Family Law Flashcards
Uniform Interstate Family Support Act - Enforcement 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 UIFSA, the
state that originally issued a child support order has continuing, exclusive jurisdiction to modify the order if that state remains the residence of the obligee, the child, or the obligor and all parties do not consent to the jurisdiction of another forum.
UIFSA does not apply to divorce property-division disputes.
Child support orders cannot be modified retroactively
State courts have long held that obligations to pay child support ordinarily may not be modified
retroactively. “If the hardship is particularly severe, the courts sometimes devised a way to
protect the obligor, but in most instances the courts hold that retroactive modification of this kind
is beyond their power and indeed the governing statute may so provide.”
Federal law now goes further and requires the states, as a condition of federal child-support
funding, to adopt rules that absolutely forbid retroactive modification of the support obligation.
The states have adopted rules consistent with the federal requirements.
Prospective modification of child support
Prospective modification of a child support order is typically available only when the petitioner
can show a substantial change in circumstances. A significant decrease in income is typically
viewed as a substantial change.
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 (i.e likely duration of income loss, and the likelihood of a promotion that would ultimately be of benefit to the child).
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.
Premarital agreements and enforceability
Although courts were once hostile to premarital agreements, today all states permit spouses to
contract premaritally with respect to rights and obligations in property. In all states, the enforceability of such an agreement turns on three factors: voluntariness, fairness, and
disclosure. How courts apply these factors varies significantly from one state to the next. In
many states, an agreement is unenforceable if the party against whom enforcement is sought
succeeds in showing involuntariness, unfairness, or lack of adequate disclosure. However, under the UPAA, which has been adopted in 26 states and this jurisdiction, the party against whom enforcement is sought must prove (1) involuntariness or (2) that “the agreement was
unconscionable when it was executed” and that he or she did not receive or waive “fair and
reasonable” disclosure and “did not have, or reasonably could not have had, an adequate
knowledge” of the other’s assets and obligations. Thus, under the state statute, a court may not
refuse to enforce a premarital agreement based on unconscionability unless it also finds lack of
adequate disclosure or knowledge.
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 agreement involuntary,
but there is no consensus on what additional facts are sufficient to establish involuntariness.
Premarital agreements regarding child custody are unenforceable
Although the UPAA does not explicitly bar an agreement respecting child custody, “[l]ong
tradition . . . would seem to ensure . . . that courts would not consider themselves bound by
custody provisions they believe injurious to the child’s interest. The law of separation
agreements in every state is explicit on that point, and there is no reason why premarital
agreements would be treated differently.”
Divorce and division of property
In all states, a divorce court 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 property in special circumstances, such as hardship.
Although the mere fact that a separate asset appreciates in value during the marriage does not
create marital property, an asset that is initially separate property may be partially transformed
into marital property if marital funds or significant postmarital effort by the owner spouse enhance its value or build equity. Thus, if a spouse spends a substantial amount of time working in a separate business, that effort typically creates marital property. And if marital funds are used to reduce mortgage indebtedness, such equity-building payments typically create marital property.
Child custody decisions
A custody decision is based on the best interests of the child. That determination is based on a
range of factors, including “(1) the wishes of the child’s parent or parents as to his custody; (2)
the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child
with his parent or parents, his siblings, and any other person who may significantly affect the
child’s best interest; (4) the child’s adjustment to his home, school, and community; and (5) the
mental and physical health of all individuals involved.”
Denial of a parent to child custody
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 the parental conduct adversely affects the child. “[T]o
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, moreover,
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 custody.
Doctrine of nonintervention in families prior to separation
In all states, marriage establishes 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. Therefore, until and unless a couple separate, a court will not intervene in their private
Affairs.
Parental rights to care, custody and control of their child
The Supreme Court of the United States has held that the parental right to the care, custody, and control of a child is constitutionally protected under the 14th Amendment. However, parental
rights are not absolute. “[T]he power of the parent, even when linked to a free exercise claim,
may be subject to limitation . . . if it appears that 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.”
Moreover, 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. Recent challenges to state rules that
disallow school attendance by unvaccinated students have thus been summarily dismissed.
Court jurisdiction over a petition for child custody
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been
adopted in all but one state (Massachusetts), a court may exercise jurisdiction over a petition for
child custody only if “this State is the home State of the child on the date of the commencement
of the proceeding, or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person
acting as a parent continues to live in this State” and no other state’s courts would have
jurisdiction under the above standard or other courts having jurisdiction have declined to
exercise it.
A “home state” is the state in which the child “lived with a parent or a person acting
as a parent for at least six consecutive months immediately before the commencement of a
child-custody proceeding.” The “physical presence of, or personal jurisdiction over, a party or a
child is not necessary . . . to make a child-custody determination.”
The federal Parental Kidnapping Prevention Act (PKPA) similarly grants exclusive jurisdiction
over a child-custody petition to a child’s “home state.” Under the supremacy clause, PKPA takes
precedence over any conflicting state law.
Nonparents seeking to obtain custody of a child from a fit legal parent
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 from one state to the next, in Troxel v. Granville, the Supreme Court of the United States implied that such a
preference is constitutionally mandated. Troxel involved a state statute under which “[a]ny
person” could petition for visitation rights “at any time” and authorized a court to grant such
visitation whenever it concluded that “visitation may serve the best interest of the child.”
Because the statute was “breathtakingly broad” and required the court to give “no special weight
at all to [a parent’s] . . . determination of her daughter’s best interests,” a plurality of the Court
found that it “contravened the traditional presumption that a fit parent will act in the best interest
of his or her child.”
Best interests of the child and their wishes
Sometimes the child’s wishes are given controlling effect, while at other times the wishes are
disregarded altogether.
In all states, a custody decision is based on a determination of a child’s best interests. The
best-interests inquiry is typically far-ranging, including the following factors inter alia: the wishes of the child’ s parents, the child’s primary caretaker, the mental and physical health of all individuals, the interrelationship of the child and parents, and stability. Additionally, 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.
States are required to give 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.
