How is the amount of child support paid by the non-custodial parent determined?
Using the child support guidelines. The result using this formula is presumed appropriate, but a court can deviate from the guidelines where it would be unjust or inappropriate.
When do child support obligations terminate?
- Terminates at age 18
- If kid is still enrolled in high school, then terminates at 19.5
Elements of Failure to Pay Child Support (felony in Michigan)
- ∆ was required by court order to pay child support
- Court issuing child support order had PJX over ∆
- ∆ failed to pay support as ordered
- strict liability offense, no mens rea
What must a ∆ show to assert a defense to Failure to Pay Child Support
Must show by preponderance of the evidence that it was genuinely impossible to pay support
When is someone liable under the Child Support Recovery Act?
Upon willful failure to pay past due support obligation to a child who lives in another state
What statute governs custody disputes in which one party is outside of Michigan?
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
What is the test for establishing jurisdiction for granting child custody?
Home state test
- home state of the child at the time the proceedings began, or
- was the child’s home state w/in 6 months of the proceeding and child is absent but one parent still resides there
State besides home state if
- No other state has accepted home state jx
- Court in other state finds child and at least 1 parent have significant connection w/ that state
- Substantial evidence available in that state concerning child’s care, protection, training, and personal relationships
Define “home state”
The state in which the child lived for at least 6 consecutive months prior to the filing of a child custody proceeding
When may a state modify another state’s custody order?
When JX exists under the home state tests and:
- issuing state determines it no longer has JX or that other state is more convenient forum; OR
- neither child nor parent presently resides in that state
Also: emergency jurisdictional provision
What is the emergency jurisdictional provision of the UCCJEA for granting custody or modifying a custody order?
If the child is physically present in the state and has been abandoned or neglected, or it is necessary to protect the child because he has been subjected to or threatened with abuse, temporary jurisdiction may be granted
What is the standard for making a child custody or visitation determination?
Best interest of the child
What are the grounds for modification of a child custody determination?
Proper cause shown or change in circumstances, and modification is in best interest of child
Define “proper cause shown” w/r/t modification of a child custody order
“The reason for wanting to change custody must be of a magnitude to have a significant effect on the child’s well-being”
Define “change in circumstances” w/r/t modification of a child custody order
“since the last custody, the conditions surrounding custody have materially changed. Conditions must be those that have or could have a significant effect on the child’s well-being”
Define “established custodial environment”
Custodial environment is established if, over an appreciable time, the child naturally looks to the guardian in that environment for guidance, discipline, the necessities of life, and parental support
What is the effect of an established custodial environment on the moving party’s burden of proof in a child custody modification case?
- If NO ECE EXISTS – moving party has burden of proving by a preponderance of the evidence that the change in custody is in the best interest of the child using best interest criteria set out above
- If ECE EXISTS – moving party has burden of proving by clear and convincing evidence that change in custody is in best interest of child
What is the standard for a grant of parenting time?
“the court is to grant parenting time in a frequency, duration, and type that reasonably promotes the strong relationship between the child and the parent getting time”
What standard must a grandparent meet to rebut the presumption in favor of a fit parent’s decision regarding grandparenting time?
“grandparents must prove by a preponderance of the evidence that denial of grandparenting time creates a substantial risk of harm to child’s mental, emotional, or physical wellbeing”
What are the 5 criteria for deciding whether a custodial parent with joint legal custody of the child can relocate out of state more than 100 miles away?
- Whether relocation tends to improve quality of life for both relocating parent and child
- Whether relocation is intended to frustrate other parent’s relationship with the child
- Whether it is possible to order modification of parenting time schedule in a way that can preserve parent-child relationship b/w child and each parent and if each parent is likely to comply with modification
- Extent to which opposing parent’s resistance to move is motivated by desire to secure financial advantage regarding continuing support obligation
- Any instances of DV against/witnessed by child
