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Family Law (Parents and Children (Establishing Parenthood - establishing…
Family Law
Parents and Children
Establishing Parenthood - establishing Mother (not a problem unless the child is born by a surrogate)
Presumption of marital paternity - child born by mother in marriage is presumed the child of the husband;
Putative fathers - an alleged father when the child has a presumed father ( there is a time limit to resolve the issue);
Uniform Parentage Act = Parents married after the child's birth and the man voluntarily asserted his paternity; Parents resided in same household for the first two years of the child's life and the man openly held himself out the child as his own.
Nonmarital Child is a child born to an unmarried woman. Nonmarital children have the same right to support and government benefits as marital children. Same right of inheritance from its mother as a marital child, but the state may require that paternity is proven to inherit from the father.
Termination of Parental Rights - occurs through the emancipation of the child, voluntary relinquishment of parental rights , and involuntary termination
Adoption - questions involve jurisdictions, consent (by biological parents if rights are not terminated/child is not abandoned), and consequences of adopting a child.
Committed father is entitled to due process if he chooses to protest the adoption.
After adoption; adoptive parents have all the legal rights and responsibilities with the child as if they were biological parents.
Divorce
Money Issues
Child Support
Determined by state guidelines that use a formula considering parents' income, the age of the child, and the number of children supported.
Terminates upon child's death or emancipation (18th bday)
Maintenance
Formerly known as "alimony" and is awarded to ensure an adequate income stream for the economically dependent spouses
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Child Custody/Visitation
Governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Emphasizes the home state of the child (the state the child lived with a parent for at least six consecutive months prior to the commencement of the proceeding.
Determined by the best interest of the child:
- wishes of parents and child (once child is over 12)
- interaction and interrelationship of the child with parents, siblings, and others,
- Child's adjustment to home, school, and community
- the mental and physical health of the individuals involved
Custody could mean legal custody (decision making power) or physical custody (where the child resides)
Custody is modified w/ a substantial and material change in circumx such that the child's best interests would be better served by a change in custody.
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Visitation: Granted to noncustodial parent unless visitation is detrimental to the best interests of the child.
Third party visitation (Grandparents) also follow the best interests standard and may not override the wishes of the fit parent.
"Only terminates legal marriages"
No-fault grounds for divorce - the marriage is irrevocably broken. Some Jx have retained fault grounds (i.e., adultery and desertion).
NO personal jx because divorce is considered an in rem action.
Court has jx to enter a divorce decree if one of the parties is domiciled in that jx. (spousal support, child support, and property rights require personal jx over both parties.
Marriage
Establishing Marriage
Procedure:
- License
- Solemnization (ceremony performed by authorized official)
Putative Spouse: One who entered into a ceremonial marriage and had a good faith belief in the validity of the marriage, but later discovers the marriage is void or voidable.
May have equitable spousal inheritence rights, but right of property division and support are same as annulment
Unmarried Partners: have no legally recognized status unless they meet the requirements for common law marriage or are a putative spouse. Most states will recognize express and implied contracts between the partners concerning support and property, as long as there is consideration other than their sexual relationship.
Equitable remedies = quantum meruit (a reasonable sum of money to be paid for services rendered or work done when the amount due is not stipulated in a legally enforceable contract.)
Common-Law Marriage: Minority of states recognize and could be an issue if a second state does not recognize a valid marriage. Basis is the Full Faith and Credit Clause of Constitution.
State of mind - entered with present ability and intent to create full marital rights.
Annulment: The process of declaring a marriage invalid/voidable. Void Marriage = no legal effect. A voidable marriage is valid unless an aggrieved party obtains an annulment or ratifies the marriage.
Antenuptial Agreements (aka pre-nups):Contracts that have the statute of frauds apply. The consideration is entry into marriage.
Requirements:
- Consent
- Cohabitation
- Holding out as Husband & Wife
- Legal Capacity
Limitations:
- Age (parental consent if under 18; Court Approval under 16; no marriage under 14)
- Not closely-related
- Capacity (mental - must understand nature of marriage K; lack of consent - intoxication)
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