New York Bar Exam: Family Law

Front 1

In a marriage of long duration, what Must a P do to establish grounds for divorce in NY? (5)

Back 1

∏ must establish A PAIN fault w/ a high degree of proof

1) ADULTERY;
2) inPRISONment;
3) ABANDONMENT;
4) cruel and INHUMAN (C&I) treatment;
5) NO fault conversion divorce.

Hint 1

A PAIN

Front 2

What’s the standard of proof for Adultery as grounds for divorce?

Back 2

Clear and Convincing evidence (C&CE).

Front 3

When can a spouse testify in an adultery action? (3)

Back 3

To:

1) Prove the marriage;
2) Disprove adultery;
3) Disprove a ∆ to adultery.

Hint 3

PDD

Front 4

Can an adultery judgment be granted solely on the basis of a spouse’s confession?

Back 4

No. There must be corroborating evidence.

Front 5

NY - how can you establish adultery circumstantially? (3)

Back 5

By showing the:
1) Opportunity,
2) The inclination, and
3) The intent.

Hint 5

OII

Front 6

What are the statutory Δs to Adultery? (4)

Back 6

CRAC:

1) CONDONATION (forgiveness);
2) RECRIMINATION – ∏ also screwing around;
3) AWARENESS of ∆’s adultery for more than 5yrs even though adultery continues into present;
4) CONNIVANCE(never used).

Hint 6

CRAC

Front 7

What is Cruel and Inhuman (CI) treatment?

Back 7

serious misconduct by ∆ that

so endangers the mental or physical [MOP] well being of the ∏

rendering it Improper or Unsafe [IOU] to continue to co-habit with the ∆.

Front 8

May a complaint alleging that ∆ has been ‘cold, calculating, and loveless’ but that has not demonstrated any MOP IOU state a cause for C&I?

Back 8

No. CI must be distinguished from mere incompatibility and trivial misconduct.

Front 9

What are the elements of a divorce on the grounds of abandonment? (3)

What are the elements of separation on the grounds of Abandonment? (3)

Back 9

IOU:
I – no INTENT to return to marital home;
O – abandonment continues for ONE year or more;
U – the ∆’s departure was UNJUSTIFIED and w/o ∏’s consent.

VIU:

V - The abandonment must be VOLUNTARY
I - with no INTENT to return on the part of the abandoning spouse,
U - The abandonment must be UNJUSTIFIED.

Hint 9

1 - IOU

2 - VIU

Front 10

What is constructive abandonment?

Back 10

spouse does not leave but unjustifiably ceases and refuses to have sex w/ other spouse.

Front 11

Can a refusal to resume cohabitation constitute abandonment? (3)

Back 11

Yes. Where the parties
1 - were living separate and apart w/o an agreement or a decree, and
2 - one spouse made repeated bona fide offers to resume cohabitation which the other unjustifiably refused, then
3 - the court held this refusal constituted an abandonment even if the original separation was by mutual consent or due to the unjustified departure of the offeror.

Front 12

What must a Π show to make out a cause of spousal imprisonment in a divorce?

Back 12

- spouse in prison for 3 or more consecutive years after the marriage, the other spouse has a COA for either a separation or a divorce.

The 5yr SOL starts to run on the 3rd anniversary of the imprisonment, but it is a continuing COA, giving the ∏ a new 5 year SOL for each day ∆ in prison after the first 3yrs.

Hint 12

3yr, 5yr SOL

Front 13

What is a no fault conversion divorce? (2)

Back 13

parties can divorce where:
1)the parties have lived separate and apart for 1 or more years pursuant to the terms of a validly executed (signed, acknowledged, and filed w/ county clerk) NY or sister state separation agreement, or

2)separation judgment on which the ∏ has ‘substantially complied’ with its terms and conditions.

NB -- Substantial compliance is not defeated by occasional arrears, returning children late from visitation several times, or by failing to exercise visitation rights. Can even have sex, but sex w/ intent to reconcile resets the clock to zero

Front 14

Can a spouse be sued for divorce while waiting for a conversion divorce?

Back 14

Yes. During the 1yr waiting for a conversion divorce, either spouse may be sued for divorce based on adultery or C&I treatment.

Front 15

What are the parents’ responsibilities with regard to minor children?

Back 15

Both parents are responsible for child support until kid’s 21st birthday unless kid becomes emancipated or parents die.

Front 16

What’s emancipation?

Back 16

a complete severance of the parental relationship. Child voluntarily and w/o sufficient cause leaves the parents’ home, withdrawing from parental control and guidance.

Usually when kid marries/enlists.

Front 17

Is a parent’s obligation to support a child an independent one?

Back 17

No. Parent may impose reasonable conditions on child’s conduct, and parent’s duty to support is dependent on child’s compliance.

Front 18

On what date do child support awards begin?

Back 18

Retroactive to the date the child support demand was first served on the ∆.

Any temporary child support or maintenance will then offset the total retroactive amount.

Front 19

May a court retroactively cancel or reduce child support arrears?

Back 19

No. *** A court cannot for any reason retroactively cancel or reduce child support arrears. ***

Front 20

How are child support awards calculated? (4)

Back 20

As % of both parents’ income The income figures used to calculate the support payments are each parent’s income minus:
1) Social Security;
2) Maintenance paid to a current/former spouse under court order/written agreement;
3) Payments of support to other children; and
4) Municipal income taxes.

NB -- Payments by H to W for equitable distribution are not calculated in the support formula, and the maintenance received by W is not included in her income for determining child support.

Hint 20

SMPM

Front 21

If a spouse remarries, can the new spouse’s income be included in determining that parent’s child support obligation?

Back 21

No.

Front 22

What’s the formula for determining the child support obligation of both parents?

Back 22

The child support formula of combined parental incomes up to 80k is based on the # of children to be supported and is computed by multiplying the combined parental incomes by the following:
17% for one child
25% for 2 children
29% for 3 children
31% for 4 children and at least
35% for 5 or more children.

R: Courts may deviate from the formula if it would be inappropriate or unjust to either spouse.

Hint 22

80, 17, 25, 29, 31, 35

Front 23

Who is entitled to receive the child support payments?

Back 23

The parent who has physical possession of the child for a majority of the year is entitled to receive the child support payments.

Front 24

What other support may a parent be ordered to pay?

Back 24

may also be ordered to pay a pro-rated amount for the cost of the child’s medical insurance, un-reimbursed medical expenses, daycare, summer camp, and tutors.

A parent may be compelled to pay a pro-rated amount for a college education but not beyond the child’s 21st birthday absent an agreement to the contrary

Front 25

May parties contractually opt out of the child support formula? 3

Back 25

Parties may opt out of the child support formula, provided the agreement expressly states that:
1) The parties were aware of the child support formula;
2) The dollar amount that would be owed; and
3) The reason a different amount is being paid.

Front 26

When may modifications to child support be made?

Back 26

on a showing of a substantial change in the financial circumstances of a parent.

Front 27

What must be shown before a court will modify child support payments in a separation agreement that survives a divorce judgment?

Back 27

by showing either

1) An Undue hardship, and parent has attempted to find a job if lost, (very hard to show) or

2) BIC

(BIC prevails over any agreement between the parties.)

Front 28

If a former spouse obtains an upward modification in maintenance or child support, does spouse who has to make the increased payments have breach of K claim for the difference?

Back 28

No. But if a non-custodial spouse gets a court order lowering the child support, that spouse is contractually liable for any shortage between the amount in the separation agreement and the reduced amount in the court order.

Front 29

Does a court have SMJ to modify a child support judgment from another state?

Back 29

No. Usually a court lacks SMJ to modify a child support judgment from another state. The court issuing the award is given continuing exclusive SMJ to modify or enforce the child support order.

Front 30

When does an issuing state’s exclusive SMJ over a child support order end? 2

Back 30

1) All parties consent to another state’s jurisdiction and file consent w/ court that issued the support order; or

2) None of the parties or children reside in the issuing state

- means proceeding to modify or enforce the support order must be commenced in the state that has PJ over the paying spouse.

Front 31

In, NY is mother presumed to be best able to care for child?

Back 31

No. NY no longer recognizes the ‘tender years doctrine’ which presumes that the mother is the best person to raise the young child.

Front 32

When may joint custody be awarded?

Back 32

Joint custody may be awarded only if both parents mutually agree and only to relatively stable parents behaving in a mature, civilized fashion.

Front 33

Are child support and visitation rights appropriate subjects of arbitration?

Back 33

No.

Front 34

What sanctions for a parent who wrongfully or psychologically/physically interferes with the visitation rights of non custodial spouse?

Back 34

The court may cancel maintenance and arrears owed to the interfering spouse. The court may also prospectively cancel child support or maintenance payments.

Front 35

Why?

Back 35

It's so contrary to BIC that it raises a per se presumption that the custodial parent is unfit to have custody.

Front 36

On what factors will a motion seeking custody or a change in custody from 1 parent to another be based? (8)

Back 36

FLIP DADS:
1)FINANCIAL ability of parents;
2)LIFESTYLE of parent and adverse effect on child;
3)How INITIAL custody was awarded;
4)Who’s been the child’s PRIMARY caregiver;
5)DESIRE of the child;
6)AVAILABILITY of parent - ability and living arrangements available to raise child;
7)DOMESTIC violence (whether it ever happened or not);
8)SIBLINGS should not be separated.

Hint 36

FLIP DADS

Front 37

What is the Uniform Child Custody Jurisdiction and Enforcement Act? Have all 50 states adopted it?

Back 37

It gives uniform recognition to sister state child custody decrees. Seeks to prevent child snatching by non-custodial parent who then takes the child to another state for a more favorable judicial determination on custody. All states have it.

Front 38

What does the act provide? (4)

Back 38

1 A clean hands doctrine claim,
2 forum non conveniens,
3 FF&C on child custody decrees.
4 The home state of the child has original continuing custody jurisdiction except in emergency situations.

Front 39

What discretion does a court have to grant geographic re-location to a custodial parent? (5)

Back 39

Based on BIC, court has broad discretion.

Factors:

1) Each parent's reasons for seeking/opposing the move;

2) Quality of the relationships b/t the child and the custodial and noncustodial parents

3) the impact of the move on the quantity and quality of the child's future contact w/ the noncustodial parent,

4) the degree to which the custodial parent's and child's life may be enhanced economically, emotionally, and educationally by the move, and

5) the feasibility of preserving the relationship b/t the noncustodial parent and child through suitable visitation arrangements.

Hint 39

R
Parents' reasons to oppose/support

Quality of the relationships

Impact of the move on visitations

Degree of enhancement

Feasibility of preserving relationships

Front 40

What result on issue of child custody between parent and 3rd person (G-parent, step-parent, neighbor)? 4

Back 40

Biological (or adoptive) parent is entitled to custody. BIC is not even considered by the court unless there is C&C proof of the biological parents’ unfitness (MA and PA):

1) MENTAL illness/retardation of parent;
2) ABANDONMENT of C by P (6 cons. months +);
3) PERMANENT neglect of child;
4) ABUSE: severely or repeatedly, mental or physical.

Hint 40

MA & PA

Front 41

How long does maintenance last?

Back 41

Maintenance may be awarded for a definite or indefinite period of time but maintenance shall terminate on the death of either party or upon the recipient’s valid or invalid marriage, unless the parties, by clear language, otherwise expressly provide.

Front 42

What factors used to determine amount of maintenance? 3

Back 42

1)PAID SEAT factors (from ED);

2)Ability of the needy spouse to become self-supporting, + time and training necessary to do so; and

3)A spouse’s reduced earning capacity as a result of having stayed home to care for kids during the marriage.

Front 43

Will courts consider the needs of the spouses and the financial disparity between them?

Back 43

Yes. If a spouse can't supporting self at same level as when married, award of lifetime maintenance OK even if that spouse worked throughout the marriage.

Front 44

Is it easier to modify maintenance in a matrimonial judgment, or in a separation agreement? 2

Back 44

Easier to modify maintenance in a matrimonial judgment:

1) can change maintenance awarded in a judgment if spouse incapable of self-support or based on ‘substantial change’ in financial circumstances of either spouse.

2) In a separation agreement, must show that ‘extreme hardship’ would result if the maintenance is not changed + that the loss of one spouse’s income was unavoidable.

Front 45

How does the doctrine of equitable distribution (ED) view a marriage?

Back 45

as an economic partnership

also recognizes the direct/indirect contributions of the spouse who stayed at home.

Front 46

How is marital property distributed under ED?

Back 46

Courts equitably distribute “marital property,” regardless of who has title.

Front 47

What is marital property?

Back 47

property gotten by either spouse from the date of the marriage up to the commencement of the matrimonial action, which marks the end of the economic partnership for ED purposes. It includes:

-professional licenses;
- a professional practice;
- a pension; and
- winning lottery tickets

obtained during the marriage.

Hint 47

NB – a separation judgment doesn’t terminate the economic partnership but signing a separation agreement does.

Front 48

Are vested or non-vested rights of a spouse’s retirement plan marital property?

Back 48

the vested or non-vested rights of that spouse's plan that spouse received from date of marriage to date of action are marital property

Front 49

How do you ED the pension proceeds?

Back 49

A Qualified Domestic Relations Order (QDRO) that ED the pension proceeds based on future events, if/when they happen.

However, a QDRO giving a former spouse a percentage of “retirement benefits” gives her nothing if her former spouse dies prior to retiring.

QDRO must explicitly address whether retirement benefits or death benefits, or both

Front 50

What discretion do courts have in Identifying, classifying, and valuing marital property?

Back 50

broad discretion

Front 51

What factors are used to determine ED award? (8)

Back 51

PAID SEAT:

1) separate PROPERTY;
2) AGE and health of each spouse;
3) INCOME of each spouse at the beginning and end of marriage;
4) DURATION of marriage;
5) marital STANDARD of living;
6) EARNING capacity of each spouse;
7) ANY other relevant factor, including spouse’s egregious domestic violence;
8) TAX consequences of property distributed to each spouse.

Hint 51

PAID SEAT

Front 52

In its opinion deciding the ED award, what must a court articulate?

Back 52

The court must articulate in its opinion those PAID SEAT factors that it considered in making the award. This requirement is mandatory and may not be waived.

Front 53

To what does ED not apply?

Back 53

separate property - PIGS:

1) PERSONAL Injury recoveries;
2) INHERITANCE;
3) GIFTS from someone other than the spouse; and
4) SEPARATE property -- property purchased during marriage with separate property.

Hint 53

PIGS

Front 54

What happens to PIGS property that appreciates in value during the marriage?

Back 54

If it appreciates during the marriage due in part to the ‘limited yet active involvement’ of either spouse, any increase in value is considered marital property subject to ED(“active appreciation”).

Hint 54

Can include both any time or energy that a spouse dedicates to the management of an asset, or the hiring of a professional to manage that asset.

Front 55

What happens if PIGS property appreciates passively?

Back 55

If separate property appreciates passively (like due to increase in market value), that increase is not considered the product of the marital relationship.

Front 56

What happens to separate PIGS property that becomes commingled?

Back 56

It transmutes into marital property,

but

the contributing spouse gets a dollar for dollar credit for its value as of the date of the transfer.

be careful w/ ROS property, JTs, TEs, bank acct WROS

Remember the straw hypo

Front 57

Can unmarried cohabitants enter into enforceable agreement?

Back 57

1. If divorce, H/W will pay W/H X amt for X yrs.

2. K enforceable provided that consideration is not sex. That's prostitution

3. Will not imply a K between parties, must be express agreement.

Front 58

Can two ppl make an ante-nuptial agreement?

Back 58

Yes. Can also include state planning matters.

Front 59

What is required to make prenup valid?

Back 59

1. Must not have been made under duress

2. K must be written signed by both parties and notarized (ack)

3. K can't promise to divorce/engage in divorce triggering conduct in advance.

4. K can't be unconscionable (shock the conscience) Test: if financially weaker spouse is likely to b/c a public charge.

Front 60

What's a non-marital child?

Back 60

Any child born to parents who never married.

- must be conceived/born w/o parents being married

- for purp of ascertaining fatherhood, if W married, presume H is father.

- but non marital children have to litigate fatherhood.

Front 61

What's a filiation proceeding?

Back 61

- can be brought by M, C, or NY, or even putative F (rare)

- have until C 21

Front 62

What's the standard that must be met in a filiation proceeding that C C of F?

Back 62

- C&CE

- M's claim of sexual access by F need not be corroborated

- If F offers evidence that M had sex w/ others, must be corrob

- DNA testing permissible, is conclusive

Front 63

When can gifts by one party to another party be returned?

Back 63

When given in contemp of marriage.

- Look at circumstances

- Engagement ring = gift in contemp of marriage

- Cashmere sweater at X-mas, not = to gift in contemp of marriage

Front 64

What are the obsolete tort COAs related to marriage that might show up as wrong answers in NY MC?

Back 64

1. Breach of promise to marry

2. Seduction of unmarried female, (F P)

3. Alienation of affection lawsuit brought by H/W against 3P

4. Criminal conversation H/W, H bangs TP, W v. TP

5. Jactitation of marriage - D tells other men that D married to P so that other suitors don't approach.

- It's a felony to try to use these in complaint or as threats that you'll use them

Hint 64

JB SAC

Front 65

What does a marriage require?

Back 65

- It's a K

- Need capacity (all of the capacity needed to enter into any other K)

- insane, infant, can't marry

Front 66

Can 2 ppl of same sex marry in NY?

Back 66

- NY statute doesn't say need M+W, but C of App has construed it to mean M+W based on context of other statutes that ref M+W. Can't marry SS in NY b/c of this. Case: EP doesn't apply

- But, if SS cpl marry where permissible and relocate, no C of A decision, but appellate div case H: NY must give FF&C to them.

- exec order: NY agencies must recognize SS marriages if valid where performed

- a mechanism is to get SS marriage in jd where permitted, and move back

Front 67

What does a marriage need to have?

Back 67

- need license and ceremony with Ws

- can get license from town clerk, pay fee

- window, must get married w/in 60 days, else license expires

- failure to get license won't void marriage

Front 68

What is the solemnization of marriage?

Back 68

where 2 ppl exchange solemn promise to take on H/W status

- need 2 ppl, officiant and W

- but statute doesn't prescribe formal ceremony

Front 69

Does NY recognize marriage of ppl in 2 separate places?

Back 69

Yes

- each p goes to judge where that p located.

- need W at each location

- Sign and fax to other party

Front 70

Does NY recognize CL marriage?

Back 70

No, but if CL married in st that allows it, will get recog in NY

Front 71

What are the 5 ways to terminate marriage?

Back 71

1. FRAUD

2. Lawsuit for ANNULMENT

3. Declaration of NULLITY

4. 5 yrs mental INCAPACITY after marriage

5. DURESS - shotgun marriage

Hint 71

FANID

Front 72

how to get dec of nullity?

Back 72

- proper COA when 1 party lacked legal capacity which makes marriage utterly void

- 2 types, bigamy, incest

- NY, can't marry ancestors, descendants, or lineal relatives on your same gen level, up one and down one.

- if marriage null/void, don't need court, b/c never married. but good idea for clarity, collateral issues (custody)

Front 73

when you can get a lawsuit for annullment?

Back 73

- proper COA if incapacity, but less severe than declaring marriage a nullity

- to get annullment, need ct

- grounds can be waived, like staying in

Front 74

grounds for annulment? (6)

Back 74

1. infancy, if >18 yo (annulment not automatic, at discretion of court)how to waive:
- if 16, you can marry w/ parental permis
- if 14-16, can marry w/ parental permis + ct permiss
- if >14, can't waive

2. mental incap at time of marriage
- includes mental illness/severe development disability
- W 82 w/ alz + 10M, H 28, likely can be annulled by guardian
- if incap regains sound mind, and continues, cohab, waived

3. 5yrs mental incap after marriage w/ medical expert testimony, no waiver

4. Duress threat of physical harm, waived if cohab after threat of harm removed

5. Fraud: if b/g marriage, 1 party either (i) misrepresents or (ii) conceals information vital/essential to aspect of marriage, and (iii) and is calculated to deceive RPP, deceived person has gnds for COA.

6. Physical incapacity, where H/W has an incurable physical condition that makes it impossible to have safe and normal intercourse. Don't confuse with procreative ability, more like no hard-on. Ever. 5yr S/L, no jury trial

Front 75

Fraud fact patterns?

Back 75

- small lies not actionable, must be BFD.

All below relate to EAM:

- fraud about religion

- fraud relating to procreation/sex, inc proclivities, ability to procreate, paternity of baby in gestation, history if in big way. [size of family too, but distinguish b/t this and change of heart]

- lying about finances, job, etc., doesn't go to EAM.

Front 76

Issues common to all grounds for annulment (except last)

Back 76

- testimony of either party alone is insuff, need corrob

- Jury trial

- S/L 6yrs

Front 77

What is legal separation?

Back 77

- one spouse sues to separate

- doesn't end marriage

- maintain ins, inherit, tax, religious moral reasons

- tried in court, no jury

- court can make temp or perm

Front 78

Does NY have no fault div?

Back 78

No, need grds, all of which involve fault

Front 79

How to get a conversion divorce?

Back 79

- cpl vol separates, either by agreement or pursuant to litigation on fault gnds

- live separate and apart for 1yr

- then can convert from sep to divorce

Front 80

Requirements for sep agreements?

Back 80

- must be in WRITING

- must be FREELY made

- must be ACKNOWLEDGED

- must be FILED

Hint 80

Radio station WFAF

Front 81

How can separation agreement be rescinded?

Back 81

By acts:

- sex w/ intent to reconcile resets the clock, doesn't include casual sex

- a material breach of the terms of the separation agreement will disallow conversion

Front 82

What is a dissolution action?

Back 82

- Brought when spouse disappears

- COA req that spouse be missing w/o tidings for 5 yrs

- asking ct to declare spouse dead

Front 83

Requirements for dissolution of marriage? (3)

Back 83

1. Testify that you've made diligent search

2. publish request that spouse return for 3 consec wks in english language newspaper

3. must have lived in NY 1 yr

- note: no alimony, etc, b/c it's a determination of death, any obligations spouse might have had are over.

Front 84

Procedural issues of marital COA?

Back 84

1. All brought in Sup Ct

2. For SMJ, 1 spouse must be domiciliary of NY

3. Domiciliary must satisfy residence req:

- if both parties reside in NY and grounds occurred in NY, no min residency req, parties have immediate access to courts

- when 1 p lives in NY, but if: cpl got married in NY, cpl ever lived in NY, or if the gds of divorce occurred in NY, 1yr requirement.

- if only 1 party in NY, and no other plus factor, 2yr req

4. Jurisdiction for collateral matters (RP), need PJ over D spouse

5. Pleadings

- all pleadings must be verified except cases involving adultery

- process must be served personally, mail only with ct's permission

- no default judgments w/o evidence of proof

- both parties must disclose finance

- records sealed for 100yrs

Front 85

Ethical considerations for lawyer?

Back 85

1. L must give C:

- document on C's rights,

- written retainer agreement,

- closing statement of how retainer spent, etc.

2. Can't take as security for fee a mortgage on C's home

3. DR: L shall not in domestic relations matter bang C during course of L's rep of C in that matter

Front 86

In determining maintenance where there is a separation agreement, how is the separation agreement dealt w/ by court?

Back 86

Court will engage in close scrutiny of agreement if there is evidence of overreaching. Otherwise, goes into divorce decree.

Front 87

For ED, what 5 assets will court treat as separate property?

Back 87

1. Anything owned by either spouse prior to marriage

2. Any gift/inheritance by either spouse in that spouse's sole name

3. Property that spouses agree is separate (won't see)

4. Personal injury compensation, tort award

5. Passive appreciation in value of asset (can be hybrid)

Front 88

how can court make 1 party distribute marital party to other party?

Back 88

Either by writing check for value of property, or in kind (deed over assets)

Front 89

Is artificial insemination legal in NY

Back 89

Yes. Child treated as marital child, and treated as H's offspring w/ H's consent

Front 90

Is surrogacy OK?

Back 90

Illegal in NY, no Ks with 3P to have baby.

Front 91

Who may adopt?

Back 91

- married cpls, and in NY a single person

Front 92

Who can be adopted?

Back 92

- anyone, provided you obtain all marital consent and the goal is to raise the adopted child in a parent/child relationship

Front 93

How to obtain consent?

Back 93

- If A < 18, need consent of both biological parents

- If A > 14, need A consent also

- Any party w/ legal custody would have to consent

Front 94

How possible for P to waive right to withhold consent to adoption? (4)

Back 94

Parent can waive the right to withhold consent in 4 ways

1. P has surrendered child

2. Mental incapacity + unable to care for child

3. Abandonment for 6mths+

4. Parent guilty of neglect

- conduct imposes imminent danger to child

- near or impending harm, falling below minimum standard of care

- if 1yr of neglect, no permission needed

Front 95

Assuming all parties consent to give up child for adoption, what's next?

Back 95

Investigate prospective adoptive parents.

- NY endeavors to engage in religious matching

- 3mth trial period. A allowed to live w/ APs

- hearing, if adoption affirmed, AP established as Ps

Front 96

What's the doctrine of equitable parenthood?

Back 96

If you've acted as a parent, and child has relied on your actions, you are estopped from denying parenthood

Front 97

What is the step-parent's duty to support

Back 97

Step-parent has duty to support if, absent such support, child would b/c public charge

Front 98

Mechanisms for enforcing support order

Back 98

- attachment and sale of property

- wage garnishment (+ interception of tax return)

- contempt of court

Front 99

How to enforce if deadbeat moves?

Back 99

UIFSA - adopted in every US state

- prevents inconsistent orders
- if 1st support order came from state w/ proper jurisdiction, that state will maintain Continuous Exclusive Jurisdiction (CEJ), and other states must defer
- provides for direct enforceability of order in other states (send NY order to AZ, AZ will enforce)
- can also mail to OOS Er, Er obligated to garnish wages and send to custodial parent

Front 100

What standard will court always use in a custody dispute

Back 100

BIC

Front 101

Preference for M over D?

Back 101

No. In contest bet M, F, no preference to be given to either parent

Front 102

In custody battle bet P and non-P, who gets preference?

Back 102

- Preference for bio-P

- to get custody, non-P has to show Xtraordinary circs or unfitness of P.

- must be a BFD

Front 103

Visitation rights for non-parents (usually G-parents)

Back 103

- SC H: Parents have DP right to make decision for kids.

- In light of SC holding, NY interpreted its statute to mean that special weight must be given to Ps. G-Ps have burden of showing special circs

Front 104

What to do if screwed on domestic relations Q involving children?

Back 104

If all else fails, BIC

Front 105

What's NY take on other state's marriage law (conflicts)

Back 105

- NY position: Marriage valid where K'd is valid in NY

- narrow exception: if marriage violates affirmative prohibition that says otherwise

Front 106

Conflicts and divorce decrees from other states?

Back 106

- NY: If divorce gotten in other jrdtn and both ppl participated >>> FF&C

- If divorce gotten ex parte, PF valid in NY, but D spouse can collaterally attack it w/ evidence that P spouse was not domiciliary in the divorcing state at the time it was granted.

If held void for lack of juris, state won't give FF&C

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How are divorce judgments from other countries handled?

Back 107

Div from other ctry normally gets credit through comity if both Ps participated and divorce was legal where obtained.

Ex parte OOC div gets no recognition by NY

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How NY treats OOS custody awards?

Back 108

UCCJEA - structure similar to UIFSA

- If court order entered by state with juris, that state gets CEJ over the matter.

- other state must honor, and refrain from modifying such an order.

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How is jurisdiction determined for custody court orders?

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A court has juris to initially enter or modify a child custody or visitation order if the state:

- is the child's home state,

OR

- was the child's home state w/in the past 6 months and the child is absent from the state, but a parent or guardian continues to live in the state.

- a child's home state is the state in which the child lived w/ a parent or guardian for at least 6 consecutive mths immediately b/f the commencement of the proceeding (or state where child has lived since birth if younger than 6mths old), disregarding temporary absences.

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What is FFCSOA?

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FF&C for Child Support Act, requires each state to enforce the child support orders of sister states, and prohibits modification of such orders by foreign court unless the state seeking to modify has juris and the original state no longer has CEJ.

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What is FPKPA?

Back 111

Federal Parental Kidnapping Prevention Act: Since child custody orders are not entitled to FF&C under US Con, FKPA mandates that FF&C must be given to these determinations if juris standards of PKPA are met. Same as in UCCJEA, except that emergency-based juris is not made temporary in the PKPA.

Any conflict bet UCCJEA or other state law and PKPA will be resolved in favor of PKPA

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What's the purp of UCCJEA

Back 112

To avoid juris disputes w/ courts of other states in matters of child custody and visitation

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When does UCCJEA permit temp emerg juris?

Back 113

Court has temp juris if child has been abandoned or it is necessary in an emergency to protect the child b/c child or her sibling or parent is subjected to or threated w/ abuse