How confident do you feel?

cnk1220
Posts: 183
Joined: Tue Jan 24, 2017 9:48 pm

Re: How confident do you feel?

Postby cnk1220 » Thu Mar 02, 2017 10:54 pm

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Last edited by cnk1220 on Fri Mar 03, 2017 12:18 am, edited 1 time in total.

babylonianprincess
Posts: 13
Joined: Wed Mar 01, 2017 2:33 pm

Re: How confident do you feel?

Postby babylonianprincess » Thu Mar 02, 2017 11:19 pm

cnk1220 wrote:
babylonianprincess wrote:
cnk1220 wrote:
happyhour1122 wrote:
cnk1220 wrote:
NonTradHealthLaw wrote:
cnk1220 wrote:
What I'm still confused about was didn't the call of the Q say "assume the marriage is valid- on what basis would the 2nd husband get the lottery $?" Am i remembering this correctly? If so- why would he want to argue bigamy?


That's how I recall the question reading as well. I think I mentioned he may claim it was a bigamous marriage in order to get 15 years of tort damages for fraudulent misrepresentation and could garnish the lottery winnings on any judgment. However, I also firmly believe they typo-ed because I cannot fathom any family law-based grounds for the dude to recover.



Thats a good argument^^ I just got so confused with the wording bc i was like well um if you want the lottery $$ you better argue its marital income buddy- ie equitable dist. of marital assets approach and lottery $$$ is considered marital income bc it was acquired while they were married & it didn't meet definition of BIG- before the marriage, inheritance in one name, or gift to one spouse either? What a stupidly weird Q...

I had a flashback of the ashton kutcher/cameron diaz movie when they go to vegas and hit the jackpot and are married lol



This is what i did.

Question 1. Can B claim A's lottery $$$
- I argued common law marriage,
- assuming common law marriage, based on facts and circumstances unlikely to be able to claim for A's $$$$

Question 2. Assuming there is marriage (between A and B) can C (the new hub) claim A's $$$

I guess the queston directly didn't say "assume marriage between A and B", but thats how I took it. So,,,assuming there is a valid marriage between A and B...marriage between A and C is bigamy is what I said...


Q1 only asked if there was a marriage between the woman and her first husband it never asked can he take the lottery$$? I think Q1 was getting at the CACH analysis re: CLM: capacity, agreement, cohab, holding out to community it was getting whether the joint tax returns but no vows or ceremony or whether family friends knowing + cohab together was enough for a CLM. + the conflicts issue of CLM recognized in both state A and B

Q2 asked assume marriage between 1st Husband and woman is valid- on what basis can 2nd husband get lottery $- she didn't hit the lottery until she married the second guy?


i can't remember if q asked whether 1st husband had a claim to lottery $$, but i remember assuming it did (RIP). Only way he could is if there was a CLM. Under equitable distribution approach, ct divides all property owned by either spouse, whether acquired before or after the marriage (minority approach..not likely but only one that would apply here since she won lottery after she left 1st guy). Otherwise, he could have claim to lottery $$ based on implied k b/t unmarried cohabitants (Ct not likely to enforce either).
if 2nd marriage not valid, 2nd husband can make implied k bt unmarried cohab arg. If 2nd marriage=valid, he can get some as spousal support during divorce proceeding if ct determines marriage was long enough; he became accustomed to standard of living; made contributions to marriage, i.e. quit job to care for 2 yr old. The wording of the questions was vague/confusing. i just argued whatever i could. Starting to realize i should've made bigamy argument after all :(


I think eq. distribution is the distribution of only martial prop not separate property, anything before the marriage doesn't count, but the lottery winnings were the year prior to their divorce which is why I remember she hadn't hit the lottery when she was with the 1st guy yet-- that
occurred 7 years into her marriage to the 2nd guy-- so the $$ was considered marital prop and subject to division at divorce- she was married to the 2nd guy for 8 years from 2007-2015. I remember mentioning the dates bc of the analysis re: contribution to the marriage and duration of the marriage bc she's gonna wanna argue it wasnt long enough but likely was and wouldn't matter bc hes going to get $$$ because 1) she hit lottery while they were married = marital prop.


Right on. Thats a good argument for her against 2nd guy. lottery $$ was def marital prop in the 2nd marriage. I threw in alternative args assuming 2nd marriage was void. For q1, i remembered the division of prop section on fam law outline listed 3 approaches upon divorce: community prop (all prop acquired during marriage split 50/50), equitable div of all prop (ct divides all prop acquired during or after marriage), and equitable div of marital prop (ct divides prop acquired during marriage). i just thought 1st guy could only claim that lottery $ if ct followed 2nd approach bc she won lottery after they were no longer together. Probably a waste of time… hoping that 3rd question re: visitation rights saved me.

cnk1220
Posts: 183
Joined: Tue Jan 24, 2017 9:48 pm

Re: How confident do you feel?

Postby cnk1220 » Fri Mar 03, 2017 12:40 am

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Last edited by cnk1220 on Fri Mar 03, 2017 12:36 pm, edited 1 time in total.

babylonianprincess
Posts: 13
Joined: Wed Mar 01, 2017 2:33 pm

Re: How confident do you feel?

Postby babylonianprincess » Fri Mar 03, 2017 1:53 am

cnk1220 wrote:Well I thought the visitation Q was easy and that he's not getting visitation. She's the biological mom, no facts supported abuse, neglect, or abandonment on her part therefore she has due process rights that overcome a non-biological father, even though he's established a relationship with the child I argued court is not going to interfere with a bio. mom's decision to deny visitation upon divorce despite the best interests of the child multi factor analysis.

I remember reading something about when a 3rd party petitions the court for visitation or custody over the bio. parent they have a duty to show the bio. parent is somehow unfit or something based upon clear and convincing evidence which wasn't met here ie they're basically petitioning the court to overcome a bio parent's rights which is extremely hard to do, this was usually in the context of grandparents in practice essays if I remember correctly...otherwise I argued court is unlikely to interfere b/c he really has no basis there's no legal rights he never adopted the child--- but then some people on here said he gets visitation? But I don't think that's right...

I can't imagine a court telling someone as a mom "well we're gonna let your ex husband visit anyway even though he's not the bio father and took zero steps to legally adopt the child during your 8 years of marriage and even though you're moving and don't want him to, but we're going to go against your wishes as the bio. parent and override your substantive DP rights"


That's what I went with. I know several people concluded that he gets visitation and i just don't see how for the same reasons you stated. I don't think a court can force a relationship between a child and a 3rd party against the wishes of a fit parent, even if such a relationship is in the best int. of child. The facts didn't suggest wife was an unfit parent at all. My one question, though, is whether he'd have a right to visitation as a lawful parent based on the presumption that the child of a married woman is the child of her husband. There was some rule about every child being the lawful child of his mother but is the lawful child of the father only if father holds out child as biological child, parents married after child's birth, etc. 1st guy wasn't really in kid's life. Could 2nd guy argue that little girl is his lawful child since he and wife married after child was born & he treats her as his own bio child?

cnk1220
Posts: 183
Joined: Tue Jan 24, 2017 9:48 pm

Re: How confident do you feel?

Postby cnk1220 » Fri Mar 03, 2017 2:33 am

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Last edited by cnk1220 on Fri Mar 03, 2017 12:36 pm, edited 1 time in total.

babylonianprincess
Posts: 13
Joined: Wed Mar 01, 2017 2:33 pm

Re: How confident do you feel?

Postby babylonianprincess » Fri Mar 03, 2017 5:16 am

cnk1220 wrote:
babylonianprincess wrote:
cnk1220 wrote:Well I thought the visitation Q was easy and that he's not getting visitation. She's the biological mom, no facts supported abuse, neglect, or abandonment on her part therefore she has due process rights that overcome a non-biological father, even though he's established a relationship with the child I argued court is not going to interfere with a bio. mom's decision to deny visitation upon divorce despite the best interests of the child multi factor analysis.

I remember reading something about when a 3rd party petitions the court for visitation or custody over the bio. parent they have a duty to show the bio. parent is somehow unfit or something based upon clear and convincing evidence which wasn't met here ie they're basically petitioning the court to overcome a bio parent's rights which is extremely hard to do, this was usually in the context of grandparents in practice essays if I remember correctly...otherwise I argued court is unlikely to interfere b/c he really has no basis there's no legal rights he never adopted the child--- but then some people on here said he gets visitation? But I don't think that's right...

I can't imagine a court telling someone as a mom "well we're gonna let your ex husband visit anyway even though he's not the bio father and took zero steps to legally adopt the child during your 8 years of marriage and even though you're moving and don't want him to, but we're going to go against your wishes as the bio. parent and override your substantive DP rights"


That's what I went with. I know several people concluded that he gets visitation and i just don't see how for the same reasons you stated. I don't think a court can force a relationship between a child and a 3rd party against the wishes of a fit parent, even if such a relationship is in the best int. of child. The facts didn't suggest wife was an unfit parent at all. My one question, though, is whether he'd have a right to visitation as a lawful parent based on the presumption that the child of a married woman is the child of her husband. There was some rule about every child being the lawful child of his mother but is the lawful child of the father only if father holds out child as biological child, parents married after child's birth, etc. 1st guy wasn't really in kid's life. Could 2nd guy argue that little girl is his lawful child since he and wife married after child was born & he treats her as his own bio child?



Facts mentioned child was biologically the first husband's but first husband didn't have much to do with the child, paternity was established in the facts so I wasnt going to disturb that- plus nothing said 1st guy's parental rights were terminated, only when theres a termination of a bio parent's rights can a 2nd father step in and start a legal parental-child relationship with legal adoption. I didn't see anything in the facts that was strong enough for legal parent-child relationship he didn't do anything in the 8 yrs of marriage other than play stepdad-- i mentioned if he had attempted to legally adopt child it would be different but under those facts it doesnt get you visitation when you're divorcing and mom doesn't want you around her child anymore.


Agreed. I was worried that was something worth discussing and i'd missed out on some points. But it clearly wasn't. Appreciate your input.

happyhour1122
Posts: 151
Joined: Wed Feb 08, 2017 5:08 pm

Re: How confident do you feel?

Postby happyhour1122 » Fri Mar 03, 2017 5:57 am

How long did it take you guys to finish each exam? Now I feel like I missed ALOT of issues...I had approximatelt 40minutes left for trust....

NonTradHealthLaw
Posts: 428
Joined: Mon May 03, 2010 2:44 pm

Re: How confident do you feel?

Postby NonTradHealthLaw » Fri Mar 03, 2017 10:19 am

Troxel v Granville established that legal strangers have no visitation rights after a legal parent is adjudicated to be fit. LGBT families have been fighting this battle for decades. Best interests of child plays no role if the parent is fit, even if that non-parent has a close relationship to the child.

ETA- one problem with taking anot her exam after practicing a few years is the habit of being client cost-conscious. I may have left points on the table for not spit balling counterarguments for what I saw as clear doctrine.

yankeeman86
Posts: 99
Joined: Tue Feb 21, 2017 7:51 pm

Re: How confident do you feel?

Postby yankeeman86 » Fri Mar 03, 2017 11:00 am

cnk1220 wrote:Well I thought the visitation Q was easy and that he's not getting visitation. She's the biological mom, no facts supported abuse, neglect, or abandonment on her part therefore she has due process rights that overcome a non-biological father, even though he's established a relationship with the child I argued court is not going to interfere with a bio. mom's decision to deny visitation upon divorce despite the best interests of the child multi factor analysis.

I remember reading something about when a 3rd party petitions the court for visitation or custody over the bio. parent they have a duty to show the bio. parent is somehow unfit or something based upon clear and convincing evidence which wasn't met here ie they're basically petitioning the court to overcome a bio parent's rights which is extremely hard to do, this was usually in the context of grandparents in practice essays if I remember correctly...otherwise I argued court is unlikely to interfere b/c he really has no basis there's no legal rights he never adopted the child--- but then some people on here said he gets visitation? But I don't think that's right...

I can't imagine a court telling someone as a mom "well we're gonna let your ex husband visit anyway even though he's not the bio father and took zero steps to legally adopt the child during your 8 years of marriage and even though you're moving and don't want him to, but we're going to go against your wishes as the bio. parent and override your substantive DP rights"


this is F2017?

yankeeman86
Posts: 99
Joined: Tue Feb 21, 2017 7:51 pm

Re: How confident do you feel?

Postby yankeeman86 » Fri Mar 03, 2017 11:03 am

cnk1220 wrote:
babylonianprincess wrote:
cnk1220 wrote:Well I thought the visitation Q was easy and that he's not getting visitation. She's the biological mom, no facts supported abuse, neglect, or abandonment on her part therefore she has due process rights that overcome a non-biological father, even though he's established a relationship with the child I argued court is not going to interfere with a bio. mom's decision to deny visitation upon divorce despite the best interests of the child multi factor analysis.

I remember reading something about when a 3rd party petitions the court for visitation or custody over the bio. parent they have a duty to show the bio. parent is somehow unfit or something based upon clear and convincing evidence which wasn't met here ie they're basically petitioning the court to overcome a bio parent's rights which is extremely hard to do, this was usually in the context of grandparents in practice essays if I remember correctly...otherwise I argued court is unlikely to interfere b/c he really has no basis there's no legal rights he never adopted the child--- but then some people on here said he gets visitation? But I don't think that's right...

I can't imagine a court telling someone as a mom "well we're gonna let your ex husband visit anyway even though he's not the bio father and took zero steps to legally adopt the child during your 8 years of marriage and even though you're moving and don't want him to, but we're going to go against your wishes as the bio. parent and override your substantive DP rights"


That's what I went with. I know several people concluded that he gets visitation and i just don't see how for the same reasons you stated. I don't think a court can force a relationship between a child and a 3rd party against the wishes of a fit parent, even if such a relationship is in the best int. of child. The facts didn't suggest wife was an unfit parent at all. My one question, though, is whether he'd have a right to visitation as a lawful parent based on the presumption that the child of a married woman is the child of her husband. There was some rule about every child being the lawful child of his mother but is the lawful child of the father only if father holds out child as biological child, parents married after child's birth, etc. 1st guy wasn't really in kid's life. Could 2nd guy argue that little girl is his lawful child since he and wife married after child was born & he treats her as his own bio child?



Facts mentioned child was biologically the first husband's but first husband didn't have much to do with the child, paternity was established in the facts so I wasnt going to disturb that- plus nothing said 1st guy's parental rights were terminated, only when theres a termination of a bio parent's rights can a 2nd father step in and start a legal parental-child relationship with legal adoption. I didn't see anything in the facts that was strong enough for legal parent-child relationship he didn't do anything in the 8 yrs of marriage other than play stepdad-- i mentioned if he had attempted to legally adopt child it would be different but under those facts it doesnt get you visitation when you're divorcing and mom doesn't want you around her child anymore.


it's like im in the twilight zone lol

PhoenicianLaw
Posts: 1
Joined: Thu Mar 02, 2017 5:12 pm

Re: How confident do you feel?

Postby PhoenicianLaw » Fri Mar 03, 2017 11:27 am

Can you guys move the MEE convo to another thread and can we focus the discussion on MBE and MPT (since they both apply to everyone viewing), provided that it is within the rules of TLS ("with anything more than an extremely broad level of specificity").

babylonianprincess
Posts: 13
Joined: Wed Mar 01, 2017 2:33 pm

Re: How confident do you feel?

Postby babylonianprincess » Fri Mar 03, 2017 12:31 pm

happyhour1122 wrote:How long did it take you guys to finish each exam? Now I feel like I missed ALOT of issues...I had approximatelt 40minutes left for trust....


I spent about 40 mins on the SH Q. Tried to stick to 30 mins on the others, but by the time i had 45 mins left, i still hadn't tackled the K and Trusts Qs.

eatthebarforlunch
Posts: 9
Joined: Thu Mar 02, 2017 5:55 pm

Re: How confident do you feel?

Postby eatthebarforlunch » Fri Mar 03, 2017 12:37 pm

licensed attorney here> non-bio father would get some form of visitation akin to grandparents. THe facts said the girl called him dad and that the bio father was not really involved. additionally he had been in her life since she was 2-3 and is now presumptive 12-13. It would not be in the best interest of the child to cut all contact since she has a father daughter relationship. Court would ask child if she wants contact and will likely order some form of visitation even if it is just dinner once a month.

lawdeeedaw
Posts: 6
Joined: Fri Feb 24, 2017 12:31 pm

Re: How confident do you feel?

Postby lawdeeedaw » Fri Mar 03, 2017 12:44 pm

eatthebarforlunch wrote:licensed attorney here> non-bio father would get some form of visitation akin to grandparents. THe facts said the girl called him dad and that the bio father was not really involved. additionally he had been in her life since she was 2-3 and is now presumptive 12-13. It would not be in the best interest of the child to cut all contact since she has a father daughter relationship. Court would ask child if she wants contact and will likely order some form of visitation even if it is just dinner once a month.



I have done 3 years of juvenile dependency work, this is what I argued.

NonTradHealthLaw
Posts: 428
Joined: Mon May 03, 2010 2:44 pm

Re: How confident do you feel?

Postby NonTradHealthLaw » Fri Mar 03, 2017 12:47 pm

eatthebarforlunch wrote:licensed attorney here> non-bio father would get some form of visitation akin to grandparents. THe facts said the girl called him dad and that the bio father was not really involved. additionally he had been in her life since she was 2-3 and is now presumptive 12-13. It would not be in the best interest of the child to cut all contact since she has a father daughter relationship. Court would ask child if she wants contact and will likely order some form of visitation even if it is just dinner once a month.


Also a licensed attorney. Troxel v. Granville disagrees with you. "Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. See, e.g., Flores, 507 U.S., at 304."

cnk1220
Posts: 183
Joined: Tue Jan 24, 2017 9:48 pm

Re: How confident do you feel?

Postby cnk1220 » Fri Mar 03, 2017 12:54 pm

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Last edited by cnk1220 on Fri Mar 03, 2017 10:24 pm, edited 1 time in total.

happyhour1122
Posts: 151
Joined: Wed Feb 08, 2017 5:08 pm

Re: How confident do you feel?

Postby happyhour1122 » Fri Mar 03, 2017 1:10 pm

cnk1220 wrote:
eatthebarforlunch wrote:licensed attorney here> non-bio father would get some form of visitation akin to grandparents. THe facts said the girl called him dad and that the bio father was not really involved. additionally he had been in her life since she was 2-3 and is now presumptive 12-13. It would not be in the best interest of the child to cut all contact since she has a father daughter relationship. Court would ask child if she wants contact and will likely order some form of visitation even if it is just dinner once a month.



I respectfully disagree- 3P visitation defers to a bio parent's determination of what is in the best interests of the child provided bio parent is fit, mom was fit here. Court is not going to override what a bio mom sees is in the best interests of her child re: visitation. That goes to the whole constitutuonal right to privacy for parents to decide issues concerning control of children. I think the child's age issue comes more into play when the father is actually the paternal father and he has DP rights to his child too when the court is making a custody/visitation issue and the child is both biologically theirs.

The fact she called him dad doesn't matter, people call their boyfriend's kids dad all the time, that wouldn't establish a legal relationship either...I don't remember him taking steps to legally adopt her.



agreed.
courts are careful about granting visitation to even grandparents- we are talking about some third person that just turned out to be a third person...
Hey,,,you've been like a daughter to me...your mom should allow me to see you....?

lawdeeedaw
Posts: 6
Joined: Fri Feb 24, 2017 12:31 pm

Re: How confident do you feel?

Postby lawdeeedaw » Fri Mar 03, 2017 1:17 pm

cnk1220 wrote:
eatthebarforlunch wrote:licensed attorney here> non-bio father would get some form of visitation akin to grandparents. THe facts said the girl called him dad and that the bio father was not really involved. additionally he had been in her life since she was 2-3 and is now presumptive 12-13. It would not be in the best interest of the child to cut all contact since she has a father daughter relationship. Court would ask child if she wants contact and will likely order some form of visitation even if it is just dinner once a month.



I respectfully disagree- 3P visitation defers to a bio parent's determination of what is in the best interests of the child provided bio parent is fit, mom was fit here. Court is not going to override what a bio mom sees is in the best interests of her child re: visitation. That goes to the whole constitutuonal right to privacy for parents to decide issues concerning control of children. I think the child's age issue comes more into play when the father is actually the paternal father and he has DP rights to his child too when the court is making a custody/visitation issue and the child is both biologically theirs.

The fact she called him dad doesn't matter, people call their boyfriend's kids dad all the time, that wouldn't establish a legal relationship either...I don't remember him taking steps to legally adopt her.



I agree that it would be a violation of the parents constitutional rights if it was a custody agreement. Here we are discussing visitation, which does not hinder a natural parents rights to parent or make decisions for the child.

When a nonparent asks a court for visitation rights, they must show that visitation is in the best interests of the child. When determining if visitation rights are appropriate, courts consider a number of factors, including:

The child's relationship with the nonparent;
The relationship between the nonparent and the child's parent or guardian;
The last time the child had contact with the nonparent;
The effect the visitation will have on the relationship between child and legal guardian;
How visitation will impact the time the child has to visit with his or her biological parents or other family members;
Any history of physical, sexual, or emotional abuse or neglect by the nonparent; and
Any other factor that the court thinks is relevant to granting or denying nonparent visitation rights.

As well as taking into consideration the child's wishes, which are not determinative, but considered. You are correct Troxel, did state that visitation statute violated due process, but many states still have visitation statutes on the books that remain intact.

I think what they wanted was the discussion that yes, it violates the due process rights of the parent to award custody to a non-parent, but the totality of the circumstances and the best interest of the child could be considered. Especially when bio father was absent and not financially or emotionally supporting the child. Physiological parents/relatives are just important to a child as biological. Just my two cents.

eatthebarforlunch
Posts: 9
Joined: Thu Mar 02, 2017 5:55 pm

Re: How confident do you feel?

Postby eatthebarforlunch » Fri Mar 03, 2017 1:33 pm

the call asked about what the nonbio fathers best argument for visitation agreement would be not a custody agreement. This best interest of child based on the facts was that nonbio father should have some visitation.

happyhour1122
Posts: 151
Joined: Wed Feb 08, 2017 5:08 pm

Re: How confident do you feel?

Postby happyhour1122 » Fri Mar 03, 2017 1:48 pm

lawdeeedaw wrote:
cnk1220 wrote:
eatthebarforlunch wrote:licensed attorney here> non-bio father would get some form of visitation akin to grandparents. THe facts said the girl called him dad and that the bio father was not really involved. additionally he had been in her life since she was 2-3 and is now presumptive 12-13. It would not be in the best interest of the child to cut all contact since she has a father daughter relationship. Court would ask child if she wants contact and will likely order some form of visitation even if it is just dinner once a month.



I respectfully disagree- 3P visitation defers to a bio parent's determination of what is in the best interests of the child provided bio parent is fit, mom was fit here. Court is not going to override what a bio mom sees is in the best interests of her child re: visitation. That goes to the whole constitutuonal right to privacy for parents to decide issues concerning control of children. I think the child's age issue comes more into play when the father is actually the paternal father and he has DP rights to his child too when the court is making a custody/visitation issue and the child is both biologically theirs.

The fact she called him dad doesn't matter, people call their boyfriend's kids dad all the time, that wouldn't establish a legal relationship either...I don't remember him taking steps to legally adopt her.



I agree that it would be a violation of the parents constitutional rights if it was a custody agreement. Here we are discussing visitation, which does not hinder a natural parents rights to parent or make decisions for the child.

When a nonparent asks a court for visitation rights, they must show that visitation is in the best interests of the child. When determining if visitation rights are appropriate, courts consider a number of factors, including:

The child's relationship with the nonparent;
The relationship between the nonparent and the child's parent or guardian;
The last time the child had contact with the nonparent;
The effect the visitation will have on the relationship between child and legal guardian;
How visitation will impact the time the child has to visit with his or her biological parents or other family members;
Any history of physical, sexual, or emotional abuse or neglect by the nonparent; and
Any other factor that the court thinks is relevant to granting or denying nonparent visitation rights.

As well as taking into consideration the child's wishes, which are not determinative, but considered. You are correct Troxel, did state that visitation statute violated due process, but many states still have visitation statutes on the books that remain intact.

I think what they wanted was the discussion that yes, it violates the due process rights of the parent to award custody to a non-parent, but the totality of the circumstances and the best interest of the child could be considered. Especially when bio father was absent and not financially or emotionally supporting the child. Physiological parents/relatives are just important to a child as biological. Just my two cents.



omg I think we just all passed the bar

happyhour1122
Posts: 151
Joined: Wed Feb 08, 2017 5:08 pm

Re: How confident do you feel?

Postby happyhour1122 » Fri Mar 03, 2017 1:48 pm

lawdeeedaw wrote:
cnk1220 wrote:
eatthebarforlunch wrote:licensed attorney here> non-bio father would get some form of visitation akin to grandparents. THe facts said the girl called him dad and that the bio father was not really involved. additionally he had been in her life since she was 2-3 and is now presumptive 12-13. It would not be in the best interest of the child to cut all contact since she has a father daughter relationship. Court would ask child if she wants contact and will likely order some form of visitation even if it is just dinner once a month.



I respectfully disagree- 3P visitation defers to a bio parent's determination of what is in the best interests of the child provided bio parent is fit, mom was fit here. Court is not going to override what a bio mom sees is in the best interests of her child re: visitation. That goes to the whole constitutuonal right to privacy for parents to decide issues concerning control of children. I think the child's age issue comes more into play when the father is actually the paternal father and he has DP rights to his child too when the court is making a custody/visitation issue and the child is both biologically theirs.

The fact she called him dad doesn't matter, people call their boyfriend's kids dad all the time, that wouldn't establish a legal relationship either...I don't remember him taking steps to legally adopt her.



I agree that it would be a violation of the parents constitutional rights if it was a custody agreement. Here we are discussing visitation, which does not hinder a natural parents rights to parent or make decisions for the child.

When a nonparent asks a court for visitation rights, they must show that visitation is in the best interests of the child. When determining if visitation rights are appropriate, courts consider a number of factors, including:

The child's relationship with the nonparent;
The relationship between the nonparent and the child's parent or guardian;
The last time the child had contact with the nonparent;
The effect the visitation will have on the relationship between child and legal guardian;
How visitation will impact the time the child has to visit with his or her biological parents or other family members;
Any history of physical, sexual, or emotional abuse or neglect by the nonparent; and
Any other factor that the court thinks is relevant to granting or denying nonparent visitation rights.

As well as taking into consideration the child's wishes, which are not determinative, but considered. You are correct Troxel, did state that visitation statute violated due process, but many states still have visitation statutes on the books that remain intact.

I think what they wanted was the discussion that yes, it violates the due process rights of the parent to award custody to a non-parent, but the totality of the circumstances and the best interest of the child could be considered. Especially when bio father was absent and not financially or emotionally supporting the child. Physiological parents/relatives are just important to a child as biological. Just my two cents.



omg I think we just all passed the bar

eatthebarforlunch
Posts: 9
Joined: Thu Mar 02, 2017 5:55 pm

Re: How confident do you feel?

Postby eatthebarforlunch » Fri Mar 03, 2017 2:42 pm

How did everyone like MPT 2 the findings of fact and conclusions of law. As a practitioner I thought it was easy but I heard a lot of people saying what is that?

cnk1220
Posts: 183
Joined: Tue Jan 24, 2017 9:48 pm

Re: How confident do you feel?

Postby cnk1220 » Fri Mar 03, 2017 2:48 pm

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Last edited by cnk1220 on Fri Mar 03, 2017 10:23 pm, edited 1 time in total.

eatthebarforlunch
Posts: 9
Joined: Thu Mar 02, 2017 5:55 pm

Re: How confident do you feel?

Postby eatthebarforlunch » Fri Mar 03, 2017 2:49 pm

cnk1220 wrote:
eatthebarforlunch wrote:How did everyone like MPT 2 the findings of fact and conclusions of law. As a practitioner I thought it was easy but I heard a lot of people saying what is that?



I thought it was rather easy, i mean just persuasive facts and conclusions started out with the statutes/case law and then mimicked the good cause finding to remove the son...right?


yep thats what I did

wellbeit
Posts: 2
Joined: Fri Mar 03, 2017 4:02 pm

Re: How confident do you feel?

Postby wellbeit » Fri Mar 03, 2017 4:14 pm

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Last edited by wellbeit on Fri Mar 03, 2017 4:29 pm, edited 1 time in total.




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