Child Custody

Child Custody

1. Who's Involved?

   • Parents
     • Attorneys
   • The Child
     • Guardian ad Litem
     • Attorney ad Litem
   • Witnesses
     • DCS, friends, neighbors, police, CASA etc.
   • The Court

2. 1. Types of Custody

   • Sole or Joint
     • Physical
       • Where or with whom the child resides
         • Custodial/Residential Parent
           • Parent with whom the child mostly resides
         • Noncustodial/Alternate Residential Parent
           • Parent lacks sole physical custody, but still has parental rights and responsibilities
     • Legal
       • Decision making authority
   • Split Custody
     • Each parent gets physical and legal custody of at least one child
       • Family unit is completely split
         • Not favored by the courts

3. 2. Jurisdictional Issues

   • UCCJEA
     • Designed to reduce jurisdictional conflicts between states in child custody matters
       • Adopted by TN TCA 36-6-201 et. seq.
     • Key Terms
       • Home State Jurisdiction
         • State where child has lived with a parent for at least 6 consecutive months
         • It's the #1 option for jurisdiction
       • Significant Connection Jurisdiction
         • Used if child has no home state or home state declines jurisdiction
         • Must be "substantial evidence" tying the child to the state
       • More appropriate forum
         • Home state and state with significant connection may decline jurisdiction if another state is more appropriate
       • Vacuum/last resort Jurisdiction
         • Jurisdiction based on the fact that no other state will act
       • Temporary Emergency Jurisdiction
         • Child is present in the state & needs protection
       • Continuing Exclusive Jurisdiction
         • Remains with the initial state until
           • The initial court determines child and child's parents no long live in that state
             • OR the initial court determines the substantial connection is lost
   • Parental Kidnapping Prevention Act
     • Federal Law requiring states to honor other states' custody orders so long as those orders comply with PKPA
       • Original state maintains jurisdiction until no longer the "home state" or neither child nor parent resides there

4. 3. Standards for Custody Decisions

   • Paternal/Maternal Preference
     • Largely abolished
   • Tender Years Doctrine
     • Idea that custody of young children should go the mother unless she is unfit
   • Best Interests of the Child
     • Focuses on the child's needs rather than the parent's wishes
       • TN has 15 factors to consider; TCA 36-6-106
   • Other Concepts
     • Primary Caretaker Presumption
       • Favors the person who performed most significant parenting tasks
         • See TCA 36-6-106(a)(1) and (5)
     • ALI Approximation Rule
       • Responsibilities post-divorce should mirror how each parent care for the child when the family was intact
     • Other Factors
       • p. 319-329

5. 4. Post Divorce Custody Issues

   • Parenting Plans
     • http://tncourts.gov/node/253
     • Visitation
       • Flexible vs. Defined
       • Supervised vs. Unsupervised
         • Factors p. 332
     • Decision Making Child Support Parent Education Relocation
   • Modification of Custody
     • Must show "substantial & material change of circumstances" affecting the child
       • Court must consider: foreseeability of the change, the child's best interest
     • Relocation
       • Must give notice: 60 days in TN 36-6-108(a)
         • TCA 36-6-108(d) gives factors a court would consider
   • Enforcement
     • Civil Contempt
     • Criminal Contempt
     • Alter Visitation/Custody

6. 5. Interests of 3rd Parties

   • Psychological Parents
     • Standing?
   • Step-Parents
     • TCA 36-6-303
   • Grandparents
     • May have visitation rights; TCA 36-6-302, 306, & 307

7. The Paralegal's Role

   • p. 353-354