Family Law Flashcards
(42 cards)
CHILD CUSTODY
Jurisdiction
Under both the federal Parental Kidnapping and Prevention Act (PKPA) (adopted in all states) and the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) (adopted widely), a state that is a child’s home state has exclusive jurisdiction over a custody action involving the child.
CHILD CUSTODY
Jurisdiction: “home state”
Under both the UCCJEA and PKPA, a home state is the state in which the child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of the child-custody proceeding.
Although some courts have held that a parent who wrongfully takes a child from a state without notice to another custodial parent lacks the capacity to unilaterally establish a new home for the child, the circumstances could dictate otherwise.
CHILD CUSTODY
when court of another state does not have JX under home state rule
Under the UCCJEA, when–and only when–a court of another state does not have jurisdiction under the home state rule, a court may exercise jurisdiction over a child-custody determination if:
1) the child and at least one parent have a significant connection with this state other than mere physical presence; and,
2) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
CHILD CUSTODY
Jurisdiction for Interstate Child Support Orders
Under the Uniform Interstate Family Support Act (UIFSA), a registered child support order issued in another state is enforceable in the same manner and is subjected to the same procedures as an order issued by a tribunal of the adopting state.
DIVORCE
Jurisdiction for Divorce
The Supreme Court has found that a state can enter a valid divorce decree as long as one spouse was domiciled in that state. Domicile is based on residence with the intent to remain permanently or indefinitely.
DIVORCE
Marital Property in Ex Parte Divorce
In an ex parte divorce where the court issues a divorce decree based on domicile of the plaintiff and without personal jurisdiction over the defendant, the court lacks the power to adjudicate property and support rights. The divorce decree is thus “divisible”; jurisdiction to terminate a marriage does not establish jurisdiction over the other divorce claims.
DIVORCE
Personal Jurisdiction over Defendant
A state may not exercise personal jurisdiction over a defendant who does not have minimum contacts with the forum state. The Supreme Court has held that temporary visists do not satisfy this requirement.
DIVORCE
Fault-based Divorce
In states that have retained fault divorce grounds, divorce may typically be granted on grounds of cruelty or a similar concept. Cruelty typically has been defined as bodily harm, or reasonable apprehension of bodily harm, that endangers life, limb, or health, and renders marital cohabitation unsafe or improper.
Traditionally, the abuse must be physical, successive, and continuing for an extended period of time, or single severe phsyical act causing serious bodily harm or reasonable apprehension of serious future danger. In recent decades, however, jurisdictions recognize a single, less serious phsyical incident as sufficient and recognize emotional or mental cruelty.
CHILD CUSTODY
Child Custody Determination
A custody decision is based on the best interests of the child. That determination is based on a range of factors, including:
- the wishes of the child’s parent or parents as to his/her custody;
- wishes of the child as to his/her custodian;
- the interaction and interrelationship of the child with his/her parent or parents, siblings, and any other person who may significantly affect the child’s best interest;
- the child’s adjustment to his/her home, school, and community; and,
- the mental and physical health of all individuals involved.
CHILD CUSTODY
Child Custody Determination: Infidelity
Today, courts agree that a court may not deprive a parent of custody based on a parent’s values or lifestyle unless the evidence shows that teh parental conduct adversely affects the child. To deprive a parent of custody, the evidence must support a logical inference that some specific, identifiable behavior or conduct of the parent will probably cause significant physical or emotional harm to the child. This link between parent’s conduct and harm to the child may not be based on evidence which raises a mere surmise or speculation of possible harm. Based on this child-centered approach, most courts have ruled that a parent’s sexual behavior is not by itself sufficient to deny a parent’s custody.
CHILD CUSTODY
Child Custody Determination: Honoring Child’s Wishes
In all states, the views of a child who is mature enough to form and express a preference are relevant to a custody determination. The wishes of older children are typically given substantial weight. However, the child’s wishes are not treated equally in every case: sometimes, the child’s wishes are given controlling effect, while at other times the wishes are disregarded altogether.
In addition to considering the child’s welfare and natural right of the child’s parent to have its custody, courts will consider:
1. the child’s age and judgment capacity;
2. basis for and strength of its preference;
3. generally, the treatment extended to the child by the contestants for its custody; and,
4. the wrongful inducement of the child’s wishes.
If the custody content is between a parent and a non-parent, a court may disregard a child’s wishes for the non-parent and deny the non-parent’s petition for custody.
CHILD CUSTODY
Child Custody Determination: Domestic Violence
Nearly every state currently mandates consideration of domestic violence between the parents when awarding custody, and many states have standards under which it is presumed that a parent guilty of serious domestic violence should not be awarded custody of a child.
CHILD CUSTODY
Troxel v. Granville: Constitutionality of Statutes not Giving Special Weight to Parent’s Decision
Under Troxel v. Granville, a statute that does not require the court to give any special weight to a parent’s determination of the child’s best interest is unconstitutional. In Troxel, the Court found that the statute provided inadequate protection for a parent’s constitutionality protected liberty interest in the care, custody, and control of her child.
CHILD CUSTODY
Child Custody Determination:
Nonparent seeking child custody
In all states, when a nonparent seeks to obtain a child’s custody from a fit legal parent, the parent is accorded a preference. Although the strength of the preference varies by state, in Troxel v. Granville, the Supreme Court implied that such a preference is constitutionally mandated.
CHILD CUSTODY
Custody Modification
Custody modification and prospective modification is based on a substantial change in circumstnaces.
One parent’s relocation that significantly impairs the other parent’s ability to exercise his or her custodial rights represents a substantial change in circumstances.
A significant decrease in income is typically viewed as a substantial change as well.
However, when a parent seeks to modify a child support obligation because he has voluntarily reduced his income, a court will not modify the obligation based solely on the income loss. Some courts refuse to modify whenever the income shift was voluntary. Others look primarily to the petitioner’s intentions and permit downward modification if he has acted in good faith. Many courts use a multifactor approach. In a jurisdiction using a multifactor approach the court would consider the impact on the child (ie., likely duration of income loss, and the likelihood of a promotion that would ultimately be of benefit to the child).
CHILD CUSTODY
Retroactive Modification
State courts have long held that obligations to pay child support ordinarily may not be modified retroactively.
A state court may not retroactively modify a child support order because federal law forbids retroactive modification in all circumstances.
CHILD CUSTODY
Modification of Interstate Child Custody Order
Under the federal Parental Kidnapping and Prevention Act (PKPA), a state may not modify a custody decree issued by another state if either the child or any party continues to reside in the issuing state and the issuing state’s courts do not decline to exercise jurisdiction.
Under the Supremacy Clause, the PKPA takes precedence over any conflicting state law.
Under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), a state that properly issued a custody decree retains continuing, exclusive jurisdiction until all parties and the child have left the state, or until an issuing-state court has determined that there is no longer any signfiicant connection between the child and the person remaining in the state and that substantial evidence is no longer available in that state.
CHILD CUSTODY/PARENTAL RIGHTS
Parental Rights
The Supreme Cout has held that the parental right to care, custody, and control of a child is constitutionally protected under the 14th Amendment. However, parental rights are not absolute. The power of the parent, even when linked to a free exercise claim, may be subject to a limitation if it appears the parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. The spread of preventable, contagious illnesses is a “significant social burden.”
The Supreme Court has specifically held both that a vaccination mandate is within the state’s police power to protect the public health and that a state may refuse school admission to a student who fails to receive a vaccination as mandated.
DIVORCE
Invalidation of Separation Agreements due to Fraud or Unconscionability
All states authorize invalidation of a separation agreement, or a specific portion of such an agreement, based on a finding of fraud or unconscionability. The unconscionability test varies by court.
A few courts have permitted tort actions against a wife who misrepresented her husband’s paternity.
DIVORCE
Premarital Agreement Enforceability
All states permit spouses to contract premaritally with respect to rights and obligations in property. In many states, an agreement is enforceable if the party against whom enforcement is sought succeeds in showing any one of the three factors: involuntariness, unconscionability, or inadequate disclosure. However, how courts apply these factors varies by state.
Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove:
1. involuntariness; or,
2. the agreement was unconscionable and the party did not have an adequate disclosure of knowledge of the other’s assets and obligations.
DIVORCE
Premarital Agreement Enforceability: Involuntariness factor
In considering whether a premarital agreement was voluntarily executed, courts look to whether there was fraud, duress, or coercion. They agree that one party’s insistence on signing the agreement as a condition of the marriage does not, of itself, render the agreeemnt involuntary, but there is no consensus on what additional facts are sufficient to establish involuntariness.
DIVORCE
Premarital Agreement Enforceability: Unconscionability factor
Courts that have adopted the UPAA may still invalidate a premarital agreement based on unconscionability even if both parties have fully disclosed their assets. States apply various methods in evaluating unconscionability by looking whether the agreement was unconscionable when: 1) signed; 2) at the time of divorce; or, 3) at either point in time simply because it is unfair.
DIVORCE
Premarital Agreement Enforceability:
Child Custody Provisions
Because of the strong public policy in favor of protecting the best interests of the children, courts have invariably found that provisions in a premarital contract relating to children, including provisions relating to child custody and visitation, are unenforceable.
DIVORCE
Property Division at Divorce
In all states, a divorce may divide assets without regard to title. However, in most states, only marital property–assets acquired during the marriage except by gift, devise, or inheritance–is subject to division at divorce.
In a minority of “hotchpot” jurisdictions, the court may divide all assets, whenever or however acquired. A few states permit the division of separate proeprty in special circumstances, such as hardship.
