Child custody

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12 Class Name Instructor Name Date, Semester Family Law for the Paralegal 2 nd Edition Wilson Chapter 8: Child Custody

Transcript of Child custody

Page 1: Child custody

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Class NameInstructor NameDate, Semester

Family Law for the Paralegal2nd Edition

Wilson

Chapter 8:Child Custody

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Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Cont.

Identify various types of child custody.

Identify at least three jurisdictional issues that sometimes arise in child custody cases.

Describe the primary standards that guide the courts when making child custody decisions, including the “best interests of the child”.

8.1

8.2

8.3

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Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Cont.

List some of the major factors courts consider when making decisions about custody and visitation.

Describe the nature and purpose of parenting plans.

Explain why parent education programs are important.

8.4

8.5

8.6

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Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Cont.

Explain when and how custody and visitation orders may be modified.

Explain how custody and visitation orders may be enforced.

Describe the rights of third parties in the custody context.

8.7

8.8

8.9

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Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Explain who speaks for the child in custody matters.

Describe the role of the paralegal in a custody case.

8.10

8.11

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Learning ObjectiveAfter this lecture, you should be able to:

8.1 Identify various types of child custody.

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• In traditional terms:–  Physical custody: custody relating to where and with

whom the child primarily resides (may be sole or joint)– Legal custody: custody relating to decision-making

authority with respect to major issues affecting a child (may be sole or joint)

– Sole award: an award made to one party only (may apply to physical or legal custody)

– Joint award: an award made to both parents (may apply to physical or legal custody)

• Many states have adopted new terminology that emphasizes parental cooperation and a child-centered focus, for example, by calling physical custody “residential responsibility” and legal custody “decision making responsibility.”

What are the various types of custody?8.1

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• Custody awards are tailored to the circumstances of each case. Absent evidence of unfitness, parents are generally considered to have equal rights to custody.

•  The two most common custodial arrangements are:

– Joint legal custody, sole physical custody in one parent with reasonable rights of visitation in the other

– Joint legal and physical custody

• Although not favored, courts sometimes will award split custody when appropriate (each parent has legal and/or physical custody of one or more of the parties’ children).

What are the most common types of custody awards?8.1

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Learning ObjectiveAfter this lecture, you should be able to:

8.2Identify at least three jurisdictional issues that sometimes arise in child custody cases.

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• Problems are minimal in cases in which the parents’ identities are known and they reside in the same state.

• Problems are more likely to arise when:– The parents live in different states– One parent leaves the state where the parties had

lived and takes the children with him or her without the other party’s consent

– The parties file for custody in two different states– During a visit, a parent essentially kidnaps a child

and takes him or her to another country– A parent seeks to modify an existing custody order

in a state different from the state where the original order was entered

What are some of the jurisdictional issues that arise in child custody cases?8.2

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• In resolving problems that arise, the courts refer to several key acts including the following three:

– The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted in all states, is designed to reduce jurisdictional conflicts between states, deter child abductions to other states, avoid relitigation of decisions in nonissuing states, and ensure that custody matters are heard in the state with the closest connection with the child by giving priority to home state jurisdiction.

– The Parental Kidnapping Prevention Act (PKPA), the major federal child custody jurisdiction act, is designed not only to prevent parental kidnapping but also to maintain jurisdiction in one court over custody orders pertaining to a given child in interstate cases.

What are some of the jurisdictional issues that arise in child custody cases? (continued)8.2

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• The Hague Convention on the Civil Aspects of International Child Abduction endorsed by more than fifty nations establishes administrative and judicial procedures to expedite the return of children who have been abducted or wrongfully retained and to facilitate the exercise of visitation rights across international borders.

What are some of the jurisdictional issues that arise in child custody cases? (continued)8.2

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Learning ObjectiveAfter this lecture, you should be able to:

8.3Describe the primary standards that guide the courts when making child custody decisions, including the “best interests of the child”.

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• Early approaches included the following gender-biased approaches:

– Paternal preference: the common law doctrine that fathers had an absolute right to the care and custody of their children

– Maternal preference: the concept that custody should be awarded to a mother over a father provided she is fit

– Tender years doctrine: the doctrine holding that custody of very young children should be awarded to the mother as the natural custodian of young and immature children provided she is fit

What are the 6 major approaches that have been used to guide custody decisions over the

years?8.3

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• Contemporary gender-neutral approaches include the following:

– Best interests of the child: the majority approach today, this standard focuses on the needs of the child over the rights or wishes of the parents; the states identify by statute or case law a series of “best interest factors” for courts to consider when making custody determinations (See Exhibit 8.1 on pages 257 and 258 of the text for an example of a best interests statute.)

What are the 6 major approaches that have been used to guide custody decisions over the

years? (continued)8.3

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• The primary caretaker presumption: the concept that the individual who has performed most of the significant parenting tasks for the child since birth or in the years preceding the divorce should be granted custody

• The American Law Institute’s Approximation Rule: the rule that the custodial responsibilities of the parents at dissolution should be allocated in a manner that approximates the proportion of time each parent spent caring for the child when the family was intact (See Paralegal Application 8.2 on page 260 of the text for an example of typical caretaking activities considered.)

What are the 6 major approaches that have been used to guide custody decisions over the

years? (continued)8.3

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Learning ObjectiveAfter this lecture, you should be able to:

8.4List some of the major factors courts consider when making decisions about custody and visitation.

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• Availability: This is a relevant factor because the courts consider whether or not parents are available to participate in activities with their children such as school and recreational activities, medical appointments, homework, daily routines, etc.

• Stability: Courts strive to maintain as much stability and continuity in parenting arrangements as possible to avoid disruption for the child.

• Gender: The public policy of virtually all states is that fit parents have equal custody rights regardless of gender.

What are some of the factors courts consider when making decisions about custody and

visitation?8.4

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• Race: The Equal Protection Clause of the Constitution prohibits the making of custody decisions based on racial bias. See Case 8.1 Palmore v. Sidoti (1984) on pages 262-263 of the text.

• Religion: The majority of courts have affirmed each parent’s right to freedom of religion and to parent a child by providing religious exposure and instruction as he or she sees fit unless the child is being harmed.

• Parental health or disability: Poor mental or physical health will not necessarily render a parent unfit. The courts will examine the “nexus” between the condition and the parent’s capacity to provide proper child care.

What are some of the factors courts consider when making decisions about custody and

visitation? (continued)8.4

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• Sexual activity: The majority view is that a parent’s sexual behavior or cohabitation should not play a role in a custody decision unless there is a connection between the behavior and the health and welfare of the child. Tolerance is higher for heterosexual relationships.

• Parental lifestyle: Based on statutes and case law, moral character and conduct count under some circumstances. The critical question is does a behavior such as smoking harm the child as in the case of an asthmatic child.

What are some of the factors courts consider when making decisions about custody and

visitation? (continued)8.4

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• History of abuse: Every state provides by statute or case law that a history of domestic abuse will be considered in custody determinations. Some states have a rebuttable presumption against granting custody to a parent who is a documented perpetrator of domestic violence.

• Child preference: Today children’s preferences may be considered to some extent in all states. The weight given to the child’s choice usually will be based on the child’s age, experience, maturity, judgment, and ability to express a preference.

• Parental cooperation: Courts will look at the extent to which each parent has the capacity to rise above his or her own desires and hostility to focus on the child’s need to maintain a warm and positive relationship with both parents.

What are some of the factors courts consider when making decisions about custody and

visitation? (continued)8.4

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Learning ObjectiveAfter this lecture, you should be able to:

8.5 Describe the nature and purpose of parenting plans.

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• A parenting plan is a written agreement in which the parents of a child lay out plans for taking care of their child/ren post separation or post divorce. It may be in the form of a document called a parenting plan or in the form of custody and child support exhibits in a separation/marital agreement.

• When joint custody is not desirable or feasible, the parenting plan will typically address visitation arrangements with the noncustodial parent, unless it would pose a threat to the child’s health and welfare.

What is the nature and purpose of a parenting plan?8.5

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• There are no fixed formulas for visitation provisions.• They are shaped primarily by the degree to which the

parents are able to communicate about the children’s needs and schedules, appropriate parenting behaviors, and goals for the children’s welfare. They may reflect input from the children based on their ages and maturity levels.

• Visitation schedules range from highly detailed provisions to flexible open-ended arrangements. Most fall in-between.

• Agreements/plans may include a virtual visitation component (communication with children through the use of technology).

• Most visitation is unsupervised but the courts may order supervised visitation in appropriate circumstances (e.g history of domestic abuse).

• See an example of a detailed provision on pages 427-433 in Exhibits B and C of Exhibit 12.2 Sample Separation Agreement.

What is the nature of a visitation component in a parenting plan?8.5

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• Parenting plans are designed to:– Promote cooperative planning.– Minimize disputes and continued hostility over

parenting issues.– Provide for the children’s care.– Maintain the child’s emotional stability.– Provide for the child’s changing needs as they grow

and mature minimizing the need for modifications.– Set forth the authority and responsibilities of each

parent with respect to the child.– Minimize the child’s exposure to harmful parental

conflict.– Otherwise protect the child’s best interests.

What are the goals of parenting plans?8.5

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Learning ObjectiveAfter this lecture, you should be able to:

8.6Explain why parent education programs are important.

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• Many states require divorcing/separating parents to complete a parent education program designed to sensitize them to the needs and feelings of their children who are impacted by their parents’ divorce.

• The primary purposes of parent education programs are to:

– Encourage parents to work cooperatively for the benefit of their children.

– Help children through the difficult period of divorce and separation.

– Reduce postdivorce litigation and court appearances.– Parents usually attend different sessions and waivers of

participation may be obtained in limited circumstances such as when there is a history of abuse.

What are parent education programs and what are their primary purposes?8.6

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• The emotional effects of divorce on parents and children

• What parents can do to help their children adjust

• Communication and co-parenting skills

• Developmental stages and needs of children

• Factors that contribute to a child’s healthy adjustment

• Techniques of problem solving and conflict resolution

• Warning signs that children are having problems

• Available community resources

• The function and value of parenting plans

What topics does the curriculum of a parent education program commonly address?8.6

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Learning ObjectiveAfter this lecture, you should be able to:

8.7Explain when and how custody and visitation orders may be modified.

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• The usual process for modifying custody involves filing a Motion (Petition/Complaint) for modification of custody typically accompanied by a supporting affidavit in the court that has continuing jurisdiction followed by notice to the other party and a hearing in which each party has an opportunity to testify, call witnesses, and offer other evidence in support of their position.

• Typically a party seeking to modify a custody order must show that:

– There has been a substantial and material change in circumstances that affects the child’s welfare

– The change has occurred since entry of the decree and was not foreseeable

– The change warrants a modification of custody– The change will be in the child’s best interests

When and how can custody and visitation orders be modified?8.7

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• Motions for modification are likely to be granted if:– the parties agree to modification.– it is clear that the initial allocation of parental rights and

responsibilities is not working.– there is clear and convincing evidence that the child’s

present environment is harming his or her physical, mental, or emotional health.

– there is repeated, intentional, and unwarranted interference by one parent with the parenting rights and responsibilities of the other parent.

– there is a change in one of the parent’s circumstances that significantly affects his or her fitness or availability as a parent.

• Relocation cases present a special challenge. The trend is to permit them if satisfactory alternative parenting time can be arranged for the noncustodial parent, there are no bad faith motives for the move, and the relocation will be in the child’s best interest.

When and how can custody and visitation orders be modified? (continued)8.7

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Learning ObjectiveAfter this lecture, you should be able to:

8.8Explain how custody and visitation orders may be enforced.

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• When a parent fails to comply with court-ordered custody and visitation provisions, the wronged parent will usually file a complaint for contempt and potentially one for modification of both custody and child support as well.

• The court may find the defendant parent in contempt and has the power to order them to pay a fine or go to jail or both. The court more likely will modify custody, impose conditions on visitation, award attorneys’ fees to the other party, and in especially egregious cases, deny visitation.

How are custody orders usually enforced?8.8

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Learning ObjectiveAfter this lecture, you should be able to:

8.9Describe the rights of third parties in the custody context.

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• Nearly 14 million children in the United States live with parties other than their parents and that number continues to grow. Those parties include surrogate parents, de facto parents, psychological parents, and foster parents among others.

• There are two competing views regarding the custodial and visitation rights of third parties:

– The view that biological parents have a presumptive right to custody of their children and to parent them as they see fit.

– The view that it is in the best interests of children to be placed with whichever adult will provide the healthiest and most stable environment for the child.

What are the rights of third parties in the custody context?8.9

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• Standing of third parties to seek custody or visitation is usually established by statute or case law.

• The categories of individuals who most often petition are the following:

– Unmarried fathers– Step-parents– Grandparents– Co-parents

Which “third parties” most often petition for custody and/or visitation and with what

results?8.9

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• Unmarried fathers:– Unmarried fathers do not have the same rights and

obligations as married fathers.– Many unmarried fathers have tried but been

“thwarted” in their efforts to be fathers to their children and they have become in effect third parties while other fathers have knowingly failed to acknowledge fatherhood in a timely manner.

• The states vary in their approaches to unmarried fathers ranging from setting a fixed window within which fathers must establish paternity to an approach tailored to the facts of individual cases.

Which “third parties” most often petition for custody and/or visitation and with what

results? (continued)8.9

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• Step-parents:– It is estimated that 1 in 4 children will live with a step-parent

before reaching the age of majority.– The law is unclear and inconsistent with respect to the rights of

step-parents.– The majority view is that a step-parent’s rights flow from

marriage to the child’s parent and do not survive divorce.– A minority of states impose financial obligations on step-parents

in limited circumstances such as when they have voluntarily supported their step-children.

• A limited number of states afford step-parents standing to petition for custody and visitation in some circumstances often struggling to find legal theories to support their efforts to play a role in their stepchildren’s lives.

• See Case 8.3 McAllister v. McAllister (2010) on pages 282-283, a case in which a stepfather was granted visitation rights.

Which “third parties” most often petition for custody and/or visitation and with what

results? (continued)8.9

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• Grandparents:– In 2009, nearly 12% of all children were living in

households with at least one grandparent present.– Under common law, grandparents had no standing to

petition for custody or visitation of their grandchildren.– Now legislatures in every state provide standing for

grandparents to petition for custody and visitation rights in some circumstances.

• However, after the Supreme Court’s decision in Troxel v. Granville (2000) (see Case 8.4 on pages 284-285 of the text), presumptive validity must be given to a fit parent’s objection and the grandparent must establish more than that visitation will be in the child’s best interest. They must essentially show that refusal to grant visitation will cause significant harm to the child’s health, safety, and welfare.

Which “third parties” most often petition for custody and/or visitation and with what

results? (continued)8.9

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• Co-parents:– A co-parent is a person who is engaged in a nonmarital

relationship with the legal parent of a child and who regards himself or herself as a parent rather than as a legal stranger to the child.

– Some co-parents adopt the child to protect their rights and obligations with consent of the legal parent.

– Co-parents rely on a variety of legal theories to maintain a relationship with a child they have helped raise after the relationship with the child’s legal parent has ended.

• Decisions are mixed in cases involving same-sex co-parents. Many states deny standing as parents but afford third party status as a person with a significant relationship to the child (like a grandparent). See Case 8.5 Mullins v. Picklesmeier (2010) on pages 287-288.

Which “third parties” most often petition for custody and/or visitation and with what

results? (continued)8.9

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Learning ObjectiveAfter this lecture, you should be able to:

8.10

Explain who speaks for the child in custody matters.

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• Those who “speak for” children include the following:

• Guardian ad litem (GAL): – A GAL is a neutral evaluator appointed by the court

(often at the request of one or both parents) to assess the interests of the children whose custody is in dispute.

– The guardian may be an attorney, social worker, or a psychologist.

– The primary role of the GAL is to examine the child’s situation as fully as possible and make a recommendation to the court.

• Court Appointed Special Advocates (CASA):– A CASA volunteer is a court-appointed volunteer

advocate who works one-on-one with abused and endangered children.

Who speaks for the child in custody matters?8.10

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Learning ObjectiveAfter this lecture, you should be able to:

8.11

Describe the role of the paralegal in a custody case.

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• The major task performed include:– Researching the law governing custody actions in the

jurisdiction– Scheduling and participating in interviews as assigned– Gathering information and documentation as requested

(See Paralegal Application 8.6 Information Gathering in a Contested Custody Case on page 291)

– Drafting formal discovery materials and conducting informal discovery as directed

– Drafting correspondence, pleadings, motions, affidavits etc. involving custody matters

– Drafting parenting plans/custody exhibits – Assisting in preparation for hearings and trials etc.– Coordinating communication with experts, parenting

coordinators, GALs, CASA volunteers, etc.

What is the role of the paralegal in a custody case?8.11

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Class NameInstructor NameDate, Semester

Cont.

Chapter Summary

8.1

8.2

8.3

Identify various types of child custody.

Identify at least three jurisdictional issues that sometimes arise in child custody cases.

Describe the primary standards that guide the courts when making child custody decisions, including the “best interests of the child”.

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Class NameInstructor NameDate, Semester

Cont.

Chapter Summary

8.4

8.5

8.6

List some of the major factors courts consider when making decisions about custody and visitation.

Describe the nature and purpose of parenting plans.

Explain why parent education programs are important.

Page 47: Child custody

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Class NameInstructor NameDate, Semester

Cont.

Chapter Summary

8.7

8.8

8.9

Explain when and how custody and visitation orders may be modified.

Explain how custody and visitation orders may be enforced.

Describe the rights of third parties in the custody context.

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Class NameInstructor NameDate, Semester

Chapter Summary

8.10

8.11

Explain who speaks for the child in custody matters.

Describe the role of the paralegal in a custody case.