Family Law > IV. Legal Separation and Dissolution of Marriage/Divorce > I. Child Custody and J. Separation Agreements

Question 1

Jurisdiction for child custody is governed by __________ and the rules are applicable to both ______ and _______ actions.

Answer 1

Jurisdiction for child custody is governed by the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) and the rules are applicable to both original and modification actions.

This was passed to discourage forum shopping (i.e. “child snatching”)

Question 2

The primary basis (UCCJEA’s preferred jurisdictions) for jurisdiction to make original custody orders is the child’s ______ or _________ state.

Answer 2

the child’s home state (kid lives here) or extended home state (kid just moved from here)

Question 3

Where is the child’s home state for purposes of jurisdiction over original child custody orders?

Answer 3

home state = where the child resided for six months immediately prior to the proceeding

Question 4

Where is the child’s extended home state for purposes of jurisdiction over original child custody orders?

Answer 4

extended home state = was the child’s home state within the last six months, and although the child no longer lives there, one of the parents continues to live in that state.

Question 5

If there is no home state or no extended home state, a court may take jurisdiction if the state has both:

Answer 5

“significant connection” jurisdiction

1) a significant connection to the child and at least one of the parents; and
2) evidence concerning the child

Question 6

When can temporary emergency jurisdiction be obtained?

Answer 6

When the child is present in the state and has been abandoned, abused, or neglected.

Question 7

If all other forms of jurisdiction fail, what is the only other basis for a court to obtain jurisdiction to make a valid child custody order?

Answer 7

1) If all courts having jurisdiction decline to exercise; or
2) if no state has jurisdiction

If there’s no home state, extended home state, significant connection, temporary emergency or this “no other state” jurisdiction, then a court can’t enter a valid child custody order.

Question 8

A court that has jurisdiction over a child custody order may decline to exercise jurisdiction because either:

Answer 8

(i) a person requesting jurisdiction has engaged in unjustifiable conduct (unclean hands); or
(ii) the court determines that another jurisdiction is a more appropriate forum (inconvenient forum)

Question 9

child custody jurisdiction hypo:

A child custody action is filed in Missouri even though the child was born and raised in Europe. The child came to Missouri three months ago with his mother and has lived here with her continuously since. The child is currently enrolled in school, active in local sports activities and has developed a circle of friends. Does a Missouri court have subject matter jurisdiction to enter an initial order of custody? If so on what grounds?

Answer 9

Yes - MO has SMJ under either:

1) significant connection jurisdiction because the child is in school and parent is in MO; or
2) “no other state” jurisdiction.

Every state has adopted UCCJEA, which determines jurisdiction over original child custody orders.

Under UCCJEA, there is an absolute preference for home state and extended home state jurisdiction.

1) Is there home state jurisdiction? (last 6 mos?)
* **NO
2) If not, is there extended home state jurisdiction? (was home state w/in 6 mos and 1 parent still there?)
* **NO
3) If not, is there any of the following:
- “significant connection” jurisdiction? (child+parent sig conn to state + evid about child there?)
* **YES, child in school in MO + mom in MO
- “emergency” jurisdiction (child found + abandoned, abused or neglected)
* **NO
- or “no other state” jurisdiction (all other states decline to exercise or no state has jurisdiction)
* **YES
4) If not, no state can make a valid child custody order
* **N/A

Question 10

4 step child custody order jurisdiction analysis to use:

Answer 10

Every state has adopted UCCJEA, which determines jurisdiction over original child custody orders.

Under UCCJEA, there is an absolute preference for home state and extended home state jurisdiction.

1) Is there home state jurisdiction? (last 6 mos?)
2) If not, is there extended home state jurisdiction? (was home state w/in 6 mos and 1 parent still there?)
3) If not, is there any of the following:
- “significant connection” jurisdiction? (child+parent sig con to state + evid about child there?)
- “emergency” jurisdiction (child found + abandoned, abused or neglected)
- or “no other state” jurisdiction (all other states decline to exercise or no state has jurisdiction)
4) If not, no state can make a valid child custody order

Question 11

A custody action is filed in MO concerning a 4 year old child who has lived most of his live in LA. 2 months ago, the father brought the child to MO without the mother’s permission. He has purchased a home in the state, placed the child in day care, selected a local pediatrician and enrolled the child in gymnastic lessons. The mother filed a petition for custody in LA subsequent to the MO petition. Which state has SMJ to enter an initial order of custody?

Answer 11

Louisiana. It was child’s home state within the last 6 months and the mom still lives there.

NOTE: Even though Missouri could otherwise have significant connection jurisdiction due to child and father’s living there and evidence about the child available there, it will LOSE to the UCCJEA presumption of home state/extended home state.

ANALYSIS:
* Every state has adopted UCCJEA, which determines jurisdiction over original child custody orders.
* Under UCCJEA, there is an absolute preference for home state and extended home state jurisdiction.
* 1) Is there home state jurisdiction? (last 6 mos?)
NO
* 2) If not, is there extended home state jurisdiction? (was home state w/in 6 mos and 1 parent still there?)
***YES, Louisiana. It was child’s home state within the last 6 months and the mom still lives there

Question 12

A custody action is filed in MO concerning a 4 year old child who has lived most of his live in LA. 10 months ago, the father brought the child to MO without the mother’s permission. He has purchased a home in the state, placed the child in day care, selected a local pediatrician and enrolled the child in gymnastic lessons. The mother filed a petition for custody in LA subsequent to the MO petition.

MO has home state jurisdiction because the child has been there for > 6 months. However, ________. Further, LA has _______.

Answer 12

Missouri may decline jurisdiction because of unclean hands. Further, LA will have significant connection jurisdiction to take it instead.

Question 13

What are the 3 procedures a court can require in a child custody case?

Answer 13

1) parenting plan
2) appointment of a guardian ad litem; and
3) interview of child

NOTE: The interview is done by the court, at the court’s discretion, to determine his or her wishes

Question 14

Many states require parents to submit a proposed parenting plan which is a detailed description of _______.

Answer 14

the manner in which decisions concerning the child will be made after the divorce.

Question 15

A guardian at litem is _________.

Answer 15

a person who will make a recommendation to the court as to the best interest of the child.

Question 16

What are the majority/minority rules about judicial discretion in appointing a guardian ad litem?

Answer 16

Majority of states: Court has discretion in all child custody cases to appoint a guardian ad litem
Minority of state: Court has discretion in child custody cases except appointment is mandatory in cases where there are allegations of abuse or neglect.

Question 17

What are the different kinds of child custody orders?

Answer 17

1) Sole custody
2) Joint custody (a. joint legal custody and b. joint physical custody); and
3) Third Party custody

Question 18

Is the noncustodial parent entitled to visitation in a sole custody arrangement?

Answer 18

Yes, unless it would be harmful to the child.

NOTE: The noncustodial parent also has access to all the child’s records.

Question 19

Many states prefer which custody arrangement?

Answer 19

Joint legal custody

Question 20

What does joint legal custody mean?

Answer 20

that the parents share in decisions about major aspects of a child’s life, such as medical, school, and religious upbringings

Question 21

What does joint physical custody mean?

Answer 21

that the parents share time with the child.

NOTE: it does necessarily have to be equal time, just a significant time with each

Question 22

The court can award custody to a third party. In some states, this requires a finding of ________. In other states, this requires _______.

Answer 22

parental unfitness or extraordinary circumstances

Question 23

What must you ALWAYS write when talking about awarding child custody?

Answer 23

The standard in making a child custody award is the BEST INTEREST OF THE CHILD.

Question 24

What factors should a court consider when inquiring as to the best interest of the child in order to make a child custody award?

What factors are NOT to be considered?

Answer 24

Consider:

a) the child’s wishes (usually for teens)
b) the parent’s wishes as to custody
c) the mental and physical health of all parties, including a history of abuse (includes domestic abuse b/w parents)
d) the need for a continuing relationship with both parents

DO NOT CONSIDER:

a. gender of children
b. age of children; and
c. financial status of the parents (that’s what child support is for)

Question 25

A parent is entitled to unsupervised visitation rights unless it can be shown that (i) visitation would cause harm to the child or _________.

Answer 25

(ii) the parent has been found guilty of certain crimes where the child is a victim.

Question 26

Third party visitation rights, present in most states, allow ________ to seek visitation under certain circumstances.

Answer 26

grandparents and/or stepparents

Question 27

In order for a third party to receive visitation rights, there must always be a finding that __________.

Answer 27

doing so is in best interest of the child.

Question 28

In what 2 situations is third party visitation generally granted?

Answer 28

1) when the parents are divorcing; or

2) when one parent dies and the other parent refuses visitation to the deceased parent’s family

Question 29

Under the Supreme Court’s decision in Troxel, there is a rebuttable presumption that it is not in the best interest of a child for a court to ________.

Answer 29

order nonparent visitation over the objection of parents who are married and living together with the child.

Question 30

How many states can have modification jurisdiction under UCCJEA? Why?

Answer 30

only one - to prevent “child snatching” where an unsuccessful parent in 1 jurisdiction would take the child to another hoping for a better order

Question 31

What is the rule of UCCJEA child custody modification jurisdiction?

Answer 31

The state that granted the original order will have continuing exclusive jurisdiction to modify as long as

(i) the child resides in the state or
(ii) another state that has jurisdiction declines to exercise it.

Question 32

What is the UCCJEA rule for when a state that didn’t grant the original child custody order can nonetheless modify it?

Answer 32

Only if
(i) the court with continuing exclusive jurisdiction no longer has jurisdiction because everyone’s moved away;
OR
(ii) the court with CEJ refuses to exercise its jurisdiction; AND
(iii) one of those UCCJEA bases for original order jurisdiction (home state/ extended home state, sig conn, or emergency) exists

NOTE: this means that only one state has modification jurisdiction.

Question 33

The Parental Kidnapping Prevention Act (PKPA) is a federal law that applies to _______ of child custody awards.

Answer 33

enforcement and modification

NOTE: PKPA doesn’t apply to original awards, only modifications

Question 34

PKPA requires that a state give full faith and credit to a custody decree from another state if ________.

Answer 34

that state’s jurisdiction was based on home state jurisdiction under UCCJEA.

Question 35

The standard for a child custody order was best interest of the child. What’s the standard for modify a child custody award?

Answer 35

Changed circumstances

Question 36

Do more states allow a petition for modification to be filed at any time or require a certain amount of time to have elapse from the original order?

Answer 36

most states allow a petition at any time. some states require a time period.

Question 37

Common grounds for changed circumstances to trigger a child custody award modification include:

Answer 37

a. Breakdown of joint custody (parents not getting along anymore)
b. facts previously not considered (best interest of child trumps failure to present evidence at trial)

Question 38

Remedies available for violation of a child custody order include:

Answer 38

1. contempt of court

2. tort liability for custodial interference

Question 39

If a child is being relocated, what 2 things might a state statute require depending on the state?

Answer 39

i. notice to other parent, and if objection, a hearing (best interest of child controls); or
ii. as a ground for modification

Question 40

What is the purpose of a “separation agreement”?

Answer 40

to settle the aspects of the dissolution

Question 41

As a general rule, in order for a separation agreement to be binding it must:

Answer 41

1. be in writing or made orally on the record (most states require writing though)
2. be agreed to at the time of divorce;
3. be approved by the court (standard: conscionable); and
4. include a full and fair disclosure of all assets

Question 42

The terms of a separation agreement can include:

Answer 42

a. all aspects of dissolution;

b. terms that a court could not order but to which the parties can agree

Question 43

The court is not bound to any terms in a separation agreement related to ____

Answer 43

the children.

NOTE: the court always has jurisdiction to make orders with respect to the children and it does not matter whether the parties agreed otherwise.

Question 44

The enforcement of a separation agreement is dependent upon whether it was incorporated into the ________ or whether it is _______.

Answer 44

divorce decree or standing along unincorporated

Question 45

If terms of separation agreement are incorporated into the divorce decree, they become available for _______.

Answer 45

judgment remedies

Question 46

What is the disadvantage of not incorporating the separation agreement into the divorce decree?

Answer 46

in the event of noncompliance, only contractual remedies are available to the aggrieved party

Question 47

Whether incorporated into the divorce decree by the parties or not, terms in a separation agreement pertaining to ______ are automatically incorporated into the decree.

Answer 47

the children