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Flashcards in 5 - children Deck (56)
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1

children

child support
child custody
non marital children
termination of parental rights and adoption
ART

2

children - child support

generally
duration of child support
jdx over child support orders
modification of child support orders
tax consequences of child support orders
enforcement of child support awards

3

children - child support
generally

1. Both parents share equally the duty to support their children based on the CHILD'S need and the ABILITY to pay. An AGR by parents does not meet the needs of the child will NOT be enforced by a court.
2. Courts have less discretion in child support awards because of the proliferation of child support guidelines.
3. Majority of jdx follow the INCOME SHARES approach, which considers the # of children and the income of the parents to determine a base line of child support.
4. Courts are given discretion to add amounts for health insurance and other extraordinary educational expenses. Courts can deviate from the guidelines IF it is in the BIOC.
5. Child support is paid INDEPENDENT of visitation.

4

children - child support
duration of child support

1. Generally, age of majority (18) OR
2. death of child OR
3. emancipation of child OR
4. termination of parental rights
Some states will allow child support to continue past 18yo if the child is still in high school or until some age of completion of education. (not college usually)
Support may continue for some longer period if the child is disabled.

5

children - child support
jdx over child support orders

UIFSA, original jdx, jdx to enforce, jdx to modify

6

children - child support
jdx over child support orders
UIFSA

Uniform Interstate Family Support Act (UIFSA) has been adopted by all 50 states and DC to simplify the collection of child support when parties move out of state.

7

children - child support
jdx over child support orders
original jdx

1. Jdx is proper where the 1st petition under UIFSA is filed.
2. Another state can only exercise jdx IF
a. The 2nd petition is filed before the time to answer the 1st has expired
b. The petitioner objected to jdx in the 1st action
c. The 2nd state is the child's home state where the child is living.

8

children - child support
jdx over child support orders
jdx to enforce

1. The issuing court has continuing jdx to enforce
2. Another state can enforce by
a. direct enforcement - obligee mails the order to the obligor's employer in another state and the employer will withhold wages
b. registration - child support order is registered in another state and is then subject to enforcement in that state.

9

children - child support
jdx over child support orders
jdx to modify

Once the court enters a valid child support order, it maintains CONTINUING EXCLUSIVE JDX during the life of the order UNLESS no parties reside in the issuing state OR the parties consent to another state's jdx.

10

children - child support
modification of child support orders

1. Child support is modifiable based on a SUBSTANTIAL CHANGE OF CIRCUMSTANCE affecting the needs of the child OR the ability of the parents to pay.
2. Like spousal support, a voluntary reduction in income will NOT be a ground for modification. Additionally, past due child support cannot be modified and is NOT a basis for prospective modification.

11

children - child support
tax consequences of child support orders

Child support payments are NOT income and NOT deductible.

12

children - child support
enforcement of child support awards

1. Child support can be enforced through traditional civil and criminal CONTEMPT proceedings
2. As a result of federal legislation, parties may seize property, use wage withholding, intercept tax refunds and revoke licenses to enforce child support payments.

13

children - child custody

Interstate custody and jdx
child custody generally
types of custody and visitation awards
modification of custody
relocation
enforcement of custody awards

14

children - child custody
interstate custody and jdx

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to interstate custody disputes (more than 1 state)
1) Initial award, 2) modification, 3) declining jdx, 4) temporary emergency jdx

15

children - child custody
interstate custody and jdx
initial award

Primary test - home state
home state - either state where child has lived with parent for the last 6 consecutive months OR that state and child is absent from the state but a parent continues to live in that state
If no home state, court can assume jdx if the child has a SIGNIFICANT CONNECTION with the state AND SUBSTANTIAL EVIDENCE of the child's well-being in the state.
If state w/Home State or significant connection jdx decline, a state can assume deferred jdx.
If no other state exercises jdx, any state can by default

16

children - child custody
interstate custody and jdx
modification

Issuing state exercises CONTINUING EXCLUSIVE JDX
unless:
1. No child or parent continues to reside in the state OR
2. The child no longer has a significant connection w/the state and there is no substantial evidence in the state. (Only issuing state can determine this)

17

children - child custody
interstate custody and jdx
declining jdx

1. A court may NOT exercise jdx IF
a. a proper proceeding was already pending elsewhere when petition is filed, unless the other court defers OR
b. The person seeking to invoke the court's jdx has engaged in unjustifiable conduct
2. A court may decline to exercise jdx if it determines it is an inconvenient forum.

18

children - child custody
interstate custody and jdx
temporary emergency jdx

Requirements:
1. Child is physically present AND
2. The child has been abandoned OR it is necessary to protect child because child, sibling, or parent is subject to abuse.

19

children - child custody
child custody generally

legal and physical custody
BIOC
factors that courts consider
trial court

20

children - child custody
child custody generally
legal and physical custody

Custody is an umbrella term that includes legal and physical custody.
Legal custody includes the RIGHTS TO MAKE DECISIONS regarding the child.
Physical custody includes the POSSESSION AND CONTROL of the child.

21

children - child custody
child custody generally
BIOC

In any custody or visitation case, the HALLMARK consideration is BIOC.

22

children - child custody
child custody generally
factors that courts consider

Factors that courts consider generally include:
1. Wishes of the parents (constitutionally protected c/c/c of children)
2. Child's preference (12yo are given weight)
3. Relationship of the child w/parents and siblings and others involved w/parents
4. Child's adjustment to home, school and community
5. Mental and physical health of the parties
6. Parent who was the primary care giver (but no gender preference)
7. Any other consideration in BIOC

23

children - child custody
types of custody and visitation awards

joint custody
sole custody
custody to nonparent
visitation

24

children - child custody
types of custody and visitation awards
joint custody

Joint custody can mean joint physical custody, joint legal custody, or both.
Joint custody is intended to promote the involvement of both parents in the child's life
In most jdx, it is encouraged and will be awarded if the parents agree.
If parents are openly hostile or unable to communicate, courts will not award joint custody.
Courts consider a myriad of factors, and also consider geographic proximity, ability to communicate, and whether the parents agree.

25

children - child custody
types of custody and visitation awards
sole custody

Sole custody can be awarded to one parent when STRONG EVIDENCE demonstrates that it is in the BIOC.
The other parent will be entitled to reasonable visitation UNLESS harm to the child will result.

26

children - child custody
types of custody and visitation awards
custody to nonparent

B/c of constitutional protections afforded a parent, in a custody dispute between a parent and nonparent, the standard is NOT simply BIOC.
The parent is entitled to custody UNLESS the nonparent can show 1) harm to the child OR 2) unfitness (abandonment, neglect, abuse, surrendered custody)
After a finding of harm or unfitness, courts will then perform a best interest analysis.

27

children - child custody
types of custody and visitation awards
visitation

After examining joint custody, sole custody, and custody of nonparent, we look at visitation, both parental visitation and nonparent visitation.

28

children - child custody
types of custody and visitation awards
visitation - parental visitation

Absolute denial of visitation to a parent is rare.
Restricting visitation (supervision) is the preference to denial.

29

children - child custody
types of custody and visitation awards
visitation - nonparental

Every state has a statute that allows 3rd parties, generally grandparents, to seek visitation.
Nonparent visitation generally applies some extraordinary circumstance, such as divorce, separation, or death.
If a parent is fit, his or her wishes on nonparent visitation are constitutionally protected and must be given special weight.

30

children - child custody
modification of custody

1. Generally brought by motion of a party or the court in the original action. Party seeking the modification bears the burden of proof.
2. Standard: Whether custody or visitation issue, modification requires SUBSTANTIAL AND MATERIAL CHANGE OF CIRCUMSTANCES affecting the child's well being since prior determination of custody
3. Overriding concern: BIOC
Note: States generally require a certain amount of time to elapse since entry of the order UNLESS the child's present environment is harmful to the child.