Family Law Flashcards
LEARN
Recognition of CL marriage
Under the traditional approach under the First Restatement, the validity of marriage is governed by the law of the state where the marriage was celebrated. If the marriage is valid where it was celebrated, it is recognized in all other states. If a marriage violates a particularly strong public policy of the domicile of either party, however, it will be invalid under the traditional approach.
But under the Second Restatement approach, such a marriage will be valid everywhere else unless the marriage violates the public policy of the state with the most significant relationship with the parties at the time of marriage.
Requirements of Common Law Marriage
Common-law marriages are valid when the parties:
(i) agree that they are married (intention to be married in future not enough); (ii) cohabit as married; and (iii) hold themselves out in public as married.
And of course, they must have capacity to marry.
Rights of Non-marital father RE 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.
Thus, a state statute’s requirements may be unconstitutional as applied in a particular case on these grounds.
Putative Father Registry
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.
SMJ Over Custody hearings
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:
(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
Factors in Determining Spousal Support/Spousal Maintenance
Once the court determines that a spouse is eligible for support, the court will then
determine the appropriate amount to award. General factors include:
(1) The financial resources of the party seeking maintenance;
(2) The time necessary for the spouse seeking support to obtain an appropriate job
(includes time needed for education or training);
(3) The duration of the marriage;
(4) The standard of living established during the marriage;
(5) The age and physical/emotional condition of the spouse seeking maintenance;
(6) The ability of the spouse paying support to meet her own needs while meeting
those of the spouse seeking support.
(7) NOTE. In most states, the marital “fault” of either spouse (e.g., adultery) is NOT
a factor considered in determining the amount of spousal support to be
awarded
Can Spousal Support be Modified?
Yes, generally modifiable.
Party seeking mod. has burden.
a) In most states, a spousal support order can only be modified when there is a significant and continuing
change in circumstances of either party making the prior order unreasonable.
-Change in
needs of the dependent spouse or financial abilities of the obligor that warrant the modification
*As with child support, a party who willfully or voluntarily reduces her income will not receive a reduction in her support payments.
*Under
the UDMA, a modification of spousal support is allowed only upon a showing of changed
circumstances so substantial and continuing to make the terms unconscionable.
Spousal Support
Spousal support is the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if one spouse cannot provide for his own needs with employment.
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. Courts have relied on the nonintervention principle to deny a support petition when the couple is living together.
Constitutional Rights of Parents RE children
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.
Limits of Parents right to raise child as they want
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
Uniform Custody Jurisdiction and Enforcement Act
The purpose of the Uniform Custody Jurisdiction and Enforcement Act (UCCJEA), is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation. Almost all states have enacted the UCCJEA. 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.
Legal Custody basic standard
The standard for determining child custody is the best interests and welfare of the child.
Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. 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.
When a parent may lose against third party for c custody
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. A minority of the jurisdictions apply the best-interests-of-the-child standard in all custody cases, even those between a parent and a third party. However, such a standard may run afoul of a parent’s constitutional rights.
will a court consider desires of the child?
Most courts will consider the wishes of the child if the court can determine that the child has sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, then the court evaluates the reasons behind the preference.
But preference alone, without more factors, is unlikely to be enough to rebut the presumption awarding custody to a child’s legal parents.
Modification of child support
In most states, a child support order can only be modified when there is a substantial
change in circumstances of either party making the prior order unreasonable.
Under the UDMA, a modification of child support is allowed only upon a showing of changed
circumstances so substantial and continuing to make the terms unconscionab
Voluntary reduction in ability to pay - child support
Some courts will NOT permit a modification of child support if the change
in circumstances was anticipated or voluntary. If the obligor voluntarily made this
change, courts usually require that the obligor prove the change occurred in good faith,
rather than to punish the obligee or deprive the child of support (e.g., voluntarily
quitting a job to reduce income in order to pay less child support is usually not allowed
