Upgrade to remove ads
Only $35.99/year

MEE Family Law

Terms in this set (71)

Common-Law Marriage
Elements:

(1) Present agreement: both parties must intend to presently be married

(2) Cohabitation: the parties must live together

(3) Holding out a marital relationship: to the community: hold themselves out as "spouses"

Note: Most states do not recognize common law marriage.

Conflict of laws:

A marriage (including a common law marriage) valid in one state will be valid in another state unless it violates a strong public policy of the other state.
Requirements for a Valid Ceremonial Marriage
License & Solemnization
License Requirements
(1) Minimum age requirement (18 or with parental consent)

(2) Waiting period

Most states require a waiting period between the date of marriage license and the date of marriage ceremony

(3) Premarital medical testing

Required in some states
States cannot condition the issuance of the license based on the outcome of the medical testing.
License will NOT be issued when
(1) One party is already legally married to another party

(2) Consanguinity: if the parties are too closely related as defined by statute

(3) Sham: Entering marriage as a sham: parties are not genuine on the basis of marriage

(4) Incapacity: Either party is not capable of understanding the act

(5) Intoxication, duress, fraud: Most jurisdictions - license will not be issued if either party was under the influence of drugs or alcohol that rendered them incapable of giving consent, or if a party is under duress.
Solemnization
(a) Most states require at least 2 witnesses to the marriage.

(b) Most states require a judge, clergy person, or political officer to preside.

(c) Some states allow a "proxy" to stand in for one of the parties with written authorization (if one of the parties cannot be there - e.g. overseas, incarcerated, etc.).
Heartbalm Actions
Civil suit for money damages to the reputation when one party leaves the other before the marriage

E.g., someone is left at the altar - can sue the other party for money damages

Nine jurisdictions currently recognize these actions.

Exam Tip: On the bar exam, assume the jurisdiction has abolished heartbalm actions unless the question states otherwise.
Can courts refuse to decide disputes which occur during the marriage relationship?
No, unless and until the parties separate.

The relationship between spouses brings with it many rights, responsibilities, and constitutional privacy issues.

Courts treat disputes of family matters as private matters.
Annulment of a Void Marriage
Anyone can void a void marriage - a court judgment is not needed.

The marriage was never valid: it was void ab initio - void from the outset

Bases for void marriage include:

(i) Bigamy - one party already married
(ii) Incest or consanguinity - no lineal relationship
(iii) Mental incapacity - one of the parties does not understand the nature of marriage

Exception: Enoch Arden statutes (c.f. Castaway). If one spouse has a good faith belief that the other spouse is deceased then the second marriage can be legalized once the spouse returns if there is a divorce from the returned spouse.
Annulment of a Voidable Marriage
Only one of the spouses can challenge a voidable marriage.

A judicial decree is necessary to declare a voidable marriage done.

Reasons for voidability include:

(i) Age (unless the underage person reaches majority and is still married)

(ii) Impotence (unless the spouse knew ahead of time)

(iii) Intoxication (at the time of marriage)

(iv) Fraud as it relates to the essentials of marriage (eg faked pregnancy) - Most courts require immediate cessation of cohabitation when the fraud is discovered.

(v) Misrepresentation, duress, force

(vi) Lack of intent to be married (joke, sham, against public policy)
If the marriage is annulled
There will still be an equitable distribution of property.

Spouses can be awarded alimony in some cases.

Children of the purported marriage are still considered legitimate children and have the same rights to support as children of divorce.
Putative Spouses
Parties who have a good faith belief (honest, objective, and subjective belief) that they are legally married will be protected as if they are actually legally married (e.g., bigamy situations).

Requirements of good faith:
(1) Honest,
(2) Objective, and
(3) Subjective belief

This requires an attempt to comply with the formality of a legal marriage.

Property distribution and support will occur as if the parties were legally married.

A majority of states recognize putative spouse. It is considered to be an equitable solution.
Divorce
Divorce is a legal dissolution of the marriage.

Effects of the divorce:

- Restores the status of the individual parties to "unmarried"
- Distributes of property rights acquired during the marriage
- Addresses issues of spousal support (maintenance/alimony)
- Addresses issues of child custody
- Addresses issues of child support
- Sometimes attorney fees
Grounds for no-fault divorce (most used in modern times)
o Every jurisdiction has a unilateral no-fault ground for divorce, requiring neither fault nor consent of the other spouse.

o Generally requires that the marriage be irretrievably broken with no prospect of reconciliation (often using the term "irreconcilable differences")

o No attempt at reconciliation required

Lapse of time between time the divorce is file and the time the decree actually enters: most states require a 90-day period.
Fault-based divorce
Divorce in which parties allege fault

The "innocent spouse" is entitled to a greater degree of property (reason why one might pursue a fault-based divorce).

Affects spousal support and custody (another reason why one might pursue a fault-based divorce)
Grounds of Fault
1) Adultery (have to show opportunity and inclination to commit adultery)

2) Extreme and repeated physical or mental cruelty (some states recognize emotional cruelty as well)

3) Abandonment or desertion: Conduct plus intent not to return
Constructive desertion - conduct is so horrible, that other spouse is forced to leave

4) Habitual Drunkenness: excessive drunkenness, unless the party knew that the other spouse was habitually drunk prior to the marriage (assumption of risk)

5) Bigamy

6) Institutionalization: institution or prison (must be a prolonged institutionalization, or one without a known return date)

7) Indignity (recognized in minority of states, similar to abuse)

8) Sexually transmitted diseases

9) Attempted murder of spouse
Defenses to Divorce
If a spouse claims that other spouse is at fault, the spouse may respond with a defense to protect assets.

1) Unclean hands (eg Both spouses committed adultery.)

2) Connivance: Person has consented to the marital wrong or encouraged the fault.

3) Condonation: Forgiveness (as long as the other party promises to not do the act again)

4) Collusion: The parties conspired to fabricate a fault.

5) Provocation: Constructive abandonment (i.e. the conduct is provoked)

6) Insanity

7) Consent

8) Justification

NOT Religion: A litigant that challenges divorce on religious grounds will fail in all jurisdictions.
Separation
o Some states require a minimum period of separation before a divorce will be granted.
o The separation does not have to be agreed to by both spouses.

o A spouse can unilaterally move out and start the separation period.
Mediation
o Mediation is sometimes used to facilitate the separation and divorce process.

o The mediator must follow a code of conduct. Duties include that the mediator must:

Be impartial and disclose any conflicts of interest he may have;

Clearly explain and control the mediation process and ensure that the parties have the information to make an informed decision; and

Not coerce or improperly influence a party to make a decision.

Exam Tip: Mediator misconduct may be grounds for not enforcing a separation agreement or a property settlement.
Community property (equal distribution)
o Only used in nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin

o Generally requires an equal division of the marital property
Equitable distribution
o Majority rule

o Requires an equitable, or fair distribution of all marital property

o Takes into consideration all of the circumstances between the parties
Marital property (MP) and separate property (SP)
o MP is divided between spouses, but SP generally remains the property of the owning spouse.

o SP includes assets acquired during marriage by gift, descent, or devise. SP also includes anything acquired before marriage.

o MP is all property/assets acquired during marriage by any means other than gift, descent, devise.

SP can be transformed into MP if marital funds or efforts by owner-spouse enhance its value/or build equity during marriage.
Non-marital property
1) Property acquired before the parties were married

2) Property that the parties agree is non-marital property (c.f. prenuptial agreement)

3) Property acquired by gift or inheritance

4) Property acquired after the parties are separated (so long as the property was not the fruits of labor during the marriage prior to separation)

5) Property acquired as a result of a claim or cause of action that occurred prior to marriage
Factors courts will consider to determine equitable distribution
1) Duration of the marriage (Generally, the longer the marriage, the closer to 50/50 distribution the courts will get.)

2) Health, age, and income of the spouses

3) Contribution

4) Future needs (e.g. are the parties close to retirement? The needs might be higher the older they get)

5) Education

6) Separate property and assets (prior to coming into the marriage)

7) Child custody and spousal support

8) Standard of living
Specific types of marital property
(1) Future retirement/pension benefits

If a spouse works during the marriage and creates or earns profits or benefits that will not be received until after divorce, the profits will be considered MP.

(2) Professional licenses/degrees

Most courts do not treat these as MP but may award reimbursement for a spouse's actual contribution to educational and living expenses.

(3) Personal injury claim proceeds:

There are two approaches to personal injury awards, and you should discuss both:

- Approach 1: If the cause of action accrues during marriage, even if the spouses are separated, all proceeds are treated as MP

- Approach 2: Damages are divided between MP and SP by type

o Compensatory damages (e.g., pain, suffering, disability) are SP of the injured spouse

o Consortium loss damages are SP of the non-injured spouse

o Lost wages, lost earning capacity and medical expenses are MP
Modification of a property division award
o A property division is not modifiable after the fact because it is based on the parties' assets at the time of divorce.

o Changes in the parties' circumstances after divorce do not affect the award.
Spousal Support (also referred to as spousal maintenance or alimony)
The obligation of one party to provide the other with financial support.

The majority of jurisdictions consider various factors when determining the support award.

These factors include:

(1) Financial resources of both parties

(2) Standard of living during marriage

(3) Time it will take for receiving
spouse to find employment

(4) Length of marriage

(5) Contributions to marriage

(6) Age and health of both parties

(7) Marital misconduct (only in some states)
Types of support
(1) Permanent alimony

An award for the remainder of the dependent spouse's life (generally only appropriate after long marriages).

(2) Limited-duration alimony

Typically awarded when the marriage was of short duration (making permanent alimony inappropriate).

(3) Rehabilitative support (recently tested)

For a limited period of time, such as until the spouse receives a higher education degree or employment.

(4) Reimbursement alimony (recently tested)

Compensates a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future.
Modification of spousal support
o In general, spousal support may be modified.

o The party seeking modification of spousal support has the burden of establishing a significant change in circumstances that warrants the modification. (If ambiguous, argue both sides)

o A party's voluntary reduction in income will generally not reduce support payments.

o A court may consider new obligations that arise for the spouse who is paying support.

Exam Tip: When discussing a party's action for modification of spousal support, analyze the facts carefully and discuss both parties' arguments regarding the significant change in circumstances.
Support during marriage
In most jurisdictions, spouses have a duty to support each other equally under family expense statutes.

If a creditor provides a "necessary" item (such as medical care) to one spouse, it can sue the other spouse for payment if the purchasing spouse does not pay.
Jurisdictional Issue: Divisible (Ex Parte) Divorce
o A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction.

o A state court may grant a divorce to one spouse, even if it does not have personal jurisdiction over the other spouse. (it's only power is to grant the divorce)

o However, if there is no personal jurisdiction over the absent spouse (see UIFSA), the state does not have jurisdiction to address property division, spousal support, or child support (ie anything other than divorce).

Exam Tip: Look for situations when spouses now live in separate states, and a spouse who has met a residency requirement in one state wants a divorce or support from the other spouse. These situations often trigger this testable issue.
Child's right to support from parents
o Both parents are legally required to support their minor children.

o Parents cannot bargain away child-support payments and cannot agree to any release or compromise that would negatively affect the child's welfare.
Marital Presumption of Paternity
The marital status of the husband and wife gives rise to a presumption that children born during the marriage are children of that marriage.

Majority view: Only one of the spouses can challenge paternity.

Minority view: A putative father can challenge paternity.

Rebuttals: impotence, sterility, or alleged father had no access to the wife.
Paternity by estoppel
In some instances, if the husband finds out he is not the father of the child, he is estopped from refusing to pay child support.

Husband is required to pay child support if:

1) There has been a representation by him that he would pay child support (he held himself out as going to pay child support)

2) There was reliance on that representation

3) Wife/Mother and child would suffer economic detriment as a consequence of that reliance
Uniform Interstate Family Support Act (UIFSA) (determining personal jurisdiction over an out-of-state parent)
o The UIFSA governs when a state has personal jurisdiction over an out-of-state parent in an action to establish or enforce child support, or establish paternity.

o A court will be found to have personal jurisdiction over an out-of-state parent in various situations, including when the out-of-state parent:

(1) Is personally served within the state or consents to jurisdiction;

(2) Resided with the child in the state in the past; or

(3) Engaged in sexual intercourse in the state, and the child may have been conceived by that act of intercourse (recently tested).

See Family Law Outline III.C.4. for other bases of personal jurisdiction under the UIFSA.
Amount of child support
Child-support awards are typically based on income received by the obligor (paying) parent.

Other factors may include:

(1) Best interests of child
(2) Age
(3) Special needs
(4) Assets of both parties
(5) Standard of living during marriage

Note: All jurisdictions have adopted child support guidelines. There is a rebuttable presumption that the amount calculated pursuant to the child-support guidelines is correct, but if the court decides to deviate from that amount, the court will consider other factors in determining the amount and set forth specific findings explaining and supporting the deviation.
Basic Models to Determine Child Support
Income Shared Model (majority): The total income that each parent makes determines the correct percentage. (Combined net income of both parents)

Percentage of Income Model (minority): Percentage amount of the non-custodial parent's income (the parent with whom the child does not primarily reside).

Melson Formula (minority): Based upon the net available income of the parent vs. gross income. (Considers the parents' expenses and financial needs are first before calculating child support)

American Law Institute: A percentage of income model that also takes into consideration the time a parent spends with the child.
Modification of Child Support
In general, child support modifications are permissible when there is a substantial change in circumstances regarding the child's needs or the parents' financial situation.

The party seeking the modification of child support bears the burden of showing a substantial change in circumstances.

Circumstances may include (i) a parent's change in occupation, (ii) remarriage of a parent, or (iii) an increase or involuntary decrease in income by either parent.

A court will only modify child support amounts prospectively (only reduce the amount in the future - no retroactive reduction).
Jurisdiction to Modify Child Support
Under UIFSA, a state court does not have jurisdiction to modify an order of child support rendered by a court of another state if the original state has continuing, exclusive jurisdiction.
Termination of Child Support
A parent's obligation to pay support usually ends when the child reaches the age of majority (typically 18).

Some jurisdictions have the authority to order support beyond the age of majority when the child is in college.

Reasonable parental demands (recently tested):

- An employable child's right to support is contingent on compliance with reasonable parental demands

- An employable child who fails to comply, even if attending college, risks loss of parental support.
Jurisdiction over existing child support obligations (recently tested)
(1) Jurisdiction to modify a child support decision

Under the UIFSA, the state that issued the initial child support order has continuing exclusive jurisdiction to modify the child support order.

Exceptions:

- The parties (both parents) and the child no longer reside in the state; or

- The parties expressly agree to permit another state to exercise jurisdiction.

(2) Enforcement

Under the UIFSA, the receiving parent may register a child support order from one state in another non-issuing state.

The non-issuing state can then enforce the support order.
Child Custody
Having custody (i.e., control) of a child can mean having legal custody or physical custody, or both.

Either or both of these types of custody can be shared under a joint custody arrangement.
Legal custody
The right of a parent to make major decisions regarding the child.
Physical custody
The right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child.
Joint custody
Generally requires that the parents are both willing and able to cooperate with respect to the wellbeing of the child; typically, neither parent has a superior right to make major decisions.
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.
Initial custody determination (home-state jurisdiction)
A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is:

o The child's home state and has been the home state for a period of six months or since birth, if the child is less than six months old; or

o Was the child's home state in the past six months, and the child is absent from the state, but one of the parents still lives there.
Significant-connection jurisdiction
A court can enter or modify an order if:

o No other state has or accepts home-state jurisdiction;

o The child and at least one parent have a significant connection with the state; and

o There is substantial evidence in the state concerning the child's care, protection, training and personal relationships.
Exclusive-continuing jurisdiction
Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:

o Both parties no longer reside in the state; or

o The child no longer has a significant connection to the state, and any substantial evidence connected to the child's condition is no longer available in the state.
Enforcement of Custody Order (UCCJEA & PKPA)
(1) UCCJEA Expedited Enforcement of an order

Parent can register the of out-of-state judgments

Respondent must appear on the next judicial day after service of the order.

This will result in immediate physical possession of the child, unless there are procedural deficiencies or potential harm to the child.

(2) Parental Kidnapping Prevention Act (PKPA)

Works similarly to the UCCJEA but applies to all kidnapping acts and also addresses civil interstate custody issues, including visitation.

Under the Supremacy Clause, the PKPA takes precedence over state law: can be used to prevent forum shopping.

The PKPA discourages parents from absconding with the children between states and allocates the powers and duties between states when a child custody dispute arises.
Best Interests of the Child Standard (applies to both child support and child custody)
The standard for determining child custody is the best interests of the child.

Allows flexibility - courts may consider anything to affect the child's well-being.

Courts cannot consider race and religion as a deciding factor in making a custody decision.

1) Sexual conduct—not considered unless the conduct threatens the well-being of the child.

2) Legal parents are presumed to act in the child's best interest.
This is tested against a third party attempting to act as a "de facto" parent.

3) Wishes of the child: Child must have the maturity enough to express a preference; generally, children over 12 or 14.

4) Guardian Ad Litem: Sometimes appointed in contested cases to represent the child's best interest in court and express the child's best wishes or as a neutral party.

They can be attorneys or sometimes just lay people.

Their opinion is another factor court may consider in determining custody.

5) Siblings are generally kept together when awarding custody.

6) Domestic violence may create a rebuttable presumption awarding custody to the parent.
Visitation and Parenting Time
Generally, the noncustodial parent is allowed reasonable visitation (or "parenting time") with a minor child.

o Parents have a constitutional right to have contact with their children.

Unwed biological fathers (recently tested): An unwed father has a substantive due process right to have contact with his child, but only when the father demonstrates a commitment to the responsibilities of parenthood (e.g., participation in child rearing or providing financial support).

Third-Party Visitation:

(a) General Rule: Courts are reluctant to interfere with a legal parent's decision on how to raise his child and on whom their child has contact with. (It's a fundamental right and the parents' decision is given special deference.) Look to situations of grandparents' visitation rights.

(b) Unwed biological fathers: Have a constitutional right to have visitation with the child, but the unwed father must demonstrate, by conduct, a desire to have a parental relationship with the child (i.e., providing support).

(c) Court will not look to sexual orientation when looking to award or decline visitation.

(d) HIV and AIDS will not automatically preclude visitation: it depends on what is in the child's best interest.
Enforcement of custody order
If the parent does not comply with the custody order, sanctions include:

(1) Compensatory/make up visitation time

(2) Attorney's fees, court costs, jail time

(3) Fines

(4) Tort Damages
Modification of Custody Order
The burden is on the parent seeking modification to establish that the modification is warranted. Most jurisdictions require a substantial change in circumstances to modify the custody order.

Relocation (recently tested)

o In most jurisdictions, the custodial parent seeking relocation bears the burden of demonstrating that the relocation is for a legitimate and reasonable purpose, as opposed to restricting the noncustodial parent's visitation.

In determining whether to modify the custody order and allow the parent to relocate, court will consider various factors, including:

(i) The best interests of the child
(ii) The relationship of the non-relocating parent with the child
(iii) Age and needs of the child
(iv) The child's preference
(v) The quality of life of relocating parent and child
Premarital agreements
o A premarital (also known as "prenuptial" or "antenuptial") agreement is a contract made before the marriage, typically containing terms that relate to division of property or spousal support in the case of a divorce and at death.
o Clauses relating to child custody and support are unenforceable.

o A premarital agreement is enforceable if there has been full disclosure between both parties, the agreement is fair and reasonable, it is voluntary, and in writing and signed by the party to be charged.
Enforceability of a Prenuptial Agreement under the Uniform Premarital Agreement Act (UPAA)
Under the Uniform Premarital Agreement Act (UPAA), to make an agreement unenforceable, a party must show at least one of the following:

(a) Involuntariness (fraud, duress, coercion); or

(b) Unfairness or unreasonableness together with lack of reasonable knowledge or disclosure.

1. Voluntary element

The parties must enter into the contract voluntarily (i.e., free of fraud, duress, or coercion).

Courts consider factors such as time-pressure and the opportunity to be represented by independent counsel.

Exam Tip: The parties need not actually seek legal representation to make the agreement voluntary.

2. Fair and reasonable element

The court will look for factors such as duress, undue influence, misconduct by a mediator, and whether the party to be charged had independent representation.

The courts will also consider the fairness of the terms themselves.

Most courts evaluate fairness at the time of execution of the contract, and a minority of jurisdictions will also evaluate it at the time of enforcement.

Note: The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.

3. Full disclosure

Premarital agreements must provide full disclosure of financial status, including income, assets, and debts of all parties.
Separation agreements
o Separation agreements are made between spouses who are planning for divorce to define property division, spousal support, child support, custody, and visitation.

o Separation agreements may be invalidated in part or in whole if a party can show unconscionability or fraud.
Property-settlement agreement
o The purpose of a property-settlement agreement is to settle the economic issues of the marital estate. It is entered into by the parties before a divorce decree is issued.

o Property settlement agreements may be invalidated in part or in whole if a party can show unconscionability or fraud.
Conflict of laws & the validity of a premarital agreement
When determining the validity of a premarital agreement, states will apply the law of either:

o The state in which the agreement was executed; or

o The state with the most significant relationship to the parties and transaction.
Voluntary Termination
The natural parent voluntarily relinquishes any rights.

Putative Fathers: A putative father who fails to register in the putative father registry cannot then object to the adoption of the child and the mother alone can consent to the adoption.

If the putative father has not taken an active role in child's life and has not demonstrated a commitment to raising the child, adoption can also proceed without father's consent.

Withdrawal of consent: prior to the final decree of the adoption, the parents can withdraw their consent.

Records regarding adoption are sealed. (Most courts will allow the child to obtain the medical records of the child's birth parents. Otherwise, the records are kept confidential.)
Involuntary Termination
When the court steps in. Only the courts can involuntarily terminate the parent-child relationship.

Requirements:

1. The State must provide services and resources to promote family reunification before termination.

2. Grounds for this might be abuse, neglect, and abandonment.

3. Children under a certain age (at greater risk) are provided quicker intervention.

This is an extreme remedy and the standard is that there must be clear and convincing evidence that would justify the court's termination of the relationship.
Adoption
Adoption is a statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established.

Adoption and Safe Families Act (ASFA): A state can move to terminate parental rights when child has been outside of the home without a relative for 15 months of the preceding 22 months.

If a parent has abandoned parent-child relationship, adoption can proceed without consent of parent.

Two different standards:

- Objective Standard: "Does parent's conduct demonstrate intent to abandon the parent-child relationship?"

- Subjective Standard: "Does parent intend to abandon the parent-child relationship?"
Unwed fathers' rights (recently tested)
o Unwed fathers have protections under the 14th Amendment Due Process Clause if they have shown commitment to being a parent.

These rights include a right to object to the termination of his parental right by an adoption.

Some states maintain a putative father's registry (unwed fathers sign up and says he wants to be informed of decisions relating to the child) that allows unwed fathers to register themselves as the father of a child.

If a father has registered, he will receive notice and a hearing before their rights are terminated.
Legal effects of adoption
Adoptive parents have all of the rights and responsibilities that the biological parents would have had.

The adopted child has all of the rights and responsibilities that a biological child would have had.
Limits on parental authority
A parent has a right to make decisions about how to raise child, including religion, but courts may intervene in the best interest of the child.

If a child's medical treatment contradicts a parent's religious beliefs, the court can intervene to protect a child when necessary medical care is needed to prevent serious harm to the child's health.
Reproductive Technology (IVF & Surrogacy)
Maternity is determined by the woman who gives birth, even if she does not have a biological or genetic connection to that child.

Uniform Parentage Act (UPA) defines "assisted reproduction" as implanting an embryo or fertilizing a woman's egg with a man's sperm without sexual intercourse. This may include IVF, i.e., when fertilization occurs outside the woman's body.

Surrogacy (gestational) agreement: One woman, gestational mother or surrogate, agrees to carry a pregnancy, either through artificial insemination or by surgical implantation. All parties involved must petition the court for approval of the agreement.

A child born to the surrogate mother within 300 days after the assisted reproduction is presumed to be the product of the assisted reproduction.

Note: In many of the states that have adopted legislation regarding assisted reproduction, gestational agreements are not given effect.

Not all states recognize surrogacy contracts, those that do require:
Court approval

Home study of intended parents
Agreement must be voluntary

Contract must provide for the expenses and medical care of the surrogate

Notice of the birth must be filed with the court so that the intended parents can officially become the legal parents of the child
Domestic Violence
Every state has a statute granting civil relief to domestic violence victims. (Usually physical abuse).

Requirements

1) Nearly every jurisdiction requires that the perpetrator be in a relationship with the victim or the household, or a family member of the victim.

2) Most jurisdictions say that a single episode is not enough.
Process is usually two steps:

Effects of domestic violence

- Domestic violence can affect any agreements between the couple (for example custody agreements).
- May be a basis for an at-fault divorce.

Remedies

Two types:
- Temporary restraining order or
Permanent injunction.
- Penalties for violating a protective order are criminal in nature and range from a fine to imprisonment.

Exam Tip: Usually the typical relief obtained by a permanent restraining order is no contact with and no further abuse of the victim.
Rights and Obligations of Children
Laws are designed to protect children and provide them with an expansion of rights when necessary.

Upon reaching the age of majority, children can disavow any previous contracts.

Children do not have capacity to write a will.
Medical Care of Children
Parental consent is required for medical care. A hospital can override this requirement in an emergency.
Exceptions to requirement for parental consent include:
(i) treatment for sexually transmitted diseases,
(ii) obtaining birth control, and
(iii) abortions (though states vary on this last).
Emancipation
A child can become emancipated when

1) He is no longer living with the parents and

2) He is self-sufficient or

Emancipation automatically occurs in most jurisdictions upon marriage of the minor or enlistment in the military.

Child support payments are no longer required.

Once emancipated, the child is an adult in the eyes of the law.
Tort and Criminal Liability of Children
Tort and criminal liability standard for children is different than tort and criminal liability standard for adults: the purpose of the difference is to provide supervision and rehabilitation.

The decision regarding the extent of the order depends on the age of the child; the younger the child, the more likely the court will show some leniency.

But, the gist is that liability for torts and criminal acts for children is less for children than it would be for adults.
Limits on Parental Authority
Parental authority is not absolute.

- Harm to the child: A state can interfere with a parent's parenting if there is child abuse or child neglect.

- Compulsory attendance at school is also a parental responsibility where the court can intervene.

A state may terminate a parent's rights if it is in the best interests of the child.

Some of the bases for termination include
a) abandonment,
b) neglect,
c) failure to support,
d) infliction of serious harm.

The standard for termination is by clear and convincing evidence. (Parent's due process rights)
Students also viewed