Child custody

Question 1

Jurisdiction ?

Answer 1

Under Uniform Child Custrody Jurisidiction and Enforcement Act (UCCJEA)

Test 1 - Home State J
Court who has J to enter/modify a child custody / visitation order = child home state (where child has lived for 6 consecutive months before beginning of proceedings) or state that was the child’s home state within the last 6 months but parent continues to live in that state.

Test 2
Where no other state has/accepts home state J, court may enter/modify order if :
- there is a significant connection btw state and child + one parent
- there is substantial evidence of child’s availability in that state.

Courts may decline jurisidiction if forum non convieniens

Question 2

Jurisidiction to modify existing decree ?

Answer 2

Existing state has continuing exclusive jurisidiction. Other state can only exercise J if:
- Child and parents are no longer residents of Court 1
- Child no longer has significant connection with that state (only Court 1 can decide whether this applies).

Question 3

Temporary Emergency J?

Answer 3

if child has been abandonnened or if it is necessary in an emergency to protect the child (abuse cases).

Question 4

BIOC

Answer 4

BEST INTEREST OF THE CHILD standard applied when awarding custody /visitation

GREAT DEAL OF DISCRETION OF THE TRIER OF FACTS

Question 5

Joint custody

Answer 5

Can be joint legal / physical custody.

Many considerations included by Courts.

Question 6

Sole custody

Answer 6

Awarded if there is strong evidence that demonstrates that it is bioc.

Other parent will almost always be awarded a reasonable visitation right (unless harmful for child).

Question 7

Custody dispute with non-parent

Answer 7

Here not only BIOC taken into account because of the parents constitutional right to raise their child.

Non parent mus show that parent’s custody is not in the BIOC and that the parent is unfit.

Question 8

Visitation

Answer 8

Visitation and custody mutually exclusive

**Parental visitation right :
**- court may limit parental visitation right if might harm the child (absolute denial = rare)
- Right of visitation independant from child support obligation

**Nonparental visitation rights:
**
- allowed if in BIOC
- strong prior relationship between 3P and child
- Parent’s opinion must be given special weight

Willful denial of visitation rights can lead to change in custody

Question 9

Modification of custody decrees

Answer 9

only if there is a substantial and material change in circumstances affecting the childs well-being.

Question 10

Relocation

Answer 10

Notice to other parent often required + court hearing to determined if relocation is permitted

Often allowed if BIOC, best for the family and does not thward the relationship with the other parent