Family Law

Question 1

The interstate enforcement and modification of child support is governed by

Answer 1

the Uniform Interstate Family Support Act (UIFSA) which has been adopted by all states.

Question 2

Under UIFSA, a state that originally issues a child support order has

Answer 2

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.

Question 3

UIFSA does not apply to disputes over property division

Answer 3

A petition to modify a property settlement is a domestic relations issue.

However, UIFS does not apply to divorce-property disputes.

Question 4

Pre-marital agreements under UPPA

Answer 4

a premarital agreement entered into after full disclosure of assets and onbligations is bind unless it was entered into involuntarily.

UPAA states that the party against whom enforcement is sought must prove (1) involuntariness or (2) both that “the agreement was unconscionable when it was executed” and that he or she did not receive or waive a “fair and reasonable” disclosure and “did not have or reasonably could not have had an adequate knowledge of the others assets and obligations.

Question 5

In considering whether a premarital agreement was voluntary executed

Answer 5

the 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. Many of the reported cases, involve a claim of involuntariness based on presentation of an agreement very close to a wedding.

in analyzing whether an agreement signed under these circumstances is voluntary , courts have looked at a wide range of facts, including the difficulty of conferring with independent counsel, other reasons for proceeding with marriage (for example, a preexisting pregnancy), and financial losses and embarrassment arising from cancellation of the wedding. The older cases tend to be more sympathetic to a spouse who receives a last minute demand.

Question 6

In all states (whether community property or common law jurisdictions) a divorce court may divide marital (community) property without regard to title.

Answer 6

a divorce court may not divide separate property.

Question 7

in a minority of jurisdictions, so called “hotchpot” jurisdicitons

Answer 7

the court may divide all assets, whenever or however acquired; a fee states permit the division of separate property in special circumstances, such as hardship.

Question 8

an asset that is initially separate property

Answer 8

may be partially transformed into divisible marital property if marital funds or significant effort by the owner-spouse enhance its value or build equity.

in the vast majority of states, the appreciation of separate assets during the marriage does not create marital property.

Question 9

In dividing marital assets, divorce courts look at

Answer 9

duration of the marriage, indictors of each spouses future needs (including age, heath, resources, and occupational opportunities); and contributions of the parties to the marriage and the acquisition of assets.

Question 10

How can a child support order issued in one state (the issuing state) be enforced in a different state (the initiating state)?

Answer 10

The Uniform Interstate Family Support Act (UIFSA) provides a two-state procedure that avoids the need to get personal jurisdiction over a non resident parent.

The parent seeking to obtain an enforcement order from the issuing state can, by filing an enforcement petition in a court of the new state (the initiating state) that will be forwarded to the relevant State (issuing state) court.

Ex: H and W were both residents of state A when a custody order and child support order were issued. Later, W moves to State B, and wants to enforce State A order, she will be able to do this by filing an enforcement petition in a court of State B that will be forwarded to the relevant State A court.

Question 11

The federal Parental Kidnapping Prevention Act (PKPA) provides

Answer 11

that 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 conflincing state law.

Question 12

Virtually all states have now enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which contains custody-modification standards virtually identical to those of the PKPA.

Under the UCCJEA:

Answer 12

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 significant connection between the child and the person remaining in the state and that substantial evidence is no longer available in that state.

Question 13

Most states permit modification of custody order only when

Answer 13

there has been a substantial change in circumstances since the original custody decree.

Question 14

Modification of a custody places the burden of proof on which parent?

Answer 14

a group of states place the burden of proof on the Relocating custodial parent and requires that parent to show that the move serves the child’s best interests. In some of these states, the relocating parent must additionally show that the. move is for a legitimate purpose and reasonable in light of that purpose.

Other states place the burden of proof on the objecting parent to show that the move does not serve the Childs best interest; some additionally require the objection parent to show that the move would be harmful to the child.

Question 15

Some states, in joint-custody cases, in modifying a custody order (by the relocating parent) apply standards that

Answer 15

are more protective of the parent who is not relocating. The best interest is applicable when modifying a joint-custody order

Question 16

Can a state court modify a child support order retroactively or prospectively?

Answer 16

A state court may not retroactively modify the child support order because federal law forbids retroactive modification in all circumstances.

In all states, modification of a support order is based on a finding that there has been a substantial change in circumstances that significantly reduces the child’s need for support or the obligor’s capacity to pay.

Question 17

Parental relocation is a common triggering factor in custody-modification cases, and…

Answer 17

“[t]his area of law has been unusually unstable. . . . [However, t]he clear trend has been that of
increasing leniency toward the relocating parent with whom the child has been primarily living.”

Question 18

Spusal support obligation is limited by the common law doctrine of nonintervention

Answer 18

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.

Question 19

Parental rights

Answer 19

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.

The power of a 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.

Question 20

Vaccination mandate

Answer 20

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.

Question 21

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 21

which has been adopted in all but one state (MA), 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 court would have jurisdiction under the above standards or other courts having jurisdiction have declined to exercise it.

Question 22

The federal Parental Kidnapping Prevention Act (PKPA) similarly grants exclusive jurisdiction over a child-custody petition to a child’s home state”

Answer 22

Under the supremacy clause, PKPA takes precedence over any conflicting state law.

Question 23

In all states, when a non parent seeks to obtain a child’s custody from a fit legal parent,

Answer 23

the parent is accorded 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 “any 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 parents . . . determination of her daughter’s best interest,” 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..

Question 24

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:

Answer 24

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 is sought succeed in showing involuntariness, unfairness, or lack of adequate disclosure.

Question 25

A premarital agreement regarding child custody is

Answer 25

unenforceable. Because of the strong public policy in favor of protecting the best interest of children, courts have invariable found that provisions in a premarital contract relating to children, including provisions relating to child custody and visitation are unenforceable.

Question 26

child custody decision making in invariable governed by

Answer 26

the “best interest of the child” standard.

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.

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, moreover, may not be based on evidence which raises a mere surmise or speculation of possible h arm.” 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.

Question 27

A custody decision is based on a range of factors, including

Answer 27

(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.

Question 28

Formation of a valid common law marriage requires that the partners:

Answer 28

(1) cohabited, (2) agreed to be married, and (3) held themselves out to others as a married couple.

A further analysis to establish a common law marriage, the proponent must show (1) capacity to enter a marital contract, (2) a present agreement that the two parties are married, (3) cohabitation, and (4) “holding out” a marital relationship to the community.

Question 29

Under generally accepted conflict-of-laws principles, a marriage valid under the laws of a state where it was contracted

Answer 29

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.

Question 30

Bigamy is illegal in all states; no individual may

Answer 30

have more than one legal spouse at a time. Because of the ban on bigmy, when a first marriage has not been legally terminated, a second marriage has no legal effect and is void.

Question 31

The presumption that the latest marriage is valid is one of the strongest known to the law

Answer 31

and can be rebutted only by “strong . . . evidence that the prior marriage still subsists or by cogent and conclusive evidence.”

The presumption is designed to protect the parties’ expectations; thus, some cases hold that the presumption’s strength increases with the lapse of time and the birth of children in the later marriage.

Question 32

In some jurisdictions, the putative-spouse doctrine applies

Answer 32

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.

Question 33

In states that do not recognize the putative-spouse doctrine, the spouse may still be able to recover some share of “marital” assets

Answer 33

“The trend of modern statutes . . . is increasingly too 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.”

Question 34

In states following the California Supreme Court’s ruling in Marvin v. Marvin, property support rights between

Answer 34

cohabitants can be founded upon an express or implied contract to share assets.

Although the Marvin theory is almost invariably applied to cohabiting couples who have not entered into a ceremonial marriage, some states refuse, on public policy grounds, to enforce cohabitation agreements.

Question 35

Visitation to a nonparent

Answer 35

The Supreme Court of the United States 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 interest 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.

Question 36

A marriage valid under the place in which it was contracted

Answer 36

is valid elsewhere unless it violates a strong public policy of the state which has the most significant relationship with the spouses and the marriage.

Perhaps because the vast majority of states once permitted common law marriage, courts in states that do not recognize common law marriage have consistently held that, if a man and woman were domiciled in a state that permits common law marriage and their conduct met the requirements of that state’s law for establishing such a marriage, recognition of the marriage does not violate a strong public policy.

Question 37

Constitutional protection to unwed fathers

Answer 37

when an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in a personal contact with his child acquires substantial protection under the Fourteenth Amendment’s Due Process Clause.

Interpreting this standard, the U.S. Supreme Court has held that a father who lived with his children and their mother and held the children out as his own is entitled to a hearing to demonstrate his parental fitness before his parental rights may be terminated.

The court has also held that the equal protection clause requires the state to give a father the opportunity to veto his child’s adoption when state law grants a similarly situated unmarried mother a veto.

Question 38

A home state continues to have exclusive jurisdiction to issue an initial custody order even if the child is absent from the state when a custody petition is brought,

Answer 38

so long as no more than six months has elapsed since the child’s departure from the jurisdiction and “a parent or person acting as a parent continues to live in” the home state. The physical present of, or personal jx over, a party or a child is not necessary . . . to make a child-custody determination.

Question 39

Under UPAA, a court may not refuse to enforce a premarital agreement based on unconsionability unless

Answer 39

the court also finds lack of adequate disclosure or knowledge.

Question 40

In states that have not adopted the UPAA, courts employ a range of standards, and may invalidate a premarital agreement on grounds of junconsciounability even if both parties have fully disclosed their assets. In evaluating unconscionability

Answer 40

some states require courts to determine whether the agreement was unconscionable when signed; others require a determination of uncoonscionability at the time of divorce; yet other states permit courts to invalidate an agreement based on unconscionability at either point in time or to invalidate an agreement simply because it is unfair. And some states specifically disallow spousal support waivers or apply special standards to such waivers.

Question 41

An asset that is initially separate property may be transformed into marital property if

Answer 41

marital funds or significant efforts by the owner-spouse enhance its value or build equity during the marriage.

Question 42

In evaluating need (for alimony purposes) a court typically considers

Answer 42

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 may also be taken into account. In evaluating a spouses’s contributions to the 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.