IV. Child custody

Question 1

Child custody

Answer 1

Custody of minor can mean legal custody, physical custody, joint custody.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

1. purpose - to avoid jurisdictional disputes and strengthen enforcement procedures

2. Initial custody determination

1. Home State jurisdiction test: Ct has J to enter child custody order if (i) child’s home state, or (ii) was child’s home state wi 6 months and child absent, but parent continue to live in state. home state = where child and parent lived consecutively 6 months bf commencement of proceeding.
2. when “Home State” rule not apply: Ct has J if no other state has or accepts HSJ, and (i) child and parent have significant connection, (ii) substantial E concerning child in state
3. Exclusive continuing J - until (i) neither child/parent reside in state or (ii) child no longer has significant connection
4. Ct may decline J if it is (i) inconvenient forum (ii) party engaged in unjustifiable conduct

Question 2

Best interest of child standard***

Answer 2

Standard applied in awarding custody and visitation is best interest of the child. Factors:

1. wishes of child and parents
2. child’s relationship w parents, sibling, and others
3. child’s adjustment to home, school, and community
4. physical and mental health of individual involved

• preference of child older than 12 given great weight
• gender/financial ability not basis

Question 3

Visitation

Answer 3

When award of sole physcial custody is made, the other parent must be given reasonable visitation rights.

1. limitation imposed for misconduct - Ct may limit visitation if parent engage in conduct that may harm child
2. removal of child from J by custodial parent is OK as long as not merely to frustrate visitation rights
3. remedy - contempt
4. 3rd party visitation - all states entitle certain 3rd parties to visitation rights based on BIC standard. However, SCT held unconstitutional for Ct to override a fit parent’s decision regarding 3rd party visitation

Question 4

Enforcement

Answer 4

Child custody awards may be enforced by contempt proceedings. Under** Parental Kidnapping Prevention Act (PKPA)**, full faith and credit must be given to another state’s custody/visitation determination if the Act’s jurisdictional requirements are met.

Question 5

Modification of child custody decrees

Answer 5

Generally, child custody awards will be modified only if there is substantial or material change in circumstances. Party seeking modification has BOP, and BIC standard.