Family Law Flashcards
Common Law Marriage
Common-law marriages are valid when the parties:
(i) agree that they are married;
(ii) **cohabit **as married; and
(iii) **hold themselves out **in public as married.
UCCJEA Custody SMJ
UCCJEA, a court has subject matter jurisdiction to preside over** custody hearings and either enter or modify custody** or visitation orders if the state is:
(i) the child’s home state (the state in which the child has lived with a parent or guardian for **at least six consecutive months prior **to the custody proceeding, or since birth, if the child is less than six months old), or
(ii) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
Right of Unwed Father to Object to Adoption
The U.S. Supreme Court has held that the** right of an unwed father to object to an adoption cannot be denied** if the father has **demonstrated that he is committed to fulfilling the responsibilities of parenthood. **
On the other hand, some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father’s failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption.
==> However, termination in this fashion typically applies only to cases in which the father and child never developed a relationship.
Prenuptual Agreement
A premarital agreement is enforceable if there has been
(1) ** full disclosure [of other parties assets & obligations]**, (2) the agreement is fair and reasonable [as opposed to unconscionable], and it is (3) **voluntary. **
In addition, the agreement **must be in writing and signed by the party **to be charged.
Any clauses included in a premarital agreement that relate to** child custody and support are unenforceable**.
Under the Uniform Premarital Agreement Act (UPAA), **the party defending against enforcement of a premarital agreement must prove it invalid by clear and convincing evidence. **
To determine whether an agreement is voluntary, courts consider factors such as** time pressure, the parties’ previous business experience, and the ** opportunity to be represented by independent counsel. However, a party’s insistence on the agreement as a condition to marriage is not considered duress.
Divvying up property
Separate property is not subject to division at divorce, whereas marital property is. **
==> A minority of states subject all property owned by either spouse to equitable distribution (i.e., the “hotchpot” approach**)
In most states, **property acquired during marriage is considered marital property. **
However, property acquired by gift or inheritance during the marriage is the individual’s separate property.
But the appreciation in separate property can be marital property if it is attributable to either spouse’s labor during the marriage.
Title is irrelevant
Marital Property Exceptions List
i) ** Property acquired before the marriage or property acquired in exchange for property acquired before the marriage;**
ii) Property **excluded by the parties’ valid agreement **entered into before, during, or after the marriage;
iii) Property **acquired by gift or inheritance, or property acquired in exchange for such property, **except when it is between spouses;
iv) ** Property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of final separation;**
v) Property to the extent that it has been mortgaged or otherwise encumbered in good faith for value before the date of final separation; and
vi) ** Any award or settlement payment received for any cause of action or claim that accrued before the marriage, **regardless of when the payment was received.
BITC Factors
Courts make custody determinations depending on what arrangement would be in the best interest of the child. Court’s presume that a join-custody arrangement is aligned with the Best Interest of the Child (BITC).
- Between parents—the ** primary-caretaker **during the marriage, separation, and prior to the divorce is a factor.
==> the primary-caretaker consideration not only encompasses the day-to-day care of the child, but also includes the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past. -
Child’s preference—taken into account if the child is of sufficient maturity
3.** Siblings—generally not separated** from each other
Parents’ sexual conduct—a factor only if the parent’s conduct has or will have a negative effect on the child - ** Domestic violence—almost always a factor.** Some states have created rebuttable presumptions in favor of the nonabusive spouse
==> ** Race—cannot be used** as factors in determining custody
==> Religion cannot b used UNLESS harming child
==> Third-party rights: Parents presumptively entitled to custody of their children in cases against third parties/ Exceptions—the** legal parent is unfit or parental custody would be detrimental **to the child
good language ==> Key factors – as relevant to this fact pattern – include:
Guardian ad litem—a court-appointed attorney to advocate for the child’s preferences and act on her behalf
Necessaries Doctrine
At common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctrine. A necessary item was something suitable to the parties’ station in life, including medically necessary care.
**Most jurisdictions have modified the necessaries doctrine to apply equally to both spouses, and often refer to them as “family expense” statutes. **
This spousal support obligation is limited by the common law doctrine of nonintervention, which disallows judicial intervention in an intact family.
==> When it comes to disputes of intact families, courts typically treat such matters as private ones that should be resolved within the home. Unless and until the parties separate, courts will refuse to decide such disputes.
==> Courts have relied on the nonintervention principle to deny a support petition when the couple is living together.
Vaccines
A parent has a right to raise his child as he sees fit. A fit parent has a fundamental right to the care, custody, and control of his children.
However, a parent’s authority over his child is not absolute. Laws are in place to protect children from harm, whether or not that harm is intentional.
**If a parent’s decisions will jeopardize the health or safety of the child or have the potential for significant social burdens then a parent’s power is limited. **
**States are permitted, under their police powers, to require vaccinations and to refuse admission to public school for students who fail to receive required vaccinations. ** Such statutes are not subject to constitutional challenge based on a violation of parental rights.
UCCJEA SMJ over Custody Proceedings
UCCJEA adopted by most states
Under the UCCJEA, a court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is the child’s home state. **
==> The home state is the one in which the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding, ==> or since birth, if the child is less than six months old **
==> or was the child’s home state in the past six months, and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
Parents v Third Parties
BITC for everything custody related… then ==>
Legal parents are presumptively entitled to custody of their children in cases against third parties
unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child.
If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms** “parent by estoppel” and “de facto parent” to get around the presumption. **
Parens Patriae
A court can intervene to protect a child **when medical treatment contradicts religious beliefs and such treatment is required to prevent serious harm to the child’s health. **
==> In those situations, a child can be declared neglected and the medical treatment ordered.
