Family Law 2024

Question 1

Modifying Spousal Support Awards

Answer 1

spousal support awards normally can be modified if there is a substantial change of circumstances.

Question 2

Child custody and visitation

Answer 2

If the spouses have children, the court will decide issues of child custody and visitation based on the best interest of the child.

Question 3

Gifts in contemplation of marriage

Answer 3

If the marriage does not take place, gifts conditioned on the marriage (for example, an engagement ring) must be returned.

Question 4

Premarital Agreements

Answer 4

AK antenuptial agreements.
Valid contracts that address the rights of the parties upon divorce or death. The marriage is sufficient consideration to support a premarital contract.

Question 5

Requirements for an enforceable PREMARITAL CONTRACT to be valid?

Answer 5

1. K must be IN WRITING and signed by party to be charged, and
2. Agreement must be entered into voluntarily (no fraud, duress, or overreaching), and
3. Both parties must make a Full and fair DISCLOSURE of financial worth (proof of assets or proof that party against had independent knowledge of the assets).
   [If agreement is UNCONSCIONABLE…]

*some cts: Economic provisions must be fair and reasonable.

Independent Counsel: NOT required, if both parties are represented by independent counsel, courts are far less likely to find overreaching and refuse to enforce the contract.

Question 6

Contents of premarital contract. What can it have? What can it NOT have?

Answer 6

disposition of property in the event of death or divorce;
the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
the choice of law governing construction of the agreement; and
any other matter not in violation of public policy or criminal statute.

Generally, parties can make agreements regarding alimony (also known as spousal support), but a court may find the provision unenforceable if it leaves the disadvantaged spouse a public charge.

BUT, no provisions in pre-marital agreements for CHILD support and child custody. Never bind the court.

Question 7

Pre-marital agreements:
void marriages?
Choice of Law provisions? What law governs of not?

Answer 7

Void Marriage: If a marriage is found to be void, a premarital agreement is enforce- able only to the extent necessary to avoid an inequitable result.

Premarital agreements often contain valid choice of law provisions.
If the agreement at issue does not contain a choice of law provision, then its enforceability is governed by the law of the state where it was executed or the state with the most significant relationship to the parties.

Question 8

Marriage Requirements

Answer 8

No Legal Impediments to marry:

Both minimum age

Parties not too closely related

Both parties have capacity to consent (ability to comprehend and volutnarily agree)

Both parties must NOT have a prior UNDISSOLVED marriage to a LIVING spouse (Bigamy)

Procedural requirements:

License

Solemnization (ceremony)

Question 9

WHo can marry: legal impediments to marriage

Answer 9

Both minimum age

Parties not too closely related

Both parties have capacity to consent (ability to comprehend and volutnarily agree) [at time of the ceremony]

Both parties must NOT have a prio UNDISSOLVED marriage to a LIVING spouse (bigamy)

Capacity to consent = must understand their actions and voluntarily agree to them. parties must intend to enter into marriage, so a marriage may also be subject to attack if one party is induced to marry because of fraud, duress, coercion, or force.

Question 10

Procedural requirements for a marriage

Answer 10

License (most states)

Solemnization (ceremony with authorized officiant)

BUT, the failure to meet procedural requirements of a license will not invalidate the marriage.

To get license, some states require that each party obtain a certificate from a physician stating that the party is free from particular communicable diseases.

Most states require a waiting period between getting the license and having the ceremony (often, 48 or 72 hours).

Question 11

Requirements for a COMMON LAW marriage

Answer 11

Requires 3 things:
Exchange of Consent to marry between two people (includes capacity and lack of legal impediments)

Cohabiatation (no specified time is required)

Couple Holding Out publicly of living together as spouses

[C, C, Hop]
CL Marriage abolished in most states. BUT, if a valid common law marriage is formed in one state BEFORE moving, it will generally be regarded as valid even in those states that do not recognize common law marriage.

Question 12

Marriage by estoppel or Putative Marriage

Answer 12

Equitable remedy that some states use to protect an innocent party who acted in good faith when entering into an invalid marriage.
In some states, the putative spouse can acquire all of the rights of a legal spouse.

Ex: married someone who you did not know was married to someone else- this provides marital rights invalid marriage who enter in good faith.

Question 13

Property during marriage and after

Answer 13

DURING marriage, each each spouse owns and controls the property in their own name, BUT title is not dispositive in the event of divorce.

Look to how spouses take title to property.

Question 14

Tenancy by the Entirety

Answer 14

if spouses take title to real estate jointly, a tenancy by the entirety is presumptively created.

A tenancy by the entirety includes a right of survivorship, and one spouse cannot convey or encumber the property without the consent of the other spouse.

Upon dissolution of the marriage, tenants by the entirety become tenants in common.

Question 15

Marital property

Answer 15

property acquired DURING marriage is marital property, no matter how titled. Upon dissolution of the marriage, the court has broad discretion regarding the equitable distribution of this property.

Question 16

Approaches to Dividing Property Upon Divorce

Answer 16

Community property
(all property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property)

Equitable division of all property owned by either spouse, whether acquired before or after the marriage

Equitable division of marital property (most common)

Question 17

Obligation to Support spouse

Answer 17

During marriage, each spouse has an obligation to support the
other.
The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses (food, clothing, and health care).

Question 18

Spousal Abuse Orders

Answer 18

Every state has laws protecting the Vs of domestic abuse, both within and outside of a marriage.
All 50 states allow a battered spouse to seek some form of protective order against a violent spouse.

Initially, protective orders can be granted ex parte (that is, WITHOUT NOTICE to the other spouse) and can last from one month to several years.

Question 19

Alienation of Affection

Answer 19

If 3rd party diverts affection from one spouse, the deprived spouse has a tort claim for this against the 3rd party.
need genuine love and affection between validly married spouses, alienated or destroyed, and causation.

Question 20

Criminal Conversation

Answer 20

need 1) valid marraige and 2) adultery.

Question 21

Negligent Infterference with Consortium or services

Answer 21

Action for Loss of other’s consortium due to injuries from D’s negligence.

Question 22

Family Privacy

Answer 22

Families have the right to privacy in their homes and freedom from governmental interference in their domestic affairs.
Parents have authority to make decisions about most matters concerning the upbringing of their child, but certain state interests (for example, prevention of abuse and neglect, compulsory education) take precedence over parental autonomy.

The United States Supreme Court has recognized a constitutional right of privacy as implicit in the concept of “liberty” and protected by the Due Process Clause. Because privacy is a fundamental right, any regulation of it is invalid unless it is necessary to protect a compelling government interest.

Question 23

Constitutiaonlly protected rights within right to privacy

Answer 23

Right to/of
marry

procreate

use or sel contraceptives

related persons to live together

parents to EDUCATE their children outside the public schools

parents to decide issues concerning CARE, CUSTODY , and CONTROL of their children.

Question 24

Divorce vs Annulment

Answer 24

ANNULMENT: Marriages that are invalid due to an impediment at the time of the marriage can be annulled. Annulment declares marriage INVALID due to impediment that existed at the time of the marriage (made it VOID or VOIDABLE).

DIVORCE: Valid marriages can be dissolved by either a fault-based or no-fault divorce.

Question 25

Void marriage

Answer 25

GROUNDS: Bigamy Consanguinity Nonage (some states) Invalid utter nullity, failed to meet essential reqs for legal marriage. No ratification of void marriage. Parties can walk away with NO legal action, but usually bring annulment action to determine property distribution and child custody. Validation of void marriage: if impediment causing it to be void is removed, and the parties continue to cohabit. (under the UMDA) EFFECT: cannot be ratified. But if impediment removed, continued cohabitation results in validation in some js). A complete nullity even without a court order Any interested party may seek annulment Subject to collateral attack (for example, in probate proceedings) Subject to attack after death of one of the parties

Question 26

VOIDABLE Marriage

Answer 26

Valid until declared null. Because of impediment that existed at the time of the marriage, ONE of the spouses may bring an action to have it annulled. No collateral attacks. Voidable marriages can be remedied (or RATIFIED) by continued habitation after the removal of the impediment, and ratification means the marriage cannot be annulled. EFFECT: Can be ratified (continuing in relationship after impediment removed. Valid until declaration of annulment Only spouses may seek annulment Not subject to collateral attack Not subject to attack after death of one of the parties.

Question 27

VOIDABLE marraige grounds

Answer 27

GROUNDS: Nonage (most states) Incurable physical impotence Lack of capacity Mental incompetence Duress Fraud involving the essentials of marriage

Question 28

Grounds for ANNULMENT of marriage: (VOID or VOIDABLE marriage examples)

Answer 28

Bigamy or polygamy Cosanguitity (incest) Nonage Incurable physical impotence 5. Lack of capacity/Mental incompetence Lack of consent Duress 8. Fraud involving the essentials of marriage

Question 29

Bigamy

Answer 29

BIGAMY or POLYGAMY: if either party has a living spouse. Void BUT, the subsequent spouse has two possible arguments: (a) the strong presumption that the latest marriage is valid, and, (b) if the prior marriage is later terminated by divorce, annulment, or death, continued cohabitation validates the second marriage under the UMDA and similar statutes.

Question 30

Cosanguinity

Answer 30

Cosanguitnity (AKA incest) Parties are too closely related (direct lineal ascendants/descendatns, aunt, uncle, siblings, niece/nephew.

Question 31

Nonage

Answer 31

Nonage (spouse under statutory age and married without getting required consent). underage spouse may ratify the marriage by continuing in the relationship after reaching the statutory age. Usually voidable, but maybe void depending on state law

Question 32

4. Incurable physical impotence

Answer 32

4. Incurable physical impotence Inability to have normal sexual relations with a spouse. Impotence is NOT inability to have children. (voidable)

Question 33

5. Lack of capacity/Mental incompetence

Answer 33

5. Lack of capacity/Mental incompetence Lack of understanding, whether due to mental infirmirtty or drugs/alcohol (voidable)

Question 34

6. Lack of assent

Answer 34

6. Lack of assent (voidable)

Question 35

7. Duress

Answer 35

7. Duress Affects consent (voidable)

Question 36

8. Fraud as grounds for voidable marriage

Answer 36

8. Fraud involving the essentials of marriage Fraud Affects consent IF it involves an ESSENTIAL elemnt of marriage (like ability/willingness to have sex or have kids). (voidable)

Question 37

Effect of Annulment Effect on property? Defenses of void? Defenses of voidable?

Answer 37

Marriage set aside as if it never existed. Property: place parties in pre-marriage position. For VOID marriages: ONLY defense is to deny the existence of the defect. Also, if the impediment has been removed and parties continue the relationship, marriage becomes valid in some js (UMDA). For VOIDABLE marriages: Ratification is the most common defense Also laches or estoppel. Children: still marital children, support and child custody issues are handled the same way as divorce. Spousal Support: Generally not awarded. No reinstatement of SS from previous marriage terminated by remairrage later annulled. if spousal support from a previous marriage has been terminated by remarriage, it will not be reinstated following an annulment of that marriage.

Question 38

JURISDICTION over DIVORCE

Answer 38

To have jurisdiction over a divorce, only one of the parties needs to be domiciled (that is, resident with intent to remain) in the jurisdiction. Most states set a minimum residency period (for example, 90 days) before an action may be filed. Multiple states can have JS, until one court renders a judgement, then others lose SMJ.

Question 39

JURISDICTION over Defendant

Answer 39

To determine financial issues (like property rights and support), the court must have personal jurisdiction over the defendant. divorce itself is viewed as an in rem action; thus, certain types of constructive service (such as publication) may be permitted.

Question 40

Recognition of divorce Decree: Full Faith and Credit

Answer 40

As long as one of the parties was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states. BUT, need PJ for the provisions relating to prop’y rights, spousal support, child support, and other financial issues.

Question 41

Grounds for NO-FAULT Divorce:

Answer 41

Requires showing ONE of the following: 1. Both parties agree that the marriage is irretrievably broken (irreconcilable differences or incompatibility). Bilateral no-fault divorce 2 The parties have been living apart for a specified and continuous period of time Can be bilateral or unilateral. 90 days - 18 months (period may be longer if unilateral) 3. Both spouses agree they are now incompatible and can no longer be married. Bilateral no-fault divorce. Bilateral = both parties agree to divorce (that is, the divorce is bilateral

Question 42

Typical FAULT grounds for FAULT Divorce

Answer 42

Adultery Willful desertion for a specified time Extreme physical or mental cruelty Drug addiction or habitual drunkenness Mental illness Adultery: filing spouse presents circumstantial evidence of opportunity and inclination. Coorboation often required. Willful desertion (or abandonment): This requires an unjustified departure from the marital home for a specified period with no intent to return Extreme physical or mental cruelty Voluntary drug addiction or habitual drunkenness commencing after the marriage Insanity

Question 43

Traditional Defenses to NO-Fault Divorce?

Answer 43

ONLY DEFENSE is deny the existence of one of the grounds. Ex: claim a reconciliation restarted the clock for living separate and apart.

Question 44

Traditional Defenses to Fault Grounds?

Answer 44

Collusion (an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense) Connivance (the willing consent by one spouse to the other spouse’s misconduct) Condonation (the forgiveness of marital offenses with full knowledge of their commission. Need Resumption of marital relations after the forgiveness) Recrimination (the party seeking the divorce is also guilty of misconduct for which a divorce may be granted)

Question 45

Where Is an Action for Divorce Proper?

Answer 45

Jurisdiction is proper in a state if a party is a bona fide resident of the state. Venue is in the county in which the spouses usually reside As long as one of the parties was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states. Provisions of the decree relating to property rights, spousal support, child support, etc., are given full faith and credit only if the court had personal jurisdiction over the defendant

Question 46

Approaches to Dividing Property Upon Divorce

Answer 46

The three approaches to division of property upon divorce are: Community property (all property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property) Equitable division of all property owned by either spouse, whether acquired before or after the marriage Equitable division of marital property (most common)

Question 47

Property Division Process. Are prop distribution decrees modifiable?

Answer 47

Two-step process: Classification: determine what is Marital property (MP) and what is Separate property (SP) Division: Make an Equitable Division of the marital estate no matter how the property is titled. Note: Property Distribution decrees are NOT modifiable.

Question 48

What is Marital Property?

Answer 48

Marital property is subject to equitable distribution by the court. Marital property is all property acquired by either spouse during the marriage, EXCEPT: Property acquired through gift, bequest, devise, or descent Property acquired in exchange for property that a spouse owned before the marriage or acquired through gift, bequest, devise, or descent The income from or appreciation of property that a spouse owned before the marriage or acquired through gift, bequest, devise, or descent, unless either spouse contributed to the property’s increase in value Marital property includes: Property acquired during the marriage Earnings Employment benefits, pensions, and stock options majority rule is that employment benefits, stock options, and pension rights earned during marriage are marital property even if they will not be exercised or vested until after the divorce. Lost wages Reimbursement for medical bills incurred and paid with marital property Recovery for damages to marital property

Question 49

Separate Property

Answer 49

Generally, in a divorce, each spouse takes their separate property. Separate Property includes: Property owned before marriage Property acquired by gift or inheritance Property acquired in exchange for separate property Income and appreciation of separate property Pain and suffering awards Personal damages (for example, future medical expenses or future lost wages) Property acquired after an order of legal separation that includes a final disposition of property

Question 50

Separate property may become marital property if? Two things

Answer 50

Separate property may become marital property if either: Commingling: it is inextricably intertwined with marital property or SP of other spouse to the extent that it can no longer be traced; OR Transmuation: the SP is treated in a way that evidences an intention for the property to be marital property. (ex - placing SP in the names of both spouses).

Question 51

SP improved by use of Marital funds or effort of a spouse

Answer 51

The property remains SP, BUT the marital estate or nonowning spouse gets reimbursement for the value added to the SP. Increase in value due to market factors remains SP.

Question 52

Property acquired BEFORE marriage but PAID for after marriage

Answer 52

majority: property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property.

Question 53

Pension

Answer 53

The portion of a pension earned during a marriage is marital property subject to distribution. Could use other assets to offset this liability.

Question 54

Professional Liucense or Degree

Answer 54

NOT distributable property. But use alimony to compensate supporting spouses for their contribution during the other spouse’s training/education.

Question 55

Equitable Division: Factors that Might a Court Consider in Dividing Property

Answer 55

Trial ct has discretion, and decision NOT subject to modification once divorce is final. Facotrs include: The age, education, background, and earning capacities of both parties The duration of the marriage, and whether there were any prior marriages The standard of living during the marriage The present incomes of both parties, and their vocational skills and employability The source of the money used to purchase the property The health of the parties Assets, debts, and liabilities of the parties The needs of the parties The child custody provisions Whether the distribution is in addition to, or in lieu of, spousal support (alimony) Each party’s opportunity to acquire future income and assets Each party’s contribution to the acquisition of, or enhancement of the value of, the existing marital assets Each party’s contribution as a homemaker to the family unit Economic fault (Whether either party has dissipated marital property) *Marital fault NOT generally a consideration.

Question 56

Property can be divided either:

Answer 56

In kind (dividing assets) or by contribution (assets to one spouse and $ to the other).

Question 57

Spousal Support

Answer 57

may be awarded while the parties are still married, during the divorce proceeding, or as part of the divorce decree.

Question 58

Factors Court Considers in Awarding Spousal Support (alimony)

Answer 58

Broadly, the two primary considerations are the needs of the claimant and the ability of the other spouse to pay. 1. The duration of the marriage and 1. the standard of living established during the marriage 2. The age and physical and emotional condition of the parties 3. The financial resources of the parties 4. The contribution of each party to the marriage 5. The time needed for the party seeking support to obtain the training necessary to find appropriate employment 6. The ability of the payor spouse to meet his needs while paying spousal support 7. Marital fault (only in some states) The purpose of support is to ensure the dependent spouse has an adequate income stream to meet their needs—not necessarily ensuring they maintain the same lifestyle they had during the marriage

Question 59

4 Types of Spousal Support (can award more than one)

Answer 59

Permanent periodic spousal support Rehabilitative spousal support Lump sum payment Reimbursement spousal support

Question 60

Permanent periodic spousal support. Who? Modification?

Answer 60

Permanent periodic spousal support—paid regularly (e.g., monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining. Duration: Indefinite; for the lifetime of the recipient Modification: YES. Can be increased, decreased, or terminated upon proof of substantial change of circumstances. (death of either spouse or remarriage of recipient). Terminates upon the remarriage of the recipient spouse or the death of either spouse.

Question 61

Rehabilitative spousal support Modification?

Answer 61

Rehabilitative spousal support—periodic payments for a limited time to enable a spouse to gain skills to become self-supporting. Duration: For specified time period. Modification: YES. Can be increased, decreased, or terminated upon proof of substantial change of circumstances. (death of either spouse or remarriage of recipient)

Question 62

Lump sum payment

Answer 62

Lump sum payment—nonmodifiable, fixed amount payable either all at once or broken down into a series of payments Duration: For a specified time period; can be in installments or lump sump. Modification: None. This is treated like a contract right and is bind- ing on payor’s estate. not modifiable and survives the death of either spouse.

Question 63

Reimbursement spousal support. Modifiable?

Answer 63

Reimbursement spousal support—awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree Duration: For a specified time period; can be in installments or lump sump. Modification: None. It is treated as a contract right and can be awarded even if the supporting spouse is not otherwise eligible for spousal support. not modifiable and survives the death of either spouse.

Question 64

Modification of Spousal Support

Answer 64

Only periodic spousal support (that is, permanent or rehabilitative alimony) may be modified. Periodic spousal support may be modified if there is a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay. Legal obligations to a new spouse or children (but not stepchildren) may be a sufficient change in circumstances if the change is unanticipated. If S intended to remarry upon divorce, change is not unanticipated and will not constitute a sufficient change in circumstances. Self-induced reduction in income by the payor spouse is not sufficient to have spousal support reduced.

Question 65

Termination of Sppusal Support

Answer 65

Periodic (permanent or rehabilitative) spousal support terminates on the death of either spouse or remarriage of the recipient spouse.

Question 66

Court-approved MEDIATION for parties to a Divorce action

Answer 66

Any agreement reached must be based on the decision of the parties and not the decision of the mediator, who may not advocate for either party or coerce a party to make a decision.

Question 67

Mediator duties

Answer 67

Mediator must: Explain mediation process Explain right to independent counsel to parties Ensure that the parties have enough information for informed decisionmaking Remain impartial and disclose any potential bias Control for any power imbalance between the parties

Question 68

Separation Agreement

Answer 68

Agreement entered into AFTER marriage under which parties agree to live apart and resolve economic issues (that is, spousal support, property division, and child support) and custody rights.

Question 69

To be enforceable, a ​​Separation Agreement must be…

Answer 69

The agreement must be volun- tary, there must have been a full and fair disclosure by both parties, and there must be consideration. Consideration for the agreement is found in the mutual promises of the parties.

Question 70

Provisions enforceable in a Separation Agreement?

Answer 70

In a separation agreement, parties can waive alimony or property division and parties can agree on custody and child support, but the court is not bound by the parties’ contract concerning children. Child custody and support provisions will be enforced by the court only if they are in the child’s best interest.

Question 71

Modification of Separation Agreement

Answer 71

If merged, can modify. Child support and custody provisions can always be modified if it is in the best interest of the child.

Question 72

Child SUpport. Modifiable?

Answer 72

Both parents share equally a duty to support their children. In general, parents must pay for their children based on their ability to pay and the needs of the child. Child support is awarded using a formula/guidelines based on the number of children, their ages and special needs, and the parents’ incomes. There's a rebuttable presumption that the award that results from applying the guidelines is correct. The guidelines must be applied in all cases, regardless of the parents’ marital status. Child support, like spousal support, can be modified if there is a substantial change of circumstances. Based on monetary need and ability to pay, but court generally must follow statutory guidelines based on number of children, their ages and special needs, and the parents’ incomes.

Question 73

Visitation

Answer 73

The child support obligation is independent of the noncustodial parent’s visitation rights. Visitation cannot be withheld because of failure to pay child support.

Question 74

Modification to Child SUpport- standard?

Answer 74

Child support is modifiable based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay, such as changes in employment, the growth of the child, inflation, income, retirement, or disabling illness.

Question 75

Child support duty ceases upon:

Answer 75

CHild reaching age of majority, Deaht of child, Emancipation, Termination of parental rights.

Question 76

Jurisdiction over Child SUpport

Answer 76

UIFSA governs child support. Original jurisdiction to enter a child support order is proper where the first petition under UIFSA is filed. That state that issued the order has exclusive and continuing jurisdiction to modify the order… unless below. Another state can exercise jurisdiction only if: • The second petition is filed before the time to answer the first has expired • The petitioner objected to jurisdiction in the first action • The second state is the child’s home state (where lived for last 6 months with parent.) Once a Child support order is registered, it may be enforced by any state.

Question 77

Jurisdiction to Hear a child Custody Case? Home state rule

Answer 77

1. In all states, divorce courts are authorized to make custody awards 2. State statutes determine which other state courts have jurisdiction to hear child custody cases. 3. As between two states, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) controls: a. The first test, the most important jurisdictional test, is the child’s “home state” test: The Home State has Exclusive jurisdiction to modify a custody decree. A child’s home state is the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement of the child custody proceeding (if the child is less than six months old, the home state is where the child has lived since birth) In determining whether the six-month test is met, temporary absences are disregarded. A home state CONTINUES to have exclusive jurisdiction to issue a custody order for six months after the child leaves the state, as long as a parent (or parental-person) still lives in the state. A court has jurisdiction to initially enter or to modify a child custody or visitation order if the state (i) is the child’s home state, or (ii) 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 (e.g., guardian) continues to live in the state

Question 78

Primary Test - Home State Jurisdiction [IMPORTANT]

Answer 78

Primary Test—Home State Jurisdiction A court has jurisdiction to initially enter or modify a child custody or visitation order if the state: • Is the child’s home state, or… • 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 (that is, a guardian) continues to live in the state A child’s home state is the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding (or the state where the child has lived since birth if the child is younger than six months old), disregarding temporary absences.

Question 79

When/if Home State Rule does not apply…

Answer 79

IF no other state has or accepts home state jurisdiction (child has no home state) … then the SIGNIFICANT CONNECTIONS test applies Under that test, A court has jurisdiction to enter or modify a child custody or visitation order if: 1) The child and at least one parent (or person acting as a parent) have a significant connection with the state, and 2) Substantial evidence concerning the child is available in the state

Question 80

Modification of existing custody decree- jurisdiction?

Answer 80

issuing court has continuing exclusive jurisdiction. Another state can only exercise jurisdiction if: • No child or parent (or persons acting as parents) continues to reside in the issuing state, or • The child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state.

Question 81

Custody of a minor can mean.

Answer 81

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.

Question 82

How is Custody Determined? Modifiable?

Answer 82

The standard to be applied in awarding custody is the best interest of the child. Factors considered in making this determination include [HARP] the wishes of the parents; the preferences of the child (especially if the child is over age 12); (But not if under 8) Child’s relationship with parents, siblings, and others involved with parents the child’s adjustment to home, school, and community; and the mental and physical health of all of the parties If ct cant decide, custody given to Whoever has been the child’s primary caregiver (that is, the parent most involved in the child’s day-to-day life). Custody orders are always modifiable if there is a substantial or material change in circumstances

Question 83

How will Visitation Be Determined? What about Third party visitation?

Answer 83

It is a strong policy of the law to promote the relationship between the child and both parents by ensuring both parents have reasonable visitation rights—absolute denial of visitation is rare 2. A custodial parent may not withhold visitation from a noncustodial parent because of a failure to pay support 3. Courts presume that a fit parent’s decision regarding third-party visitation is in the child’s best interest, and this decision must be given deference 4. Removal of the child from the jurisdiction may be considered a violation of the visitation provisions of the custody order

Question 84

courts will not award joint custody if…

Answer 84

courts will not award joint custody if the parents are openly hostile or unable to communicate.

Question 85

Modification of custody awards- standard?

Answer 85

Generally, custody awards will be modified only if there has been a substantial and material change in circumstances affecting the child’s well-being.

Question 86

Can the custodial parent move out of state?

Answer 86

Courts allow the custodial parent to move out of state with the child if: 1. relocation is in the child’s best interest, 2. the move is motivated by a benefit to the family, and 3. it is not intended to thwart the relation- ship with the other parent.

Question 87

Termination of Parental rights. BOP?

Answer 87

Because the right to raise one’s children is a fundamental constitu- tional right, parents must have due process before their rights can be terminated involuntarily. Grounds for termination must be proved by clear and convincing evidence. (serious physical harm, abandonment, neglect, failure to provide support w/oput justifiable cause, mental illness, parental unfitness).

Question 88

Parentage rules - (who’s the parent?)

Answer 88

1. Most statutes provide that any child is the lawful child of his mother - the mother’s husband is presumed to be the father of a child if the child is born during the marriage or within 300 days of the marriage’s termination. 2. Statutes often provide that a child is also the lawful child of his unwed father if: a. The parents were married at the time of the child’s birth b. The parents were married after the child’s birth (some states additionally require the father’s acknowledgment) c. The father holds the child out as his biological child d. The father consents to be named on the birth certificate e. The father has acknowledged paternity (some states require certain formalities; e.g., writing, oath) f. There is a judicial decree establishing paternity (limited in some states to suits during the father’s lifetime) 3. A paternity suit may be brought by the child’s mother, the child, or by state agencies if the child is receiving support from the state.

Question 89

Steps of an Adoption -

Answer 89

1. The first step is termination of the biological parents’ rights Consent of the child’s biological parents generally is required, but **exceptions**: * Consent is not required if parental rights are terminated in another proceeding (e.g., for neglect, abuse) * Consent may be waived if the court determines that it is being unreasonably withheld against the best interest of the child (e.g., if the child has been abandoned) * Consent of the **father** of a nonmarital child may not be required if he has not established a relationship with the child. -considers level of the father’s involve- ment with the child, such as whether he lived with and cared for the child, visited the child regularly, admitted paternity, or paid child support 2. The second step is creation of a new legal parent-child relationship. * Adoptee’s consent needed if over a certain age (12 or 14) * Suitability of proposed adoption and approval by court. Except for relatives. * NO payment of money to natural parents (other than med costs) Nonconsenting parent is entitled to notice of the hearing and an opportunity to be heard. BUT, father of a nonmarital child who has never attempted to establish a legal or personal relationship with that child has no right to notice prior to the adoption of the child by others.

Question 90

Result of adoption

Answer 90

New birth cert lists adoptive parents as childs presents. TERMINATES bio parents rights and obligations, creates new ones in adoptive parents.

Question 91

UPA: the parent-child relationship is established between an individual and a child by:

Answer 91

• Having given birth to the child (except in cases governed by a surrogacy agreement) • Adjudication of a woman’s maternity • Adoption by the mother • Adjudication confirming mother of child born to a gestational surrogate • A husband who is married to a woman who has a child through assisted conception is the child’s father unless he proves his lack of consent within two years after birth

Question 92

Surrogacy agreement

Answer 92

Only gestational allowed (surrogate uses gametes that are NOT her own). Genetic surrogacy NOT allowed (surrogate uses own gametes). To be valid, gestational carrier agreement must: • Be in writing and approved by the court • Be accompanied by a child welfare agency home study unless waived • Be voluntary • Make provision for healthcare costs until birth • For constitutional reasons, not limit the rights of the surrogate to make healthcare decisions • Provide reasonable consideration if the surrogate is promised consideration. (This varies greatly among states.) Can be terminated any time by any party before embro transfer.

Question 93

What law governs enforcement of pre-marital agreement?

Answer 93

* The law of the state where the prenup was **executed**, **OR** * The law of the state with the **most signficiant relationship** to the parties and transaction.

Question 94

retroactive modification of child support

Answer 94

Federal law forbids retroactive modification of child support (absent circumstances like fraud),