Family Law

Question 1

What rule applies for gifts made in contemplation of marriage?

Answer 1

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

Question 2

What is the UPAA and how does it work?

Answer 2

Under the Uniform Premarital Agreement Act (“UPAA”), which has been adopted by a majority of states, these agreements can cover 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. Generally, parties can make agreements regarding alimony (also known as spousal support), but a court may find the provision unenforceable if it leaves the disadvantaged spouse a public charge.

Question 3

What is an antenuptial agreement?

Answer 3

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.

Question 4

What are the requirements for a valid prenuptial agreement?

Answer 4

(1) The contract must be in writing and signed (by the party against whom enforcement is sought); (2) The agreement must be entered into voluntarily (meaning without fraud, duress, or overreaching–EX: were they represented by independent counsel?); (3) There must be a full and fair disclosure of the parties’ financial worth (assets) or proof that the party against whom the agreement is being enforced had independent knowledge of the financial worth (NOTE: Under the UPAA, courts only examine this element if the agreement is unconscionable).
- Entry into marriage is sufficient consideration.
- Some courts consider whether the economic provisions are fair and reasonable. Unconscionability is determined at the time the agreement is formed (EX: were both parties economically independent at the time?).

Question 5

What choice of law applies for premarital agreements?

Answer 5

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

Question 6

What result for a premarital agreement if a marriage is determined to be void?

Answer 6

If a marriage is found to be void, a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

Question 7

What are the basic marriage requirements?

Answer 7

(1) License: 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.
(2) Solemnization: Generally, a marriage must be solemnized by a ceremony with an authorized officiant. States vary on who can perform marriage ceremonies.
(3) No Legal Impediment (related; bigamy; consent).

Question 8

What result when there is a failure in license requirements for marriage?

Answer 8

The failure to meet procedural requirements of a license will not invalidate the marriage.

Question 9

What is Common Law Marriage? What are its requirements?

Answer 9

A common law marriage is a marriage without the normal procedural requirements being met. A valid common law marriage requires three things: (1) Consent to marry (includes having capacity and a lack of legal impediments); (2) Cohabitation; (3) The couple holding themselves out publicly as spouses.

Question 10

What is marriage by estoppel?

Answer 10

Marriage by estoppel (or a putative marriage) 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.

Question 11

Upon divorce, what significance does title being in only one of the parties’ names have?

Answer 11

During marriage, each spouse owns and controls the property in their own name, but title is not dispositive in the event of divorce.

Question 12

What obligation(s) of support apply in a marriage?

Answer 12

During marriage, each spouse has an obligation to support the other. 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. Also, principles of agency may require that one spouse be held liable to a third party for the other spouse’s authorized purchases.

Question 13

What spousal abuse orders are available?

Answer 13

Every state has laws protecting the victims of domestic abuse, both within and outside of a marriage. 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.

Question 14

What claims are available against third parties who interfere with a marriage? What are the requirements for such a claim?

Answer 14

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.
Where they exist, these actions require evidence of (1) genuine love and affection between validly married spouses, (2) evidence that the love and affection was alienated or destroyed, and (3) proof that the defendant’s actions caused the loss of love and affection.
- Adultery is not required (EX: in-laws have been sued for alienation).
- Proof of damages is required. Damages are highly subjective, and punitive damages are available in some jurisdictions.

Question 15

What is a criminal conversation claim?

Answer 15

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. For these claims, only (1) the existence of a valid marriage and (2) the act of adultery need to be proven; the spouses may have even been living apart at the time of the act.
- Criminal conversation actions have been abolished in most states.

Question 16

What is Annulment?

Answer 16

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

Question 17

What are the consequence of having a marriage that is void?

Answer 17

A void marriage is invalid, an UTTER NULLITY, because it failed to meet the essential requirements for a legal marriage. No subsequent act can ratify a void marriage. Parties may walk away from a void marriage with NO LEGAL ACTION, but an annulment action is usually brought to determine property distribution and child custody. Any interested party (THIRD PARTY) 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.

Question 18

What result when an impediment causing the marriage to be void is removed?

Answer 18

Depends on the state. 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 that the marriage becomes valid if the parties continue to cohabit. Other states do not allow validation, holding that the marriage remains void and the parties need to marry after the impediment is gone to have a valid marriage.

Question 19

What result for a marriage when there is bigamy?

Answer 19

If either party has a living spouse, the marriage is void.

Question 20

What result for a marriage when there is Consanguinity?

Answer 20

Marriages between parties who are too closely related are prohibited. Most states consider these marriages void.

Question 21

What does it mean for a marriage to be voidable?

Answer 21

A voidable marriage is valid until declared null. However, because of an impediment that existed at the time of the marriage, one of the spouses may bring an action to have the marriage annulled. No collateral attacks are permitted, and sometimes only the party who suffered the impediment can bring the action to annul.
Typically, a voidable marriage occurs when some type of event or condition affects the adequacy of a party’s consent. Unlike void marriages, marriages that are voidable can be remedied (or ratified) by continued habitation after the removal of the impediment, and ratification means the marriage cannot be annulled.

Question 22

What are things that will make a marriage voidable?

Answer 22

• Nonage
• Incurable Physical Impotence
• Capacity
• Duress
• Fraud

Question 23

What is the effect of an Annulment?

Answer 23

Broadly, an annulment means that the marriage is set aside as if it never existed.

Question 24

What are the defenses to an annulment?

Answer 24

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. 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.

Question 25

How can a court have jurisdiction over a divorce proceeding?

Answer 25

To have jurisdiction over a divorce, only one of the parties needs to be domiciled (resident + intent to remain) in the jurisdiction. Most states set a minimum residency period (EX: 90 days) before an action may be filed. - It is possible for multiple states to have jurisdiction over a divorce, and multiple cases could proceed until one court renders a judgment causing the other to lose subject matter jurisdiction. - It's not a first to file rule.

Question 26

What is No-Fault Divorce?

Answer 26

Most states allow spouses to get a divorce without regard to marital fault. Generally, this requires showing one of the following: (1) Both spouses agree that the marriage is irretrievably broken (also referred to as irreconcilable differences) and have lived apart for the requisite period of time. This is a form of bilateral no-fault divorce; OR (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; OR (3) Both spouses agree they are now incompatible and can no longer be married. This is a form of bilateral no-fault divorce (some states).

Question 27

What is Fault-Based Divorce? What are the usual types/grounds?

Answer 27

Divorce based on bad acts of one of the parties. The usual fault-based grounds for divorce are: - Adultery: Generally, the filing spouse presents circumstantial evidence of opportunity and inclination. Corroboration is often required. - Willful desertion (or abandonment): This requires an unjustified departure from the marital home for a specified period with no intent to return (usually have to ask them to return and they refuse). - Extreme physical or mental cruelty. - Voluntary drug addiction or habitual drunkenness commencing after the marriage. - Insanity.

Question 28

What are the defenses to divorce?

Answer 28

No-Fault Divorce: The only defense to a no-fault divorce is to deny the existence of one of the requirements (EX: One spouse may claim that a reconciliation restarted the clock for living separate and apart). Fault Based: Defenses to fault-based divorce are rarely used, but still exist: - Collusion: 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. - Connivance: 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. - Condonation: 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. - Recrimination (unclean hands): 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.

Question 29

What is Legal Separation?

Answer 29

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. - A legal separation can usually be enlarged into an absolute divorce if the parties so request.

Question 30

What are the main systems of dividing property upon divorce?

Answer 30

- Community Property - Equitable division of ALL property - Equitable division of MARITAL property

Question 31

What is the Community Property Approach to property division?

Answer 31

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.

Question 32

What is the Equitable Division of All Property Approach to property division?

Answer 32

The court divides all property owned by either spouse, whether acquired before or after the marriage.

Question 33

What is the Equitable Division of Marital Property Approach to property division?

Answer 33

Each spouse takes their separate property, and the court only divides the property acquired during the marriage. - This is the majority approach.

Question 34

What is the general analysis for property division upon divorce?

Answer 34

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

Question 35

When are property distribution decrees modifiable?

Answer 35

Property distribution decrees are not modifiable.

Question 36

What is separate property? What is included in separate property?

Answer 36

Property owned by only one spouse. Separate property includes: (1) Property owned before marriage; (2) Property acquired by gift or inheritance; (3) Property acquired in exchange for separate property; (4) Income and appreciation of separate property (be aware of Improvement of Separate Property rules); (5) Pain and suffering awards; (6) Personal damages (EX: future medical expenses or future lost wages); and (7) Property acquired after an order of legal separation that includes a final disposition of property. - Generally, in a divorce, each spouse takes their separate property.

Question 37

When divorce is sought, when does the marital estate actually end/terminate?

Answer 37

It's state specific. Some terminate the marital (property) estate when divorce is filed for, and others use the date of separation.

Question 38

What is marital property? What is included in marital property?

Answer 38

Marital property is all other property (besides separate property) acquired during the marriage. Marital property includes: (1) Property acquired during the marriage; (2) Earnings; (3) 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); (4) 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); (5) Reimbursement for medical bills incurred and paid with marital property; and (6) Recovery for damages to marital property. - Marital property is subject to equitable distribution by the court.

Question 39

What is Commingling?

Answer 39

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. A court will attempt to trace the funds (but this can be a problem). - Separate property may become marital property through this.

Question 40

What is Transmutation?

Answer 40

The separate property is treated in a way that evidences an intention for the property to be marital property (EX: placing separate property in the names of both spouses). - Separate property may become marital property through this.

Question 41

What result when separate property is improved with the property or effort of a spouse?

Answer 41

When separate property is improved by the use of marital funds or the effort of a (either) spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the non-owning spouse reimbursement for the value added to the separate property. - An increase in value due to market factors would remain separate property.

Question 42

What result when property is acquired before marriage but is paid for after marriage?

Answer 42

Courts are split on the treatment of property acquired before marriage but paid for after marriage. - 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.

Question 43

Upon dissolution of marriage, what property rules apply to pensions?

Answer 43

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.

Question 44

Is property division upon divorce considered a taxable event?

Answer 44

NO.

Question 45

Are professional licenses marital property subject to a division upon divorce?

Answer 45

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.

Question 46

How is Equitable Division handled upon the division of a marital estate?

Answer 46

Once the court identifies and values the marital property, the court will make an equitable–not necessarily equal–division. Remember, the trial court is given a great deal of discretion, and the court’s division of the property is not subject to modification once the divorce is final. The factors considered in dividing the property usually include: - The age, education, background, and earning capabilities of both parties - The DURATION of the marriage, and whether there were any prior marriages (if short, courts tend to put the parties back into the position that they were in before the marriage) - 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--this usually just affects alimony though, not division of property)

Question 47

What level of discretion do family law courts have?

Answer 47

LOTS!

Question 48

What are the types of alimony?

Answer 48

- Permanent Periodic Spousal Support - Lump Sum Support - Rehabilitative Spousal Support - Reimbursement Spousal Support

Question 49

What is Permanent Periodic Spousal Support?

Answer 49

Permanent support that is paid regularly (EX: 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.

Question 50

What is Lump Sum Support?

Answer 50

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. not terminated with death. - Modification: None. This is treated like a contract right and is binding on payor’s estate.

Question 51

What is Rehabilitative Spousal Support?

Answer 51

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.

Question 52

What is Reimbursement Spousal Support?

Answer 52

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. - Duration: For specified period of time; can be payable in installments or in a lump sum. Enforceable against paying spouse's estate. - 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. - 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.

Question 53

What factors are considered for Alimony awards?

Answer 53

The court has great discretion in awarding as much spousal support as necessary for the maintenance of the requesting spouse. Factors considered include: - 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) NOTE: More broadly, the two primary considerations are the needs of the claimant and the ability of the other spouse to pay.

Question 54

When is modification of spousal support appropriate?

Answer 54

Only periodic spousal support (that is, permanent or rehabilitative alimony) may be modified. Periodic spousal support may be modified if there is a SUBSTANTIAL AND CONTINUING CHANGE IN CIRCUMSTANCES regarding the needs of the recipient spouse or the ability of the payor spouse to pay. Legal obligations to a new spouse or children (but not stepchildren) may be a sufficient change in circumstances if 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.

Question 55

When is termination of spousal support appropriate?

Answer 55

- Recipient remarries - Either spouse dies (except for lump sum) - Most jxs: Cohabitation with another

Question 56

Is alimony a taxable event?

Answer 56

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.

Question 57

What are marital agreements?

Answer 57

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

Question 58

What are separation agreements?

Answer 58

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. 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). In a separation agreement, parties CAN WAIVE ALIMONY AND/OR EQUITABLE PROPERTY DIVISION and parties CAN AGREE ON CUSTODY AND CHILD SUPPORT (but the 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.

Question 59

What rule apply to the modification of separation agreements?

Answer 59

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.

Question 60

What rules apply to contracts between cohabitants?

Answer 60

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 (partnership or constructive trust) to award property between unmarried cohabitants, including former spouses who divorced and then resumed living together.

Question 61

What are the general rules for determining child support payment amounts?

Answer 61

Both parents share equally a duty to support their children. In general, parents must pay for their children based on (1) their ability to pay and (2) the monetary needs of the child.

Question 62

What are child support guidelines?

Answer 62

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.

Question 63

What relation do child support and visitation rights have?

Answer 63

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

Question 64

What is the duration of child support?

Answer 64

The duty to support a child ceases upon: - The child reaching the age of majority (usually 18) - Death of a child - Emancipation of child (removal of the disabilities of minority--the child is considered an adult) - Termination of parental rights Child support may be indefinite for a severely disabled child. 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). Courts will enforce agreements to pay for college, but will not extend child support into college, and some have held that statutes requiring a parent to pay for college are unconstitutional.

Question 65

What set of rules are used for determining jurisdiction over child support orders?

Answer 65

The Uniform Interstate Family Support Act (“UIFSA”), which has been adopted by all 50 states, provides methods of enforcement and guidelines for modifications of support orders issued in another state.

Question 66

Where is original jurisdiction for a child support order proper?

Answer 66

Original jurisdiction to enter a child support order is proper where the first petition under UIFSA is filed. Another state can exercise jurisdiction only if: (1) The second petition is filed before the time to answer the first has expired; (2) The petitioner objected to jurisdiction in the first action; and (3) The second state is the child’s home state.

Question 67

What jurisdictional rules apply to the enforcement of child support orders?

Answer 67

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 through either direct enforcement or registration.

Question 68

What is Direct Enforcement of a child support order?

Answer 68

Direct enforcement allows the obligee to mail the order to the obligor’s out-of-state employer (EX: garnishing wages), automatically triggering withholding unless there is a timely objection.

Question 69

What is Registration as a matter of enforcement of child support orders?

Answer 69

UIFSA provides for registration of a support order with another state. The 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 (full) enforcement procedures as if the order had been issued in that state.

Question 70

What court has the jurisdiction to modify a child support order?

Answer 70

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.

Question 71

What rules apply to the modification of child support orders?

Answer 71

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

Question 72

Can past/due installments of child support be retroactively modified?

Answer 72

No. Past due installments of support cannot be retroactively modified.

Question 73

Are child support payments taxable events?

Answer 73

Child support payments are not taxable events.

Question 74

How are child support awards enforced?

Answer 74

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.

Question 75

What are the purposes of the UCCJEA?

Answer 75

The purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) are to avoid jurisdictional disputes regarding child custody and visitation, promote interstate cooperation, and facilitate the interstate enforcement of custody and visitation orders.

Question 76

When does a court have jurisdiction to enter or modify a child custody or visitation order?

Answer 76

A court has jurisdiction to initially enter or modify a child custody or visitation order if the state: (1) Is the child’s home state, OR (2) 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. - A child’s home state is 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. - FALLBACK: 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: (1) The child and at least one parent (or person acting as a parent) have a significant connection with the state, and (2) Substantial evidence concerning the child is available in the state.

Question 77

What jurisdictional rules apply to modification of a child support order?

Answer 77

The issuing court has continuing exclusive jurisdiction. Another state can only exercise jurisdiction if: (1) No child or parent (or persons acting as parents) continues to reside in the issuing state, or (2) 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). - A court has jurisdiction to enter or modify a child custody or visitation order if no other state has jurisdiction under another test or if another state with jurisdiction defers.

Question 78

When may/should a court decline jurisdiction in a custody proceeding?

Answer 78

A court that has jurisdiction under the normal 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. Additionally, a court may decline to exercise jurisdiction if the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct (EX: a parent wrongfully took the child from another state).

Question 79

What jurisdiction rules apply in a child custody case when there is an emergency?

Answer 79

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.

Question 80

What are the types of child custody?

Answer 80

Custody of a minor can mean legal custody (the right to make major decisions affecting the child’s life) or physical custody (actual possession and control of the child). Joint custody can mean either joint legal custody, joint physical custody, or both. Sole custody grants all the powers to one parent (though the other will usually have visitation rights).

Question 81

How are child custody and visitation issues analyzed?

Answer 81

The standard applied in awarding custody and visitation is the best interest of the child. Factors considered in making that determination usually include (use TOTC): - 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 The trial court is vested with a great deal of discretion to determine custody and visitation. In most states, preference cannot be shown to one parent because of gender or financial ability. If, after considering all of the relevant factors, the court must decide between two qualified parents, custody will often go to the parent who has been the primary caregiver (that is, the parent most involved in the child’s day-to-day life).

Question 82

What is Joint Custody?

Answer 82

There is joint decision-making authority (legal custody) and joint physical custody (living with the child). It's a 50/50 split and is encouraged in most jurisdictions. However, courts will not award joint custody if the parents are openly hostile or unable to communicate.

Question 83

What is Sole Custody?

Answer 83

Only one parent has powers concerning the child. Sole custody can be awarded to one parent if there is strong evidence that demonstrates it is in the best interest of the child. If the court awards sole custody, the other parent will almost always be entitled to 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.

Question 84

In disputes of custody between a parent and non-parent, what is the analysis?

Answer 84

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.

Question 85

What is visitation?

Answer 85

The right to visit the child. When sole physical custody is given to one parent, the other parent is almost always entitled to reasonable visitation (they're mutually exclusive).

Question 86

What modification rules apply to custody decrees?

Answer 86

Custody orders are always modifiable. The burden of proof is on the party seeking the change. Generally, custody awards will be modified only if there has been a SUBSTANTIAL AND CONTINUING CHANGE OF 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 BEST INTEREST OF THE CHILD is the overriding concern.

Question 87

What is a relocation statute?

Answer 87

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.

Question 88

How are child custody enforcement issues handled?

Answer 88

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. 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.

Question 89

What standard applies to distinctions between marital and non-marital children?

Answer 89

A nonmarital child (sometimes called an illegitimate child or a child born out of wedlock) is one born to an unmarried woman. Distinctions between marital and nonmarital children are subject to intermediate scrutiny (that is, they must be substantially related to an important governmental interest).

Question 90

What presumptions apply to parentage?

Answer 90

- 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. - Most states refuse to terminate an established parent-child relationship, 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.

Question 91

How can parentage presumptions be rebutted?

Answer 91

Rebutting the presumption of parentage generally requires clear and convincing evidence. In that case, paternity will be disestablished and any child support obligation eliminated. - Even if the dad can show that he's not the biological father, many states prohibit the disestablishment of paternity if it's in the BIOC (this usually has to do with the passage of time).

Question 92

What methods are available for parents to establish maternity and paternity?

Answer 92

Under most state statutes, every child is the lawful child of his mother. The child is the lawful child of an unwed father only if: - 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. Unwed fathers are protected by the Due Process Clause and can have rights to custody if they demonstrate parental responsibility. This includes acknowledgment of paternity as well as supervision, education, protection, care, and support of the child.

Question 93

What must a father do to have due process rights in establishing paternity of a newborn?

Answer 93

To have due process rights regarding a newborn, the unwed father must be willing to assume custody of the child and not merely block adoption by others. Other considerations include 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.

Question 94

Who may bring a paternity suit? What result if paternity is successfully established?

Answer 94

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.

Question 95

How long are statutes of limitations for paternity suits?

Answer 95

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

Question 96

What evidence is required to establish paternity?

Answer 96

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.

Question 97

What are the procedural requirements for involuntary termination of parental rights?

Answer 97

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.

Question 98

What are the grounds for involuntary termination of parentage?

Answer 98

Grounds for involuntary termination include: - 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)

Question 99

What are the state's purposes/goals in terminating parentage?

Answer 99

States always want to reunite parents and children, so the ultimate purpose is 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. And if that’s not possible, then placing the child for adoption to a third person.

Question 100

What are the types of adoption?

Answer 100

- In agency adoption, licensed adoption agencies act as intermediaries in the adoption. - In private adoption, private persons act as intermediaries to arrange adoption.

Question 101

What are the requirements for adoption?

Answer 101

(1) Termination of Natural Parents’ Rights: 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 (for example, natural parent has deserted the child). A nonconsenting parent is entitled to notice of the hearing and an opportunity to be heard. (2) Creation of New Parental Rights: Often, prospective adoptees over a certain age (usually 12 or 14) must also consent to their own adoption (consent of adoptee). 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. - Most states prohibit the payment of money to the natural parents other than medical costs related to the pregnancy.

Question 102

What is an exception to the full severance of rights and obligations when parental rights are severed?

Answer 102

In some states, an adoptive child can still inherit from the biological parent.

Question 103

What exception applies to the jurisdictional requirements for property division upon divorce?

Answer 103

While a court generally cannot award alimony or adjudicate property division in an ex parte divorce, rights as to marital property in the court's jurisdiction may be adjudicated.

Question 104

NOTE TO SELF

Answer 104

GO BACK AND COVER LAST MODULE'S STUFF IF YOU HAVE TIME