Family Law Flashcards
Weight of a Child’s Decision in Determining Custody
In GA, a child aged 14 or older has the right to select the parent with whom he will live. The child’s decision is presumptive, unless the chosen parent is determined not to be in the best interests of the child. The judge must consider the parental selection of a child between the ages of 11 and 14. However, this decision is not controlling.
Standards and factors courts use to determine child custody
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. In GA, there is no presumption in favor of the mother or in favor of any particular form of custody. In determining the best interests of the child, the judge may consider any relevant factor.
Generally, the noncustodial parent is allowed reasonable visitation with a minor child, and a parent is not required to show a material change in circumstances in order to modify a child-custody order.
Additionally, courts traditionally avoid separating siblings from each other to maintain stability and promote sibling relationships.
Some factors include:
(i) the love, affection, bonding and emotional ties b/w the parent and child,
(ii) the love and bonds b/w the child and any siblings and where those siblings reside,
(iii) the home environment of each parent,
(iv) the mental and physical health of each parent, (v) the stability of the parent’s support system and the community where they live,
(vi) any evidence of abuse or criminal history by a parent, and
(vii) the ability and willingness of a parent to co-parent with the child’s other parent as appropriate.
Can a 14 year old’s request for a modification of the custody order constitute a material change that would justify such modification?
A request of a child aged 14 or older to have a custody order modified to live with their other parent can constitute a material change that justifies modifying a custody agreement. However, the best-interest-of-the-child standard still applies to the child’s choice and any propose modification. As noted, under this standard, there is a preference for courts to keep siblings together.
Georgia’s Child Support Scheme
In GA, child-support awards are based on the income shares model approach, which provides that a child should receive the same proportion of parental income as if the parents continued to live together.
These child-support awards are based on the income of the parties and are not limited to traditional wages. Other factors that are considered are: the amount of parenting time, existing support orders, childcare expenses, medical insurance, and other child-related expenses.
Under this model, the amount is determined by adding each parent’s adjusted income to compute the combined adjusted income. Then, the basic child-support obligation is determined by referring to a child-support obligation table. This amount is divided pro rata b/w the parents. Each parent’s adjusted child-support obligation is then determined by adding the additional expenses of healthcare and work-related childcare costs and subtracting deviations (such as if one parent has a low income). Courts also consider factors such as whether the children require specialized schooling and how often each parent sees the child if custody is shared.
Child born out of wedlock’s rights
In GA, if a child is born out of wedlock to parents who later marry, that child will be considered a marital child if the father recognizes the child as his own.
Child Support
Child support is the payment by one parent to the other for support of a common child. Both parents, regardless of marital status, are legally required to support their minor children. If each parent is awarded custody of one of their children, then that child is entitled to support payments from the non-primary parent.
When is property not considered marital property?
In GA, all property acquired during the marriage is marital property and subject to equitable distribution unless (1) the property was acquired before the marriage, (2) the prop was acquired in exchange for separate prop, or (3) the prop was acquired by one spouse as a gift or inheritance. Title to the prop is immaterial. Marital property includes income earned during marriage.
Separate property can become marital property if commingled with marital property such that it cannot be traced and separately identified or transformed by intent.
Under the “source of funds” rule, property may be considered both separate and marital in proportion to the contributions separately and jointly provided.
Spousal Support
Also called alimony, is awarded in a divorce as income paid out of one party’s estate to support the other party when they are living separately.
In GA, alimony is awarded in accordance with the needs of the party seeking alimony and the ability of the other party to pay. Alimony may be temporary or permanent. Permanent alimony is an award for regular payments unless certain circumstances occur that can allow the alimony to be modified. (Ex: Voluntary cohabitation of the receiving spouse with a third party in a meretricious relationship can be grounds to modify permanent alimony)
Attorney’s Fees
The court has discretion to award attorney’s fees as part of the expenses of litigation of an alimony, divorce and alimony, or contempt of court action (including contempt orders involving property division, child custody, and child-visitation rights). When making its determination, the court must consider the financial circumstances of both parties. Facts that indicate a party is under a financial hardship would justify an award of attorney’s fees.
What system does Georgia follow when determining the division of divorce property/assets?
Upon divorce, the court can order an equitable distribution of the marital property. The date the marriage began is critical in determining the property division.
Georgia follows a system of equitable distribution relating to the division of assets upon divorce. The objective of the equitable distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. An equitable distribution is not necessarily an equal division of marital assets.
Adultery as a form of fault grounds
One form of fault grounds that may be considered by the court is adultery. Adultery is voluntary sexual intercourse with someone other than one’s spouse.
Must be shown that a party has the opportunity and inclination to commit adultery. If it is proven by a preponderance of the evidence that one party committed adultery, that party is not entitled to receive alimony.
However, condonation acts as a defense to a fault-based divorce. Condonation occurs when the innocent spouse forgives the other spouse. There must be knowledge of the misconduct and forgiveness of the misconduct, and the parties must resume marital relations.
Common-law marriage
Though now abolished in Georgia, a common-law marriage formed before January 1, 1997 will be recognized as a lawful marriage.
A valid common-law marriage requires intent (the parties agree they are married), cohabitation, and a holding out of the couple as husband and wife. Like a ceremonial marriage, a common-law marriage may be terminated by divorce.
Divorce
To obtain a divorce, the parties must be lawfully married.
In GA, a divorce can be obtained by either spouse on the basis of fault or no-fault grounds.
No-Fault: GA has a unilateral no-fault ground for divorce that requires a party to allege that the marriage is irretrievably broken, the parties are unable or refuse to cohabit, and there is no prospect of reconciliation (e.g., irreconcilable differences).
Fault grounds for divorce include grounds such as adultery.
However, a defense to a fault-grounds divorce is:
(i) knowledge of the misconduct;
(ii) forgiveness of the misconduct; and
(iii) resumed marital relations.
When can a husband who is not the biological father of his wife’s child be estopped from denying his obligation to pay child support?
A husband who is not the biological father of his wife’s child may be estopped from denying his obligation to pay child support when:
(i) there is a representation by the husband that he would provide for the child;
(ii) the wife relied on his representation; and
(iii) the wife suffered an economic detriment as a result of the reliance.
Does a parent with physical custody of a child moving constitute a sufficient allegation for a claim for relief?
Yes, once a custody order has been entered, the state generally retains subject matter jurisdiction to modify the order while the child remains a minor. The review and modification or alteration of a child-custody order may not occur more than once in the two-year period following the entry of the judgment. This rule does not limit the court’s right to modify a child-support order if there has been a material change in circumstances.
Georgia does not require that the parties show a material change in circumstances to modify a child-custody order.
However, if the custodial parent is proposing to relocate with the minor child, and the relocation will significantly impair the noncustodial parent’s ability to see the child under the court-ordered visitation schedule, then it will almost always constitute a substantial change in circumstances warranting a modification.
However, the nature of the modification is determined by what is in the best interests of the children.
How may a court hear a family-related dispute between parties? What must be present?
A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction.
What does a Georgia court consider when determining the amount of an alimony award?
Georgia statute provides the criteria a court must apply when determining the amount of an alimony award. Financial resources of a party are considered when determining alimony, along with other factors.
In addition to these factors, the court may consider any other factors it deems equitable and proper:
(i) standard of living during the marriage,
(ii) length of the marriage,
(iii) age and health of the parties,
(iv) financial resources of the parties, including earning potential,
(v) time to find employment or complete necessary education or training,
(vi) contributions to the marriage, and
(vii) marital misconduct.
Modification of Alimony
In general, alimony may be modified by showing a change in the income and financial status of either former spouse.
The party seeking modification typically has the burden of establishing a change in the financial abilities of the obligor that warrant modification.
A party who willfully or voluntarily reduces his income will not receive a reduction in his support payments.
Modification of Child Support Payment Order
In Georgia, a child support order may be modified when there has been a substantial change in either parent’s income and financial status, or the needs of the child.
A parent may not file a petition to modify if the reduction in income was voluntary.
Right to Jury Trial
Georgia allows either party to demand a jury trial to decide issues of divorce, property division, spousal support, and child support. This right includes a claim for modification of support.
However, issues regarding child custody must be determined by the judge.
When will a court who made an initial ruling in a custody case no longer have exclusive jurisdiction?
Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that: (i) the parties no longer reside in the state, or (ii) the child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state.
What gives a court personal jurisdiction over a family matter case?
In personam jurisdiction can be based on:
(i) voluntary presence,
(ii) consent,
(iii) domicile, or
(iv) through application of the state’s long-arm statute.
-Georgia’s long-arm statute allows the state to exercise personal jurisdiction over any nonresident if that person is under an order issued by a Georgia court regarding alimony, child custody, or other domestic relations matters.
-Georgia’s long-arm statute also provides the state the right to exercise personal jurisdiction over a non-resident who:
(i) maintains a matrimonial domicile in Georgia at the commencement of the divorce action, or
(ii) lived in Georgia prior to commencement of the action.
-Exercise of the long-arm statute must comply with the Due process requirement of the US Constitution and not offend traditional notions of fair play and substantial justice. The defendant must have sufficient minimum contacts with Georgia and have purposely availed himself of the benefits of the state, making it foreseeable to be hailed into Georgia to defend suit there.
What gives a court subject matter jurisdiction over a proceeding concerning divorce?
Georgia superior courts have authority to exercise original, exclusive, or concurrent jurisdiction over any civil or criminal case.
The state will have subject matter jurisdiction over a divorce if at least one spouse is domiciled in the state. Georgia has a six month residency requirement before a divorce action may be brought.
Court’s Jurisdictional Requirements over Child Custody Matters
- Jurisdiction to determine child custody follows the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Almost all states, including Georgia, have enacted the UCCJEA. Under the UCCJEA, in order to issue an order awarding custody, the Georgia court must possess subject matter jurisdiction.
- A court has subject matter jurisdiction over custody decisions if the state:
(i) is the child’s home state and has been for a period of six consecutive months, or
(ii) was the child’s home state in the past six months, and one of the parents continues to live in the state.
Venue
Venue is proper in the county where the defendant resides. If the defendant does not reside in Georgia, then the action may be brought in the county in which the plaintiff resides.
A divorce action may also be tried in the county where the plaintiff resides if the defendant moved from that county within six months from the date of filing, and the county was the marital domicile.
How is a legal relationship established between an unwed father and a child?
Under Georgia law, in order to establish a legal relationship b/w an unwed father and a child, the unwed father must establish (1) paternity and (2) legitimation. While paternity establishes a biological relationship b/w a father and a child, a legal relationship with the child is not established until legitimation occurs.
Legitimation may be established in two ways.
-First, legitimation may be established by a voluntary acknowledgment of legitimation by both parents before the child’s first birthday.
-The other way is absent the consent of the mother, an unwed father may file a petition with the court for paternity and legitimation any time after the birth of the child to establish his rights as a legal father.
