FAMILY LAW OUTLINE
Themes of Course
1. Family law is trans-substantive.
2. Legal recognition of families is exclusive.
3. Family law integrates legal rules and social norms, which are deeply intertwined and
often inform one another.
4. The family is both:
a. a network of relationships among individuals; and
b. a series of relationships between the individual and the State.
Functions of Family Law
1. Protective function
a. A basic duty of the law is to protect individuals from harm by other individuals.
b. The State has an interest in protecting adult partners and children from abuse and
in fostering the best interests of children.
c. The State also has an interest in protecting individuals from economic harm.
i. Example: Laws of property distribution upon dissolution of marriage.
2. Facilitative function
a. The law helps people to arrange and live their lives in ways that they choose.
b. Family law allows people to enter into enforceable contracts and validates their
private choices.
3. Arbitral function
a. Family law helps people resolve their conflicts.
4. Expressive function
a. Deploys the law’s power to impart ideas through words and symbols.
i. Provides a voice in which citizens may speak; and
ii. Alters the behavior of the people the law addresses.
b. Example: Allowing or forbidding same-sex marriage sends a message.
5. Channelling function
a. The law develops and supports social institutions which are thought to serve
desirable ends.
b. Example: Marriage and the family unit.
Due Process
1. Represents the balance which our Nation (built upon postulates of respect for the
liberty of the individual) has struck between that liberty and the demands of
organized society.
a. Includes a freedom from all substantial arbitrary impositions and purposeless
restraints—protects personal autonomy.
b. Appropriate limits on substantive due process come not from drawing arbitrary
lines, but from careful respect for the teachings of history and solid recognition of
the basic values that underlie our society.
1
i. The institution of the family is deeply rooted in this Nation’s history and
tradition.
ii. It is through family that we inculcate and pass down many of our most
cherished values, both moral and cultural.
c. Procedural due process: The government must follow certain procedures before it
deprives a person of life, liberty, or property.
d. Substantive due process: Refers to whether the government has adequate
justification for depriving a person of life, liberty, or property.
e. Due process requires, at a minimum:
i. Fair notice and an opportunity to be heard.
f. Due process violation requires:
i. Government action; and
ii. Deprivation of a constitutionally protected right.
2. Levels of Scrutiny
a. Strict scrutiny
i. Used when the law classifies on the basis of race, national origin, or infringes
on a fundamental right.
ii. Analysis
1. The law will be unconstitutional unless it is narrowly tailored to serve a
compelling government interest.
2. The law will be unconstitutional if there are less restrictive alternatives
available to achieve the compelling interest
b. Intermediate scrutiny
i. Used when the law classifies on the basis of sex, parental liberty interests or
the illegitimate status of a non-marital child.
ii. Analysis: The law will be unconstitutional unless it is substantially related to an
important government interest.
c. Rational basis
i. Used when the law classifies on the basis of age, levels of qualification, etc.
ii. Analysis: The law will be unconstitutional unless it is reasonably related to a
legitimate government interest.
Marriage, Family and Privacy
1. Moore v. City of East Cleveland (U.S.S.C. 1977) (p. 12)
a. Holding: The choice of relatives in this degree of kinship to live together may not
lightly be denied by the State.
b. Rationale
i. Freedom of personal choice in matters of marriage and family life is one of the
liberties protected by the Due Process Clause of the 14th Amendment.
ii. When the government intrudes on choices concerning family living
arrangements, the Court must examine carefully the importance of the
governmental interests advanced and the extent to which they are served by
the challenged regulation.
iii. The U.S. Constitution excludes any general power of the State to standardize
its children.
2
2. Meyer v. Nebraska (U.S.S.C. 1923) (p. 20)
a. Holding: Parents have the right to have their children instructed in German.
i. The State may not, consistently with the 1st Amendment, restrict the spectrum
of available knowledge.
ii. Parents have a 14th Amendment substantive due process liberty in the care,
custody and control of their children.
3. Pierce v. Society of the Sisters (U.S.S.C. 1925) (p. 20)
a. Holding: Parents have the right to send their children to private schools.
i. A child is not a mere creature of the State. Those who nurture him and direct
his destiny have the right, coupled with the high duty, to recognize and prepare
him for additional obligations.
4. Prince v. Massachusetts (U.S.S.C. 1944) (p. 21)
a. Holding: Aunt cannot allow her niece to be in violation of the child labor laws, re:
selling of religious literature.
b. Rationale
i. The State has broad authority to regulate the actions and treatment of children.
ii. Parental authority is not absolute and may be restricted if doing so is in the
child’s best interest.
iii. “Parents may be free to become martyrs themselves. But it does not follow
they are free, in identical circumstances, to make martyrs of their children
before [the children] have reached the age of full and legal discretion when
they can make that choice for themselves.”
5. Griswold v. Connecticut (U.S.S.C. 1965) (p. 21)
a. Courts do not sit as a super-legislature to determine the wisdom, need, or
propriety of laws that touch economic problems, business affairs, or social
conditions.
b. The statute, in forbidding the use of contraceptives rather than regulating their
manufacture or sale, seeks to achieve its goals by means having a maximum
destructive impact on the marital relationship—a relationship which lies firmly
within the zone of privacy created by several fundamental constitutional
guarantees.
c. A governmental purpose to control or prevent activities constitutionally subject to
state regulation may not be achieved by means which sweep unnecessarily
broadly and thereby invade the privacy of protected freedoms.
d. How would this statute be enforced? By allowing police into the marital bedroom?
i. “The very idea is repulsive to the notions of privacy surrounding the marriage
relationship.”
ii. Marriage is “intimate to the degree of being sacred.”
e. Concurrence
i. Focuses on 9th Amendment.
ii. How do courts determine which rights are fundamental?
1. They must look to the traditions and collective conscience of our people to
determine whether a principle is so rooted there as to be ranked as
fundamental.
3
2. Whether the right involved is of such a character that it cannot be denied
without violating those fundamental principles of liberty and justice which lie
at the base of all our civil and political institutions.
iii. The makers of our Constitution undertook to secure conditions favorable to the
pursuit of happiness.
1. They conferred, as against the government, the right to be let alone.
f. Dissent
i. The government has a right to invade its citizens privacy unless prohibited by
some specific constitutional provisions.
ii. The majority has to piecemeal together no less than six constitutional
amendments to reach its conclusion: 1st, 3rd, 4th, 5th, 9th, 14th.
1. Obviously this is a stretch.
6. Wyman v. James (U.S.S.C. 1971) (p. 30)
a. Public welfare recipient refused to allow caseworker into her home.
b. Holding: Visitation by caseworker was neither forced nor compelled, nor
sanctionable with criminal penalties.
i. Even if it is a search under the 4th Amendment, it is not an unreasonable one.
c. Dissent
i. The reasons behind the home visit are to protect welfare dependent children
against abuse and exploitation.
ii. These are serious problems, but they are hardly confined to welfare recipients.
iii. “Or is this Court prepared to hold as a matter of constitutional law that a
mother, merely because she is poor, is substantially more likely to injure or
exploit her children?”
7. Eisenstadt v. Baird (U.S.S.C. 1972) (p. 31)
a. Holding: The statute, viewed as a prohibition on contraception per se, violates the
rights of single people under the Equal Protection Clause of the 14th Amendment.
i. The legislative aim of the statute is not to deter pre-marital sex or regulate the
distribution of potentially harmful articles.
ii. The clear purpose of the statute was to limit contraception in and of itself.
b. Whatever the rights of the individual to access to contraceptives may be, the
rights must be the same for married and unmarried individuals.
i. If the right to privacy means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
child.
c. This case establishes that the right to make decisions regarding sexual conduct
extends beyond the marital relationship.
d. Concurrence
i. Would have settled the case under the 1st Amendment right to symbolic
speech.
4
Entering Marriage
1. Two Models of Marriage
a. Conjugal Model
i. Marriage is a sexual union of husband and wife who promise each other
sexual fidelity, mutual care-taking and joint parenting of children.
ii. Fundamentally child-centered.
1. Texas is like this: Texas Family Code is centered on providing stability for
marital relationships and security for the children born of the marriage.
b. Close Relationship Model
i. Marriage is a private relationship between two people primarily to satisfy the
needs of adults.
2. The Right to Marry
a. Types of restrictions
i. Absolute
ii. Incidental burden
iii.
Neutral
b. Loving v. Virginia (U.S.S.C. 1967) (p. 74)
i. Issue: Constitutionality Virginia statute forbidding interracial marriage.
ii. Holding: Restricting the freedom to marry solely because of racial
classifications violates the central meaning of the Equal Protection Clause and
the Due Process Clause of the 14th Amendment.
iii. Strict scrutiny
1. The Equal Protection Clause demands that racial classifications be
subjected to the “most rigid scrutiny.”
iv. The freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men.
1. “To deny this fundamental freedom on so unsupportable a basis as the
racial classifications embodied in these statutes...is surely to deprive all of
the State’s citizens of liberty without due process of law.”
c. Zablocki v. Redhail (U.S.S.C. 1978) (p. 79)
i. Issue: Constitutionality of Wisconsin statute forbidding Wisconsin residents
from marrying if they had minor children not in their custody who they were
required to support by court order or judgment.
1. This class of people are allowed to get married if they show compliance
with the support obligation and demonstrate that the children covered by
the support are not then and are not likely thereafter to become public
charges.
ii. Holding: Unconstitutional.
1. When a statutory classification significantly interferes with the exercise of a
fundamental right, it cannot be upheld unless it is supported by sufficiently
important state interests and is closely tailored to effectuate those interests.
2. The State already has numerous other means for exacting compliance with
support obligation that do not impinge on the right to marry.
5
d. Turner v. Safley (U.S.S.C. 1987) (TWEN)
i. Issue: Constitutionality of Missouri prison regulation that permits prisoners to
marry only with the approval of the prison superintendent. Approval should
only be given “when there are compelling reasons to do so.”
1. Does not define “compelling reasons.”
2. Alleged state interest is related to security and rehabilitation concerns.
ii. Holding: Unconstitutional.
1. Prison inmates retain those constitutional rights that are not inconsistent
with their status as a prisoner or with the legitimate penological objectives
of the corrections system.
2. Although the right to marry is subject to substantial restrictions as the result
of incarceration, there are still many aspects of marriage that are conducive
to prisoners.
a. Public commitment, emotional and spiritual support, legitimate children.
3. Remaining elements of marriage are sufficient to form a constitutionally
protected marital relationship in the prison context.
3. Same-Sex Marriage
a. Bowers v. Hardwick (U.S.S.C. 1986) (p. 89)
i. Holding: The Constitution permits states to criminalize sexual intimacy
between same-sex couples.
1. Court upheld a Georgia law that criminalized sodomy between consenting
adults.
ii. Homosexual conduct does not pass the “fundamental rights” test.
iii. Dissent (Stevens)
1. The fact that the governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding a law
prohibiting the practice.
2. Individual decisions, by married or unmarried persons, concerning the
intimacies of their physical relationship, even when not intended to produce
offspring, are a form of liberty protected by the Due Process Clause of the
14th Amendment.
b. Lawrence v. Texas (U.S.S.C. 2003) (p. 90)
i. Issue: Whether the majority can may use the power of the State to enforce its
ethical and moral principles on the whole society through operation of the
criminal law.
ii. Holding: No. Bowers is overruled.
1. Court struck down a Texas law criminalizing same-sex sodomy as a
violation of substantive due process liberties.
2. Same-sex sodomy laws have far-reaching consequences, touching upon
the most private human conduct (sexual behavior) in the most private of
places (the home).
3. “At the heart of liberty is the right to define one’s own concept of existence,
of meaning, of the universe, and of the mystery of human life.” PP v Casey.
a. “Persons in a homosexual relationship may seek autonomy for these
purposes, just as heterosexual persons do.”
4. Case is governed by substantive due process rights.
6
iii. Concur (O’Connor)
1. Moral disapproval of a group cannot be a legitimate governmental goal
under the Equal Protection Clause because legal classifications must not
be drawn for the purpose of disadvantaging the group burdened by the law.
a. “Our obligation is to define the liberty of all, not to mandate our own
moral code.” Planned Parenthood v. Casey.
2. A law branding one class of persons as criminal based solely on the State’s
moral disapproval of that class and the conduct associated with it runs
contrary to the values of the Constitution and the Equal Protection Clause.
iv. Dissent (Scalia)
1. If, as the Court asserts, the promotion of majoritarian sexual morality is not
even a legitimate state interest, then none of these laws can survive:
a. Fornication, bigamy, adultery, adult incest, bestiality and obscenity.
i. Yes, they can, Scalia. Don’t be overly dramatic.
2. Majority dismantles the structure of constitutional law that has permitted a
distinction to be made between heterosexual and homosexual unions.
c. Judicial Recognition of Same-Sex Marriage
i. Goodridge v. Dept. of Public Health (Mass. 2003) (p. 100)
1. Issue: Whether, consistent with the Mass. Constitution, the state may deny
the protections, benefits and obligations conferred by civil marriage to two
individuals of the same sex who wish to marry.
2. Holding: No. Civil marriage is the voluntary union of two persons as
spouses, to the exclusion of all others. Sexual orientation is not an issue.
a. History cannot and does not foreclose the constitutional question.
b. Civil marriage is a wholly secular institution: no religious ceremony has
ever been required to validate a Massachusetts marriage.
c. The exercise of the State’s regulatory authority must not be arbitrary or
capricious: it must serve a legitimate purpose in a rational way.
d. It is the exclusive and permanent commitment of the marriage partners
to one another, not the begetting of children, that is the sine qua non1 of
civil marriage.
e. Ban on same-sex marriage does not meet the rational basis test for
either Due Process of Equal Protection.
ii. Perry v. Schwartznegger (N.D. Calif. 2010) (TWEN)
1. Holding: Prop. 8 cannot stand up to any level of constitutional scrutiny
under the Equal Protection Clause.
iii. Windsor v. U.S. (U.S.S.C. 2013) (TWEN)
1. π did not qualify for marital exemption of federal estate tax under DOMA.
2. Regulating marriage has traditionally been left to the states, not Congress.
3. DOMA violates the Equal Protection and Due Process Clauses.
4. Polygamous Marriage
a. Polygamy is a practice with deep historical roots and broad contemporary reach in
many non-Western cultures.
i. Polygyny: The marriage of one man to more than one woman.
ii. Polyandry: The marriage of a woman to more than one man.
1
An indispensable and essential action, condition or ingredient.
7
b. The second marriage becomes valid when the prior marriage is dissolved and if,
after the date of dissolution, parties have cohabited and held themselves out as
husband and wife.
c. Reynolds v. U.S. (U.S.S.C. 1878) (p. 128)
i. Holding: Upheld the criminalization of polygamy against a claim that it violated
religious freedom as guaranteed by the First Amendment.
1. Free Exercise Clause of 1st Amendment entitles polygamists to believe in
polygamy as a tenet of their faith, but not to act on that belief if doing so
would be in violation of social duties or subversive of good order.
ii. At common law, the second marriage was always void, and from the earliest
history of English law, polygamy has been an offense against society.
d. State v. Holm (Utah 2006) (p. 129)
i. Holding
1. The definition of “marriage,” as defined in the Utah statute prohibiting
bigamy, includes both legal marriages and those that are not statesanctioned.
a. You can’t get away with bigamy by claiming that you didn’t really marry
the second spouse because you knew that such a marriage had no
force in law.
2. Crux of marriage in our society is its exclusivity.
a. Two individuals commit themselves to undertake a marital relationship
to the exclusion of all others.
3. Policy: The practice of polygamy often coincides with crimes targeting
women and children. Crimes not unusually attendant to the practice of
polygamy include incest, sexual assault, statutory rape, and failure to pay
child support.
ii. Dissent
1. Majority does not adequately explain how the institution of marriage is
abused or state support for monogamy is threatened by an individual’s
choice to participate in a religious ceremony with more than one person
outside the confines of legal marriage.
2. The majority’s reasoning may give the impression that the state is free to
criminalize any and all forms of personal relationships that occur outside
the legal union of marriage.
5. Incestuous Marriage
a. Incest has been prohibited in every U.S. jdx since colonial times.
b. The crime of incest in all states includes marriage between certain close family
members: parent and child, grandparent and grandchild, and between siblings.
i. Many states treat relations by affinity the same as relations by consanguinity:
stepfathers cannot marry stepdaughters.
ii. Most states treat relations created by adoption in the same manner as those
created by blood.
iii. States are nearly even split on first cousin marriages.
c. Lower courts have held that Lawrence is inapplicable to incestuous relationships
because, unlike the same-sex relationship in Lawrence, incestuous relationships
are often coercive and involve injuries to others, including children.
8
d. Smith v. State (Tenn. App. 1999) (p. 145)
i. Issue: Is there a fundamental right to engage in incestuous sexual activity?
ii. Holding: No. Incest taboo is deeply rooted in Anglo-American history and
traditions.
1. Incest is the opposite of a fundamental right.
iii. Issue: Can the Tennessee incest statute can survive the rational-basis test?
iv. Holding: Yes, it can.
1. Under rational basis test, a statute will be deemed valid if it bears a real
and substantial relationship to the public’s health, safety, morals, or general
welfare and it neither unreasonable or arbitrary.
2. Incest taboo is directly reflective of the moral concerns of our society.
3. Incest taboo is aimed at the protection of children and of the family unit.
6. Underage Marriage
a. Most jdxs set the minimum age to marry at 18 and allow minors to marry with
parental or judicial consent.
i. Most states permit a minor who is 16 or 17 to marry with either parental or
judicial consent.
ii. Most states permit a minor under 16 to marry in exceptional cases (generally
construed to mean that the girl is pregnant) with both judicial and parental
consent.
b. The Equal Protection Clause permits states to discriminate on the basis of age so
long as the state has rational reasons for the line it draws.
7. Consent to Marriage
a. A valid marriage has always required mutual consent of the spouses.
i. To give valid consent to marriage, a party must be capable of understanding
the rights, duties and responsibilities of marriage at the time of the marriage
contract.
ii. Expression of consent must be voluntary, free from duress or fraud.
iii. Like any contract, there must be a “meeting of the minds.”
b. Grounds to Annul a Marriage
i. Impotency
1. This must be brought up by one of the parties themselves, not third parties.
ii. Incapacity
1. Mental conditions
2. Intoxication
3. Hypnosis
iii. Fraud
1. Fraud must be related to the “essentials of marriage.”
2. False representations about religious beliefs, desire to have children,
intention to relocate to live with spouse go to the essentials of marriage.
3. False representations as to finances, character and social standing do not
go to the essentials of marriage.
a. It is against public policy to annul a marriage for fraud or
misrepresentation as to personal qualities.
4. This must be determined on a case-by-case basis.
iv.
Duress
9
1. Lack of voluntary, mutual consent.
c. Void Marriages
i. Void marriages are those that offend very strong public policies.
ii. Because of the state’s overriding policy objection, void marriages are
considered to be absolutely void even without a request for an annulment.
iii. Example: Same-sex marriages, polygamous marriages, incestuous marriages.
d. Voidable Marriages
i. Voidable marriages offend less strident public policies.
ii. A voidable marriage is considered legally valid unless and until one party goes
to court to have it annulled.
iii. Example: Underage marriages, incapacity, induced by fraud or duress.
e. In re Estate of Santolino (N.J. Superior Court 2005) (p.154)
i. A void marriage can be annulled after the death of one of the parties.
ii. In this case, allegation of lack of consent succeeded.
1. Husband heavily medicated, undergoing chemo, required daily assistance
from nurse.
2. Marriage void!
8. Marriage Formalities
a. Two formal requirements to establish a valid ceremonial marriage:
i. a marriage license; and
ii. solemnization.
b. Marriage is strongly favored by the law, and existing marriages are presumed to
be valid, and that presumption has been described by the courts as very strong. It
is a presumption that grows stronger with the passage of time, is especially strong
when the legitimacy of children is questioned, and can only be negated by
disproving every reasonable possibility that it is valid.
c. Uniform Marriage and Divorce Act (p. 163)
i. The solemnization of a marriage is not invalidated by the fact that the person
solemnizing the marriage was not legally qualified to solemnize the marriage if
either party believed him to be so qualified.
d. Persad v. Balram (N.Y. Dist. Court 2001) (p. 163)
i. If it looks like a duck...
ii. Where parties participate in a solemn marriage ceremony officiated by a
clergyman or magistrate wherein they exchange vows, they are married in the
eyes of the law.
iii. The parties’ failure to obtain a marriage license does not render their marriage
void.
9. Common-Law Marriage
a. Three requirements of common-law marriage
i. Cohabitation
ii. Parties intend to be married
iii. Parties hold themselves out to the public as married
b. In re Estate of Hunsaker (Montana 1998) (p. 171)
i. The party asserting the existence of a common-law marriage must prove that
the three elements all existed at one time.
10.
Putative Spouse Doctrine
10
a. Putative spouse doctrine provides an equitable remedy for an innocent spouse
who has participated in a marriage ceremony and has relied in good faith on a
mistaken belief in the validity of the marriage.
b. Doctrine does not validate the marriage, but only provides relief that may closely
resemble the relief the party would have received if the putative marriage had
ended in divorce.
c. Cardwell v. Cardwell (Tex. App. 2006) (TWEN)
i. The key to the putative-marriage argument is good faith.
ii. When the party arguing for putative marriage is aware that there was a former
marriage, the question is of the reasonableness of the party’s belief that the
former marriage has been dissolved.
Regulation of the Intact Marriage
1. Duty to Support
a. McGuire v. McGuire (Neb. 1953) (TWEN)
i. As long as the home is maintained and the parties are living as husband and
wife, it may be said that the husband is legally supporting his wife and the
purpose of the marriage relation is being carried out.
2. Names in the Family
a. Neal v. Neal (Missouri 1997) (TWEN)
i. Proper procedure in changing the name of a minor child requires that notice be
given by the party seeking to have the child’s name changed.
b. Henne v. Wright (8th Cir. 1990) (TWEN)
i. Issue: Whether a parent has a fundamental right to give a child a surname at
birth with which the child has no legally established parental connection.
ii. Holding: No. Nothing “fundamental.”
iii. Issue: Does the statute restricting what surnames parents may give their
children have a rational basis?
iv. Holding: Yes.
1. State has an interest in promoting the welfare of children.
2. State has an interest in ensuring that the names of its citizens are not
appropriate for improper purposes.
3. State has an interest in inexpensive and efficient record keeping.
3. Employment
a. Bradwell v. Illinois (U.S.S.C. 1873) (TWEN)
i. Married women have no fundamental right to a law license. They belong in the
domestic sphere. Husbands are the providers and defenders.
4. Medical Decision-Making
a. Planned Parenthood v. Casey (U.S.S.C. 1992) (p. 227)
i. Holding: A husband has no enforceable right to require a wife to notify him
before she makes personal, medical choices.
1. The husband’s interest in the life of the child his wife is carrying does not
permit the State to empower him with this troubling degree of authority over
his wife.
11
ii. When a husband and wife disagree on the decision of whether to abort a
pregnancy, the view of only one of the two marriage partners can prevail.
Inasmuch as it is the woman who physically bears the child and who is the
more directly and immediately affected by the pregnancy, as between the two,
her view prevails.
iii. The marital couple is not an independent entity with a mind and heart of its
own, but an association of two individuals each with a separate intellectual and
emotional makeup.
b. In re: Guardianship of Theresa Schiavo (TWEN)
i. When families cannot agree, the law allows trial judges to serve as proxies to
make decisions about life-prolonging procedures.
ii. The trial court’s duty is to make a decision that clear and convincing evidence
shows the ward would have made for herself.
iii. Automatic legal guardianship of incapacitated persons:
1. Spouse
2. Adult children
3. Parents
4. Court appointed guardian - sometimes the trial judge himself
a. Usually when there are familial disputes.
b. Unpopular: Most people don’t want courts deciding if they live or die.
5. Familial Evidentiary Privileges
a. Trammel v. U.S. (U.S.S.C. 1980) (p. 245)
i. Issue: Whether an accused may invoke the privilege against adverse spousal
testimony so as to exclude the voluntary testimony of his wife.
ii. Holding: The witness-spouse alone has a privilege to refuse to testify
adversely. The witness-spouse may neither be compelled to testify or
foreclosed from testifying.
iii. Information that is privately disclosed between husband and wife in the
confidence of the marital relationship is privileged under the independent rule
protecting confidential marital communications.
6. Premarital Agreements
a. Uniform Premarital Agreement Act (p. 841)
b. ALI Principles (p. 843)
c. Sets out the rights and privileges of the spouses upon the dissolution of marriage.
d. Contract principles are at odds with the sanctity of marriage. There is no dealing
at arm’s length.
i. Texas recognizes a confidential between engaged parties.
ii. This confidential relationship imposes a fiduciary duty to disclose financial
information.
e. Elements required for a valid prenuptial agreement
i. Voluntary consent
ii. Informed consent
iii. Tolerably fair so as not to offend public policy
1. This is a fact-based decision.
f. All authorities agree that parties may not contractually waive or limit the court’s
authority to award child support.
12
g. Mallen v. Mallen (Georgia 2005) (p. 844)
i. Three questions to test validity of prenuptial agreement
1. Was the agreement obtained through fraud, duress, mistake or
misrepresentation/nondisclosure of material facts?
2. Is the agreement unconscionable?
3. Have the facts and circumstances changed since the agreement was
executed so as to make its enforcement unfair and unreasonable?
ii. Holding: Insistence on a prenuptial agreement as a condition of marriage does
not rise to the level of duress required to void an otherwise valid contract.
h. In re Estate of Hollett (N.H. 2003) (p. 851)
i. Holding: Prenuptial agreement was involuntary.
1. Signed the day of the wedding.
2. Woman was under considerable emotional distress.
3. Prenuptial agreements that result from such a vast disparity in bargaining
power must meet a high standard of procedural fairness.
ii. Because prenuptial agreements often involve persons in a confidential
relationship, the parties must exercise the highest degree of good faith,
candor and sincerity in all matters bearing on the terms and execution of the
agreement.
7. Nonmarital Families: Cohabitation
a. In Texas, for a cohabitant to bring a breach of contract claim, the contract must be
written, in accordance with the Statute of Frauds.
b. ALI Principles (p. 276)
c. Marvin v. Marvin (California 1976) (p. 261)
i. Holding: Agreements between nonmarital partners fail only to the extent that
they rest upon a consideration of meretricious sexual services.
1. Provisions of Family Code that apply to divorcing couples do not apply to
cohabitating couples.
a. Such relationships remain subject solely to judicial discretion.
2. Courts should enforce express contracts between nonmarital partners
except to the extent that the contract is explicitly founded on the
consideration of meretricious sexual services.
a. Even if sexual services are part of the contractual consideration, any
severable portion of the contract supported by independent
consideration will still be enforced.
3. In the absence of an express contract, courts should inquire into the
conduct of the parties to determine whether that conduct demonstrates
an implied contract, agreement of partnership, or some other tacit
understanding between the parties.
ii. “Although we recognize the well-established public policy to foster and
promote the institution of marriage, perpetuation of judicial rules which result in
an inequitable distribution of property accumulated during a nonmarital
relationship is neither a just nor effective way of carrying out that policy.”
d. Devaney v. L’Esperance (N.J. 2008) (p. 268)
i. Holding: Cohabitation is not an essential requirement for a cause of action for
“palimony,” but a marital-type relationship is required.
13
ii. No marital-type relationship existed in this case.
1. Parties had not cohabited.
2. Parties had not spent significant amount of time together.
3. Parties did not demonstrate intent to commingle property.
4. Parties did not hold themselves out as husband and wife.
e. Fleming v. Spencer (Wash. App. 2002) (p. 279)
i. A meretricious relationship is a stable, marital-like relationship in which both
parties cohabitate knowing that a lawful marriage does not exist.
ii. Factors to determine existence of meretricious relationship
1. Continuous cohabitation
2. Duration of relationship
3. Purpose of relationship
4. Pooling of resources
5. Intent of the parties
iii. Equitable claims based on a meretricious relationship do not depend on
whether the parties can legally marry each other.
iv. In making property distribution, the trial court should prevent one party from
being unjustly enriched.
8. Domestic Violence
a. Domestic violence can be defined as a pattern of attempts to exercise coercive
control over an intimate partner.
i. Includes physical violence, sexual violence, emotionally abusive behavior, and
economically abusive behavior.
b. More than 1 in 3 women and more than 1 in 4 men have experienced rape,
physical violence and/or stalking by an intimate partner.
c. Hawthorne v. State (Florida App. 1982) (TWEN)
i. Trial court denied expert testimony on Battered Women Syndrome because
there was not enough scientific scrutiny or consensus on the subject.
ii. Criteria for admissibility of expert testimony
1. Expert must be qualified to give an opinion.
2. There must be scientific scrutiny and consensus on the subject matter.
3. Subject matter of the opinion has to be beyond the ready understanding.
d. Town of Castle Rock v. Gonzales (U.S.S.C. 2005) (p. 346)
i. Issue: Whether an individual who has obtained a state-law restraining order
has a constitutionally protected property interest in having the police enforce
the restraining order when they have probable cause to believe it has been
violated.
ii. Holding: An individual does not, for the purposes of the Due Process Clause,
have a property interest in police enforcement of a restraining order.
1. The benefit that a third party may receive from having someone else
arrested for a crime does not generally trigger protections under the Due
Process Clause, either substantively or procedurally.
a. Legislatures can and should deal with this.
2. A well-established tradition of police discretion has long coexisted with
apparently mandatory arrest statutes.
e. S.D. v. M.J.R. (N.J. App. 2010) (TWEN)
14
i. Holding: Abuser’s religious beliefs do not exempt him from the criminal code,
which applies to everyone.
f. Weiner v. Weiner (N.Y. 2010) (TWEN)
i. Elements of stalking
1. Presence of person in location is w/o legitimate purpose.
2. Person knows or should know that his presence will cause the victim fear of
physical harm or emotional distress.
ii. Intent to harm is NOT a required element of stalking.
g. Lane v. Texas (Tex. App. 1997) (TWEN)
i. Verbal threats are rarely enough to constitute the use of deadly force in selfdefense.
9. Establishing Paternity
a. Uniform Parentage Act (p. 309)
b. When a child is born to a married woman, her husband is the presumptive father.
i. Three ways to rebut presumption
1. Impotence
2. Sterility
3. Lack of access
ii. These rebuttals may only be brought up by the husband or wife.
c. Stanley v. Illinois (U.S.S.C. 1972) (p. 289)
i. Court struck down a statute that made children of nonmarital fathers wards of
the state following the death of the mother.
ii. Statute violated Due Process and Equal Protection Clauses.
1. Illinois incorrectly presumed that all nonmarital fathers were unfit parents.
2. Nonmarital fathers must receive procedural due process concerning their
parental rights.
d. Quilloin v. Walcott (U.S.S.C. 1978) (p. 290)
i. Nonmarital father could not veto stepfather’s adoption when the nonmarital
father had not shouldered significant responsibility for child’s upbringing.
e. Caban v. Mohammed (U.S.S.C. 1979) (p. 290)
i. Nonmarital father could veto stepfather’s adoption because he had a
substantial relationship with his illegitimate children.
f. Lehr v. Robertson (U.S.S.C. 1983) (p. 290)
i. The biological relationship between father and child does not warrant
constitutional protection unless the father has developed a substantial
relationship with the child.
1. “Biology plus” standard.
2. The significance of the biological connection is that it offers the natural
father an opportunity that no other male possesses to develop a
relationship with his offspring.
g. Michael H. v. Gerald D. (U.S.S.C. 1989) (plurality) (p. 291)
i. Holding: The Court’s previous decisions protect the marital family (Wife,
Husband and Child they hold out as their own) against the claim the natural
father asserts in this case.
1. When the child is born into an extant marital family, the natural father’s
unique opportunity conflicts with the similarly unique opportunity of the
15
husband. It is not unconstitutional for the State to give categorial
preference to the husband.
ii. Dissent (Brennan)
1. Marriage should not be a determinative factor in establishing paternity.
a. See line of cases starting with Stanley!
2. Michael H. is almost certainly Victoria’s natural father, he has lived with her
as her father, he has contributed to her support, and he has from the
beginning sought to strengthen and maintain his relationship with her.
iii. The plurality’s decision is stupid. Brennan’s dissent is correct.
h. In re C.E. (Tex. App. 2012) (TWEN)
i. Petitioner filed for termination of his parental rights under § 161.005(c).
ii. The prima facie standard requires only the minimum quantum of evidence
necessary to support a rational inference that the alleged fact is true.
iii. Petitioner met the prima facie standard through circumstantial evidence:
1. Someone stressed to him that, when the child was born, she bore a strong
resemblance to him.
2. Mother might have made misrepresentations by naming petitioner as the
father on the birth certificate when she knew there was another possible
father.
10.
Establishing Maternity
a. Woman who gives birth has historically been presumed to be the mother.
b. Establishing maternity is more complex as “assisted reproductive technologies”
have enabled several women to contribute to maternity and as same-sex partners
engage in mothering functions together.
c. Johnson v. Calvert (California 1993) (p. 311)
i. Surrogate gave birth to child, donor provided ovum.
ii. Question of maternity must be resolved by looking into the parties’ intentions
as manifested in the surrogacy agreement.
1. But for the married couple’s acted-on intention, the child would not exist.
2. Married woman who supplied the ova is the mother.
iii. When there is a situation in which one woman gave birth to the child and
another woman supplied the genetic material, the woman who intended to
bring about the birth of a child that she intended to raise as her own is
the natural mother.
iv. Dissent: Would look to best interests of the child to determine maternity.
d. K.M. v. E.G. (California 2005) (p. 316)
i. Issue: Whether a woman who provided ova to her lesbian partner so that the
partner could bear children by means of IVF is a parent of those children.
ii. Holding: When partners in a lesbian relationship decide to produce children in
this manner, both the woman who provides her ova and her partner who bears
the children are the parents of the children.
Dissolution of Marriage
1. Uniform Marriage and Divorce Act (p. 163)
2. Fault-Based Divorce
16
a. Litigating fault can have financial implications in states that permit consideration of
marital fault in shaping property and alimony awards.
b. Grounds for Fault-Based Divorce
i. Physical cruelty
1. Must be proven by a preponderance of the evidence.
ii. Mental cruelty
1. Requires a showing of habitual, continuous, permanent and plain
manifestation of settled hate, alienation, and estrangement on the part of
one spouse, sufficient to render the condition of the other intolerable.
iii. Adultery
1. All forms of sexual contact between persons of any gender constitute
adultery.
2. Must be proven by clear and convincing evidence that demonstrates both
an adulterous inclination and a reasonable opportunity to satisfy that
inclination.
iv. Desertion
1. The willful abandonment of cohabitation for a sufficient period of time,
usually lasting at least one year.
2. Abandoning spouse must have intent to abandon.
c. Fault-Based Bars and Defenses
i. Recrimination
1. “Recrimination is the outrageous legal principle which ordains that when
both spouses have grounds for divorce, neither may have a decree.”
2. Bizarre implications → Not favored by courts
ii. Provocation
1. Faulty conduct was reasonably provoked by other party.
2. Other party’s conduct must be severe enough so that the faulty conduct is
proportionate to the provocation.
iii. Connivance
1. When party seeking divorce manufactures the fault upon which divorce is
sought.
2. Spouse engineers other spouse’s adultery.
iv. Condonation
1. Fault ground has already been forgiven and therefore cannot be invoked to
dissolve the marriage.
a. Only defense allowed in Texas.
v. Collusion
1. When spouses conspire to manufacture grounds for a fault divorce.
d. Das v. Das (Maryland App. 2000) (p. 427)
i. Verbal and physical abuse may have been tolerated in another era, and our
predecessors at bar may have placed the continuity of the marital bond above
the well-being of the individual participants, but our values are different today.
ii. Where violence has been inflicted and threats have been made, a court of
equity should not hesitate to grant relief, especially where the facts indicate a
probability that violence might be repeated.
e. Spence v. Spence (Mississippi App. 2005) (p. 432)
17
i. When adultery is alleged, the burden of proof is a heavy one...because the
evidence must be logical, tend to prove the facts charged, and be
inconsistent with a reasonable theory of innocence.
f. In re Marriage of Hightower (Illinois App. 2005) (p. 439)
i. Factors to determine whether a party intended to forgive spouse’s behavior
1. An expression of forgiveness
2. The fact of cohabitation
3. The length of time the parties cohabited after the injured spouse learned of
the matrimonial offense
4. Whether cohabitation was the result of necessity
5. Whether parties continued to have sexual relations
3. No-Fault Divorce
a. No-fault divorce usually requires a judicial finding that the marriage is irretrievably
broken and the satisfaction of a waiting period while living “separate and apart.”
b. Frey v. Frey (Penn. 2003) (p. 446)
i. Isolated attempts at reconciliation do not start the clock over for the required
separation period.
ii. Holding: Although cohabiting under one roof, husband and wife were living
separate lives.
1. Husband should not be penalized for trying to make life for his daughter
more pleasurable or for the isolated, unsuccessful attempts at
reconciliation.
c. Richter v. Richter (Minn. App. 2001) (p. 451)
i. Finding of irretrievable breakdown of marriage must be supported by:
1. Proscribed separation period; or
2. Evidence that there is serious marital discord adversely affecting the
attitude of one or both parties.
ii. A party’s testimony is a sufficient basis for a finding of irretrievable breakdown.
iii. Marriage is not a contract for purposes of the Contract Clause.
d. Cusack v. Cusack (Tex. App. 1973) (TWEN)
i. The question of irretrievable breakdown of a marriage is a question of fact.
ii. Parties had different views about their marriage. Jury obviously found the
husband’s testimony more credible, as they granted him a divorce.
4. Annulment
a. To obtain an annulment, petitioner must show that the marriage suffers from a
serious defect dating back to its inception which renders it void or voidable.
i. See page 8.
b. Splawn v. Splawn (S.C. 1993) (p. 465)
i. Issue: Whether a Family Court has subject-matter jurisdiction to equitably
distribute property of a bigamous marriage.
ii. Holding: Once an annulment is granted, Family Courts do not lose their
authority to equitably distribute property.
5. Division of Marital Property
a. ALI Principles (p. 477)
b. Three Questions about Property Distribution → C.V.D.
i. How does the state classify property?
18
ii. How should the property be valued?
iii. How should the property be equitably divided?
c. Four Regimes of Property Distribution (p. 475-77)
i. Equitable distribution regime
ii. Community property regime
1. Husband and wife own all property jointly.
2. During marriage, each spouse has 1/2 interest in all property acquired by
the other spouse.
3. All property brought to the marriage remains separate property, absent comingling or transmutation.
4. Gifts and inherited property acquired during marriage remain separate
property.
iii. “Kitchen-Sink” regime
1. Set forth in UMDA.
2. Permits a court to consider and divide all property owned by either or both
spouses, regardless of how or when it was acquired.
3. Proponents say equity is easier to achieve after a long marriage in which
the spouses have very different resources at their disposal.
iv.
ALI Principles
d. Characterizing Property as Marital or Separate
i. Separate property can become marital property through co-mingling.
1. If separate property is inextricably mingled with marital property or with the
separate property of the other spouse, it becomes marital property.
2. If separate property continues to be segregated or can be traced back to its
product through clear and convincing evidence, co-mingling does not
occur.
ii. Separate property can become marital property through transmutation.
1. Transmutation occurs when separate property is treated in such a way as
to give evidence of an intention that it become marital property.
iii. Nack v. Nack (Virginia App. 2007) (p. 481)
1. In order to trace the separate portion of hybrid property, a party must prove
that the claimed separate portion is identifiably derived from a separate
asset.
a. This is determined on a case-by-case basis.
2. Marital property: Investment portfolio, buffalo, and farm equipment.
3. Separate property: Two automobiles (pursuant to prenuptial agreement.)
e. Appreciation of Separate Property During the Marriage
i. Middendorf v. Middendorf (Ohio 1998) (p. 493)
1. Issue: Legal standards for determining when appreciation in separate
property becomes marital property.
2. Holding
a. An increase in the value of separate property due to either spouses’
efforts is marital property.
b. If the evidence indicates that the appreciation of the separate property
is not due to the input of either spouses’ labor, money, or in-kind
19
appreciations, then the increase in value is passive appreciation and
remains separate property.
f. New Property
i. Courts have concluded that increased earning capacity, a possible future
inheritance, a contingent trust interest, a professional degree, a professional
license, and professional goodwill are all divisible property.
ii. Holterman v. Holterman (New York 2004) (p. 502)
1. Issue: Is wife entitled to 35% of the marital portion of the enhanced earning
capacity derived from his medical license?
2. Factors
a. Length of marriage (19 years)
b. Wife’s employment and monetary contributions during Husband’s final
two years of medical school.
c. Parties mutual decision that Wife become a homemaker.
d. Gross disparity between spouses’ current and probable future
outcomes.
e. Age of parties (Wife 46, Husband 44).
f. Health of parties (Husband in good health. Wife has health problems.)
g. Allocating Debts Acquired During Marriage
i. Presumption is that a debt incurred by either spouse during marriage is a
community debt.
1. Presumption may be rebutted by clear and convincing evidence that the
debt was not contracted for community benefit.
2. Whether, at the time the obligation was entered into, there was a
reasonable expectation the community would receive a material benefit
from it.
ii. Sunkidd Venture, Inc. v. Snyder-Entel (Wash. App. 1997) (p. 526)
1. Issue: Whether Wife is separately bound as a tenant to a lease agreement
signed only by Husband.
2. Yes. Lease liability was a family expense. Creditors can go after Wife as
well as Husband.
h. Alimony
i. Tex. Family Code - Chapter 8 (p. 44)
ii. Uniform Marriage and Divorce Act (p. 550)
iii. ALI Principles (p. 555)
1. Compensation for Loss of Marital Living Standard
2. Compensation for Primary Caretaker’s Residual Loss in Earning Capacity
iv. Three rationales for alimony
1. Reimbursement for contribution to the other party (restitution)
2. Compensation for career sacrifices (reliance)
3. Expectation of lifestyle (expectation damages or benefit of the bargain)
v. The Form of Alimony (p. 575)
1. Rehabilitative alimony
a. Short term alimony until spouse can become self-supporting.
2. Reimbursement alimony
20
a. Spouse whose financial contributions during the marriage directly
enhanced the other spouse’s earning capacity
3. Limited-duration alimony
a. Designed to “bridge the gap” between marital and single status.
b. To meet identifiable, short-term support needs that are not expressly
rehabilitative in nature.
4. Permanent, indefinite or periodic alimony
a. The exception, not the rule.
b. Dependent spouse, because of age, illness, or disability, cannot
reasonably be expected to become self-supporting.
c. Resulting differences in the parties’ standards of living would be
“unconscionably disparate.”
5. “Lump-sum” alimony
a. Just what it sounds like: a one-time payment. This comes up more often
in mediation (or whatever) than in the courts.
vi.
In re Marriage of Reynard
1. Factors in determining alimony
a. Income
b. Present and future earning capacity of the parties
c. Needs of each party
d. Any impairment of earning capacity due to devoting time to domestic
duties or having forgone or delayed opportunities due to the marriage
e. Time necessary to acquire appropriate education, training and
employment
f. Ability of the party to support himself or herself
g. Standard of living established during the marriage
h. Duration of the marriage
i. Age, physical and emotion condition condition of the parties
j. Contributions and services by the spouse seeking maintenance to the
education, training, or career of the other spouse.
2. Courts do not have to give equal weight to these factors.
3. Equalization of the parties’ income may be appropriate in some cases.
a. It is inequitable to saddle a wife with the burden of her reduced earning
potential while allowing the husband to continue in the advantageous
position he reached through their joint efforts.
4. Holding: Facts of this case do not rise to the level necessary to equalize the
parties’ net disposable incomes.
Child Custody, Visitation and Support
1. Tex. Family Code - Chapter 153 (p. 287)
2. Uniform Marriage and Divorce Act (p. 687)
3. ALI Principles (p. 691)
a. Criticism: This looks a lot like the “tender years” doctrine. (p. 673)
4. Types of custody
a. Sole managing conservatorship w/o visitation from other parent.
21
i. Other parent is a batterer, for example.
b. Permanent managing conservatorship with other parent having possessory
conservatorship.
c. Joint managing conservatorship.
i. Both parents have legal custody, but physical custody is different issues
d. Split managing conservatorship
i. Joint legal and physical custody
5. Joint Custody
a. Joint legal custody confers responsibility for shared decision making.
b. Joint physical custody gives both parents shared day-to-day decision-making and
responsibility AND equal split of child’s residence in both home.
i. Equal possession is not required.
6. Holly “Best Interest” factors in Texas (non-exhaustive)
a. Desire of child
b. Emotional and physical needs of child, now and in the future
c. Emotional and physical danger to child, now and in the future
d. Parental abilities of party seeking custody
e. Programs available to assist party seeking custody
f. Plans for child of party seeking custody
g. Stability of home of party seeking custody
h. Acts or omissions of the parent that indicate that the parent-child relationship is
improper
i. Any excuse for acts or omissions of the parent
7. Best Interests of the Child
a. McDermott v. Dougherty (Maryland App. 2005) (p. 659)
i. Holding
1. In disputed custody cases where third parties are attempting to gain
custody of children from their natural parents, the trial court must first find
that (1) both natural parents are unfit; or (2) exceptional circumstances
exist which are significantly detrimental to the child remaining in the
custody of the parent before looking to the “best interests of the child”
standard.
2. Where there is no finding of parental unfitness, the requirements of a
parent’s employment do not constitute “extraordinary or exceptional
circumstances” to support the awarding of custody to third parties.
a. The efforts from a third party to care for the child (under the
circumstances of this case) cannot overcome the fundamental
constitutional right of a fit parent to exercise care, custody, and control
of his child.
ii. “Exceptional circumstances” factors
1. Length of time child has been away from biological parents
2. Age of child when care was assumed by third party
3. Potential emotional effect on the child due to the change in custody
4. Period of time which elapsed before parent sought to reclaim the child
5. Nature and strength of times between child and third-party custodian
6. Stability and certainty as to the child’s future while in parent’s custody
22
b. Painter v. Bannister (Iowa 1966) (habeas) (p. 676)
i. Holding: Bannisters = psychological parents. This means that the child would
be better off with them.
1. The primary consideration is the best interest of the child, and if the return
of custody to the father is likely to have a seriously disrupting and
disturbing effect upon the child’s development, this fact must prevail.
2. Best interest of the child can trump a father’s desire to have custody over
his child, even without a finding of parental unfitness.
ii. This is a stupid, ridiculous case.
c. Blevins v. Bardwell (Mississippi 2001) (p. 694)
i. “We must defer to the polestar consideration in every child custody case: the
best interests of the child.”
ii. BIC Factors
1. Age, health, and gender of child
2. Which parent has had the continuity of care prior to separation
3. Which parent has the best parenting skills
4. Which parent has the willingness and capacity to provide primary child care
5. Employment of parent and responsibilities of the employment
6. Age, mental and physical health of both parents
7. Emotional ties between parents and child
8. Moral fitness of parents
9. Home, school, and community record of the child
10. Preference of the child (if he is of sufficient age)
11. Stability of home environment and employment of each parent
8. Domestic Violence
a. Wissink v. Wissink (New York App. 2002) (p. 710)
i. Holding: Family Court erred in awarding custody to a father with a history of
domestic violence without first ordering comprehensive psychological
evaluations to ensure that this award of custody was in the child’s best
interest.
1. In any action concerning custody or visitation where domestic violence is
alleged, the court must consider the effect of the domestic violence upon
the best interests of the child in making an award of custody.
2. The fact of domestic violence should have been considered more carefully,
particularly where the teenaged daughter expressed her unequivocal
preference for the abuser while at the same time denying the very
existence of the domestic violence that the Family Court found she
witnessed.
ii. Proper comprehensive psychological evaluation
1. Interview each parent alone and then each parent with the child.
2. Evaluate siblings together and then separately, even with young children.
3. Conduct collateral interviews with other family members, other people who
know the family well, including teachers.
4. Examine school and other records pertaining to child, with parents’
permission
23
5. Write a clear, accurate and comprehensive report explaining the reasoning
behind each conclusion.
9. Race
a. Palmore v. Sidoti (U.S.S.C. 1984) (unanimous) (p. 718)
i. Issue: Whether the reality of private racial biases and the possible injury those
biases may inflict are permissible considerations for removal of an infant child
from the custody of its natural mother, who was found to be a fit parent.
ii. Holding: Hell no.
1. The Constitution cannot control private racial prejudices but neither can it
tolerate them.
2. Private biases might be outside the reach of the law, but the law cannot,
directly or indirectly, give them effect.
b. Parker v. Parker (Tenn. 1999) (p. 722)
i. Trial court awarded custody to the father because the mother worked for a
black doctor, with whom the father insisted she was having an affair.
ii. The Tennessee Supreme Court recognized that the trial court must exercise
broad discretion in child custody matters and accepted the trial court’s
statement that race did not play a part in its decision to award custody to the
father.
10.
Visitation
a. Tex. Fam. Code § 153.251
i. Visitation is a right of any fit non-custodial parent.
ii. Visitation promotes healthy child development.
b. Tex. Fam. Code. § 153.252
i. Rebuttable presumption against standard possession order
c. Tex. Fam. Code § 153.253
i. Inappropriate or Unworkable Circumstances
d. Tex. Fam. Code § 153.256
i. What factors do court consider re: visitation?
e. Tex. Fam. Code § 156.101
i. Modification of custody or visitation orders
f. Denial of Visitation
i. The obligation to pay child support is generally distinct from the question of
access to the child for visitations.
1. Visitation rights cannot be conditioned upon compliance with child support
order.
ii. Usack v. Usack (New York App. 2005) (p. 776)
1. Facts: Father orchestrated and encouraged the estrangement of Mother
from the children, without ever proving that Mother was anything other than
a “dedicated, eager, involved, loving, willing and hard-working parent.”
2. Holding: Mother’s support obligation is suspended until there is a showing
that Father is making good-faith efforts to actively encourage and restore
Mother’s relationship and visitation with the children.
a. “While alteration of [Mother’s] child support obligations may be an
imperfect remedy with which to address [Father’s] harmful, unfair
24
conduct, there is no proof that suspending [Mother’s] obligations
temporarily would result in the children becoming public charges.”
3. This case is the exception, not the rule.
11.
Child Support
a. Child Support Guidelines (p. 611)
b. State ex rel. Hermesmann v. Seyer (Kansas 1993) (p. 593)
i. Facts: Babysitter statutorily rapes her charge, resulting in a pregnancy and
birth. State seeks child support from the minor father.
ii. Holding
1. The issue of consent to sexual activity under the criminal statutes is
irrelevant in a civil action to determine paternity and for support of the minor
child that resulted from such sexual activity.
2. The State’s interest in requiring minor parents to support their children
overrides the State’s competing interest in protecting juveniles from
improvident acts, even when such acts may include criminal activity on the
part of the other parent.
a. In the absence of force, courts have uniformly imposed child support
obligations on minors who conceive children with adult perpetrators.
c. Modification of Child Support Orders
i. In re Marriage of Nelson (Iowa 1997) (p. 626)
1. Special circumstances can call for an adjustment of child support.
2. Paying off student loans is expressly made a lower priority than the needs
of children.
a. Debts can be refinanced, but childhood cannot be postponed.
Family Law Jurisdiction
1. Domestic relations litigants may proceed only in a court that has personal and
subject-matter jurisdiction under constitutional prescriptions, applicable statutes, and
court rules.
2. Domestic Relations Exception to Diversity Jurisdiction
a. Federal courts will not exercise diversity jurisdiction to grant or deny a divorce,
alimony, property distribution, child custody or child visitation.
i. These are issues best left to the state courts.
b. Ankenbrandt v. Richards (U.S.S.C. 1992) (p. 950)
i. Issue: Whether federal courts have jurisdiction in a case involving alleged torts
committed by π’s ex-husband and his female companion against π’s children,
when the sole basis for federal jurisdiction is diversity jurisdiction.
ii. Holding: Federal courts should only abstain from exercising jurisdiction when a
petition involves the issuance of a divorce decree, alimony or child custody
decree.
1. Federal subject-matter jurisdiction is proper in this case because the cause
of action is a claim in tort.
3. Divorce Jurisdiction
25
a. Domicile: That place where a person “has voluntarily fixed his abode…not for a
mere special or temporary purpose, but with a present intention of making it his
home, either permanently or for an indefinite or unlimited length of time.”
i. Residency is simply the physical habitation of a place.
ii. Domicile means that the person intends to have a permanent home in a
place.
iii.
Intent distinguishes domicile from residency.
b. Williams I (U.S.S.C. 1942) (p. 954)
i. Holding: Any state has jurisdiction to grant a divorce to an individual who was
legally domiciled in that state and all other states must recognize the divorce.
ii. Each state, by virtue of its command over its domiciliaries and its large interest
in the institution or marriage, can alter within its own borders the marital status
of the spouse domiciled there, even though the other spouse is absent.
c. Williams II (U.S.S.C. 1945) (p. 955)
i. Issue: Validity of Williams’s Nevada domicile.
ii. Holding: Convictions for bigamy are upheld because the left-at-home spouses
in North Carolina never participated in the divorce proceedings, and so North
Carolina was not bound by the Nevada decree.
1. Where a divorce decree is entered after a finding of domicile in ex parte
proceedings, that finding of domicile is not binding on another state and
may be disregarded in the face of “cogent evidence” to the contrary.
d. Sherrer v. Sherrer (U.S.S.C. 1948) (p. 956)
i. Holding: Florida divorce decree was entitled to full faith and credit.
ii. Distinguishing Williams
1. Other spouse was involved in the divorce proceedings and, consequently,
had the opportunity to challenge domicile.
e. Sosna v. Iowa (U.S.S.C. 1975) (p. 958)
i. Issue: Constitutionality of Iowa’s one year waiting period for domicile.
ii. Holding: Until such time as Iowa is convinced that a person intends to remain
in the state, Iowa lacks the “nexus between person and place of such
permanence as to control the creation of legal relations and responsibilities of
the utmost significance.”
1. Iowa’s residency requirement does not offend the Equal Protection Clause
or the Due Process Clause.
f. In re Green (Tex. App. 2012) (TWEN)
i. Holding: No proof of a clear and unequivocal intent by Husband to change his
domicile from New York to Texas.
4. Personal Jurisdiction Requirement for Alimony and Property Distribution
a. Divisible Divorce doctrine
i. Rationale
1. Fairness to out-of-state spouse.
2. Prevents race to divorce court.
3. Division of property involves exercising jurisdiction over the property itself
or personal jurisdiction over both parties.
ii. Allows property, support, and custodial rights arising from the marriage
differently than the marital status itself.
26
iii.
Usually happens when an ex parte divorce occurs and the issuing state
has no jurisdiction over the other spouse or property.
b. Alimony
i. State must have personal jurisdiction over the recipient spouse in order to
issue an order for alimony.
ii. Estin v. Estin (U.S.S.C. 1948) (p. 966)
1. Facts: Spouses were both residents of New York. N.Y. court granted Wife
a separation decree that included an award of permanent alimony.
Husband moved to Nevada and obtained an absolute divorce that did not
provide for the payment of alimony.
2. Holding: Husband’s divorce decree is valid, but only a court with personal
jurisdiction over the Wife could change the N.Y. alimony decree.
3. Court recognizes the concept of “divisible divorce,” which treats property,
support and custodial rights arising from the marriage differently than the
marital status itself.
iii. Vanderbilt v. Vanderbilt (U.S.S.C. 1957) (p. 967)
1. Facts: Spouses lived in California. Wife moved to New York after
separation. Husband obtained a divorce in Nevada, without serving
process on Wife and without her appearance. Wife sued for alimony in New
York.
2. Holding
a. A state with the requisite jurisdictional contacts may grant support to an
ex-spouse, even after another state has issued a valid divorce decree.
b. Normally, alimony will not be awarded after divorce is final, except in an
ex parte divorce and the divisible divorce doctrine applies.
c. Property
i. Only the state in which real property is located has in rem jurisdiction to
determine ownership of that property.
ii. The state that has personal jurisdiction over the parties can order the parties to
convey title to property located in another state.
iii. Gaboury v. Gaboury (Penn. 2009) (p. 967)
1. Trial court dismissed all economic claims against Husband, determining
that it had jurisdiction to dissolve the marriage, but lacked the necessary
personal jurisdiction over Husband to adjudicate related economic claims.
2. Requirement of personal jurisdiction
a. Due process requires that in order to subject a defendant to a judgment
in personum he needs to be within territorial jurisdiction or have certain
minimum contacts with the jurisdiction such that the maintenance of the
suit does not offend traditional notions of fair play and substantial
justice.
3. Holding: Unilateral conduct of the Wife by moving to Pennsylvania cannot
satisfy the requirement of sufficient contacts with Pennsylvania so as to
give its courts personal jurisdiction over Husband.
a. So, Pennsylvania could dissolve their marriage, but not distribute their
property. Divisible divorce.
5. Child Custody Jurisdiction
27
a. Uniform Child Custody Jurisdiction Act (1968) (p. 978)
i. A state has jurisdiction to determine child custody if:
1. The state was the child’s home state or had been the home state within six
months prior to the commencement of the proceedings (“home state
jurisdiction”);
2. taking jurisdiction was in the best interest of the child and at least one
parent had a significant connection to the state (“significant connection
jurisdiction”);
3. The child was present in the state and had been abandoned or abused or
was in danger (“emergency jurisdiction”); or
4. No other state had jurisdiction.
b. Parental Kidnapping Prevention Act (1980) (p. 979)
i. States must give full faith and credit to a custody order that substantially
complies with the statute’s provisions.
ii. PKPA clearly gives preference to home state jurisdiction and allows another
state to exercise jurisdiction only when no state qualifies as home state.
iii. PKPA authorizes continuing exclusive jurisdiction in the state where custody
order was issued as long as one parent or the child remains there.
c. Uniform Child Custody Jurisdiction & Enforcement Act (1997) (p. 980)
i. UCCJEA was designed to:
1. Prioritize home-state jurisdiction;
2. Clarify emergency jurisdictional issues;
3. Specify the meaning of exclusive, continuing jurisdiction for the state that
entered the child custody decree; and
4. Specify the types of custody proceedings that are subject to the act.
d. May v. Anderson (U.S.S.C. 1953) (habeas) (p. 973)
i. Issue: Whether a court of a state, where a mother is neither domiciled, resident
nor present (ex parte) may cut off her immediate right to the care, custody
management and companionship of her minor children without having
personal jurisdiction over her.
ii. Holding: No.
1. A mother’s right to custody of her children is a personal right entitled to at
least as much protection as alimony.
iii. Concur
1. The only thing decided by the Court is that the Full Faith and Credit Clause
does not require Ohio to accept the disposition made by Wisconsin.
2. The child’s welfare in a custody case has such a claim upon the State that
its responsibilities and duties towards children are obviously not to be
foreclosed by a prior adjudication reflecting another State’s discharge of its
responsibilities and duties at another time.
iv. Dissent
1. It should be enough that Wisconsin is the domicile of the father and the
children.
e. In re Myrland (Montana 2010) (p. 982)
i. The pertinent date for determining jurisdiction under UCCJEA is the date that
the first pleading was filed.
28