Family Law - Children

Removal of Child from Jx by Joint-Custody Parent

Standards vary but are generally more protective of parent who is not relocating

SDP Right: Possible SoL

State may create a SoL for paternity actions by unmarried putative father (e.g., 2 years from birth)

SDP Right: Possible Irrebutable Presumption

State may create an irrebutable presumption a married woman's husband is the father in cases where the mother does not join the alleged father's paternity petition

UCCJEA: Exclusive & Continuing Jx

State that properly issued custody decree retains exclusive jx until: (1) All parties and child have left state; or, (2) Issuing-state court finds there is no longer any significant connection between child and party remaining in state AND substantial evidence no longer available in state

Blood/Genetic Testing: 9 Factors Courts Use to Find Disproving Father-Child Relationship Inequitable

"Father" = presumed or acknowledged father (1) Length of time between proceeding and notice to father of possible non-paternity (2) Facts surrounding father's discovery of possible non-paternity (3) Length of time during which father assumed paternal role (4) Nature of relationship between child and father (5) Nature of relationship between child and alleged father (6) Age of child (7) Harm to child if paternity disproved (8) Chance of establishing paternity of alleged father and child-support obligation in favor of the child (9) Any other factors that might harm child

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA): Purpose

(1) Avoid jx competition and CoL in custody matters (2) Facilitate FF&C to custody decrees of other states Adopted by virtually all states

Joint Custody: 8 Factors

(1) Capacity of parents to communicate and reach shared decisions affecting child's welfare (2) Fitness of both parents (3) Parents' agreement to joint custody (if yes, usually granted unless not in child's best interest; if no, not granted unless in child's best interest) (4) Preference of child (5) Level of involvement of both parents in child's life (6) Geographical proximity of the two homes (7) Effect on child's psychological development (8) Parents' ability to carry out the joint custody order

UCCJEA: Temporary Emergency Jx

(1) Child present in state (2) Child has been abandoned or jx necessary to protect child directly or indirectly subjected to or threatened with abuse

UCCJEA: Initial Child Custody Jx

(1) Child's home state (where child has lived with a parent or guardian for at least 6 months immediately before commencement of child custody proceeding) (2) State with significant connection to parties (beyond physical presence) and substantial evidence present regarding child care, protection, training and personal relationship IF: (a) Home state declined to exercise jx (b) No other state has jx

Remedy for Visitation Order Violations

(1) Contempt of court (2) Court may modify order for consistent and willful violations

Intrastate Enforcement Related to Custody

(1) Contempt proceedings (2) Suits in equity

Emancipation: 3 Methods

(1) Court petition (2) Marriage (3) Military service

Surrogacy Arrangements: Effect of Gestational Mother's Marriage Post-Agreement

(1) Does not affect validity of agreement (2) Husband's consent not required (3) Husband not presumed father of resulting child

Termination of Parental Rights: Requirements

(1) Due process (2) Grounds proven by clear and convincing evidence

Minimum Attributes of Parenthood (5)

(1) Expression of love and affection for child (2) Expression of personal concern over health, education and general well-being of child (3) Duty to supply necessaries (4) Duty to provide adequate domicile (5) Duty to furnish social and religious guidance

Effect of Emancipation

(1) Extinguishment of parental duties/obligations (2) Removal of disabilities of infancy

Blood/Genetic Testing: Special Rules

(1) If defendant cannot be father, filiation proceeding dismissed (2) Court may deny admittance if child has presumed or acknowledged father and court finds: (a) Mother or father estopped from denying parentage (b) Inequitable to disprove father-child relationship

When can medical treatment be performed without parental consent?

(1) Implied consent for life-threatening emergency (2) Public health concerns (in most states, by statute; e.g., abortions, birth control and STD treatments) (3) Older children (in some states, by statute or case law specifying age or maturity level); typically minor near age of majority and medical procedure is minor (4) State intervention in case of neglect

UCCJEA: Declining Jx

(1) Inconvenient forum under the circumstances; court of another state is more appropriate forum (2) Unjustifiable conduct by person seeking to invoke its jx

Termination of Parental Rights: 6 Grounds

(1) Infliction of serious physical harm (2) Abandonment (3) Neglect/Deprivation (4) Failure to support without justification (5) Severe mental illness prevents capacity to care for child (6) General unfitness

Adoption Jx: 6 Factors

(1) Minor lived in state for at least 6 consecutive months immediately before commencement of adoption proceeding (2) Minor under 6 months lived in state since birth and substantial evidence (3) Prospective adoptive parent lived in state for at least 6 consecutive months immediately before commencement of adoption proceeding and substantial evidence (4) Agency that placed minor up for adoption located in state and best interests of minor (significant connection with state and substantial evidence) (5) Physical presence of minor and adoptive parents in the state and abandonment/neglect/emergency (6) No other state has jx or another state declined jx

Child Custody: NOT Best Interest Factors

(1) One parent's misconduct toward other parent does not preclude award of custody (2) Religious beliefs (3) Primary caregiver status (abolished)

Modification of Custody Order: Permissible

(1) Only for substantial and unforeseen change in circumstances since order was entered (2) Modifiable throughout child's minority (3) Disfavored if sought shortly after custody decree entered (4) Modification must serve child's best interest (5) Burden of proof on party seeking modification

Changes in Circumstances Supporting Modification

(1) Parent's physical relocation significantly impairs other parent's opportunity to exercise custody and visitation (2) Custodial parent's post-decree non-marital cohabitation (where allowed, typically limited to where non-custodial parent can prove child adversely affected) (3) Change in child's custody preference

Interstate Enforcement Related to Custody

(1) Parental Kidnapping Prevention Act requires FF&C to another state's custody/visitation order if requirements met (2) UCCJEA requires FF&C to ex parte child custody determination if rendering state is child's home state

Child Visitation Rights: Limitations

(1) Presumption rebuttable if visitation harmful to child (2) Limitations may be imposed for misconduct NO limitations may be imposed for nonpayment (right is independent of child support obligations)

Surrogacy Arrangement: 7 Common Limitations

(1) Some states give no effect to gestational agreements (2) Child must be conceived by ART (not intercourse) (3) Agreement cannot limit right of gestational mother to make decisions safeguarding her or the fetus' health (4) Some states require home study of intended parents (5) Adequate provision made for all reasonable health care expenses, including after agreement terminated (6) Some states eliminate/limit even reasonable consideration paid to gestational mother (7) Written notice to all parties of termination required (includes to husband of gestational mother, if any)

Filiation Proceedings: Admissible Evidence

(1) Statements made regarding paternity (2) Resemblance of child to defendant (3) Medical testimony/records (4) Blood/genetic testing

Custodial Dispute Between Parents and 3rd Parties

(1) Strong presumption in favor of fit, legal parents; rebuttable if awarding custody to parent detrimental to child (2) In jx that recognize third party visitation rights, courts give special weight to fit, legal parents' visitation decisions (3) No statute can constitutionally authorize any person to petition for visitation at any time, even when limited to court finding visitation in child's best interest (4) Some states give visitation rights equivalent to legal parents' to "de facto" parents (nonparent who lived with child as parent)

Limitations on Parental Autonomy

(1) Termination of parental rights (2) Children in need of supervision (CINS)

Filiation Proceedings: Mandatory Joinder

(1) The child's mother (2) Man whose paternity is to be adjudicated NOT the child; court may appoint guardian ad litem if child's interests are not adequately represented

Child Custody: 6 Best Interest Factors

(1) Wishes of parents (2) Wishes of child (over 12 = YES; under 8 = NO) (3) Residential and relational continuity (4) Child's relationship with each parent, sibling, others (5) Child's adjustment to home, school, community (6) Physical and mental health of all involved

Legitimacy Discrimination = Always Unconstitutional

Law provides benefit to all marital children but not to non-marital children

Legitimacy Discrimination = Strict Scrutiny

Law provides benefit to some non-marital children but not to others

Presumption of Legitimacy

Law requires reasonable presumption be made in favor of legitimacy and places burden of proof on person alleging illegitimacy

Legitimation (Definition)

Act of giving the character of legitimate children to those who were not born legitimate

Dissolution of Adoption: Traditional

Adoption order could not be dissolved for any reason

Adoption: Agency Placement

Agency authorized to place minor up for adoption shall furnish to an individual who inquires about services a written statement of its services, including adoptive parent selection procedures, and a fee schedule

Irrebuttable Presumption From Birth in Wedlock

Allowed by some states if rebuttal would be contrary to child's best interests

Dissolution of Adoption: Modern

Allowed in special circumstances by statute (e.g., discovery of undisclosed mental or physical illness); courts look at length of the relationship, child's needs and parent's motives

Filiation Proceedings (Definition)

Almost all states have statute providing for judicial proceeding to establish paternity of an illegitimate child and compel father to contribute support

Filiation Proceeding: Parties

Any party with interest may bring filiation action, including: (1) The child (2) The child's mother (3) Man whose paternity is to be adjudicated (4) The state (5) Authorized representative of individual entitled to but unable to bring action (i.e., dead, incapacitated, minor)

Rebuttable Presumption From Birth in Wedlock

Child born to married couple presumed marital child in absence of clear demonstration husband cannot be the father (proof of infertility or lack of access to wife)

Emancipation: Court Petition Method

Child demonstrates to court financial independence and that parent/guardian has no objection to living arrangements Deemed to occur when child: (1) leaves home and supports self (2) lives at home and supports self (3) refuses to see, visit or live with parent (4) receives public assistance in own name

Tortious Interference with Parent-Child Relationship

Child may not recover Some states allow child to recover by statute for loss of parent's support resulting from another's wrongful act

Child Custody: Decision Standard

Child's best interest

Child Custody: Presumption

Child's parents presumptively entitled to custody

Legitimacy Discrimination = Intermediate Scrutiny

Classification differentiating legitimate from illegitimate children unconstitutional if not substantially related to an important government purpose

Revocation of Consent to ART

Consent may be revoked in a record at any time before placement of eggs, sperm or embryos

Effect of CINS Finding

Court has jx over child and may order counseling, supervision by social worker or placement with state agency

UCCJEA: Counsel for Child

Courts can appoint counsel or guardian ad litem to protect child's interests in a custody dispute

Veto Statute Discrimination

EPC requires state give an unmarried father opportunity to veto child's adoption where state law grants a similarly situated unmarried mother a veto

Adoption Jx (Common Law)

Domicile of adoptive parents

Emancipation: Military Service Method

Emancipation automatic on induction, continues so long as military service continues

Emancipation (Definition)

Emancipation by parent before child reaches age of majority; concerned more with extinguishment of parental rights and duties than with removal of disabilities of infancy (i.e., protecting child from own folly and improvidence)

Legitimation: 2 Requirements

Every child is legitimate child of mother, but will only be legitimate child of father if: (1) Voluntary acknowledgment of paternity (see Card #5); or, (2) Judicial decree establishing paternity

Emancipation: Marriage Method

Extinguishment of parental support obligation = YES Removal of disabilities of infancy = NO (unless statute provides o/w)

Partial Emancipation

Frees child for only part of the period of minority or from only part of the parent's rights or for some specific purpose (such as rights to own wages)

SDP Right: Commitment Requirement

Full commitment to responsibilities of parenthood; factors considered: daily supervision, education, protection, care, public acknowledgment of paternity and other factors exhibiting a commitment to the child

Can a child consent to medical treatment?

Generally no, and doctor who performs procedure without parental consent can be liable in tort

Surrogacy Arrangement: Effect of Invalidation

Gestational mother = legal mother Husband, if any = legal father Gestational mother choosing to keep child leaves intended parents with no recourse; however, if gestational mother agrees to give child to intended parents, they must adopt child to be declared legal parents

Parental Status of Ex-Spouse Consenting to ART

If marriage dissolved prior to placement of eggs, sperm or embryos, ex-spouse or dead spouse is parent if consented in a record that, if ART occurred after divorce/death, s/he would be parent to resulting child (o/w not a parent)

Parental Liability for Child's Tort (Modern Law)

In most states, parents liable for willful and intentional torts of their minor children by statute (usually limited to certain dollar amount, e.g., $5000)

Child Custody (Definition)

Legal Custody = right to make major decisions that affect child's life Physical Custody = actual possession and control of child

Parent-Child Tort Immunity

Largely abolished; still operates to shield parents from suits for acts of ordinary negligence which result in personal injury to unemancipated minor

Joint Custody (Definition)

Joint legal custody, joint physical custody, or both

Presumption Where Child Born Post-Marriage but Conceived During Separation

Legitimacy until contrary is clearly proved; not conclusive and can be rebutted based on relations of the parties and all circumstances

Presumption Where Child Born Post-Marriage but Conceived in Wedlock

Legitmacy; former husband presumed father if child born w/i 300 days of termination by death, annulment, declaration of nullity or decree of separation

Presumption Where Child Conceived During One Marriage and Born During Another Marriage

Legitmacy; some courts apply presumption of child born post-marriage but conceived in wedlock (Husband1 = dad in absence of sexual relations with Husband2 during period of conception), other courts use presumption of child born in wedlock (Husband2 = dad)

Presumption Where Child Born Pre-Marriage

Man is presumptive natural father if: (1) Marries mother (2) Voluntarily asserts paternity by either: (a) Writing filed with state agency recording births (b) Agreeing to and naming as father on birth certificate (c) Promising in writing to support child as own

Filiation Proceedings: PJx Over Defendant

Minimum contacts required; alleged parent "engaged in sexual intercourse in the state and the child may have been conceived by that act of intercourse"

Tort Recovery for Wrongful Death of Illegitimate Child

Mother = YES Father = only if previously legally recognized child

Citizenship of Child Born Abroad to Unwed American Parent

Mother = automatic U.S. citizenship Father = U.S. citizen only if paternity established

Parental Status of Husband Consenting to ART

Mother's husband is legal father if: (1) He consented in writing with intent to be the parent of child conceived by ART; and, (2) A medical doctor performed the insemination

Can a child make a valid will?

No

Parental Liability for Child's Tort (Common Law)

No vicarious liability; parents can be held liable for own negligence that contributes to child's tortious conduct

SoL Where Child Has No Father

None - a proceeding to adjudicate parentage where child has no presumed, acknowledged or adjudicated father may commence at any time, even after child becomes adult (but only then if child initiates proceeding)

Duty of Child to Support Parents

None at common law; some states currently have statute imposing duty on adult children to support indigent parents to the extent of their ability

Children in Need of Supervision: 5 Grounds

Offense would not be a crime if committed by adult: (1) Habitual truancy (2) Cannot be controlled by parents (3) Danger to self or others (4) Curfew violations (5) Ungovernable by rules

UCCJEA: Application to Adoption

Only applies to termination of parental rights aspect of adoption

Tortious Interference with Custody

Parent may recover tort damages for abduction and enticement on showing this deprived parent of child services; requires: (1) Legal right to establish/maintain parental or custodial relationship with minor child (2) Defendant took some action or affirmative effort to abduct child or compel/induce child to leave plaintiff's custody (3) Defendant action was willful (4) Defendant had notice or knowledge child had parent whose rights were invaded and did not consent

Adoption: Private Placement

Parent or guardian personally selects prospective adoptive parent for the direct placement of the child; requires favorable preplacement evaluation

Complete Emancipation

Parent renounces all legal duties and voluntarily surrenders all legal rights of position to child

Interstate Modification of Custody Order

Parental Kidnapping Prevention Act prevents modification if: (1) Either the child or any party resides in issuing state; and, (2) Issuing state's courts do not decline jx For UCCJEA, see Card #90

Duty to Support Child

Parents legally obligated to support children regardless of whether they are marital or illegitimate; "unwanted child" is not a defense to support obligations

Adoption: Parental Consent

Required unless child abandoned; father's consent may not be required if unwed unless father has acquired SDP right

Effect of Revoking Consent to ART

Revoking individual is not parent to resulting child

Removal of Child from Jx by Custodial Parent

Standards vary among states in judging parental relocation requests that inhibit visitation with non-custodial parent, but move in good faith serving child's best interest usually granted

Abandonment: Objective Test

Some states, courts inquire as to whether parent has acted in ways that indicate a commitment to maintaining parent-child relationship; includes factors such as whether parent paid support or visited child

Parental Status of ART Donor

Sperm or egg donor is NOT a parent of child conceived by assisted reproductive technology UNLESS sperm donor intended to be the parent of the child

Adoption Jx (Modern Law)

State with sufficiently strong connection with child and where substantial evidence concerning child's present/future care is present

Effect of Adoption

Terminates relationship between child and biological parents and creates new relationship between child and adoptive parents; records of adoption are confidential and sealed

Abandonment: Subjective Test

Traditional law of adoption, courts require proof parent subjectively intended to abandon parent-child relationship; proof of behavior that objectively suggests a fixed loss of interest in child is insufficient

Unmarried Father's Substantive Due Process Right

Unwed biological father who has a significant relationship with child has a SDP right in that relationship

Surrogacy Arrangement: Parentage

Upon birth of child to gestational mother, intended parents shall file notice with court w/i 300 days that child born; thereupon, court shall issue order: (1) Confirming intended parents = parents (2) Ordering child be surrendered to intended parents (3) Directing agency to issue birth certificate naming intended parents as parents of the child

Non-Custodial Parent Objects to Removal

Usually still permitted where: (1) Serves child's best interest (2) Legitimate purpose & reasonable in light of that purpose (3) No harm to child (4) Relocating parent's motive is not vindictive Some states place burden of proof on relocating parent, other states place burden on objecting parent

State Intervention Due to Neglect: Special Rules

When parents object to medical care: (1) Concept of "need" is often interpreted narrowly ("need" = child faces imminent death or serious injury w/o treatment) (2) On religious grounds, state may not need to find neglect to authorize medical treatment

Child Visitation Rights

Where sole physical custody granted to one parent, presumption favoring other parent be given reasonable visitation rights

SoL Where Child Has Presumed Father

Within 2 years of birth, except when proceeding seeks to disprove father-child relationship and court finds: (1) Presumed father and mother neither cohabited nor had sex during probable time of conception (2) Presumed father never openly held out child as own

Non-Marital Child (Definition)

aka "illegitimate child" or "child born out of wedlock"; born to unmarried mother or whose father is not mother's husband