Family Law

Child Custody
 Most states the judge decides custody after taking into all facts and keeps the
best interest of the child in mind
o Promote the child’s welfare and happiness
 Parental characteristics: court can only intervene when there is harm done to
the best interest of the child, there is a constitutional right to raise the child
o Sexual orientation/race can never be dispositive factors
 irrebuttable presumption of unfitness
 Rebuttable presumption that requires parents to prove
absence of harm from orientation
 Parent’s sexual orientation must have an adverse impact to
deny custody
 UMDA: nexus testorientation only relevant if the conduct adversely affects
child
o ALI: prohibits court from considering orientation or extramarital
sexual conduct unless there is a showing that conduct affects child
 Careers: Rowe v Franklin:
o Parents file for divorce where mother is a pilot and father in
unemployed
 Daycare, time spent with children, working parents, role of wealth
o Disability: modern view is focusing on the parent’s disability on the
child, ADA applies
 Former view: parent with severe disability is per se unfit

Domestic Violence and Children:

 Increasingly states are taking into account domestic violence in custody
decisions
o Bifurcated approach where more states are having a rebuttal
presumption when violence has been “proved” in certain ways
 Peters-Reimers v Reimers
 Presumption may be overcome only by clear and
convincing evidence that the best interests of the child
require that parent’s participation as custodial parent