Family Law Flashcards

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

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.

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

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.

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

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.

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

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.

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

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.

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

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.