Flashcards in Domestic Relations Deck (32)
What is necessary to effect an adoption?
1) Any (i) single adult; (ii) married couple; OR (iii) 2 unmarried adults in a intimate rel can adopt another person (adult or child) 2) Any child or adult can be adopted Adoptee under 18: need consent of both biological parents & anyone else with legal custody (unless voluntary surrender or their righst have been terminated) Adoptee OVER 14: adoptee must consent 3) In NY there is a policy of religious matching where possible 4) Family ct has original jx over adoption proceedings; the Surrogate's ct has concurrent jx
How does a ct determine child custody?
Std = “best interests of the child” (BIC) **MUST say this in an essay involving a CHILD** ----------- FACTORS TO CONSIDER Look to parents health or whether there is drug abuse History of domestic violence (AUTO disqualified) Any other criminality Quality of new relationships of parents If kid is over 12, whether he’s expressed preferences Preserve sibling unity or sig. family members ----------- Joint custody should be awarded ONLY if parents get along Should be geographically close Parent v. non-parent (e.g. druggie parent and a non-parent who’s been taking care) Std is STILL BIC, but there is a presumption that the child is best w/ the biological parent Non-parent wins ONLY by showing that bio parent is (1) unfit; OR (2) there are extraordinary circumstances NOTE: if parent is making good faith effort to be a good parent, ct won’t likely take away custody Relocation: IF custodial parent wants to move away, must go to Ct & show that the move will be in BIC by the preponderance of the evidence Visitation: is almost NEVER denied to bio parent; UNLESS parental rights have been terminated Not conditioned on paying child support Not conditioned on incarceration Grandparent right to visit: Parents have due process right to raise child as see fito →GP must show “special circumstances” sufficient to est a “substantial state interest in allowing the visitation”
Which state has jx over a child custody case?
A state can enter a custody order IF It’s CURRENTLY the home state; OR Home state = state where kid has lived w/ parent for 6 MOS prior to commencement of proceeding WAS SO w/in the last 6 MOS NOTE: No other state can issue a conflicting order over a state w/ valid jx
When can a ct terminate parental rights?
In Family Ct, case must be est by clear and convicing evidence Parent who’s the ∆ (rights being terminated) is entitled to appointed counsel 5 GROUNDS FOR TERMINATION Abandonment: parent fails to visit/communicate w/ child for at least 6 mos Perm. Neglect: child has been removed and is in agency care; Parent has failed for at least 1 yr to plan for future of child or remain in contact w/ that child, even tho physically and financially able to do so Incarceration can be PROBATIVE of neglect (but not auto) Abuse: physical/sexual Disability: parent is unable to take care of kid due to mental disability Parent murdered a sibling of a child NOTE: Once rights are terminated, NO visitation rights for terminated parent
What is a non-custodial parent's obligation to pay child support?
Both biological parents must support their children through age 21 (or through college if, financial ability by parents) Amount of Support: there are statutory guidelines that serve as a minimum, but can be modified if more is given by parent A ct order is ONLY addressed to a non-custodial parent (after a marital termination; non-marital child after filiation proceeding) Follow-on considerations (given continuing obligation) Modification of child support: permissible based on changed circumstances (automatic if there has been a 3 yr time since last assessment; or if income has changed by 15% up or down) Termination: death of parent/child OR when child reaches age of 21 Enforcement: by... Seize & sell property Attach parent's wages Seize drivers & professional licenses Hold parent in contempt of ct (jail time)
When must NY defer to the child support order of another state?
If valid, then ALWAYS! Under the Uniform Interstate Family Support Act, every state must defer to the state that is the home state of the child that is receiving the support Only the court which issued the original support order will have original, continuing, AND exclusive jurisdiction – this jurisdiction will continue until all parties leave the state Makes support orders enforceable across state lines
What are the reqs of a valid marriage?
A "ceremonial marriage" is req’d in NY, which consists of... 1) A License – necessary to determine capacity to marry (~capacity to K) Capacity = Single, 18 yrs; OR 16-18 yrs w/ parental consent OR 14-15 yrs w/ ct approval; NOT < 14 yrs No bigamy OR incest (BUT 1st cousins okay) Not insane Process = must get license... from city or town clerk; + wait 24 hrs.; + license valid for 60 days; + pay fee; BUT defects in license or failure to get a license has NO affect on validity of marriage 2) Ceremony – “solemn declaration before an officiant and a separate witness” Officiant = any civil officer, clergy, physically present, authorized to administer an oath Solemn declaration: must be undertaken with general intent to undertake responsibility (but no magic words) NOTE: NO common law marriage in NY, BUT if from another state where it’s acknowledged, NY will recognize
What are key duties and privileges of marriage?
1) Monogamy 2) Economic support Based on “means test” – amt based on means/resources of wealthier spouse – unless risk that spouse will become a public charge, then based on “needs test” - based on needs of recipient spouse Spouse not being supported - can seek family ct. order to enforce support reqs (no effect on validity marriage) 3) Spouses retain separate identities for civil & criminal law issues – liable for torts or crimes against each other, can K w/ other people w/o binding spouse, liable for own debts EXCEPTION: Debt for necessaries – other S can be liable
What are 4 marriage c/as?
MARRIAGE = VOID (marriage is AUTOMATICLY invalid even w/o ct intervention) 1) Declaration of Nullity ------------ MARRIAGE = VOIDABLE (capacity problem at marriage, which rendered marriage voidable so marriage is valid until declaration) 2) Annulment 3) Separation 4) Divorce 5) Dissolution
What is a declaration of nullity?
Declaration of nullity → ct determination that a marriage is VOID, not just voidable NOTE: no need for judicial decree b/c no marriage BUT should get a declaration of nullity anyway for clarity of record & collateral matters (distribute property, custody of kids) Grounds Bigamy; OR Incest (1st cousins okay) Defenses IF impediment causing marriage to be void is removed (e.g. other spouse dies, so no longer bigamy) →subsequent marriage becomes VOIDABLE & thus subject to ratification.
What are the 6 grounds for an annulment?
1) “Non-age”- discretionary & waived if stay married & cohabitate after 18th b-day 16-17 yrs, can get married w/ consent of both parents 14-15 yrs, you need judicial approval can’t marry 2) Mental incapacity at time of marriage - inability to consent due to want of understanding b/c of diagnosable mental illness OR developmental disability Waived if continue to co-habitate after regaining capacity Suit may be brought by a family member or legal guardian of incapacitated person 3) Duress - getting married under force of physical coercion (gun-point, knife) Waived if threat is removed & continue to co-habit **4) Fraud - spouse misrepresents or conceals info that goes to an “ESSENTIAL aspect of the MARRIAGE” prior to the marriage & it would’ve been likely to DECEIVE reasonably prudent person Common examples of fraud: Religion – what religion practices, level of devotion, intent to convert, raise kids Procreation & sex – failure to disclose/lie about paternity of baby expecting; cannot have kids; do not want kids; major lie abt sexual history (e.g. was a prostitute); agenda or orientation Waiver – must bring action w/in 3 YRS of learning of the fraud NOTE: lying about economic status is NOT grounds for annulment 5) Incurable physical incapacity – prevents sex Must NOT have attempted sex before marriage Only BIOLOGICAL inability to have SEX – NOT inability to have kids & NOT related to refusal to be intimate Must be INCURABLE (including transmittable disease, like HIV) SOL = must be brought w/in 5 YRS of marriage No jury trial allowed (the only ground) 6) Incurable insanity that lasts for 5+ yrs. DURING marriage - Mental illness develops after the marriage 5 consecutive years or more
What are the procedural reqs for an annulment?
1) Testimony by either party re: grounds for annulment requires corroboration Includes that there has been no-cohabitation b/t the parties 2) Jury trial allowed (except physical incapacity) 3) Default SOL = 6 YRS
What are the 5 grounds for separation?
GROUNDS FOR SEPARATION 1) Cruel & inhuman treatment - ∆'s conduct endangers the π's physical or mental well-being, rendering co-habitation improper 2) Abandonment - Reqs a willful & voluntary departure of one spouse (NOT military or jail); w/o consent of the other spouse; w/o intent to return (intent inferred from duration/length of absence); AND w/o justification (abused can’t be accused of abandonment) Constructive abandonment – ∆ walked away from marriage in metaphorical sense – e.g. refusal to have sex or locks spouse out of house There is NO SOL (BUT, person must still be abandoned when claim filed) 3) 3 consecutive yrs of imprisonment during marriage 4) Adultery BUT w/ 4 affirmative defenses Recrimination – ~dirty hands; π spouse has also committed adultery Condonation – basically waiver; knowledge + forgiveness + cohabitation Connivance – form of entrapment; π induced adultery (basically set up the ∆ to be seduced) SOL - 5 YRS from discovery (can't hold over head of other spouse) 5) Failure to Support Spouse - if neglect or actual refusal to provide support
What is a separation?
Ct. granted permission to live apart that DOES NOT TERMINATE THE MARRIAGE Judge can give permanent or temporary order of separation 5 grounds, BUT a π's misconduct, if established is a COMPLETE defense SOL = 5 YRS (except adultery and abandonment) NOTE: No jury trial for separation proceedings Why get separation? (**note in essay**) Financial or legal reasons – parties may want to maintain technical status b/c of social security benefits, inheritance rts, continue being a beneficiary of certain insurance plan Religious reasons – some people will never get divorces
What are the 6 grounds for divorce?
1) No-fault divorce: Must prove... the “irretrievable breakdown of the marriage”; for a pd of at least 6 mos; with one spouse testimony NOTE: Before divorce is granted, collateral issues re: money or children MUST be resolved ---------- FAULT-BASED GROUNDS 2) Adultry, BUT divorce will be DENIED, IF... Recrimination – ~dirty hands; π spouse has also committed adultery Condonation – basically waiver; knowledge + forgiveness + cohabitation Connivance – form of entrapment; π induced adultery (basically set up the ∆ to be seduced) SOL - 5 YRS from discovery (can't hold over head of other spouse) 3) Cruel and inhuman treatment 4) Abandonment for 1 yr or more 5) 3 consecutive years' imprisonment ---------- 6) Conversion divorce: spouses have LIVED APART (i) for at least 1 YR following the granting of a separation decree; OR (ii) p/t a written, filed, and properly executed separation agmt Separation Agmt reqs – (1) freely made, (2) in writing & acknowledged, (3) filed w/ court clerk as a prereq. for divorce decree (no need to be filed 1 year before) Rescission of separation agmt – cohabitation (sex) during 1 year w/ INTENT to reconcile resets clock & requires reexecution of agmt (BUT not casual, isolated cohab w/ no intent to reconcile) Material breach of separation agmt - rescinds agmt & it can’t be used for conversion divorce Rescission does NOT apply to court decree - if reconciliation under a separation decree, there is no harm to decree or 1 yr running period NOTE: failure to support is NOT a ground for divorce
What is the procedure for granting a divorce?
1) NY Supreme Court has EXCLUSIVE jx but may refer incidental matters (support, custody, or visitation) to Family Ct. Smjx - 1 spouse domiciled in NY + 1 of the Durational Residency Reqs Pjx - required over D to get collateral orders (e.g. support, alimony, custody) 2) Once divorce is filed, certain AUTOMATIC ct orders kick in that “freeze” activity like: Sale of assets; Concealment of assets; Incurring of unusual debts; OR Change in insurance coverage 3) Jury Trial – permitted in divorce (but NOT permitted in separation actions) 4) Ct reqs FULL disclosure of financial assets – so ct has rational basis to enter financial orders (except a dissolution case, where party is presumed dead)
What is a dissolution (Enoch Arden) action?
Action only available when spouse has been missing for 5 YRS w/o any tidings (i.e. presumed dead) Reqs 1) Diligent search for spouse 2) Publication - publish request that spouse return in English language newspaper, regardless of language spouse speaks, for 3 consecutive weeks 3) Petitioner-Spouse must be NY resident for 1 year, OR NY must have been the matrimonial domicile at time of disappearance Proceedings ONLY consider if absent spouse can be presumed dead No collateral issue decided (property, child custody, alimony) b/c operation of law takes over & will or intestacy is followed (it is as if the missing spouse is dead)
When will NY recognize an out-of-state marriage?
IF marriage valid where contracted →will be valid in NY, UNLESS it violates a strong public policy of the state of NY
When will NY recognize an out-of-state divorce?
Depends... Bilateral out-of-state divorce → valid in NY Is res judicata as to all collateral issues Unilateral/ex parte out-of-state divorce → prima facie valid in NY if ∆ received service of process Can be collaterally attacked in NY IF evidence that the party that obtained the divorce was not truly domiciled in the forum state
When will NY recognize a foreign divorce?
Depends... 1) Bilateral divorce → recognized under “comity” Not based on domicile, but on personal appearance of the petitioning spouse & the defendant spouse’s voluntary appearance through an attorney, if the petitioning spouse has satisfied residency requirements of the foreign nation granting the divorce, this type of divorce will be recognized under comity 2) Ex-parte foreign divorce is TOTALLY invalid
What are the 2 steps to equitable distribution?
STEP 1 Divide assets into 3 categories (**on exam make 3 columns**): (1) Spouse 1's; AND (2) Spouse 2's separate property (3) Marital property subject to distribution STEP 2 (i) Give S-1 and S-2 their separate property (ii) Exercise equitable discretion to divide up the marital property subject to distribution
How is the separate property of each spouse determined?
Separate property = Anything owned PRIOR to marriage, like... Bequests/gifts received by either spouse in their sole name Inheritance Property they agree will be treated as separate property (in written agmt) Personal injury compensation (designed to comensate for pain/suffering) Passive appreciation on the above property (change in value due to time or market place fluctuation) BUT appreciation due to active participation or mgmt by spouse in adding value is a MARITAL asset (Ex – increase in value of a separate property during the marriage due to the contribution of the other spouse as homemaker & parent)
How is marital property determined?
Marital property subject to distribution, includes... All property acquired during marriage REGARDLESS of how asset titled & who works Includes professional licenses/degrees earned during marriage (but advanced earnings cannot be double counted for alimony purposes) All businesses, salaries, stock options, lottery winnings, pension rights, gifts from spouse RULE: when in doubt, it’s marital
How does a ct determine how to distribute marital assets?
Court may consider any relevant factor, EXCEPT marital fault, UNLESS such fault is egregious (“shocks the conscience”) Courts divide marital property equitably & are guided by statutory factors (age, health insurance coverage, job skills, custodian of children, etc.) but there is no exact percentage & the court has discretion Can order in-kind transfer (item by item) OR lump sum (cash award payment) to effectuate distribution
What are 2 types of maintenance?
Aka "alimony" 1) Temporary maintenance - ordered while case is pending to meet temporary needs of parties (designed to preserve the status quo) **On essay, say this if the party is worried abt supporting themselves during a claim** 2) Final maintenance – post-divorce, continuous pmt No automatic entitlement—based on reasonable needs of recipient
In assessing maintenance amt, what factors does a ct look to?
Court may consider ANY factor it deems relevant, including... Nature & degree of fault; Age and health of parties; Skills, earning capacity, time needed to gain job skills; Whether spouse cares for the children or another family member; Standard of living while married; Duration of the marriage; The division of property already NOTE: the economically stronger party generally pays the weaker party's counsel fees in an action for maintenance
How are maintenance orders enforced, modified OR terminated?
Enforcement: if spouse violates the order for maintenance, the ct can... Seize & sell property Attach spouse's wages Seize drivers & professional licenses Hold spouse in contempt of ct (jail time) Modification: any party can move for a modification (up or down) Modification permissible upon showing of change in circumstances (payer got laid off, injured, recently graduated school & can now get job, etc) If p/t separation agmt, extreme hardship must be shown Prospective modification only – past due pmts are STILL owed Encourages people to get to ct. early upon a change in circumstances Termination: Normally terminates AUTOMATICALLY on death of either party Remarriage (or cohabitation as if marriage) of recipient spouse is grounds for termination AUTOMATICALLY NOTE: cohabitation w/o marriage not enough to terminate unless cohabatitor represents to the world that he’s married. NOTE: YOU CAN K around these automatic terminations in a sep agmt
Are Ks b/t unmarried co-habitants enforceable?
Ks between co-habitants who have no intention of getting married are enforceable EXCEPTIONS: If part of the consideration is sex→not enforceable (prostitution is illegal) In absence of express K, no implied Ks between unmarried co-habitants Ex - “should we split up, one promises to pay the other a stream of income”
What are the reqs for a valid premarital (prenuptial) agmt?
To be valid, a premarital (prenuptial) agmt MUST... Be freely made without duress or fraud or unconscionable Re: alimony prvns → (1) must be fair/reasonable when the agmt is made; AND (2) not unconscionable at the time of divorce Be in writing, signed by both parties & acknowledged (SOF) NOT agree in advance to get divorced or engage in conduct that creates grounds for divorce NOTE: prenups are ONLY enforceable if couple gets married (no marriage = discharge
What is a non-marital child AND his rights?
“Non-marital child” – child conceived by and born to parents who never married If parents marry 2 years after child born, child is no longer non-marital Child’s status as a marital child is unaffected by the fact that parent’s marriage is void, voidable, annulled or judicially declared void For some suits, must determine paternity – if married, strong presumption that mother’s husband is the father, but can have filiation proceeding (brought in family ct) to determine RIGHTS OF NON-MARITAL CHILDREN Have identical rights to marital children... can inherit from natural parents can sue for wrongful death, entitled to (govt.) benefit programs, entitled to economic support from both parents
What is a filiation proceeding?
Filitation proceedings are used to est paternity PROCEDURE Family Court has exclusive jx Brought in county where mom, alleged dad or child resides Claim brought by mother, child through guardian, OR state (or father if mother denies paternity) Can be litigated at any time prior to child’s 21st birthday PROOF OF PATERNITY Clear & Convincing evidence needed Mother’s testimony that she had sex w/ ∆ need NOT be corroborated BUT if ∆ offers evidence of sexual access b/t mother & other men, must be corroborated. DNA shows ≥ 95% of paternity → rebuttable presumption that ∆ is dad, which shifts burden of proof to ∆ If paternity is established (or not rebutted)→ will give rise to liability for support of the child.