with permanent periodic or lump sum alimony.
    –> Note: This is a fixed sum award based on the amount of the supporting spouse’s contribution, not the value of the professional license or degree.
  • Duration: For specified period of time; can be payable in installments or in a lump sum.
  • Modification: None. It is treated as a contract right and can be awarded even if the supporting spouse is not otherwise eligible for spousal support.
112
Q

On your exam, to determine the type of support, look carefully at the language used in the facts. Lump sum support is specified as a _____.
Periodic or rehabilitative support is set out in ____

A

total amount (for example, “$30,000” or “$30,000, payable in $500 monthly installments”)

periodic payments with no grand total (for example, “$500 per month” or even “$500 permonth for 60 months”).

113
Q

The court has ____ in awarding as much spousal support as necessary for the maintenance of the requesting spouse. Factors considered include:

A

great discretion

  • The standard of living established during the marriage
  • The duration of the marriage
  • The age and physical and emotional condition of the parties
  • The financial resources of the parties
  • The contribution of each party to the marriage
  • The time needed for the party seeking support to obtain the training necessary to find appropriate employment
  • The ability of the payor spouse to meet their needs while paying spousal support
  • Marital fault (considered in most states for alimony but generally not considered for property division)
114
Q

More broadly, the two primary considerations for alimony are _____

A

the needs of the claimant and the ability of the other spouse to pay.

115
Q

MODIFICATION OF SPOUSAL SUPPORT

A
  • Only periodic spousal support (that is, permanent or rehabilitative alimony) may be modified.
  • Periodic spousal support may be modified if there is a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay.
116
Q

Note that a _____ by the payor spouse is not sufficient to have spousal support reduced.

A

self-induced reduction in income

117
Q

Legal obligations to a new spouse or children (but not stepchildren) may be a sufficient change in circumstances if _____.

A

the change is unanticipated
–> If a spouse intended to remarry upon divorce, the change is not unanticipated and will not constitute a sufficient change in circumstances.

118
Q

TERMINATION OF SPOUSAL SUPPORT

A
  • Periodic spousal support terminates upon the remarriage of the recipient spouse or the death of either spouse.
  • Most jurisdictions would also terminate spousal support if the recipient spouse begins cohabiting with someone in a marriage-like relationship.

-> Lump sum and reimbursement support is not modifiable and survives the death of either spouse.

119
Q

TAX CONSEQUENCES OF SPOUSAL SUPPORT

A
  • Under current law, spousal support is not a taxable event.
  • For divorce or separation instruments executed before 2019, spousal support payments are deductible by the payor and are income to the recipient unless the instrument is modified to follow the current rule.
120
Q

MARITAL AGREEMENTS

A
  • A marital agreement is an agreement between spouses who intend to remain married.
  • A marital agreement usually alters or confirms marital rights or obligations during the marriage or at separation, dissolution, or death.
  • Most often, these agreements concern property rights.
121
Q

SEPARATION AGREEMENTS

A

A separation agreement is an agreement entered into after marriage under which the parties agree to live apart and resolve economic issues (that is, spousal support, property division, and child support) and custody rights.

122
Q

MARITAL AGREEMENTS: Enforceability

A

Most states treat premarital and marital agreements under the same set of principles and requirements

123
Q

SEPARATION AGREEMENTS: Enforceability

A
  • To be enforceable, the agreement must be voluntary, there must have been a full and fair disclosure by both parties, and there must be consideration.
  • Consideration for the agreement is found in the mutual promises of the parties.
124
Q

In a separation agreement, parties can waive ____ and parties can agree on custody and child support, but ______

A

alimony or property division; court is not bound by the parties’ contract concerning children (child custody and support provisions will be enforced by the court only if they are in the child’s best interest)

125
Q

SEPARATION AGREEMENTS: Modification

A
  • If the divorce decree states that the separation agreement is merged into the decree, or if the specific provisions of the agreement are repeated in the decree, the whole agreement assumes the status of a court judgment, is enforceable as such (that is, subject to contempt), and can be modified by the court.
  • If the agreement is not merged in this way, it retains its separate character as a contract and is enforceable as such.
  • Child support and custody provisions can always be modified if it is in the best interest of the child.
126
Q

CONTRACTS BETWEEN UNMARRIED COHABITANTS

A
  • Express contracts between unmarried cohabitants regarding earnings and property rights are generally valid and will be enforced.
  • These contracts are unenforceable if sex is the only consideration.
  • Some courts have used implied contracts to award property between unmarried cohabitants, including former spouses who divorced and then resumed living together.
127
Q

Both parents share equally a duty to ____. In general, parents must pay for their children based on their ____

A

support their children; ability to pay and the needs of the child.

128
Q

Child Support Guidelines

A
  • The amount of the award of support to the custodial parent is usually arrived at by reference to child support guidelines, which contain charts that consider the number of children and the parents’ incomes.
  • Courts can deviate from the guidelines, including to include health insurance for the children and to cover extraordinary medical expenses.
129
Q

Child Support and Visitation

A
  • The child support obligation is independent of the noncustodial parent’s visitation rights.
  • Visitation cannot be withheld because of failure to pay child support
130
Q

Support of Parent

A

In some states, children have a duty to support their elderly parents.

131
Q

The duty to support a child ceases upon:

A
  • The child reaching the age of majority (usually 18)
    –> Some courts require child support payments up to a certain level of education (for example, until the child graduates high school even if the child is over 18).
  • Death of child
  • Emancipation of child
    –> Emancipation is the removal of the disabilities of minority. After emancipation, the child is considered an adult. Most states consider married minors to be emancipated.
  • Termination of parental rights
132
Q

Child support may be indefinite for _____

A

a severely disabled child.

133
Q

Courts will enforce agreements to pay for college, but will not extend ____

A

child support into college, and some have held that statutes requiring a parent to pay for college are unconstitutional.

134
Q

The _____, which has been adopted by all 50 states, provides methods of enforcement and guidelines for modifications of support orders issued in another state.

A

Uniform Interstate Family Support Act (“UIFSA”)

135
Q

CHILD SUPPORT ORDERS: Original Jurisdiction Rules

A

A. Original jurisdiction to enter a child support order is proper where the first petition under UIFSA is filed.

B. Another state can exercise jurisdiction only if:
- The second petition is filed before the time to answer the first has expired
- The petitioner objected to jurisdiction in the first action
- The second state is the child’s home state

136
Q

CHILD SUPPORT ORDERS: Jurisdiction to Enforce Rules

A

The court that initially issued the order has jurisdiction to enforce, and UIFSA helps parties enforce orders in other states.

Another state can enforce a child support order in two ways:
a. Direct enforcement: allows the obligee to mail the order to the obligor’s out-of-state employer, automatically triggering withholding unless there is a timely objection.
b. Registration of a support order: issuing state sends the order to the state where the obligor resides. It is registered and filed as a foreign judgment, and then the order is subject to the same enforcement procedures as if the order had been issued in that state.

137
Q

CHILD SUPPORT ORDERS: Jurisdiction to Modify

A
  • Generally, the court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it.
  • The role of a court in another state is only to enforce the original order, unless no party resides in the issuing state or the parties consent to jurisdiction elsewhere.
138
Q

MODIFICATION OF CHILD SUPPORT AWARDS

A

Child support is modifiable based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay, such as changes in employment, the growth of the child, inflation, income, retirement, or disabling illness.
-> A voluntary reduction in income will not be a ground for modification.

139
Q

Under the federal Full Faith and Credit for Child Support Orders Act, full faith and credit must be given to the ____ orders of a court in another state.

A

child support

140
Q

Past due installments of child support cannot be _____ modified.

A

retroactively

141
Q

TAX CONSEQUENCES OF CHILD SUPPORT ORDERS

A

Child support payments are not taxable events.

142
Q

ENFORCEMENT OF AWARDS

A
  • Child support awards (and alimony) may be enforced by holding the nonpaying party in contempt of court (usually civil contempt, but may be criminal if failure to pay is willful).
  • Other sanctions include interception of the noncomplying parent’s tax refund, forfeiture of a range of licenses (for example, a driver’s license, law license, or hunting license), seizure of real estate, attachment of wages, and an order to pay attorneys’ fees.
143
Q

The purposes of the ____ are to avoid jurisdictional disputes regarding child custody and visitation, promote interstate cooperation, and facilitate the interstate enforcement of custody and visitation orders.

A

Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)

144
Q

Initial Custody Determination: Primary Test

A

Home state jurisdiction: A court has jurisdiction to initially enter or modify a child custody or visitation order if the state:
- Is the child’s home state, or
- Was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (that is, a guardian) continues to live in the state

145
Q

A child’s home state is ____

A

the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding (or the state where the child has lived since birth if the child is younger than six months old), disregarding temporary absences

146
Q

When “Home State” Rule Does Not Apply

A

A court has jurisdiction to enter or modify a child custody or visitation order if no other state has or accepts home state jurisdiction and:
- The child and at least one parent (or person acting as a parent) have a significant connection with the state, and
- Substantial evidence concerning the child is available in the state

147
Q

In addition, a court has jurisdiction to enter or modify a child custody or visitation order if _____

A

no other state has jurisdiction under another test
or if another state with jurisdiction defers.

148
Q

Custody: Modification of Existing Decree

A

A. The issuing court has continuing exclusive jurisdiction.

B. Another state can only exercise jurisdiction if:
- No child or parent (or persons acting as parents) continues to reside in the issuing state, or
- The child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state (only the issuing state can decide if this second test is met)

149
Q

Custody: Declining Jurisdiction

A
  • A court that has jurisdiction under one of the above tests may decline to exercise its jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum (forum non convenes)
  • Additionally, a court may decline to exercise jurisdiction if the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct (for example, a parent wrongfully took the child from another state).
150
Q

Custody: Temporary Emergency Jurisdiction

A

A court may exercise temporary emergency jurisdiction if the child has been abandoned or it is necessary in an emergency to protect the child because the child, sibling, or parent is subjected to or threatened with abuse.

151
Q

Custody: Enforcement of Another State’s Order

A
  • A custody or visitation order of one state can be registered in another state and enforced in that state like one of its own orders.
  • In appropriate circumstances, a court can order the respondent to appear in person and award immediate physical possession of the child to the petitioner.
  • The court may issue a warrant to take physical
    possession of the child if the child is imminently likely to suffer serious physical harm or be removed from the state.
  • A prosecutor, law enforcement officer, or other public official may take any lawful action
    to locate a child, obtain the return of a child, or enforce a custody or visitation order at a court’s request or if there is a reasonable belief that the person holding the child has violated a criminal statute.
152
Q

What does custody include?

A
  • Custody of a minor can mean legal custody (the right to make major decisions affecting the child’s life) or physical custody (actual posses-
    sion and control of the child).
  • Joint custody can mean either joint legal custody, joint physical custody, or both.
153
Q

The standard applied in awarding custody and visitation is ____

A

the best interest of the child (BOIC)

154
Q

Factors considered in making the BIOC determination usually include:

A
  • The wishes of the parents (Note: Parents have a constitutionally-protected right to care, custody, and control of their children.)
  • Child’s preference (Preferences of children under the age of 8 are generally not considered, but preferences of children over the age of 12 are given great weight. Questioning of the child typically
    occurs in the judge’s chambers.)
  • Child’s relationship with parents, siblings, and others involved with parents
  • Child’s adjustment to home, school, and community
  • Parties’ mental and physical health
  • Who has been the child’s primary caregiver
155
Q

Rules for considering Child’s preference in custody determination

A
  • Preferences of children under the age of 8 are generally not considered, but preferences of children over the age of 12 are given great weight (in between is case-by-case)
  • Questioning of the child typically occurs in the judge’s chambers
156
Q

The trial court is vested with a ____ to determine custody and visitation. In most states, preference cannot be shown to one parent because of _____.

If, after considering all of the relevant factors, the court must decide between two qualified parents, custody will often go to the parent who ____

A

great deal of discretion; gender or financial ability

has been the primary caregiver (that is, the parent most involved in the child’s day-to-day life)

157
Q

Custody: Counsel for the Child

A

Courts can appoint counsel or a guardian ad litem (“GAL”) for the child in a custody dispute, but this is typically only done if the counsel or GAL can provide substantial assistance in determining what is in the child’s best interest.

158
Q

Interference with the Parent-Child Relationship

A
  • Tortious Injury: A child may not recover against one who tortiously injures their parent, but a parent may recover when a child is tortiously injured.
  • Interference with Custody: A parent whose lawful custody is interfered with may recover tort damages in actions for abduction or enticement. In addition, parties who conspire to conceal information about a newborn child’s birth or location may be held liable for their participation in a civil conspiracy.
159
Q

TYPES OF CUSTODY

A
  • Joint Custody (There are many iterations of joint custody, including joint physical custody and joint legal custody)
  • Sole Custody
  • Custody to a Non-parent
160
Q

When determining whether joint custody is appropriate, courts often consider:

A
  • The fitness of both parents
  • Whether the parents agree on joint custody
  • The parents’ ability to communicate and cooperate concerning the child’s well-being
  • The child’s preference
  • The level of involvement of both parents in the child’s life
  • The geographical proximity of the two homes
  • The similarity or dissimilarity of the homes
  • The effect of the award on the child’s psychological development
  • The parents’ ability to physically carry out the joint custody order
161
Q

In most jurisdictions, joint custody is encouraged and will be awarded if ____. However, courts will not award joint custody if _____

A

the parties agree; the parents are openly hostile or unable to communicate.

162
Q

Sole custody can be awarded to one parent if _____

A

there is strong evidence that demonstrates it is in the best interest of the child.

163
Q

If the court awards sole custody, the other parent will almost always be entitled to ____.

A

reasonable visitation with the child
-> It’s very hard to deny a parent any visitation unless some type of harm to the child will result.

164
Q

Custody to a Nonparent

A
  • In disputes between parents and third parties, the decision does not rest solely on the child’s best interest. –> A natural parent has a constitutional right to raise their child. Absent voluntary relinquishment, the parent is entitled to custody unless the nonparent can show that it will result in harm to the child or that the parent is unfit.

However, based on special circumstances (such as abandonment, neglect, or abuse), a court may find that the biological parent has lost the right to rear the child, and the nonparent should get custody.

165
Q

A court may limit a parent’s right to visitation (for example, by ordering supervised visitation) if ___

A

that parent engages in conduct that might injure the child (but absolute denial of visitation is rare).

166
Q

The right to parental visitation is independent of the child support obligation, and visitation cannot be withheld because of ____

A

arrearages.

167
Q

____ is the primary remedy for violation of visitation orders.

Consistent and willful denial of visitation rights could result in ____

A

Contempt

a modification of custody.

168
Q

Nonparental Visitation (General Rules)

A
  • Nearly all states have statutes entitling some third parties (for example, grandparents) to visitation.
  • These are typically applied when there are extraordinary circumstances, such as where the child’s parents have divorced or died.
  • Typically, a nonparent may seek visitation if it is in the best interest of the child, and the determinative factor is often the prior relationship between the child and the third party.
169
Q

Nonparental Visitation (Nonparental visitation)

A

The United States Supreme Court has stated that if a
parent is fit, their wishes on nonparent visitation are constitutionally protected and must be given “special weight.”
-> A judge may not override a fit parent’s decision regarding third-party visitation merely because it would be in the best interest of the child.

170
Q

MODIFICATION OF CUSTODY DECREES

A
  • Custody orders are always modifiable.
  • Generally, custody awards will be modified only if there has been a substantial and material change in circumstances affecting the child’s well-being.
    -> Some states require a certain amount of time to
    elapse between the prior custody order and a request for modification, unless the existing arrangement is harmful to the child.
  • As always, the child’s best interest is the overriding concern.
171
Q

MODIFICATION OF CUSTODY DECREES - BOP

A

The burden of proof is on the party seeking the change.

172
Q

Custody: RELOCATION

A
  • Relocation statutes address a change in the child’s primary residence.
  • Statutes generally require notice to the other parent and a court hearing to determine whether relocation is permitted.
  • Most courts allow the custodial parent to move out of state with the child if relocation is in the child’s best interest, the move is motivated by a benefit to the family, and it is not intended to thwart the relationship with the other parent.
173
Q

Custody: ENFORCEMENT Generally

A
  • Child custody awards may be enforced by contempt proceedings, state habeas corpus proceedings, and suits in equity.
  • Further, under the UCCJEA, out-of-state decrees will be enforced if a certified copy has been filed with the clerk of court; this won’t remove the original state’s continuing exclusive jurisdiction, but it will allow enforcement of the order in the state.
174
Q

Custody: ENFORCEMENT - Parental Kidnapping Prevention Act

A
  • Under the federal Parental Kidnapping Prevention Act (“PKPA”), full faith and credit must be given to another state’s custody or visitation determination if the Act’s jurisdictional requirements are met.
  • If the child is removed from the original state, the custodial parent must file the custody order in the new jurisdiction and seek enforcement or obtain a writ of habeas corpus from that jurisdiction.
  • The jurisdictional standards in the PKPA are substantially the same as those in the UCCJEA, except that emergency jurisdiction is not temporary under the PKPA.
175
Q

Custody: ENFORCEMENT - Hague Convention on Child Abduction

A

The International Parental Kidnapping Prevention Act (“IPKCA”) and the Hague Convention on Child Abduction provide relief when a child is wrongfully removed to a foreign country.

176
Q

NONMARITAL CHILDREN

A

A nonmarital child (sometimes called an illegitimate child or a child born out of wedlock) is one born to an unmarried woman.

177
Q

Constitutional Limits on Discrimination based on legitimacy

A

Distinctions between marital and non-marital children are subject to intermediate scrutiny (that is, they must be substantially related to an important governmental interest).

178
Q

The Supreme Court will not uphold discriminatory legislation intended to punish the offspring of illicit relationships. Thus, the Court has held that:

A
  • Nonmarital children cannot be precluded from inheriting from their fathers
  • Statutes of limitations on paternity suits are discriminatory
  • Nonmarital children have the same right to child support as marital children
  • Government benefits may not be denied to nonmarital children merely because they are born out of wedlock
  • Nonmarital children may not be precluded from suing for a parent’s wrongful death
179
Q

In contrast, because of the plenary power over immigration, the Court upheld a federal law granting immigration preferences to ____

A

marital children.

180
Q

Parentage Actions Generally

A
  • Parentage actions can be brought to establish a biological relationship and settle issues of paternity or maternity, usually the former.
  • Once there’s a finding of parentage, that person has rights to custody and visitation in addition to a duty to pay support.
181
Q

Presumption of Parentage

A
  • Typically, the mother’s husband is presumed to be the father of a child if the child is born during the marriage or within 300 days of the marriage’s termination (This is true even if the marriage is void or voidable)
182
Q

Paternity Disestablishment

A
  • Most states refuse to terminate an established parent-child elationship, especially after the passage of some time, even if the husband can prove that he is not the child’s biological father.
  • Some states have made it possible for men, even fathers of marital children, to establish nonpaternity -> Rebutting the presumption of parentage
    generally requires clear and convincing evidence. In that case, paternity will be disestablished and any child support obligation eliminated.
183
Q

Under most state statutes, every child is the lawful child of his ____. The child is the lawful child of an unwed ___ only if:

A

mother; father

  • The parents married after the child’s birth
  • The father holds the child out as his biological child
  • The father consents to be named on the birth certificate
  • The father formally acknowledges paternity or- There is a court order establishing paternity
184
Q

Unwed fathers are protected by the Due Process Clause and can have rights to custody if they demonstrate ___. This includes:

A

parental responsibility;

acknowledgment of paternity as well as supervision,
education, protection, care, and support of the child.

185
Q

To have due process rights regarding a newborn, the unwed father must be willing to ____. Other considerations include ____

A

assume custody of the child and not merely block adoption by others

publicly acknowledging paternity, paying pregnancy and birth-related expenses, taking steps to establish legal responsibility for the child, and showing a commitment to the child.

186
Q

An unwed father may be precluded from ____ he did not legally recognize.

A

tort recovery for the death of a child

187
Q

Paternity Suits: Generally

A
  • A paternity suit seeking support may be brought by the child, the mother, or the state (if the child is receiving support from the state).
  • Once paternity is established, the duty of support attaches, and the father may assert rights to visitation and custody.
  • A paternity action can also be used to allow the child to inherit.
188
Q

Paternity Suits: SOL

A

Since the statute is tolled during the child’s minority, the limitations period will be at least 18 years.

189
Q

Paternity Suits: Evidence

A
  • States vary on the level of proof required to establish paternity.
    –> Some states require “clear and convincing evidence,” but a “preponderance of the evidence” standard has also been upheld.
  • To prove paternity today, most states use blood and tissue sampling because it’s attainable, but testimonial and other medical evidence has been deemed sufficient.
    –> If genetic tests show that the defendant cannot be the father, the case must be dismissed.
190
Q

Records of paternity actions are usually kept ____

A

sealed.

191
Q

Citizenship of Child Born Abroad to Unmarried
American Parent (mother/father)

A
  • When an unmarried American woman gives birth abroad, her child may be granted United States citizenship without formally establishing her parentage.
  • However, when the child of an unmarried American man is born abroad, the father must take specific steps to establish his paternity in order to make his child a United States citizen.
192
Q

Termination of Parental Rights Generally (types and processes)

A

A - Voluntary: Parents may voluntarily relinquish all rights to their children (often done in preparation for adoption).
B - Involuntary: Because the right to raise one’s children is a fundamental constitutional right, parents must have due process before their rights can be terminated involuntarily.
–> This includes the right to counsel (including
the right to appointment of counsel if indigent, should fundamental fairness so require).
–> Grounds for termination must be proved by clear and convincing evidence.

193
Q

Grounds for involuntary termination of parental rights include:

A
  • Infliction of serious physical harm on the child, including sexual abuse
  • Abandonment
  • Neglect or deprivation (failure to meet minimum standards of care)
  • Failure to provide support without justifiable cause
  • Mental illness or retardation so severe as to make the parent incapable of caring for the child
  • Parental unfitness (conduct by the parent that seriously harms the child physically or psychologically)
194
Q

Involuntary termination of parental rights: States always want to reunite parents and children, so the ultimate purpose is ____.

And if that’s not possible, then ____.

A

not to remove the child permanently (The state’s purpose is to find a suitable home for the child while the parent gets back on track).

placing the child for adoption to a third person

195
Q

types of Adoption

A
  • In agency adoption, licensed adoption agencies act as intermediaries in the adoption.
  • In private adoption, private persons act as intermediaries to arrange adoption.
196
Q

Requirements for Adoption (high level)

A
  1. Termination of Natural Parents’ Rights
  2. Creation of New Parental Rights
197
Q

Requirements for Adoption: Termination of Natural Parents’ Rights

A
  • The consent of the child’s natural parents is generally required.
  • Parental consent is not necessary if parental rights have been terminated (see above).
  • The parental consent requirement may be waived
    if the court concludes it is being unreasonably withheld against the best interest of the child
198
Q

Re: Adoption = A nonconsenting parent is entitled to _____

A

notice of the hearing and an opportunity to be heard.

199
Q

Termination of Natural Parents’ Rights for adoption: Consent of Unmarried Fathers

A
  • In deciding whether an unwed father can veto a prospective adoption, the court considers the level of the father’s involvement with the child, such as whether he lived with and cared for the child, visited the child regularly, admitted paternity, or paid child support.
  • As to a newborn infant, a father’s right to a
    continued parental relationship depends on his manifestations of parental responsibility.
  • A father of a nonmarital child who has never attempted to establish a legal or personal relationship with that child has no right to notice prior to the adoption of the child by others.
200
Q

Steps needed for Creation of New Parental Rights

A
  • Consent of Adoption: Often, prospective adoptees over a certain age (usually 12 or 14) must also consent to their own adoption.
  • Home Studies, Investigation, and Court Approval: Most states require that there be an investigation of the suitability of the proposed adoption, and approval of the adoption by the court.
    –> This may be waived for relative adoptions.
201
Q

For creating new parental rights most states prohibit ____

A

the payment of money to the natural parents other than medical costs related to the pregnancy.

202
Q

Records of adoption cases are _____

A

sealed, and in most states, information contained in them is not available to the public or the adoptees.

203
Q

Consequences of Adoption

A
  • Upon adoption, a new birth certificate is issued, listing the adoptive parents as the child’s parents.
  • The adoption results in the termination of the biological parents’ rights and obligations, and creates new rights and obligations in the adoptive parents.
    –> In some states, an adoptive child can still inherit from the biological parent.
204
Q

Adoption: Venue

A
  • Most states require that the person seeking to adopt be a resident of the county where the petition is filed.
  • Some states permit filing in the county where the child resides or where the office of the child placement agency is located.
205
Q

Violation of Adoption Statute

A

Violation of adoption statutes is often punishable as a crime.

206
Q

When only the intended parents are involved in a procedure such as artificial insemination, in vitro fertilization, or embryo transplantation, there is no problem; they are clearly the resulting child’s parents. The _____ was drafted to deal with consequences when third parties are involved.

A

Uniform Parentage Act (“UPA”)
-> Many states have not yet adopted the Act; therefore, it is best to discuss both general legal principles and the UPA if a question does not specify the law of the particular jurisdiction.

207
Q

Under the UPA, the parent-child relationship is established between an individual and a child by:

A
  • Having given birth to the child (except in cases governed by a surrogacy agreement)
  • Adjudication of a woman’s maternity
  • Adoption by the mother
  • Adjudication confirming mother of child born to a gestational surrogate
  • A husband who is married to a woman who has a child through assisted conception is the child’s father unless he proves his lack of consent within two years after birth
208
Q

Gamete Donors

A

Egg or sperm donors (that is, donors who produce an egg or sperm used for assisted reproduction without the intent to be a parent) are not parents of a child conceived through assisted conception.

209
Q

Some jurisdictions have allowed the sperm donor to have rights if ____

A

agreed in writing by the donor and the woman

210
Q

Posthumous Conception

A

If a gamete provider consented in writing that their gametes could be used after death to conceive a child, that child can be considered the child of a deceased parent.
-> This means the child has full inheritance rights and social security benefits, at least in some states.

211
Q

Some states have failed to enact legislation on surrogacy because they characterize the agreement as ____

A

the sale of a child.

212
Q

Types of surrogacy

A
  • Genetic surrogacy (often referred to as “traditional” surrogacy), where a woman who is not an intended parent agrees to become pregnant through assisted reproduction using her own gametes,
    or
  • Gestational surrogacy, where a woman who is not an intended parent agrees to become pregnant through assisted reproduction using gametes that are not her own.
213
Q

Most states only allow ____ surrogacy.

A

gestational

214
Q

To be valid, a gestational carrier agreement must:

A
  • Be in writing and approved by the court
  • Be accompanied by a child welfare agency home study unless waived
  • Be voluntary
  • Make provision for healthcare costs until birth
  • For constitutional reasons, not limit the rights of the surrogate to make healthcare decisions
  • Provide reasonable consideration if the surrogate is promised consideration. (This varies greatly among states.)
215
Q

____ of intended parents does not invalidate the surrogacy agreement.

A

Subsequent marriage or divorce

216
Q

Termination of Surrogacy Agreement

A

The agreement can be terminated by any of the parties at any time before embryo transfer.

217
Q

Result of Surrogacy Agreement

A
  • If the agreement is unenforceable, the gestational mother is considered the mother of the child, regardless of biology.
  • If the agreement is approved, intended parents must file notice of birth and court will issue an order of parentage

Bar Prep (16 decks)

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