CHILD CUSTODY Flashcards
(18 cards)
Child Custody
{BEST INTERESTS} Custody of a minor can mean legal custody (the right to make major decisions affecting the child’s life) or physical custody (actual possession and control of the child). Joint custody can mean either joint legal custody, joint physical custody, or both.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
The purpose of the UCCJEA are to avoid jurisdictional disputes with courts of other states in matters of child custody and visitation, to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders.
Initial Custody Determination – Who has Jurisdiction?
(1) Primary Test – HOME STATE Jurisdiction.
A court has jurisdiction to initially enter or modify a child custody or visitation order if the state (1) is the child’s home state, OR (2) was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state. A child’s home state is the state in which the child lived with a parent for at least six consecutive months immediately before the commencement of the proceeding, disregarding temporary absences.
(2) When Home State Rule Does NOT Apply.
A court has jurisdiction to enter or modify a child custody or visitation order if no other state has, or accepts, home state jurisdiction and (i) the child and at least one parent have a significant connection w/ the state, AND (ii) substantial evidence concerning the child is available in the state. Will also have jurisdiction if no other state has jurisdiction under the test.
Exclusive Continuing Jurisdiction
The court that made the initial child custody determination has exclusive, continuing jurisdiction over the matter until the court determines that:
(i) neither the child nor parent reside in state; OR
(ii) the child no longer has a significant connection with the state and substantial evidence is not within in the state.
Court May Decline Jurisdiction
May decline to exercise jurisdiction if it is an inconvenient forum, or one of the parties has engaged in unjustifiable conduct.
Temporary Emergency Jurisdiction
Abandonment or abuse. If the child has been abandoned or it is necessary in an emergency to protect the child because a parent has threatened abuse
Enforcement of Another State’s Order
Order can be registered in another state and enforced. Court can order the respondent to appear in person and award immediate physical possession of the child to the petitioner; and can issue a warrant if the child is imminently likely to suffer serious physical harm or be removed from the state.
BEST INTEREST OF THE CHILD STANDARD
The standard applied in awarding custody and visitation is the best interest of the child. Factors considered: child’s wishes (over 12 given weight, under 8: little), parent’s wishes, child’s relationship with parents/siblings/etc, child’s adjustment to home/school/community; physical and mental health of individuals involved. Cannot show preference based on gender, but award typically goes to the parent who is the primary caregiver.
Joint Custody Factors
(1) fitness of parents;
(2) whether agree on JC;
(3) Parents ability to communicate;
(4) child’s preference;
(5) level of involvement in child’s life;
(6) geographical proximity of the homes;
(7) similarity of homes;
(8) effect on the child’s psychological development;
(9) parents ability to physically carry out the order. Not an exclusive list.
Parent v. Nonparent
A natural parent has the right to raise his child, and absent any voluntary relinquishment, parent is entitled to custody UNLESS it is shown that the parent is unfit. However, a court may find that based on special circumstances (abandonment), the biological parent has lost the right to rear the child and the child should remain with non-parent/3P.
Visitation
When an award of sole physical custody is given to one parent, the other parent must be given reasonable visitation rights. Can’t be withheld because of arrearages. Might order supervised visitation if the parent engages in conduct that might injure the child. Parent cannot move out of state for the purpose of frustrating the visitation of the other parent. Contempt is the primary remedy; however consistent and willful denial of visitation rights could result in a modification of custody.
3P Visitation Rights. Most states have statues entitling certain 3P to visitation rights in certain circumstances (divorced/dead). The standard is typically the best interests of the child, and the determinative factor is often the prior relationship b/t child and 3P. However, this standard may be unconstitutional – US SC states a judge may not override a fit parent’s decision regarding 3P visitation merely because it would be in the best interests of the child.
MODIFICATION OF CUSTODY DECREES
Generally, Custody orders will be modified only if there is a substantial change in circumstances. However, a court will also consider facts existing at the time of the decree if those facts were not then before the court. Custody orders are always modifiable, but some states require a certain amount of time to elapse prior to requesting a modification, UNLESS the child’s physical, mental, moral, or emotional health is endangered. Party seeking modification bears burden of proof, child’s best interest.
Non-Marital Children
(often called illegitimate or out of wedlock)
Child born to an unmarried woman. Can inherit from their fathers; no SOL on paternity; have same right to child support as marital children; can sue for wrongful death of a parent.
a) Change in status. Presumed to be the mothers child, but the father is the lawful father only if: married at time of birth; father holds the child out as his biological child; consents to be named on the birth certificate; or formally acknowledges paternity; or judicial decree.
b) Suit to Establish Paternity. Once paternity is established, duty of support attaches, and rights to visitation and custody may be asserted. Evidenced by resemblance to father, blood/genetic tests, medical testimony by a preponderance of the evidence and records are typically sealed.
Termination of Parental Rights
Because the right to raise one’s child is a fundamental constitutional right, parents must have due process before their rights can be terminated. This includes the right to counsel. Grounds for termination must be proved by clear and convincing evidence. Grounds include: infliction of serious physical harm, sexual abuse, abandonment, neglect or deprivation, failure to provide support with justification, metal illness or retardation so severe as to make the parent incable of caring for a child, and parent unfitness.
ADOPTION
Adoption is the legal proceeding terminating the relationship between the child and his biological parents (if necessary) and establishing a new relationship between the child and his adoptive parents. Adoption is purely statutory.
Adoption Jurisdiction and Venue
Most states have NOT adopted UAA, but under it a court has jurisdiction if:
(i) the child lived in the state with a parent/actor for 6 months prior;
(ii) prospective parent lived in the state for 6 months prior and substantial evidence is available in the state;
(iii) agency is in the state and in the child’s best interests that the court assume jurisdiction bc child/parents have significant connection with state & substantial evidence;
(iv) child and prospective parent are physically present in the state and child has been abandoned/abused/neglected;
(v) no other state has jurisdiction or they have declined and in best interest of the child. Most states require the adoptive parent be a resident of the county where the petition is filed.
Adoption Consent
Generally required from the child’s natural parents, but father’s might not be if they are aren’t married; or consent isn’t necessary if parental rights have been terminated. If unreasonably withholding consent, court can wiave if in best interests of the child. A nonconsenting parent is entitled to notice of the hearing and an opportunity to be heard. Court will consider unmarried father’s involvement (live with child, care, visited, admitted paternity, paid child support) as to whether he can veto. Adoptees over 12 must also consent. Consent can be withdrawn any time up until the decree is entered.
Adoption investigation and Court approval
Typically require an investigation of the suitability of the proposed adoption, and approval by court. Cannot pay money other than medical costs associated with pregnancy to the natural parents. Records are sealed. Cuts off the rights of the biological parents.
