Family Law II
Spector
Spring 2015
Family Law Review
· If QDRO, tax is split. If cutting check, employee pays all of the tax.
· Most important skill for a family law attorney
· Preparedness
· Get into the habit of being prepared.
· Honest.
· Know the law
· How to practice the law.
· What is the law of family law?
· Also talk about how to practice law.
· Lawyers live by checklist. Never to early to begin yours.
· Opening cases/closing cases.
Open book final exam, may bring casebook, notes, statutes, anything you have prepared or assisted in preparing. Essay/short answer
Williams v. NC
· These two cases establish:
· The court has to give full faith and credit to one state if the state has jurisdiction in the sense of domicile of the parties asking for the divorce
· The state to which the state is taken can determine the validity of the divorce in spite of full faith and credit if they are challenging the validity of the domicile
CHAPTER 5. CHILD CUSTODY AND VISITATION
A. The Problems of the Interstate and International Child
1. Constitutional Concerns
May v. Anderson, 1953, pg. 517
· Facts: They were married in Wisc until 1947. Wife took the kids with husband’s permission to Ohio for a while to think about their marriage. Wife decided she didn’t want to go back to Wisc and told the husband. Husband filed suit in Wisc and the wife never appeared and so Wisc gave the father the kids. He got the kids back by force using a police officer and took them back to Wisc. He let the kids visit their mother until she wouldn’t give them back.
· Why habeas corpus? It’s been used as a method to enforce a child-custody determination.
· Used to product the kids. Immediate right and possession of the child.
· Asking her to produce the children.
· Determines who has the immediate right to the children right now.
· Wisconsin issued the decree. Full faith and credit side.
· Divorce gave father children. Ohio refuses to give the children.
· Ohio had to have personal jurisdiction over the wife.
· A mothers right to custody of her children is a personal right.
· In personum case = minimum contacts. Both must be there.
· No majority in this case.
· Frankfurter concurrence: Ohio can recognize it if they want. If they can, then there is room for a uniform act to determine jurisdiction. He is wrong. Burton is right. Talking about enforcement. Status jurisdiction b/c they had jurisdiction to issue the decree. Same universe as Williams. If the case comes out of ct that granted divorce, then it must be a due process case.
· Due process and full faith and credit are two different sides to the same coin.
· Personal jurisdiction – $$$ ases.
· Status case – divorce/custody/visitation
· Burton – fundamental right to assert personal jurisdiction. Before you may decide this question, you need personal jurisdiction over the mother.
· If wisc had a long arm statute, then it would have been ok b/c she had minimum contacts.
· Dissent is afraid of what would happen with the custody decree. It’s a “seize and run” essentially. Most of the child kidnapping back in 70-90s was done by the parents. Would go and find a friendlier forum.
· Custody decrees is that it is modifiable until the child ages out. The same is true with support. It can continue to be modified.
· FFC was never the answer. if its modifiable in the state it was rendered, then it was modifiable in the state that they wanted to modify.
· This case created a firestorm.
· Frankfurter is right. Should this be the same rules as child support/alimony (personal jurisdiction) or same approach as divorce.
· Status jurisdiction is best because people move and there are a lot of factors.
Hypo: M + D in Kansas. Dad takes kids. Dad moves to Ok with kids and marries woman. Step parent adoption. Affect of terminating mothers parental rights. Not happy with this.
· Same as hypo.
Status jurisdiction = divorce, custody, and visitiation
· Can have only 1 party.
· Limitation on subject matter jurisdiction.
· UCCJEA: limitation of subject matter jurisdiction.
In personum jurisdiction = child support, alimony
· You need both parties present.
· Somehow the state is really involved with the status of its people.
· Ohio is concerned with the children within its borders.
· US v. Windsor – struck down section 3 of DOMA. States have a great interest in who can marry.
· Wisc can have in personum jurisdiction on a custody case . As long as they have a long arm statute.
· If wisc had a long arm statute, then it would have been ok b/c she had minimum contacts.
1968 – Uniform Child Custody Jurisdiction Act
4 jurisdictional basis for custody determination (enforced in this state, we will only decide custody cases if one of these 4 jurisdiction grounds are present and we will enforce custody determinations if made under one of the 4 grounds but no others.)
· 1) Home state
· 2) Significant connection
· Best interest of child b/c child has significant connections to state and there is substantial evidence of the connection to the state.
· 3) Emergency jurisdiction
· 4) Necessity jurisdiction (no one else has it)
· Lot of inconsistent decisions under this Act. These were independent basis’. Basically a race to the court house.
1980 Congress enacted the PKPA (Parental Kidnapping Prevention Act)
· Tells states that if a child custody determination was made under jurisdictional standards, then all other states must give that state full faith and credit.
· If 1 state is in significant conformity, then no other state may exercise jurisdiction will case is pending. 28 USC 1738A.
· 1) the state had jurisdiction under its own law (UCCJA)
· 2) it’s the home state of the child.
· There were differences in the two laws. You had to work through the UCCJA.
· Homer Clark-last hornbook on domestic relations.
1997 – UCCJEA
· automatically complied with PKPA.
Texas-after a couple is married , and no one claims it within 1 year, there is no marriage
Anytime the proceeding deals with who is in charge of a child or who gets access to a child, it is under the UCCJEA
2. Original Jurisdiction Under the UCCJA and the UCCJEA
Holt v. DC for the 20th Judicial District, 1981, pg. 521
· Facts: Husband and wife married in Oklahoma. 7 years later they move to Oregon. 2 years l
STODY JURISDICTION AND ENFORCEMENT ACT
· This Act, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), revisits the problem of the interstate child almost thirty years after the Conference promulgated the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJEA accomplishes two major purposes.
· First, it revises the law on child custody jurisdiction in light of federal enactments and almost thirty years of inconsistent case law. Article 2 of this Act provides clearer standards for which States can exercise original jurisdiction over a child custody determination. It also, for the first time, enunciates a standard of continuing jurisdiction and clarifies modification jurisdiction. Other aspects of the article harmonize the law on simultaneous proceedings, clean hands, and forum non conveniens.
· Second, this Act provides in Article 3 for a remedial process to enforce interstate child custody and visitation determinations. In doing so, it brings a uniform procedure to the law of interstate enforcement that is currently producing inconsistent results. In many respects, this Act accomplishes for custody and visitation determinations the same uniformity that has occurred in interstate child support with the promulgation of the Uniform Interstate Family Support Act (UIFSA).
ARTICLE 2 -Jurisdiction
§ 551-201. Initial Child Custody Jurisdiction.
· A. Except as otherwise provided in § 551-204 of this act, a court of this state has jurisdiction to make an initial child custody determination only if:
· 1. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state, but a parent or person acting as a parent continues to live in this state;
· 2. A court of another state does not have jurisdiction under paragraph 1 of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 19 or 20 of this act, and:
o a. the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence, and
o b. substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
· UCCJA-1968 – Uniform Child Custody Jurisdiction Act
· Set 4 concurrent basis for jurisdiction
· 1) Home state
· 2) State with significant connections + substantial evidence
· 3) Emergency jurisdiction
· 4) Necessity.
