Family Law Rule Response

Question 1

ISSUE: Does a State A court have jurisdiction to grant the wife a divorce? Explain.

Answer 1

In Williams v. North Carolina, the Supreme Court found that a state could enter a valid divorce decree as long as one spouse was domiciled in that state. Domicile is based on residence with the intent to remain permanently or indefinitely.

Here, _________

Question 2

ISSUE: Does a State A court have jurisdiction to grant the wife sole physical custody of the couple’s daughter, Sarah? Explain.

Answer 2

Under both the federal Parental Kidnapping Prevention Act (PKPA) (adopted in all states) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) § 2(a) (adopted in all states but Massachusetts), a state that is a child’s “home state” has exclusive jurisdiction over a custody action involving the child. Under both the UCCJEA and PKPA, a home state is the state “in which a 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.”

Here, ___________

[NOTE: In May v. Anderson, the Supreme Court held that the state where a parent was domiciled was not bound to give full faith and credit to the child-custody determination of a court of the state where the children were domiciled when that state lacked sufficient minimum contacts with the parent to give its courts personal jurisdiction over the parent. HOWEVER, in 1980 Congress passed the Parental Kidnapping Prevention Act (PKPA). Pursuant to that act, all states must give full faith and credit to the custody decree of a state with jurisdiction under PKPA rules. As noted above, State A is Sarah’s “home state,” and a State A court would THEREFORE have jurisdiction under the PKPA. ACCORDINGLY, its decree would be entitled to full faith and credit in State B and elsewhere, despite the husband’s lack of personal connection with State A.]

Question 3

ISSUE: Does a State A court have jurisdiction to grant the wife a share of the couple’s marital property? Explain.

Answer 3

In an ex parte divorce where the court issues a divorce decree based on the domicile of the plaintiff and without personal jurisdiction over the defendant, the court lacks the power to adjudicate property and support rights. The divorce decree is thus “divisible”; jurisdiction to terminate a marriage does not establish jurisdiction over other divorce claims.

A state may not exercise personal jurisdiction over a defendant who does not have “minimum contacts” with the forum state. The Supreme Court has held that “temporary visits,” like a brief stopover en route to somewhere else, do not satisfy the minimum contacts requirement, even when the defendant marries during the stopover period.

Here, ________________

[NOTE: An examinee should get NO credit for arguing that the marriage is sufficient to establish jurisdiction.]

Question 4

ISSUE: Assuming that the State A court has jurisdiction, could the court grant the wife a divorce based on the husband’s fault? Explain.

Answer 4

In those states that have retained fault divorce grounds, such as State A, a divorce may typically be granted on grounds of cruelty or a like concept. “Cruelty typically has been defined as bodily harm, or reasonable apprehension of bodily harm, that endangers life, limb, or health, and renders marital cohabitation unsafe or improper.” Traditionally, the abuse must be physical, successive, and continuing for an extended period of time, or a single severe physical act causing serious bodily harm or reasonable apprehension of serious future danger. In recent decades, HOWEVER, jurisdictions recognize a single, less serious physical incident as sufficient and recognize emotional or mental cruelty.

Here, _________________

NOTE: An examinee may argue that the State A court will not grant the wife a divorce BECAUSE the husband has a recrimination defense (i.e., both parties are guilty of marital misconduct) on the grounds that the wife abandoned or deserted him by moving out of state. A court is highly unlikely to credit this defense BECAUSE the wife has a strong defense that the husband’s cruelty gives rise to a constructive desertion claim by the wife (i.e., his cruelty made the marriage intolerable, forcing her to abandon the marriage)

Question 5

ISSUE: Assuming that the State A court has jurisdiction, could the court grant the wife sole physical custody of Sarah? Explain.

Answer 5

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.

Here, _______________

Question 6

ISSUE: Is State B required to enforce the State A child support order? Explain.

Answer 6

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.

Here, ____________

The same result is mandated by the Uniform Interstate Family Support Act (UIFSA), legislation that states are required to adopt under federal law. Section IV-D of the Social Security Act requires that a state, as a condition of participation in the federally funded child support programs, have UIFSA in effect. UIFSA provides a simple procedure for the registration of the child support order of another state.

Question 7

ISSUE: Does the State B court have jurisdiction to modify the father’s child support obligation? Explain.

Answer 7

Under federal law, each state generally may not seek or make a modification of a child support order. Subsection (e) of the Full Faith and Credit for Child Support Orders Act prohibits the modification of child support orders issued by a court with continuing exclusive jurisdiction, UNLESS NO contestant or child resides there, or UNLESS each contestant has agreed in writing to allow another state to assert jurisdiction.

Here, ____________

The same result is mandated by UIFSA. Section 205 of UIFSA confers continuing, exclusive jurisdiction on the state issuing the child support order UNLESS NO litigant or child resides there, or UNLESS each party has consented to another state’s modification jurisdiction. State A continues to have jurisdiction, and State B CANNOT modify. Section 603(c) of UIFSA requires that states enforce without modification the child support orders of other states.

Question 8

ISSUE: Without regard to jurisdictional issues, how should a court rule on the father’s requests to reduce his child support obligation and to make the reduction retroactive? Explain.

Answer 8

In most jurisdictions, modifications of child support orders may be made only upon a showing of a substantial and continuing change in circumstances making the prior order unreasonable. Note that some states use the term “material” rather than “substantial. The burden on the party requesting the modification is a heavy one. Under the especially strict Model Marriage and Divorce Act (MMDA) (formerly the “Uniform Marriage and Divorce Act”), applicable in only a few states, modification of a child support order is allowed “only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” Under any modification standard, HOWEVER, the changes must be expected to be continuing rather than temporary.

Although the father has been unemployed for three months, he did receive $75,000 in severance pay. BECAUSE his employment income has been replaced by his severance pay, he CANNOT show that there has been a substantial change in circumstances that would justify a reduction in his child support obligation at this time. FURTHER, it is likely that his unemployment will be only temporary, bolstering the conclusion that it is unlikely that his child support payment will be reduced at this time.

As to the father’s request for retroactive modification, a modification of child support CANNOT be made retroactive to a date earlier than the date the party files and gives notice of a petition to modify

Question 9

ISSUE: Without regard to jurisdictional issues, how should a court rule on the mother’s request for an increase in and extension of the spousal support obligation? Explain.

Answer 9

Modification of spousal support is allowed only upon a showing of a substantial and continuing change in circumstances making the prior order unreasonable. Under the MMDA, as with a modification of child support, a modification of spousal support is allowed “only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.”

Most jurisdictions are not as stringent as the MMDA, but do place a heavy burden on the party requesting the modification (e.g., requiring a “substantial change in circumstances that rendered the original award unreasonable and unfair.” Courts consider whether the change in circumstances was anticipated at the time the original award was made and the good faith of the party asking for the modification.

Question 10

ISSUE: May either spouse successfully enforce the premarital agreement in whole or in part? Explain.

Answer 10

A. Enforcement of Premarital Agreements

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. (VFD)

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.

Here, _______________

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.
Many of the reported cases, like this one, involve a claim of involuntariness based on presentation of an agreement very close to the wedding. In analyzing whether an agreement signed under these circumstances is voluntary, courts have looked at a wide range of factors, including the difficulty of conferring with independent counsel, other reasons for proceeding with the marriage (FOR EXAMPLE, a preexisting pregnancy), and financial losses and embarrassment arising from cancellation of the wedding. A number of courts have held that an agreement signed without the opportunity to consult with independent counsel will be scrutinized more closely.

Here, _______________

NOTE: Although only about half the states have adopted the UPAA, voluntariness, fairness, and asset disclosure are relevant to enforceability in all jurisdictions. In non-UPAA jurisdictions, HOWEVER, a court may refuse to enforce a premarital agreement on any of these grounds. THUS, in a non-UPAA state, a court’s analysis of voluntariness will likely track the analysis HERE. But in a non-UPAA jurisdiction, a court could also refuse to enforce on fairness grounds even though disclosure was adequate.

B. Provision Requiring Joint Custody

BECAUSE of the strong public policy in favor of protecting the best interests of children, courts have invariably found that provisions in a premarital contract relating to children, including provisions relating to child custody and visitation, are unenforceable. Although the UPAA does not explicitly bar an agreement respecting child custody, long 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.

Here, _______________

Question 11

ISSUE: Assuming that the premarital agreement is not enforceable, what assets are divisible at divorce? Explain.

Answer 11

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.

Here, _____________

[NOTE: The above analysis applies in both common law and community-property states. Although the rules governing asset management and division at death vary depending on whether the jurisdiction is a common law or community-property state, today, all states disregard title in defining the pool of assets available for division at divorce. Indeed, the marital property rules applicable in common law states are sometimes referred to as “deferred community property.”]

Question 12

ISSUE: Assuming that the premarital agreement is not enforceable, may David obtain sole physical custody of Anna based on (a) Meg’s adultery or (b) other factors? Explain.

Answer 12

A. Obtaining Sole Physical Custody

Child custody decision making is invariably governed by the “best interests 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 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.

Thus, ____________

B. Custody Decision

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.”

Question 13

ISSUE: Does the State A court have jurisdiction to modify the child support provision of the State B divorce decree? Explain.

Answer 13

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. Under the UIFSA, a tribunal of the State shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction. The wife and daughter continue to reside in State B, and the wife has not consented to the jurisdiction of another forum.

Thus, _____________

[NOTE: Examinees who do not discuss personal jurisdiction but fully discuss UIFSA may receive full credit.]

Question 14

ISSUE: Does the State A court have jurisdiction to modify the marital-residence-sale-proceeds provision of the State B divorce decree? Explain.

Answer 14

UIFSA does not apply to divorce property-division disputes. THUS, although a State A court may not adjudicate the husband’s petition to modify his child support obligations, it may adjudicate his property-division claims. (Even though the court has jurisdiction, it may not modify the property-division award on the merits.

Question 15

ISSUE: On the merits, could the husband obtain retroactive modification of his child support obligation to the daughter? Explain.

Answer 15

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.

Question 16

ISSUE: On the merits, could the husband obtain prospective modification of his child support obligation to the daughter? Explain.

Answer 16

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.

Here, ________

Question 17

ISSUE: On the merits, could the husband obtain modification of the marital-residence-sale-proceeds provision of the State B divorce decree? Explain.

Answer 17

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.

Here, ___________________. Thus, _________.

Question 18

ISSUES: Can the father or the state child welfare agency obtain an order enjoining the mother from making contributions from her future paychecks to the religious group? Explain.

Answer 18

Under the common law, when a woman married, her identity was swallowed up in her husband’s.

As a result of this marital-unity doctrine, a married woman could not own property. Beginning in the mid-19th century, legislatures began to enact so-called “Married Women’s Property Acts” that restored to the married woman the rights she had when unmarried, including the right to acquire, own, or transfer property. By the end of the 19th century, every state had passed such a statute.

Under the Married Women’s Property Acts, title determines asset ownership and management rights; “the wife is given the power to contract and full rights to her own earnings.” BECAUSE each spouse has full management rights with respect to his or her earnings, a court may not overrule the spending decisions of a spouse based on his or her partner’s conclusion that those decisions are ill-advised.

Marriage does, HOWEVER, create support obligations and, since the Supreme Court’s decision in Orr v. Orr, those obligations have been gender neutral. Based on this mutual support obligation, a creditor who has furnished “necessaries” to a husband or wife may, in most states, sue the spouse of the purchaser and recover on the debt.

HOWEVER, the necessaries doctrine is available only to a creditor who has already provided goods or services. Such a creditor has NO power to obtain an order altering a spouse’s future spending. The doctrine does not go so far as to allow one spouse to enjoin expenditures by the other BECAUSE, as HERE, he or she is concerned that the bills of the family won’t get paid. Nor, BECAUSE of the family privacy doctrine, may a spouse who disagrees with his partner’s spending decisions obtain an order requiring a different spending pattern or obtain a support award.

A state child welfare agency may intervene in family decision making only when the decision at issue endangers the well-being of a child or another family member incapable of protecting his own interests. HERE, there is NO evidence that the mother’s decision to donate a portion of her earnings to the religious group endangers her daughter. THUS, the state agency CANNOT obtain an order requiring the mother to alter her spending patterns any more than can the father.

Question 19

ISSUES: Can the father or the state child welfare agency obtain an order requiring the mother to take the daughter to skating lessons? Explain.

Answer 19

American courts have consistently treated the disputes of intact families as private matters that should be resolved at home. THUS, they have refused to decide such disputes when a spouse has brought one to court:

The inherent jurisdiction of courts of equity over infants is a matter of necessity, assumed by the courts only when it is forfeited by a natural custodian incident to a broken home. The judicial mind and conscience is repelled by the thought of disruption of the sacred marital relationship, and usually voices the hope that the breach may somehow be healed by mutual understanding between the parents themselves.

Even when the spouse who comes to court wishes to enforce a premarital agreement, courts have refused to intervene in the disputes of couples who are living together. FOR EXAMPLE, one court refused to enforce a provision of a premarital agreement that required the child’s education at a religious school.

Here, ______________

Again, the state child welfare agency may intervene in family decision making only when the decision at issue endangers the well-being of a child or another family member incapable of protecting his own interests.

Here, ______________

Question 20

ISSUES: Can the father or the state child welfare agency obtain an order requiring the mother to cooperate in giving the daughter her prescribed asthma medications? Explain.

Answer 20

Although courts will not intervene in disputes between parents in an intact household, the state, pursuant to its jurisdiction over child abuse and neglect, may obtain an order overruling a parental decision and ordering appropriate services, including medical care, whenever the parental child-rearing decisions endanger the child.

The fact that parental rights are constitutionally protected does not alter this result, even when the parental choice is religiously motivated: “the 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.” Although the court may not inquire into parent’s general religious beliefs, it may inquire into religious practices, if such practices may adversely affect the physical or mental health or safety of the child.

[NOTE: HERE, a child-neglect action would most likely be triggered by the daughter’s physician, who is almost certainly a mandated neglect reporter under state law. HOWEVER, the father could also file a neglect report. A neglect action is typically commenced after someone with knowledge of a situation that endangers the child files a report with the appropriate state agency. State laws typically require health care workers, among others, to report suspected abuse and neglect. After receiving a report, the agency investigates and files a neglect petition on the child’s behalf if its investigation confirms the allegations of neglect. If the court finds that a child is neglected, it may order parents to undertake appropriate actions, order a state agency to provide the child with services in the home, or even remove the child from parental custody and place her in foster care.]

Question 21

ISSUES: If the father were to file a divorce action against the mother, could a court award custody of the daughter to him based on the mother’s decision to follow the religious group’s rules? Explain.

Answer 21

A child custody contest between parents is decided on the basis of the child’s best interests. Under the best interests test, the court is free to consider a wide range of factors.

With respect to parental religion, the Establishment Clause forbids a court to favor one religion over another. HOWEVER, although “the court CANNOT evaluate the religion, it can instead evaluate the parent’s ability to provide for the physical and mental health needs of the child.” BECAUSE of the sensitivity of the constitutional issues at stake, courts have typically refused to consider religion UNLESS the evidence shows that the parent’s religious practice would imperil the child’s well-being. Some courts have ADDITIONALLY required that a custody order “make the least possible infringement upon the parent’s liberty interests consistent with the child’s well-being.”

Here, _________

Question 22

ISSUES: May Frank obtain spousal support from Wendy? Explain.

Answer 22

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.

Here, ___________

[NOTE: Were Frank to purchase necessary household items on credit, the merchant who extended credit to him might be able to recover from Wendy the value of the goods furnished under the common law necessaries doctrine. The necessaries doctrine is generally applicable to food, clothing, shelter, and health care. HERE, HOWEVER, there appears to be NO merchant who has furnished goods to Frank on credit. THEREFORE, any discussion of the doctrine of necessaries is inapplicable.]

Question 23

ISSUES: Will Frank’s constitutional challenge prevail? Explain.

Answer 23

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. Courts have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

HOWEVER, parental rights are not absolute. “The 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.

Question 24

ISSUES: In what state must the aunt file a custody petition? Explain.

Answer 24

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.

[NOTE: The UCCJEA “temporary emergency jurisdiction” provision is not relevant HERE, as it is applicable only when the child has been “abandoned . . . or is threatened with mistreatment or abuse.” The mother’s traveling does not constitute abandonment, as she has invariably left the child with the child’s father. There is nothing in the facts to support a claim that the father has not continued to act as his child’s guardian.]

Question 25

ISSUES: Is the court likely to grant legal custody of Danielle to her aunt? Explain.

Answer 25

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 “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 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.”

Here, _______________

HOWEVER, the child’s wishes “are not treated equally in every case”:

Sometimes the child’s wishes are given controlling effect, while at other times the wishes are disregarded altogether. The circumstances determining what effect, between these two extremes, should be given to a child’s wishes in a particular case are, IN ADDITION to the comparative effect of objective factors affecting its welfare generally, and IN ADDITION to the natural right of the child’s parent to have its custody (frequently invoked successfully, at least in the absence of the parent’s long-term abandonment of the child to another’s custody): the child’s age and judgment capacity; the basis for and strength of its preference, generally; the treatment extended to the child by the contestants for its custody; and the wrongful inducement of the child’s wishes.

Although there are a handful of states in which, by statute, the court must defer to the wishes of an older child when choosing between fit parents, even if State A has such a statute it would not be applicable IN THIS CASE BECAUSE the custody contest is between a fit parent and a nonparent.

Here, ___________

In sum, _______________