Family Law Outline
Interviewing skills necessary for Family law:
 Active Listening: repeat what you have heard in a nonjudgmental way
 Confidentiality: ensure client that all will be confidential
 Reassure client that you are not there to judge, so they aren’t embarrassed (many
people find this uncomfortable and embarrassing—a failure on their part)
 Must discuss the fees: no contingency fees in family law
 Assure client you will keep them updated on the case, what to expect, how the process
works, and what you need from them.
 Find ways to stop rattling client: try to get back, you aren’t their counselor, suggest
speak with friend, remind them charging and try to get back on task
 Emotional client: take a break, maybe come back another time, offer tissue
Marriage Regulation:
Marriage has its benefits: property rights, social security benefits, right to sue for
wrongful death, and assets upon death.
But there are also requirements that you must meet:
1) license
2) ceremony
3) possibly blood tests
4) possibly waiting period
*these will all vary by state because marriage is a K between 3 people: couple and the state
Void marriage: A marriage is void if it is inherently so violative of state laws it should be given
absolutely no validity. e.g. Bigamy, incest, polygamy, extreme non-age, lack of mental capacity
usually offends some strong public policy notion & in some jurisdictions – no formal
action/declaration is required to est. its invalidity
can be attacked by third parties even after death of one spouse
courts will often entertain an action for annulment anyway in order to create certainty
Voidable marriage: A marriage is voidable if there is a defect in the way the marriage took
place and the defect is correctable. For example, where there is an impediment in the way the
common law marriage took place. Husband marries wife who is already married, when husband
finds out wife was married, she gets a divorce from husband no. 1.
usually reflects lesser public policy concerns. Can be ratified by conduct of parties after
removal of impediment, and unless annulled before ratification takes place or the death
of a party, then it is valid from its inception.
Typically voided on the basis of K defenses (incapacity such as age, fraud, duress)
Marriage (unlike void marriages) will become good if parties stay together beyond the
disability (age)
Have to go to court to get it voided
Examples of marriage restrictions:
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SC has established the right to marry is a fundamental right. State restrictions on the right
to marriage are subject to strict scrutiny: restriction must be “necessary for a compelling
state interest” and “narrowly tailored”
Polygamy: Reynolds v. US
When Utah became a state; court was forcing them to declare polygamy illegal
These relationships are void in all jurisdictions
Something to be said for the sanctity of marriage; biased against women; there are policy
reasons for this
Race: Loving v. VA
- State statute barring different races from marrying is struck down on EP and DP
- Right to marriage is a fundamental right: regulation must be necessary for compelling
state interest and narrowly tailored to that interest. Here it was not shown it was.
Poverty: Zablocki v. Redhail
WI statute that cannot marry if hadn’t paid child support; EP and DP challenge
Strict scrutiny: failed the narrowly tailored part because there are other means state may
use to collect child support
Case est. that reasonable regulations will be allowed if they do not significantly interfere
with decisions to enter into the marital relationship.
Only classifications that DIRECTLY and SUBSTANTIALLY interfere with the right to marry will
be subject to strict scrutiny
Other marital regulations: will allow that don’t get social security disabled benefits if get
married; found this is not a complete bar and doesn’t significantly impair; just need a
reasonable regulation then.
Conanguinity: bars marriage between persons related by blood within certain degrees of
kinship
Affinity: refer to a relationship that exists between 2 people because of the marriage of one
of them to a blood relative of the other. Marriages between persons related through
marriage and step relationship are prohibited under most state affinity statutes.
Adoption: can 2 adopted children marry?
Israel v. Allen: Co. SC struck down a prohibition on this when 2 adopted kids; hadn’t
been raised together or lived in same house; could have come out differently
Lex Loci: generally provides that marriage valid where performed is valid everywhere, as
long as the marriage does not offend the forum state’s public policy.
Xiong v. Xiong: children bringing wrongful death suit, but parents married in Laos
not the States; wasn’t legal in Laos cause never gov. issued. Court found this
okay under a good faith rule that parties believed marriage was valid at the time
and place of celebration.
Transsexual marriage: status of transsexual marriage is often unclear; many questions arise
over what gender they are?; when do you measure gender; is it when you are born?
Same-Sex Marriage:
Remember: Zablocki allows REASONABLE regulations on marriage
Same-sex marriage is not currently recognized by any jurisdiction. Same-sex marriages are
void.
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Usually get people suing under state constitutions because a state CAN interpret more rights
and US SC is fairly conservative right now
Hawaii close to allowing: Congress enacted Defense of Marriage Act (1996) creating a
federal definition of marriage as union between man and woman; several states have
taken on their own.
Awaiting legislation in Massachusetts: Goodridge v. Dep’t of Public Heath the SC of
Mass. Struck down the prohibition on a civil marriage between same-sex couples under
the Mass. Constitution.
Mass. Senate submitted bill for Civil Unions and got struck down because time and
time again separate is NOT equal.
Reasons for prohibition:
1) marriage is for procreation
2) marriage protects the health and welfare of children
3) marriage is defined, sometimes by statute as union between man and woman
4) religious grounds
Types:
Domestic Partnership law: (Hawaii; and municipalities) allowing someone without getting
married to get some of the rights of marriage; insurance.
-doesn’t do that much; not that popular
-may have requirements, such as live together for year
Civil Union: (VT; Mass. Submitted proposal following Goodridge)
-gives ALL rights of marriage to civil unions
-allows a child born to be child of BOTH parties
-pensions not included
-residency period to get divorce, but 70% out of state so big complications with that
when dissolutions occur.
Same-sex marriage: highest level
Constitutional background of Same Sex Marriage:
Bowers v. Hardwick: Right to privacy does not include homosexual sodomy even in the privacy
of one’s own home.
Colorado v. Romer: struck down CO law which said that homosexuality could never be a
protected class. Court found this was just allowing discrimination and taking away an benefits.
Lawrence v. Texas: overruled Bowers; striking down statute criminalizing 2 consenting adults
having anal intercourse (applied to both homosexuals and heterosexuals).
- Sued on privacy grounds; right to privacy
- 6-3 plurality decision because going into bedroom of consensual, sexual encounter
between 2 people.
- Rational basis test: (homos are not a suspect class to warrant strict scrutiny); court
found NO rational basis (is there a reasonable justification) for this law.
- O’Conner had a concurrence: used equal protection basis because only reason for the
law is to discriminate based on homosexuality.
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Goodridge v. Dep’t of Public Health: Mass. State constitution on same sex marriage
Used rational basis test: because didn’t find fundamental right to homosexual marriage
Rejected contention that marriage for procreation and same-sex violates: what about
infertile couples or post-menopausal women?
Rejected idea that heterosexual couples are best enviro for kids: many heterosexuals are
having kids outside marriage and all you are doing here is penalizing homosexuals with
a stable home!
Financial argument: homosexuals more affluent and don’t need to give marriage benefits:
how does court know they are wealthy!
Demeaning heterosexual marriage if allow this: Court finds no basis for that
Morality argument that legislature is allowed to do: Court finds it disguised discrimination
Court was finding all of these excuses and not rational bases for justifying the law
Dissent: applies a rational basis “with a bite” or heightened standard.
Defense of Marriage Act: 1 U.S.C. § 7
-passed by Congress right after it looked like Hawaii held it was unconstitutional under
the state Const. to prohibit same-sex marriage.
1) states are not required to give full faith and credit to other state’s same-sex marriage
2) for Federal purposes (social security, veterans benefits, immigration), marriage is only a legal
union between a man and a woman as husband and wife.
Many states passed their own “Mini-DOMAs”, modeled after the Federal one.
Iowa does not have one; got narrowly defeated as it may be unconstitutional
Speaker, Judge Neary came to class.
He approved a termination of relationship between 2 females in Iowa. He didn’t
catch that it was same-sex on original order; was amended to be an equitable
distribution of property following a termination of a relationship not under the
Iowa marriage code.
Full Faith and Credit Clause: Art. IV, § 1
Full Faith and Creidt shall be given to each State to the public Acts, Records, and judicial
Proceedings of every other State. Congress may by general laws prescribe the Manner
in which such Acts, Records, and Proceedings shall be proved ad the Effect thereof.
*is a marriage really an Act, Record, or Proceeding?
Restatement of Conflicts: a marriage is valid if it is valid in the place it was accepted, unless it
violates strong public policy of the state with the most significant relationship to the parties at
the time or if it is prohibited by statute.
*states enacted their own DOMAs to declare same-sex marriage violative of public
policy.
*in states w/o Domas have to find some other way to say its against public policy if a
state does not want to recognize it. Must look to other laws of the state (i.e. does state allow
same-sex adoption?
* under state constitutions, need to find ways to attack the doma
Is the Federal DOMA constitutional?
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Equal Protection: not a suspect class so will be rational basis test
State argues: meets rational basis test; if state doesn’t recognize it then shouldn’t
have to pay to have other same-sex couples divorced
Other side: reason behind the law is actually animousity using Romer and Lawrence
O’Connor is the swing vote and she needs to find some malice behind the law to
strike it down
-
Privileges & Immunites: Art. IV, § 2: citizens of each State shall be entitled to all
Privleges and Immunities of Citizens of several States
o It is taking away the privileges and immunities of citizens of other states!
-
Full Faith & Credit:
o Marriage is a record and should be accorded Full Faith and Credit
o However, should you have to shove that down other states who find same-sex
marriage violative of DP?
Common Law Marriage:
-a marriage that takes legal effect without the ceremony or procedures; parties agreed
to enter into a legal marital relationship, cohabitate, and hold themselves out as husband and
wife.
-there is no such thing as a common law divorce; the only way out of it is a legal divorce
or death.
-most states do not recognize it: 11 still do (IA, CO, KS, MT, NH, OK, Penn, RI, SC, TX,
UT)
requirements:
1) publically hold yourselves out as man and wife
2) period of living together, cohabitation (no requisite period of time)
3) present intent to be married (must be from both parties through words/conduct)
*you will look to proof of intent (joint credit cards, whether woman took man’s name, joint tax
returns filed)
*burden of proof is on the spouse trying to claim that there is a common law marriage
*there is a presumption AGAINST common law marriage
Putative Spouse Doctrine:
-this is another doctrine to protect the interests of marital property when there is no
actual marriage. It protects a spouse who has a good faith belief that they are married, but for
some reason it is not a legal marriage.
More limited than common law marriage because once you find out that you weren’t
actually married, then you cannot acquire the rights then. (just when mistaken on
marriage)
Because this an intermediate status, probably cannot get support, but just the
marital property
E.g. person who did ceremony wasn’t qualified; or spouse lied and was already married.
Applies in only a few states: CA, CO, ID, IL, LA, MN, MT, TX
ceremony
good faith belief that are actually married
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Meretricious Relationship: only Washington
Stable, marital-like relationship where both parties cohabit with knowledge that a lawful
marriage between them does not exist
Will divide community assets based on such factors: continuous cohabitation; duration of
relationship; purpose of relationship; pooling of resources and services for joint projects;
intent of parties (intent to share/quasi-implied K)
Cohabitation:
Orginally courts would not enforce agreements between unmarried couples, vieiwing it as
contrary to public policy (deterring immoral behavior, living in sin). Some states still
follow this rule
Other states today will recognize an express agreement
Unmarried couples may enter into express K regarding the ownership of property
acquired during their relationship
Courts will not enforce a K for illicit sexual relations as consideration
- A few states will recognize express or implied Ks
o Many people living together neglect to have an express K
o There are some serious SOF issues here
o Essentially this will come down to the facts of the case; what is behind it; it is a
just result to enforce it?
Marvin v. Marvin: first major decision handed down by a state court to clearly hold that
unmarried adults who live together are free under general principles of K law to make
agreements concerning their property and earnings
-dealt with request for Palimony: support from a long-term nonmarital relationship
Theories of recovery for unmarried cohabitants:
1) common law marriage: best
a. present intent to be married
b. cohabitation
c. holding yourself out as married
d. burden of proof is on the party trying to prove a marriage
2) Putative spouse: not a full benefit of marriage, but for as long as you hold the good faith
belief
a. Good faith belief
b. Gotta have ceremony
3) Meretricious:
a. Community assets will be divided equitably: need continuous cohabitation for a
requisite duration, pooling of assets and an intent
4) Express Contract: SOF may apply (so statutes may require certain writing be est)
a. Likely to be upheld in ANY state
5) Implied Contract: unlikely in most states due to proof problems and SOF
6) Joint Venture of Partnership
a. In business together and wasn’t paid a salary for the work
7) Quantum Meruit: an equitable remedy
a. Payment for the value of the services rendered to the extent that they have not
been compensated for and there is a reasonable expectation of payment (so it
must not be a gift).
8) Unjust Enrichment:
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a. Benefit from one party to the other
b. Acceptance or retention of benefit
c. Unjust enrichment or inequitable
9) Constructive Trust:
a. Abuse of a confidential relationship (fraud, undue influence)
b. Which results in unjust enrichment off of that trust relationship
10) Resulting Trust:
a. Money or property is given (cannot be labor)
b. There is an inference that this is not a gift
c. Causing unjust enrichment
11) Promissory Estoppel:
a. Promise
b. Detrimental reliance
*best advice is still to GET MARRIED; otherwise MUST get things in writing (keep all records)
Divorce Jurisdiction: determining jurisdiction is not a decision on the merits, but may effect
the outcome
Need 1) subject matter jurisdiction of court; 2) personal jurisdiction over D. (choice of law ≠
jurisdiction)
- There is a long standing tradition of Federal courts staying out of family matters
because that is a power reserved to the states under the police powers. See
Ankenbrandt.
- Foreign divorces can be tricky with issues of comity; generally are recognized if nationals
or domiciliaries of that country or if the state decides to grant
- Other states will have to give divorces Full Faith & Credit, but it must be a valid divorce
decree
o Need procedural Due Process: notice and opportunity to be heard
o Need subject matter jurisdiction by the court
o Need minimum contacts: to have PJ
When determining where to bring jurisdiction consider the following: all of the jurisdiction
requirements are slightly different for these (so take each portion separately)
Marital Res: the marriage itself
Need domicile in the state of one of the parties in order to have jurisdiction over the
marriage
When one state in whom one of the parties is domiciled enters a divorce decree, it
must be given full faith and credit by any sister states
May be subject to collateral attack; one state’s determination of party’s domicile is
not binding on another state and may be re-examined by another state IF the
original proceeding was done ex parte (Williams v. North Carolina)
Possibility of collateral attack is destroyed if a general appearance is made
(Sherrer)
Remember there are constitutional requirements of jurisdiction, but state may make
its own requirements on top of this to meet
Sosna v. Iowa: SC allowed residency requirement
some states have used status theory to grant family issues, without getting PJ
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Bartsch v. Bartsch: protective issue is ordered without PJ over the D
because state reasons that they have an interest in protecting their
citizens
Spousal support
For a determination regarding support (claim it or cut it off) in an ex parte
proceeding you do need minimum contacts (PJ), domicile of one part, and PJ
over both parties in order to receive full faith and credit (Vanderbilt)
Child support
You need PJ over both parents (minimum contacts; maybe tag jurisdiction)
Mininum contacts are NOT: sending child there, a few days stopover; getting
married there; the other spouse caring for child there; child just present
Kulko
Property:
Real property: the state where the property is located has jurisdiction and there is PJ
over the parties
If a state has PJ over a person they can order them to turn over the deed
to property located in a different state
Personal property: the state needs PJ over the party because personal property goes
with the person
Uniform Interstate Family Support Act (UIFSA):
Has been enacted by every state; was designed to provide uniform laws to stop the mess of
multiple orders
The Federal statute: Full Faith and Credit for Child Support Orders Act (28 U.S.C.A. §
1738(B)) incorporates UIFSA and requires one state to enforce an order made in
another state
This was the 3rd attempt after failed URESA and RURESA
Covers:
Child support orders (initial, modification, enforcement)
Establishment of paternity
Spousal support
Initial jurisdiction (ask whether this is initial or a modification)
Make sure there aren’t orders in other states already
Need Personal Jurisdiction
§ 201: establishing jurisdiction:
personal service within the state (either resident or tag jurisdiction
under Burnham)
nonresident submits to jurisdiction (general appearance, waiver,
consent)
nonresident resided with child in this state
nonresident resided in the state and paid child support
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child resides in state as a result of the act or directives of the
nonresident (contrary to Kulko)
nonresident had sex in that state resulting in child (might not be
enough)
nonresident registered with putative father registry
any other constitutional basis for PJ
*can have PJ in more than one place
Simultaneous Proceedings: § 204
usually the first stat to file wins
2nd state will win if:
2nd petition is filed within time for responsive pleading for first state
it is a timely challenge, AND
2nd state is the home state child (child lived with parent for 6 mos. Immediately prior
to filing
Continuing Exclusive Jurisdiction § 205
Child Support: if original order consistent with UIFSA, first state has continuing exclusive
jurisdiction until:
All parties and child left initial state OR
All parties file written consent in initial state for jurisdiction in second state.
*there is no continuing jurisdiction for a temporary order
Spousal support: always continuing jurisdiction for the initial state
*want to have jurisdiction in the same state where you have jurisdiction for child support and
spousal support
Modification: § 613 611
If all parties are in a new state and child not in initial state, then its fine to modify (613)
New state CAN modify if:
613 does not apply (all parties are no longer in the initial state)
non-resident petitioner is requesting modification (to prevent forum shopping); and
respondent subject to personal jurisdiction in this state; OR
child or party is subject to PJ in that state AND all parties file written consent
Choice of Law: § 204
- the law that applies for determining nature, amount, duration, etc. is that of the issuing
state UNLESS if met the SOL for arrears (will go by whichever is longer—issuing state or
enforcing state)
*choice of law may effect things because each state has a presumed amount and it may
vary/be better in another state.
Analysis under UIFSA:
1) Is this an initial decree or a modification?
2) Did the initial state have jurisdiction for the order?
3) Is there anyone left in the initial state?
a. Jurisdiction is exclusive and continuing as long as there was proper jurisdiction
and someone is still there.
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Child Custody Jurisdiction: Uniform Child Custody Jurisdiction Act (UCCJA)
UCCJAAt one point all the states had adopted it in; now only LA, MD, MO, NH, OH, PA, SC, SD,
VT, WI and WY have it
Initial Jurisdiction
For initial jurisdiction you need
Home state status- where the child lived for the six months immediately
proceeding the filing of the petition (temporary absences don’t count)
Significant Connection & Substantial Evidence- there is substantial evidence
concerning the child’s present of future care and the child and parents have
significant connection with the state; does not have to be the home state
Emergency Jurisdiction- allows for a temporary order in situations of
abandonment or emergency; rarely used
Catch-all- no state has jurisdiction over the child and it is in the best interest of
the child for this state to take jurisdiction
There is no preference given to home states; first-to-file gets priority
Modification
To modify you need
Determine whether this is an initial order or a modification
Look to see if there was a valid initial order
Was there jurisdiction for the initial order under the law of that state?
Is it entitled to FFC under the PKPA? Was there jurisdiction under the PKPA?
Must be in order to receive FFC
You need initial jurisdiction under the PKPA, someone there, and initial
jurisdiction under the law of the state in order to receive FFC under
the PKPA (see PKPA notes for what is meant by law of the state)
Is anyone (either child or parent) left in the initial state?
Doesn’t matter if the party left and then came back
Does the initial state have jurisdiction now under the law of the jurisdiction?
Home state?
Significant connects/substantial evidence?
If there is valid jurisdiction to modify, then the initial state has
continuing jurisdiction until it decides it doesn’t or declines
jurisdiction
Misconduct Clause
A court may decline to exercise jurisdiction if the petitioner for an initial decree
wrongfully removed the child from another state or other misconduct
A court must decline to exercise jurisdiction if the petitioner for a modification to the
initial decree has engaged in misconduct unless it is in the best interest of the
child not to do so (encourages hiding the kid for longer)
PKPAInitial jurisdiction
You need to be the home state (defined the same as in the UCCJA)
Home state is given explicit priority to make an initial decree (different from
UCCJA)
If no state is the home state then you can look at
Significant connections/substantial evidence
Just has to be a significant connection, not the most significant connections
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First-to-file wins here
Modification
Original state has continuing jurisdiction if
It had jurisdiction at the time of the initial order and
Still has jurisdiction under the law of that state (UCCJA or UCCJEA) and
Someone is still in the state
Law of that state has been interpreted in two ways
Significant connections = continuing jurisdiction even if no longer home
state
No longer home state = no continuing jurisdiction
Means states may be left to fight as to which interpretations is right since
federal govt. has refused to get involved
If not the initial state, in order to modify you must have
Jurisdiction under the PKPA and
The original state no longer has jurisdiction or has declined jurisdiction and
Must give notice and opportunity to be heard to all parties
UCCJEAHas been adopted by all but 11 states
Eliminates any language referring to the “best interest of the child”
Initial jurisdiction
You need to be the home state (same as PKPA)
If no home state then
Significant connections/substantial evidence (same as PKPA)
Emergency- still only good for temporary orders in cases of abandonment or
emergency
Catch-all- no state has jurisdiction so look to whether it is in the best interests of
the
UCCJA
PKPA
UCCJEA
chil
Home state
Home state
Home State
d
Significant Connection (not
Significant Connection if no Significant Connection if no
for
most)
home state
home state
the
Emergency (de facto
Emergency
Emergency only temporary
stat
temporary jurisdiction)
e to
Catch-all (rarely used)
Catch-all
Catch-all
take
Best interest language
Best interest language
No best interests language;
juris
emergency is explicitly
dicti
temporary (not just
on
practically)
No priority- first state to file Priority to home state
Priority to home state
with one of the above wins
Leads to swiping of kids
Adopted by each state =
Need to meet in order to
Still must meet the PKPA to
state law, so look here first, have FFC since the federal
get FFC
then the PKPA
act and not state law
If only the UCCJA, only
good in that state
If you meet the PKPA, you
If you meet the UCCJEA,
meet the UCCJA
you meet the PKPA and the
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UCCJA
Mo
dification
You can’t Modification
You can’t modify unless
You are the initial state and still have valid jurisdiction (continuing jurisdiction) or
The initial state has decided it no longer has a significant connection or
The initial state has declined jurisdiction or
There are no parties left in the initial state (everyone has left it)
UCCJA
No modification unless
initial court no longer has
jurisdiction under the act; if
there is a home state
somewhere else it is
irrelevant if you have
significant contacts
PKPA
No modification unless initial court
no longer has jurisdiction under the
act
Home state- no priority,
substantial connection,
emergency, catch-all
Had initial jurisdiction under the
PKPA
2. Somebody still there
3. Initial state has jurisdiction now
under such state (interpreted to
mean Federal presumption so that a
new home state can claim initial
state can’t claim jurisdiction based
on home state or significant
connection any more)
AND jurisdiction in new state now
AND Jurisdiction in new
state now
Led to fights between new
home state and initial order
state
Was interpreted that a new home
state could trump the old initial
home state by arguing as new home
state they trump the old state’s
significant connection
Each state decides for itself
whether there is jurisdiction
in their state
Two JA may cause problem
JEA state will defer to a JA
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UCCJEA
Continuing
Exclusive
Jurisdiction until
initial court decides
no significant
connection if there
was proper initial
jurisdiction
Or declines
jurisdiction
Or all parties have
left the state
Only one state can
decide whether
they have
jurisdiction or not;
other states can’t
tell them they
don’t like under
the UCCJA and
PKPA
There is a
difference between
UCCJEA and the
PKPA in the third
step (such law v.
declines)
As long as some
states have the
state
UCCJA there are
going to be
problems; then the
PKPA federal
presumption will
be less of an issue
If you have two
JEA states should
be easy
If initial state
declines
jurisdiction you
look to see if the
new state meets
the initial
jurisdiction
requirement
(home st., etc.)
Misconduct
If a state has jurisdiction because of the misconduct of the party requesting
jurisdiction, then the court must decline unless
All parties agree to jurisdiction in that state or
The state that would have jurisdiction has declined it or
No other court would have jurisdiction
The court may fashion a remedy to prevent recurrence of the misconduct (protective
order, supervised visitation, etc)
ANALYSIS
Is this an initial decree or a modification?
Who made the initial decree?
Did that state have valid jurisdiction to enter an initial decree? Is it entitled to FFC?
Has anybody left the state?
Does the initial state have jurisdiction now under the law of the state?
Has it adopted the UCCJA or the UCCJEA?
Does it have continuing exclusive jurisdiction?
Was there proper notice?
If not, do any other states have jurisdiction?
Do any other states have jurisdiction to modify?
International Child Abduction & The Hague ConventionApplies to the United States and about 30 other countries
International Child Swiping- The wrongful removal or retention of a child from their
habitual residence and the wrongful removal/retention is a breach of the rights of
the custodial parent under the law of the habitual residence
Remedy- provided for by the Hague Convention
The child must be returned to the country of habitual residence if the child is under
the age of 16 and the dispute must be adjudicated in the country of habitual
residence
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Both countries must be parties to the treaty
Problems- 1 year SOL and not all countries have signed on and the ones who have
signed on didn’t always comply (more comply now than at first)
ExceptionsGrave risk of physical or psychological harm if returned to habitual residence
Violation of human rights or fundamental freedoms in country of habitual residence
More than a year since the child’s removal and the child has settled into the new
environment (MAJOR loophole)
Consent by custodial parent
Child objects to being returned and is sufficiently mature to make that determination
ANALYSIS
Was there wrongful removal/retention from the habitual residence?
What country is the habitual residence?
Pay attention to temporary absences
Was the removal/retention wrongful?
Did it violate the law of that country?
Doesn’t matter if there was a valid order yet; still wrongful because you
are depriving the other party of the right to have a fair hearing
Was the non-removing parent exercising their parent rights at the time?
Where was the initial order made?
Was it valid?
Due process?
Jurisdiction?
Is it being modified?
If so, can it be?
Indian Child Welfare Act (ICWA)Who- A child is either a member of a tribe or eligible to be a member of a tribe because
of their parents
What- An Indian tribe has exclusive jurisdiction, if domiciled on reservation, against any
state concerning a child welfare proceeding (foster care, placements, adoption,
termination of parental rights, guardianship) involving a Native American child
It does not apply to custody disputes between divorcing parents
If not domiciled on a reservation then there is concurrent jurisdiction with state
courts, but it must be sent to the tribal court unless
The parent(s) object
Tribal counsel declines jurisdiction
Good cause
ProtectionsHigher burden of proof on the state
Must have expert support
Must prove beyond a reasonable doubt to terminate parental rights
There is a preference for placement with Indian families
The right to withdraw consent by Indian parents continues until the adoption is finalized
Enforcement of Visitation/CustodyOptions:
Contempt is available but rarely works because if you put the custodial parent in jail,
who takes care of the kid?
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If they swipe the kid and are not the custodial parent it is a crime of custodial
interference and can charge them accordingly (have to find them first though)
Seek a change in custody- show you are the better parent
Self-help as long as you don’t break the law
If it’s your turn for visitation under joint legal custody- tell ex-spouse you picked
them up at school because they wouldn’t let you have them when it was your
turn
Hague Convention- only good if they take the child to another country and the other
country has signed it
Charge them with tortuous interference with custody
When it is used, which is rarely, it is usually in child swiping cases
Doesn’t usually work
You need to make visitation specific in order to be able to claim they aren’t
complying (“liberal” and “reasonable” are bad standards)
Cutting off support for interference with visitation is not an option
PREVENTION is the key to enforcement
Be as specific as possible; make sure the K or court order is well written
Tell your client to try and get alone to promote cooperation
ADOPTION JURISDICTION
Covered by the UCCJA, not the UCCJEA
For UCCJEA state you have to look at the individual state laws and the Uniform Adoption Act
(UAA), to which it defers
The jurisdictional provisions are fundamentally consistent with those of the UCCJA and
the PKPA with modifications to fit the adoption context (ex. “prospective adoptive
parents” are included among those people whose relationship with a child may give
rise to a basis for jurisdiction)
The provisions of the UAA are on p. 957 of the casebook
Under the UCCJA the same jurisdictional requirements apply to adoption as to other
proceedings, including the need for FFC under the PKPA
Spousal Support:
-award of future payments to one spouse payable from the future earnings of the other.
Common Law: Necessaries Doctrine
There was a duty of husband to pay for wife’s necessaries
- Today, most unlikely to get (often smaller amounts, for shorter time period)
- Most likely to get it are the low income wife with the high income husband and a long
marriage
- Left to the court’s discretion so will need to argue different theories of support.
Theories
1) Punishment—old rule; person at fault should have to pay; rarely used but maybe if
really bad
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2) Replace marital support—Court to keep person at level of living they’d become
accustomed to
3) Rehabilitative—predominant means of support today; temporary
a. Reasonable standard of living
b. Help in order to keep spouse off of welfare and get back on feet
4) Partnership—equalize spouse’s financial status
5) Reimbursement—pay back for what did during marriage
a. Cost value: value of the services and money given
b. Opportunity costs: lost opportunities
c. Enhanced earning capacity
Types:
1) Temporary: just to take care of immediate costs of divorce pending
a. Get through until final order
b. Often sets the tone for the final alimony; yet done quick with little evidence
(dirty calculation)
2) Lump Sum: one time payment
a. There are little enforcement problems, but taxes on lump sum are an issue
b. Possible may have underestimated the amount; can’t go back for more often
c. Person could spend all quick
3) Permanent: until death or remarriage
a. Rarely ordered, except for lengthy marriages
4) Rehabilitative: temporary; to get back on feet and until self-supportive
5) Reimbursement: often paid out over time
Factors weighed:
- Duration of marriage (BIG)
- Parties age, health, education
- Earning capacity (income, assets, earning capacity)
- Marital Std. of Living
- Tax consequences
- Agreement of parties to support each other; delay career for kids, etc…
- Other relevant: fault (if it’s a fault state)
*this is all discretionary on the court so you need to argue these factors and the theories for
why this is EQUITABLE!!!!
Child Support:
-support of one parent (usually non-custodial) to other parent for the support of their
common child.
Previously courts had great deal of discretion for this award, like alimony
1984 Congress conditioned state’s child welfare money on guidelines for states to limit the
discrepancy between awards
State Child Support Guidelines specify a precise method for computing the amount ordered.
Still there is discrepancy for judges within those guidelines (such as below or above
chart)
There is a rebuttal presumption for the guidelines, but if its rebutted the judge needs to
explain why he varied.
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Methods of Computation:
1) Income Share Model: most popular; Iowa
a. Requires that both parents make a monetary contribution to support; belief child
should receive the same proportion of parental income as if the parents lived
together.
b. First, computer the support obligations based on the combined income of the
parents in the former intact household
c. This obligation is prorated in proportion to each parent’s income.
d. Model permits consideration of work-related child care and extraordinary medical
expenses.
2) Flat percentage: WI; 13 total states
a. Looks at the number of children on a chart to get a % that is multiplied to the
non-custodial parent’s income
b. Does not account for the custodial parent’s income.
*variation on this is in WA which has a Varying Percentage Model to look at custodial parent’s
income as well.
3) Melson Formula: DE; 4 other states
a. First give parent basic living allowance by subtracting that amount from their
income (welfare expense)
b. If there is nothing left, then there is no support.
c. If some remains, support will be based off prorate income
d. A computer program calculates this amount for you
e. Theory is different from all others here because its parent first, instead of child
first
Considerations for child support:
- State definitions of net income can make a large difference in the amount computed.
Often get to take off taxes, medical expenses, and various other things.
- Different formulas yield different results: Melson is the highest with the middle income;
Percentage is the highest with the largest income
- These all factor in when you are looking at jurisdiction: can vary widely depending on
choice of law; so try to use state that’s best for your client.
Child support terminates at: age of majority; emancipation; death of child
o Over age of majority, but child cannot support himself there is still duty to pay
o IA has an exception for full-time college student to continue support until 22
(sometimes 21) where pay 1/3 based on state tuition
Other duties:
Stepparents: CL had no duty; need to use other K theories like equitable estoppel
(unfair advantage of another) or detrimental reliance to get support
Grandparents: generally no duty to support; some states will require it; all how you
argue this one
Child support cannot be used to upgrade ex-spouse’s standard of living!
There is discretion by judge on either end of the charts: might give more if been together
for a long period and child in marriage (not one-night stand)
Support in joint physical custody cases:
Compute support if mom full custody
Compute support if dad full custody
-
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Subtract the 2 numbers
This provides for the prorata share
- If payor parent dies, support does not automatically end
o Most support orders require the noncustodial parent to take out life insurance
policy to provide support so the estate does not need to remain open indefinitely
- Support MUST clearly lay out when the support should end!
- Changing visitation does not end child support either
- Payor cannot switch jobs and try to get out of obligation of payment: court my impute
income and base the support off that higher income
- If child is disobedient that could effect support obligations
- QMCSO: Qualified Medical Child Support Order
o Covers medical expenses/health plans for children
o Requires covered group health plans to honor a qualified medical support order;
creates/recognizes the right of a child to benefit form a parent’s group health
care plan
o Has to be refilled every time the plan changes
o The plan only has to cover the type/form of benefit that it normally provides.
*remember that the state that files the original order will have continuing jurisdiction until there
is no one left in the state
Child Custody:
o Courts will award custody based on the “best interest of the child”
o Each parent, regardless of whether they are married, as an equal right to
custody
 The “Tender Years” doctrine (that young children need to be with their
mothers because they are more nurturing) has been abolished, is
unconstitutional and was not based in scientific fact
o Non-parents do not have rights unless something is wrong with the parents
(unfit, abandoned, etc.)
o Primary Caretaker Doctrine Argues that the most important thing for children is continuity
 The primary caretaker is the parent who takes care of the kid the most
 Replaced the “Tender Years” doctrine
o FACTORS:
 Age and health of parties
 Age and health of the child (any special needs?)
 General family environment
 Finances
 Others in the home (step-family, grandparents, etc.)
 Community
 State of the house
 Relationship of the child with the parent
 Child’s wishes (if they are old enough)
 At 16 they really listen because their old enough to run away
 Domestic abuse
 There is a presumption against giving custody to an abuser
 If you abuse your spouse you are more likely to abuse the kid
 Risk of the kid being caught in the middle
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

Not good for kids to be around it
Spanking is not per se abuse but can become it depending on the
circumstances
Race
 It cannot be a determinative factor in child custody (Palmore)
 It may be considered among other things
 Can’t use the fear of prejudice to make the decision
 Religion
 May only be considered if you can prove harm to the child; the
right of the child to be free from harm rises above the parent’s
right to free exercise
 Religion is treated differently from race because it is something
the parents choose
 It is rare that a court will limit a parent’s religious freedom
o Most commonly arises with Jehovah’s Witnesses because
they don’t allow blood transfusions
 The other parent can consent to it
 The state or a court can order it done
o May also arise with faiths with the doctrine that nonbelievers will go to hell, especially if the other parent
doesn’t belong; courts may order the believing parent not
to expose the child to it
 Homosexuality
 Can be used as a factor, sometimes a determinative one, even
though:
o There is no evidence they are more likely to molest kids
o There is no evidence of a connection being homosexual
parents producing homosexual kids at a higher rate than
heterosexual parents
 Here the court may consider the likelihood of ridicule and
embarrassment
 Court may attempt to put limits on the parent’s practice
 Economics/Finances May be a factor but is not a determinative one
 Can’t penalize a working mom
o A (non-working) step-mom is not viewed as being equal to
a mom
 Fault- if related to the child
 Sex in front of the child- a no-no in the eyes of the courts
 Any other relevant factors
 Anything else
***really is all in the judges discretion for what he orders so there is no real guide for
how to weigh these factors; good to know personality of judge and what he typically
looks for
***since it is purely discretionary, states also have different standards of review for this
could be de novo or even abuse of discretion
***should really have things worked out before you go to the judge to avoid some of
this.

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o
Joint Custody Not the same as split custody (one kid goes with one parent and the
other kid goes with the other parent)
 There is a presumption against awarding split custody because of
the conflicts that may arise
 Typically only ordered when both parties have agreed to this and
come before judge
 Two types:
 Joint Legal Custodyo A legal fiction
o Both parents make the important decisions together
o Each parent has full access to the kid’s records
o The presumption is for it unless there is something wrong
with one of the parents
 Joint Physical Custodyo Both parents are responsible for the day-to-day care and
decisions; usually close to half the time is spent with each
parent
o There is a presumption against awarding this unless
 The parties have agreed to it
 Normally it won’t be ordered against their
wishes
 The parents are really able to cooperate with each
other, to coordinate and
 Are in constant communication
o A common misconception is that there is a legal standard
of every other weekend and 2 weeks in the summer
o Positive aspects:
 Child develops a relationship with both parents and
they both get to be involved with day-to-day
interactions
 Forces both parents to be responsible for the child
and share the burden
 There is no decision of a “bad” parent and “good”
parent, helping the parent’s self-esteem
 There is the stability of having two active parents
 The parents have to communicate with each other
(harder for the child to play them against each
other)
o Negative aspects:
 Less stability in the day-to-day life
 Costly- have to maintain two households
 Requires the parents to get along and
communicate which may lead to friction/conflict
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Visitation- There is a very strong right and you will get it unless you are a danger to the child
- Court will try to make it work if at all possible (supervised, no over-nights, etc.) and are
very reluctant to cut it off altogether
Relocation- General rule is that the moving parent does not have to prove the need for the move,
rather the non-custodial parent has to prove that the move will harm the child or is done
in bad faith
- Presumption that a move is not against the best interests of the child as long as it is not
made in a bad faith attempt to interfere with the visitation rights of the non-custodial
parent
- Court won’t change custody unless something is very, very wrong
- Parties with lots of money may be ordered to do “virtual visitation” to allow for more
interaction on a more regular basis
Step-parents- A step-parent normally has no right to visitation or custody of a step-child if there are
already two natural parents with these rights
- It is different if they have adopted the child
- The step-parent may gain rights under a relationship of loco parentis if they have:
- Acted as a parent for a long time and
- Taken financial responsibility for the child
- If a relationship of loco parentis has been established the court will look at the best
interests of the child
Grandparents- Key case in this area is the Troxel case out of WA
- Grandparent wanted visitation contrary to the wishes of a fit parent
- Parent’s have a constitutional right to raise kids without undue interference from the
government; you can only interfere with it if it is done in a narrow way and there is a
strong government interest (strict scrutiny)
- WA statute was unconstitutional in this case because it was too broad
- Court holds that there may be, but not here, a situation where it is proper to order
rights to another party over the objection of the parent(s). Most likely a case where a
third party has stepped in and acted as a parent (in loco parentis)
- You need to give deference to a fit parent’s wishes
Iowa Code § 598.35- Grandparent visitation rights
- Need three things:
- One of the following categories:
- The parents are divorced
- The parents have filed for divorce
- The parent of the child has died
- The child has been placed in a foster
- Step-parent adoption
- Born out of wed-lock
Unreasonably refuses to allow visitation
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-
and in the best interest of the child
and has established a significant relationship with the child
Property Division: Equitable Distribution
- when couple gets divorced, must figure out how to divide all of the property
2 approaches states use:
1) Community Property states
2) Equitable Distribution states
Community Property:
- Comes from Spanish influence that marriage is a partnership and there must be
protection for the homemaker spouse
- Theory is that everything is acquired 50/50 during the marriage
- The only STRICT community property states are CA, LA, and NV.
- Other states start off with this presumption of 50/50, which may be rebutted. (TX, AZ,
ID, WA, NM)
o WI might fit into this presumption category, but difficult to classify.
- Anything owned prior to marriage here is separate
Equitable Distribution: All other states!
- Start out with presumption that the court will do what’s FAIR.
- Equitable is not always the same as equal
- At the time of divorce, you get what is fair which is determined by the court taking into
account a number of statutory factors
- Based on the theory that marriage is a shared enterprise and that the assets of the
shared enterprise should be distributed based on presumably equal contributions and
other equities
3 step process here:
1) Is the property marital or community?
-marital is acquired while married
-need to determine exactly what constitutes property; can be messy
2) Have to value the marital and separate property
-can get fights over different appraisers on this
3) What is EQUITABLE?
-this is the most difficult part; need to argue what is FAIR
-Judges cannot touch the separate property, but tend to include more in marital so they
can really look at the whole picture and determine what’s fair within that.
Marital/Community PropertyAll property of either spouse



Acquired during the marriage
Before the commencement of a matrimonial action or the execution of a
separation agreement
 Most state stop on the date of the commencement of the action
Separate property is not included!
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Separate Property-
Anything acquired before the marriage
A gift to one (and only one) of the spouses during the marriage
Wedding gifts are marital
Inheritance by one spouse
If it goes to both, it is marital
Future inheritances don’t count
Increased value of separate property not due to the contribution of either
spouse (passive increase in value)
The portion of a personal injury award given for personal loss
The lost wages portion is marital
Anything exempt through a written K entered into by the parties (i.e. pre-nup)
*remember that you do not divide income, you are dividing just PROPERTY
FACTORS:
- Finances
o Income, separate property, earning capacity, etc.
o Give more marital property to one if the other has more separate property
- Direct contribution of the parties
o Specific and in general
- Need for marital home by custodial parent
o Whoever gets the kids usually gets the house, the other party gets some money
in return (a lien on the house)
- Tax consequences
- Liquidity of property
o Can’t just give all assets where the cash is completely tied up because that’s
useless.
- Length of marriage
o Short will get less
- Age and health of parties
o Is one sick and needs more?
- Alimony award
- Need to keep specific assets separate (like a business)
- Other relevant factors
o Fault (some states allow you to do this, others don’t)
o Drugs
*not all of the factors will apply here; just use what you can and start making arguments off of
them.
*studies done on this actually suggest that you cannot make sense of these factors; but it is
clear that big factors are if its been a long marriage, husband quite wealthy and wife has little
Debts:
Four different approaches:
Debt is not property, but judges do divide the ability to pay debt
o Must counsel clients on this because if both names are listed on the debt;
doesn’t mean creditor won’t come after your client (even if judge ordered other
to pay)
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o Best can do is sue the other person who was ordered to pay
Debt is subject to Equitable Distribution
o Cannot remove name from past debt
o Should immediately notify creditors to take name off joint cards; so remedy
future, but cannot remove past
o Practical matter here, prob need to advise client to remain civil because this
negotiation can go really bad if not; so don’t just remove spouses’s name from
card without telling them!
Deduct debt from marital property
o In general
o Specific asset related to debt
Consider debt as a factor in distribution
Gets really messy when you have MIXED ASSETS: with marital and non-marital
Before being married H buys a house worth $20,000 in equity. After the marriage the
title to the house is put in both names. At the time of the divorce the house’s equity is
$60,000. H and W during the marriage paid $20,000 towards the mortgage. Who gets what?
The $40,000 increase in the equity is mixed property
The $20,000 in equity (from paying off the mortgage) is marital property
The $20,000 from inflation is passive increase on mixed property and
therefore is mixed property.
What percentage of the property is separate? $20,000 (down
payment made before marriage)/$40,000 (available equity- total
value less the bank’s share) so $20,000/$40,000 = 0.5
0.5 (percentage separate property) x 20,000 (amount of passive
increase) = $10,000; 0.5 (percentage martial property) x 20,000
(amount passive increase) = $10,000
Therefore, $10,000 is marital and $10,000 is separate
PensionsVested pension- you have rights to it but not necessarily now; rights are not subject to
forfeiture if the employment terminates (voluntarily or involuntarily) prior to retirement
Matured Pension- you get it once you hit the magic age; rights are subject to forfeiture
In the majority of state both are considered marital property subject to equitable
distribution; a few states hold vested pensions are martial property but matured
are not.
Defined Benefit PlanBenefits are determined on the basis of a formula, usually based on years of service
and salary.
It does not depend on the amount of contributions.
Individual accounts are not maintained for each employee.
The value of the plan can only be determined on the day you retire and begin to
draw on it.
Defined Contribution PlanYou can determine the value of the plan on any given date
Each employee has a separate account and the amount of benefits will depend on
how much is in the account through contributions, interest earned and other
increase in value when the employee begins to draw benefits
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The more common form
CAUTION: There may be a tax penalty for pulling out early so might want to
consider using other property to offset its value (instead of sharing the
pension) or have it distributed when it actually matures and the person is
receiving it
QDRO (Qualified Domestic Relations Order)Served on the plan administrator so they have to pay the spouse what they are
owed on the day it finally matures. Payments will come directly from the plan
administrator. If you don’t when it would apply, malpractice.
Will work on all ERISA plans, maybe on state plans
You must designate with specificity the following:
The name and last known mailing address of the participant and the name and
mailing address of each alternate payee
The amount or percentage of the participant’s benefits to be paid to each
alternate payee or the manner in which the amount or percentage is to be
determined (formulas must be clear in order to get the money)
The number of payments for the period to which the order applies and
Each plan to which the order applies
The court order may not require a plan to:
Provide any type or form of benefit or any option not otherwise provided by the
plan
Provide increased benefits
Pay benefits to an alternate payee that must be paid to another alternate payee
under a previous QDRO
Other Miscellaneous Potential Property Interests:
Railroad retirement- not subject to division
Military pension- under the USFSPA a ex-spouse can receive direct
payments if:
They were married for at least ten years of the spouse’s time of service
The ex-spouse’s share does not exceed 50% of the pension and
The payments terminate on the death of either party
Military disability pay- can’t be divided (problematic if part of the pension to
disability)
Social security- not subject to division
State employee plans- varies by state law
Personal injury awards- depends on how/for what the damages were
awarded
Professional Degrees & Goodwill-
Goodwill- is an intangible asset of a business or professional practice; value
because of the name’s familiarity/reputation. It is part of the value of the
business and is very hard to calculate, especially if it is a solo practice.
Professional DegreesEach state will treat professionals degrees differently
Most states do treat them as property and thus subject to property
division
Value is determined several different ways:
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Reimbursement for educational expenses (more common)
Difference in earning capacity (more common)
Community funds and hours
Lost income to community from one spouse in school instead of working full
time
Some states refuse to treat them as property. These state often use
an alternative theory for compensation to the supporting spouse, like
considering them when awarding spousal support or consider it in the
division of other property as a factor.
-If there is an express K the courts will recognize it if you can prove it
and don’t have SOF problems
Enhanced Earning Capacity-Can be through obtaining a professional degree or through something
else, like celebrity status. Whether it is considered an asset and thus
divisible will depend on the court.
-It is not the same as increased earnings after the marriage
Enforcement-
Most states will not allow the use of contempt to enforce a property agreement (jailing
for debt is a constitutional no-no)
Options:
-Putting a lien on real propertyo Puts an “innocent” person on notice that there is a legal claim on
it if they try to buy
You need to file the lien immediately
It doesn’t work with personal property
-Get a TRO on the sale of the property
-Get a court order for specific performance
PREVENTION is the key to enforcement
-Be as specific as possible and use clear language in the order/K
-Don’t file the decree until the property transfer is complete/signed- make sure to have
all the necessary deeds for property transfers there and signed at the same time
Bankruptcy:
- Happens to roughly 1/3 of all people who get divorced
- General rule: obligations attributable to a property division upon divorce are
dischargeble in bankruptcy. However, spousal support and child support obligations are
NOT.
o So your client won’t lose their support, but may lose the property that was owed
to them.
- Bankruptcy court will determine what is support and what is a property division
Bankruptcy code provides that property division orders are dischargeable UNLESS:
1) the debter can’t support themselves and still pay it based on their income and
property
2) if discharging the debt would cause a benefit that is greater to debtor than the harm
discharging the debt would cause to the ex-spouse
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*bankruptcy allows you to keep your home, so make sure your client gets a lien on the house
for their portion that’s owed to them so don’t lose out completely on this large asset! (will allow
your client to foreclose on the house later)
-make sure you record the lien too!
Ferry v. Sanderfoot: SC held that federal bankruptcy law does not permit a debtor, upon
divorce, to avoid a lien and thereby defeat the other spouse’s property interest.
*property settlements may not be modified so once the bankruptcy court discharges it, it will be
gone forever!
*student loans can’t be discharged by declaring bankruptcy
*Court also has discretion to refuse bankruptcy if it finds that it wasn’t for “good cause” (i.e.
husband doing it to spite ex-wife)
Ways to protect your client with this:
 get a lien on the house (Sanderfoot)
 get a decree saying that if bankruptcy is filed within a certain time, then the court can
modify the property settlement accordingly
 get the money upfront, and not promise to pay later!
 Speak with a bankruptcy atty. if you need to on this.
Tax Consequences with Divorce:
Property Division1041- Transferor’s basis is used and there is no tax consequence (it is treated as a gift
to the receipant)
-If you transfer it, they get your basis
-To taxes are due when you hand it to the other spouse
-Taxes are due on the basis you had when they sell it
-The transfer HAS to be an incident of divorce
-Within a year of the divorce it is presumed to be
-If more than a year you can argue it is
§ 402- Pensions
-No tax if QDRO at the time of transfer
-Can also transfer an IRA without taxes
-Will be taxed at the time the benefit is received
§ 121- Home
-There is a tax exemption every 2 years for
-Up to $250,000 for single person on gains on house or
-Up to $500,000 joint ownership
-If you own and live in the house at least 5 years before it is sold
-If the divorce decree gives use to one spouse, the other spouse can still use
the exemption at the sale on a later date
Alimony-Is treated by the IRS as income and thus is
-Included in the gross income of the payee (taxable) and
-Is deducted from the gross income of the payor if
-It is in cash (not property or services)
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-Received by, or on behalf of, the other spouse according to a divorce
decree, written separation agreement or other support decree such as a
temporary order and
-Terminates upon the recipient’s death
- You don’t make payment to their estate because that would look
like a property settlement and because you don’t have to support a
dead person
-Also, after the final divorce decree you can’t live in the same house (with a month
grace period) or file a joint tax return after payments begin
-Last, the payment may not be treated as child support
-Applies to lump sum payments and periodic payments
Recapture-
-Applies if the size of payments treated as alimony declines precipitously in the first
three years (a drop of $15,000 more)
-If you see one, call a tax lawyer!
-Means that if that happens, the payor will owe income taxes under the recapture rules
-Designed to discourage front-end loading of payments and attempts disguise property
division as spousal support
-A recapture calculation must be done only once, in the third year after payments begin.
The formula requires comparison of the total amount paid during the second yea to the total
paid in the third year and then comparison between the first year and the second and third
years according to the formula found on page 696 of the casebook
Exceptions are:
Death of either party or remarriage of the payee
Payments made under a temporary order
Payments are made for at least three years and the amount is based on a fixed portion
of income rather than a fixed dollar amount
Child Support-Child support is anything that is clearly applicable to the child
It can’t be shifted
These payments are nontaxable to the recipient and
Nondeductible by the pay
CAUTION: The tax rules changed in 1984 so agreements made before then are subject to
different rules for modification
Dependent Child Deductions§§ 152, 24- Exemption and credit to parent with physical custody for over half the time
The credit can be assigned/shifted to the other parent (different from child
support)
Payor parent probably wants it assigned forever
Payee parent probably wants it only effective for one year to
make sure they pay the support
It has to be in writing and filed with the IRS
The exemption has been phased out for higher incomes
§ 25a- Education benefits/credits
Go to whoever gets the dependent child exemption
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Head of Household-Applies to a taxpayer who is unmarried on the last day of the taxable year and
maintains a household constitution the principal residence of child for more than half the
year
-The custodial parent can still use this even if the other benefits have been assigned
-They can also still deduct medical/child care expenses and the earned income
credit
Legal Fees
-Can be deducted if they went to getting tax advice
-You must keep separate records in order to get and it only works if it is more than 2%
of your gross income
Modification:
-there is a difference between a contract and an order
A contract exists before the parties have gotten the order signed by the court.
-K may be modified through consent of both parties
-if it is a provision dealing with the children, then cannot be modified without consent of
the court (because state has interest in the child)
Modification of an order is harder:
 Property settlement: NOT modifiable; already done
o If you don’t like it, you better appeal it right away otherwise its it permanent
o Some courts have allowed when there is an unforeseen bankruptcy to spite other
person
 Child support:
o Current and future support is modifiable
o Past (arrear) support is NOT modifiable
 Alimony:
o Some states hold that if there is no provision granting it, then it isn’t modifiable
(IA) so you need to put a “placeholder” in (nominal amount; $1) to hold it open
for the possibility in the future
o Lump sum—may be modifiable, but need to check the state
 May be tough because don’t want person to get lump sum and blow it all
and come asking for it again; can be tough

Child Custody: Modifiable
o Always modifiable but
 To change sole custody there is a requirement that there has been
1) a substantial change of circumstances
2) and that change of circumstances justifies/warrants a modification
*courts may be reluctant to change it short of a showing that the
custodial parent is unfit
 Visitation: to change this all you have to do is show that it isn’t working
 Joint Custody: show it isn’t working; will be similar to the initial hearing
(never decided it in the first place) and test is in the best interests of the
child
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Test for modification of alimony & child support:
1) substantial change in circumstances (IA requires a 10% change off of the guidelines)
2) and then must convince judge that this change warrants a modification (change
must justify modification)
*can be modified for an increase or a decrease in income
- voluntary: court will look to the motivation in addition to balancing the harm to the
payee and the benefit to the payor
i. if its soley to spite other person, court will refuse
ii. will look to what’s going to happen to the child: states have different
tests on this; some allow as long as its good faith; some never allow;
others in the middle balance whether its good faith with the effect it
wil have in the long run
iii. now if this is solely for spousal support and husband’s income goes
up and wife no unmet needs, then it won’t change; ex will not benefit
from an increase in other’s income now!
iv.
- If needs really change for spousal support, court may change from rehabilitative to
permanent alimony (i.e. wife with mental probs, not getting better)
-
Remarriage: normally alimony ends with remarriage (or death), but other states need
to specifically put this in the order
o Cohabitation: most courts will not hold cohabitation is enough, but might rise to level
if the need for support is no longer necessary
o Court has discretion to decide when it ends with cohabitation. Its unlike
remarriage where it automatically terminates. So need to petition the court
for this
o Might want to place cohabitation clause in the agreement: wording can be
quite tricky because cannot be too specific or too general. Try to draft the
best one possible, but warn client it will not be perfect and advise the of the
loopholes.
-
Child Support:
o Remarriage and step-children: normally aren’t considered the substantial
change to justify the modification; some courts will allow for a variance
based on this, where others will not allow it in as a factor at all because knew
what obligations to first child were.
o New children: may be considered depending on the state
o Emancipation: 18 or if self-supporting and this should be written into the
order
o Death: will terminate the support
-
Custody:
o Difficult to switch sole custody absent a showing that parent was unfit; there is
dislike of shuttling kids around
o Relocation of parents: Some states require permission
 Court will not allow if its solely to spite the other
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Courts will often say that you can move, but can’t take children with you
(once again, don’t like shuttling kids everywhere)
 Other states allow for child to go unless can show that there will be a bed
effect on the child.
o This is for domestic travel; foreign countries it can be impossible
to get children back
Convention on International Child Abduction:
need to find out if country signed on
deals with children under age 16 (not 18 like U.S.)
must be a “wrongful removal or retention” so parents custodial rights are interfered
with by either the taking child or holding onto child too long.
Remedy: child is returned to country of habitual residence.
Exceptions:
o Grave risk of physical or psychological harm
o Violation of human rights or fundamental freedoms
o More than a year since removal and child has settled into new enviro
o Consent by custodial parent
o Child objects and is sufficiently mature to decide

Hague
-
Reopening judgments: courts have a tendency against this because there is a desire/need
for finality. Might happen if fraud is found.
Extrinsic fraud: where unsuccessful party was prevented from fully exhibiting his case, by fraud
or deception practiced on him by his opponent. This is never knowing something is there!
Courts will invalidate it with this.
Intrinsic fraud: might not be enough for the courts. These are misrepresentations or
concealment of assets made in negotiations leading to a voluntary agreement. Often it
concerns the value or existence of assets, and there is a presumption that you can check that
yourself and you should check that yourself.
Enforcement:
-difference between contract and order is present in enforcement too
There is always a K first and then an Order. Some states find the K just merges into the Order.
Merger: K doesn’t have any effect anymore because it has been superceded by the order.
Order enforcement remedies will be available.
Survival of K & Order: Other states find that the K and Order both survive. There are different
remedies for this. Now K can be modified through consent of parties, and Order modified
through the 2 part test (substantial change, and whether its warranted). Enforcement will vary
whether you are going after the K or the Order.
Enforcement on a K:
-specific performance (get judge to order it)
-get a lien
Enforcement of Child Support:
Garnish wages: this is the first one to go for because you can get arrears and prospective
support
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People can still avoid this by switching jobs
Parent locators using social security numbers tries to find them
But still will not work for those people who are self-employed, work on tips,
unreported wages
There is a limit on how much you can take (usually not more than 50%)
Contempt: judges may be hesitant because this is harsh
Civil contempt: purpose just to compel performance
Contains a purge clause (performance will release)
Definite period of time
Criminal contempt: purpose to punish the failure to pay (hold keys to jail cell)
No purge clause
For an indefinite period of time
Constitutional rights attach here
Defenses:
True inability to pay: will need to prove this one
Visitation: will be a defense if child is being kept from dad
Just claiming you don’t have it or buying the kid gifts is not gonna work
here, there is still an order to pay and must do so!
Tax intercept program: go after the tax refund
Requires a showing that you cannot get another way
Problem if person never receives a tax refund.
Suspending licenses: there are many licenses could potentially get at here, such as
professional, fishing, driving)
Gotta find what will hurt the person to make them pay
Not good to remove professional license because that means they cannot work in
order to pay for the child
Denial of passport
Lien on property: will then have to sell the property (takes time and procedure); assumes
that there is property available to sell.
Freeze bank account: executing on bank account; only works if there is money in the bank
and can only get at arrears
Most wanted posters: intended to embarrass
Crime of Nonsupport: can actually throw them in jail on this, but that means not working to
pay; limited to extreme cases of more than $5,000 or over a year; survived
constitutional challenges (commerce clause) it is rarely used
Order to Post a Bond: many bond companies just won’t take this risk
Denial of Federal loans: only hurts if they need the loans
New hire registries/State Child Support Registry:
Child Support Collection Agency: will charge fee
Attorney Fees: may be awarded for the enforcement costs
UIFSA 2 State approach: get order enforced in another state
Enforcement Mechanisms for Property:
*no contempt
-most effective to get lien on property
-injunction not to sell property or a TRO
-specific performance (orders sheriff to go and take)
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*really need to just get these documents signing over the property signed at time of Order.
Don’t trust that they will do it later or you have all these enforcement problems.
Enforcement Mechanisms for Custody and Visitation:
For when custodial parent is interfering with the visitation rights of other parent:
-could contempt the custodial parent (where does kid go?)
-Crime of Custodial Interference: in some jurisdictions
-Self-Help: you cannot trespass, but can get around this by picking kid up at school!
-Tortious Interference with Child Custody: depends; rarely used
*this is a really hard one to enforce because often one person’s word against antoher
*try to prevent by remaining civil
Enforcement
Modification
Termination
Taxation
Bankruptcy
Contracts
Alimony
All remedies
Child Support
All remedies
Modifiable
Remarriage or
death
Deductible
Not discharged
Contract OK
Modifiable
Emancipation or
death of child
Not deductible
Not discharged
Subject to approval
of court
Property
No contempt in
some states
(useless anyways)
Not modifiable
No termination until
paid
Not deductible
Could be discharged
Contract OK
Pre-Marital Agreements / Marital Contracts:
Agreements between prospective spouses made in contemplation of marriage.
Either because they are rich or it’s a second marriage and want to protect children/prior assets.
*cannot be made with current marriages, must be prior to actual marriage
*really want to make sure you cover the bases and include death, divorce and what happens
with alimony/property, etc…
Subject to contractual remedies: fraud, duress, mutual mistake, unconscionablilty.
Premarital agreements are different from business Ks: There is a confidential trust (fiduciary
relationship) between the parties. This trust can be taken advantage of
Different from a separation agreement: good feelings & cooperation v. bad feelings &
adversarial
*prenup you have no idea what will happen in the future (i.e. kids, assets). It is difficult to
predict all of the potential outcomes in the future. Puts these agreements at an increased risk.
Attacking the validity of the agreement:
*will really depend on the jurisdiction: judges take different attitudes to these. Some see it as
an adult decision that you made and so need to stick to it (like business contract). Or a judge
might view it as a confidential relationship that was taken advantage of so need to protect the
person.
1) Disclosure: must disclose all of the assets here.
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a. If full disclosure does not occur than you can attack it as fraud or undue
influence (taking advantage of special relationship)
b. In order to document what was disclosed, should attach a schedule of assets to
the agreement.
2) Representation: really both parties should be represented by counsel, will make a
tighter agreement
a. Need to inform other party that you can only represent one; advise them to get
their own atty. Have you client pay for atty. if can’t afford because it will pay off
in the longrun!
b. States will look to whether other party had opportunity to get counsel and
disregarded it.
3) Fairness: is it unconscionable?
a. This standard is whether it shocks the conscious and would be unfair to enforce.
That’s a pretty high standard.
b. There are 2 times to look at agreement (will depend on state): was it fair when
executed? Or is it unconscionable when its enforced?
i. Prenups can’t predict future, so might have been fair at drafting, but
circumstances changed.
ii. This can really effect the outcome so must look to state law on this
iii. Majority rule considers it at time of drafting.
4) Public Policy: Should it be refused on some grounds of public policy?
a. Traditionally, these were not enforced because saw it as destroying marriage—
no longer the case
b. However, none of the provisions should be against public policy
Uniform Premarital Agreement Act: UPA
-was written to provide states with a model for premarital agreements
-states have drafted their own versions, so you must be careful and look to state law
Unenforceable if:
Not voluntary; or
Unconscionable when executed AND no fair and reasonable disclosure
Didn’t waive right to disclosure
Didn’t have and couldn’t have adequate knowledge of finances
*Spousal support is not enforceable if it will cause the payor to go on welfare
*provisions for Child support will be unenforceable because it’s the state who needs to regulate
that
Iowa provision on this is slightly looser:
-neither spousal support or child support are enforceable
-Unenforceability makes it 1) not voluntary; 2) unconscionable (when executed) OR
failure to fair and reasonably disclose.
*so IA allows it thrown out on the unconscionability alone!
Drafting Agreements:
Stipulation- the petition for divorce has already been filed
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Separation agreement- nothing has been filed yet, a K in case the action for divorce is
begun at some time in the future
Considerations:
Decide ahead of time who will draft the language (if you draft you control but
takes more money and time)
Regular English works better is permissible
There will be two negotiations; an initial one and one over the actual
agreement afterwards
Number and title each paragraph for ease of reference
Make both parties initial every page when it is signed
Structure:
OPENING paragraph
Short cut the husband and wife (hereinafter referred to…)
Explains who the parties are so you know who is making the
agreement (names, address)
SECOND paragraph
Tells us when they were married and
Whether they have kids and if so how many and how old
THIRD paragraph
Tells us what the document is
Custody, maintenance, and support of child is to indicate intention to
have child support
FOURTH paragraph
Indicates that they have been living apart and in some states that
may be a prerequisite
FIFTH paragraph
States the consideration necessary for the K
The consideration is each party giving up the rights they would
otherwise be entitled to
Technically consideration is not necessary but is always there
BODY
Paternity:
Attempt to prove this for: est. child support, inheritance, visitation rights.
-if child is born to married couple during marriage, there is a presumption that the
husband is the father
-SOL in Federal bill is 18 years (because you don’t want to cut off support too soon).
This allows for a paternity suit anytime in the child’s minority.
-burden of proof: preponderance of the evidence (easier burden)
Establishing paternity:
1) agreement: get a settlement agreement; each state has its own form for
acknowledging paternity
Uniform Parentage Act: adopted in 20 states; says you are bound by this
acknowledgment beyond 2 years; so really need to get a blood test to confirm this
so don’t get stuck! Need to check local rules though
2) Blood tests: most common way to determine paternity
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a. Basic blood typing (A, A1, A2, B, O) can be used to rule someone out
b. The more systems that are tested the more that it can be narrowed from a
random person
Probability of Exclusion: ability to test in general to exclude fathers
-same for all people tested
-depends on number of systems tested
Paternity Index: likelihood that this is the father compared to random male in population
-this is not the probability that he IS the father, just vs. a random person
-probability it’s this man and woman could produce this child is divided by the
probability of a random male and this mother producing this child.
-remember this might sound good, but if Index is 99.9% and population is
1,00,000 then there are still potentially 10,000 fathers!
Probability of Paternity: probability this is the father
-Probability of other evidence times the Paternity Index
-If other evidence is 0% then probability if 0% even if paternity index is 99.9%
-must have someone else to compare this to.
*remember this is all odds, like the lottery, it does happen!
Other evidence presented beyond blood tests in a contested case: (but studies show 57% of
males lie under oath and 48% of women lie!)
-testimony that had sex at the relevant time
-expert medical testimony to give relevant time frame
-may try to assert mom slept with others
-resemblance evidence: do they look anything like the purported dad? (very difficult)
*Overall, court will look to BEST INTEREST OF CHILD; this may come at the expense of the real
dad
*Dad who raised kid finds out not his; court will allow the acknowledgment of paternity because
you want the child to have the only dad he’s ever known in his life!
SC has attempted to gain equal treatment of illegitimate children at least for inheritance:
-many statutes into the 1960’s discriminated against illegitimate children
-Trimble v. Gordon: SC struck down statute not allowing for illegitimate
inheritance unless the mom and dad got married. Under intermediate scrutiny, found
this bar too high.
-Lalli v. Lalli: SC upheld statute requiring proof that it was the father to get
inheritance. Need an Order of Affiliation signed by dad during his lifetime; basically a
proof issue.
Unwed Fathers: what rights do they get?
Putative father: is the alleged father of child born out of wedlock
-Treated differently from unwed moms:
o We know definitively who the mom is, but not the dad
o Women are presumed to have “bond” with child due to carrying child for 9
mos.; a father has no bond which could lead to easy flight
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o
Desire to have finality in adoptions and for the process to run as smoothly as
possible.
Laws regarding unwed dads can be challenged on EP and DP grounds:
equal protection between father and mother’s rights
equal protection between married fathers and unwed fathers
due process (procedural right to hearing, notice, etc…)
Stanley v. Illinois: first SC case where unwed dad gets rights
-
unwed dad didn’t get chance to have hearing re: kids after mother dies
Court agreed that he deserved a hearing and to have his day in court on procedural DP
grounds
Rule is biology + relationship = rights
Yes, this may slow down adoptions, but showing cannot disregard a father’s rights
altogether
Reaffirmed in Quilloin v. Walcott:
Putative father with little or no contact with his child did not have a constitutional right to
veto the child’s adoption.
No commitment/relationship with father, state is not required to find anything more that
that the adoption is in best interests of the child
So biology alone won’t be enough here!!
Caban v. Mohammed:
Unwed mother and father had raised kids; then mom wants new husband to adopt them;
putative father tries to assert rights
Court held again that because putative father had demonstrated SUBSTANTIAL interest,
father had constitutionally protected rights that the state could not take away
Found there is a fundamental right to be a parent and raise kids without undue influence
from the state.
Also noted that this might not apply to infants here, which are unique because there would
be no relationship with the father.
Lehr v. Robertson:
-
Mother had been shuttling kid around and father could never find kid
Father even hired private detective
State had the Uniform Parentage Act with the Putative Father Registry and father had
never registered
Father tries to prevent adoption by the step-dad
Raises the 2 EP claims and the 1 DP
Court ruled against him finding: that EP need to find all similarly situated the same and
he had no relationship with child
Biology alone is insufficient to establish rights; must have that relationship
Could have filed with Putative Father Registry: but begs question of who knows of it!?!
This case is still in the books, but can see the problems that could cause.
Michael H. v. Gerald D.:
Case where mom was going between 2 guys so have the husband and then other one on
the side who has the relationship with the child
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Only asserts the DP claim here
Scalia framed issue: No fundamental right of an adulterous unwed father to raise his child!
Court ruled that the husband’s rights are greater than the unmarried fathers (CA also had a
rebuttal presumption that husband is father)
Essentially was deciding that the UNITARY FAMILY WINS because that would satisfy the
best interests of the child.
Advising clients on this issue when not getting married:
Register with Putative Father Registry!
Get a blood test just to make sure! (can blame that on the atty. if its going to cause
problems, but just need to do it)
If you are the father: there are both visitation AND support obligations/requirements
If you are advising the mom: she had a right to get support for the child, but most
prove paternity—get the blood test and get them to sign an acknowledgment
(which can alone be sufficient). But if she’s gonna request support, must
provide that visitation!
Surrogate Mothers:
Rvw: unwed mother has full rights; unwed father only has rights when have the biology
+ relationship, but when paternity proven he is required to pay support!
Artificial Insemination: If the donor is anonymous, he/she has no rights or obligations.
There is the presumption that a child born during marriage is the husband’s child. If father
consented to this insemination then he is the father with full rights. (if husband does
not consent, then he is not the father so won’t be required to support)
Now if the donor is known: then it is better to keep the father around since the court says it
is in the best interest of the child to keep both parents around if possible.
*Get all agreements in writing BEFORE the insemination goes through!
Wife of the father of a baby: what if any rights?
Wife has none! She is not related
Wife may adopt the child upon consent or termination of parental rights of the mother
Wife cannot pay the mother to adopt the child beyond attorney’s fees, agency fees and
in some states the cost of hospitalization and pregnancy
*mom cannot consent to adoption until after birth (depends on state) See Whitehead.
*there will be a waiting period here for the mom to bond with the baby.
*does not matter is the mom is married to someone else; rebuttal presumption that
child is the husband’s so unless the real dad can come forward with showing—husband
has the full rights (See Michael H. case).
Gestational Surrogacy: this is typically used where a married couple wishes to have
children, and the wife is capable of supplying eggs but not capable of carrying a child.
An egg is removed from the woman in a surgical procedure, then fertilized with the
man’s sperm in a lab petri dish. The resulting zygote or embryo is then implanted into
the gestational surrogate, who carries it to term and gives birth to it. Obviously, this
arrangement has the peculiarity that the woman who gives birth to the child is not its
genetic mother. If the gestational mother refuses to give up the child, there is a conflict
between the genetic mother and the birth mother.
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Johnson v. Calvert: the court decided to look to the intent of the parties. She
who intended to procreate the child. Remember this is a CA case and the Constitution
doesn’t require it. However, a state may look at intent also now. Always include as an
argument.
True surrogacy situation:
Anonymous sperm donor: no rights
Anonymous egg donor: no rights
Intended mom and dad will get the rights!
Gestational mom has no rights because she is viewed as just a party to the K
Same sex couples: artificial insemination with gestational mother as one of the couple; egg
donor as other part of the couple!
-case on this that all signed K, but not correct one because signed the usual papers for
the anonymous egg donor where give up rights. Court went for the K!
-some states will actually allow both moms to have legal rights to the child so that one
parent isn’t left out
Issues with alternative reproduction:
Frozen pre-embyos: A.Z. v. B.Z.
-if these is a divorce are they children or property subject to equitable division?
-all courts have held that its not a child, but it is a property thing
-one parent wants and other does not: will not have child because its not the best
interests of the child to bring them into the world, so public policy issue here.
*see the problems here because its not really property! Equitable distribution just doesn’t work
because its not easy to split up embryos
Post-mortem conception: Woodward case
- Court held child is not entitled to inheritance if conceived after the parent dies
because the relationship is just not enough to give them FULL rights
- Now could if they make it VERY clear in an agreement that the father intends for the
child to receive it
- There are limits to this because an estate cannot be held open forever for this
*for social security benefits: will need to go to state law and try to analyze cases on it
Child Abuse and Neglect:
Types of abuse and neglect:
General neglect (most common)
Medical neglect
Physical abuse
Sexual abuse
Psychological abuse
*Neglect and poverty are strongly linked
*Mortality rates are low (accidents, guns, then abuse and neglect kill kids)
Two systems for abuse:
Civil- to protect the child from being hurt again
Criminal- to punish
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*Most states lump abuse and neglect together but neglect is omission (failing to care for the
child) and abuse is commission (hurting the child)
Where do you draw the line for abuse? Can be quite difficult.
- Parents can hit their kids and it not be abuse
- There is no specific rule for how far you have to go for it to cross the line
- Will be if causes serious, physical injury
- Most states will have another requirements there, such as reason for hitting child
*Discipline without serious physical injury is ACCEPTABLE
Can’t hit someone else’s child
*courts are just subjective on this and truly depends on what the state law is as well.
Neglect:
Parents refusing medical treatment, can that qualify as neglect?
Court will order medical treatment against the parent’s wishes only if there is
imminent danger to the child
Case where religion interfered with surgery to help walk—court will not step in
because that’s a quality of life issue and not one of life/death
So refusal of treatment for religious reasons will not be neglect, but Court will step in
if there is that imminent danger
Accepted religions will carry a higher presumption of validity for the refusal of
treatment
Courts cannot discriminate against any religion with this either, so can’t say
one thing is a religion and another is not
Parents will get in trouble for neglect if they don’t allow imminent medial treatment; adults
may refuse treatment, but parent will be held accountable for minor children
You are responsible for your kids and keeping them alive
Sex Abuse:
Very hard to prove; especially with interviewing properly
There is a great deal of room for discretion by the courts here
*state needs to be careful here; once they remove child from home then state is liable for harm
done
*state has no liablility if they know of the abuse through social services but child remains with
parent (DeShaney)
*Gonzales v. Castle Rock: woman protective order against husband for her and kids; kids
missing calls police and no help; calls again and finally when police do something the husband
has murdered the kids; 10th Cir found liability here because of deliberate refusal to aid with
court order; SC has granted cert.
Mandatory reporting systemo
Medical, education, social workers, psychologists, therapists, daycare providers, etc.
o
Will be liability if you don’t report; need to at least investigate and decide whether to
report
o
Good faith immunity if it’s a mistake
Voluntary reportingo
Any one can call in and report
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o
If the report is founded, the state can investigate within the required time limit, report
what they find to the authorities, and decide what to do
Removal of child:
Need clear and convincing evidence that there is immediate danger to the child
 Remove Emergency (sufficient danger to the child and insufficient time to go to
court) then a hearing to review the removal
o IA this hearing is not whether the removal is proper; just whether child should
remain outside the home
Removal by notice and full hearing (non-emergency situations)
Removal ex parte: have a hearing; but parents not present because afraid will run with
child or other danger to child
*these hearings all vary by the state with different procedures
Adjucation Hearing: Was there abuse or not?
 Must meet the state’s statutory definitions of abuse or neglect
 This is not a criminal proceeding; so lacking certain rights
Heresy is permissible
No privileged communications or 5th Amendment protections
If person asserts 5th Am. self-incrimination; judge allowed to draw inference from
that
 Often D.A. is sitting right there, deciding whether to file charges against parent
Finding ≠ automatic removal
Options:
Put parents on a registry
Return child home
Supervised/conditioned return of child
Place the child out with a relative (no $) or in a foster home ($ from govt.)
Appoint a guardian
Terminate parental rights
 Once a child is placed outside the home, the court has to have periodic hearings
and the state has to monitor.
 There is concurrent planning: immediately and permanency planning for future
TERMINATION
Purpose:
Prevent further harm to the child
Free the child up for adoption
Effect:
Parents no longer have any rights or obligations
Normally terminates the rights of any relatives (inheritance gone)
A few states will allow for post-termination visitation
Can’t consent to termination on the condition you get visitation- once rights are terminated
they are terminated
Grounds:
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1) problem is so severe that the danger to the child is not going to correct itself
in any reasonable time
2) it is in the best interests of the child to terminate
Adoption Safe Families Act (ASFA)—
 State has to make reasonable efforts to reunite the family, though the efforts can be
waived under special aggravated circumstances (abandonment, torture, etc.)
 Requires the state to require a petition of termination of parental rights if the child has
been out of the home 15 of the last 20 months.
 May hold off for good cause
 May also shorten if there are extreme emergency cases where need to
immediately terminate parents rights (such as killed other children)
 Don’t want this process dragging on forever or children are harder to
adopt.
*this is Federal legislation that gov. suggested states have if they want child welfare money so
really will vary by state
*could be a lot stricter than this; IA is stricter particularly for small children
What qualifies as reasonable efforts on part of the state to reunite the family?
Parents need to take state up on offers for help, such as psychological counseling;
they shouldn’t refuse
If your client needs help, ask for that right off the bat; can’t try to say they need
help at the termination hearing; that’s too late in IA
But make sure you assert help for your client
Termination under the Indian Child Welfare Act (ICWA):
Heightened standard of effort required beyond reasonable efforts
Doesn’t apply to divorces, this is just for the custody of the children
In custody/adoption there is a preference for Indian families
Rules on voluntary consent to adoption: have to wait 10 days; so just stronger
standards here
*case where do you apply the ASFA or the ICWA and is there a heightened standard? ASFA
won out because went for best interests of the child
ADOPTION: how do you terminate parents rights in adoption setting?
 Baby Jessica situation: tells wrong guy it was his child; now she wants child back; Iowa
rule favors the natural parents rights
 Need to do blood test that when you consent to termination that its actually the father!
 30 day limit after birth to file for the putative father registry; court puts the burden on
the father to register so don’t need to go in search of dad in order for adoption to go
through; will allow even if know dad’s name, but no idea where he is and didn’t register.
 Step-parent adoption: just need consent of the spouse of the adopting and consent of
the divorced parent; can only have one gender of each parent here so can’t have 2
dads!
 same-sex couples: courts really don’t want to touch this and then be
sanctioning that! Court finds for it if its in the best interests of the child
because its better to have 2 supporting parents than one, so akin to the
step-parent adoption situation
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 varies by state here
Equitable adoption: Some states enforce this concept to hold someone to support when
its equitable; here the mom leaves kid with grandparents but never finish paperwork for
adoption; raise child and then grandfather divorces and doesn’t want to support—court
holds him to it!
 Some states reject this concept though…
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Negotiation:
-really necessary in family law; want to keep this out of the court and try to settle things
-less than 10% go to full hearing
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Concessional Bargaining: “if you give me this, I’ll give you this…”
Must look behind the position and try to discern what the true interest is, is there any
way you can satisfy both?
Starting point: do the equitable distribution and should have a range to reflect the
various possibilities could occur in court.
You must argue from your starting position and tell how/why you arrived at that.
Avoid splitting the difference: you will only hurt your client if other side had started way
too high
Remember you don’t HAVE to make concessions—they might be very extreme
o If someone is extreme, need to find a way to bring them in and help see that
court would never do that
Very important that you understand where your client is coming from!!!
o Understand what they will budge on and what’s REALLY important
o Go through scenarios with them, if I got you this, would you give up….?
o Ask them to rank what’s most important and second most important…
o Its not always about money that they are after, there are emotions at play and
sentimental value of things can be priceless.
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