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Flashcards in Family Law Deck (72)
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1

Standard for modification of child support

Substantial change in circumstances

2

Child support arrears

Cannot be modified

3

Upward modification of child support

New York permits an award of child support to be modified when there is

  1. a substantial change in circumstances regarding the child’s needs or parent’s financial situation,
  2. or when three years have passed
  3. or a party’s gross income has changed by 15% or more since the previous child support order was entered, modified, or adjusted

4

Considerations involved in upward modification

1. 3 years

2. 15% increase in income

3. Other factors include:

- cost of living

- child's activities

- special circumstances

5

Downward modification of child support

1. Change must be unforeseen & involuntary

2. Loss job suffices if

- involuntary

- diligent efforts to find new employment commensurate w/ experience, skill, and education

6

Jx of child support and modification 

1. Home state will have continuing jx 

2. Only when parties and child no longer live in home state does jx transfer 

7

Long-Arm Statute for Child Support

Extended to limits of due process:

1. Respondent has lived w/ child in state

2. Has lived in state and provided support in state

3. Child lives in state due to directive/acts of respondent

4. Conceived in state

5. Asserted parental rights in state 

6. Any other constitutional basis to assert jx

8

Child custody standard

Best interest of the child

9

Considerations in child custody

  1. Parenting skills
  2. Health
  3. Rel w/ non-custodial parent
  4. Child's lifestyle pre-divorce
  5. Child's wishes
  6. DV - if sworn statement MUST be considered

10

Consequences of interfering w/ parenting time

Not a basis to discharge child support 

but may modify spousal support

11

Modification of child custody

- Change in circumstances from date of original order

- based on best interest of the child

- Relocation is most frequent basis 

12

Valid Pre-Marital Agreements 

  1. Consideraton
  2. Consent
  3. Lack of duress

13

Review of child custody/support agreements

Subejct to review by court under best interest of the child standard

14

Valid Marital Agreements

  1. Fair, reasonable, and voluntary
  2. Made w/ full disclosure

15

Modification of Incorporated Agreements

Higher standard: extreme hardship instead of substantial change in circumstances

16

JX of private placement adoption

Family Court 

or

Surrogates Court

17

Jx of agency adoption

Family court

18

Adoption records

Unsealed by adoptee by showing good cause

19

Revocking adoption (private placement)

If surrender/consent given before a judge, irrevocable

If not, 45 days. 

20

Revocking adoption (agency)

30 days from surrender

21

Termination of parental rights 

  1. Voluntary
  2. Failure to register
  3. Involuntary (judicial) termination

22

Putative Father Failure to Register

A putative father’s failure to register within a statutory prescribed period of time will waive his right to notice of the adoption and irrevocably implies his consent.

23

Newborn: Qualifying Interest of unwed father (blocking adoption)

1. Requires his willingness to assume custody of the child

2. Other factors the court takes into account when determining whether the unwed father has met consent requirements:

(i) public acknowledgement of paternity,

(ii) payment of medical expenses during pregnancy, and

(iii) the extent of interaction with the mother during pregnancy.

24

6mos + : Qualifying Interest of unwed father (blocking adoption)

1. maintained substantial/continuous/repeated contact with the child:

  • payment of reasonable support and
  • visitation at a minimum of a monthly basis, unless financially or physically unable to do so. 
  • If unable, the F must regularly communicate with the child or agency providing care.  

2. Openly lived with the child for six months of the year preceding placement will satisfy the criteria.

25

< 6mos : Qualifying Interest of unwed father (blocking adoption)

Unconstitutional to require F's consent.

A father’s consent for the adoption of a non-marital child is not required unless:

  1. the father continuously lived with the mother for six months preceding the adoption
  2. held himself out as the father,
  3. and paid a fair and reasonable amount in support of pregnancy- and birth-related expenses. 

26

Judicial termination of parental rights

By CLEAR & CONVINCING evidence
  1. Abandonment --> no visitation or communication despite ability to do so, for a period of six months preceding the action
  2. Permanent neglect -->t fails for a period of more than one year following placement in foster care to plan for the child’s discharge or failed to maintain contact and visit;
  3. Inability to provide basic care due to mental retardation or mental illness; and
  4. Child abuse occurring on a severe and repeated basis.

 

27

Family Offenses

  1. Assault, attempted assault, menacing, stalking, reckless endangerment, harassment, criminal mischief, and disorderly conduct 
  2. when the victim is related to the perpetrator by blood or marriage, is a former spouse, or has a child in common with the perpetrator.
  3. Family court and criminal ct have concurrent jx

28

Protective orders

Def. prohibiting the defendant against further abuse and no contact with the victim (“stay away order”)

  1. The first process is to obtain an ex parte order with limited injunctive relief
  2. followed by a hearing, after notice and an opportunity to be heard has been afforded the defendant, for a permanent order. 

29

Duration of protective order

  • Up to two years
  • Five years if aggravating factor present

30

Abused Child Def

Person designated to care for 18+: 

i)    Inflicts (or creates a substantial risk of) or permits  physical injury . . . that creates a sub. risk of death, SBI, serious impairment of physical or emotional health, or loss or impairment of the functioning of a bodily organ;

ii)   sexual offense against the child r

iii)   Permits, encourages, or allows the child to engage in specified criminal acts, including promoting prostitution, incest, or sexual performance by a child.