Kaplan University

Child Custody, Visitation, Rights of Third Parties, and Child

Support

PA 250 Unit 3

Assignment Due This Week

Draft a memo to your supervising attorney on prenuptial agreements and their utilities. Below are the specific instructions and questions that are applicable to this assignment:

This Week’s Assignment

Perform simple research on the issue of prenuptial agreements or similar concepts. When using Lexis, remember to narrow your database and jurisdictional searches (i.e., database: Michigan Family Law Practice, jurisdiction: Michigan).

Locate your state's statute regarding Pre-nuptial agreements. You can also use the McGraw-Hill State-Specific Paralegal Portal in the Legal Research & Writing section of Hearsay Hall as a source for this information.

This Week’s Assignment

Include the citation of your state's statute. In performing your research, look for the

following concepts: Uniform Premarital Agreement Act (see Appendix A within your textbook, as it is provided there for you), legal requirements for a valid prenuptial agreement, and factors that invalidate a prenuptial agreement.

This Week’s Assignment

Answer the following questions: – What is the Uniform Premarital Agreement Act and has your

jurisdiction adopted it? – What are the legal requirements of a valid prenuptial

agreement in your jurisdiction? – What factors can invalidate a prenuptial agreement? – Should prenuptial agreements be compulsory? – What are the advantages and disadvantages of prenuptial

agreements?

Grading Rubric

Please go to the classroom and download the Unit 3 Grading Rubric. Open the document and review it with me at this time.

Historical Perspective

Fathers had absolute rights to “possession” of their children (patria potestas)

Children were chattels Grew up working with the father in efforts to

support the family, so father usually retained legal custody

Societal Changes

Industrial revolution took the fathers away to work

Mothers became primary care-givers, managing the household & children

Gave rise to the “tender years” presumption Focus changed from parental interest to

“best interest of the child” More flexible custody arrangements

developed

“Best Interest of the Child”

Sharing of family roles became more common:– Monetary support– Housekeeping– Parental responsibilities

As roles became less defined, custody decisions became more about the child’s needs than the parents’

Determining the Child’s Best Interest

May be based on primary care-giver or psychological parent instead of gender

A new field of experts can testify about their evaluations of the parent/child relationships to help determine the child’s best interest

Some Factors

Parents’ & child’s wishes Relationships, including siblings & other

significant family members or care-givers School Health Future visitation issues (cooperation) Evidence of coercion or duress

Additional Factors

The “psychological parent”– Most meaningful time– Bonded most fully– Been the most nurturing, identified by these tasks:

“…preparing and planning of meals; bathing, grooming and dressing; purchasing, cleaning and caring for clothes; medical care, including nursing and general trips to physicians; arranging for social interaction among peers; arranging alternative care, i.e., babysitting or daycare; putting child to bed at night, attending to child in the middle of the night and waking the child in the morning; disciplining; and educating the child in a religious or cultural manner:

– Pascale v. Pascale, 660 A.2d 485 (N.J. 1995)

Joint Custody

Custodial preferences have shifted from father to mother to either parent, and has now led to accepting both parents as jointly responsible.

Parents are equally responsible for meeting– Financial needs– Emotional needs– Educational needs– Health-related needs

Joint Custody, cont.

Can be “shared” parenting or custody in some jurisdictions

Requires flexibility & the ability to communicate and cooperate, qualities sometimes lacking in divorced couples

Domestic violence must be considered, as in all custody arrangements

Traditional Custody

In intact families, parents jointly share physical (residential, domiciliary) and legal custody of the children

Make major decisions together– Health issues– Educational issues– Religious upbringing

Divorced Parents

Parties can agree between themselves, subject to judicial scrutiny, or

The decision will be made by the court The court may require custody evaluations:

– Psychologist/psychiatrist interviews– Family service officers (or, in some states,

guardians ad litem) will interview all concerned parties (parents, children, other family, health care providers, school personnel, etc.) and advise the court

Guardian Ad Litem (GAL)

In many states they act as legal representatives of the state in an effort to determine what is the best interest of the child.

They will not necessarily represent the child’s wishes A separate attorney (child’s counsel) may be

appointed to represent the child’s interests in court, which may run contrary to the GAL’s recommendations and/or one or both of the parents’ wishes.

Joint Custody Variations

Joint custody can mean that parents share in the decision-making – Child lives equally with both parents, alternating

days or weeks– Both parents are responsible for maintaining a

school and extra-curricular activity schedule, so they usually live near one another

– Support is equalized according to time & income

Joint Custody Variations, cont.

The “shared parenting” model can mean parents share responsibility, but not necessarily equal time– Sole custody model (primary residence with one

parent, visitation with the other)– Joint custody model (equal time with each parent)

Split Custody Variations

Can mean each parent has sole custody for large part of the year (3-6 mos.)

Can be a school year/vacation split for parents who live far apart, or have employment issues

Can also refer to each parent having custody of one or more children

– Courts are not fond of splitting sibilings– However, different children may have different needs,

based on age, gender, bonding activities. – Must be in the best interest of the child

Sole Custody

One parent unilaterally makes all the major decision Non-custodial parent usually has visitation rights Once the norm, now much less common, based

upon:– Parents’ decision– Court’s decision– Child abuse– Substance abuse– Parents lack ability to cooperate well enough to share

decision-making

Visitation

The non-custodial, non-abusive parent has reasonable right of visitation or is entitled to visitation per a fixed schedule

In some states, the preference is for reasonable rights, but lack of cooperation may cause the court to convert the flexible schedule to a fixed one

The fixed schedule is in a court order, and either party may seek enforcement

Visitation, cont.

Issues that need to be addressed:– When & where– Transportation responsibilities– Holidays, birthdays, vacations– Phone contact– Clothes– Homework– Outside activities, etc.

Visitation, cont.

Unsupervised– The norm– The non-custodial parent can choose activities & locations

(within specified parameters) for visit

Supervised – acceptable thrid-party is present– Issues involving appropriate parental behavior have arisen

Substance abuse Mental/physical health issues Domestic violence history Unsafe environment

Virtual Visitation

Distance may dictate the need for virtual visitation, but generally does NOT replace live visitation

Technologically possible through a variety of electronic communications devices:

– Phones– Video conferencing– Web cams– Instant Messaging or chat rooms– E-mail or web sites (private blogs)

Parenting Plans

Prepared cooperatively whenever possible, subject to court review

Local courts may have guidelines or models Addresses:

– Decision-making (sole, joint, shared)– Children’s schedules/Visitation schedules– Modification/periodic review/dispute resolution

ADR Counseling Litigation, as last resort

Mandatory Parenting Education Programs (Divorce Seminars)

One or more sessions prior to the hearing Educate parents on the effects of divorce

upon children, especially Parental Alienation Syndrome (PAS)

Addresses children’s concerns:– Fault– Continuing both relationships– Getting caught in the middle– Money issues

Child’s Preference in Custody

Choice appears “enabling”, but creates serious problems, even in older children

A child might feel that he or she has to choose a favorite parent

Their preferences should be considered, but the child should be assured it is just ONE factor– the decision is the court’s, not the child’s

Parental Misconduct

These things directly, adversely affect the children, not just the spouse (like adultery), such as, in certain circumstances:

– Excessive alcohol use– Cigarette smoke– Religious beliefs– Cohabitation– Health of the parent

Sexual preference alone may or may not affect custody, depending on the jurisdiction

– “Best interest” standard applies

Parental Alienation Syndrome

One parent attempts to poison the child’s relationship with the other parent

May be recognized in court Requires:

– Diagnosis– Expert testimony

Child Abuse Prevention and Treatment Act (CAPTA)

Certain categories of people who deal with children are required to report suspected abuse:– Medical professionals– School personnel– Police officers– Mental health rofessionals– Social workers– Clergy

Sexual Allegations in Divorce (SAID)

The ultimate trump card in custody battles Two conflicting principles:

– People want to secure custody of their children– Child abuse happens

False accusations can be punished but:– The harm may be irreparable– They cast doubt on legitimate claims– The accuser may honestly believe the accusation

SAID, cont.

Investigation must be careful & thorough Is it arising for the first time in the context of

the divorce or have there been prior claims? Legal professionals & experts must be

careful not to taint the child’s ability to testify:– Suggested responses– Leading questions– Repeatedly asking the same question

SAID, cont.

However,

“…[W]hile the forensic expert may offer guidance and inform the ultimate determination, [where to award custody as to serve the child’s best interest] is a judicial function, not one for the expert.”

– In the Matter of John A. & Bridget M., 16 A.D.3 324,

791 N.Y.S.2d 421 (2005)

Reproductive Technology

Includes methods of assisted conception – In vitro fertiliztion– Artificial insemination– Surrogacy

Uniform Status of Children of Assisted Conception Act (USCACA), replaced by a re-tooling of the Uniform Parentage Act of 2002

In Vitro Fertiliztion

Pre-embryo developed outside the body and implanted

Can be frozen for later use Questions arise:

– Upon divorce – property or children– Can they be implanted against one party’s will?– Can they be destroyed against one party’s will?– How does the law deal with abandoned embryos?

Artificial Insemination

Fertilization is achieved with donated sperm Anonymous donors relinquish (waive)

parental rights & are relieved of child support Can be used to bypass physical or mental

problems with a NON-anonymous donor– May not be able to relinquish rights– May not be able to avoid support

Surrogacy

Conflict between contract & family law– Some states won’t enforce the contract– Some state may prohibit payment beyond actual expenses

(“baby-buying”)– Some uphold the terms of the contract– May look to the intent of the parties– May look to the provider of the genetic material

If agreement fails, the genetic make-up of the child may affect the identification of the “real parents” (see previous chart)

Grandparents’ Rights and the Rights of Third Parties

Standing may be by statute, permitting third party interventions at the time of the break-up of the family unit

Some states utilize an in loco parentis analysis: who stands in the place of a parent in this child’s life (frequently applied to step-parents)?

Grandparents’ Visitation Rights

Presumption that parents have a constitutional right to raise their children as they see fit is subject to state intervention (in parens patriae)

Visitation & custody claims of non-parents can arise:– Divorce– Death– Support/custody actions outside of marriage– State intervention in a breakdown of parent/child relations

(abused, neglected, dependent, abandoned children)

Grandparents’ Visitation, cont.

Sometimes parents consent to a third-party intervention:– Illness– Incarceration– Military service

However, frequently pits “the best interest of the child” against parents’ rights

The Troxel Test

“[T]he [liberty]…issue of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

– Troxel v. Granville, 530 U.S. 57 (2000)

The Troxel Test, cont.

A break in the parent/child relationship (doesn’t apply to intact families)

In the best interest of the child, by clear & convincing evidence

In some states, denying grandparents visitation would cause the child to suffer harm– A showing of a compelling state interest may be

needed to support this level of intrusion [disputed]

Child Support: On-going Parental Obligation

Both parents expected to provide economic support to their children

Many states had guidelines, but left the determination up to the courts on a case-by-case basis

Discretionary guidelines proved to be too low, or evenly applied by courts

Family Support Act of 1988

Statutes were enacted to standardize awards These became rebuttable presumptions,

requiring special circumstances for a judicial over-ride

Deviation criteria identify appropriate circumstances

Parent’s Obligation

Each parent has a set obligation Worksheets help determine the share “Shared-” or “combined-income” models

– Set up by formula applied to the total available income– Statutory charts are established in some states– Fathers & mothers pay support in a ratio to the total amount

of support determined by formula or chart:

F’s income/total income = F’s support/total supportM’s income/total income = M’s support/total support

New Family

Remarriage can factor into the amount of income available for support:

“to the extent that such income [the new spouse’s] is used directly to reduce the costs of a party’s actual expenses.”

– Rosenbloom v. Bauchet, 654 So.2d 877 (La. App. 1995)

Establishing Support

By an agreement– Will still be reviewed in light of state standards– Any deviation must be justified on the record

By court order, based on statutory guidelines Continues through the age of majority,

emancipation, or through the completion of High School in the case of some 18 year olds

May continue past these points if the adult off-spring requires a continuing guardianship

Calculating Support

Sources of income determined by statute Support determined by formula or according

to the charts– Electronic worksheets available in many

jurisdictions – Inputting income results in an automatic

calculation of support

Deviations

Child has extraordinary needs due to mental or physical problems

Existing support court orders for one party Earning capacity

– Imputed income possible– Under- or unemployed voluntarily– Local economic conditions considered– Variable income (commissions, contingent fees) &

under-the-table income can be scrutinized if life style deviates dramatically from reported income

Deviation, cont.

Extraordinary expenses incurred for visitation Shared or joint custody, resulting in

significant amounts of time in each parents’ custody

Income exceeds the statutory guidelines

Modification

Substantial change in circumstances warrants modification– Needs of the child– Loss or increase in income– May be set by statutes, e.g., 10% variance or

periodic review (3 years)– Consent modifications reducing support must be

reflected in court orders to avoid later claims of arrearages

Enforcement

Support is ordered by judgment:– Private enforcement (hiring investigators,

attorney)– Administrative assistance – Child Support

Enforcement Agency (CSEA) Available to non-publicly-supported parents for a fee Designed to prevent the need for public assistance Overburdened

Public Assistance

Conditions may include:– Identifying putative fathers– Locating non-custodial parents– Assigning collection rights to the state

Once located, payments of support and arrearages may be divided between the recipient parent and the state (pay back for prior support)

Administrative Enforcement

Bureaus or Agencies for Support Enforcement (IV-D agencies)

Pursuant to Child Support Enforcement & Establishment of Paternity Act

Parent locator services– I.R.S.– Social Security– Motor vehicle registration– Support Enforcement Tracking System (SETS) links state

records

Administrative Enforcement

Other services– Establishing paternity through DNA testing– Facilitating entry of orders in the payor parent’s

jurisdiction– Enforcement of existing orders

Means of Enforcement

Wage garnishment Negative credit report Tax refund interception Denial of U.S. passport Obtaining a judgment & attaching property

– Bank accounts, real property, cars, etc. Requiring a cash bond Denial or revocation of a professional or

occupational license

Civil Contempt

Can file a petition for civil contempt Must establish the court ordered support and allege

the failure to comply– A CSEA’s records may make this easier

Non-appearance may result in a capias being issued– Payor in arrearage can be sent directly to jail– Payment can “buy” release & probation

Often triggers a request (or motion) to modify the support level based on changed circumstances (can be heard concurrently in many jurisdictions)

Criminal Prosecution

Violation of state criminal non-support statutes

Hearing can result in incarceration, or Probation, as long as the support is brought

current & there is no further arrearage

Interstate Enforcement

Full faith & credit makes “forum shopping” for lower rates less possible

Final orders entered in an initial action will be honored by subsequent states

A variety of Uniform laws have been passed to try to prevent children from being deprived of necessary support

Uniform Reciprocal Enforcement of Support (URESA)

Criminal enforcement– Extradition of non-paying parent to recipient’s state (the

state where judgment was originally entered)– Criminal non-support statutes are applied

Civil enforcement– Action brought in custodial parent’s state– Determination of whether other parent has a duty to pay– If so, a judgment is entered

Forwarded to non-custodial parent’s state A hearing can be conducted Enforcement against the non-custodial parent in his/her state

Revision of URESA

Custodial parent’s state now forwards all evidence needed to support the reciprocal judgment

Recipient parent can bring an action directly in payor parent’s state

Uniform Interstate Family Support Act (UIFSA)

Continuing exclusive jurisdiction in the original state

Only the original state may modify it’s own order, unless both parties:– Agree– Have moved to the same, new state, which will

now assume jurisdiction

UIFSA

Custodial parent files a petition in his/her home state

That state court petitions the non-custodial parent’s home state

There will be a hearing to enforce the original order

System is currently overwhelmed by volume of claims, creating serious support arrearages

Visitation

Generally, the courts feel that children have two distinct rights:

– The right to have both parents in their lives– The right to adequate financial support

If the custodial parent deprives the child of visitation by the other parent (blocks visitation), it is still in the child’s best interest to provide the child with adequate support.

The remedy is judicial, not “self-help”

Visitation, cont.

Conversely, if the non-custodial parent deprives the child of support, it is still in the child’s best interest to permit visitation.

Again, the remedy should be judicial, not self-help

Remarriage of parents

Custodial parent remarriage:– Although the step-parent has no obligation to support a

child he or she hasn’t adopted, there may be enough change in circumstances to warrant modification:

Household expenses are shared Contributions to family finances are considered

If a stepparent (or other non-related adult) voluntarily assumes the responsibility of support, the doctrine of equitable estoppel may convert that voluntary assumption of support into a legal obligation

Modification of Support

Frequently accompanies a response to a civil contempt charge

Generally income-, not expense-driven Although income of a subsequent spouse is

generally not considered in a parent’s support obligation, courts tend to interpret “…gross income broadly so as to include items that increase the amount of income available for support purposes….”

– Unklebach v. McNary, 244 Conn. 350, 710 A.2d 717 (1998)

Equitable or Promissory Estoppel

Based upon reliance and the best interest of the child

“The elements of equitable or promissory estoppel are: (1) a promise; (2) that the promisor should reasonable have expected to induce action of a definite and substantial character on the part of the promisee; (3) which in fact produced reliance or forbearance of that nature; and (4) in circumstances such that the promise must be enforced it injustice is to be avoided….”

– Nygard v. Nygard, 156 Mich. App. 94, 401 N.W.2d 323 (1986)

College Provisions

May be:– Tied into the tuition of a state institution– May specify a particular number of years, degree– Should identify covered expenses– Will it be pro rated between the parents, based

upon their ability to pay?– Is the child still expected to seek scholarships,

grants, loans?

OJ Simpson Case

What do you think of the OJ Simpson case with regard to the custody of his children?

Do you think the grandparents should have had greater rights or should have gotten custody of the kids?

Quiz Prep

Quiz Prep

What are the different types of joint custody? What do courts consider in determining the

best interests of the child? What don’t they consider?

What is the difference between supervised and unsupervised visitation?

What are the two types of visitation schedules?

Quiz Prep

Does every state have some form of a “bests interests of the child” standard?

Do state statutory schemes articulate the factors used by family court judges to determine the best interests of the child?

What is standing and is it needed in a family law action?

How is child support calculated?