Bar Exam Family Law 2 — Questions and Answers

Question 1: Under the Uniform Marriage and Divorce Act and most state laws, what is the standard for awarding child custody?

The father receives custody as the natural guardian of the children
The primary caretaker presumption — the parent who served as primary caretaker receives custody
The best interests of the child, considering factors such as the child's wishes, parental fitness, continuity of care, and the child's adjustment to home and school (Correct answer)
The standard assumes joint custody unless one parent is proven to be unfit

Correct answer: The best interests of the child, considering factors such as the child's wishes, parental fitness, continuity of care, and the child's adjustment to home and school

The 'best interests of the child' standard governs custody decisions in virtually all U.S. jurisdictions. Courts consider a range of factors including parental fitness, the child's existing adjustment, the child's preference (depending on age and maturity), continuity of relationships, and the ability of each parent to support the child's relationship with the other parent.

The best interests of the child standard replaced earlier presumptions (maternal preference for young children, paternal preference as head of household). Under the Uniform Marriage and Divorce Act (UMDA) § 402, relevant factors include: (1) The wishes of the child's parents; (2) The wishes of the child (if the court deems the child mature enough); (3) The interaction and interrelationship of the child with parents, siblings, and others; (4) The child's adjustment to home, school, and community; (5) The mental and physical health of all individuals involved. Courts also consider: the continuity of existing care arrangements; the ability of each parent to foster the child's relationship with the other parent; and in some states, domestic violence history. The tender years presumption (favoring mothers for young children) has been largely abolished as unconstitutional sex discrimination. Joint custody (both legal and physical) is increasingly favored in many states.

Question 2: In most jurisdictions, what is required to establish a valid common-law marriage?

Cohabitation for at least seven years plus the presentation of the couple as married
A present agreement to be married, cohabitation as spouses, and holding out as husband and wife to the community (Correct answer)
Filing a domestic partnership declaration with the state
A common-law marriage can only be established after a ceremonial marriage has been annulled

Correct answer: A present agreement to be married, cohabitation as spouses, and holding out as husband and wife to the community

Common-law marriage (recognized in fewer than 15 states) requires: (1) a present agreement to be married (not a future agreement); (2) cohabitation as spouses; and (3) holding themselves out to the public as married. No ceremony, license, or minimum time period is required.

Common-law marriage allows a valid marriage to be formed without a ceremony or license, in states that recognize it (approximately 8-10 states plus D.C., with several states grandfathering in pre-statutory abolition marriages). Requirements: (1) Present agreement: the parties must agree now to be married — a future agreement ('we will get married someday') is insufficient; (2) Cohabitation: the parties must live together as spouses; and (3) Holding out: the parties must represent themselves to the community as married (using the same surname, filing joint tax returns, referring to each other as spouse). No minimum time period is required. Once validly formed, a common-law marriage is a legal marriage in every respect — the parties must divorce to end it, and the marriage is recognized in other states under full faith and credit. The majority of states do not recognize common-law marriage and have explicitly abolished it by statute.

Question 3: Under the Full Faith and Credit Clause, when must a state recognize another state's divorce decree?

Always, because the Full Faith and Credit Clause requires absolute recognition of all state court judgments
Only if both spouses were domiciled in the state that granted the divorce
If the divorcing court had jurisdiction — meaning at least one spouse was domiciled in that state (Correct answer)
Only if the divorce was granted after a waiting period of at least six months

Correct answer: If the divorcing court had jurisdiction — meaning at least one spouse was domiciled in that state

Under Williams v. North Carolina (1945), a state has jurisdiction to grant a divorce if at least one spouse is domiciled there. Other states must give full faith and credit to a divorce decree from a state where at least one spouse was domiciled. A bilateral divorce (both parties participated) is binding on both — a default divorce is binding on the absent spouse only as to marital status.

Divorce jurisdiction requires domicile of at least one spouse. Williams v. North Carolina I (1942): a state may grant a divorce if one spouse is domiciled there, and other states must recognize it under Full Faith and Credit. Williams v. North Carolina II (1945): other states may challenge whether the domicile was genuine — if the domicile was fraudulent (e.g., briefly establishing 'residency' in Nevada), the divorce may be attacked. Estin v. Estin (1948): a divisible divorce doctrine — a state may dissolve the marital status (ex parte jurisdiction based on one spouse's domicile) even though it cannot adjudicate property or support rights of the absent spouse without personal jurisdiction over that spouse. Divisible divorce means: (1) Marital status (divorce itself): requires only one spouse's domicile; (2) Property division, alimony, child support: requires personal jurisdiction over both parties. Therefore, a Nevada quickie divorce dissolves the marriage, but does not divest a New York court of jurisdiction over the New York property if the absent spouse challenges support/property division.

Question 4: Under the Uniform Parentage Act and most state laws, what is the strongest presumption of legal parentage for a man?

DNA evidence establishing biological fatherhood
Marriage to the mother at the time of the child's birth or within 300 days before birth (Correct answer)
Acknowledgment of paternity signed by the alleged father
The court's determination based on the best interests of the child

Correct answer: Marriage to the mother at the time of the child's birth or within 300 days before birth

The marital presumption — that the husband of the mother is the legal father of children born during the marriage or within 300 days of dissolution — is the strongest parentage presumption in most jurisdictions. It can only be rebutted by clear and convincing evidence and in some states only by the husband or wife, not third parties.

The presumption of legitimacy (marital presumption of paternity) holds that a child born to a married woman is presumed to be the child of her husband. Historical rule: the presumption was nearly irrebuttable — the husband was presumed the father unless he could prove he was 'beyond four seas' (physically impossible access). Modern rule under UPA: the marital presumption arises when a man and woman are married when the child is born, or the child is born within 300 days after the marriage ends. Rebuttal: most states allow the presumption to be rebutted by genetic testing, but place strict time limits (often 2 years from birth or discovery) to protect the child's established family relationships (Michael H. v. Gerald D., 1989, allowing states to make marital presumption virtually irrebuttable). The UPA also creates presumptions from: signing a voluntary acknowledgment of paternity; being named on the birth certificate; or openly holding the child out as one's own. When two presumptions conflict (e.g., mother was married to H1 but H2 signed acknowledgment), the court resolves by the weightier policy considerations.

Question 5: Under property distribution law in an equitable distribution state, which property is generally subject to distribution upon divorce?

All property owned by either spouse, regardless of when or how it was acquired
Only property the couple purchased together during the marriage
Marital property — generally property acquired during the marriage by either spouse's efforts — excluding separate property such as inherited assets and pre-marital property (Correct answer)
Only property titled in both spouses' names

Correct answer: Marital property — generally property acquired during the marriage by either spouse's efforts — excluding separate property such as inherited assets and pre-marital property

In equitable distribution jurisdictions (the majority of U.S. states), only marital property is subject to division. Marital property is generally property acquired during the marriage through either spouse's efforts. Separate property — premarital assets, inheritances, and gifts received during marriage — is excluded, though it may become marital property through commingling or transmutation.

Equitable distribution (the majority rule in non-community property states) divides marital property equitably (fairly, but not necessarily equally) upon divorce. Marital property generally includes: wages and salaries earned during marriage, assets purchased with marital funds, retirement benefits accrued during marriage, and the marital home (even if titled in one name). Separate property generally includes: property owned before marriage; inheritances and gifts received during marriage (even if received from the other spouse); property received in exchange for separate property; and damages for personal injury (though some states split the components). Separate property can become marital property through: commingling (mixing with marital funds to the point it cannot be traced); transmutation (treating it as marital by title change or agreement); or active appreciation during marriage. Community property states (CA, TX, AZ, NV, WA, ID, LA, NM, WI) divide all community property 50/50 — there is no equitable distribution balancing.

Question 6: Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which state has jurisdiction to make an initial child custody determination?

The state where the custody proceeding is first filed
The state that is the child's home state — where the child lived for at least six consecutive months immediately before the custody proceeding (Correct answer)
The state that is most convenient for all parties
The state where the non-custodial parent lives

Correct answer: The state that is the child's home state — where the child lived for at least six consecutive months immediately before the custody proceeding

Under the UCCJEA (adopted by all 50 states), the child's 'home state' — where the child lived for at least six consecutive months immediately before the proceeding (or since birth for younger children) — has priority jurisdiction for initial custody determinations. This prevents parents from forum-shopping by moving to a new state to obtain a more favorable custody order.

The UCCJEA establishes a jurisdictional hierarchy for child custody: (1) Home state jurisdiction (primary): the state where the child lived for at least six consecutive months immediately before the proceeding; for infants under six months, the state where the child lived from birth; (2) Significant connection jurisdiction (fallback): if no home state or home state declines, the state where the child and at least one parent have significant connections and substantial evidence exists; (3) More appropriate forum jurisdiction: if another state's court has declined and a court here is the most appropriate forum; (4) Vacuum jurisdiction: no other state has jurisdiction. Once a court makes a custody determination, it retains exclusive jurisdiction as long as the child or one parent remains there — this prevents other states from modifying the order. Emergency jurisdiction: any state may take temporary custody jurisdiction to protect a child from abuse, neglect, or abandonment. The UCCJEA replaced the UCCJA and PKPA with a more uniform system.

Bar Exam Family Law 2

Under the Uniform Marriage and Divorce Act and most state laws, what is the standard for awarding child custody?