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172 Cards in this Set

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Will NY recognize a contract between unmarried cohabitants?
Yes. But, it will only do so, provided the consideration for that contract is something other than sex.
Will NY implie a contract b/t unmarried cohabitants where they did not have an express K?
No. No implied Ks between unmarried cohabitants in NY. NY does not have palimony.
What is an anti-nuptial agreement?
Entered into in consideration of marriage - addresses economic matters; contingency plan dealing with the prospect of an eventual divorce. Substitutes negotiated agreement for judicial and statutory rights.
Is there a topical limit to what an anti-nuptial agreement can contain?
No.
What are the requisites of validity for an anti-nuptial agreement?
1) In writing, signed by both parties, and acknowledged;
2) Free from duress;
3) Can't be unconscionable;
4) Can't agreee to divorce (against public policy)
Is a waiver of your support entitlement unconscionable?
No. Unless the waiver is such an extreme waiver and the substitute provisions so stingy that the poorer spouse would become a public charge - then it's probably unconscionable.
When does the K come into effect?
Once the parties marry if it is valid - marriage is a key condition and if it doesn't occur, K never becomes effective. Remains valid after divorce.
What are children of unmarried people called?
Non-marital children.
What are the rights of non-marital children?
Essentially all the same rights as marital children in judicial system (inherit, sue for wrongful death of parent, claim all sorts of gov'tl and private benefits, and are entiteld to financial support from both parents).
How can you implement support obligations?
If father doesn't acknowledge paternity, have to litigate - most states call it a patnerity proceeding, but in NY, it is called a Filiation proceeding.
Where are filiation proceedings litigated?
Family Court.
Who can litigate?
1) Mother;
2) Non-marital child;
3) The state of NY;
4) Father
When can a filiation proceeding be begun?
Any time prior to kid's 21st birthday.
What is the burden of proof in a filiation proceeding?
Heightened burden of proof - requires clear and convincing evidence.
What type of evidence is admissible?
1) Mother can testify that there was sexual access by D, and her testimony need not be corroborated;
2) D can claim that the mother had sexual relations with other men, but that claim MUST be corroborated;
3) DNA evidence is admissible
Who can order DNA evidence?
Can be ordered on request of any party or on court's own evidence.
What is the rule with respect to DNA evidence?
If it shows greater than 95% probability that D fathered the child, that raises a presumption and shifts the burden to the father to negate presumption.
What is the only real way the father can negate that presumption?
By showing that he is infertile or that sexual access was a complete impossibility.
What is the rule for pre-marital gifts?
1) If the gift is in contemplation of marriage, you can recover it back if the marriage does not take place;
2) Other gifts are not recoverable.
What are the causes of action that used to exist, but have been abolished in NY?
Collectively, called the "heart-balm" causes of action:
1) Breach of promise to marry;
2) Seduction of an unmarried female;
3) Alienation of affections;
4) Criminal Conversation;
5) Jactitation of Marriage
To whom did the seduction of an unmarried female cause of action belong?
The father of the woman.
What is the alienation of affections cause of action?
Brought by married person against a stranger of the marriage who allegeedly turned the spouse's feelings against the P, often D was in-laws or suitor of spouse)
What is criminal conversation?
Civil cause of action for adultery.
What is jactitation of marriage?
Rpresenting yourself to be married in the larger community, to someone with whom you have no relationship.
What do you do if these come up on bar?
Just deny relief. Also mention that it is a felony to file any of these claims.
What is necessary to get married?
Capacity (it's a contractual relationship)
What type of capacity is required?
All of the normal K law rules (majority, sanity, etc.) PlUS special marital capacities:
1) Have to be single
2) Have to be of the opposite sex (*NOTE: not in MA, and NY hasn't decided issue yet - it's unsettled area)
Assuming you have a capacity, what are the possible ways to get married?
1) Through a ceremonial marriage (most likely way);
2) Conotractual license
What do you need for a ceremonial marriage?
1) License;
2) Solemnize the Relationship (ceremony or solemnization)
What are teh rules with respect to licenses?
1) In NY, there's a 24 hour waiting period.
2) License is only good for60 days;
3) License is not an essential attribute of a valid marriage - it's merely directory. If you fail to do it, it won't affect the validity of your marriage as long as you had capacity.
What do you need to solemnize the relationship?
1) The efficient (sp?) and
2) Witness (only one required, but customary to have two)
3) Must make a solemn declaration taht they are taking on the status of H and W.
Who can be an efficient?
Any member of the clergy, government officers, anyone empowered to issue oaths, captain of a ship at sea.
What does the solemn declaration mean?
Basically just means vows. Just means you understand the requirements you're undertaking, but there's no required type of ceremony.
What does a contractual license require?
1) Requires them to get a license;
2) But, they are not co-located so instead, each party must go before a judge and sign a written contract in the presence of that judge and a witness.
Does NY recognize common law marriage?
No, but NY will treate a couple who entered into a common law marriage in a state where it was valid, as married in NY.
What are teh consequences of being married?
1) Obligation of sexual exclusivity;
2) Duty of economic support (reciprocal duty that flows in both directions)
What is the standard of support?
Fair and reasonable. Determining what's fair and reasonable generally is based on the economic means of hte spouse who's support obligation is under scrutiny.
What is the floor on support?
If there's a spouse in the relationship who's likely to become a public charge, there's a floor - the floor is the amount of money necessary to prevent that person from becoming a public charge. It's generally a means test, but in the event of an extreme need, it becomes a needs test.
What if you are not getting spousal support?
You can file a petition for separate maintenance.
What is the status of married persons with respect to all other areas?
For all other purposes, married people retain their separate identity:
1) They can hold property in t heir own name (no requirement thaht you own property by tenancy of the entirety);
2) Can have separate domiciles;
3) Can have separate surnames;
4) Can contract independently with third persons and will be solely liable on the Ks;
5) Spouses can commit torts and crimes agaisnt each other (NY has abolished the intra-family immunity rules)
What is the exception to sole liability rule?
1) If a spouse incurs a debt for necessaries, than the other spouse can be held liable. AND
2) If one spouse is acting as an agent for the other, then under ordinary agency principals, teh second spouse is liable.
What are the five causes of action relating to terminating marital status?
1) Declaration of nullity;
2) Annulment;
3) Separation action (legal claim for separation;
4) Divorce;
5) Dissolution
What is a declaration of nullity?
This is the appropriate cause of action to end the marriage when one of two parties lacked marital capacity and theh incapacity in question rendered the marriage totally VOID.
What are the potential grounds for declaration of nullity?
Only two:
1) Bigamy;
2) Incest
What relationships count as incest?
Only blood relatives who are:
1) Descendants;
2) Ancestors;
3) Lineal relatives up or down one generation.
Can first cousins marry?
Yes.
What is annulment?
Use it to get out of marriage when there's a c apacity problem that makes the marriage VOIDABLE, which means it is binding and has full force and effect until you get it voided.
Can the grounds for annulment be waived?
Yes.
How is waiver found?
Waiver is usually found by evidence that the parties continued to cohabit either after learning of hte problem or the capacity problem is in some way removed.
What does cohabit mean?
Term of art, means that they are living together and they're having sex.
What are the grounds that make marriage voidable?
1) Party is too young (non-age);
2) Mental incapacity;
3) Duress;
4) Fraud;
5) Physical Incapacity;
6) Five years of incurable insanity after couople gets married
What are the age rules?
1) In NY, can't get married unless youre over 18.
2) If you're over 16, but under 18, you can get married with the consent of parents.
3) 14 or 15 can get married with consent of parent and judge
4) Under 14 can't get married by any mechanism.
Is annulment on age grounds automatic?
No. It is discretionary and up to the judge.
Is the age ground waivable?
Yes, if you continue to cohabit after reaching age 18.
What is the mental incapacity rule?
if you have a want of understanding that prevents you from understanding or appreciating what you're doing, then you have grounds for an annulment.
When is there mental incapacity?
Three different times:
1) Can be function of outright mental illness;
2) Developmental diability;
3) Under the influence of intoxicating substances to such a degree that you dont' know what you're doing.
Who would generally undertake an action on grounds of mental incapacity?
A guardian or committee
Is this ground waivable?
Yes, but only if you recover your lucidity. If you have episodes of lucidity and you cohabit, that's a waiver.
What is duress?
Interferes with capacity b/c it represents an example of where you're not entering into the arrangement freely.
Is this ground waivable?
Yes, if you continue to cohabit after ground for duress is removed.
What is the rule for fraud?
If one fiance, prior to the marriage, either misrepresents or conceals information that goes to a "VITAL OR ESSENTIAL ASPECT OF THE MARRIAGE" (*make sure to use that language), and would deceive a reasonable person, the other party has grounds for an annulment.
When must you bring an annulment action based on fraud?
Within 3 years of learning of the fraud.
What are the particular categories that have been litigated often and tested?
1) Religion;
2) Procreation or sex;
3) Money
What is the fraud rule with respect to religion?
Misrepresentations about religion are usually considered material. Grant the annulment in a case involving religion.
What types of lies does the religion category cover?
1) Outright lies about your denomination;
2) Misrepresnetations of level of devotion;
3) Lying about willingness to convert (but be sure to distingusih lie from later change of mind);
4) Lying about willingness to bring up children in given religion
What is the fraud rule with respect to procreation or sex?
Lying about it goes to vital aspects of the marriage.
What types of things fall into the category?
1) Lying about or concealing information concerning your ability to procreate;
2) Lying about the number of children you'd like to have (But distinguish present lie from future change of mind);
3) Misrepresentations about sexual orientation;
4) Lying about sexual history (has to be big lie);
5) Misrepresentation about your sexual agenda.
Is this ground waivable?
Yes.
What is the fraud rule with respect to money?
If a fiance lies about wealth, income, economics, job, this is NOT grounds for an annulment - the law takes the view that people dod not mary to improve their financial situation.
What is the physical incapacity ground?
Incurable physical condition that prevents safe and normal sexual intercourse. (About sex, not procreation). Has to be incurable.
When does an action based on this ground have to be brought?
Within 5 years of the date of the marriage. *Only annulment case where we havee no jury trial.
What are the requirements for the insanity ground?
1) NY requires three court appointed physicians to agree on the diagnosis
2) No SOL b/c continuing condition
What is the evidenctiary ruel for annulment actions?
Grounds for annulment must always be corroborated - testimony by either party is not enough.
Are annulment actions judge or jury actions?
Jury trials except where ground is physical incapacity.
What is the default SOL where there is no mention of a specific SOL?
6 years.
What doess a spearation action do?
Does NOT terminate the marriage?
Why would you do this then?
1) Pragmatic economic or legal reasons that it makes sense to retain the legal status of marriage;
2) Religious or moral grounds may prevent you from pursuing an all-out divorce
Are separation actions tried before a judge or jury?
Judge.
Are they temporary or permanent?
Can be either.
What must you allege to get a court ordered separation in NY?
One of five grounds:
1) Cruel and inhuman treatment;
2) Abandonment;
3) Adultery;
4) Three years imprisonment;
5) Failure to support
What is the rule for cruel and inhuman treatment ground?
1) Encompasses both physical and mental cruelty
2) Standard is that the behavior of the D spouse must endanger the well-being of the P spuose. Conduct must render it unsafe or improper for parties to continue to cohabit. Trivial incidents don't count.
3)Subjective ground and alwyas based on the reactions of this particular P and not on a reasonably prudent person standard.
What is the effect of subsequent cohabitation after mistreatment?
It is a factor that is considered, but it is not conclusive on whether the separation should be granted.
What is required for the abandonment ground?
1) A voluntary departure by one spouse from the other;
2) Without the consent of the other;
3) Without justification;
4) With no intent to return
How long must the abandonment be?
Any perido of abandonment is grounds for legal separation.
What is the requirement for the departure?
Doesn't have to be a physical departure from the marital abode. Can abandon your spouse by refusing to be sexual.
What is the meaning of the without justification requirement?
If we have an abusive relationship and the victim leaves the premises with no intention of returning that's not abandonment.
How is the "no intent to return" element established?
Usually inferred from circumstantial evidence. Can be, among other things, length of absence or statemetns that are made.
What is the statute of limitations on an abandonment claim?
No SOL b/c continuing condition.
What is the adultery ground?
An act of sex or "deviant sex" voluntarily performed with another person not your spouse during the course of a marriage. Has to be with another person. Rape or sexual assault doesn't count. Not limited to ordinary act of heterosexual intercourse.
What defenses can be raised?
1) Recriminaiton;
2) Condonation;
3) Connivance;
4) Five year statute of limitations from time of discovery
What is recrimination?
It's like the defense in equitable practice of dirty hands. Means that the P is guilty of offsetting misconduct. Generally means that D spouse accused of adultery shows that P is committing adultery too.
What is condonation?
A form of waiver. A showing by the D that the complaining spouse, P knew of the adultery and fully resumed marital cohabitation with a mindset of foregiveness.
What is connivance?
A form of entrapment. Means that the complaining spouse actually induced, lured, or tricked you into committing the adultery.
How can spouses testify in an adultery action?
Spouses can ONLY testify:
1) To prove the marriage;
2) D can testify to deny adultery;
3) P can testify to deny D's defenses.
So, what type of evidence is relied on?
Testimony from third party or circumstantial evidecne of opportunity and disposition.
Testimony of prostitutes and private detectives must always be corroborated.
What is the failure to support ground?
Failure to live up to the economic obligation of reciprocal support. As part of relief, court will enter support order.
Does NY have no-fault divorce?
No. Very distinct minority position in US - very difficult to get divorce in NY.
What are the grounds for divorce?
1) Cruelty;
2) Abandonment;
3) Adultery;
4) Imprisonment;
5) Conversion Divorce.
*Note, all but abandonment and conversion divorce follow same rules as these grounds when used for separation action.
What is the abandonment rule when used as ground of divorce?
Must show that it has lasted for one full year.
What are the requirements for a conversion divorce?
1) Couple must formally separate;
2) have to live separate and apart for a year and thereafter, can return to court and convert your separation into a divorce and then the marrriage is over.
How can the couple formally separate?
Only in two ways:
1) Get a legal separation on one of the five grounds avove;
2) Negotiate a separation agreement.
What rules apply to separation agreements?
1) Have to be freely made (can't engage in conversion or undue influence);
2) Must be in writing, signed, and acknowledged;
3) At some point prior to seeking the conversion of divorce, you've got to file that separation agreement with the court (doesn't have to be on file for the whole year, just before seeking conversion);
4) Any material breach of the terms of hte agreement rescinds the agreemnet.
What is the rule with respect to sex between separated spouses during separation period?
1) Where there is a negotiated settlement agreement, if you cohabit with the INTENT TO RECONCILE, that rescinds the agreement and you hvae to start the clock over again, but if it's just sex with no intention to reconcile, that doesn't rescind the agreement;
2) If operating under a court-ordered separation agreement, then the cohabitation wouldn't affect it.
What are the grounds for a dissolution action?
Can only be where your spouse has disappeared.
What do you have to establish?
That your spouse has been missing wihtout tidings for a period of five years.
What are the requierments for a dissolution action?
1) Have to make a diligent search;
2) You have to publish a request that your spouse return for three consecutive weeks in an English-language newspaper;
3) Petitioner has to have lived in NY for a year, or NY must have been the couple's matrimonial domicile at the time of disappearance.
What will a dissolution action result in?
Just divorce. No collateral orders will be issued b/c you don't need these determinations b/c everything flows from the presumption that the spouse is dead.
Where do marital actions take place?
In the state Supreme Court.
What is necessary to have subject matter jurisdiction?
One spouse must be domiciled in NY. In addition, that spouse must satisfy a residency requierment. This is technically not jurisdictional, meaning that if you plead residency of the proper jurisdiction, and it is not challenged, the court's decree cannot be collaterally attacked later. But, as a mattter of practice, it's something that you have to allege, and the other party may scrutinize your allegeations.
How can you satisfy residency?
1) If both parties lived in NY and the grounds occured in NY, no minimal residency requirement;
2) If only one party lives in NY, but there is a "plus" factor, there is a one year residency. Three possible plus factor: a) They got married in NY; b) They lived in NY at some point as spouses; or c) The grounds occurred in NY.
3) If only one party lives in NY and there are no plus factors, it's a two year residency requirement.
What type of authority does subject matter jurisdiction give the court?
Subject matter jurisdiction only gives the court authority to enter the divorce decree; it will NOT give the court any authorityt to enter property or alimony decrees.
What is necessary for that?
For that, you need personal jurisdiction, either by physical presence or long arm jurisdiction established by statute and meeting DP requirements
What is the requirement for matrimonial pleadings?
Must be verified, meaning that you have to swear to them EXCEPT for an answer in a separation or divorce case alleging adultery in which presumably the D denies the adultery, that doesn't have to be sworn to.
What are the special rules concerning trials?
Generally, don't take default judgments in matrimonial actions - always have to offer proof even where other party doesn't appear. Parties are normally required to make disclosure fo financial assets.
How long are matrimonial records kept confidential?
100 years.
What are the professional responsibility rules for family law cases?
1) Lawyers in a family law cases have to give their clients three documents over the course of representation;
2) Can't take as security for your fee a mortgage on your client's house;
3) A disciplinary rule in the state of NY explicitly provides that a lawyer shall not, in a domestic relations matter, begin a sexual relationship with a clietn during the course off the lawyer's representation of the client.
What are the three documents the lawyer has to give the client?
1) A statement of client rights and responsibilities;
2) Msut enter into a written retainer agreement with your client in a matrimonial claim;
3) Have to provide a closing statement - a reconciliation of the work done and the fees collected.
What is alimony called in NY?
Maintenance.
What is the standard for maintenance?
Maintenance is based on the needs of the recipient. It's a continuation of the duty of spousal support. Can be temporary or permanent.
What factors does court consider for permanent maintenance awards?
In deciding whether to order maintenance at close of proceedings on a permaneent basis, and determining the amount of het maintenance, court considers ANY factors it deems relevant. Just tell them on an essay that the court will consider factors it considers appropriate, including such factors as:
1) Health and age of parties;
2) Job skills, earning capacity, and potential need for education and training;
3) Whether or not either party will be the custodian of minor children and whether or not that will prevent the spouse from working full tiem or working at all.
3) Time of marriage and standard of living while married;
4) Permisible to consider fault in NY, in determining whether mainenance is appropriate and an appropriate amount.
Can parties addrses the issue of maintenance ina a negotiated separation agreement?
Yes. Courts can simply insert this into the divorce agreement, but the courts will engage in close scrutiny of such agreements before incorporating the terms if there is any evidence of overreaching or undue influence.
What are the follow-up issues with respect to maintenance awards?
1) Modification;
2) Enforcement;
3) Termination
How can you modify a maintenance award?
Can modify by returning to court and making a showing of a substantial change of circumstnaces (usually a party loses a job).
What is the rule where modification is being sought in connection w/ maintenance that was embodied in a separation agreement?
Here, the court requires a showing of extreme hardship (more than a substantial change of circumstances)
What are the mechanisms of enforcement?
1) Attach property;
2) Seize property, sell it, adn use the proceeds to satisfy maintenance obligation;
3) Punitive - can take aways drivers' license and any professional licenses you may hold;
4) Can put you in jail.
What are the rules of termination?
1) Default rule is that if the decree is silent, maintenance terminates on the death of either party;
2) BUT, parties can K around that default rule and obligate your estate to pay maintenance by having a guaranteed minimum payment period;
3) If recipient remarries or openly cohabitates with another, that will also terminate.
What are the rules with respect to property distribution?
NY is an equitable distribution state.
1) First step is to categorize the property;
2) Address separate property first, then marital property;
3) Then distribute marital property.
What are the categories of property?
1) H's separate proeprty;
2) W's separate property;
3) Marital assets subject to distribution
What are the types of separate property?
1) Items owned by either spouse prior to the date of marriage;
2) Gifts or legacies received by the spouse's individually during the course of the marriage (*Note - gifts received jointly are marital property and that always includes all of the wedding gifts);
3) Property that the spouses agree to treat as separate proeprty is separate property;
4) Personal injury compensation (*Federal veterans' disability payments by fedreal statute beong in the smae category);
5) Passive appreciation in those items in categories 1-4
What doe passive appreciation mean?
Means an increment in value due merely to market forces with no effort or work put in by the spouses.
What if a separate property asset has become more valuable b/c a spouse put in labor?
The increment in value becomes a marital asset. An asset can be a hybrid asset.
What are marital assets?
Everything else in the problem. All property acquired by EITHER spouse during the course of the marriage. The clock starts on teh date of the marriage and with the exception of the five types of property above, eveything is a marital asset. True regardless of whether one or both of them workds outside the homd and regardless of who's name is on the title. Includes intangible interests like stock options and pension plans.
What else does marital property include in NY?
Professional licenses and degrees that are earned during the marrige. This means that a dollar value is put on your degree and that asset is put into the pool.
Once the maritla assets are in the pool, how are they distributed?
The court exercises equitable judgment based on a number of factors.
What factors are considered by the court?
Same as those for maintenance, except that fault is generally not considered. Also, custody of minor children plays a big part in who gets the house. And, hte degree to which spouses have contributed to or squandered family wealth is considered. Courts asign percentage numbers and then implement that distribution either by ordering that the property be distributed in kind, or by ordering cash payments
What are cash payments called?
Distributive awards.
What are the rules for artificial incemination?
1) It is legal;
2) If H is unable to father a child, W can be inseminated by an anonymous donor and that child will be considered a marital child if fthe husband consents. The H will be considered the father of the child and the donor will have no rights.
What is the rule for surrogacy?
NY does not permit surrogate parenting. It is against public policy.
Who can adopt in NY?
In addition to a married couple acting together, single people can adopt in NY provided they are adults.
Who can be adopted in NY?
Anyone can be adopted - either a child or an adult - provided the goal is to estalish a genuine parent-child relationship.
What is the key issue in an adoption fact pattern on the bar?
Either obtatining all necessary consents or demonstrating that consent is legally unnecessary on the facts of the problem.
When do you need the consent of the biological parents?
if the adoptee is a minor.
Who else do you need consent from?
Any other party that has a valid custodial relationship and if the adoptee is over 14, you also need the consent of the adoptee.
How can parents rights to consetn be sacrificed, lost or dispensed with?
If:
1) They surrender the child;
2) They are mentally incapacitated and unable to care for theri children;
3) They have abandoned the child (meaning that htere has been at least six months of no contact, no support); or
5) In the event of neglect.
Where you have or don't need consent, what are the next steps?
Next step is an investigation and the final hearing (usually in 3 months)
What else about adoption in NY?
NY purports to have a policy of religious matching.
What are the grounds for termination of parental rights in NY?
Substantially parallel to the grounds for dispensing the need for consent in adoption. BUT, Ct. of Appeals has recently said that neglect is conduct that must pose an "imminent danger" to the child, not merely a possible harm, but a neara and impending harm AND it must fall below a reasonable level of care that would be given by a reasonable parent acting under similar circumstances.
What are parent's child support obligations in NY?
NY obligates parents to support their kids through age 21.
Can this be exteneded?
Yes, through the pursuit of a bachelor's degree if:
1) Child is academically able; and
2) Parents are financially able.
How are child support obligations generally provided
Through routine provision of food, clothing, shelter, when family is all living under one roof. But, if one parent is non-custodial, the child support obligation will be reduced to court order.
How is the actual amount of child support calculated?
By checking a table. Not really discretionary any more - based substantially on child support guidelines.
What do guidelines look at?
Combined parental monthly income and number of children.
What follow-up considerations apply to child support?
Same as maintenance:
1) Modification;
2) Enforcement;
3) Termination
When does child support obligation terminate
Awards terminate when child reaches age of majority or on death of the parent or child.
When are child custody determinations made?
Can happen after divorce/annulment; after legal separation or with a non-marital child.
What is the standard the court uses in making the determination?
"The best interests of hte child" MUST get that phrase in b/c this is the entirety of the answer.
What else should you talk about in your answer?
Things courts look at in determining best inteerests (NOTE: NEVER consider gender):
1) Wishes of the parties;
2) If child is over age 12, wishes of child (not dispositive, but will consider);
3) Physical and mental health of the parents;
4) Whether or not parents are in new relationships and if so, the individual with whom they are in the new relationships and detrmine whether that is a suitable person to have in the home;
5) Any history of domestic violence;
6) Whether a placement would foster contact with any extended family memberse;
7) Anythign else in teh problem is fair game to look at.
Can the court take unsworn testimony of child in chambers?
Yes, but have to make a record in order that we have something to review on appeal.
When is visitation allowed for the non-custodial parent?
Almost always.
What are the rules that apply to visitation?
1) Not conditional on paying child support;
2) Can't be interfered with by custodial parent (contempt of court)
What is the rule where the custody dispute is b/t a parent and a non-parent?
1) There is a strong presumption that with the biological parent is the palce where the best interests of the child will be served. The non-parent has to show that the biological parent is unfit or that htere are extraordinary circumstances;
2) NY amended the domestic relations law to provide that extraordinary circumstnaces could be found if grandparents had custody of hte child for two consecutive years. This makes thme much more likely to prevail in a custody dispute than other parties.
What is the rule with respect to non-parents petitioning for visitation?
NY had a rule that allowed it in some cases, but this is trumped by USSC's decision in Troxel - parents have a DP right to raise kids as they see fit and are permitted to prevent grandparents from seeing kids.
What if you see a child fact pattern that doesn't fit into one of these categories?
Talk about the best interests of the child standard and then argue whatever you want.
What is the rule with respect to out of state marriages?
If a marriage is valid where contracted it will be treated as valid in NY, unless it violates a strong NY public policy.
What are the rules for out of state divorces?
1) If both spouses have participated in an out of state divorce, it's a bilateral divorce and it is not subject to collateral attack in NY - it's valid;
2) If only one party participates in an out of state divorce, that's an ex parte divorce and it's prima facie valid if D had servife of process, but D can collaterally attack the divorce by showing that the P didn't have domicile in the state that granted the divorce. In an ex parte divorce, P will be subject to res judicata on issues that could hvae been litigated;
What is the problem with child support enforcement mechanisms?
Only work if the deadbeat parent is under jurisdiction of courts of NY.
What statutes are there that address this?
1) Uniform Interstate Family Support Act (UIFSA) - uniform statute adopted by every American jurisdiction;
2) Full Faith and Credit for Child Support Orders Act (FFCCSOA) - federal statute that reinforces UIFSA;
3) Child Support Recoveyr Act (CSRA) - federal criminal statute.
What does the UIFSA do?
1) Provides for direct interstateenforcement (custodial parent can mail the support order directly to the out of state ER, who will then be obligated to engage in wage withholding and transmittal of money back to NY or parent can mail the decree to the court in other state and ask them to use coercive power to get him to pay);
2) Provides a jurisdiction al rule - a rule of exclusive jurisdiction. The initial state that entered the court order has continuing and exclusive jurisdiction. This means that X can't go into court in a new state and try to challenge the order of the original state. Prevents gaming system, forum shopping and inconsistent orders.
What does the FFCCSOA do?
Requries that every subsequent court give full faith and credit to the child support order.
What does teh child support recovery act do?
Federal crime to fall one year or $5000 behind in your child support (only true if your child lives in a different state than you, but if so, you can be prosecuted by a US Atttorney).
What statute addresses parental kidnapping?
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) - adopted everywhere and it too channels all disputes back to the home state of NY. Gives that state continuing and exclusive jurisdiction.
What is the home state of a child?
Normally, the home state of a child is where the child has lived with a parent for 6 months preceding the action. There are more complexities than that, but won't need to go into detail for the exam.