Issues Relating to Children

Question 1

Where can a termination of parental rights proceeding be litigated?

Answer 1

In Family Court

Question 2

What standard does the court use when deciding whether to terminate parental rights?

Answer 2

Clear and convincing evidence.

Question 3

A termination of parental rights proceeding is not a criminal proceeding - is the parent entitled to counsel?

Answer 3

Yes

Question 4

What are the five grounds for terminating parental rights?

Answer 4

1. abandonment
2. permanent neglect
3. abuse
4. mental illness or developmental disability
5. parent murdered the sibling of the child

Question 5

Define abandonment.

Answer 5

Failure to visit/communicate with the child for at least 6 continuous months

Question 6

When can a parent be adjudged to have permanently neglected their child?

Answer 6

Once the child has been in agency care for at least 1 year and the parent has failed to plan for the future of their child and failed to make contact with the child even though physically and financially capable of doing so.

Question 7

If a parent is incarcerated for an extended period of time, can they be found to have permanently neglected their child?

Answer 7

Yes - the fact that you are unable to visit your child does not mean you can’t plan for your child.

Question 8

Can a court order visitation between a parent and child after rights have been terminated?

Answer 8

No.

Question 9

Who can adopt a child?

Answer 9

1. married couple acting together
2. single person
3. co-habiting couple acting together
4. married person can adopt their spouse’s children
5. if you are married but separated by decree or agreement, you can adopt by yourself

Question 10

Can an adult be adopted?

Answer 10

Yes - anyone, adult or child, can be adopted.

Question 11

Who must consent to an adoption if the adoptee is a minor?

Answer 11

Both biological parents unless the child was voluntarily surrendered (which is considered advanced consent for adoption) or the parent’s rights have been terminated.

Question 12

Who must consent to an adoption if a non-biological parent has custody?

Answer 12

The legal custodian must consent.

Question 13

Who must consent to an adoption if the adoptee is over 14?

Answer 13

The adoptee’s consent is also required.

Question 14

If the court can match a child with a family that shares the same religion as the child’s birth family - will they?

Answer 14

Yes - the court has a policy of religious matching whenever possible.

Question 15

What does the court have to do after obtaining the necessary consents?

Answer 15

Investigate the adoptive parents, and if the adoptee is a minor, must place them in a 3 month trial before the adoption is finalized.

Question 16

Until what age are biological parents required to support their children?

Answer 16

Through age 21.

Question 17

What circumstances will require parents to support their children past the age of 21?

Answer 17

Parents must support their kids through college if the kids are academically able and the parents are financially able.

Question 18

What are the guidelines for determining how much child support one parent will pay another?

Answer 18

Based on income - but parents can agree to be more generous with child support. The court will likely not allow an agreement that is below the guidelines.

Question 19

What are the three follow up concerns regarding child support (a continuing obligation)?

Answer 19

1. Modification
2. Termination
3. Enforcement

Question 20

When can a party request modification of a child support award?

Answer 20

1. by making a showing of changed circumstances
2. always allowed to after 3 years
3. if there’s been a change in either parent’s income by 15%, that will be a basis for modifying the award up or down.

Question 21

When is a child support award terminated?

Answer 21

1. the death of the parent
2. the death of the child
3. when the child reaches the age of majority

Question 22

How can child support responsibilities be enforced?

Answer 22

Wage reduction order, asset seizure, or holding the defaulting part in contempt.

Question 23

What law governs a state’s jurisdiction to enter child support?

Answer 23

The Uniform Custody Law

Uniform Child Custody Jurisdiction and Enforcement Act

Question 24

How do you determine the “home state” of the child?

Answer 24

Treat it like domicile with a 6 month time requirement: where the child lived with a parent for 6 consecutive months prior to the custody proceeding (or the last place to do that).

Question 25

When does a state have jurisdiction to enter a child custody order?

Answer 25

If it is currently the home state of the child or was the home state within the last 6 months.

Question 26

Can another state enter a conflicting order?

Answer 26

No - once that custody order is entered by a state with jurisdiction, no other state can enter a conflicting order as long as the child or a parent continues to live in the state that had jurisdiction.

Question 27

What is the substantive rule for determining who gets custody (and visitation)?

Answer 27

BEST INTERESTS OF THE CHILD

Question 28

What are the factors for determining the best interests?

Answer 28

Use your common sense and the facts before you!!!!!

Think about kid’s health, education, stability, whether they can stay with siblings and extended family, etc.

If joint custody - ask whether the parents are cooperative and whether they’re geographically close enough for it to make sense.

Question 29

What standard is used in a custody dispute between a parent and a non-parent (e.g. a grandparent)?

Answer 29

The presumption is in favor of the biological parent.
The non-parent can only overcome the presumption by showing the parent is unfit or there are extraordinary circumstances.

Question 30

If a parent with custody wants to relocate in a way that will interrupt the other parent’s visitation, what must they show?

Answer 30

That the move is in the best interests of the child.
The court balances the impact on the move to the non-custodial parent with the benefit of the move to the child and the parent who wants to move.

Question 31

Will visitation ever be denied to a non-custodial parent?

Answer 31

Almost never. Visitation is not conditioned on failure to provide child support or incarceration.

Question 32

What must grandparents show to get court-ordered visitation?

Answer 32

That there are special circumstances, sufficient to establish a substantial state interest in allowing grandparental visitation.

(Parents have a due process right to raise their children as they see fit.)