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Family Law Flashcards

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1
Q

Breach of the Promise to Marry

A

Claim + damages (tort damages) incl. actual damages (money spent in preparation of marriage) as well as loss to reputation, injury to health, mental anguish. Punitive damages also available

Abolished in most states.

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2
Q

Gifts in Contemplation of Marriage

A

Gifts made before marriage on the condition of the subsequent marriage are NULL if the marriage fails to take place. Consider the type of property given, conditions attached, and the intent of the donor

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3
Q

Antenuptial (Premarital) Agreements

A

Governed by the UPAA. Rights of the parties in the event of death or divorce. Can agree to disposition of property at divorce and alimony (unless waiver would result in one party becoming a public charge). Cannot be bound re: custody/child support.

If a marriage is found to be void, premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

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4
Q

3 Requirements for Validity of Antenuptial Agreements

A

(1) in writing and signed (2) entered into voluntarily (no fraud, duress, overreaching), (3) full disclosure of assets OR proof party had independent knowledge. UPAA threshold consideration: was contract unconscionable when executed? Also consider waiver. May consider FAIRNESS and INDEPENDENT COUNSEL . Can agree on state law/law of state w/ significant connections OR where agreement was executed

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5
Q

Marriage Requirements (4)

A

(1) License (medical certificate, 72 hour waiting period–> these defects will not invalidate),
(2) Authorized officiant,
(3) No legal impediments to marriage (not too closely related, no bigamy),
(4) capacity to consent (under the influence, handicapped, age)

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6
Q

Common Law Marriage Requirements (3)

A

(1) Consent to marry (not just cohabit). Need capacity and no legal impediments.
(2) Cohabitation
(3) Holding yourself out publicly as husband and wife.

States that do not permit common law marriage will recognize common law marriages from other states.

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7
Q

Marriage By Estoppel/Putative Marriage

A

Equitable remedy given by courts to innocent who acted in good faith when entering into an invalid marriage.

In some states, putative spouse can acquire all of the rights of a legal spouse.

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8
Q

Rights and Responsibilities Among Spouses: Property

A

Each spouse owns and controls his own property but in the event of a divorce, title is not dispositive.

If title to real estate: joint tenancy by the entireties is presumed, and one spouse cannot convey or encumber without consent of other spouse.

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9
Q

Rights and Responsibilities Among Spouses: Support

A

During marriage, spouses owe support to one another.

Doctrine of necessaries can be used to make one spouse liable to 3d parties for other spouse’s purchases for necessary expenses.

Principles of agency may require that one spouse be held liable to third party for the other spouse’s authorized purchases.

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10
Q

Rights and Responsibilities Among Spouses: Spousal Abuse Orders

A

Protect victims of domestic abuse.

Victim entitled to a protective order against the other spouse which can be granted ex parte and can last for 1 month to several years.

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11
Q

Rights and Responsibilities Among Spouses: Tortious Interference with Marriage

A

Claims against 3rd parties for interference with marriage:

(1) Alienation of Affection
(2) Criminal Conversation

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12
Q

Alienation of Affection (3 Elements)

A

(1) Genuine love and affection between spouses
(2) Love and affection alienated and destroyed
(3) Defendant’s acts caused the loss of love and affection.

Adultery is NOT a requirement

Proof of damages required and highly subjective. Punitive damages may be permitted

Abolished in most states.

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13
Q

Criminal Conversation (3 Elements)

A

(1) Marriage of the spouses
(2) Adultery between the defendant and the spouse during the marriage
(3) Damages are the same as alienation claim (required and highly subjective. Punitive damages may be permitted).

Abolished in most states.

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14
Q

Annulment

A

Declaration that marriage is invalid.

Available for defective marriages that are legally void or voidable.

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15
Q

Void Marriage

A

Fail to meet essential requirements, so invalid (“utter nullity”).

Can be attacked by one of parties or collaterally by a third party even after the death of one of the parties.

May or may not be remedied by continued habitation after removal of impediment (e.g. bigamy– may be remedied upon death/divorce of spouse; too closely related may not be remedied).

If marriage is found void, premarital agreement enforceable only to extent necessary to avoid inequitable result.

Parties may walk away without a court order; annulment action usually brought to determine property distribution and child support.

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16
Q

Voidable Marriage

A

Event or condition affecting adequacy of consent to marriage contract.

Treated as valid until annulled.

Can be attacked only by or on behalf of a party to the marriage, and in some cases only by the party who sought to be protected. If ratification occurs or one spouse dies, marriage can no longer be invalidated.

Can be ratified by continued cohabitation after removal of infirmity.

Examples: nonage, incurable physical impotence, lack of capacity, duress, fraud

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17
Q

Presumption of validity of marriage

A

States generally presume that the most recent marriage is valid and a party must overcome the presumption by strong evidence that the prior marriage subsists.

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18
Q

5 Effects of Annulment

A

(1) Marriage is set aside as if it never existed
(2) Children remain legitimate
(3) Child support can be awarded
(4) Spousal support may be awarded, but not in all states
(5) Property generally treated as if never married: put spouses in “pre-marital” state

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19
Q

Divorce and Separation: Jurisdiction

A

ONE of the spouses must be domiciled in the state seeking to enter divorce.

Generally, residency in a state for a minimum period of time (90 days to 6 months), then there is a presumption she is domiciled there and the court will have jurisdiction.

For financial issues (property rights and support) court must have personal jurisdiction.

NOTE: more than one state may have jurisdiction!

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20
Q

5 Grounds for Fault-based Divorce

A

(1) Adultery
Often proved thru circumstantial evidence of opportunity and inclination
Corroboration often required
(2) Desertion for a specified time.
Unjustifiable departure from marital home with no intent to return.
(3) Cruelty (physical/mental)
(4) Habitual drunkenness/drug use commencing after marriage
(5) Insanity
May require institutionalization

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21
Q

No-Fault Divorce

A

Allows for dissolution of marriage w/o regard to marital fault.
Generally, can be allowed on proof of:
-irreconcilable differences (may require agreement of spouses)
-living separate and apart for specified time period (if spouses agree, the period may be shorter; if unilateral, period may be longer)
Incompatibility

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22
Q

Defense to No-Fault Divorce

A

Reconciliation

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23
Q

4 Defenses for Fault-Based Grounds for Divorce

A

(1) Collusion: parties agreed to simulate grounds for divorce
(2) Connivance: π willingly consented to other spouse’s misconduct
(3) Condonation/forgiveness: π forgave marital offense w/ full knowledge of offense.
(4) Recrimination (doctrine of unclean hands): π also guilty of marital fault

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24
Q

Legal Separation

A

Often permitted for same grounds as divorce. AKA “divorce from bed and board.”

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25
Q

Effects of Legal Separation

A

(1) parties still married
(2) parties can seek to have rights re: support, child custody, and child support decided
(3) Courts MAY permanently divide marital property. After acquired property is separate. If no final property decision– divided at divorce.

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26
Q

3 Main Approaches to Property Division

A

(1) Community property
(2) Equitable division of ALL property
(3) Equitable division of MARITAL property

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27
Q

Community Property

A

All property acquired during the marriage is owned 1/2 each by each spouse; property owned before marriage is separate.

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28
Q

Equitable division of ALL property

A

Pretty much what it sounds like.

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29
Q

Equitable division of MARITAL property

A

Each spouse takes his separate property and property acquired during marriage is divided equitably.

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30
Q

Property Distribution Decrees: Finality

A

Property distribution decrees are NOT modifiable

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31
Q

2-Step Process in Property Division

A

(1) Classification: what is marital and what is separate?
(2) Division: make an equitable division of marital estate (regardless of title).

Equitable does NOT mean equal

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32
Q

Separate Property (6 Types)

A

(1) All real and personal property owned by spouse before marriage, incl. assets in IRA
(2) Property acquired at any time by gift, bequest, devise or descent (inheritance)
(3) Property acquired in exchange for property acquired before the marriage
(4) Income from and appreciation of separate property
(5) Pain and suffering awards, victim of crime compensation funds, future medical expenses/lost wages
(6) Property acquired by a spouse after an order of legal separation w/ a court-ordered final disposition

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33
Q

Marital Property

A

All property acquired by either or both spouses during the marriage up to final divorce decree.

Includes earnings, vested and unvested pension, stock options, retirement or other fringe benefit rights relating to employment that accused during period of marriage.

Includes recovery in personal injury, workers comp, SSD, and other actions for lost wages during the marriage, reimbursement for medical bills incurred and paid with marital property, property damage.

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34
Q

Commingling

A

Separate property can become marital if the property is inextricably intertwined.

Courts will attempt to trace property.

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35
Q

Transmutation of Separate Property

A

Separate property can become marital property based on the intent of the parties.

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36
Q

Improvement of Separate Property

A

When separate property is improved by the use of MARITAL FUNDS or the EFFORTS OF EITHER SPOUSE, courts in most jurisdictions will grant the marital estate or non-owning spouse reimbursement for the value added.

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37
Q

Property Acquired Before Marriage But Paid for After Marriage

A

Courts are split.

Majority: property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds used to pay for the property.

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38
Q

Pensions

A

Considered marital property subject to division even if the non-working spouse did not contribute

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39
Q

Professional License/Degree

A

NOT considered marital property subject to division. To avoid unfairness, some jurisdictions consider it when awarding alimony. Minority jurisdictions value the degree, the award more property or alimony to the other spouse based on the valuation.

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40
Q

Property Division: Tax Consequences

A

NOT a taxable event

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41
Q

Equitable Division: 14 Factors

A

(1) Age, education, background, earning capabilities
(2) Duration of marriage, prior marriages
(3) Standard of living during marriage
(4) Present income, vocational skills, employability
(5) Source of $ used to purchase property
(6) Health
(7) Assets, debts, liabilities
(8) Needs
(9) Provisions for custody of minor children
(10) Alimony
(11) Opportunity to acquire future income/assets
(12) Contribution to acquisition/enhancements of existing marital assets
(13) Contribution as homemaker to family unit
(14) Whether each party dissipated marital property (economic fault, NOT marital fault).

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42
Q

Alimony: 4 General Principles

A

(1) Paid to economically dependent spouse
(2) 4 Types (AKA spousal support, maintenance). Can award more than one type
(3) Trend= award less money b/c two earner households, and less economic dependence
(4) trial court has great discretion

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43
Q

Permanent Periodic Support

A

Example: $2000/month until death or remarriage.

Duration: indefinite

Modification: Can be increased, decreased, terminated upon proof of substantial change of circumstances

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44
Q

Lump Sum Support

A

Example: $36000 paid at $1000/mo for 36 months

Present value of permanent periodic support to make a clean break.

Duration: specified time periods, can be payable in installments or in a lump sum.

Modification: none. Treated like a contract right; binding on payor’s estate.

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45
Q

Rehabilitative Support

A

Example: $1000 a month for 36 months to gain education or skills.

Duration: specified time period unless modified by court.

Modification: can be increased/decreased/terminated based on proof of substantial change of circumstances.
Designed to restore disadvantaged spouse’s earning capacity to relieve dependence.

Can be combined with permanent periodic or lump sum support

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46
Q

4 Types of Alimony

A

(1) Permanent Periodic Support
(2) Lump Sum Support
(3) Rehabilitative Support
(4) Reimbursement Support

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47
Q

Reimbursement Support

A

Example: $20000 as repayment for the supporting spouse’s contribution to increased education provided to other spouse.

Duration: for specified period of time; can be payable in installments or lump sum.

Modification: none. Treated as contract right and can be awarded even if supporting spouse is not otherwise eligible for spousal support.

Can be combined with permanent periodic support or lump sum support.

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48
Q

9 Factors to Be Considered When Awarding Alimony

A

(1) NEEDS OF SPOUSE AND ABILITY OF THE OTHER SPOUSE TO PAY
(2) Duration of the marriage
(3) Age and emotional conditions of both parties
(4) Financial resources of each party; consider marital and separate property, child support
(5) Contribution of each party to marriage, incl. homemaking, childcare, education, and career building
(6) Time needed to obtain education/training
(7) Ability of payor to meet needs and pay support
(8) May consider marital fault.

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49
Q

Modification of Spousal Support

A

Spousal support is modifiable based on substantial and material change of circumstances affecting needs of recipient spouse or ability of other spouse to pay.

Generally, a voluntary reduction in income will not be sufficient to reduce obligation. May consider new legal obligations to another spouse or children (but not stepchildren), but change must be unanticipated. So if spouse intended to remarry upon divorce, change in not unanticipated and will not constitute a sufficient change in circumstances

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50
Q

Termination of Spousal Support: Periodic v. Lump Sum

A

Period payments generally terminate:

(1) remarriage of the recipient– once terminated by remarriage, will not be reinstated following annulment of that marriage
(2) death of either spouse
(3) in some jurisdictions, on cohabitation w/ another person

Lump sum awards survive death and are not modifiable.

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51
Q

Tax Consequences of Spousal Support

A

Post 2019- not taxable as income, not deductible

Pre 2019- deductible by payor, taxable as income to recipient unless the agreement is modified to comport with the new rule

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52
Q

Separation Agreements

A

Entered into after marriage and enforceable if supported by consideration.

Must be full and fair disclosure, and agreement must be entered into voluntarily.

Can waive alimony or property division; can agree on custody and child support, but court is not bound by parties’ contract concerning children.

53
Q

Modification of Separation Agreement: Merged into the Divorce Decree

A

If divorce decree includes the terms of the agreement or expressly merges them, the provisions become part of the contract order.

Modifiable by the court and subject to contempt.

54
Q

Modification of Separation Agreement: Non Merger

A

If parties do not submit agreement to the court, contract is non-modifiable, and enforceable only by contract remedies.

55
Q

Contracts Between Cohabitants

A

Contracts valid unless sex is the only consideration (giving up a career or taking care of home can be enough).

Express contracts re: earnings and property rights will generally be enforced.

Implied contracts (partnership or constructive trust) may be used to award property

56
Q

Child Support Generally

A

Both parents share equally in the duty to support their children based on child’s needs and ability of the parent to pay. Agreement that does not meet the needs of the child will not be enforced by the court.

Court’s discretion cabined by child support guidelines.

Courts have discretion to add for health insurance and extraordinary education expenses.

Child support is paid independent of visitation.

57
Q

Child Support: Majority Approach

A

Income Shares

58
Q

Duration of Child Support

A

Generally, age of majority, OR

  • death of child OR
  • emancipation of child OR
  • termination of parental rights OR
  • may continue past 18 if child still in high school until some age or completion of education. Most states will not extend to college unless agreed by parties/provided by statute.

May continue longer if the child is disabled.

59
Q

Child Support: Original Jurisdiction

A

Jurisdiction is proper where the first petition under UIFSA is filed.

Another state can only exercise jurisdiction if:

(1) 2nd petition is filed before time to answer first petition has expired
(2) Petitioner objected to jurisdiction in the first case
(3) Second state is child’s home state

60
Q

Child Support: Jurisdiction to Enforce

A

Issuing court has continuing jurisdiction to enforce.

Another state can enforce by:
DIRECT ENFORCEMENT or
REGISTRATION

61
Q

Child Support: Direct Enforcement

A

Obligee mails order to obligor’s employer in another state and employer will withhold wages.

62
Q

Child Support: Registration

A

Child support order is registered in another state and subject to enforcement

63
Q

Child Support: Jurisdiction to Modify

A

Once the court enters a valid child support order it maintains continuing exclusive jurisdiction during the life of the order unless no parties reside in the issuing state or the parties consent to another state’s jurisdiction.

64
Q

Modification of Child Support Orders

A

Modifiable based on substantial change of circumstance affecting the needs of the child or the ability of the parents to pay.

Voluntary reduction in income is not grounds for modification.

Past due child support cannot be modified and is not a basis for prospective modification.

65
Q

Tax Consequences of Child Support Orders

A

NOT income to the recipients or deductible by the payor.

66
Q

Enforcement of Child Support Awards

A

Can be enforced through traditional civil and criminal contempt proceedings.

As a result of federal legislation, parties may seize property, use wage withholding, interrupt tax refunds, and revoke licenses.

67
Q

Initial Award of Interstate Child Custody: Primary Test

A

Home State

Either

(1) The state where the child has lived w/ a parent for at least 6 consecutive months OR
(2) State that was the child’s home state within the last 6 months and the child is absent from the state, but a parent continues to live in the state.

68
Q

Initial Award of Interstate Child Custody: No Home State

A

Court can assume jurisdiction if the child has a significant connection with the state and there is substantial evidence of the child’s wellbeing in the state

69
Q

Initial Award of Interstate Child Custody: Deferred Jurisdiction

A

If a state w/ Home State or significant connection jurisdiction declines, a state can assume deferred jurisdiction

70
Q

Initial Award of Interstate Child Custody: Default

A

If no other state exercises jurisdiction, any state can by default

71
Q

Modification of an Existing Decree of Interstate Child Custody

A

The issuing state exercises continuing exclusive jurisdiction UNLESS

(1) no child or parent continues to reside in the state OR
(2) the child no longer has significant connection with the state and no substantial evidence in the state

only issuing state can decide if no connection

72
Q

Interstate Child Custody: Declining Jurisdiction

A

May not exercise jurisdiction if:
(A) proper proceeding already pending elsewhere when petition is filed unless the other court defers OR
(B) person seeking to invoke court’s jurisdiction has engaged in unjustifiable conduct.

A court may decline to exercise jurisdiction if it determines it is an inconvenient forum

73
Q

Interstate Child Custody: Temporary Emergency Jurisdiction (3 Elements)

A

(1) Child is physically present in the state AND
(2) the child has been abandoned OR
(3) Necessary to protect child b/c the child, sibling, or parent is subject to abuse

74
Q

Custody– 2 Types

A

Legal Custody: right to make decisions regarding child

Physical Custody: possession and control of child

Hallmark consideration: best interest of the child

75
Q

Best Interest of the Child: 6 Factors

A

(1) Wishes of parents (constitutionally protected)

(2) Preference of the child
- if under 8, not considered
- if 12 and up, given great weight

(3) Relationship w/ child/parents/siblings/others
(4) Home/school/community
(5) Physical and mental health of parties
(6) Primary caregiver– no gender preferences! or preferences for financial ability

76
Q

Joint Custody

A

Can mean joint legal, physical, or both.

Intended to promote involvement of both parents. Encouraged and awarded if both parents agree. If parents openly hostile/unable to agree, court will not award joint custody.

77
Q

Sole Custody

A

Can be awarded to one parent when strong evidence demonstrates it is in the best interest of the child. Other parent is entitled to rxble visitation unless harm will result to child.

78
Q

Custody to a Nonparent

A

B/c of constitutional parent protections, parent usually wins.

Nonparent may prevail if can show:

  • harm to the child OR
  • unfitness (abandonment, neglect, abuse, surrendered custody)
79
Q

Parental Visitation

A

Absolute denial to a parent is rare.

May deny and restrict (i.e. supervise) if injury to child may result

80
Q

Non-parent Visitation

A

Allowed by state statute.

Generally, applies in extraordinary circumstances, such as divorce, separation, or death.

Determinative factor is the prior relationship between the child and the third party

SCOTUS: if a parent is fit, their wishes regarding nonparent visitation are constitutionally protected (“special weight”)

81
Q

Modification of Custody

A

Generally brought by motion of a party or the court in the original action. Party seeking modification bears the burden of proof.

Standard requires substantial and material change of circumstances affecting the child’s wellbeing since prior determination of custody.

Overriding concern: best interest of the child.

May be time-barred (e.g. cannot seek modification within certain period of time following entry of order/modification)

82
Q

Child Custody: Relocation

A

State statutes generally require notice to other parent and a court hearing to determine whether relocation is permitted.

Courts consider:

  • Is it BIOC?
  • Motivated by benefit to family?
  • Not intended to thwart relationship w/ other parent?
83
Q

Enforcement of Child Custody Awards: 4 Methods

A

(1) Violations of custody and visitation can be enforced thru civil contempt proceedings
(2) State habeas corpus proceedings (for physical custody of child)
(3) Suit in equity (asks court to enjoin conduct in violation of outstanding order)
(4) Out of state decrees will be enforced if a certified copy is filed with the clerk of court. Will not remove continuing exclusive jurisdiction of another state, but will allow enforcement of the order in the state.

84
Q

Child Kidnapping

A

If child is removed from state, custodial parent must file custody order in new jurisdiction and seek enforcement or obtain writ of habeas corpus from new jurisdiction.

Child kidnapping is a state crime (felony).

Federal Parental Kidnapping Prevention Act mandates states give full faith and credit to another state’s child custody determination if jurisdiction is proper.

International Parental Kidnapping Prevention Act provides international relief.

85
Q

Non-Marital Children: Constitutional Scrutiny

A

Intermediate scrutiny in equal protection analysis (substantial relationship to an important government interest).

SCOTUS will not uphold discriminatory legislation intended to punish the offspring of illicit relationships.

86
Q

Parentage Action

A

Can be brought to establish a biological relationship and settle issues of paternity. Once parentage established, parent owes support and has rights of custody and visitation.

Records of paternity actions usually kept sealed

87
Q

Presumption of Parentage: Husband of the Mother

A

Husband of the mother is presumed father if:

(1) child born during the marriage OR
(2) child is born within 300 days of the termination of the marriage OR
(3) child born during a void/voidable marraige

Can be rebutted but requires heightened proof– generally clear and convincing. In some states, even if father is NOT the biological father, disestablishment of paternity is prohibited (BIOC).

88
Q

Unwed Fathers: Considered Child If

A

(1) After the birth, the father marries the mother
(2) Father holds child out as biological child
(3) Father consents to name on the birth certificate
(4) Father acknowledges paternity
(usually requires formality)
(5) Judgment decreeing paternity

89
Q

Unwed Fathers and Due Process Clause

A

Unwed fathers are protected by Due Process Clause and can have rights to custody of child if they demonstrate parental responsibility: acknowledgment of paternity, supervision, education, protection, care, support.

May be precluded from tort recovery for death of a child he did not legally recognize.

90
Q

Paternity Suit

A

Generally used by unwed mother to obtain child support from father. Once paternity is established, father can assert right of custody and visitation.
Statute of limitation tolled during minority of child, so will last at least until 18.
Level of proof varies: clear and convincing or preponderance
Blood/tissue sampling best
Testimonial and other medical evidence sufficient

91
Q

Voluntary Termination of Parental Rights

A

May voluntarily relinquish all rights to child (often in preparation for adoption)

92
Q

Involuntary Termination of Parental Rights (6 Grounds)

A

State may not interfere in family decision-making unless decision endangers wellbeing of child. May seek termination for:

(1) Infliction of serious physical harm on the child or other children in the household
(2) Abandonment
(3) Neglect
(4) Failure to provide support w/o cause for specified time period (usually 1 yr)
(5) Mental health of parent
(6) Parental unfitness (physical/psychological)

Parent cannot terminate rights of other parent

Must be established by CLEAR AND CONVINCING evidence

93
Q

Agency Adoption

A

Licensed adoption agency acts as intermediary

94
Q

Private Adoption

A

Private persons act as intermediaries to arrange adoption

95
Q

Adoption Requirements (2)

A

(1) Termination of biological parents’ rights

(2) Creation of new parents’ rights

96
Q

Termination of Biological Parents’ Rights

A

(a) Consent of biological parents required unless
- Rights already terminated
- Unreasonably withheld against BIOC
(b) Consent of unmarried father
- required if actively involved in child’s life
- may not be required if parent abandoned the child, failed to support for certain length of time, or never attempted to establish a relationship.

97
Q

Creation of New Parents’ Rights (3 Requirements)

A

(a) Consent of adoptee (if over 12/14 yo)
(b) Home study– can be waived for relative adoptions
(c) Payment of money prohibited; exception for medical costs of pregnancy

98
Q

Adoption Records

A

Generally sealed unless bio parents consent to contact

99
Q

Consequences of Adoption

A

Severs all rights and obligations of bio parents to child and creates duties to adoptive parents and child. In some states, child still has right to inherit from bio parents.

100
Q

Assisted Reproduction: Maternity

A

Mother-child relationship established by birth (unless valid gestational agreement)

Adjudication of woman’s maternity

Adoption by mother

Adjudication confirming mother of child born to gestational surrogate

101
Q

Assisted Reproduction: Paternity

A

Husband who is married to a woman who has a child through assisted conception is the child’s father unless he proves his lack of consent within 2 years after birth

102
Q

Gamete Donors

A

1) Egg/sperm donors are NOT parents of a child conceived through assisted conception
2) Some jurisdictions allow sperm donor to have rights if agreed in writing by DONOR and the WOMAN

103
Q

Posthumous Conception

A

If gamete provider consented in writing that his or her gametes could be used after death to conceive a child, that child can be considered child of the deceased parent

104
Q

Genetic Surrogate

A

Use of carrier’s own gametes

105
Q

Gestational Surrogate

A

Gametes are not the carrier’s

106
Q

Gestational Agreements Requirements (2)

A

(1) Gestational mother, her husband (if married), and intended parents must enter into written agreement
(2) Court must approve agreement if:
- Court has jurisdiction
- Child welfare conducted home study unless waived
- Agreement is voluntary
- Provision for health care costs until birth– cannot limit surrogate’s rights to make medical decisions
- If surrogate promised consideration, that consideration must be reasonable
- Subsequent marriage or divorce of intended parents does not invalidate agreement
- Agreement can be terminated by any of the parties at any time before the embryo transfer
- If agreement unenforceable, gestational mother= mother, regardless of biology
- if agreement approved, intended parents must file notice of birth and court will issue order of parentage

107
Q

Constitutional Privacy

A

SCOTUS has recognized the right of privacy as implicit in the concept of “liberty” within the protection of the DPC. Any regulation of it is invalid unless necessary to a compelling government interest.

108
Q

Marital Agreements

A

Agreement between spouses who intend to remain married.

Usually alters or confirms marital rights or obligations during the marriage or at separation, dissolution, death.

Most often, concern property rights.

Most states treat these the same as premarital agreements.

109
Q

Consanguinity

A

Marriages between parties who are too closely related

110
Q

Nonage

A

Spouse who was under the statutory age and married without getting required consent can have marriage invalidated

111
Q

Incurable physical impotence

A

Inability to have normal sexual relations with a spouse.

Grounds for annulment– marriage is voidable and subject to ratification.

Inability to have children is NOT impotence

112
Q

Lack of Capacity

A

Lack of understanding due to a mental condition or influence of drugs or alcohol

Lack of mutual assent to marriage

Duress

Fraud going to the essentials of the marriage (misrepresentation as to ability or willingness to engage in or have sexual intercourse)

113
Q

Annulment: Jurisdiction

A

Heard by equity courts in states without statutes on the subject.

State of domicile of either party has jurisdiction

Place of celebration of the marriage also has jurisdiction

114
Q

Preliminary and Interlocutory Divorce Decrees & Final Crders

A

During period was decree of divorce granted but not yet final, parties cannot remarry, and they continue to inherit from each other

115
Q

Mediation

A

Court may refer parties to a divorce action to a court-approved mediator.

Mediator is a neutral party who helps the divorcing parties work through issues like child support, custody, visitation.

Agreement reached by parties is to be based on the decision of parties and not decision of mediator, who may not advocate for either party, or coerce a party to make a decision.

Mediator misconduct may result in court setting aside the agreement.

All mediator proceedings and records are confidential.

116
Q

4 Mediator Duties

A

(1) Must explain mediation process, including right to independent counsel
(2) Ensure parties have enough information for informed decision-making
(3) Be impartial and disclose any potential bias
(4) Control for any power imbalance between the parties

117
Q

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A

Avoid jurisdictional disputes with courts of other states in matters of child custody and visitation, promote interstate cooperation, facilitate interstate enforcement of custody and visitation orders

118
Q

Counsel for Child

A

Court may appoint guardian ad litem for child in a custody dispute, but only when counsel can provide substantial assistance in reaching the result in the child’s best interest

119
Q

Paternity Disestablishment

A

Most states refuse to terminate an established parent-child relationship, but some states have made it possible for men (even fathers of maternal children) to establish nonpaternity.

If man proves that he cannot be the father of the child, his paternity will be disestablished and child support obligation eliminated.

120
Q

Citizenship of Child Born Abroad to Unmarried American Parent

A

When an unmarried American woman gives birth abroad, her child may be granted US citizenship without formally establishing her parentage.

Child of unmarried American man born abroad: father must take specific steps to establish his paternity in order to make child a US citizen

121
Q

Legal Disabilities of Childhood

A
  • May own and convey property, but can disaffirm any conveyance upon reaching age of majority
  • May enter into and enforce contracts, but may disaffirm at any time upon reaching age of majority and for reasonable time thereafter
  • Incapable of consenting to medical care– Exceptions for abortion, birth control, or treatments for STIs. State can override withholding of parental consent if to do otherwise would cause irremediable injury to the child
  • Cannot make valid wills
  • Can commit torts, but may be judged by a more lenient standard
  • Children who commit crimes are generally adjudicated under delinquency laws rather than criminal statutes
122
Q

Emancipation

A

Removal of disabilities of minority, and child is considered adult

Most states consider married minors to be emancipated

123
Q

Intrafamily Tort Immunities

A

Either spouse may maintain a tort action against the other

-Parent-child immunity abolished by most states; not applied for intentional tortious conduct and in some automobile accident cases. These are personal injuries.

124
Q

Parent-Child Relationship: Tortious Injury

A

Child many not recover against one who tortiously injures his parent

Parent may recover when child is tortiously injured

125
Q

Parent-Child Relationship: Interference with Custody

A

Parent whose lawful custody is interfered with may recover tort damages in actions for abduction or enticement

Parties who conspire to conceal information about a newborn child’s birth or location may be held liable for participation in a civil conspiracy

126
Q

Nature of Action for Family Relationship Interference

A

Except for claims based on direct interference (e.g. abduction), these actions are DERIVATIVE– recovery depends on success of injured family member’s own action.

In addition to defenses against plaintiff, any defense that would prevent recovery by the injured family member (ie contributory negligence) will also prevent recovery in the interference action.

127
Q

Adoption: Venue

A

Most states require person seeking to adopt be a resident of the county where the petition is filed.

Some states permit filing in the county where the child resides or where office of child placement agency is located.

128
Q

Adoption: Jurisdiction

A

Court has jurisdiction if the child lived in the state with a parent or someone acting as parent for six months before the proceeding; the prospective adoptive parent lived in the state for six months before the proceeding; the agency that placed the child for adoption is in the state and it is in the child’s best interest that the court assume jurisdiction because the child and the child’s parents have a significant connection with the state, and there is substantial evidence concerning the child’s care in the state; the child and the prospective adoptive parent are physically present in the state and the child has been abandoned, subjected to, or threatened with mistreatment or abuse, or is neglected; it appears that no other state would have jurisdiction or another state has declined to exercise jurisdiction and it is in the best interest of the child that the court assume jurisdiction.

Bar Exam (15 decks)

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