Family Law

Front 1

FAMILY LAW

(Getting Married)

Back 1

The right to marry is a fundamental right protected by principles of due process,a nd a state may not unreasonably interfere with, or restrict, a person's right to marry.

Front 2

Is there a cause of action for a breach of contract with respect to marriage?

Back 2

No, it has been abolished

Front 3

What is the majority rule for a valid marriage?

Back 3

A marriage license and ceremony are necessary for a valid marriage.

Front 4

What is the minority rule for a valid marriage?

Back 4

Parties may enter into a valid marriage either through licensing of either party or through common law marriage.

Front 5

Will an irregularity or an omission in a marriage license effect its validity?

Back 5

An irregularity or an omission in a licensing process will generally not render the marriage invalid if the marriage is consummated by the parties with the full belief of either party that there has been a valid marriage.

Front 6

What may make a marriage voidable?

Back 6

Lack of serious intent to enter a marriage relationship, i.e., marriage in jest, or factors affecting the ability to consent knowingly and voluntarily, such as intoxication, fraud, and duress may make a marriage voidable.

Front 7

Can a donor recover a gift that was made in contemplation of marriage?

Back 7

Yes. When a gift is made "in consideration of marriage", the donor may be able to recover the gift if the marraige does not take place. It must be given in a way that infers a condition subsequent.

Front 8

When can the gift be recovered by the donor?

Back 8

If the marriage does not take place due to mutual agreement or the fault of the donee, the donor will be able to compel its return. (i.e. engagement ring)

Front 9

(Limitations/Impediments to Marriage)

Back 9

There are various impediments to a valid marriage. If the parties enter into a marriage notwithstanding these impediments, the marriage will be invalid (and an annulment may be obtained).

Front 10

What are some of the common impediments?

Back 10

-same sex marriages;
-age; today, by statute, states generally require parties to a marriage to be 18 years of age or older. However, parties under 18 may in some states obtain a marriage license with parental approval and/or court approval.
-Consanguinity; a marriage license generally will not be issued for marriages between blood relatives who are ancestor and descendant, brother and sister, uncle and niece, or aunt and nephew
-mental incapacity; if a person can understand the nature of the marriage contract, he or she may be able to enter into a marriage;
-physical incapacity; and
-a prior marriage of one party still in force. A bigamous marriage is null and void w/o a decree of divorce or other legal process

Front 11

(Common Law Marriage and other Curative Doctrines)

Back 11

In a minority of states, a marriage may be entered into, w/o satisfying the licensing requirements and w/o a ceremony, through the doctrine of common law marriage.

Front 12

Generally, when will a common law marriage exist?

Back 12

A common law marriage will exist when the parties:
-intend to enter into a "husband and wife" relationship
-cohabit with each other;
-represent or hold themselves out in the community to be "husband and wife"; and
-have legal capacity to enter into a marital relationship.

Front 13

Will a marriage that is valid according to the laws of the state in which it is contracted be recognized in every other jurisdiction?

Back 13

Generally yes unless the marriage violates the public policy of the forum state. (i.e. a polygamous or incestuous marriage)

Front 14

What if the marriage is valid as a common law maarriage?

Back 14

Even those states which do not recognize common loaw marriage will recognize a common law marriage if the parties satisfied the common law marriage requirements of another state.

Front 15

PREMARITAL CONTRACTS

(Generally)

Back 15

Premarital (or antenuptial) agreements are contracts made by the parties prior to marriage.

Front 16

What are antenuptual agreements?

Back 16

Antenuptual agreements are contracts and must meet all of the parties requirements for valid contracts, although generally there need be no independent consideration outside the mutual agreement to marry.

Front 17

Is a writing required in an antenuptual agreement?

Back 17

Yes, most states require an antenuptual agreement to be in writing and signed by the party to be charged. (Statue of Frauds)

Front 18

Under what circumstances will an antenuptual agreement be enforced?

Back 18

1) Must satisfy regular contract principles (e.g., meeting of the minds, no fraud or duress)
2)There has been full financial dislosure of income and assets between the parties and the parties acted in good faith;
3)the agreement was fair and reasonable whem made;
4)enforecement of the agreement will not result in a grave injustice; and
5)the terms of the agreement do not violate a statute or public policy.

Front 19

BEING MARRIED

(Property Rights)


What are a married woman's property rights modernly?

Back 19

Under modern statutes, modeled on the Married Women's Property Act, a married woman retains her rights to her separate property held before or acquired after her marriage. She has the power to contract with her husband or with third parties, to grant or receive conveyances of real or personal property, and to sue and be sued in her own right.

Front 20

At common law, what title does a husband and wife get if conveyed jointly?

Back 20

Tenancy by the entirety. Many states have abolished this and now it is presumed a joint tenancy with rights of survivorship

Front 21

In a state that recognizes tenancy by the entirety, how is the ownership recognized upon the termination of the marriage?

Back 21

It is converted into a tenancy in common by a judgment terminating a marriage, unless the court orders otherwise through an order of equitable distribution.

Front 22

Are transfers of real and personal property between husband and wife valid during marriage?

Back 22

Yes

Front 23

(Contract Rights & Obligations)

Back 23

Married persons may contract with each other, although a court may give a contract between spouses particular scrutiny because of their special relationship.

Front 24

What types of contracts are deemed valid between husband and wife during the marriage?

Back 24

Contracts on business matters are generally enforceable, particularly where the parties in fact work together in some form of partnership

Front 25

What types of contracts are not deemed valid between husband and wife during the marriage?

Back 25

Contracts involving domestic services are generally invalid because such services are deemed implicit in the marriage relationship.

Front 26

Is an agency relationship established during the marriage?

Back 26

No. One spouse is not empowerd to bind the other to a contract such as a lease simply because they are married.

Front 27

(Support Obligations)

Back 27

Generally, it is appropriate first to ascertain which of the spouses or parents is able to provide support, and then place the obligation on that person w/o regard to gender-based distinctions.

Front 28

What are both spouses generally liable for in theri support obligations?

Back 28

The duty of each spouse is to support his or her family, and both spouses are generally liable for:
-medical expenses;
-housing epxenses;
-food and clothing; and
-other necessary articles used for suppport of the family.

Front 29

What remedies are awarded due to nonsupport?

Back 29

Statutes generally provide civil remedies and criminal penalties for nonsupport.

Front 30

What is the obligation to provide support supported by? Covnersely, when do the obligations cease?

Back 30

The existence of a valid marriage relationship is a condition precedent to the obligation to provide suppore for a spouse. The support obligation also ceases upon the death of either spouse.

Front 31

What happens upon a separate support decree?

Back 31

A spouse's legal obligation is set by the decree and the spouse would no longer be liable to third persons for necessaries furnished to the other spouse.

Front 32

In what two ways is a spouse's liability for obligations incurred by the other spouse?

Back 32

1) Where the debtor-spouse has express or apparent authority to pledge the other's credit; and
2)where the non-needy spouse neglects, fails, or refuses to furnish the needy spouse with necessaries which are then supplied to that spouse nongratuitously by a third person.

Front 33

(Rights Upon Death)

What does a surviving spouse receive under statute?

Back 33

State statute provides that a surviving spouse inherits a portion of the probate estate of a deceased spouse

-If no issue, spouse receives all
-If issue, 1/2 to spouse and 1/2 to issue.

Front 34

If a will is provided, can the surviving spouse waive the provision in the will?

Back 34

Yes, within a specified period of time after filing of the will of a deceased spouse. In lieu of those provisions, a set statutory amount or percentage of the estate may be taken.

Front 35

(Family Privacy and Evidentiary Privleges)

Back 35

Generally, a husband and wife are not competent to testify as to any confidential communications made by one to the other during the marriage, except as otherwise provided by statute.

Front 36

(Remedies for Tortious Inteference With the Marital Relationship)

Back 36

Most courts have abolished the common law tort of alienation of affections against a third party who causes separation from the plaintiff's spouse resulting in loss of consortium, and the common law tort of criminal conversation against a third party who has sexual intercourse with the plaintiff's spouse.

Front 37

SEPARATION, DIVORCE, DISSOLUTION, AND ANNULMENT

Back 37

An action for legal separation serves to suspend the marital relationship at least temporarily and to provide a mechanism by which court orders for suppport and child custody may be entered. In some states, the action is referred to as one for separate support.

Front 38

What are grounds for legal separation?

Back 38

Same as divorce=good cause

Front 39

What are defenses to an action for legal separation?

Back 39

condonation, forgiveness by the injured spouse of the marital wrong.

Front 40

(Divorce)

What are the fault grounds for divorce?

Back 40

DANCII

-desertion
-adultery
-nonsupport
-cruelty
-impotence
-intoxication

Front 41

What are the no-fault grounds for divorce?

Back 41

-irretrievable breakdown;
-separation for a statutory period of time; and
-serious mental disorder

Front 42

What are some of the affirmative defenses that can be used to defeat a plaintiff's divorce action?

Back 42

-innocent and injured spouse; proof that P is not an innocent and injured spouse
-collusion: an agreement between the spouses where one of them wrongfully asserts that the other has committed a breach of marital duty in order to obtain a divorce;
-condonation; one spouse forgives marital wrong of another spouse by words or conduct (cohabitation is continued)
-connivance: conduct by P facilitating wrong of D
-recrimination: proof that P commited a marital wrong. Most states, this has been abolished

Front 43

(Annulment)

Back 43

If the validity of marriage is doubted, either party may institute an action to annul the marriage.

Front 44

When can a marriage be annulled?

Back 44

When the marriage is void or voidable.

Front 45

What is marriage that is void?

Back 45

Has no legal effect. A person can remarry without fear of a bigamy charge. A void marriage may te attacked by any person in any proceeding and may even be attacked after the death of either party to the purported marriage.

Front 46

What makes a marriage void?

Back 46

-consanguinity
-bigamy
-mental incapacity
-lack of intent to consent

Front 47

What are the grounds for a voidable marriage?

Back 47

-nonage
-Impotence
-Intoxication
-Fraud, duress, or coercion

Front 48

(Jurisdiction & Recognition of Decrees)

Back 48

Subject matter jurisdiction is generally expressed as jurisdiction over the res of the marriage, which is conferred on any state in which one of the spouses is domiciled, whether or not the parties lived there as a couple.

Front 49

What is required for a divorce court to exercise jurisdiction over the divorce?

Back 49

The US Constitution requires domicile of one of the parties for a state court to exercise divorce jurisdiction

Front 50

Are there any additional requirements before a court will impose jurisdiction over a divorce proceeding?

Back 50

Some states impose a requirement that one of the parties must have resided in the state for a specified period of time prior to the filing of the divorce action.

Front 51

Is personal jurisdiction over the defendant necessary?

Back 51

A divorce court that has in rem jurisdiction over the marriage through the domicile of one spouse but has no personal jurisdiction over the absent spouse can only grant a divorce and cannot affect the absent spouse's economic interests.

Front 52

What is the benefit of a long-arm statute?

Back 52

A long-arm statute may be sufficient to allow a court to enter an order in personam against a non-resident defendant spouse.

Front 53

(Preliminary, Interlocutory and Final Orders)

Back 53

Generally, no judgment may be entered by default or on the pleadings in a marital action. The moving party must generally testify as to the grounds for dissolution of the marriage.

Front 54

What is the court capable of doing which a marriage action is pending?

Back 54

The court has general equity powers to issue injunctions or other orders necessary to protect the parties' interests.

Front 55

(Effects of Legal Separation Decree)

Back 55

A decree of legal separation does not terminate the marriage; hence, niether party is free to marry another.

Front 56

What effect is there on debts?

Back 56

As long as a spouse complies with the terms of the decree, he or she is not liable to third persons for the debts of the other spouse.

Front 57

(Divorce Decree)

Back 57

A divore decree (and any temporary orders in connection therewith) may include such matters as the following:

-restraining either party from interfering with the personal liberty of the other;
-requiring one party to vacate the marital home and to remain away from home;
-awarding custody and visitation regarding minor children;
-awarding a spouse support, based on need and financial ability (similar to an award of alimony);
-awarding child support to be paid by the noncustodial parent.

Front 58

In addition to terminating the marital relationship and related legal effects, the divorce decree may determine the respective rights of the parties with regard to:

Back 58

-division of property;
-alimony; and
-child support, custody, and visitation.

Front 59

With respect to the appointment of property by will, what happens upon divorce?

Back 59

Unless a will expressly provides otherwise, a divorce or annulment revokes any disposition or appointment of property made by a will to a former spouse and any provision naming the former spouse as executor or trustee.

Front 60

(Effects of Annulment)
What are the effects on children born to an anulled marriage?

Back 60

-Children born of an anulled marriage may be considered illegitimate. (By statute, if children are born to parties whose marriage is later annulled may be considered as legitimate as to both parents)

Front 61

Does the court have the same power under anulment to make orders relating to the care, custody, and maintenance of minor children of the parties as in the case of divorce?

Back 61

Yes.

Front 62

Can property and alimony divsions be made under an annulment?

Back 62

Yes (depending upon the state)

Front 63

(Divison of Property)

Back 63

-CP states provide for equal (or sometimes equitable) division of community, or marital property at the time of divorce.
-Non CP states reach a similar result through the theory of equitable distribution of property at divorce.

Front 64

How is property classifed under an equitable property statute?

Back 64

As marital or separate (or marital and nonmarital) and exempt separate (or nonmarital) property from equitable distribution.

Front 65

Under equitable propety statutes, what is marital property?

Back 65

*Property acquired either by husband and wife, individually or jointly, during the marriage except:
-property acquired prior to marriage or property acquired in exchange for property acquired prior to marriage, except for the increase in value of separate property during the marriage (which is marital property);
-property excluded by valid agreement of the parties;
-property acquired by gift (except between spouses), bequest, or inheritance, or
-property acquired after the final separation of the parties (or in some states, after the commencement of the divorce action).

Front 66

Do states allow vested and nonvested pension and retirement benefits to be equitably divided?

Back 66

Yes. These would include
-deferred compensation agreements
-profit sharing benefits
-miltary retirement benefits (to the extent allowed by federal law)

Front 67

Is a professional degree or license a property interest?

Back 67

Most states have held that a professional degree or license is not a property interest subject to equitable distribution. Even if a degree is not considered divisible marital property, however, it may be considered in an alimony award since it reflects the professional's future earning capacity.

Front 68

Is a business developed by one of the parties considered a property interest?

Back 68

Yes, including the goodwill of the business.

Front 69

Is property owned by a party during the marriage, but fraudulently transferred in contemplation of divorce be included as a marital asset?

Back 69

Yes.

Front 70

Is a future interest in property a current property interest subject to equitable distribution?

Back 70

Yes, but an expected inheritance from a paren where the parent is still alive at divorce is not subject to distribution.

Front 71

How should property be divided?

Back 71

In a just and equitable manner taking into consideration:
-the length of the marriage
-any prior marriage of either party;
-the age, health, station, amount and sources of income, vocational skills, emplyability, estate, liabilities and needs of each of the parties;
-the contribtuion by one party to the education, training, or incrased earning power of the other party;
-the opportunities of each party for future acquisitions of capital and income;
-the sources of income of both parties
-the contribution of dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker;
-the standard of living of the parties established during the marriage;
-the economic circumstances of each party, including the tax ramifications at the time the division of property is to become effective;
-whether the party will be the custodian of any dependent minor children.

Front 72

Is marital misconduct relevant in dividing property?

Back 72

No. Although in some states, fault may be considered, particularly where the fault is extreme.

Front 73

(Maintenance or Alimony)

Back 73

Alimony, also referred to as maintenance or spousal support, may also be awarded to one of the spouses as part of a divorce decree.

Front 74

Under the Uniform Marriage and Divorce Act, when can an order for alimony be made?

Back 74

the spouse seeking alimony:
1)lacks sufficient property to provide for his or her reasonable needs; and
2) is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Front 75

What does a periodic alimony order require?

Back 75

A certain amount of money to be paid at set intervals, and the obligation will generally continue until the recipient dies, remarries, or the court modifies the order.

Front 76

What does a lump-sum alimony order require?

Back 76

The court may make an award for lump-sum alimony (distinguished from normal alimony) in that it is for a fixed amount, rather than a periodic obligation with no aggregate limitations.

Front 77

What does rehabilitative alimony require?

Back 77

Rehabilitative alimony requires that a spouse is not able to be self supporting for a specific time. This alimony is for a limited time.

Front 78

Under the UMDA, the following considerations should be considered in awarding alimony:

Back 78

-the financial resources of the party seeking maintenance;
-the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;
-the standard of living established during the marriage;
-the duration of the marraige;
-the age and the physical emotional condition of the spouse seeking maintenance; and
-the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

Front 79

(Child Support)

Back 79

A parent has an absolute duty to support his or her minor children.

Front 80

(Modification of Maintenance and Child Support)

Back 80

An award of alimony (except for lump-sum alimony) may be modified by the court on a showing of a change in circumstances of either party of a substantial and continuing nature.

Front 81

Will death of the payor spouse terminate the obligation of alimony?

Back 81

Yes, unless the court has required the alimony to be an obligation of the deceased spouse's estate.

Front 82

Will remarriage of the recipient terminate the alimony obligation?

Back 82

In some states, it terminates automatically. In other states, the alimony must be judicially modified or terminated.

Front 83

Will cohabitation of the recipient spouse with someone not a member of the family terminate the alimony obligation?

Back 83

It may constitute a change in the circumstances warranting modification where there is evidence that the living arrangement has altered the financial needs of the recipient spouse

Front 84

Can the court modify an existing order for child support?

Back 84

Yes, pursuant to its continuing jurisdiction over the matter of support and custody, if the proponent of the change successfully establishes that there has been a material change in the needs of the child or the ability of the parents to pay.

Front 85

When is a parent's duty of support presumed to end?

Back 85

Generally, at the child's majority. However, discretion is given in some jurisdictions with respect to
-the child finishing high school or attending college

Front 86

What must another state do with respect to another state's ruling regarding alimony?

Back 86

A state must give full faith and credit to a final alimony or spousal support order of another state.

Front 87

What does the Uniform Reciprocal Enforcement of Support Act (URESA) provide?

Back 87

URESA provides a method by which any duty of support ordered to be fulfilled by any court order may be enforced in a jurisdiction other than the jusrisdiction in which the order originated.

Front 88

What is the Uniform Interstate Family Support Act (UIFSA) of 1992 designed to do?

Back 88

It is designed to replace URESA if adopted by a particular state. One significant provision is that UIFSA creats expanded "long-arm" jurisdiction in an attempt to consolidate all proceedings in one state, the "home" state of the supported family. It was approved by the Commissioners on Uniform State Laws.

Front 89

(Enforcement of Awards)

Back 89

The court can require that either spouse provide security for payment of alimony, or can permit attachment or sequestration of the property of the obligor spouse.
-In addition, an alimony order may also be enforced by an income witholding order directing the employer of the obligor to withold a portion of the earnings of the obligor and to pay them over to a person designated by the court.

Front 90

What punishment is given for failure to pay?

Back 90

-Punishment through civil proceedings
-A judgment of civil contempt may result in fines or incarceration against the obligated party.
-Wilful failure to comply with an alimony order may lead to prosecution for nonsupport under a state criminal law.

Front 91

CHILD CUSTODY

(Standards for Decision)

Back 91

In any dispute as to the custody of minor children involving a parent and a nonparent, there is a presumption that it is in the best interests of the child to be in the custody of one of the parents.

Front 92

(Decision Between Either parent)

Back 92

Custody is awarded on a sex-neutral basis today.

-In custody determinations between father and mother, regard is had to the best interests and welfare of the child and the fitness of the parent.

Front 93

Factors in determining the best interest of the child:

Back 93

Under Sect 402 of the UMDA, the factors that are considered include:
-the wishes of the child's parent or parents as to his custody
-the wishes of the child as to his custodian;
-the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest;
-the childs adjustment to his home, school, and community; and
-the mental and physical health of all indidviduals involved.

* A court may attach reasonable conditions on the custodial visitation parties to ensure that the child's best interests and welfare are protected.

Front 94

(Visitation)

Back 94

The noncustodial parent will generally be granted reasonable visitation rights, unless the court finds that visitation is detrimental to the best interets of the child.

Front 95

Will a court grant visitation rights to grandparents, stepparents or others?

Back 95

Yes, provided they have established a substantial relationship with the child ("equitable parents"),if such an order is in the best interests of the child.

Front 96

(Joint Custody)

Back 96

Shared or joing physical custody means that the child will reside for set periods of time with each of the parents.

-In some states there is a preference in favor of shared or joint legal custody.

Front 97

(Enforcement)

Back 97

Although the disobedience of a court order for visitaiton by a parent will generally not automatically disqualify that parent from continuing to have custody, later it may constitute civil contempt, and a part found in contempt may be fined or incarcerated until he or she complies with the order.

Front 98

(Procedural Issues)

What court has th power to make decisions regarding custody and visitation?

Back 98

Under the Uniform Child Custody Jurisdiction Act (UCCJA), a state has jurisdiction to decide initial matters regarding custody or visitation (as well as modification) generally when:
-The state is the "home state" of the child at the time of the commencement of the custody proceeding
-It is in the best interest of the child that the state assume jurisdiction because the child and at least one of the parents have a significant connection to the state
-The child is physically present in the state, has been abandoned or is in need of protection; or
-no other state would have jurisdiction under the above standards, or another state has declined to exercise jurisdiction.
-

Front 99

What are some of the additional measures the court may use to help determine what is in the best interests of the child?

Back 99

-The judge may interview the child in chambers to determine the child's wishes
-Some states allow the trial judge to appoint legal counsel to represent the child in contested custody cases in order to advocate for the child
-A court may reconsider an earlier order and modify it if there is a material and substantial change in circumstances

Front 100

When is a custody order terminated?

Back 100

-Upon the death of the custodial parent. The noncustodial parent is often awarded custodial rights
-When a child attains the age of marjority or otherwise becomes emancipated.

Front 101

RIGHTS OF UNMARRIED COHABITANTS

Back 101

Generally:
Some states have followed the principle of Marvin v. Marvin-recognizing express and implied contracts between cohabitating persons as long as there is consideration to support the contract other than furnishing of sexual services.

Front 102

In addition to contract rights, what else do some states use to protect the rights of unmarried cohabitants?

Back 102

Some states will use equitable doctrines such as the imposition of a constructive or resulting trst to prevent fraud or undue enrichment in an appropriate case.

Front 103

(Unmarried Parents and Their Children)

Back 103

Where a judicially enforeceable right to support is created in favor of legitmate children, the Equal Protection Clause of the Fourteenth Amendment mandates that such support must also be available to illegitmate children.

Front 104

How are illegitimate children handled with respect to inheritances?

Back 104

In some states, they are given the same rights to inherit from the intestate estate of the fatheras in the case of a legitimate child, if the decdent's parternity of the illegitimate child is shown.

Front 105

What is the presumption of the legitimacy of a chlid born in wedlock?

Back 105

The presumption is that the child is legtimate. It may not be rebutted except on facts which prove by clear and convincing evidence that the mother's husband was not the father.

-In most states, a child whose parents have married each other is deemed legitimate, regardless of whether the birth occurred before or during the marriage.

Front 106

Who may bring a proceeding to establish paternity?

(Establishing Paternity)

Back 106

Proceedings to establish paternity of a child born out of wedlock may be brought by the mother or a state social service ageny, acting on behalf of the mother. In some states, the child, as well as the natural father of the child born out of wedlock, may also be authorized to file a paternity action.

Front 107

What hast the SCT held with respect to establishing paternity?

Back 107

Any limitation on the right of illegitimate children to obtain support must be substantially related to the state's interest in avoiding litigation of stale or fradulent claims.

Front 108

What is the majority law?

Back 108

Most states and federal child support legislation now allow a paternity action to be brought at any time prior to the chld's reaching the age of 18.

Front 109

What evidence can be used to establish paternity?

Back 109

Under the Uniform Parantage Act, Section 12:
-Evidence that there was sexual intercourse between the mother and the defendant at or near the time of conception and that a child was born as a result;
-the opinion of an expert "concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy"
-blood test results;
-medical evidence regarding the defendant's paternity based upon tests performed by experts; and
-any other relevant evidence.

Front 110

What is the standard for finding paternity?

Back 110

Many states permit a finding of paternity to be made by the preponderance of the evidence; while some require standard of "clear and convincing evidence".

-Where a married woman is seeking to prove that someone other than her husband is the father of her child, a higher standard of proof must be met b/c of the presumption of legitimacy.

=The father may voluntarily legitimize the child in various ways. Most states permit the establishment of paternity by the filing of an acknowledgment of paternity executed by both parents and filed with a court or other office.

Front 111

PARENT, CHILD AND STATE

(Legal Disabilities of Childhood)

Back 111

-child cannot marry until age 18 unless parent or court consents
-under common law, a contract entered into by a minor was in general voidable at the option of the minor
-Contracts for necessaries may not be avoided by the minor, but the minor is liable for the reasonable value fo the necessaries, rather than contract price
-Minor may be required to return consideration that was transferred to her possession
-A minor has until the time after reaching the age of majority (generally 18) to disaffirm the contract. Failure to dissafirm the contract during the time period may constitute a ratification of the contract.

Front 112

Duty To Support

Back 112

Generally, a parent has a duty to support a child until that child reaches majority. However, some states require a parent to continue to support a child beyond majority where the child is incapable of self-support by reason of mental and physical disability.

Front 113

Termination of Support

Back 113

Child support can be terminated when parent-child relationship is terminated (i.e. through adoption)

-A child may voluntarily leave the custodial parents home, or willfully fails to abide by the reasonable rules of the custodial parent. In such a case, the child may be held to have forefeited the right to child support.

Front 114

(Tort Suits Within Families)

Between Spouses

Back 114

The majority of states have abolished intesrspousal immunity. Spouse can be held liable for spousal abuse

Front 115

Is a child generally liable for his torts?

Back 115

Yes, a child is liable for negligence where he has failed to exercise the degree of care expected of the ordinary child of comparable age, knowledge and experience.

Front 116

May a parent sue on a child's behalf due to injury to the child as a result of another child's negligence?

Back 116

Yes, a parent may sue for loss of the services of the child, loss of consortium, medical expenses paid by the parent, and related matters.

Front 117

(Loss of Consortium and Injury to Spouse)

Back 117

A spouse may recover for medical and other expenses which he or she is required to pay as a result of a tort committed against the other spouse.

-Medical expenses to be incurred after trial, loss of earning capacity, and loss of consortium are elements of the spouse's tort recovery.

Front 118

(Parents Right to Raise Child and Limits)

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Generally, the parents of a child are entitled to the custody of the child and are entitled to deetermine the education, religion, medical care, and other customary matters regarding the upbringing of the child. These are fundamental due process rights of parenthood

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States interest with respect the well-being of the child

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A state's interest may be sufficiently strong to override the parental prerogative.

-A state may remove a child from the custody of a parent where necessary to protect the child from harm or neglect.

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(Custodial Suits Between Parents and Third Parties)

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Involuntary termination of parental rights must be based upon a finding of parental unfitness proved by clear and convincing evidence.

-However, temporary removal of the child from the parental custody may be allowed upon a finding by a preponderance of the evidence that the child's welfare so requires.

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Termination of Parental Rights by Court

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States generally allow a court to terminate permanently all parental rights to a child if it would be in the best interests of the child and if the court finds at least one of the following:
-the child has been ABANDONED in that the parent has failed to maintain the resonable degree of interest, concern or responsiblity for the child's welfare for a substantial period of time; or
-the child has been denied the care, guidance or control necessary for his or her physical, educational, moral or emotional well-being (NEGLECT); or
-there is NO ONGOING PARENT CHILD RELATIONSHIP and to allow further time for the establishment or restablishment of the relationship would be detrimental to the best interests of the child

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Voluntary Relinquishment of Parental Rights

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Parental rights may also be lost by voluntary relinquishment of parental rights by the parents (consent of the parents). In this case of unmarried parents, the consent of the father is required (in addition the consent of the mother) as a matter of equal protection where the father has an established parent-child relationship with the child.

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ADOPTION

Generally

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Adoption is the legal procedure by which the status of parent and child is conferred upon persons who are not naturally so related.

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Where a child has living parents:

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Ther rights of the living parents must be terminated voluntarily or involuntarily, prior to adoption.

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Can the consent of a parent be revoked?

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Yes, if there is fraud or duress prior to the adoption decree. After the decree has been entered, revocation is generally limited to instances where there has been some substantial defect in the adoption process (such as a lack of the required notices or consents).

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What key factor will the court examine before granting an adoption decree?

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What are in the best interests of the child.

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What type of relationship does adoption create?

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The relationship of parent and child as if the child was the natural child of the adoptive parent. (including inheritance)

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what happens after adoption is finalized with respect to the adopted child and the natural parents?

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Adoption ends all legal relationships between the adopted person and the natural parents for all purposes, including inheritance, except for prohibitions against marriage, incest, and cohabitation.

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Who inherits the estate of the adopted child?

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The adopting parents or their relatives inherit the estate of an adopted child if he or she dies intestate. The natural persons inherit nothing.

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(Alternatives To Adoption)

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-Artificial Insemination
-A third party donor of semen which is provided to a licensed physician for use by a married woman is treated as if he were not the natural father of child conceived thereby.
-The term "surrogate mother" generally refers to a woman who is artificially inseminated with the semen of a person to whom she has agreed to relinquish the child after birth. The terms of the contract will often state that the surrogate mother will not assert any parental rights to a child, and that the parental rights will inure to the person who has supplied the semen.
-In vitro feritlization refers to the medical procedure by which a woman's egg is removed from her body, fertilized outside of her body in a test tube by means of a man's semen, and them implanted into a woman.