issues relating to children Flashcards
proving parentage of child born to married woman
presume that child is fathered by woman’s husband, but can be rebutted by showing things like lack of access during conception (e.g., husband is deployed). if husband consented to use of sperm donor, he is legally the father
proving parentage of child born to unmarried woman
acknowledgement by father that is agreed to by mother
paternity suit - DNA testing often gives conclusive evidence
child custody jurisdiction
Uniform Child Custody Jurisdiction and Enforcement Act
Proper state for jurisdiction is home state of child. Home state is state where child lives and has been living for 6 continuous months with a parent.
if no state meets test, go to the state that was the home state 6 months ago.
if no state satisfies 6 month requirement or prior home state, go to state that has greatest connection to the child
standard for child custody
what is in the best interest of the child
can allow joint custody or exclusive
no presumption favoring either parent
factors for best interest of the child
physical, mental, emotional condition of the child and both parents
relationship between parents and child - if one parent has better relationship with kid
willingness of each parent to allow visitation if they get full custody
expressed preferences of child (only matter if child is over 12)
new romantic partner of parent and whether they should be around child
whether placement would allow keeping all children together
whether either parent has history of domestic abuse, violence, or child abuse - typically disqualifying
joint custody
consider if parents live near one another and whether parents have a cooperative relationship
petition for custody by nonparent
must be in best interest of the child, presumption is that bio parent would be person with whom child’s best interest would be served. non-parent custodian must overcome presumption, basically required to show parent is unfit
parental relocation
if primary custodian wants to move, must notify court 30 days in advance and court will only allow if relocating parent can show it’s best interest of child
will look at motivation - si t spite or moving to be closer to extended family, moving for better school for kid, better job for parent
court will inquire if relocation will impact visitation
court can modify terms to ensure noncustodial parent still has continuous, meaningful relationship with the child
modification of custody
must show change in circumstances that affect best interest of the child. must consider stability for child
visitation
if we have exclusive custody, non-custodial parent will get visitation. it is assumed to be in the best interest of the child to have relationship with both parents
if there is a concern one parent could be danger to child, then court will order supervised visitation
visitation by nonparent
parents have constitutional right under due process to raise kids as they see fit, so judge cannot substitute his judgment for parent’s judgment about nonparent visitation
only by showing detriment to child do you establish state interest sufficient to overcome parent’s due process rights and grant visitation over parent’s objection
child support
orders are for noncustodial parents. lasts until child is 18 - can be extended if kid is still in high school after 18 - will expire at age 19 or high school graduation, whichever comes first. but if child has disability that prevents them from working, will continue through child’s life
child support guidelines
presumptive amount predicated on number of kids and combined salary of parents. court will exercise discretion to see if justification from departing from guidelines - must make findings on record for appellate review if depart from guidelines
factors courts consider when determining whether to depart from guidelines
special needs of child - if disabled or talented and needs musical lessons
economic circumstances outside of income that comes in on routine basis - seasonal income, income from property, etc.
can parents make agreement about child support?
yes, but it is subject to judicial review. cannot bind children to this agreement
modification of child support
change in finances of noncustodial parent (losing job or getting higher paying one), increase based on inflation.
custodial parent would petition for increase, noncustodial parent for decrease
one party has remarried and has new children s not valid reason to reduce supportt.
parental generosity rule
idea that if parents lived under same roof, would lavish more income on kids as income goes up.
child support enforcement
can get garnishment of wages, go after assets, ask for contempt
uniform interstate family support act
support orders can be directly enforced across state lines. so can mail garnishment order to ex spouse’s boss in new state
state who issued support order has continuing, exclusive jurisdiction over matter as long as any party continues to live there. so ex’s new state cannot disregard support order or modify it
adoption
to adopt minor, need consent from bio parents by relinquishing parental rights.
exceptions to parental consent for adoption
if non marital child and father’s identity is unknown
if father is known but we serve notice of pending adoption and he doesn’t respond in 21 days
parental rights judicially terminated
termination of parental riights
when parent si engaged in behavior deleterious to the child, child is temporarily removed. initial goal is always to reunite the child with the parent, but sometimes the situation cannot be helped so courts will terminate rights of parent
must establish grounds by clear and convincing evidence, must show not likely the conditions will be corrected or eliminated, must show termination is in best interest of child
grounds to terminate parental rights
neglect of child
abuse of child
abandonment of child
adoption
if adoptee is over 14, adoptee must consent to adoption
if child is in legal custody of someone other than bio parent, legal custodian must consent
child is temporarily placed with adopting parents before adjudication but after background checks
hearing on finalizing adoption - pro forma, bio parent doesn’t typically show up to revoke consent
once adoption is finalized, child is part of the family
