Term
| Define Tender Years Presumption |
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Definition
| It was presumed to be better for the younger children to go with the mother. This standard was later replaced by gender-nuetral best interest of the child. |
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Term
| Define Best Interest Test |
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Definition
| The court looks at each parent and weighs the interest of the child before determining which parent would be the best custodial parent. Gender is not a factor. |
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Term
| What factors are weighed when determining custody in the best interest of the child? |
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Definition
-maintaining a stable physical environment
-emotional ties
-capacity
-health
-time availability
-resources
-past violence
-Gaurdian ad Litem's recomendation
-parent lifestyles (ONLY a factor if you can show that it affected the child) |
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Term
| If one parent alleges spousal abuse will the court grant custody to the victim parent even if there was no child abuse? |
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Definition
| Yes, see case law p. 241: Mary Ann v. William |
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Term
| Define Primary Caretaker Presumtion |
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Definition
| A controversial method of granting custody, it grants custody to the parent who spent the most time caring for the child. On one hand it offers predictability of the outcome and relieves the judge from determining the best interest, but it seems to punish the primary earner. |
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Term
| What is the approximation rule? |
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Definition
| In a joint physical custody agreement, the terms approximate the same amount of interaction with each parent. |
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Term
| What is the difference between physical and legal custody? |
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Definition
| The parent who lives with the child has physical custody. Legal custody is the power to determine where the child goes to school, has medical procedures, or practices religion. In MA, parents have joint legal custody even if only one has physical custody. |
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Term
| Can the court impose joint physical custody? |
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Definition
| No. A joint custody agreement must be worked out by the parties. |
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Term
| What are the pros and cons of open visitation schedules v. set visitation schedules? |
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Definition
In open visitation it is possible to come close to approximating the pre-divorce parent-child interaction. But the primary custodian holds the power to authorize all visitation which is a power imbalance.
Schedule conflicts arise in set visitation schedules and holidays become a problem. But it is court imposed so one party does not have more power. |
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Term
| When can a child custody agreement be modified? |
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Definition
| Only when there has been a change in circumstances: a parent moves or changes jobs/work schedules, or the child's age (the child becomes a teen). |
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Term
| What is the clean break approach? |
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Definition
| A business-minded view of divorce: Parties split assets and move on without continued obligation to each other. |
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Term
| What are the different payment arrangements of alimony? |
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Definition
lump-sum support /
permanent alimony /
reimbursement alimony /
rehabilitative alimony |
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Term
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Definition
| An assumption that the parent's actions harm the child without requiring proof of detriment. This was the approach used to remove custody from homosexual parents. It is being replaced by the nexus approach. |
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Term
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Definition
| A parent must show actual harm before the other parent's sexual or religious behavior is brought into question. |
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Term
| Does a parent who has lost both physical and legal custody in the divorce still have a right to visitation? |
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Definition
| Yes, this parent is still the legal parent (parental rights have not been terminated) and is usually granted visitation rights but has no decision-making power in the child's life. |
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Term
| Do nonparents have a right to petition for custody if it is in the best interest of the child? |
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Definition
| Only if the parent is "unfit" |
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Term
| What is the doctrine of "in loco parentis"? |
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Definition
| Parental rights and an obligation to pay child support may be granted to a step-parent if they have raised the child. |
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Term
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Definition
| A state agency created pursuant to federal statute that locates absent parents, establishes child support figures, reviews child support awards, enforces awards, and establishes paternity if necessary. |
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Term
| Explain the Melson Formula of calculating child support. |
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Definition
| It is a hybrid of the "percentage of income" and "income shares" approach. The parent keeps a minimum level of income for personal essential needs. Above that level the income goes to the children until their needs are met. The parent can keep remaining income above that level minus a percentage which allows the children to share the standard of living of the parent. |
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Term
| What is imputed or attributed income? |
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Definition
| Support is calculated on earning capacity, not earnings, preventing voluntary unemployment/underemployment. |
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Term
| What is an adjusted gross income base? |
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Definition
| Less than gross income and more than net income, adjusted gross income is all income minus taxes, soc. security, retirement payments, union dues and prior child support obligations. Voluntary payroll withholdings are not deducted from this income base. |
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Term
| What are the factors considered in determining child support? |
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Definition
-income of custodial parent
-income of new partner (some states)
-multiple families
-extraordinary expenses
-health insurance
-custody arrangements |
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Term
| What is wage withholding? |
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Definition
| The most important child suport enforcement method, deducted from paychecks. |
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Term
| What is a tax refund intercept? |
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Definition
| Both federal and state tax returns can be intercepted to pay arrearages. |
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Term
| Do child support arrearages affect credit? |
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Definition
| The state IV-D office periodically reports to credit reporting agencies when the arrearage reaches a dollar amount set by the federal government. |
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Term
| What actions can be brought for nonpayment of child support? |
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Definition
Criminal non-support /
Civil contempt |
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Term
| What ways can a child support order be modified? |
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Definition
| Only if there has been a change in circumstances requrng an upward (custodial parent looses job) or downward (non-custodial parent looses job) adjustment. |
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Term
| Explain the percentage of income formula for child support. |
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Definition
| The support amount is a fixed percentage of income. The fixed percentage is determined by the number of children (no other factors). |
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Term
| Explain the Income Shares formula for child support. |
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Definition
| The income of both parents is combined and the obligation of support is allocated to the parents in proportion to income. The noncustodial parent pays their share in support payments. |
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