Family Law- Child Custody Flashcards
What are the types of custody?
Legal custody- right to make major decisions about the child
Physical custody- right to make every day decisions for daily care and ctrl of the child
Joint custody: preferred status
What does joint custody entail?
o Applies to the majority of cases (often statutorily favored)
o Both parents must be willing and able to cooperate for the child’s best interest.
o Neither parent has a superior right to make decisions on behalf of the child.
o There is usually a procedure for resolving conflicts
o Not required to share time 50-50, but the child usually maintains a residence with both parents
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
applies to the determination of court jurisdiction in custody cases.
- Purpose—prevent forum shopping regarding child custody and visitation
- Determines which state can have jurisdiction, change it, or decline it
- Under UCCJEA, the court must have subject matter jurisdiction.
What is the home-state jurisdiction?
Under UCCJEA this is the court that made the initial custody determination.
The law states that the homestate is where the child lived with a parent for six months.
If the child has moved, the home state will still have jurisdiction if:
It was the home state within the past six months AND a parent or guardian still lives there.
Significant connection jurisdiction
the second type of jurisdiction that will operate if
No other state is the home state;
o The child and at least 1 parent have “significant connections”
to a new state; and
o There is substantial evidence in that state concerning the child
Default Jurisdiction
Applies when:
o There is no court that has home-state jurisdiction;
o There is no court that has significant-connection jurisdiction; and
o A court in a state that has appropriate connections to the child
Temporary Emergency Jurisdiction
o A court can assume emergency jurisdiction if:
The child is in danger and
The child requires immediate protection.
o If a prior custody order exists, the new court must allow time for the parties to return to that prior court to argue the issues.
o If there is no prior custody order in place, then the emergency order stays in place until the home state changes it.
Exclusive Continuing Jurisdiction
Exclusive Continuing Jurisdiction
The court that made the initial rulings in the custody case continues to have jurisdiction until:
o The parties no longer reside in the state; or
o The child no longer has a significant connection to the state and no substantial evidence of the child’s condition continues to be available in the state.
Can a state that isn’t the home state enforce child custody orders?
Yes. To enforce the petitioner must
a. Registration of order
Get a certified copy of the order.
Register it with the new court.
The new court can then grant relief under that order.
What happens when you ask the court to enforce?
The court will start the Expedited enforcement of a child custody determination:
The respondent must appear the very next judicial day after being served with an order, or
else the petitioner will be awarded immediate physical possession; unless:
The custody order was not registered and one of the following exists:
* The court did not have jurisdiction;
* The order had been stayed or vacated; or
* Notice was improper; or
The order was registered but stayed, vacated, or modified.
Due process
Best Interest and Welfare of the Child Standard
The standard for determining child custody
* Unless the parent is deemed to be _unfit, a parent is determined to be in the best
position to care for the child.
* There are no gender-based legal presumptions for custody in favor of either parent.
Which factors will the court consider when applying the Best interest and welfare standard during child custody determinations?
Who was the primary caregiver during the marriage and separation would be the first factor to consider but not the only one.
other factors:
Parents’ past sexual conduct if negative for child
child’s age
child’s preferences if mature enough
If there are other siblings court prefer not to separate.
FIt parent presumption
Legal parents presumptively get parental responsibility unles:
they are deemed unfit
It is detrimental to the child, or
the parent has terminated those rights
A fit parent is presumptively entitled over a grandparent to keep those rights
A fit parent’s decision must receive a “special weight” in their decision to deny visitation to third parties.
Visitation rights of non custodial parent
B. Visitation (Parenting Time)
* Parents have a constitutional right to see their child, but visitation must be in the best interest of the child.
* Typically, parents create an agreement as to the time, place, and circumstances of visitation.
* Denying non-custodial visitation is very unusual.
o Only allowed if it would “seriously endangers” the child
* Can require supervised visitation or place other time restrictions on visitation (e.g., restrict overnights)
Third party visitation rights
May apply to stepparents, grandparents or nonbiological co-parents
o Typically, only granted in cases of in loco parentis before the divorce
The majority of states have a statute regarding grandparent visitation.
No state guarantees grandparent visitation.
When a grandparent requests visitation that has been denied, the courts will look at:
* The fit parent’s decision;
* The conditions of visitation set forth in the applicable statute, and
* The best interest of the child.
Which remedies can we apply for interference with a parent’s visitation rights?
Interference or refusal to comply with a visitation order may be remedied by:
o A change in custody arrangement;
o contempt proceedings; or
o Make-up time.
Rights of the unwed biological father in custody cases?
Unwed biological father
An unwed biological father has a right to substantive due process.
To enforce visitation rights, the father must demonstrate a commitment to parenting responsibilities.
If the mother is married to another man and refuses to join in a paternity action, the state may preclude the biological father’s paternity petition.
Enforcement of foreign decrees
The Full Faith and Credit Clause allows for custody and visitation orders to be enforced,
if the original order was registered in the second state.
Generally, the new court cannot modify the order unless:
* The prior court has denied jurisdiction; and
* The out-of-state party is given sufficient notice.
What is the standard applied in modification of custody proceedings?
Most jurisdictions use the “change in circumstances” standard.
o The change in circumstances must be substantial and unforeseen when the final judgment was entered.
o Modification must be in the best interest of the child.
o The original state retains subject-matter jurisdiction.
o Some states impose a time barrier if there is no immediate danger to the child.
o Failure to pay child support is not a basis to deny visitation or to modify a visitation order.
What are move away cases?
Also know as Relocation
Some states place most weight on the best interest of the child.
Some states give relocating parent the presumptive right to
relocate so long as the child’s welfare is not prejudiced.
The relocating parent often has the burden to demonstrate a “legitimate and reasonable purpose.”
* Other states place the burden on the objecting parent to
show that relocation is not in the best interest of the child or will harm the child.
Trend—to allow a parent to relocate, provided there is a legitimate reason
What are the factors the courts will consider when examining a petition to relocate a minor?
The court will weigh any factor that affects the best interest of the child, including:
* Potential involvement of the non-relocating parent with the child;
* Age and needs of the child (and special needs);
* Ability to preserve the relationship with the nonmoving parent;
* Child’s preference;
* Movant’s history of promoting parenting time;
* Enhancing effect on the child’s life;
* Each parent’s motive; and
* Any other factor
Note 7: If joint custody, then it is harder to relocate; courts protect the nonmoving parent more.
When is parental consent necessary?
Medical procedures unless:
Emergency
Child is older and mature
Public health issues such as abortion, pill
