>> Modification has a prospective effect only. Back-due alimony (arears) cannot be changed.
TERMINATION: Death of either party, remarriage of recipient, or recipient engages in cohabitation.
>> Cohabitation: includes financial, social and sexual interdependence, in addition to sharing same resid.
ENFORCEMENT: Cease and sell assets, attach wages, suspend license, hold in contempt of court (jail).
TAXES: Deductible by payor, income to recipient.
>> Note: no tax deductions in division of property.
Children (Child Support)
(1) Identify parents (to determine who owes child support):
>> If woman is married: the presumption is that he's the father of the children.
>>>> If living together as H+W, nearly irrebuttable (need clear and convincing evidence)
>>>>>> Poss evidence; complete lack of sexual access OR physical impossibility.
>>>>>> AND: even if rebutted, there's Paternity by Estoppel: if accept role of father, hold child out at son, can't evade paternity.
>> If woman unmarried: paternity suit.
>> Court can order a blood test or a party can request one through the court.
>> Once adjudicated, final. Res judicata.
(2) Child Support:
>> Each parent much provide for the child up to age 18 or emancipation (completes high school, married, ect.).
>>>> May extend beyond 18 IF: child has a phys/mental disability, existing when he reaches 18, that prevents him from being self-supporting. Also may endure if kid has a drug addiction such that he's not able ro secure employment and is dependent on his parents.
>> If non-custody parent, only need to provide if there is a court order requiring provision.
>>>> KEY: Parties are not living together. If live together, obligation satisfied with rents checks, groceries, ect.
>> ALGORITHM: Discretion of the court, but it has to set out its rationale on the record.
>> HEALTH CARE: Court order must also include a prevision re: health care for the child if it is not an unreasonable burden on the non-custodial parent (less than 5% monthly income).
>> DURATION: Continues until the child reaches the age of maturity (18).
MODIFICATION: If payor gets hurt, suffers an injury, the amount of the child support can be reduced. However, if payor has good fortune, ie. wins the lottery, can be raised.
TERMINATION: Automatically terminations on the death of the parent or child.
IF PARENT MOVES OUT OF STATE: The uniform support statute provides for the direct enforcement of court orders across state lines -- an order from one state can be mailed to an employer in another state and wages, as a result, can be garnished. The court that issued the original order maintains exclusive jdx SO LONG AS one parent remains in that state -- continuous and exclusive jdx prevents inconsistent orders.
>> Key: Either send to his employer in another state, or to a court.
>> Can also file a claim and intercept tax refunds. And if a parent wins the lottery, can claim a percentage.
TAX: Child support payments NEITHER deductible as alimony NOR includible as income to the custodial parent.
GEN: Two custody types --
(1) Legal Custody: Which parent makes legal decisions affecting the best interests of a minor child.
(2) Physical Custody: Actual physical possession and control.
>> Court may award shared legal custody, shared physical custody or both to assure that a child will have frequent and continuing contact and physical access to both parents.
EFFECT: When custody order is issued, valid under the child reaches the age of majority (18).
MODIF: Can modify as a result of changed circumstances, but must show (1) a changed circumstance affecting the best interest of the child.
>> NOTE: If change filed when one parent is away on duty (military), then the court can only make a temp change.
STANDARD: Best interests of the child.
>> Interests and wishes of the parties, and if the child is over 12, the child's interest.
>> Physical and mental conditions of the parents (emotional circumstances, abuse?)
>> Whether a parent is living w/ another person
>> Domestic violence?
>> No child should be given to a parent conficted of killing the other.
JOINT CUSTODY: Parents get along with each other? Live near each other?
EXCLUSIVE CUSTODY: Visitation almost always permitted.
>> Contempt of court to deny or interfere with visitation.
JDX: HOME STATE RULE (GEN) -- home state of the child in the present or recent past (6 months) where a parent continues to live in that state. Child must have lived in the state for at least six consecutive months immediately before commencement of the proceedings.
>> If no hom state, can use courts in the state where a parent has a signif. connection and there's sub evidence re: child in that state.
>> Note: state has temporary emergency jdx in situations of abuse/abandonment.
Children (Custody Disputes B/wn Parents and Non-Parents)
STANDARD: Best interests of the child.
GEN: If non-parent wants custody, first must show standing --
(1) Statute proving standing; OR
>> GPARENTS: One parent of the child is deceased, the parents have commenced divorce proceeding or been separated for 6 months, or the child lived w/ them for a year or longer.
>> NOTE: Parents interest should be given special weight.
(2) With no statute, show in LOCO PARENTIS -- acted as a parent with consent of a biological parent.
>> Note: good for same sex couples -- provides standing for non-bio partners.
PRESUMPTION: Live with the biological parent.
>> Even if a kid moved from good circumstances, courts are inclined to side with biological parents.
Children (Non-Parent Visitation)
GEN: Standing requires standing grant through a statute or a showing of in LOCO PARENTIS.
KEY: Must show stong need to visit child -- trumping due process right by requiring state to encroach on parents' rights.
NOTE: If all non-parents show is a desire to visit, they fail.
NOTE: Uphill battle.
Gen Spousal Support
NOTE: Spousal support may be awarded to a spouse at any time during the course of the marriage, even when no divorce proceedings have been or will be initiated.
BUT: NO support if guilty of conduct that would be grounds for divorce.
Adoption (and Termination of Bio Parents' Rights)
BIO PARENTS CONSENT (AND VETO POWER)
CHILD LESS THAN 12: Biological parents' consent needed if child is less than 12.
CHILD OLDER THAN 12: need child's consent AND bio parents.
CHILD INCAPACITATED: Need consent of guardian if not parents.
WHERE ADOPTER MARRIED: If married and wish to adopt, need the consent of your spouse.
WHERE OTHERS HAVE CUSTODY: Need consent of current custodian as well as bio parents.
WHERE SIGNS OF ABANDONMENT/NEGLECT:
GEN: Adopting party may seek to terminate bio parents' rights without consent if
(1) Abandonment: not performing parent responsibilities for at least six months.
(3) Neglect: failure to provide food, clothing ,ect.
NEXT STEP: Following consent or demand if not needed, investigate prospective adopters.
HEARING: Best interests of the child. If adopted, same relationship as biological parents.