Child Custody

Adjunto:

• Intro to Paralegal Midterm Review

1. Who's Involved?
   1. Parents
      1. Attorneys
   2. The Child
      1. Guardian ad Litem
      2. Attorney ad Litem
   3. Witnesses
      1. DCS, friends, neighbors, police, CASA etc.
   4. The Court
2. 1. Types of Custody
   1. Sole or Joint
      1. Physical
         1. Where or with whom the child resides
            1. Custodial/Residential Parent
               1. Parent with whom the child mostly resides
            2. Noncustodial/Alternate Residential Parent
               1. Parent lacks sole physical custody, but still has parental rights and responsibilities
      2. Legal
         1. Decision making authority
   2. Split Custody
      1. Each parent gets physical and legal custody of at least one child
         1. Family unit is completely split
            1. Not favored by the courts
3. 2. Jurisdictional Issues
   1. UCCJEA
      1. Designed to reduce jurisdictional conflicts between states in child custody matters
         1. Adopted by TN TCA 36-6-201 et. seq.
      2. Key Terms
         1. Home State Jurisdiction
            1. State where child has lived with a parent for at least 6 consecutive months
            2. It's the #1 option for jurisdiction
         2. Significant Connection Jurisdiction
            1. Used if child has no home state or home state declines jurisdiction
            2. Must be "substantial evidence" tying the child to the state
         3. More appropriate forum
            1. Home state and state with significant connection may decline jurisdiction if another state is more appropriate
         4. Vacuum/last resort Jurisdiction
            1. Jurisdiction based on the fact that no other state will act
         5. Temporary Emergency Jurisdiction
            1. Child is present in the state & needs protection
         6. Continuing Exclusive Jurisdiction
            1. Remains with the initial state until
               1. The initial court determines child and child's parents no long live in that state
                  1. OR the initial court determines the substantial connection is lost
   2. Parental Kidnapping Prevention Act
      1. Federal Law requiring states to honor other states' custody orders so long as those orders comply with PKPA
         1. Original state maintains jurisdiction until no longer the "home state" or neither child nor parent resides there
4. 3. Standards for Custody Decisions
   1. Paternal/Maternal Preference
      1. Largely abolished
   2. Tender Years Doctrine
      1. Idea that custody of young children should go the mother unless she is unfit
   3. Best Interests of the Child
      1. Focuses on the child's needs rather than the parent's wishes
         1. TN has 15 factors to consider; TCA 36-6-106
   4. Other Concepts
      1. Primary Caretaker Presumption
         1. Favors the person who performed most significant parenting tasks
            1. See TCA 36-6-106(a)(1) and (5)
      2. ALI Approximation Rule
         1. Responsibilities post-divorce should mirror how each parent care for the child when the family was intact
      3. Other Factors
         1. p. 319-329
5. 4. Post Divorce Custody Issues
   1. Parenting Plans

      Nota:

      • http://tncourts.gov/node/253
      1. Visitation
         1. Flexible vs. Defined
         2. Supervised vs. Unsupervised
            1. Factors p. 332
      2. Decision Making Child Support Parent Education Relocation
   2. Modification of Custody
      1. Must show "substantial & material change of circumstances" affecting the child
         1. Court must consider: foreseeability of the change, the child's best interest
      2. Relocation
         1. Must give notice: 60 days in TN 36-6-108(a)
            1. TCA 36-6-108(d) gives factors a court would consider
   3. Enforcement
      1. Civil Contempt
      2. Criminal Contempt
      3. Alter Visitation/Custody
6. 5. Interests of 3rd Parties
   1. Psychological Parents
      1. Standing?
   2. Step-Parents
      1. TCA 36-6-303
   3. Grandparents
      1. May have visitation rights; TCA 36-6-302, 306, & 307
7. The Paralegal's Role
   1. p. 353-354