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35 Cards in this Set

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Child Support
Two requirements for a court in the issuing state to have "continuing and exclusive jurisdiction" to modify its previous order?
(1) It must be the controlling order, AND (2) one of the parents or child must still live there

(or the parties can consent to that jurisdiciton)
Child Support - Modification
Three conditions that must be met before a state can modify a child-support order issued in another state?
(1) No one (child or parent) resides in the issuing state;
(2) The person seeking modification is a non-resident of the proposed forum state; AND
(3) Personal Jurisdiction is had over the respondent
Child Support - Modification
(1) What must be shown to modify child-support?
(2) What will the court consider?
(1) A substantial change in circumstances
(2) Main factor to consider is the standard of living the child would have enjoyed if there were no divorce.
Child Support - Modification
What factors will a court consider if the parent paying child-support goes to prison?
(1) Whether the inmate has other assets;
(2) Length of incarceration;
(3) The possibility of work release; and
(4) The reason for the incarceration (ie: using assets for illegal activities instead of paying child-support)
Child Support - Premarital Agreements
Can the right to child support be adversely affected by a premarital agreement?
No! Any agreement is subject to judicial review considering the factors and guidelines that are applicable in the state where they are divorced.
Child Support - Premarital Agreements
Two requirements for a prenup to be valid?
(1) Voluntary (no force, duress, coercion, or over reaching)
(2) It must not be unconscionable (not just "unfair" but so one-sided as to be oppressive)

Other factors: Doesn't encourage divorce and that both parties had a chance/recommendation to talk to an attorney
Premarital Agreements
Who gets them?
Wealthy people
Kids from previous marriage
A person awaiting an inheritance (but this is usually non-marital anyway)
Someone who has previously gone through a nasty divorce
Child Support - College Expenses
(1) Does the court have discretion regarding provisions for educational expenses?
(2) When can a court not award educational expenses?
(3) When does emancipation occur?
(1) A court has full discretion, regardless of the child's age
(2) A court cannot award the education of a child who is EMANCIPATED by an event other than attaining the age of the majority
(3) Emancipation occurs when the child (1) voluntarily leaves the parental roof; (2) attains the age of majority; (3) marries; or (4) enters into the armed forces
Child Support - College Expenses
In determining whether to decrease, modify or terminate educational expenses, a court will consider ... (5 factors)
(1) The financial resources of both parents
(2) The standard of living the child would have enjoyed had the marriage not been dissolved
(3) The financial resources of the child
(4) The child's academic performance
(5) A parents lack of relationship with child (courts split on this factor)
Child Support - College Expenses
What did the court in LeClair v. LeClair say regarding a parent's obligation to pay college expenses?
Divorced parents should not be obligated by a court to pay college expenses for a child when the court could not impose the same obligation on parents who were still married.
Child Support - Trusts
Tell me about trusts...
o A court can set aside a portion of separately held estates in a separate fund or trust for the support, education and general welfare of a minor child when it is necessary to protect and promote the best interest of that child.
Premarital Agreements

What is an absolute must?
The agreement must be in writing!
Child Support - UIFSA

"Choice if Law" - What four things does the law of the issuing state govern?
The law of the issuing state governs the (1) nature, (2) extent, (3) amount, and (4) duration of support payments.

So, if the order is registered in another state, the issuing state's law still governs the nature, extent, amount and duration of the support payments!
Child Support - UIFSA

Modification - how does an issuing state retain continuing and exclusive jurisdiction to modify an order?
A state will have continuing and exclusive jurisdiction to modify its child-support order if it is (1) the controlling order (ie: the mom did not register it with another state when she moved) and (2) if parent or child still lives there.

or, the parties can consent to a different state's jurisdiction
Child Support - UIFSA

Three conditions that must be met before a state can modify a child-support order issued in another state
(1) The person seeking modification is a non-resident in the proposed forum;
(2) No one (parent or child) still resides in the issuing state; and
(3) The proposed forum has personal jurisdiction over the respondent
Child Support - UIFSA

State A issued the order. State B modified the order. Would C have to enforce B's modification?
C has to enforce B's order so long as B had proper jurisdiction to modify A's initial order.
Child Support - UIFSA

What about communication among courts in different states?
UIFSA has provisions allowing for communication between the courts in different states! You would hope that the judges could agree that it would be in everyone's best interest to have all matters heard in one jurisdiction!
Child Custody

How does Illinois view settlement agreements regarding the custody and visitation of children?

Ultimately, what will the courts look to?
Illinois encourages parties in a dissolution action to enter into settlement agreements, however, such agreements are NOT binding on the court.

Ultimately, the court will consider what is in the best interest of the children.
Child Custody

Eight factors courts will look to in determining the best interests of a child with regards to a custody proceeding?
(1) The wishes of a the parents;
(2) The wishes of the child (the older the child, the greater the weight given to his opinion);
(3) The interaction of the child with the parents (won't give any weight to an affair if it did/does not affect the parent/child relationship);
(4) The child's adjustment to home, school, and community;
(5) The mental and physical health of all involved;
(6) Any physical violence or threat thereof;
(7) Any history of ongoing abuse; and
(8) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
Child Custody

What is presumed with regards to parental involvement in the child's life?
Maximum involvement of BOTH parents!
Child Custody

Tell me about "joint custody" in Illinois... Can a court order it on its own motion? How do those orders fair when appealed?
There is no presumption in favor of or against joint custody. A court, upon its own motion, can impose joint custody against the wishes of a parent ... however, such orders have been overwhelmingly reversed.
Child Custody

Removal - who has the burden of proving that a move is in the best interests of a child?

What SIX factors will the court consider in deciding a removal controversy?
The parent seeking the move has the burden of proof

(1) The likelihood that the proposed move would enhance the general quality of life for both the custodial parent and the child (consider school, community, etc);
(2) Custodial parent's motive for the move;
(3) Resisting parent's motives (doesn't want to lose his relationship with his kid);
(4) Affect on visitation rights of non-custodial (summer months); AND
(5) Whether a realistic and reasonable visitation schedule could be reached if the move were allowed (financing?)
Child Custody - Grandparents

What do you first have to determine?

How does a parent argue against grandparent's visitation rights?
Whether the "Grandparent Visitation Act" is constitutional.

Argue that there is a "right to privacy" implicit in the Constitution; which means that parents can raise their children in any way they see fit without government intrusion unless the parental decisions would jeopardize the health or safety of the child.
Child Custody - Grandparents

How does a grandparent fight for their visitation rights with their grandchild?
File a claim under the "best interests of the child" criterion

(1) Whether a current grandparent/grandchild relationship exists;
(2) Its nature and length;
(3) What emotional benefit or detriment might result from restricting / continuing / initiating visitation rights
Child Custody - Joint Custody

If the agreement for joint custody is for more than two years, what must a party wanting to modify the agreement prove by "clear and convincing evidence?"
That a change has occurred in the circumstances of the child or parent, and that the modification is necessary to serve the best interest of the child.

So, just have to prove that the modification is in the best interest of the child
Child Custody - Name Change

What is the determining factor regarding a name change?
There isn't really a set law on this, so it comes down to what is in the best interest of the child.

Party seeking the name change has the burden of proof ... factors:
(1) The wishes of the parents and child;
(2) The age and maturity of the child and his reasons for the change;
(3) The relationship between the child and the parent and other persons in his life;
(4) How the child has adjusted to home, school and community (is the child uncomfortable with the fact that his name is different than his step-father and step-brother?)
Child Custody - Non Parents

When does a non-parent have standing to seek custody? What will a court look consider?
Only when the child is not in the physical custody of one of the parents.
- Physical custody means more than mere physical possession ... it means the right to care, physical possession and supervision of a child
- For a parent not to have physical custody of child, that parent must have voluntarily and indefinitely relinquished control of the child.
- So, a parent who is fit, has regularly exercised visitation, and has show interest in the child, then physical custody would appropriately be deemed to have been transferred without requiring a full best interest hearing.
Child Custody - Non Parents

What must a natural parent do to relinquish control of a child?
The natural parents must have indefinitely relinquished control of the child.
Child Custody - Non Parents

Superior right?
The right of a natural parent in the care, custody and control of a minor is superior to the claim of a third person.
- However, the presumption is not absolute and serves only as one of the several factors used in determining where the best interests of the child lie.
- A natural parent need not be found "unfit" nor determined to have forfeited his or her custodial rights before a third person could be awarded custody. Just look at the best interests of the child.
Child Custody - Stepparents

A stepparent only has standing to seek custody if the following SIX conditions are met:
(1) The child is at least 12 years old;
(2) The custodial parent and the stepparent were married for at least 5 years during which the child lived with them;
(3) The custodial parent is dead or disabled and cannot perform the duties of a parent;
(4) The stepparent provided for the care, control and welfare of the child prior to the initiation of the custody proceedings;
(5) The wishes to live with the stepparent;
(6) It is alleged to be in the best interests and welfare of the child to live with the stepparent
UCCJA

Prohibits a state from modifying the custody decree of another state unless ...
That state no longer has a basis for jurisdiction or has declined to assume jurisdiction to modify its decree.
UCCJA

Jurisdiction primarily lies with the "home state" of the children. What is "home state"?
The state where the child lives for at least 6 months immediately before the commencement of the proceedings ... A period of temporary temporary absence is part of 6 months.
UCCJA

Under the UCCJA, a custody determination also includes a question of visitation. A court that entered the visitation order loses jurisdiction if all of the parties have moved from the state. Another state can then modify that order if it has jurisdiction. A state has jurisdiction if:
(1) It is the homes state at the time when the proceedings are commends … OR
(2) It is in the best interests of the child that a state assume jurisdiction because the child and at least one of its parents have a significant connection with the state and there is substantial evidence within the state relating to the child’s future care … OR
(3) The child is present in the state and has been abandoned or there is an emergency requiring the state to protect the child … OR
(4) No other state would have jurisdiction
UCCJA

Personal Jurisdiction?
There is NO requirement for personal jurisdiction over a party to make a child custody determination.
- However, notice and opportunity to be heard are required before any child-custody determination is made. Parents that have not terminated their parental rights must be afforded the opportunity to be heard. So, this is a defense against an order that has been registered!
-- Notice and access can be temporarily circumvented if the State claiming jurisdiction assumed Temporary Emergency Jurisdiction (ie: protect the child from abuse)
--- TEJ is only invoked when the child is present in the State exercising jurisdiction
UCCJA

Giving Up Exclusive Jurisdiction - a judge will consider eight factors in determining the convenience of a forum:
(1) Whether domestic violence has occurred and is likely to continue in the future and which State could best protect the parties and the child (Most important!);
(2) The length of time the child has resided outside of the State;
(3) The distance between the court in this State and the court in the State that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which State should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each State to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each State with the facts and issues in the pending litigation