Family law Flashcards
common law marriage elements?
- capacity to enter into marriage
- Agreement that is present to be marriage
- Cohabitation
- Holding out as married
what saves a bigamous marriage?
- Presumption most recent marriage is valid
- Removal on the impediment will render subsequent marriage valid
How to end a marriage?
Anulment for fraud
Divorce (fault no fault)
What standard is used for custody and child support?
Best interest of the child.
Custody determinations?
- Best interest of the child
- Requires considering parents wishes, who the caretaker is, parents issues, etc.
Modifying custody?
Can be modified only if there are substantial changes in circumstances
issuing Child support?
All states employee numerical guidelines that looks at factors like income, special needs, etc
modifying child support?
- petitioner must show substantial change in circumstances making the prior order unreasonable
- cant be retroactive
Relocation of parents and others
- Moves sought in good faith and serve best interest will be approved
- Some courts put burden on leaving parent and some on staying parent
DO decisions by parents get defference>?
Yes, including health, unless it will jeopardize the child
When does the parent have rights?
Generally biological fathers have rights but may have to excerisice them by a certain time
rights of parent when another person wants to adopt?
an involved parent that demonstrated commitment to parenthood can oppose adoption by another
third party custody rights
Custody in the parent is presumed to be in the childs best interest
If third party wants child must prove parent is unfit and would be detrimental to child
How a court will divide property in a divorce proceeding
- marital property is divided at divorce but separate property remains property of owning spouse
2. Marital vs separate
1. marital
1. Acquired during marriage
2. Separate
1. Before marriage
2. inheritance
3. gift to one party
3. Division based on marital agreement
1. a court will enforce a premarital agreement so long as it was made
1. voluntarily, its fair, and had full disclosure
2. Cannot have agreement as to custody of child if its not in childs best interest
Three factors to determine alimony?
Can be permanent, temporary, or lump sum. Trial court has wide difference.
look for:
Financial needs
marital contributions
marital duration
Which court may issue child support
UIFSA governs. when order is registered in one state it is enforced in all states.
State that originally issued th order has exclusive Jx to modify so long as it remains the residence of one of the parties
Child custody orders?
UCCJEA applies and divided into tests
- Home state
1. Home state has exclusive Jx to modify a custody decree
2. Home state is a state where child has lived with parent for 6 consecutive months before the order was issued.
3. Continues to be home state for at least 6 months after child leaves so long as it remains home of parent- Significant connections test
1. If child has no home state, a stat may excessive Jx based on
1. significant connections with child and one parent
2. substantial evidence relationg to custody
- Significant connections test
- Emergency Jx
1. If no other state has Jx this applies
Parent by estoppel?
If a child has lived with a third party for an extended period of time the courts have employed parent by estoppel to get around the presumption that a parent is best fit to take care of a child
