Support and Child Custody/Visitation/Adoption/Paternity

Question 1

What is the purpose of spousal support, or in some states a/k/a alimony or maintenance?

Answer 1

The purpose is to maintain a spouse’s standard of living and limit any unfair economic effects.

Question 2

Under the UDMA, when is spousal support awarded?

Answer 2

Only awarded if the spouse:
1. lacks sufficient property; AND
2. is unable to support him/herself through employment OR is the custodian of a child with a condition where the spouse cannot seek employment

Question 3

What factors does a court consider in determining the amount of spousal support/alimony?

Answer 3

1. financial resources
2. time necessary to obtain a job
3. standard of living during marriage
4. duration of marriage
5. age and physical/emotional condition
6. the ability of the spouse paying support

A minority of states will also consider marital misconduct or fault.

Terminates upon death of obligor spouse/may also terminate sooner based on court ordered modification. See card on modification for more.

Question 4

When can a spousal support or child support order be modified?

Answer 4

Most states > can only be modified when there is a substantial & continuing change in circumstances making the prior order unreasonable.
UDMA > can only be modified upon showing of changed circumstances so substantial and continuing as to make the terms unconscionable.

Some courts will not permit if change was voluntary unless in good faith

*Cannot be modified retroactively.

Question 5

What is the purpose of UIFSA?

Answer 5

Courts must give full faith and credit to support orders from other states.

Question 6

When can a court modify a support order from another state?

Answer 6

1. the court has jurisdiction to issue an order; AND
2. Either: (a) all parties do NOT reside in the issuing state OR (b) each party has consented in writing to jurisdiction in another state

Question 7

For a support order, when does an issuing state court have continuing exclusive jurisdiction?

Answer 7

When:
1. the State is still the residence of one party; OR
2. all parties consent in a record or in open court

Question 8

What standard is used by the court to make a child custody award?

Answer 8

Best Interests of the Child Standard

Question 9

What will the court evaluate to determine Best Interests of the Child?

Answer 9

Using its discretion, the court will consider:
the wishes of the parents and mature children, age, financials, health of each parent, new partners is each parent’s life, effect custody will have on child’s relationship with extended family, history of domestic violence, stability of home/school environment, and any other relevant factor.

Question 10

What if a third party wants custody of the child from the parent(s)?

Answer 10

A fit legal parent is given preference, and it is presumed that such custody is in the best interests of the child.
In some states, this presumption may be rebutted if detrimental to the child. However, the court must give great weight to a parent’s determination of what’s best for the child because parental rights are contitutionally protected.

Rebutted only with clear and convincing evidence.

Question 11

When will a court grant joint custody?

Answer 11

Will be granted only for parents who can cooperate.

Question 12

What are non-custodial parental visition rights?

Answer 12

Parents not granted custody are entitled to reasonable visitation rights, unless the court finds (after a hearing) that visitation would seriously endanger the child’s physical, mental, moral, or emotional health.

Question 13

What are a third-party’s visitation rights with a child?

Answer 13

A court MUST give great weight to a parent’s choice of what is best for the child, as the parent’s rights are constitutionally protected.

Some states > permit visitation to third-parties who have a substantial relationship with the child (de-facto parent) when in the best interests of the child. But, the third party must: (1) overcome a presumption that the parent is acting in the child’s best interests; AND (2) show that a denial of visitation poses a risk of harm to the child.

Question 14

When can a custodial parent relocate with the child?

Answer 14

When:
1. the relocation is in good faith; AND
2. it is in the best interests of the child.

The court will balance the effect on visitiation with the non-custodial parent vs. the benefits of relocation.

Question 15

When can a child custody order be modified?

Answer 15

Only if there is a substantial change in circumstances, but cannot be retroactively modified.

The court that had jurisdiction over the original order usually retains continuous and exclusive jurisdiction to make modifications (some exceptions under PKPA and UCCJEA).

Question 16

When can the government interfere with a parent’s right to control a child’s upbringing?

Answer 16

Generally, the government cannot interfere, but may limit parental rights & decisions when they:
1. jeopardize the health or safety of the child; OR
2. there is a potential for a significant social burden (i.e., preventing the spread of preventable contagious illness).

Question 17

Can a parent provide religious education or deny education because of religious beliefs?

Answer 17

Yes. However, all children must attend school at least through the 8th grade.

Question 18

When is parental consent NOT required for a child’s medical care?

Answer 18

When there is an emergency or where prescribed by statute.

Some states > do not honor a parent’s refusal of child medical treatment based on religious beliefs. Courts weight strong facts in favor of treatment against the risks/benefits of that treatment.

Question 19

Is vaccination with the State’s police power?

Answer 19

Yes. Requiring vaccinations for school admission does not violate the Constitution.
However, some states may offer greater protection than the Constitution provides.

Question 20

Can family members sue each other?

Answer 20

Under common law > spouses cannot sue spouses and parents cannot sue their children
Modern view > intrafamily immunity to lawsuits are abolished

Question 21

What is the effect of an Adoption?

Answer 21

It severs the biological parents’ legal rights and responsibilities for the child.

Question 22

When is the parent not required to consent to adoption?

Answer 22

1. the parent has surrendered the child to an adoption agency;
2. is incompetent due to mental illness;
3. abandoned the child; or
4. permanently neglected the child (as determined by state statute)

Consent cannot be withdrawn after the adoption decree is entered.

Question 23

What is the jurisdiction rule for adoption?

Answer 23

Same as child custody determination under the UCCJEA

Question 24

What are a parent’s visitation rights after adoption?

Answer 24

Most states > biological parents lose visitation rights
Some states > allow visitation if in the best interests of the child

Question 25

When is a man the legal father of a child born from In Vitro Fertilization?

Answer 25

The husband is presumed to be the legal father if:
1. he consented in writing; AND
2. a medical doctor performed the procedure.

A sperm donor’s rights are severed (unless the donor is also the husband).

Question 26

How can paternity be established?

Answer 26

1. Birth certificate
2. Legal presumption (a child born during marriage is presumed to be a child of the marriage but may be rebutted)
3. Unmarried parents voluntarily sign acknowledgement of paternity
4. Unmarried biological father’s successful challenge of a presumption
5. Paternity suit; AND/OR
6. Paternity by Estoppel (held himself out as the father AND paid support/assumed parental responsibilities)

If paternity established, father is responsible to pay child support

Question 27

What are an unmarried, biological father’s rights?

Answer 27

Protected under the Due Process Clause ONLY if:
1. father assumed parental responsibilities; AND
2. he established a substantial parent-child relationship

Entitled to notice of adoption if: his right is protected under the Due Process Clause OR he acted consistent with State guidelines for the putative father registry.