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116 Cards in this Set

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Breach of Promise to Marry
Arkansas still allows these actions. Recovery may be allowed for actual damages (expenditures made in preparation for marriage) as well as for loss to reputation, mental anguish, and injury to health, but not for loss of expected benefits. Punitive damages may be awarded if it can be shown that the defendant acted maliciously.
Gifts in Contemplation of Marriage
Most jurisdictions hold that the engagement ring should be returned - though maybe not if he is the breaching party. Other gifts, it just depends on the circumstances and such.
Age to Marry
Males and females under 18 must have the written consent of both parents unless one is deceased or they are divorced. Arkansas confers marital capacity upon males over 17 and females over 16.
Consanguinity and Marriage
Marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, aunts and nephews, and first cousins are declared to be incestuous and absolutely void.
Same-Sex Marriages
Generally prohibited, and no full faith and credit required to be given to out-of-state same-sex marriages.
Mental Capacity to Marry
Each party, to give contractual consent to a valid marriage, must possess the ability to comprehend and voluntarily agree.
Physical Capacity to Marry
A person must possess the capability for sexual intercourse in order to be married.
Bigamy or Polygamy
To be validly married, a person must not already have a prior undissolved marriage to another living spouse.
Marriage License Requirement
Arkansas doesn't require a blood test, and there is no waiting period, though many states have both of these requirements.
Solemnization of Marriage
A marriage may be solemnized by a ceremony performed by a judicial officer or a member of the clergy. After the ceremony, the marriage license must be completed by the one who solemnized the marriage and filed with the appropriate local governmental office so that there will be a public record of the marriage.
Proxy Marriages
Some states permit marriage by proxy. Proxy must be authorized in writing. It doesn't appear that Arkansas allows this.
State of Mind Requirement to Marry
(1) Capacity to understand their actions and agree to them (under the influence of alcohol or drugs may undermine this capacity).
(2) Intent to enter into the marriage relationship (fraud, duress, coercion or force will invalidate intent).
(3) Marriages for limited purposes (a "sham" marriage) - courts are split on whether these are valid or not.
Covenant Marriage
An optional relationship is available for couples who understand and agree that marriage is a lifelong relationship; who have received authorized counseling emphasizing the nature, purpose, and responsibilities of marriage; who agree to make reasonable efforts to preserve the marriage if difficulties should arise; who may seek a divorce only if there has been a complete and total breach of the marital covenant; and who accept more restrictive grounds for divorce.
Common Law Marriage
Abolished in most states, including Arkansas. Required:
(1) an exchange of consents between two people,
(2) cohabitation, and
(3) a holding out publicly of living together as husband and wife.
Conflict of Laws and Marriage
Validity of marriage determined by state where the marriage took place (limited to couples who actually resided in the foreign state or country where the marriage was decreed and consummated).
Premarital Contracts (AKA Antenuptial Agreements)
Generally valid and usually provide for a distribution of assets upon divorce or death in a way that is different from what the law would ordinarily require.
Content of Premarital Contracts
Parties may contract with respect to:
(1) The parties' rights and obligations in any of the property of either or both of them;
(2) The right to buy, sell, lease, assign, dispose of, or otherwise manage and control property;
(3) Disposition of property upon separation, dissolution, death, or any other event;
(4) Modification or elimination of spousal support;
(5) Making of a will or trust to carry out the provisions of the agreement;
(6) Ownership rights in and disposition of the death benefit from a life insurance policy;
(7) Choice of law governing construction of the agreement; and
(8) Any other matter not in violation of public policy or a criminal statute.
Requirements of Premarital Contracts
Consideration: Entry into the marriage is sufficient consideration.

Statute of Frauds: Must be in writing and be signed and acknowledged by both parties.
Enforcement of Premarital Contracts
Must be voluntary (without fraud, duress, or overreaching).

Full and fair disclosure must be made by both parties as to their financial worth for the agreement to be valid.

Most states don't require independent counsel, but the risk of finding an unfair, disproportionate agreement will be lessened.
Rights and Responsibilities of Spouses
Each spouse owns and controls her own property both before and during marriage.

There is an obligation for spouses to support one another.

No name change is required upon marriage.

Spouses can now bring tort against against each other.

Most state rape statutes have removed the marital exception.

Spouses can get restraining orders in the case of domestic abuse.
Reproductive Choices
Right to procreate is a fundamental Constitutional right. The right to use contraceptives goes with this.

Related persons have a right to live together (even extended families).

Parents have the right to educate their children outside of the public schools, subject to the state's right to prescribe reasonable educational standards.

Parents also have the right to decide issues concerning care, custody, and control of their children.
Abortion
No undue burdens can be placed on a woman seeking an abortion pre-viability. However, post-viability, abortions may be prohibited except to protect the woman's health.
Husband-Wife Evidentiary Privilege
Spousal Immunity - privilege not to testify against a spouse in a criminal case.

Privilege for confidential marital communications - not required to disclose private marital communications.
Annulment
Judicial declaration that a marriage is invalid (that it never "officially" occurred). Two types of marriage are subject to annulment: void and voidable marriages.
Grounds for Annulment (and Void or Voidable)
(1) Bigamy/Polygamy (VOID)
(2) Consanguinity (VOID)
(3) Underage (VOIDABLE)
(4) Lack of Physical Capacity (VOIDABLE)
(5) Lack of Understanding to Consent/Mentally Incompetent (VOIDABLE)
Three Divorce Actions
(1) Separate Maintenance (Legal Separation)
(2) A Mensa Et Thoro (Bed and Board)
(3) A Vinculo Matrominii (Absolute Divorce)
Separate Maintenance
Arises under the broad power of equity. This is an attempt to regularize the relationship of spouses who cannot live together, but either do not have grounds for a divorce, or do not wish for a divorce.

Party must establish only separation and perhaps absence of fault. Court can make temporary provisions for support, custody, assets, etc.
A Mensa Et Thoro (Bed and Board)
A limited form of divorce: a divorce from bed and board.

The grounds for this are the same as for an absolute divorce. This is similar to a separation, but closer to an actual divorce. The court may grant this if some possibility of reconciliation.
A Vinculo Matrominii (Absolute Divorce)
This is a complete, absolute, traditional divorce.
"No-Fault" Divorce
Two types: 18 Months' Separation and Incurable Insanity with 3-Year Separation.
18 Months' Separation (No-Fault Divorce)
Either party may sue, and the fault is irrelevant. Divorce is granted regardless of: (1) whether separation was voluntary act of one party or by mutual consent; (2) whether separation was due to the fault of either or both parties; (3) which party left the marital abode; and (4) whether the separation was intentional or caused by other factors.

Only requirement: 18 months' separation without sexual relations.
Incurable Insanity (No-Fault Divorce)
Statutory provision. Has meticulous provisions for continued maintenance of the insane spouse. Requires 3 years' separation (presumably without sexual relations, but doesn't say). Fault is not a consideration.
Grounds for Divorce
(1) Impotence
(2) Felony or Other Infamous Crime
(3) Habitual Drunkenness for One Year
(4) Cruelty
(5) General Indignities (Most Common)
(6) Adultery
(7) Willful Failure to Support
Cruelty (Grounds for Divorce)
"Such cruel and barbarous treatment as to endanger the life of the other." More than just mental injury - very high standard.
General Indignities (Grounds for Divorce)
"Unmerited reproach, rudeness, contempt, steady neglect, and open insult, habitually and systematically pursued to the extent of rendering married life intolerable." Mere lack of congeniality and resulting quarrels not sufficient - and must persist over a length of time.
Defense to Fault Grounds
(1) Collusion - agreement between parties to simulate grounds for a divorce.
(2) Connivance - spouse encouraged the conduct (abolished in most states).
(3) Condonation - spouse forgave the marital offenses and resumed marital relations.
(4) Recrimination - I did it because he did it first (a form of unclean hands doctrine - nearly extinct, but Arkansas has used it).
(5) Provocation - defendant admits fault, but argues that actions were provoked or caused by plaintiff.
Divorce Suit
(1) No Default Judgment allowed.
(2) Proof of residence required, and it must be corroborated.
(3) If based on 18 months' separation, must be corroborated.
(4) No corroboration necessary for an uncontested divorce (as to grounds only), so long as testimony of plaintiff sufficient.
(5) If Defendant files an answer denying grounds for divorce, plaintiff must offer corroboration.
(6) Must be enough specific evidence to determine existence of grounds.
(7) A divorce decree is final when formal judgment is entered, not when judgment announced.
Proof of Residency and Cause of Action
Party seeking divorce must prove:
(1) Residence in Arkansas of EITHER the plaintiff or defendant for 60 days prior to commencement of the action;
(2) That the cause for divorce existed within five years before the complaint was filed; and
(3) That cause of action for divorce existed or occurred in Arkansas, or, if it occurred outside, the acts constitute grounds under Arkansas law.

Note that at least 30 days must elapse between filing and granting of divorce decree.
Three Approaches to Division of Property
(1) Community Property
(2) Equitable Division of ALL Property Owned by Either Party, Whether Acquired Before or After the Marriage
(3) Equitable Division of Marital Property on an Equitable Basis (Not Necessarily One-Half Each)
Community Property
All property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is deemed separate property.
Separate Property
Property owned by a spouse before the marriage (including any appreciation it has earned) plus any additional property acquired during the marriage through gift or by reason of death of another.
Marital Property
All property acquired by either spouse subsequent to marriage except:
(1) Property acquired by gift or death of another;
(2) Property acquired in exchange for separate property;
(3) Property acquired by a spouse after a decree of divorce from bed and board;
(4) Property excluded by valid agreement of the parties;
(5) The increase in value of separate property;
(6) Benefits received or to be received from a workers' compensation claim, Social Security claim, or personal injury claim when those benefits are for permanent disability or future medical expenses; and
(7) Income from separate property.
Factors Considered in Equitable Division of Property
(1) Length of the marriage;
(2) Age, health, and station in life of the parties;
(3) Occupation of the parties;
(4) Amount and sources of income of the parties;
(5) Vocational skills of the parties;
(6) Employability of the parties;
(7) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
(8) Contribution of each party to the acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
(9) Federal income tax consequences of court's division of property.
Division of Property Provisions
Court must state their reasoning and basis for division.

The judge has a broad power to distribute the property to achieve an equitable division.

Trial court may use discovery techniques to locate property and use contempt proceedings to enforce a decree.

Any estate by the entirety are dissolve when decree entered.

Non-marital property can be divided if the court finds it equitable to do so.

As long as non-marital property can be traced, it will retain its separate identity.
Issues in Marital Property
(1) Pensions - if vested, can be divided.
(2) Social Security Benefits - not divisible.
(3) Professional License or Degree - Generally not divisible.
(4) Damage Awards in Tort Suits - divisible.
(5) Distribution of Stock - need an accountant to value. May be divisible.
(6) Partnership Interests - May be divisible, but must put a dollar amount on it to be divided in half.
(7) Good Will of a Business - subject to division, but must have a value independent of the presence or reputation of a particular individual.
Three-Part Test to Determine Character of License or Degree
Court must examine whether:
(1) There is significant accumulated marital property;
(2) The other spouse is ineligible for support; and
(3) The other spouse already benefited financially from the increased earning capacity.
Commingled Property
Separate property may become marital property if it is inextricably mingled with martial property or with the separate property of the other spouse.
Mixed Property
(1) Commingled Property
(2) Transmutation of Separate Property (Placed in names of both parties, so presumed to be a gift)
(3) Improvement of Separate Property
(4) Property Acquired Before Marriage, but Paid for After Marriage
(5) Property Acquired During Marriage, but Paid After Divorce
Amount of Alimony
Factors considered:
(1) Financial circumstances of both parties;
(2) Financial needs and obligations of both parties;
(3) Couple's past standard of living;
(4) Value of jointly owned property;
(5) Amount and nature of the income, both current and anticipated, of both parties;
(6) Extent and nature of the resources and assets of each of the parties;
(7) Amount of income of each that is "spendable";
(8) Amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses;
(9) Earning ability and capacity of both parties;
(10) Property awarded or given to one of the parties, either by the court or the other party;
(11) Disposition made of the homestead or jointly owned property;
(12) Health condition and medical needs of both parties;
(13) Duration of the marriage; and
(14) Amount of child support awarded.
Types of Alimony
(1) Permanent Periodic Alimony
(2) Lump Sum Alimony
(3) Rehabilitative Alimony
(4) Reimbursement Alimony
Permanent Periodic Alimony
Paid regularly (usually monthly) to provide for the maintenance and support of a spouse who has neither the resources nor the ability to be self-sustaining. It is modifiable by petitioning the court and demonstrating a substantial change in circumstances.
Lump Sum Alimony
Most courts have authority to award alimony in a lump sum payment rather than periodic payments. Lump sum alimony is not modifiable. The award is final and survives the death of the payor spouse.
Rehabilitative Alimony
Consists of periodic payments for a limited period of time calculated to enable a spouse to gain skills or education necessary so that he can then enter (or re-enter) the workforce and become self-supporting. This type of alimony is more common in situations where there are fewer marital assets to divide between the parties.
Reimbursement Alimony
A growing minority of jurisdictions occasionally award a fixed sum, which is neither modifiable nor terminable, to a spouse who supported the other spouse while the latter obtained a professional license or degree. The amount awarded in such cases is based on the amount of the supporting spouse's contribution, not the value of the professional license or degree. This award may be given even when the supporting spouse is not otherwise eligible for spousal support.
Termination of Alimony
Periodic alimony generally terminates upon the death of either spouse, or the remarriage of the recipient spouse. Also ends if the recipient establishes a relationship with another person that results in a child and a court order directing the other person to pay support to the recipient of alimony. Continuation of alimony is NOT contingent upon the good conduct of the recipient.
Tax Consequences of Alimony
As a general rule, alimony payments are includible in the income of the recipient spouse and are deductible by the payor, unless state otherwise in the divorce or separation instrument.
Duty to Pay Child Support
The general rule is that both parents equally share a duty to support their children. An action for support may be brought at any time until the child reaches the age of 23.
Amount of Child Support Award - Guidelines
Rebuttable presumption that the amount stated in the chart is the correct amount of support. Courts have much less discretion here than in alimony cases.
Determining Child Support Amount
Based on monthly or weekly take-home pay. Based on all sourced of income. Judges have discretion in calculating the support to be assessed against a self-employed payor.

At the maximum take-home pay levels, the custodial parent is entitled to 15% for one child and 21% for two children.
Retroactive Child Support
Because a parent has a legal duty to support a child even without a court order, an award may be retroactive and is not limited to reimbursement of actual support expenses.
Termination of a Duty to Support a Child
The duty to pay child support automatically terminates when the child reaches age 18, unless the child is still in high school. Child support also terminates when the minor is married or emancipated. However, the duty to support a child doesn't cease at majority if the child is then disabled and needs support.
Full Faith and Credit for Child Support Orders Act
Full faith and credit must be given to another court's child support order if:
(1) the court had jurisdiction over the matter and the parties, and
(2) the parties had reasonable notice and an opportunity to be heard.

Continuing, exclusive jurisdiction in the court entering the order to modify the order:
(1) if the child or one of the parties resides in the state, or
(2) when the child and the parties no longer reside in the state, if the parties consent in open court or in a record that the court may continue to exercise jurisdiction to modify the order.
Modification of Alimony
Only periodic alimony may be modified. Courts retain the authority to do so based upon a substantial and material change in circumstances. If no award of alimony in the divorce decree - not allowed to impose later.
Modification of Child Support
Can be modified based on a substantial change in the circumstances. A change in the gross income of the payor of at least 20% or more than $100 a month permits the payor or payee to petition the court for an adjustment.

Overdue payments cannot be modified retroactively - even if the court orders a modification of future payments.
Enforcement of Alimony
Can hold party in civil contempt for non-payment just to obtain compliance (will be released upon payment of specified amount).

Can hold a party in criminal contempt for willful failure to pay.

Other sanctions allowed include:
(1) Judgment against the non-complying party;
(2) Seizure of real estate of non-complying party;
(3) Attachment of wages of the non-complying party; and
(4) Order of payment of attorney's fees.
Enforcement of Child Support
Same remedies as listed for Alimony.

Wage withholding can be used, as well as interception of tax refunds, state refusal to grant or renew a license, or (under the Child Support Recovery Act) criminalizing non-payment of child support if unpaid more than 1 year or $5,000.
Uniform Interstate Family Support Act
Adopted by all 50 states. Purpose is to simplify collection of child support (or sometimes spousal support) where original support order was issued in one jurisdiction but the obligor or the child resides in another.
Separation Agreements
An agreement entered into during the marriage, prior to the issuance of a divorce decree, in which, in addition to agreeing to remain separate and apart, the parties may resolve certain economic issues and custody rights. These agreements are governed by general contract principles.

Full and fair disclosure required.

Consideration is usually found in the mutual promises within.

Merges into divorce decree if the decree says so (or if the decree repeats specific provisions).
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Purpose is to avoid jurisdictional disputes and strengthen support procedures. Arkansas has adopted this.
Home State Jurisdiction (UCCJEA)
Child's "home state" is the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding. Temporary absences are disregarded.
When Home State Jurisdiction Doesn't Apply (UCCJEA)
(1) No Home State (but significant connections).
(2) All Other States with Jurisdiction Decline
(3) Default Jurisdiction (when no other state has jurisdiction under either home state test or significant connection test).
Substantial Connections Test (UCCJEA)
(1) Child and at least one parent (or person acting as a parent) have a significant connection with the state, and
(2) substantial evidence is available in the state concerning the child's care, protection, training, and personal relationships.
Exclusive Continuing Jurisdiction (UCCJEA)
Court that made the initial determination has exclusive continuing jurisdiction over the matter until the court determines that:
(1) neither the child nor the child's parents (or persons acting as parents) continue to reside in the state; or
(2) the child no longer has a significant connection with the state and substantial evidence relating to child's care, protection, training, and personal relationships is no longer available in the state.
When Court May Decline Jurisdiction (UCCJEA)
(1) Inconvenient Forum - decides that court is inconvenient, and a court in another state is more convenient, taking into account the circumstances.
(2) Party's Unjustifiable Conduct - party seeking to invoke the court's jurisdiction has engaged in unjustifiable conduct, such as wrongfully taking the child from another state.
Temporary Emergency Jurisdiction (UCCJEA)
A court has temporary emergency jurisdiction if:
(1) the child has been abandoned or
(2) it is necessary in an emergency to protect the child because the child or her sibling or parent is subjected to or threatened with mistreatment or abuse.
Enforcement of Another State's Order (UCCJEA)
Court may use any remedy that is available to enforce its own orders in enforcing another state's orders. UCCJEA provides the following remedies:
(1) Registration of order
(2) Expedited enforcement in a habeas-type proceeding
(3) Warrant to take physical custody of a child
(4) Law enforcement may intervene to locate or obtain a child, or enforce custody/visitation if the court asks or if there is a reasonable belief that person holding the child has violated a criminal statute.
Best Interests of the Child Standard
Factors considered:
(1) Moral fitness of each parent;
(2) Age, gender, and health of the child;
(3) Attitude of each parent toward the child;
(4) Psychological relationship between the parents and the child;
(5) Physical and mental health of the parties;
(6) Need for stability and continuity in the child's relationship with parents and siblings;
(7) Potential for disruption in the child's social and family relationship by an award of custody;
(8) Past conduct of the parents toward the child;
(9) Strength and sincerity of the parents' desire to have custody;
(10) Reasonable preferences of the child;
(11) Parents' affection and guidance; and
(12) Continuation of a religious education, if any.
"Tender Years" Doctrine
Until 1979, Arkansas adhered to this, which gave preference to the mother in the case of young children. This is no longer followed - only concerned about the best interests of the child, not gender or age.
Child's Preference
The preference of a young child (under 8) will not be considered or given much weight. However, the preference of an older child (over 12) is often given great weight. The preference of the child is not binding on the court.
Non-Marital Sexual Relationships and Custody
Raises the issue of moral fitness. Arkansas case law "simply has never condoned a parent's unmarried cohabitation, or a parent's promiscuous conduct or lifestyle, when such conduct is in the presence of a child."
Decision-Making Power Regarding Child
Generally, the custodial parent has the authority to make all essential decisions in raising the child, subject, of course, to the best interests of the child. In some cases, the court will require a joint decision or at least notification.
Counsel for the Child
Most courts have authority to appoint a guardian ad litem for the child in a custody dispute. Such guardian has a duty to act on the child's best interests. May also be charged with a duty to investigate and make a report to the court.
Visitation
These are independent of support rights (custodial parent may not withhold visitation for non-payment of child support). Courts may limit and regulate visitation (may require supervised visits, etc).
Rights of Non-Parents to Visitation
Grandparents: May be granted only when the child is born out of wedlock or the marital relationship between the child's parents has been severed by death, divorce, or legal separation.

Siblings and Other Third Parties: Reasonable visitation rights may be granted to siblings, regardless of degree of blood relationship, even if parents are opposed to the visitation. Doctrine of "in loco parentis" may allow court to grant visitation to others beyond grandparents and siblings, as well.

However, a judge may NOT override a fit parent's decision regarding third-party visitation merely because he feels a "better" decision could be made or visitation would be in the best interests of the child.
Joint Custody
Could mean joint legal custody (joint decision-making, but one parent has physical custody), joint physical custody, or both. Arkansas courts do NOT favor joint custody.

Parents' hostility may preclude a joint custody award.
Factors Considered in Joint Custody Determination
(1) Fitness of both parents;
(2) Whether the parents agree on joint custody;
(3) Parents' ability to communicate and cooperate concerning the child's well-being;
(4) Child's preference;
(5) Level of involvement of both parents in the child's life;
(6) Geographical proximity of the two homes;
(7) Similarity or dissimilarity of the two homes;
(8) Effect of the joint custody award on the child's psychological development; and
(9) Parents' ability to physically carry out the joint custody order.
Enforcement of Custody
(1) Civil contempt (fines or incarceration)
(2) Habeas corpus proceeding (limited to physical custody - can't be used for visitation)
(3) Suit in equity (injunction)
(4) Out-of-state custody decrees enforced if registered with local court.
Child Snatching
If child is snatched by non-custodial parent and removed to another state, custodial party must either:
(1) file the decree in the foreign jurisdiction and obtain an order enforcing it, or
(2) obtain a writ of habeas corpus from the foreign court and serve it on the snatcher.

Criminal sanctions may be imposed in some states.

Tort damages may sometimes be recovered.
International Parental Kidnapping Crime Act (IPKCA)
International Parental Kidnapping Crime Act (IPKCA) is there for removals to other countries with intent to obstruct other parent's right to physical custody.
Parental Kidnapping Prevention Act (PKPA)
Parental Kidnapping Prevention Act (PKPA) mandates that full faith and credit be given to child custody or visitation determination of another state if jurisdiction standards are met (same as UCCJEA).
Modification of Custody Decrees
ALWAYS modifiable.

May be modified upon motion of one of the parties or, on occasion, on the court's own motion.

Must be a material change in circumstances justifying a change in custody (in the best interests of the child).
Relocation of Custodial Parent and Child
Not, in and of itself, a material change in circumstances justifying a change in custody. There is now a presumption in favor of relocation, and the burden is on the non-custodial parent to rebut the relocation presumption.
Rights of Unmarried Cohabitants
Contracts between unmarried cohabitants are invalid only when sexual relations constitute the only consideration. Express contracts will generally be enforced, while it's less likely that an implied contract will be.

No special status merely by living together, unless they qualify for a common law marriage (which has been abolished in many states).

Courts will sometimes even award rehabilitative alimony - and a contract can provide for property division.
Presumption of Marital Child
The child of a married woman is presumed to be the child of her husband, a presumption rebuttable only by clear and convincing evidence (such as a blood test) that he is not the father.
Constitutionality of Discrimination Against Illegitimate Children
Almost always suspect under the Equal Protection clause. Requires intermediate scrutiny.

A statute of limitations on paternity suits may be discriminatory.

A federal law granting immigration preferences to marital children was upheld.
Legitimacy
A non-marital child may inherit from the father if: (1) there is written acknowledgment of paternity; (2) there is written consent to have the father's name on the birth certificate; (3) paternity is determined; (4) the parents marry; (5) there is a de facto marriage; or (6) court issues a support order.
Change in Child's Status (Legitimacy)
Statutes provide that a child is also the lawful child of his father if:
(1) the parents were married after the child's birth (some states also require the father's acknowledgment);
(2) the father holds the child out as his biological child;
(3) the father consents to be named on the birth certificate;
(4) the father has acknowledged paternity; or
(5) there is a judicial decree establishing paternity (limited in some states to suits during the father's lifetime).

These are the Arkansas provisions.
Suit to Establish Paternity
May be brought by the biological mother, the putative father, the child, or the Office of Child Support Enforcement. Action is brought in the Juvenile Division, and may be brought at any time.

No statute of limitations.

Preponderance of the evidence is required to establish paternity, unless the putative father is dead, and then clear and convincing evidence would be required.

Can introduce evidence as to sexual relations between the mother and putative father (or other men), blood tests, and other scientific examinations.

Court may award "lying-in" expenses for the mother - expenses in connection with pregnancy and delivery.

Court applies the best interests of the child standard in determining the surname.

When paternity is established, the court may grant visitation rights to the father.
Legal Disabilities of Childhood
(1) Child may own and convey property, but can disaffirm the conveyance upon reaching the age of majority.
(2) Child may enter into and enforce contracts, but may disaffirm at any time before reaching age of majority, or within a reasonable time thereafter. Contracts for necessaries, however, cannot be disaffirmed.
(3) Parental consent is almost always required before emergency medical treatment is administered, but state can override.
(4) Children are generally liable for their own torts.
(5) Criminal acts (for the most part) are adjudicated under juvenile delinquency laws.
(6) Children cannot make valid wills.
Emancipation
Removal of the disabilities of minority. When emancipated, the child is considered to be an adult, and his parents are relieved of their duty of support.
Education of Children
States can require that children attend school up to a certain age, but parents can decide where their children attend school.
Intrafamily Tort Immunities
No spousal immunity.

Parent-child immunity is limited.

Suit for property damages may usually be maintained by any family member against another.
Interference with the Marital Relationship
In most jurisdictions, either spouse may bring an action for the loss of the other's consortium or services due to injuries resulting from defendant's tortious conduct, whether the defendant's conduct was intentional, negligent, or based on strict liability.
Interference with Parent-Child Relationship
Child has no action against one who tortiously injures his parent, though a parent may maintain an action for loss of child's services.

Can sue for interference with custody: suit for abduction or enticement, or civil conspiracy to conceal information about newborn's birth or location.
Termination of Parental Rights
Right of parents to raise their children is fundamental. Therefore, parents must be afforded due process before their parental rights must be terminated.

Due process doesn't require the appointment of counsel for indigent persons in every parental rights termination case - only when "fundamental fairness" requires.

To terminate parental rights, state's allegations must be proved by clear and convincing evidence.
Grounds for Termination of Parental Rights
(1) Infliction of serious physical harm on the child, including sexual abuse (even if to another child in the family);
(2) Abandonment;
(3) Neglect or deprivation, which means a failure to meet minimum standards of care;
(4) Failure to provide support for a child without justifiable cause for a specified time period (e.g., one year);
(5) Mental illness or retardation of the parent so severe as to make the parent incapable of caring for the child. Courts are FAR more reluctant to terminate the parental rights for physical illnesses that impair a parent's ability to care for the child; or
(6) Parental unfitness, or conduct by the parent that seriously harms the child physically or psychologically (alcohol abuse, etc).
Adoption Defined
A legal proceeding whereby the legal relationship between biological parents and their child is terminated (if not already done) and a new legal relationship of parent and child is established between the child and his new adoptive parents. Purely statutory - didn't exist at common law.

Licensed adoption agencies may act as intermediaries between natural and adoptive parents to arrange the adoptions.

DHS may be appointed as a child's guardian with power to consent to adoption if the parents' rights were terminated at a prior hearing.
Consent to Adopt
Consent must be given by the following persons:
(1) The mother of the child (unless previously terminated);
(2) The father of the child if the father was married to the mother, if he has custody, or he has otherwise legally recognized the minor (unless previously terminated);
(3) Any person lawfully entitled to custody; and
(4) The minor, if over 10 years of age, unless the court dispenses with the minor's consent in the best interests of the minor.

Must be in writing, and may be withdrawn within 10 days after its signed or the child is born, whichever is later.
Rights of Unmarried Fathers
Generally, the more actively involved the father has been in the child's life, the more of a voice he'll have.
Putative Father Registry
Arkansas has a putative father registry for possible fathers. A father who fails to register may waive the right to notice of any adoption proceedings. A father who made no effort to ask if the unwed mother was pregnant or had a baby may not be entitled to notice.
Payment of Money for Adoption
A parent or guardian of a minor may not receive a fee, compensation, or any thing of value as consideration for the relinquishment of a minor for adoption. However, the adopting parents may pay to the natural mother incidental costs for prenatal, delivery, and postnatal costs.
Governing Standard of Adoption
The best interests of the child standard.
Consequences of Adoption
(1) New birth certificate for the child, listing the adoptive parents.
(2) Biological parents' rights and liabilities are cut off, and the adoptive parents now have those rights and liabilities.
(3) Any challenges to the adoption, including for fraud or jurisdiction, must be made within one year of the adoption decree.
Alternatives to Adoption
(1) Artificial Insemination
(2) Surrogacy
(3) In Vitro Fertilization
(4) Embryo Transplantation
Surrogacy
A surrogate is an adult woman who enters into an agreement to bear a child, conceived through assisted reproduction, for the intended parent(s).

Under Arkansas law, a child born by these means is the child of:
(1) the biological father and the woman intended to be the mother, if the biological father is married;
(2) the biological father only, if he is unmarried; or
(3) the woman intended to be the mother, if an anonymous donor's sperm was used for artificial insemination.

No Arkansas statute prohibits the payment of money to a surrogate.
Ownership of Fertilized Ovum in Vitro
A cryogenically preserved product of in vitro fertilization is popularly referred to as a "frozen embryo." Complex problems arise with regard to ownership. Depends on whether it is "property" or a "person."