Family Law Flashcards Preview

RI bar exam > Family Law > Flashcards

Flashcards in Family Law Deck (51)
Loading flashcards...
31

 

When does an alimony award end?

 

 

Except for lump sum award, automatically ends on

  • remarriage of recipient or
  • death of either party

 

32

 

How long does a child support award continue and when does it end?

 

 

  • In RI, continues until 90 days after graduate from HS or reach age of majority (18), but in no case greater than 19
  • In some states, through college.
  • Throughout adult years if doesn’t have ability support self because of disability
  • Ends with death of parent (except in RI where continues with estate), regardless of whether child hit majority

 

33

When may a child support award be modified?

May be modified for change of circumstances (loss of job, increase in wages); but not for a self-induced reduction (voluntary impoverishment). Past due payments won’t be modified (arrears)

34

 

What are the two types of custody?

 

 

i. Physical custody—where child will live

ii. Legal custody—decisions about how to raise

Either can be joint or exclusive

 

35

 

What is the uniform custody and visitation home state rule?

 

Avoids jurisdictional disputes with courts of other states by providing:

  • state can enter initial order if it’s either
    • currently the “home state” of child (child lived there for 6 months prior to order) or
    • was the child’s home state within last 6 months and parent still lives there.
  • after the initial order, all other states will defer to the initial order.

36

When may a court decline to exercise its jurisdiction under the Uniform Child Custody Act?

 

It determines either

  1. It's an inconvenient forum and another state is more convenient; or
  2. party seeking to invoke the court's jurisdiction has engaged in unjustifiable conduct (e.g., wrongfully removed child from a state).

37

 

What rule applies where the uniform custody and visitation home state rule can't apply because there is no home state?

 

Court may enter or modify order if (A) no other state has or accepts home state jurisdiction and (B)

  1. child and at least one "parent" have a significant connection with the state; and
  2. substantial evidence concerning the child is available in that state.

If no court has jurisdiction under this test, any court may enter the order.

38

What is the standard for how a court decides custody of a child?

The best interests of the child (BIC) standard.

39

 

What are the BIC factors?

 

 

1. Physical, mental health of parent

2. Acts of domestic violence

3. Child’s preference (>12)

4. New companion’s character

5. Splitting up siblings or extended relatives

6. Material advantages

Gender not a factor

 

40

 

What factors will a court consider on whether to award shared custody?

 

 

1. Cooperation of parents

2. Whether parents live close to each other

 

41

 

What showing must be made before a court will award custody to a non-parent?

 

 

Non-parent or government must overcome the presumption that BIC served by putting with biological parent by showing that

  • biological parent unfit (very difficult burden to overcome).
  • BIC is to place with non-parent.

 

42

When will a court grant a modification of custody order?

If BIC but only after considering stability in the child’s life in addition to BIC.

43

W is unwed and has a son. Father won't acknowledge that he's the father and won't provide support. What do you advise W?

Mother can file paternity suit so that can get child support. Child represented by GAL

44

 

What are the two methods of terminating parental rights?

 

 

1. voluntarily ("put up for adoption")

2. involuntarily (State terminates) 

45

 

What is the burden of proof that the state must overcome to involuntarily terminate parental rights and what factors will the state use to demonstrate that it has met that burden of proof?

 

 

Parent is unfit by clear and convincing evidence based upon:

1. Abandonment—doesn’t visit or communicate

2. Failure to pay child support over extended period of time

3. Neglect

4. Abuse

5. Mental illness or drug abuse

46

 

When can visitation rights be denied to a non custodial parent?

 

 

Only where there's a threat to health or safety.

  • Almost never denied.
  • Not denied for failure to pay child support.

 

47

 

When can visitation rights be denied to a grandparent?

 

 

If grandparent and parent friction leading to visitation issues, due process rights allow a custodial parent to keep kids away from grandparents unless grandparents can show a compelling reason that denying visitation would cause detriment to kids that overrides due process right.

 

48

 

What is the adoption process?

 

 

  1. Voluntary relinquishment or involuntary termination of parental rights
  2. Consent from anyone who has been awarded legal custody
  3. Consent of child older than 12 years (14 in RI).
  4. Investigate adoptive parents—interviews, home visits
  5. BIC hearing

 

49

Which RI court has jurisdiction over divorce, alimony, custody, etc?

Family court.

50

 

When does separate property become transmuted in RI?

 

 

  1. Actual intention
  2. objectively manifested by transfer of non-M assets to the other spouse,
  3. unless showing of clear and convincing evidence to the contrary.

51

What are the two spousal evidentiary privileges?

  1. Spousal immunity: while married, a person cannot be compelled to testify against his spouse in any criminal proceeding
    • Doesn't survive marriage
    • Can voluntarily testify
    • Criminal proceedings only
    • doesn't apply to crimes against spouse or children

  2. Spousal confidence: either spouse, whether or not a party, is privileged to refuse to disclose and to prevent the other from disclosing a confidedntial communication made between them while they were married.
    • survives marriage
    • can testify if other spouse blocks
    • civil also 
    • doesn't apply to crimes against spouse or children