Family Law Flashcards
CHILD CUSTODY
Jurisdiction
Under both the federal Parental Kidnapping and Prevention Act (PKPA) (adopted in all states) and the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) (adopted widely), a state that is a child’s home state has exclusive jurisdiction over a custody action involving the child.
CHILD CUSTODY
Jurisdiction: “home state”
Under both the UCCJEA and PKPA, a home state is the state in which the child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of the child-custody proceeding.
Although some courts have held that a parent who wrongfully takes a child from a state without notice to another custodial parent lacks the capacity to unilaterally establish a new home for the child, the circumstances could dictate otherwise.
CHILD CUSTODY
when court of another state does not have JX under home state rule
Under the UCCJEA, when–and only when–a court of another state does not have jurisdiction under the home state rule, a court may exercise jurisdiction over a child-custody determination if:
1) the child and at least one parent have a significant connection with this state other than mere physical presence; and,
2) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
CHILD CUSTODY
Jurisdiction for Interstate Child Support Orders
Under the Uniform Interstate Family Support Act (UIFSA), a registered child support order issued in another state is enforceable in the same manner and is subjected to the same procedures as an order issued by a tribunal of the adopting state.
DIVORCE
Jurisdiction for Divorce
The Supreme Court has found that a state can enter a valid divorce decree as long as one spouse was domiciled in that state. Domicile is based on residence with the intent to remain permanently or indefinitely.
DIVORCE
Marital Property in Ex Parte Divorce
In an ex parte divorce where the court issues a divorce decree based on domicile of the plaintiff and without personal jurisdiction over the defendant, the court lacks the power to adjudicate property and support rights. The divorce decree is thus “divisible”; jurisdiction to terminate a marriage does not establish jurisdiction over the other divorce claims.
DIVORCE
Personal Jurisdiction over Defendant
A state may not exercise personal jurisdiction over a defendant who does not have minimum contacts with the forum state. The Supreme Court has held that temporary visists do not satisfy this requirement.
DIVORCE
Fault-based Divorce
In states that have retained fault divorce grounds, divorce may typically be granted on grounds of cruelty or a similar concept. Cruelty typically has been defined as bodily harm, or reasonable apprehension of bodily harm, that endangers life, limb, or health, and renders marital cohabitation unsafe or improper.
Traditionally, the abuse must be physical, successive, and continuing for an extended period of time, or single severe phsyical act causing serious bodily harm or reasonable apprehension of serious future danger. In recent decades, however, jurisdictions recognize a single, less serious phsyical incident as sufficient and recognize emotional or mental cruelty.
CHILD CUSTODY
Child Custody Determination
A custody decision is based on the best interests of the child. That determination is based on a range of factors, including:
- the wishes of the child’s parent or parents as to his/her custody;
- wishes of the child as to his/her custodian;
- the interaction and interrelationship of the child with his/her parent or parents, siblings, and any other person who may significantly affect the child’s best interest;
- the child’s adjustment to his/her home, school, and community; and,
- the mental and physical health of all individuals involved.
CHILD CUSTODY
Child Custody Determination: Infidelity
Today, courts agree that a court may not deprive a parent of custody based on a parent’s values or lifestyle unless the evidence shows that teh parental conduct adversely affects the child. To deprive a parent of custody, the evidence must support a logical inference that some specific, identifiable behavior or conduct of the parent will probably cause significant physical or emotional harm to the child. This link between parent’s conduct and harm to the child may not be based on evidence which raises a mere surmise or speculation of possible harm. Based on this child-centered approach, most courts have ruled that a parent’s sexual behavior is not by itself sufficient to deny a parent’s custody.
CHILD CUSTODY
Child Custody Determination: Honoring Child’s Wishes
In all states, the views of a child who is mature enough to form and express a preference are relevant to a custody determination. The wishes of older children are typically given substantial weight. However, the child’s wishes are not treated equally in every case: sometimes, the child’s wishes are given controlling effect, while at other times the wishes are disregarded altogether.
In addition to considering the child’s welfare and natural right of the child’s parent to have its custody, courts will consider:
1. the child’s age and judgment capacity;
2. basis for and strength of its preference;
3. generally, the treatment extended to the child by the contestants for its custody; and,
4. the wrongful inducement of the child’s wishes.
If the custody content is between a parent and a non-parent, a court may disregard a child’s wishes for the non-parent and deny the non-parent’s petition for custody.
CHILD CUSTODY
Child Custody Determination: Domestic Violence
Nearly every state currently mandates consideration of domestic violence between the parents when awarding custody, and many states have standards under which it is presumed that a parent guilty of serious domestic violence should not be awarded custody of a child.
CHILD CUSTODY
Troxel v. Granville: Constitutionality of Statutes not Giving Special Weight to Parent’s Decision
Under Troxel v. Granville, a statute that does not require the court to give any special weight to a parent’s determination of the child’s best interest is unconstitutional. In Troxel, the Court found that the statute provided inadequate protection for a parent’s constitutionality protected liberty interest in the care, custody, and control of her child.
CHILD CUSTODY
Child Custody Determination:
Nonparent seeking child custody
In all states, when a nonparent seeks to obtain a child’s custody from a fit legal parent, the parent is accorded a preference. Although the strength of the preference varies by state, in Troxel v. Granville, the Supreme Court implied that such a preference is constitutionally mandated.
CHILD CUSTODY
Custody Modification
Custody modification and prospective modification is based on a substantial change in circumstnaces.
One parent’s relocation that significantly impairs the other parent’s ability to exercise his or her custodial rights represents a substantial change in circumstances.
A significant decrease in income is typically viewed as a substantial change as well.
However, when a parent seeks to modify a child support obligation because he has voluntarily reduced his income, a court will not modify the obligation based solely on the income loss. Some courts refuse to modify whenever the income shift was voluntary. Others look primarily to the petitioner’s intentions and permit downward modification if he has acted in good faith. Many courts use a multifactor approach. In a jurisdiction using a multifactor approach the court would consider the impact on the child (ie., likely duration of income loss, and the likelihood of a promotion that would ultimately be of benefit to the child).
CHILD CUSTODY
Retroactive Modification
State courts have long held that obligations to pay child support ordinarily may not be modified retroactively.
A state court may not retroactively modify a child support order because federal law forbids retroactive modification in all circumstances.
CHILD CUSTODY
Modification of Interstate Child Custody Order
Under the federal Parental Kidnapping and Prevention Act (PKPA), a state may not modify a custody decree issued by another state if either the child or any party continues to reside in the issuing state and the issuing state’s courts do not decline to exercise jurisdiction.
Under the Supremacy Clause, the PKPA takes precedence over any conflicting state law.
Under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), a state that properly issued a custody decree retains continuing, exclusive jurisdiction until all parties and the child have left the state, or until an issuing-state court has determined that there is no longer any signfiicant connection between the child and the person remaining in the state and that substantial evidence is no longer available in that state.
CHILD CUSTODY/PARENTAL RIGHTS
Parental Rights
The Supreme Cout has held that the parental right to care, custody, and control of a child is constitutionally protected under the 14th Amendment. However, parental rights are not absolute. The power of the parent, even when linked to a free exercise claim, may be subject to a limitation if it appears the parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. The spread of preventable, contagious illnesses is a “significant social burden.”
The Supreme Court has specifically held both that a vaccination mandate is within the state’s police power to protect the public health and that a state may refuse school admission to a student who fails to receive a vaccination as mandated.
DIVORCE
Invalidation of Separation Agreements due to Fraud or Unconscionability
All states authorize invalidation of a separation agreement, or a specific portion of such an agreement, based on a finding of fraud or unconscionability. The unconscionability test varies by court.
A few courts have permitted tort actions against a wife who misrepresented her husband’s paternity.
DIVORCE
Premarital Agreement Enforceability
All states permit spouses to contract premaritally with respect to rights and obligations in property. In many states, an agreement is enforceable if the party against whom enforcement is sought succeeds in showing any one of the three factors: involuntariness, unconscionability, or inadequate disclosure. However, how courts apply these factors varies by state.
Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove:
1. involuntariness; or,
2. the agreement was unconscionable and the party did not have an adequate disclosure of knowledge of the other’s assets and obligations.
DIVORCE
Premarital Agreement Enforceability: Involuntariness factor
In considering whether a premarital agreement was voluntarily executed, courts look to whether there was fraud, duress, or coercion. They agree that one party’s insistence on signing the agreement as a condition of the marriage does not, of itself, render the agreeemnt involuntary, but there is no consensus on what additional facts are sufficient to establish involuntariness.
DIVORCE
Premarital Agreement Enforceability: Unconscionability factor
Courts that have adopted the UPAA may still invalidate a premarital agreement based on unconscionability even if both parties have fully disclosed their assets. States apply various methods in evaluating unconscionability by looking whether the agreement was unconscionable when: 1) signed; 2) at the time of divorce; or, 3) at either point in time simply because it is unfair.
DIVORCE
Premarital Agreement Enforceability:
Child Custody Provisions
Because of the strong public policy in favor of protecting the best interests of the children, courts have invariably found that provisions in a premarital contract relating to children, including provisions relating to child custody and visitation, are unenforceable.
DIVORCE
Property Division at Divorce
In all states, a divorce may divide assets without regard to title. However, in most states, only marital property–assets acquired during the marriage except by gift, devise, or inheritance–is subject to division at divorce.
In a minority of “hotchpot” jurisdictions, the court may divide all assets, whenever or however acquired. A few states permit the division of separate proeprty in special circumstances, such as hardship.
DIVORCE
Property Division at Divorce:
Marital Assets
An asset is marital if it was acquired during the marriage by any means other than gift, descent, or devise. An asset that is initially separate property may be transformed into marital property if marital funds or significant efforts by the owner-spouse enhance its value or build equity during the marriage.
DIVORCE
Alimony/Spousal Support
Rules governing the award of alimony vary by state, but almost all require the court to consider:
- parties’ financial resources and needs;
- their marital contributions; and,
- the marital duration.
Some states also require consideration of spousal misconduct.
DIVORCE
Alimony/Spousal Support:
Need factor
In determining a party’s needs, courts typically consider:
- the standard of living enjoyed by the parties during the marriage and whether the recipient spouse will be able to achieve that level of economic self-sufficiency within a reasonable period of time following the divorce;
- health;
- the existence of separate assets; and,
- the share of marital assets that the recipient spouse will receive.
DIVORCE
Alimony/Spousal Support:
Contribution to Marriage factor
In determing the parties’ contribution to marriage, a court may consider negative as well as positive actions, including a spouse’s failure to make economic or noneconomic contributions and misuse or dissipation of marital funds.
DIVORCE
Alimony/Spousal Support:
Doctrine of Non-Intervention
In all states, marriages establish a mutual support obligation between spouses. However, the spousal support obligation is limited by the common law doctrine of nonintervention, which disallows judicial intervention in an intact family. Although the case law is sparse, courts have relied on the nonintervention principle to deny a support petition when the couple is living together.
DIVORCE
Modification of Divorce Decree:
Property Division
A property-division award may not be modified after a divorce decree has been entered.
Property division reflects an evaluation of the past. Because the past can be ascertained, courts are not empowered to reconsider the evaluation and modify a property-division award once it has been embodied in a final judgment of divorce.
DIVORCE
Modification of Divorce Decree:
Spousal-Support
In all states, a spousal-support award may be modified based on a change in a party’s circumstances. Most courts require that such a change be substantial. A court may take into account legal obligations to a new spouse and/or children in determining whether there has been a change in circumstances that warrants modification of a support award. More importantly, a change in circumstances that is anticipated may not serve as a basis for modification of a support order.
In most states, a stepparent relationship creates no legal support obligations.
DIVORCE
Modification of Divorce Decree:
Non-paternity of Child
Traditionally, courts have been extremely reluctant to terminate an established parent-child relationship and have relied on a wide range of equitable and procedural principles to avoid doing so, including res judicata or collateral estoppel principles. Other courts have relied on the equitable doctrines of estoppel and laches ot achieve the same result. Some courts have simply cited the child’s best interest, without relying on any specific legal principle, as justification either for denying permission to introduce evidence of nonpaternity or for denying a petition to disestablish paternity.
In recent years, a number of courts have placed greater emphasis on the interests of erroneously identified fathers.
CHILD CUSTODY
Uniform Interstate Family Support Act - Enforcement and Modification of Child Support
The interstate enforcement and modification of child support is governed by the Uniform Interstate Family Support Act (UIFSA), which has been adopted by all states.
Under the UIFSA, the state that originally issued a child support order has continuing, exclusive jurisdiction to modify the order if the child or any party continues to reside in that state and all parties do not consent to the jurisdiction of another forum. This means that each state shall not seek or make a modification of a child support order from another state.
UIFSA does not apply to divorce proeprty-division disputes.
DIVORCE
Property Division is Non-Modifiable
A support order is aimed at meeting the post-divorce needs of the supported individual. Because the future is unpredictable, courts are empowered to modify a support award to take account of changed circumstances that may occur during the period in which support is paid. By contrast, a property-distribution award divides assets of the marriage based on the equities at the time of divorce. Because the past can be ascertained, a property-division award is not subject to post-divorce modification.
CHILD CUSTODY
Full Faith and Credit to Other State Child Support Awards
Under federal law, states are required to give full faith and credit to child support awards from other states. Under 28 U.S.C. § 1738B(a), each state 1) shall enforce according to its terms a child support order made consistently with this section by a court of another State. Section 1738B is known as the Full Faith and Credit for Child Support Orders Act.
Additionally, section IV-D of the Social Security Act also requires a state, as a condition of participation in the federally funded child support programs, to have procedures that require that any payment or installment of support under any child support order be entitled as a judgment to full faith and credit in such State and in any other State. Every state has chosen to have these procedures.
DIVORCE
Requirements for a Valid Divorce Decree
In Williams v. North Carolina, the Supreme Court found that a state could enter a valid divorce decree as long as one spouse was domiciled in that state. Domicile is based on residence with the intent to remain permanently or indefinitely.
MARRIAGE
Common Law Marriage Requirements
Formation of a valid common law marriage requires that the partners:
- cohabitated;
- agreed to be married; and,
- held themselves out to others as a married couple.
MARRIAGE
Conflict of Laws: Recognition of Common Law Marriage
Under generally accepted conflict-of-laws principles, a marriage valid under the law of the state where it was contracted is valid elsewhere unless it violates the strong public policy of another state which has the most significant relationship to the spouses and the marriage.
DIVORCE
Distribution of Property Acquired during the Marriage
Property acquired by either spouse during an ongoing marriage, other than by gift or inheritance, is marital property subject to division on divorce. Although some states provide that marital property ceases to accrue after the parties’ separation, most hold that marital property continues to accrue until the marriage is dissolved.
MARRIAGE
Putative Spouse Doctrine
The putative-spouse doctrine permits a would-be spouse, who participated in a marriage ceremony with a good-faith but mistaken belief in its validity, to be treated like a spouse for purposes of equitable distribution of the property acquired by the couple during their invalid marriage.
Some states that have not recognized the putative-spouse doctrine nonetheless permit distribution of “marital” assets in a proceeding to declare a marriage void.
The trend of modern statutes is increasibly to blur the line not only between void and voidable marriages but even between them and valid marriages in an attempt to equalize the consequences of termination of marital relationships on whatever ground.
MARRIAGE
Bigamy
Bigamy is illegal in all states; no individual may have more than one legal spouse at a time. Because of the ban on bigamy, when a first marriage has not been legally terminated, a second marriage has no legal effect.
Most courts have held that the presumption of validity may be rebutted with a showing that court records in all jurisdictions where the first spouse has lived do no evidence a divorce.
CHILDREN/PARENTAL RIGHTS
Visitation of Children
The Supreme Court has recognized that parents have a fundamental constitutional right to control the upbringing of their children, including decisions about with whom their children will visit.
A fit parent is presumed to act in the best interests of her children, and courts are constitutionally required to give “special weight” to a parent’s reasons for objecting to visitation with a third party before overriding the parent’s objection and granting visitation.
State law on nonparent visitation rights varies substantially.
