MODERN FAMILY
LAW
Professor Godsoe
Leah Rahmani
Table of Contents
Marriage ............................................................................................................................... 2
Pre-marital Contracts ............................................................................................................ 3
Constitutional Law of Marriage ............................................................................................. 5
Same Sex Marriage ........................................................................................................................6
Plural Marriage, Age & State of Mind Restrictions ................................................................. 8
Bigamy, Polygamy, Polyamory........................................................................................................8
Age Restrictions .............................................................................................................................8
State of Mind Restrictions  Fraud .............................................................................................. 10
Common Law Marriage ....................................................................................................... 12
Family and Work ................................................................................................................. 14
Marriage and Tort Law ........................................................................................................ 15
Family Violence............................................................................................................................ 15
Marital Rape ................................................................................................................................ 19
Intro. to Divorce; Fault Grounds ........................................................................................... 19
Covenant Marriage ...................................................................................................................... 22
Divorce Jurisdiction.............................................................................................................. 22
Financial Consequences of Divorce ....................................................................................... 23
Property Distribution ................................................................................................................... 23
Spousal Support and Alimony ...................................................................................................... 24
Child Support ............................................................................................................................... 26
“Alternative” Families ......................................................................................................... 28
Professional Responsibility Issues in Family Law; Alternative Dispute Resolution .................. 31
Custody ............................................................................................................................... 32
Joint Custody ............................................................................................................................... 34
Visitation ..................................................................................................................................... 34
Fatherhood and Non-Marital Families ................................................................................. 35
Grandparent Visitation.......................................................................................................................................37
Public Family Law and Adoption .......................................................................................... 39
1
Marriage

Is marriage a contract (private agreement between 2 parties) or a status (a public institution regulated by the
state)?
o State as gatekeepers to marriage, prioritizing nuclear, bio normative over others.
o very small (but growing) role for contract or function.
o Think about whether these policies benefit children? Not necessarily.
Debate over a nuclear family
Pros
Best to keep society orderly
Best for children – safest and most secure families (think if
this is the cause or effect?)


Cons
Treats different communities equally
Has led to extreme inequality among families, and
particularly children
Impossible for many to have ‘private welfare state ‘ of 3
meaning to afford to raise children
Breach of promise to marry plaintiff could recover the monetary and social value of the marriage (expectation
damages) and expenses incurred in preparation of the marriage (reliance). Only few jurisdictions still recognize this
claim.
Gifts in Contemplation of Marriage: this often involved engagement rings, as in Campell.
Anti-heartbalm statutes  its addressing the idea that these torts, like breach of promise to marry, or gifts in
contemplation to marry, were mean to remedy people’s broken hearts. Statutes got rid of these torts, bc they are
inconsistent with no fault divorce and they are moral issues that don’t belong in the courts. (Rivkin and Campell) Why?

suits are messy and no place for them in court (problems of proof)

marriage is easier to exit now (no fault divorce)

Changes in gender roles, courts are saying that men and women are now equal
Modern Rule for Gifts:

Fault is irrelevant. We look at intent.

If a gift was given in contemplation of marriage, its implied condition is upon the marriage taking place

until that condition is fulfilled, meaning until the marriage happens, the gift is unenforceable and gift, suaully
a ring must be retunred upon request.
2
Pre-marital Contracts
3 Different approaches:
1. Treat prenups the same as any other contract (Simeone)
2. UPAA: Treat prenups differently and scrutinitze procedural fairness and unconscionability.
Adopted by 26 states + DC. (Shanks)
3. ALI Approach: treat prenups differently and scrutinize procedural and substantive fairness at
time of enforcement (Petrakis)
UPAA (Unconscionability)
Agreement NOT enforceable if:

not executed voluntarily (under duress) OR

unconscionable at time of execution, and, before execution (there was no fair or reasonable disclosure of property
and debts or no written waiver of this disclosure)
o Substantive Unconscionability  not unduly harsh or oppressive
o Procedural Unconscionability  unequal bargaining power. Worry about exploitation
ALI (Substantive)
Agreement NOT enforceable if:

Procedurally Unfair - not in writing, not prior disclosure, or executed under duress or without informed
consent
o A rebuttable presumption that informed consents exists if:

30 days prior to marriage

both parties has opportunity to seek counsel

If no counsel, agreement has understandable info. about parties rights.

OR Substantively Unfair at time of enforcement
o court considers length of the marriage, changed circumstances, unanticipated changes in
circumstances
o substantial injustice looks at disparity of outcomes under law and under the agreement.
o party claiming the injustice bears the burden of proof
New York Update: New York courts have gotten stricter with prenups to make sure they are freed of fraud and duress. Some
are shifting the burden of proof to the moneyed spouse who has to prove there was no fraud. Even when they find no fraud,
court may assess the substantive fairness at the time of dissolution.
Cioffi Petrakis v. Petrakis
Wife signed prenup against attorney’s advice. it contained specific disclaimers about outside oral promises and limits wife’s
recover. Wife claimed husband promised to get rid of it after birth of first child. Court accepted parole evidence and found
the wife was fraudulently induced to sign the agreement.
REMEMBER:

prenup provisions regarding child custody, child support or even child rearing won’t be enforced

can’t contract around sex

UPAA and ALI both look at procedural unfairness whereas UPAA focuses on unconscionability at time of
contracting, the ALI looks to substantive fairness at the time of enforcement.
Maynard v. Hill

Marriage is something more than a mere contract. The consent of the parties is of course
Contract or
institution?
essential to its existence, but when the contract to marry is executed by the marriage, a
relation between the parties is created which they cannot change. Other contracts may be
modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so
with marriage. The relation once formed, the law steps in and holds the parties to various
obligations and liabilities. It is an institution, in the maintenance of which in its purity the
public is deeply interested, for it is the foundation of the family and of society, without
which there would be neither civilization nor progress.
3
Rivkin v. Postal

Breach of promise to
marry
Campell v. Robinson




Gifts in
Contemplation of
Marriage
Simeone v. Simeone


Rejects Substantive
Unfairness
In Re Marriage of
Shanks



Ex-girlfriend filed a claim for breach of promise to marry. She had a relationship with a
married man, and he gave her an affluent lifestyle.
Court held the girlfriend did not present sufficient evidence of a promise to marry. Focus
on lack of writing that said he intended to marry her.
Breach of promise to marry claims require a promise to marry, defendant breaking that
promise, and damages to the plaintiff, but do not necessarily decide who can keep the
ring.
The parties' engagement was broken, and plaintiff sued defendant over ownership of the
ring that he had given her. A jury trial was held, and the jury determined that he was
responsible for the termination, but that she was not entitled to damages. Although there
was evidence that the ring was given in contemplation of marriage, there was also
evidence that the ring was converted into an absolute gift. Defendant contended that
plaintiff had ended their engagement, that she had asked plaintiff about keeping the ring
and he said that she could keep it. Plaintiff denied this and contended that the breakup
was mutual.
the court held that fault did not determine who could keep the ring, but the conduct of
the parties controlled. Plaintiff had given defendant the ring when he proposed marriage
and it was therefore given in contemplation of the marriage, conditioned upon the
marriage occurring. Defendant's act of storing the ring in a safe deposit box did not
amount to facts sufficient to sustain a claim that the ring was a gift and plaintiff was
entitled to the ring.
On the eve of the parties' wedding, appellant wife, without the benefit of counsel, signed
a prenuptial agreement. During the parties’ divorce proceedings, appellant filed a claim
for alimony pendente lite from appellee husband. A master's report upheld the validity of
the prenuptial agreement, under which appellant gave up the right to alimony pendente
lite and denied appellant’s claim. The lower court dismissed appellant’s exceptions to the
master's report, and the superior court affirmed the lower court’s order. The wife
appealed, asserting that the agreement was not reasonable and that she had not
understood the nature of alimony pendente lite when she relinquished it in the
agreement. The court affirmed the superior court’s order.
The terms of the prenuptial agreement should be regarded as binding, without regard to
whether the terms were fully understood by appellant wife. To impose a requirement that
parties entering a prenuptial agreement should obtain independent legal counsel would
be contrary to traditional principles of contract law and would constitute a paternalistic
and unwarranted interference with the parties' freedom to enter contracts. treats the
prenup as a normal contract.
The wife agreed to enter a premarital agreement, stating that she was not marrying the
husband for his money. The premarital agreement was presented to the wife ten days
before their wedding, and she consulted an attorney for the first draft upon the husband's
advice. She failed to seek counsel before executing the second draft. A few years later,
the husband filed for divorce and sought to enforce the agreement. The trial court
refused to enforce the agreement, and the intermediate appellate court affirmed. The
husband filed an appeal.
the court reversed and remanded. It conducted a de novo review and found that the
agreement was voluntarily executed, conscionable, and enforceable, which were required
by the Iowa Uniform Premarital Agreement Act (IUPAA), Iowa Code § 596.12. The wife
failed to establish duress or undue influence to prove that the agreement was
involuntarily executed. The husband's position as a lawyer did not put him in a vastly
superior bargaining position because he insisted that the wife seek the advice of
independent counsel. The agreement also was not substantively or procedurally
unconscionable because all of the provisions were mutual in scope, the wife assented, and
she voluntarily declined to seek Iowa legal counsel on the second draft.
Underscored need for special protection.
4
Constitutional Law of Marriage
Arguments against SSM:
 individual autonomy and dignity
 importance of 2 person unions
 safeguards that marriage gives children and families
 centrality of marriage as the “keystone of our social order”
BIG takeaway  Marriage is a fundamental right (Obergefell, Zablocki) so strict scrutiny will apply for
any major impediment or categorical ban.
Loving v.
Virginia




Zablocki v.
Redhail







Men who had
unpaid child
support have
right to marry

Turner v.
Safley


June 1958, Mildred Jeter (black woman) & Richard Loving (white man) married in DC b/c
prohibited in VA, returned to VA, police raided house, anonymous tip, marriage certificate was
no good in VA, arrested, suspended jail time if they left, moved to DC – had 3 children, were
tired of being exiled, agreed to allow ACLU to challenge state court
Grand jury issued indictment charging Loving’s w/ violating VA’s ban on interracial marriages,
pleaded guilty, 1 year jail, trial judge suspended if Loving’s left the state for 25 years
Is law anti-miscegenation law prohibiting interracial marriage constitutional?
VA law violates Equal Protection b/c:
o Race is a suspect class
o Law discriminates on the basis of race
o No legitimate non-discriminatory reason for the law – have to show extremely imp
state interest & necessary
Court also adds a substantive due process component:
o Marriage is a fundamental right
Wisconsin statue provides that residents having minor issue not in his custody & which he is
under obligation to support by any court order or judgment, may not marry, within the state or
elsewhere, without first obtaining a court order granting permission to marry (Wisconsin statute
prohibited noncustodial parents from marrying w/o ct order, had to show compliance w/ ch
support & new child won’t become a public charge), Redhail unable to marry, paternity action
against him b/c he’s the father of a baby girl, ordered to pay $109/mo until 18yo, May 1972-Aug
74 unemployed & could not pay
1974 filed application for marriage, denied b/c no ct order, 1) arrearage to daughter of $3,700+
& 2) child a public charge since birth (welfare), Redhail filed class action claiming violation of
Equal Protection & Due Process, DCt said statute violates EPC
Can state discriminate on the basis to pay?
Right to marry = fundamental, Loving v. VA – laws arbitrarily deprived couple of fundamental
liberty protected by DPC, part of the right to privacy, SS triggered by substantial interference of
fundamental right, Wisconsin has to show compelling state interest & narrowly tailored
statute was unconstitutional. It was not narrowly tailored to the state’s legitimate interest.
Classification here -> People who cannot/have not paid for child support, SS – here overinclusive
and underinclusive, no match btwn goal & response, not a close enough relationship, over: new
spouse might be able to help w/ finances, under: noncustodial can enter other financial
obligations, Wisconsin can use other methods
Stewart’s Conc: state can’t ban marriage on poverty, inconsistent w/ our tradition of
administering justice equally to rich & poor
Rehnquist Conc: Would’ve upheld under rat’l basis, reasonable regs are OK, SS if direct & signif
interference w/ decision to marry,
DUE PROCESS AND MARRIAGE AS A FUNDAMENTAL RIGHT – STRICT SCRUTINY. SOMETIMES
BANS STRUCK DOWN WITH A LOWER STANDARD REVIEW BC THE LAW DOESN’T FIT THE
REASON. OVER or UNDER INCLUSIVE.
Missouri Div of Corrections regulation: Inmates can marry only w/ permission of superintendent
of prison & approval given where compelling reasons (generally pregnancy or birth of illegitimate
child)
5




Prisoner’s
rights to
marry

1) inmate marriages are expressions of emotional support & public commitment 2) religious faith
3) eventually released 4) gov benefits, prop, etc
The almost complete ban on decision to marry is not reasonably related to legitimate
penological objectives – MO marriage regulation is facially invalid
State args: love triangles, security concern, rehab reasons, prisoners lose rights, we have to look
at whether reasonably related to states objectives, no connection btwn restriction & love
triangles, no prob w/ male inmates only females, Arg: when in prison do not have the same
fundamental rights, state says this is reasonably related, we need to develop skills of self-reliance
– women committed crimes b/c of relationships they were in
Ct says: not SS, different std for prison regs, when prison reg impinges on prisoners’ right if
reasonable relationship to legit penological interest – in the future show relationship to
penological interest, fundamental rights still there but can be limited, this doesn’t even pass
rational basis—no rational connection what does this suggest re nature of marriage
relationship?, right to marry can still exist if no cohabitation or sex – what are you getting out of
marriage? EMOTIONAL SUPPORT & PUBLIC COMMITMENT, spiritual significance, to legitimate
children (MO was on board w/ this last one)
Key features of marriage survive incarceration
Same Sex Marriage


Goodridge v. Dept. of Public Health (MA 2003)  First marriage challenge that succeeded. Court found there was
no rational relationship between the ban on same sex marriage and state’s proposed interests, which were (1)
procreation, (2) child-rearing, (3) save state $$. Court characterizes civil marriage as this beautiful flowery thing.
Decisions that led up to Goodridge:
o Romers v Evans (1996): Is Amendment to CO state constitution which forbids anti-discrimination laws
banning discrimination against gays and lesbian constitutional? NO.
o Lawrence v. Texas (2003): Can TX criminalize private, consensual sex between 2 men? No.
Arguments for and against SSM (and in inter-racial)

History and tradition

Slippery Slope

States’ Rights

Regulation of Procreation

Children’s Interests
From a policy level, minimum age marriage sticks.
Who gets to decide?

Kennedy in supreme court said that DOMA intrudes on the power of the states who have chosen to recognize
same-sex marriage.

6th Circuit said it should come from state legislative change. This was also Scalia’s opinion in Obergefell that the
states should decide and not the Supreme Court.

On the other hand, fundamental rights should not be up to popular opinions or the ballot box
Post Obergefell  Future Limitations on marriage?
Many opponents of SSM use this as the ‘slippery slope’ argument. Are there also conditional rights to incest and polygyny
and minimum age requirements?
United States

Edith Windsor & Thea Spyer registered as domestic partners in NY 2007, trip to Canada to marry
v. Windsor
(NY did not permit SSM but recognized out of state marriage), Spyer died Feb 09, left estate to
(2nd Circuit,
Windsor, IRS doesn’t classify Windsor as spouse, Windsor paid $363K in estate taxes & wants a
2012)
refund

Defense of Marriage Act Sect 2 allows states to refuse to recognize ssm, sect 3 amends
dictionary act in title 1 Sect 7 to provide federal definition of marriage & spouse -> 1 m 1 w,
spouse – opposite sex. Between man and a woman.
State interest: uniform definition, protect gov’t $, preserves inst

Windsor sues in Southern Dist, DCt: DOMA violates equal protection clause; does not pass
rational basis test; 2nd Cir. Court of Appeals: heightened scrutiny is appropriate when state
classifies on the basis of sexual orientation
6


Obergefell v.
Hodges (2015)
2nd Circuit applies 4-part test to determine the level of scrutiny to apply. Asks whether
classification involves the following:
o minority group with a long discrimination of stigma?
o Classification has no logical relationship to ability to perform in family or society
o characteristic is manifest/ have to reveal it to exercise rights
o political powerlessness
Level of scrutiny required  intermediate scrutiny. Means the law must have a substantial
relationship to an important government test.
SUPREME COURT (2013)

Federal law – DOMA for purposes of fed law & estate tax marriage btwn man & woman, NY
recognized their marriage but fed gov didn’t – Whether §3 of DOMA is constitutional

Background  Lawrence v. Texas – private consensual intimacy btwn 2 adults may not be
punished by the state, NY’s evolving understanding of equality, moral disapproval not enough to
criminalize

DOMA is unconstitutional, violates Due process and equal protection—fed gov’t doesn’t
regulate marriage, taking away benefits (????)

Separate but equal not ok. Domestic partnerships are not the same, culturally and in terms of
benefits.

Jim Obergefell’s partner died – wanted his name on death certificate

Wanted ALL states to recognize SSM as a fundamental right

Full faith and credit clause—doesn’t apply because not a judgment, place of celebration controls

SS couples may exercise the fundamental right to marry in ALL STATES

DP & EPC Case

FOCUS IS ON DUE PROCESS (not equal protection bc sexual orientation is not a protected class)
Why does DP protect the liberty to make this decision about marriage? Kennedy cites:

Personal choice (Loving) 2 people can find other freedoms, dignity in bond

Supports 2-person union, hope of companionship, Lawrence no crim liab but doesn’t stop there

Safeguards ch & fams, benefits, ch best interest, prevents stigma

Keystone of social order

Rejects originalist view of Constit – writers entrusted future generation w/ protecting liberty

No answer on level of scrutiny for sex orientation

RIGHT TO MARRY not Right to SS Marriage

No foundation for the arg that allowing SSM will decrease opp sex marriages

Roberts, Scalia, Thomas Dissent: This ct is not legis, judges have pwr to say what the law is not
what the law SHOULD BE, 5 lawyers have closed the debate, stealing this issue from the people
will cast a cloud over SSM, no basis in principle or tradition, rationally related to state legit
interests in preserving TRADL institution of marriage

Unintended results: More discrimination bc sexual orientation is not a protected class. Gave up
opportunity to expand traditional definition of marriage. And also locked in idea of tying
marriage to children by choice of plaintiff.
7
Plural Marriage, Age & State of Mind Restrictions
Keep in mind these questions:
 What is the harm these regulations seek to prevent?
 Do they actually prevent that harm? (Ex. plural marriage prevent harm or statutory rape laws
do that?)
 Is it a legitimate harm? Or is it ‘morals’ regulation?
Bigamy, Polygamy, Polyamory


Bigamy - crime of being married to more than one person
Polygamy is the term used for the practice of the Mormon Church. It is associated with a history of abuse.
o Utah senate unanimously moves to decriminalize Polygamy (Spring 2020)

All states refuse to permit marriages that are bigamous (civil restrictions and criminal sanctions)

Mormon Church now condemns polygamy, maybe 100K in US, prosecution is rare, law on the books but not
prosecuted, why? Maybe gov towns are themselves polygamists, small communities, physically remote part of the
country

Polyamory: When the people involved aren’t affiliated with the Mormon Church, & enter into these relationships
for different reasons, isn’t associated with the same history of abuse

Conflation of polygamy with all plural marriage – maybe abuse of young girls has darkened a cloud arounf what
could be consensual, plural relationships.
Brown v.

Sister wives, 4 wives, 1st marriage license recorded, Browns fundamentalist church that shares
Bunham (Utah
roots with Mormonism, ARGS: Statute facially uncon & uncon as applied
2013)

Statute: person guilty of bigamy when knowing he has husb or wife or other & purports to
marry or cohab w/ another

Kody Brown & his 4 wives brought an action in fed ct against county atty challenging consit of
Utah’s bigamy statute

Had been enacted b/c Utah became a state & outlawing polygamy w/in its borders, grounds for
challenging, 1A free exercise for religion, SScrut if burdens religious liberty

The cohabitation prong of the statute cannot survive SS & must be stricken as a facial
violation of free exercise of religion under 1A

Can’t be criminalized for cohabitating, but also not legally married

Religious discrim? YES, state is not proceeding against adulterous relationship, not narrowly
tailored, other methods can be used

Due process claim? No funda right to polygamy but this is private consensual adults, not even
seeking the affirmative benefits of marriage (Lawrence), Void for vagueness – we don’t go after
these families unless other crime & motivated by religious persecution (cohab prong does not
criminalize entry into religious union where no attempt to elicit state’s recognition of marr &
benefits just prohibits 2 valid marriage licenses)

Slippery slope to polygamy? Scalia

State interests?  Fraud re benefits, genetic parents might be harder to determine, welfare
burden of public fiscal, fear of exploitation (young women) incest, inheritance probs

Are they queering the family? Feminists?
State v. Holm

D was part of FLDS and married to all these women
(Utah, 2006)

His behavior violated Utah’s bigamy statute.

As to the bigamy conviction, the court concluded that Holm's behavior fell squarely within the
realm of behavior criminalized by the state's bigamy statute and that the protections enshrined
in the federal constitution, as well as the state constitution, guaranteeing the free exercise of
religion and conscience, due process, and freedom of association did not shield Holm's
polygamous practices from state prosecution
Age Restrictions

At early common law it was 7
8




Later common law – 12 for girls and 14 for boys
1900 in America – 16 for women and 18 for men
Different states vary but all states require parental consent for persons under 18
o New: 2017  14 with the consent of both parents and a judge
o Ohio  under 18 need parental consent. Under 16 may get a judicial waiver if they are pregnant.
o CA  if under 18, must see a counselor, and a judge and have one parent come consent with you
o D.C.  17 with signed parental consent
o New Hampshire  must be at least 13 (girls) and 14(boys) to marry and have parental consent and
judicial waiver if under 18
o FL  any age if pregnant and approved by a judge
o Mississippi  15 (girls) 17(boys) and have consent under 21
o Nebraska  at least 17 to marry and have consent under 19
o Tennessee  under 16 with a judicial waiver and 17 with consent from both parents. All those under 18
have a 3 day waiting period.
Balance of protecting culture and religion, and protected vulnerable children
Kirkpatrick v.
District Court
(Nev. 2003)






Problem pg 197






H & W awarded joint legal & physical custody of SD. SD, age 15, tells W that she wants to
marry her teacher, age 48. W approves of marriage. New Mexico law does not permit the
marriage, so they travel to Nevada & get married. W files petition to obtain judicial
authorization for SD’s marriage, granted. H finds out & files petition seeking writ of mandamus
to compel the court to vacate its order authorizing SD’s marriage and annulling the marriage. H
argues the state statute violates his constitutional interest in the care of his child. – she was
emancipated by marrying
H: Nevada statute was valid and appropriately balanced the interests of all parties.
R: Father’s arg: he says deprived of rights to raise his child, ct says control (unsympathetic), fair
to say just control? Probably trying to act in the best interests of the child, Mom decided first
so no recourse, if ct invalidated marriage, was that a violation of consit right?
EPC case -> AGE based classification, rational basis review – presumably states arg would let
the law stand
What about differences in girls & boys age? Gender based discrim – intermediate scrut, state
might argue protecting young parents, maybe related to young girls being able to become
pregnant
DP rights challenge? Funda right – ct’s response state can still regulate – whether her funda
right is violated at all? Can still marry just a delay period – Zablocki said I’ll never be able to
marry – hers is just a waiting period – 3 yrs is a longer delay that 24 hr restraint which is not so
much of a burden
Consent of both parents is not a constitutional requirement. Requiring only one parent
comports with the common reality of modern families.
The statute provides a safeguard against an erroneous marriage decision by the minor and
consenting parent by giving the court discretion to withhold authorization if it finds that
there are not extraordinary circumstances and/or the proposed marriage is not in the best
interests, regardless of parental consent.
Crystal 12 & Matthew 20 – become a couple
1 yr later Crystal’s divorced mother petitions for a protective order restraining Matthew, they
continue, have sex
2005 Crystal becomes pregnant, mom has change of heart, drives them to Kansas to marry –
there people can marry as young as 12 w/ parental consent – conflict of laws – Nebraska
prohibits under 12 & sex 19+ w/ less than 16 is statutory rape
They had another child, 2010 removed b/c neglect, 2012 ct appointed atty filed TPR
Should county clerk inquire about order of protection? Generally clerks don’t have a lot of
discretion, don’t interview just check to see parties have everything, granted license, met
statutory req, issue maybe re residency, if one resides in KS should this be statutory rape? Strict
liability -> Crystal doesn’t have capacity to consent to sex, in other cases parties marry to get
statutory rape case dismissed, cts drop charges, solidifying abusive relationships? Here
Matthew was convicted of 1st deg sexual assault – 18-30 mo of jail, went to prison, on sex
offender registry, KS revised minimum age 15 now
Is Crystal’s mom neglectful?
9
In Re Adoption
of M. (1998)


Args for marriage: Legitimize child, stable jobs, consent on parents
Actual case: charged with sexual assault, registered sex offender

Couple adopts a child. When the child gets older, parents’ divorce. Child (22 yo) has a baby with
her adoptive father. Child & father want to marry but the legal relationship of adoptive father
and daughter preclude them from being able to marry.
M files a petition to vacate the final judgment of adoption as pertains to the adoptive father so
that they may marry.
Petitioner’s application to vacate final judgment of adoption as pertains to adoptive father
must be granted
Ct finds exceptional circumstances here, child btwn the parties, adoptive father is grandpa &
father, we want the best interests of the child, want to legitimize child, petitioner is a 22 yo
grown woman, no concerns about birth defects.



Why might we be troubled?
State might be concerned about exploitation, grooming & then make them a sexual partner,
incompatible family roles
INCEST
Problem p. 181
Woody Allen (56) had affairs with Soon-Yi Previn (22) – adopted daughter of Allen’s long-term lover
actress Mia Farrow
Allen & Farrow bio child, adoptive parents of 2 young ch, separate residences, never married
Should a state legis criminalize sexual relationships such as Allen & Soon-Yi Previn’s?

Criminalize?
o Power and control aspect, don’t want these types of relationships occurring, deter,
exploitation

Not criminalize?
o What is legal is not always moral, can’t tell if there was a parental role

Allen never adopted her, safeguarding children is importance but criminalize?

Do we want to gov being intrusive? (How is this diff from Lawrence? Morally disturbing?
Consensual adults?)

Not blood relatives, not related by adoption, no inbreeding, this relationship was more
removed than In re Adoption of M, vulnerable person might have to be criminally culpable too
Distinguishing btwn adoptive & natural child is discrim? Psychological damage?

How to apply the incest taboo in a modern world? More blended households/approp for state
to protect adult people who now want to engage in relationship
State of Mind Restrictions  Fraud
If you do prove fraud you annul the marriage. Fraud and duress destroy consent.
Elements for fraud are:
1. D made material representation of fact (both false and material)
2. D had knowledge of falsity and intent to deceive
3. P reasonably relied upon it to his detriment
Because public policy favors marriage preservation and because of theories like caveat emtor, many courts apply a strict test
for fraud, requiring the misrepresentation go to the ‘essentials’ like childrearing
PROBLEM: Man goes to India to marry s/o of same caste. They marry in India in a civil and religious ceremony. She comes to
U.S. He wants an annulment, and she wants a divorce.
Blair v. Blair

Nancy conceived a son in 1976, during a time when she was having sexual relations with her
(Mo.Ct.App.
husband and two other men, including William with whom she had a one-night stand. William
2004)
saw Nancy soon after the child, Devin, was born, but they did not discuss paternity at that time
and went their separate ways. In January 1979, Nancy informed William that Devin was his son.
William met them both and then he and Nancy resumed a relationship. She separated from her
husband that spring and in the following year gave birth to a daughter fathered by William.
10




After Nancy’s divorce was finalized at the end of 1980, she and William married. He adopted
both children. In November 2001, Nancy filed for divorce from William. William crosspetitioned for an annulment on the grounds that Nancy had induced him to marry her through
fraud: it turned out that he was not Devin’s father as she had claimed.
At trial, William testified that he never would have seen Nancy again had she not lied to him
about Devin. Consequently, he would not have married her. He admitted to falling in love with
her after resuming their relationship, however. The trial court rejected William’s petition for an
annulment, and he appealed. annulment not divorce – WHY? Maybe no spousal support or
alimony, religious reasons, avoid stigma, just angry felt wronged, has to show elements of fraud
Trial ct could have reasonably found husband would’ve married wife regardless, denial of
annulment not erroneous
Missing: reliance—maybe would have married her anyway
Fraud has to go to essentials of marriage (rich  essential, fertility/willingness to have kids =
essential)
11
Common Law Marriage




Blackstone Era – “Coverture”  a husband and wife are one person under the law. The legal existence of the
woman is suspended during the marriage and fused into her husband.
Marital Property Regimes
o Common Law – separate property/title based
o Community Property- couple owns some property jointly
Common law marriage is only recognized in 8 states. Held up to a VERY high standard.
What you need to prove it:
o Capacity to enter a contract (sound mind, free from legal restrictions)
o Agreement of the parties/INTENT. This is REALLY hard to prove, bc one party can just say if I wanted to
marry X, I would have. Ends up being gendered bc often the man doesn’t want to marry the woman.
o Cohabitation
o Holding out as marries (Jennings, even thought they did cohabitate and held out as married, court say
they weren’t)
Pros and cons of finding a couple to be common law married, when one party disputes it:
Cons: undercuts autonomy, independent, individual choice,
Pros: systemic inequality, ends up being one sided. Monied side gets all the benefits without any of the responsibilities
Essentials of Marriage

Services

Support for Services (Most Important one and is a very low bar. Monied party can keep other party in poverty
and only option is divorce. McGuire)

Perdurability -permanence

Sexual intercourse and ongoing conjugal intimacy

gender dimorphism
Takeaway  we require people who are not formally married to achieve huge hurdles and a model of marriage that legally
married people no longer comport to in many ways. Like many don’t cohabitate.
Not enforceable legally but are still used.
Pros: provides clear roles which encourages marital harmony, prevents marriage fraud, promotes marriage as a special
status, prioritizes family support and services
Cons: may encourage disharmony due to inequities, perpetuates systemic inequalities bc of gendered roles and lack of
compensation for caregiving, prevents private ordering during marriage, prevents men and women from creating
appropriate work/life balance
Do these for review
#2 page 119
#2 page 132
Pg 144
Pg 197
12
Jennings v. Hurt (NY
Ct. 1989)


Common Law
Marriage







McGuire v. McGuire
Reflects the common
law duty of support,
nonintervention
when parties are still
married






Jennings & Hurt met in NY in 1981 & lived together until 1984. Hurt was still married at
the time. Jennings got pregnant which prompted Hurt to divorce his first wife. Jennings
moved to SC to be with Hurt where they shared a bed.
He was married until 1982 (incapacitated up until then), community didn’t see them as
husband and wife
Friends knew they weren’t married, one statement not enough
Look at: tax returns, reputation in community, surnames
Whether Sandra Jennings is the common law wife of William Hurt
Factors of a common law marriage:
o capacity to enter a contract
o agreement of the parties/intent (hard to prove bc person will just say, if I
wanted to marry her I would have .This disadvantages the non-monied partner
significantly)
o Cohabitation
o Holding out as married spouses
Not the common law wife of William Hurt. They fail– no present intent & didn’t hold
themselves out as spouses, all legal docs indicated single, witnesses not credible, she
submitted falsified evidence, she wanted a share of his earnings (Holding out could mean
joint title, wedding bands, insurance forms, joint taxes, testimony from others)The
evidence is insufficient to prove that a common-law marriage was established.
South Carolina recognizes common law marriages. New York abolished common law
marriages but does give effect to common-law marriages if they are recognized as valid
under the law of the state in which it was supposedly contracted.
He does end up paying child support.
W is a widow, inherits 1/3 of ex-husband’s prop, has 2 daughters, new husband never
married before, he is failing to provide her w/ basic necessities. Without filing for
separation or divorce, Mrs. McGuire sued her husband for support and maintenance. The
trial court ruled in her favor—paid for 3 surgeries she required. Wife sued without filing
for separation or divorce.
Common law property state—everything is in his title
At trial, Π 66yo & Δ 80, Δ’s income 8 or 9K a yr, they had been married for 34 yrs husband
was a farmer, she did household & farm work, sold chickens & eggs, no longer raising
chickens, he buys groceries, pd for her medical trt, he controls the finances, no clothing
for her except 1, no bathroom/indoor plumbing, owns about 200acres in assets, car 20 yo,
heating in house is bad, wife is suing for suitable maintenance & support $ (wants to get $
for furniture, clothes, car, maintenance, support, attys fees) decree for Π
Lower ct held she could use $ for food etc, $50/mo in support & attys fees & visit w/
daughter once a yr
As long as home is maintained & parties living as h & w, h is legally supporting wife &
purpose of marriage is being carried out
Appellate ct reverses – Not entitled to $50/mo, or a car etc., ct says they aren’t living
apart, this is a private family matter, doctrine of non-intervention, house is paid, place to
live, food, medicals, if she divorced MAYBE alimony & support, when he dies if no will –
100% of everything, maybe lesser if parents or children, if will & left prop to someone
else, she’d get 1/3 of estate, community property state ½ of property at death
13






Appellate court: reputation of frugality, still married, can’t enforce support obligation,
don’t want to meddle, doctrine of non-intervention, not for court to decide, not our place,
what about law of necessaries? Has provided same amount over 33 years, he does pay for
some stuff
Beyond the necessities, cts will not determine the living standards of a family [low
standard for male to support]
W was not totally devoid of $. She had a personal bank account & entitled to use the rent
from their land if she desired.
Law does not like to intervene when parties still married
Criticism of nonintervention: Isolating women in a sphere (domestic) divorced from legal
order contributes to inferior status & ideological message to the rest of society devalues
women
Common law duty of support: wife can’t go to court because same person, can’t sue
yourself
Family and Work
Very little state support for child-rearing!
Results  many children growing up in poverty, and gendered inequality from the impossible balance of work and family.
This does not meet any of goals of family law. Maybe it saves state money, but lack of childcare and health care isn’t good
for society.
Takeaway  the U.S. system does not support families leaving many children living in poverty and couples of all genders
being forced into a breadwinner/caregiver scenario which really disadvantages the wife/mother/female economically
NY State Paid Family Leave Act
Family members include:

spouse

domestic partner

child step-child, or anyone for who you have
legal custody

parent/step-parent

parent-in-law

grandparent

grandchild
10-12 weeks of paid leave
Vaughn v.
Lawrenceburg Pwr.
Syst. (6th Cir. 2001)



Employment

Young v. UPS


Pregnancy

Federal Family Medical Leave Act (FMLA)
Family member include:

spouse

child

parent (broad definition,
biological/adoptive/step/foster/in loco
Up to 12 weeks unpaid leave and only applies to serious
health conditions
Vaughn’s objected to LPS's "anti-nepotism" policy, which required the resignation of one
spouse in the event two employees marry. They claim this policy was unconstitutional
under rational basis or strict scrutiny review.
Did this policy violate the fundamental right to marriage? NO. LPS showed that the rule
advanced a legitimate gvmt. interest. Gvmt. employer may have a legitimate concern
about the inherent loyalty that one spouse will show another, making discipline harder.
Takeaway? In government employment contexts, they aren’t really preventing you from
getting married, just within the job. Employment is a privilege and not a right.
Court allows anti-nepotism statute. Passes strict scrutiny. Pushes women out of
workforce.
Pregnant employee is given leave without pay bc she couldn’t lift more than 20 pounds.
Violation of PDA (Pregnancy Discrimination Act)
An employer must show a “sufficiently strong” justification when it fails to accommodate
pregnancy, a failure which imposes a “significant burden” on pregnant workers. Before it
could be ANY burden.
Positive direction in the Supreme Court.
14
Caldwell v. Holland of
Texas Inc. (8th Circuit,
2000)
Work/Family
balance/FMLA
Dike v. School Board
(5th Cir. 1981)
Breastfeeding

mom of 3 yo, worked for Holland, Caldwell’s son had a high fever so she notified her
manager prior to her shift that she would be absent as she had to take her son to the
doctor. Manager approved her absence. The child was diagnosed with an acute ear
infection. Caldwell worked a shift that night (Saturday) pursuant to her manager’s
request. Monday morning fired

Filed suit that termination violated FMLA

She must show:
1.) suffered from a serious condition
2.) that incapacitated the person for at least three consecutive days and (affected normal
activities, changed routine, extra care)
3.) that required continued, supervised treatment

There is a question of fact as to whether the child’s condition was serious under the
regulations (DCt erred in SJ)

Question of fact, what’s the std for determining seriousness for a 3yo? Rest in bed,
normal activities

FMLA – why limited to serious health condition? For balancing work life & family,
concerns re gate keeping to prevent abuse, to limit absences con: less effective in
mitigating burdens, other parental responsibilities? Other statutes to cover these? Snow
days covered? Employees can choose to take sick days, low wage jobs can NOT give them,
Cong findings – burden of care is gendered but FMLA is written in gender neutral terms,
maybe to alleviate gendered burden, politically more palatable

uphill battle for parties to get work/life balance

sued school board that they interfered with her constitutionally protected right to
breastfeed at work. She did during her break in the privacy of a locked room.

The right to nurture and rear a child is protected under the constitution.

Court found that the teachers interest deserves special protection, but would find
otherwise, if the school boards interest were strong enough. And not all circuits went this
far. No federal protection for breasfeeding.
Marriage and Tort Law
Takeaway  while most states have abrogated tort actions against 3rd parties for interference with
marriage, tort actions within marriage, which were historically barred are now allowed, at least for
intentional torts. Maybe not for negligence.
Family Violence






Majority of victims are women. More than 1/3 of women in the U.S. have experienced some sort of violence –
rape, stalking, physical violence
¾ of the persons who commit family violence are male
Different communities are differently impacted. Ex. Latinas experience a high level of it. Also, they are more likely
to tell family instead of a healthcare worker or clergy. African American women experience it at a much higher
level than white females. Also less likely to go for help.
Lifelong impact  many children/youth experiencing violence had experienced and witnessed it at home
Children witnesses  NY Court of Appeals: state must show “impairment or imminent danger of impairment and
that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to
exercise a minimum degree of care in providing the child with proper supervision
Parental alienation is disputed by experts (alec baldwin)
N.C. Gen. Stat. § 50B-1(a)  Who can get a domestic violence protective order (DVPO)?

Can seek legal protection from acts of domestic violence done to you or your minor child by s/o you have a
‘personal relationship’ with, which includes:
o spouse, ex-spouse
o a person of the opposite sex with whom you live or used to live
15
o
o
o
o
s/o you are related to, including parents, children, grandparents and grandchildren over the age of 16
s/o with whom you have a child in common
a current or former household member
someone of the opposite sex whom you are dating or used to date
Battered Women Syndrome/Defense. (Better to call it defense to not infantilize the women)
1.) All states now admit evidence of domestic violence
2.) Criticisms
a. Stereotypes victims as helpless (relevant for custody!)
b. Portrays them as mentally ill & hysterical
c. Fails to explain that victims respond in different ways
d. Disadvantages minorities
e. Provides special trt violating EP
f. Subject to sexist application by judges & juries
3.) Defenses
a. Lethal force against a man who attacked with his hands
b. He’s asleep or drunk?
c. Woman’s the aggressor
d. Abuser is a lawful occupant of dwelling
4.) Admissibility of evidence – Frye & Daubert – all states and DC admit BWS evidence
a. Daubert – evidence may be admitted if it is helpful to trier of fact & methodology is scientifically valid
Problem pg. 332

McMaugh v. State (RI 1992) – vacated & remanded – after birth of daughter in 1974, DV husband would drink, be
abusive, pull out her hair, threaten her with weapons, 4 yrs before trial

Dixon v. US (2006) – burden on Defendant to establish duress by preponderance of the evidence, modern common
law did not req gov to bear burden of disproving defense beyond a reasonable doubt
o Wasn’t able to participate in own defense, if she was able to produce evid, jury might have found
differently, who would bear burden of showing that she was under duress? She would have the burden
& BWS would be helpful here, fearful based on a pattern of violence, action not her own free will

Anne and husband are at bar, Greg begins talking to Anne, jeff notices and shoots Greg

And and husband both convicted of murder and sentenced to life in prison
o Anne = victim of BWS—husband forced her to give false testimony
o Vacated?

Court reverses conviction, could have been unable to participate in own defense, possible that
she couldn’t have produced the evidence
o If she wanted to show duress, who has burden of showing that—Anne
Intimate Partner Violence: Protections Orders

Civil Protection Order is a legal document sought by victim against an alleged perp intended to stop abuse. NOT AS
A PUNISHMENT. Most states make violation of order a crime.

Sometimes orders can only apply to married couples. North Carolien doesn’t include unmarried same sex couples.

Expanding scope is good bc protects more people, but can also cause problems.
Jones v. Swanson (8th
Cir, 2003)


M & W (Donna & Todd) were romantically involved & then did not see each other for 20
years. Both were married. The two cross paths at the hospital & rekindle their
relationship. W tells M she was unhappy with her marriage to Richard. They kiss. They
continue to see each other. W tells her husband she is contemplating a divorce but denies
there is another man. M later suggests ending the affair. Wife moves out in Jan, April
moves back in, counseling, Nov 99 last intimate mtg Todd (not husband) argues at a party
with someone else, in another man’s bed, she was the instigator, was already unhappy
W’s husband files suit against M for alienation of affection – May 2000
Alienation of affection elements:
o Valif marriage
o Wrongful conduct of D
o Loss of affection OR consortium (remember essentials)
o And a causal connection between the 2 (paternalistic and takes away agency
from the woman)
16



Policy:

Damages were reduced because there was evidence of W’s pre-affair conduct & her
dissociation with the marriage, which undermines husband’s claim against M.
Todd said marriage was already falling apart, she pursued me, Richard said: she moved
back home, counseling, Todd cont’d pursuing her, sufficient causal connection, Judgment
for Richard, Todd’s continuous involvement sufficient evidence that Todd was liable, after
the fact she recanted some testimony, No intent to harm is necessary, no intent to hurt
Richard, ct reduced damages
Todd is liable—Donna still had some affection for Richard, Todd was nail in coffin,
wasn’t unreasonable for jury to reach conclusion that Donna was not to blame
Should this belong in court? Too personal? Incentivizes better behavior in marriage,
commodifies women’s sexual services, why not just divorce? Donna promised she’s the
one to blame not 3rd party Todd, trting wife like property – demeaning to put a dollar
amount on it, no right to have sex with anyone
Pro:

Tort actions against
3rd parties
Kohl v. Kohl (Fla.
2014)
Tort action between
spouses
More negligent
transmission and not
intentional.
Emily K. v. Luis J. (NY
App. Div. 2014)
no more about gender, m & w can bring it, uphold sanctity of marriage, alienation of
affection – Do not have to show a sexual relation w/ spouse

Ex-wife diagnosed w/ HPV, he failed to warn her, she developed pre-cancerous cells, FL
case law—suit must be predicated on statutory violation—FL statute for crim liab for
certain diseases—didn’t include HPV, ct said could still bring a common law negligence
claim

Filed for negligent transmission of STD, wife alleged duty of reasonable care to warn or
take precautions

The former wife’s complaint failed to state a claim for neg transmission of STD

Failed to prove actual knowledge (HPV hard to know)

“high risk” sex activity
o Court getting involved in private affairs, doesn’t want to define high risk

This creates incentive to not be tested, never know

2 situations to impose duty 1) D will have the requisite knowledge if he/she diagnosed by
med 2) existence of obvious symptoms will suffice for constructive knowledge **ACTUAL
KNOWLEDGE required here, high-risk does not satisfy should’ve known, privacy
implications, no evid linking hysterectomy to HPV—No duty if  is not aware

Ct says you can sue for negligent transmission but to prove liab, you have to show he
actually knew he had it

Her arg: ex-wife had to have a hysterectomy, high-risk sex, extramarital affairs & sex w/
prostitutes, can of worms, we don’t want to open, what counts as high-risk? What about a
person who has sex w/ high-risk are they high-risk? Ignorance precludes liability
Policy: Incentive not to find out (disincentive finding out), HPV symptomless illness to man, actual
knowledge confines to more EGREGIOUS actions, cabins liability

daughter in relationship with petitioner, on and off for several years—forcible touching
and sexual misconduct—court issued PO in daughter’s favor, BF appeals—mother lacks
standing to bring suit, doesn’t fall under statute because they don’t live together—court:
doesn’t matter, only have to show intimate relationship. Daughter began having suicidal
thoughts.

Emily’s mother filed, why doesn’t Emily? Minor only 13 yo, respondent challenges
standing, ct says no concern w/ standing here, certainly parents can bring case on behalf
of ch, unclear why exactly parent brought this action, order of protection -> touched her
breasts w/o permission, forced her to touch his penis, further allegations of coercion,
nature of their relationship. Intimate—nature/type, frequency, duration, sexual in
nature—doesn’t need to be to be intimate Here: held hands, kissed, called, texted, some
sexual contact

The record supports Fam Ct’s determination that the intermittent dating relationship
qualified as intimate relationship w/in the revised statute, Fam Ct has SMJ

Ct discusses jealous, controlling, isolated behaviors, effect -> suicidal thoughts, Resp args
this should not be in Family Court, Statute says you can seek O/P if qualifying acts of the
same family/household, Resp doesn’t win, legis expanded definition of who qualifies as in
17
a dating relationship, now it DOESN’T REQUIRE living together, just an intimate
relationship, Look at: the nature of the relationship, frequency, duration, ct said yes this is
an intimate relationship, ct looks at details, all interactions btwn parties, nature-sexual,
length of relationship, referred to each other gf/bf since 5th grade, frequent contact,
kissing until 8th, forcible touching, sexual misconduct (crime) ct determines criminal acts > can’t punish him, this is civil not criminal, can grant an O/P
Order of Protection
Its Conditions
Stops him abusing her further b/c can grant
Can order him to stay away (home, school), all
order to stay away, if he violates it -> subject
contact (phone, text, any means) prevent 3rd pty
to criminal punishment, to prevent further
contact, refrain from doing any criminal acts,
abuse forward looking
banned from purchasing/owning firearms enroll
in intervention program

What if Emily’s mother was unwilling to help? She could file since 2008 in NYS, some
states don’t allow minors to bring their own petition (makes sense?) or allow young
people to act on their own behalf, might not believe them etc., empirical data suggests
young people are unaware of O/Ps doubts about the police, may think parents/fams will
look down on them, ambivalence w/ ending relationship, Should focus on public
education!
Nicholson v.
Scoppetta (N.Y.
2004)




IPV
Hawthorne v. State
Criminal Legal
Response




Castle Rock v.
Gonzales


IPV. Police have
discretion



victims of DV could not be found to be liable for neglect solely b/c children witnessed
them as victims
Failing to protect a child from witnessing abuse is not child abuse
On one hand important to recongnize the harm, but also realize that it come put the
victim parent at risk for family separation. Need to weight these two things.
Opinion does leave open that repeat incidents then their children can be removed.
Plaintiff’s husband shot to death; Joyce shot him using bullets from 5 weapons
At 1st trial, no history of violence discussed, trial ct rejects Battered Women’s Syndrome
(BWS) evidence, at 2nd trial, 1st degree murder conviction reversed
To support a claim of self-defense, battered women syndrome on its own is not enough, “I
acted in self-defense,” has to be proportional & appropriate response, common law –
reasonable fear of imminent death or bodily injury & you used proportional violence to
the threat, often comes up where abuser is sleeping, unconscious, reasonable fear at this
time? BWS can explain this, Idea BWS – long pattern of repeat violence, victim becomes
killer even if in that moment violence wasn’t obvious, also women are physically weaker &
may need greater force for protection
To testify on BWD experts must meet 3 criteria:
o expert is qualified to give opinion on subject matter
o state of art/scientific knowledge permits reasonable opinion to be given by the
expert
o Subject matter of expert opinion so related to some
science/professional/business as to be beyond understanding of average
layman
H abducts children. Police refuse to assist M despite her numerous attempts to obtain
assistance. H murders the children w/ handgun bought that evening. W files civil rights
action against the city claiming she had a property interest in enforcement of the
restraining order & that the town deprived her of this property interest without due
process by having a policy that tolerated non-enforcement of restraining orders.
Kidnapped the girls, had restraining order, she contacted the police repeatedly and police
did not response
Long pattern of her asking for help from the police and them not responding
He murdered the 3 children and police killed him after he opened fire on the police
station. Bought a handgun that evening even though he had PO in place that
prohibited him from buying guns
Holding: (1) private violence -> can’t prevent all private violence (but they should have
done something (2) to act on a court order is within police discretion (should that include
ignore a court order?
18

Scalia's giving immunity to police bc it’s the slippery slope theory - every time police make
a mistake then people will sure them. Problematic bc they could have done something.
Not saying they could have prevented the violence.
Marital Rape







Historically, there was an exemption for rape in the marital context. Common law stated that marriage “signified a
wife’s presumes and irrevocable consent to her husband’s sexual demands.”
NY was the first state to abolish the marital rape exemption in 1984 (People v. Liberta – first state to say it’s a
violation of equal protection)
Half of states treat marital rape differently
o Different offense - CA still defines rape as sex with someone not the spouse of the perp
o Lesser sanctions – VA – if the complaint involves a married couple, pending agreement to counseling or
therapy and completed then court can dismiss charges
o Procedural hurdles – S.C. – if the people are married, the victim must come forward within 30 days in
order for the perp. to be prosecuted.
Model Penal Code proposal on martial rape  the fact that the actor is the spouse or other intimate partner of the
complainant is not in itself a defense to any sexual assault charge.
o exception for nonforcible sexual contact – it’s an affirmative defense if the person believed the act was
welcome
These cases pit the right to privacy v. state intervention to protect the more vulnerable people in the family.
People v. Harris  allowing evidence of prior DV against wife did not inflame jury against defendant. Engaged in
rough sex. Consent hard in long term relationships. And people tend to believe victims are claiming victimhood to
get benefit in divorce. Hard to prove.
IPV: Protection Orders
Problem p 351 – consent and incapacity in a long term relationship where dementia is involved.
Intro. to Divorce; Fault Grounds
History
19










historically regulated by the church. Even when state got involved, still very hard, and only on fault grounds. Some
states began to loosen up on fault grounds. Lots of fraud going on where actresses played the person cheating,
which frustrated judges. Based on pressures of people wanting more freedom
CA first state to have no fault divorce. followed by all the other states. NY last state in 2010.
Kramer v. Kramer takes place in a time where there was no ‘no fault’ divorce, so if she wants to get to divorce, she
has no choice but to abandon him and leave. Doing that puts you at risk for financial consequences but only
option. Can’t take the child, bc you’d need court to adjudicate it, which could take 6 months to a year.
generally, hard to quantify all these faults. Hard for courts to do it. Godsoe- this should be out of the courts! So
expensive and time consuming, harmful to reputation and children. This is the job for a therapist or a friend.
1/2 states still have fault options. ½ states are pure no fault. 3 grounds for fault:
o cruelty

defined narrowly

Anderson: Husband filed for divorce, saying the wife was abusive, emotionally to him and his
children. Cruel to him by dominating him. No evidence of child divorce. She responded that he
was having affairs. Higher court found that basis for infidelity, and while she was rude to him,
that didn’t constitute ‘cruelty’ for fault.

All divorces have 2 sides. Messy.
o adultery

Brown v. Brown – married for 20 years. Wife cheated on husband. Husband filed on grounds of
adultery. What is adultery? Strictly intercourse? What kind of sex? Issue here is the deceit and
emotional harm. So maybe emotional cheating is enough? But court has bright line rule of it
being physical sex. Elements: (1) opportunity (2) predisposition. Both easy to fulfill and could
include people that didn’t even cheat!

Real harm doesn’t involve the sex. It’s her falling in love with someone else.

What about emotional or online affairs?

Don’t even need to spend money on private investigators, now always will show up on social
media!
o abandonment
Why people would file for fault? financial consequences. Cannot give alimony if fault is found. Very few states have
this financial/custody benefit. Why else would they plead fault?
o To be the ‘right’ one. Moral high ground. emotional reasons. social status.
o no fault requires living apart. maybe people file for fault to get it done more quickly. Not really true bc
fault involves someone wanting out of the marriage.
Reid v. Reid: bad marriage  good example of a marriage that there is no fault. Desertion. don’t have sex for a
couple years. he was working all the time. she resents taking care of kids. wife ends up moving out and files for
divorce. He countersues. Issue is who deserted who? Leaving is desertion. Not having sex also constitutes
desertion. Case highlights why do we have to show one person is at fault. Both seemed to have tried but it didn’t
work out! Court comments it’s like the parties were in 2 different marriages, why should one person be ‘at fault.’
Court decides bc wife filed for divorce so shortly after she left, she was at fault, and therefore no right to spousal
support. Now left in a bad financial situation. Highlights why we want to move to no fault.
States have different rules. Some have residency requirements. Some have no waiting period. DE requires 6
months of living in separate bedrooms. How will they enforce this?
Waiting Period: every state has one. Average is 6 months to a year, even for no fault grounds. Why? Not doing
anything on a whim and have thought about what you are doing. A lot of people work things out in mediation in
that time.
o Bennington: ‘Living separate and apart’– to avoid fraud for creditors. Why are we policing this? How can
we even police this? Another way in a ‘no fault’ world, is through this requirement if its interpreted
strictly. In Bennington, he wants to get divorced, they were living separately but bc wife was paralyzed
he helps her out a lot. Eventually moved away and filed for divorce. Court did not take his word that he
wanted to divorce her and only stayed to help out. Court doesn’t look at intent or location (he was in van
on property and not on house), they look at the fact he went into the house and was engaged in ‘marital
duties.’ 2 year waiting period – so it’s a big deal the court rules against him. WHY do this? morally,
commenting that he shouldn’t be getting divorced in the first place. Weird getting into these factors
when it’s supposed to be NO FAULT.
Motivations for no-fault divorce
o people wanted to be able to leave
o safety issues for domestic violence
o harm to children dragging parents in mud
20



o reliance on gender stereotypes
Different models of no-fault (once you have chosen it!)
o Pure No Fault. CA and other states. Can’t raise issues of fault. No evidence allowed. Don’t care what
happened in the marriage. Can come into custody things. Can’t contest a no-fault divorce.
o UMDA. NY and a majority of states. Allows there to be a trial on it, if one party contests it. The court
looks at a variety of factors to see if the marriage is ‘irretrievably broken.’

Pros: in a normal case you can defend yourself

Con: in this context, it doesn’t make sense. there is nothing to argue about. Can’t force
someone to be in a marriage contract, which we do in fault grounds, is cray. Also, all sorts of
privacy invasions for the court to look into this.
o Conflicting trial cases in NY whether no-fault divorce gets litigated:

Strack v. Starck – leaves open possibility of a trial

Palermo – no point of having a trial. need consent of both parties to be in a marriage.
Fault as a comeback in sneaky ways:
o courts having trials on
o Bennington – waiting period of 2 years. Bc he helped her then separation hasn’t started.
o Custody – best interests of the child is open-ended
Still a role for fault. (only in NY if you can show a specific financial harm – misappropriated marital funds and
gambling. narrow) Some jurisdictions
Critique of No-Fault

It encourages divorce and undermines marriage.

It allows for unilateral divorce—no contract or commitment

It makes divorce too easy—what if people make a mistake?

It assumes equality between the sexes, and harms women by making exit easy for men who don’t have to pay for
their wrongdoing

It is vague and subject to the vagaries of individual judges.

It treats all families alike.

It minimizes the role of legal counsel.

It has not decreased the sadness and conflict of divorce
Feltmeier v.
Feltmeier


What role for fault?




Boddie v.
Connecticut
Access to divorce


She suing for IIED.
Arguments to allow her to bring tort action: argument against is saying we have no fault
divorce! BUT fault that is criminal in nature is allowed, bc otherwise she would have no
way to recover. Only downside is that people will bring frivolous claims, but standard of
proof will be a check on that.
Caution with tort actions
Policy: Whether the advent of no-fault divorce allows you to litigate torts arising from
bad conduct? Ct discusses concerns about flood-gates, extreme & outrageous conduct &
severe ED is already limiting, garden variety marital breakdown won’t quality for IIED,
what about the fact that this divorce already happened? Some states require tort &
divorce claims
Why do we want them at once? All info out there at once, judicial economy, allows
couples to move on
Will this undermine no-fault divorce & allow double recovery? Where fault is considered
for property distribution, spouse who suffered abuse already awarded property so IIED
would = double recovery and NOT BE ALLOWED
Couple on welfare can’t afford to get divorced.
Supreme court says bc there is only 1 way to end a marriage, through the court, and no
alternative, then this is a due process violation. State burden was too much, too much
$$$.
R: DP right to access legal system, people are dependent on cts here unlike commercial K
case that could be negotiated, no voluntary choice to resort to another process, excluded
from forum to settle their disputes, SDP (Zablocki fundamental right – law must show
compelling state interest & be narrowly tailored) & PDP (Notice & oppty to be heard)
21


Family law is still so expensive and many pro se
Right to divorce is NOT equal to right to marry. For example, waiting periods that we have
for divorce might not be constitutional for marriage.
Covenant Marriage
Divorce Reform: Covenant Marriage (Arkansas, etc)

Couples can choose prior to marriage what laws apply to divorce: COVENANT MARRIAGE IS AN OPTION

Covenant – premarital counseling, limits divorce grounds, fault-based grounds, divorce wait 2-3 yrs., Exception in
DV cases

99% of people still choose regular marriage

Those who do choose covenant marriage – higher education, higher income, more conservative, 30% less likely to
divorce after 5 yrs.

Covenant marriage laws unconstitutional? Boddie if couple couldn’t afford counseling then no divorce, covenant
marriage has a lot of requirements, what about the fact that it limits divorce? Might be a Boddie violation? Is
divorce itself a right?
Divorce Jurisdiction
Takeaway  some family law exceptionalism for good reasons, like we see with tort and contract.
There is unilateral personal jurisdiction for the divorce itself. Other the respondent spouse could
block divorce forever.
Jurisdiction: Terminology
•
Durational residency = have to reside in state for a designated period of time
•
Domiciliary requirement – physical presence plus intent to remain permanently
•
Note: some states say that these mean same thing in divorce context (although not other contexts)
•
Ex parte (or unilateral divorce) - court has personal jurisdiction over only one spouse
•
Bilateral divorce – court has personal jurisdiction over both spouses
•
Divisible divorce – court has jurisdiction only over marital status, so therefore, court may not determine support
and property rights of absent spouse.
Rules
•
Personal jurisdiction over defendant is not required to terminate a marriage
•
BUT, notice to defendant is necessary.
•
Notice must comply with due process. (mail, publication)
In re Marriage of
Kimura (Iowa 1991)


Special jurisdictional
rules apply to divorce



Sosna v. Iowa
(Supreme Ct 1975)

Ken & Fumi married in Japan 1965, Japanese citizens, daughter & son, lived apart since
Sept 1973, Ken H-1 visa for special talent, pediatric surgeon, center filed app for perm
residence, rec’d green card Oct 1987
Mar 1988 – Ken filed divorce mediation w/ fam ct in Japan, July w/d it, could not attend
reconciliation proceeding b/c work, Dec Ken filed dissolution of marriage in Johnson
County Iowa DCt, alleged lived in Iowa over 1 yr, for obtaining dissolution & breakdown of
marital relationship, copy of petition mailed to Fumi in Japan, notice published in Iowa
City Press Citizen, Feb 1989 Fumi filed pre-answer mtn contesting Subj matter & Personal
juris, hearing where Fumi’s atty attended, ct concluded residency req est & dissolved
marriage, Fumi appealed
Whether Iowa has juris over Ken?
Holding  PJ for divorce isn’t to be tested by minimum contacts standard, but status
standard. Meaning as long as one spouselived in the foum, their marital status follows
them.
For property division and custody, PJ/Minimum contacts are required.
Appellant Carol Sosna married Michael Sosna on Sept. 5, 1964 in Michigan. They lived
together in New York between Oct. 1967 and Aug. 1971, after which they separated but
22
Durational req was
constitutional delay.
Petiton must meet
state’s durational
residency
requirmenet.





continued to live in New York. In Aug. 1972, Carol moved to Iowa with her three children.
A few months after, she filed a petition in an Iowa state court for a dissolution of her
marriage.
Michael, who had been personally served with notice of the action when he came to Iowa
to visit his children, made a special appearance to contest the jurisdiction of the Iowa
court.
The Iowa court dismissed the petition for lack of jurisdiction, finding that Michael was not
a resident of Iowa and Carol had not been a resident of the State of Iowa for one year
preceding the filing of her petition. Carol saying this requirement is not constitutional.
Divisible Divorce Doctrine – minimum contacs only needed for custody/property and not
marriage itsef.
Holding  durational residency requirements are constitutional. Legitimate state
interests of: not encouraging quick divorce, becoming a divorce mill, divorce will affect
property rights, avoid intermeddling in affairs that belong to another state. Outweighed
inconvenience to wife.
Dissent: this could be very harmful especially to lower income spouses who have to wait a
year for any kind of support. (more of an issue in states that still didn’t offer no-fault, so
people don’t have to move to get the divorce they want. Also there is temp. support
available)
Financial Consequences of Divorce
2 major components: Property and Alimony (spousal support).
*Also child support but will get to that later.
Property Distribution
Until recently, it was a title system, meaning whoever held title to the property would get it. Or even an investment account,
it would end up belonging to whoever’s name was on it. Historically bc of coverture, and just who is more likely to be making
the money, this was always the men, so they would end up with everything.
Definitions
Separate Property – things you have before the marriage that you DON’T co-mingle. Over time people do co-mingle the
property
Marital Property – everything either party earns during the marriage, besides for the separate property.
Moved from the title system to a model to represent the contribution of the non-monied spouse is the contribution theory.
ALI Transmutation Approach  longer your married the more you are enmeshed, and hard to figure out what one party
gave up along the way. The more you’re invested jointly. It’s a formula that takes the marital duration at which the full value
of the separate property held by the spouses at the time is taken into account in the dissolution. This rests on the rationale
that economic decisions during the marriage are premised on decision that marriage will continue. NO states have adopted
this.
Prenup can override all of this, except not to put someone on public assistance and anything to do with custody.
Ferguson v. Ferguson

Wife filed for divorce from husband who was having an affair. She is going after family
(Miss 1994)
home and pension plans, which is what the average person’s assets. Family home is
related to the children.

Court says that while he was the one working, he would not have been able to do that
without her contributions to taking care of the children and house. Any earnings she did
have went to household expenses, while his earning were going to pension and mortgage.
Her earnings aren’t captured in the assets. She is earning less in amount and less
Move from title to
documented way.
contribution

Court looks to the contribution theory, much fairer than title system. It often means close
to 50%. But court does look at factors (hard to overturn a factor judgement). Split into
23



marital property and separate property, then split the marital property based on fairness
and these factors. Judges have SO much discretion:
o UMDA Hodgepot approach:

1. divide up separate and martial property

2. equitably divide marital property and comingled separate property
based on these factors:

Length of the marriage (longer you’re together, putting off own career
in reliance of the other)

prior marriage of either part – especially if prior child support

Prenuptial agreement (if absolutely contracted on finances usually
followed)

age, health, station, occupation, amount and sources of income,
vocational skills and employability of each party

Liabilities and needs of each party

custodial provision – amount of time you have the children

Maintenance/spousal support

opportunity of each party for future acquisitions of capital assets and
income
o Case Law

Substantial contribution to the accumulation of property

market and emotional value of the assets

tax and other economic consequences

parties needs

any other relevant factor
If there was a partnership theory wouldn’t have to prove contribution, but we do make
partners fight that they had contributions.
Problems: if you were just a housewife it can be hard to prove. More monied spouse says
that the other partner didn’t do much. Puts the burden on the less monied spouse to
prove they deserve part of the marriage pie. Partnership theory would work better to
avoid that.
*NY moved to an equitable/contribution system instead of a title system by statute. They
have even MORE factors than the UDMA. One factor where fault may have a place, if you
are paying for gambling or something like that, then partner can get that moneyback.
Spousal Support and Alimony
Once you divide the property, (and child support accounted for), then spousal support. Men can receive it, but gender
stereotypes still affect this, and men can be bullied into what they take. Property distribution looks backwards, and alimony
looks forward to whether someone needs support to ‘get back on their feet.’ Its supposed to be short term – modern
approach. Old way was much longer term.
24
UMDA Factors:

financial resources of the person seeking

time for them to get educated or get employment

standard of living during marriage

duration of marriage

age, physical, emotional condition

ability of the payor spouse to meet her needs while meeting those of the spouse seeking support
Spousal Factors in NY

based on how we can get the recipient back to work to stop this transfer

lifestyle
Problems – almost always the payor is better off financially, but they are left resentful. Better to let people move on with
their lives. Bc of resentment there is non-compliance. The problem in getting people back into the workforce is that after a
long marriage, these people are old, and its hard to get back into workforce. People think maybe to address this is to write in
an exception for these longer marriages.
NY Alimony Reform  there’s a cap to take the percentage – on 175K. Even if the payor is making way more. A lot of
activism of people being angry about paying. This is why property is preferred. Also why a partnership model makes more
sense in a longer marriage.
If there is fault, should there be fault for alimony instead of property?
Modifications
Alimony can change. Unlike property where once it’s done its done. Most common reason to end it is from recipient’s
cohabitation. Very gendered in the sense that its usually the woman, and when she gets someone else, they can support
her.
UMDA

modification “only upon a showing of changed circumstances so substantial and continuing as to make the terms
unconscionable”

terminates automatically upon the death of either party or the remarriage of recipient
Terminates automatically upon remarriage OR cohabitation.
Celebrity goodwill – opera singer from book.
Mani v. Mani (NJ
2005)





Paul v. Paul



Expanding
cohabitation
Bender v. Bender


Wife has a lot of money from family gifts. He didn’t. He cheated on her. Neither worked
full time.
He had a real estate license and earned 20K.
impute income? – court makes it 25K bc of the average amount a real estate person
would make
Court says fault should play no role in deciding alimony, unless it has to do with extreme
economic fault. (Like NY with gambling). This won’t apply in pure no fault states like CA.
Or in a case with domestic violence.
Generally- take fault out.
Couple separated. Wife tries to show all these facts that she wasn’t cohabitating with her
new boyfriend. Husband has evidence from the investigator that they were (he did
household chores)
Concern about fraud that they are pretending to live apart just so she can still collect. But
he still has his own house so not really saving her any $.
Bad ramifications for roommates, where a woman is just trying to save $ and then
alimony gets taken away. So different from marriage where there is shared interest in the
money pot – person can move out at any time. Only relevant if buying a place together.
Firefighter. His argument was that it wasn’t fair to split his pension at the point of divorce.
He says historically its intangible and it’s not even his yet, as there was 6 more years to it.
Bad argument – we quantify intangible things all the time. In tort we quantify people’s
lives. Experts can value it. If you don’t factor in the last 6 years not really fair either.
25


Pension
In Re Marriage of
Roberts (IN)





Husband’s law
degree was not
marital property




a lot of Wall street people are paid in this kind of stock.
If he stopped working right after the divorce, then he gets a payout of what he
contributed to the pension so fair. Can’t do this. Can get out of his duties.
ANOTHER pushback to idea of marriage as a partnership bc if we saw it that way there
would be no argument that she deserves part of this.
All jurisdictions this kind of thing is part of property.
Even pensions are considered martial property
Matthews & Leigh married 1989, fall 1990 Matthew began law school, before law school
worked at bank 30K, Leigh worked, ran house so Matthew could study, 2 mo before
graduation Leigh became pregnant (by another man?), couple separated, Matthew
finished 3rd in class, went to big firm, Only major asset was the home which was subject to
a substantial mortgage
He filed petition for dissolution, trial ct: $22k for H in total assets and $24k in total debts,
$90k in total assets for W and $65k in debt
Wife appeals—Whether degree is marital property subject to equitable distribution at
divorce. Degree was not marital property—doesn’t guarantee you’ll make money
Holding: Degree intangible, personal to owner, valuation too uncertain, doesn’t split
everything evenly, gives her more, departing from presumptively equal distribution; Maj
view: advanced degree & enhanced earning capacity are not marital prop. Earning ability
= better indicator, talking about future, earnings, not value of degree itself, no vested
interest, value of degree depends on his choices/talents, valuation too uncertain
BUT the earning ability of the degree-earning spouse may be considered in determining
the distribution of the marital estate.
some states will take into acct what was paid for school etc – some alimony to pay her
back
(celebrity and other goodwill can be considered martial property)

State of the Law Re Degrees
1. Some, as in IN, can be taken into account in dividing property.
2. Some: reimbursement only (restitution). ALI, IN statute (but stat available only if no property at div).
1. ALI – rejects the trt of earning capacity as divisible prop, instead provides for compensatory spousal
payments to reimburse the supporting spouse
3. Some, flexible, see 621 n.4 (Wash) (Washburn case): May be compensated through a division of property and
liabilities or a supplemental award of maintenance when too little property. (Even if recipient spouse can support
self).
1. Washburn v. Washburn (1984) – ct declined to identify h’s vet degree as prop but went on to say Mrs.
Washburn may be entitled to compensation for her contrib to her h’s education, prop division,
maintenance, or combo
4. Only a grounds for alimony
Child Support
The Federalization of Child Support

Traditionally, ch support guidance was vague – just reasonable, necessary, inconsistencies btwn cases,
unpredictability discouraged settlement – widespread noncompliance. Judicial discretion.

New approach has federal guidelines

Over last decades, more resources in support enforcement, fed gov collects it, to receive public assistance funds
(Problems: having to name father of child, maybe DV maybe parents won’t apply for benefits then), ch support
automatically deducted from salary income withdrawal

SS can be garnished, tax refunds too (only works if person is employed), license revocation – some degree of
success

Some are uneasy with the federalization of child support

Computerized systems to track parents that move, hard to make increases automatic with salary increases

1984 – child support guidelines as rebuttable presumptions in Title IV-D cases

1988 extended to all cases

Compliance was a condition for federal welfare funds
26
Can divide into 2 broad categories:
1. Middle class or affluent families divorcing – mostly paid, follows the guidelines and cases
2. Low incomes, often non-martial families. Mother goes on public assistance and state coercive machine goes after
fathers, including incarcerating them if they don’t pay. Over 90% can’t pay and never will be able to. BAD for
families and kids.
ALI § 3.05(8) – treats the use of the family home by custodial parent as additional child support
Percentage of income: only look at non-custodial parent’s income—look at statute for percentage to use
Income shares: look at income of both parents, combine and attach statutory percentage to that amount split between
parents based on share of income (you make 70% of income? You pay for 70% of child support) * Income shares model:
more rigid, not much discretion to states
Modifications to Child Support  harder to do than Spousal Support

Subsequent children/remarriage (Pohlman)

Child Support with reduced Income
Turner v. Turner (Ga.
2009)





McLeod v. Starnes
(S.C. 2012)


Post-majority
support



Pohlmann v.
Pohlmann (Fla. Dist.
Ct. App. 1997)
Raymond & Jessica married 1999, 2 ch, Raymond filed divorce 2008, partial settlement,
share joint legal & physical, submitted to trial ct issues of child support & division of
extracurricular expenses
H to pay $552.09/mo child support & extracurriculars 2/3 to h, 1/3 to w, h appeals,
contends that trial ct erred by failing to explain how ct calculated the deviation and failing
to include express findings that deviations were in best interests of children and wouldn’t
seriously impair his ability to provide
H: B/c the court applied a discretionary parenting time deviation from the presumptive
amount of ch support but failed to make all findings, we reverse & remand—joint custody,
can there be deviation due to parenting time?
R: Ct didn’t have authority re extracurriculars, in order to deviate need written findings
Policy: What is the goal of child support? To prevent child poverty?
Court calculates dad’s basic support obligation and then applies parenting time deviation
to reduce support. Judges can only deviate from the guidelines with necessary findings on
the record.
Takeaway Child support calculations under federal guidelines give the trial court much
mess discretion for determining child support than for alimony/property division
Kristi McLeod & Robert Starnes divorced in 1993, 5 yrs of marriage, mom rec’d custody of
2 minor ch, father paid $212/wk reduced to $175/wk by agreement + 35% of annual
bonus, father earned 29K + 2500 bonus, by 2007 120K + 30K bonus, father admitted wife
didn’t know about bonus increases, dad agreed to pay for college then didn’t do it.
Mother’s income increased and fluctuated from $12k/year to $40k/year
Mother sued for expenses for college tuition, court dismissed claim on EP grounds,
mother appealed
Whether parents have an obligation to pay for children after 18 – whether requiring
noncustodial parent to pay for education violates EPC
Requiring a parent to pay as incident of child support for post-secondary education under
appropriate & limited circumstances is rationally related to state’s interest
Here, there was more of reliance issue

*Today most states do not authorize post majority educational support (only 12 do. NY
has to pay to the SUNY level of tuition)

Former husband unsuccessfully petitioned to reduce child support alleging modification
justifies by changed circumstances, permanent decrease in his income, remarriage 3 ch &
former wife remarried, he appeals—argues that it discriminates against children of second
marriages
Subsequent NOT GROUNDS FOR CHANGING CHILD SUPPORT

Remarriage and New
Families
27
Olmstead v. Ziegler

Employment
ChAnges







At divorce, father makes more, now 4 yrs later he has a decrease, leaves law, want to
teach, wants to decrease support, $80/mo at this time, said he was a failure at law,
former partner said he was not productive
Trial ct says loss was voluntary, unreasonable, still pretending his income was 53K, he
appeals
SCRUTINIZED CAREFULLY TO MAKE SURE NOT VOLUNTARY. IF NOT WILL TRY TO GET THE
PAYOR TO LOWER OWN STANDARD OF LIVING BEFORE THE CHILDRENS.
Trial ct did not err in finding Olmstead was voluntarily & unreasonably underemployed
Ct says NO reduction, has to pay OG amount, child shouldn’t suffer, risk of success @ new
job should fall on him, what if marriage has been intact?
Financial situations may have changed, but parties still possessed equal earning
capacities—chose to reduce income
Anyone could escape obligations by reducing income—no allegation of bad faith
NY—uses good faith test—can’t get modification if only to escape support
“Alternative” Families
Non-marital families and relationships outside of spouses or legal parents are not recognized under American law. Contract
can be used but doesn’t match status of marriage
Palimony – support for unmarried couples. Very limited. 3 approaches:
1. Prohibted on public policy grounds
2. permitted but very hard/impossible to prove (50 cent case. written email but court declined to find it)
3. Recovery sometimes happens, on implied contract grounds (Liberaci did collect but maybe bc of AIDS exposure)
(Marvin- she didn’t recover despite strong evidence). This puts the burden on the less monied party.
Rights against 3rd Parties, including the state

Torts: A little more robust but still very different than treatment of married couples. (Graves)

Healthcare decision making: Kowalski. Importance of living wills/health care proxies for non-marital families.

Employment: Shahar. Firing someone for being gay was allowed.

Housing/Inheritance. Rent-stabilized - Braschi – first court to recongnize same-sex couples, but went through
extensive factor test and praised them for acting married. and reward fo privatization of care, bc he cared for him
with aids. Double standard. Housing - N. Dakota. and Inheritance – Beckwith.
Moore v. City of East

law prioritized the nuclear family
Cleveland

Grandma living with grandchildren who were cousins

law struck down as unconstitutional

Dissent – hippie communes
Extended Family
Marvin v. Marvin
(Cal. 1976)



Unmarried Couples
Rights. Palimony
Graves v. Estabrook
(N.H. 2003)

Couple lived together for 7 years without marrying. All property is in the man’s name.
Entered into an oral agreement to combine efforts and earning while living together and
share everything. Woman gave up career to support man, and he promised her financial
support. He tells her to leave. She argues we had this contract to split everything.
He argues contract isn’t enforceable
o can’t have a contract for sex – violates public policy
o impaired community property rights – takes away ex-wife’s rights
o not a marriage settlement
o breach of promise to marry does not exist
She sues to enforce the contract. Court decided the contract is enforceable despite the
sexual relationship.
Catrina Graves engaged to Brett Ennis, lived together 7 YEARS, Ennis riding motorcycle,
Graves followed in car, Estabrook failed to stop, collided with Ennis, blood from mouth &
head, Graves followed to hospital, he died next day
28
Unmarried couples,
third parties and the
state. Tort recovery.







Shahar v. Bowers
(11th Cir. 1997)
Employment
Graves alleged severe emotional distress, sued for NIED
Is she closely related?
1) at scene 2) contemporaneous observation 3) closely related & as a result 4) suffers ED
Reasonable to infer from lengthy cohab (based on how long they lived together =
enough) interdependence to be sufficient to make her closely related
Look at California – Elden – no recovery by unmarried partners, NJ no problem w/ too
many people suing for NIED, confident judges can sort out cases, 8 things to take into
account from Dumphy case, might be good to allow more individuals to sue
8 part test in Elden reasoning to determine if closely related:
o Duration, degree of dependence, extent of shared experience, cohab,
emotionally rely, day to day, life’s mundane requirements
Most states deny recovery for loss of consortium to unmarried cohabitants (restricted to
spouses)

Shahar is law student worked as clerk with GA AG Bowers, Sept 90 offered position of
Staff Atty, sched to start Sept 91, summer of 90 planning lesbian wedding, Nov ’90
application indicated engaged filled in future spouse’s name, AG heard she was marrying
another woman via co-workers, withdrew offer

Is this case about sexual orientation or unmarried partners?

How does her relationship interfere here? Worried about public perception, ability for her
to make good judgments

Shahar sues AG of GA b/c 1A violations, free exercise of rel, free assn & 14A violation b/c
Equal Protection Clause & SDP, granted SJ for Bowers

Shahar is unsuccessful, W/D permitted: exercise of her rights interfere with employer’s
capacity to run efficient workplace

Employee’s rights vs employer’s rights

Pickering = fed gov’t test

Previously Bowers v. Hardwick – Sup Ct case that allowed criminalizing gay sex in GA,
Bowers defends statute, Bowers args this will jeopardize function of the office,
undermines ability to do job, Ct of App reverses & finds intimate right of assn, en banc
reverses

t says: Yes 1A issue potentially but doesn’t end case, applies balancing test b/c gov
employer, employee’s rights against employer’s needs for workplace discipline (Pickering
balancing) this might confuse the public to 1) maintain sodomy and 2) have an openly
gay employee - & she won’t be able to criminally prosecute people for gay sex, might
endanger her working relationships, might affect office’s ability to make good judgment
Shahar’s args: Marriage not related to job
Ct doesn’t take this head on – doesn’t
directly address
I handle Death Penalty cases – my marriage
Ct doesn’t credit this – this will influence her
won’t interfere w/ ability to do that
job, AG’s office doesn’t have to have her only
on DP cases, gives Bowers deference re role in
GA
AG can’t justify decision based on public’s view
Ct defers to Bowers
Impermissible to discrim against gay people b/c Ct said this isn’t about you being gay (status)
Romer struck down amendment preventing
this is about your conduct (you acting on it)
protected statute
difference? Romer about condition, this is
about conduct
Policy: Appropriate to give weight to office’s public perception? Appropriate to defer?
Different case after Lawrence? Would help on the arg that she has to prosecute sodomy, no longer
the law, might still have the idea that SSM is banned
What if straight & was moving in with bf unmarried? Unlikely – this was not ab cohab but about
sexual orientation
What if transgender person fired? “does this genuinely compromise ability to do job?”—ought not
to defer to public hostility—Palmore
29
In Re Guardianship of
Kowalsi
Health
Braschi v. Stahl

Nov. 83: Kowalski in car accident, parents didn’t know she was gay, parents find out and try to
keep her partner out

1984 litigation: Kowalski I: (app. 86) both father and Karen petition for guardianship – father of
Kowalski wins

mid 1985: father terminates her visitation and moves Sharon north, 3 hours away from partner

Kowalski II: Karen petitions to hold Mr. K. in contempt for terminating her visitation and to
remove him as guardian

1988: judge ordered specialists to examine Sharon to see if able to express her desires.

1989: restored her visitation and moved her closer

Kowalski III = this case. Mr. K. no longer able to be guardian; Karen petitions to be guardian
and court awards to family friend instead. Appeal.

Docs testified she wanted Karen, qualifications – renovated home, knew needs, fam friend was
not qualified, no same commitment, Trial ct said Sharon’s preference unreliable & parents
won’t visit, preferred fam friend to foster relationship w/ bio fam, maybe judge has view that
Sharon should be in nursing home

Legal std for guardian – best interest test – look at 1) person’s preference (Sharon’s) & 2)
Petitioner’s qualifications

Ct erred in not appointing Karen as guardian

Appeals ct found this was in error, 8 yrs of litigation, 4 of which no visits, over time looking
more at Sharon’s competency & desires, continuous preference for Karen—focus on
competency, most interested in providing care
Policy: For people in unmarried relationships, contract around these issues, medical power of atty,
create rights that married spouses have through legal docs, health care proxy
Eventually: Karen fell in love with a nurse, Sharon came to live with both women

Avoid this with pre-written agreement, documents showing wants, address with statutes
that recognize unmarried partners in situations like this, give rights



(Social context,
height of AIDS
epidemic, functional
definition of family)
Familial Benefits,
housing and
inheritance






F: 2 men live in a rent-controlled apartment, 11 yrs. Title-holder dies & landlord served a
notice on P contending that he was a mere licensee with no right to occupy the apartment
being he was not a surviving family member. NYC Rent and Eviction Regulations provides
protection from eviction to either the surviving spouse of the deceased tenant or some
other member of the deceased tenant’s family. B argues that he can stay—he is family
Is Braschi family? Objective test
Braschi demonstrated a likelihood of success on the merits because of his lengthy
relationship with decedent, their being regarded by family & friends as spouses, & their
emotional and financial commitment to each other.
Dispute arose because the term family is not defined in the rent-control code
The term family, as used in the rent-control laws, should not be limited to marital or
adoptive relationships. Legal protection against sudden evictions should find its
foundation in the “reality of family life”
TEST: The determination as to whether an individual is entitled to non-eviction protection
should be based upon an objective examination of the relationship of the parties. Factors
to be considered are: (sounds like NIED closely related test)
o exclusivity and longevity of the relationship.
o level of emotional and financial commitment.
o manner in which the parties have conducted their everyday lives and held
themselves out to society;
o the reliance placed upon one another for daily family services
Policy: Judges looking at intimate/private info, controversial unworkable, subject to
abuse, people will take advantage, feminist probs: exclusivity doesn’t indicate intimacy,
financial interdependence, lying & fraud, holding yourself out might not be possible at this
time b/c could be fired from work, forcing people to fit trad’l model, overinclusive? NYC
landlords want tighter test, financial interdependency—some couples want to keep it
separate, not fair this couple has to do all thinks a married couple should
Pros: don’t have to be married to qualify, encompasses more people
Other options: when signing, give people option for who it should go to
30
North Dakota Fair
Housing Council v.
Peterson (ND 2001)









Beckwith v. Dahl





Inheritance!


Unmarried couple tried to rent from Peterson but were refused because they were
seeking to cohabit. They sue claiming housing discrimination in violation of the ND
Human Rights Act.
Whether refusing to rent to unmarried couple violates discrim housing practices?
It is not unlawful to deny housing to unmarried couples.
2 conflicting statutes:
1.) The Human Rights Act states that it is a discriminatory practice for an owner to
refuse to transfer an interest in real property to a person because of race,
color, religion, sex, national origin, age, physical or mental disability, or status
with respect to marriage or public assistance.
2.) State law prohibits unlawful cohabitation.
Because the prohibition was not repealed when the human rights act was enacted, it
cannot be inferred that the legislature intended marital status discrimination to include
discrimination on the basis of a couple’s unwed cohabitation.
The two statutes may be harmonized while still giving each of them full effect.
It is unlawful to openly and notoriously live together as H and W without being married
(unmarried cohab)
It is unlawful to deny housing based on a person’s status with respect to married (i.e.,
married, single, divorced, widowed, or separated)
RULE  It is lawful to deny housing to an unmarried couple seeking to openly and
notoriously live together as H and W.
Gay couple in committed relationship, One man is very ill – wants to execute will leaving
estate 50/50 to his partner and his sister.
He has already drafted a will to that effect and asks his partner to bring it to hospital for
signature; partner can’t find that document but drafts comparable will to that effect.
In absence of a will, his sister would get it all. Sister convinces partner that should set up
trust, which she will have a friend draft and bring in for signature in a couple of days, but
then doesn’t get documents to her brother in time to sign before surgery. Prior to
surgery, doctors spoke with sister and not with partner (because he’s not family) and told
her that he might not survive. He dies soon after intestate. Sister stands to inherit
everything.
Elements of Intentional Interference w/ Expected Inheritance: (1) an expectation of
receiving an inheritance; (2) intentional interference with that expectancy by a third party;
(3) the interference was independently wrongful or tortious; (4) there was a reasonable
certainty that, but for the interference, the plaintiff would have received the inheritance;
and (5) damages
P sufficiently alleged all elements of promissory fraud - D made a specific promise, the
promise prevented P from presenting decedent with the will, P trusted D would fulfill her
promise, P’s reliance was justifiable, P was damaged.
Ct recognizes tort but it doesn’t work here, her interference was not independently
tortious, promissory fraud – false promise relied on to his detriment, yes promissory
fraud here
Policy: Inheritance for unmarried couples, even if they make a will, if family members
unsupportive they can will contest, difficult for your partner to inherit, a little easier now
that SSM is allowed. Intestate share for unmarried partners – WA state case law covered
SS couples, now opposite, unmarried cohabs w/o will can inherit, in the past, partner
adopted adult partner so treated as parent-ch relationship & could inherit, then became a
problem when SSM allowed b/c incest, had to sever relationship w/ parent
Professional Responsibility Issues in Family Law; Alternative Dispute Resolution
31
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
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Family law has a lot of malpractice. Nature of the cases. Involving humans and high emotions. Attorney discipline is
rarely pursued. But it is a growing area.
Role of counsel – competency. Bc of the vague lines in roles in family law. Doing more than just appearing in court.
What is legal help and what should be referrals for mental health? But also want to have good bedside manner. It’s
a balancing act.
Conflicts of interest
Sexual Ethics – often women coming in a vulnerable state. Originally there was a proposal criminalizing lawyers
who are with their clients (criminal and family law). Maybe there should be sanctions. There is an imbalance of
power and the stakes are so high (children, financial future).
Children:
o AAML Guidelines 6.1  lawyer must represent interests of the client but not at the expense of the minor
children. Suggest NOT to get an evaluation unless there’s a strong basis.
o When there is an evaluator, GAL v Forensic Psych Reports
o Many divorce proceedings have abuse allegations that really weren’t warranted at all. From the clients
perspective, generally third parties aren’t thought of. Some attorneys out there will still do that but
becoming less common especially in NY bc judges aren’t having it. And children get appointed their own
attorneys. When there isn’t extreme abuse, attorney can advise that they will lose all credibility.
ADR: mediation is the norm. Cheaper than litigation or settling. Challenges of the kinds of cases that have red flag
for ADR. Like domestic violence.

Moses v.
Moses

Florida Bar
v. Dunigan


Hoskins v.
Hoskins

Attorney took on more of a role as a therapist instead of an attorney which resulted in very high
legal fees.
Court determining whether these fees were reasonable. Focus on factors (?) and to determine
reasonableness they usually look at other local attorneys. Problem is in small family practices don’t
have the resources to determine what is ‘normal’ and what isn’t.
married couple owned a restaurant and hired an attorney who left wife’s name off registration form.
Even the risk of conflict, although here was an actual conflict, bc attorney represented both of them.
What could he have done? discussed beforehand which party he would represent if they break up
Have child specialists who report to the court like a psychologist would. Why have them report to
the court? Are they really neutral? Often they need to say something, and the court will use
whatever it is they say. No court wants to give custody to someone who will abuse the child.
Children
Custody

Gendered and there can be a ‘winner takes all’ attitude
32
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DISCRETIONARY
Limits – Fulk/Rowe
o Fulk v. Fulk: biological father filed for divorce and custody of the child. lower court awarded custody to
the father, based on the fact the mom had engaged in a lesbian affair. Discretion of lower court was
mistaken.
Keep in mind best interests of the child, sole v. joint, and the use of presumptions and factor test. NY is one of
handful of states that doesn’t have any presumptions in custody laws.
Every jurisdiction has the test of asking what is in the best interest of the child analysis with factors. Joint custory is
preferred and look at the factors. If there is a presumption, then you look at the factors to rebut them.
o UMDA Factors: willingness of the parents in terms of custody, wishes of the child, interaction of child
with his siblings and other people in the household, child’s relationship to their school/community,
mental and physical health,

nexus test  court shouldn’t consider anything not related to relationship children. Sexual
behavior that child has no knowledge of should not be used to limit custody. How does the
court find out all this stuff? outside evaluators so not a lot of info to go on – based on one
observation or interview.

These factors allow for SO much discretion and can punish women for their sexuality and
career preferences
o NY Factors: added ones like atmosphere in the home, availability of the parents, financial standing of the
parents, refusal of a parent to provide visitation, making unfound child abuse accusations.
Constitutional Factors:
o Race. Cant be the determining factor but can be considered (Palmore)
o Religion: circumcision – something that irreversible physically. (Sagar)
o Gender: (Devine)
Physical custody and legal custody which the decisions you make for your child re school, religion, upbringings.
Fitness:
o instability? HIGH levels of substance abuse and mental illness
o Presumption is that its best for both parents to be involved
o Career – women especially get a lot of scrutiny in terms of their micro behaviors and whether they are
allotting enough time toward their children. Ex. mothers business trips outweighed his violence.
Domestic Violence – how much of a role should it play? (when it does not involve the child)
o historically states did not take this into account. Or have it just be a factor.
o NY DRL 240- mandatory consideration. Even though NY does not have presumptions, this is mandatory.
Have to do in a sworn petition and evidence must have a preponderance of evidence (less than criminal
standard) and court uses it to consider what is best for the child
o CA Fam. Code 3044 – Rebuttable Presumption (many states do this) stronger than a consideration.
Harder to overcome, there is a rebuttable presumption for no joint custody. Rebuttable with a
preponderance of evidence. (God bc FORCES court to consider it, but maybe it does too much to deter
that parent from having joint custody with the child)
Modifications  unlike property division, custody remains open to change until the child is an adult. Modification is subject
to substantial change and best interests of child always into account.
Devine v. Devine

‘tender years’ presumption which favors the mother particularly for younger children under
(Ala. 1981)
10 years old.

case challenges this presumption. Father was a professor and was involved in childcare,
whereas wife had a busier job.

Court decided you can’t use gender as a proxy for caregiving, and it’s an equal protection.
Palmore v. Sidoti

After the divorce, the father alleged that the mother was unfit for custody bc she was
cohabitating with an African American man.

Trial court was racist. Then on the appeals level the father alleges the white child won’t fit
into the predominantly black neighborhood.

Can’t base custody decisions on race. Can’t cite stigma, even it may be true, as a reason for
custody.

During the course of this case, custody went to the father when child was 3, and by the time
supreme court decided he was 12, and then didn’t want to go back to another state and live
with his mother. Reason why joint custody option is good.

Not, race can be a factor. Can’t be the basis for a custody decision. Ex. Halle Berry dispute
about child’s hair, where ex was straightening the kids hair to make her look whiter. How
33
Constitutional
issue
Sagar v. Sagar
should court assess this? court can modify the arrangement and say he can’t do that. not
necessarily cut off all custody.



Religion
Rowe v. Franklin
Fitness GENDERED
Peters-Riemers v.
Riermers


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

Domestic Violence

Both parents were temple attending Hindus, but there is a disagreement about a certain
ritual involving shaving the daughter’s head. Husband wants to do it, and wife doesn’t want
to.
Husband states that denying the ceremony would violate his free exercise rights. And wife
says making her do it would violate her privacy rights.
Court rules to wait and see when the child is older. Best courts stay out of this as much as
they can, and wait for the child to weigh in. If something that can’t wait and child is too
young – the court will lean on decision with less permanence, either physically or spiritually.
wife going to law school in another state. father is an iron worker
She is appealing decision of custody of her son given to her husband.
Court ruled that trial court abused their discretion and the child was in a stable situation with
the mother. (multiple jurisdiction cases are hard)
Domestic violence allegations. Sole custody given to mom, and dad gets supervised
visitation.
also kept porn where child could get it. this could factor in.
IPV is a mandatory factor to consider but serious IPV becomes a rebutaable presumption
against custody award to the abuser.
These are difficult cases that pit childs interest in seeing both parents against wrongdoings of
violence and threat to victim pparent.
Joint Custody



Presumption are common for joint custody. It’s better for the children, except in extreme cases. More and more
states are putting it on the books. This is a good thing. Not perfect – some kids don’t like going back and forth.
Ideal world kids can have the family home and parents have apartments – only affluent people. There are some
geographic restrictions so it’s not too far apart.
legal custody – the responsibility for major decision-making regarding health, religion, education
physical custody: child’s residence and physical care
Ways to Deal with Joint Custody
1. Not preferred (As historically, Kramer v. Kramer)
2. 1 possibilty
3. Preferred/de facto presumption (NY)
4. Official presumption (in many states)
Visitation
UMDA: a non-custodial parent is entitled to reasonable visitation rights unless the court finds, after a hearing that visitation
would seriously endanger the child. (mental, emotional, physical). Can’t be based on court’s feelings about the parent
(Hanke). Also, can’t be based on parents failure to pay child support if they are unable to (Turner). Must be based on best
interests of the child. There should be other remedies for parental wrongdoing.
Child’s Preference – should be meaningfully considered by the judge, especially if the child is over.
Bell v. Bell




Trial court had given legal and physical custody of son to mom.
Case brings up problem of gender biases at the time against fathers – where court takes a
minor disagreement about the preference of babysitter or a daycare – mostly they agreed
about stuff. Shows how in the absence of a presumption, then courts will use these minor
things to avoid joint custody.
Remaining problem is that mothers still get sole custody more often bc father ask for joint
less. This is why presumption works also.
He gets awarded joint legal custody NOT joint physical. (Gender biases). This was a mistake
as the parents only had minor disagreements.
34
Hanke v. Hanke



Mother did not want visitation from the father bc he had admitted to sexual molestation to
step-daughter
Trial court was upset at mother bc she disregarded the court order and moved away to
Kentucky to avoid the overnight visitation order– not considering the best interests of the
child.
ONLY consideration should be about best interests of the child (also comes up with child
support payments)
Fatherhood and Non-Marital Families
(Establishing parenthood)
Only legal parents can get to custody and visitation. This is always FIRST step in analysis. Ask, 1. do they have a parental
status? and 2. Only with 1, do they get best interest of the child custody dispute.
Rule: against a fit parent, a non-parent has no rights.
This started to be eroded a bit, with grandparents, and the same-sex couple cases that have come up.
5 (or 6) paths to ‘parenthood’- sometimes these overlap. Still the case where women get treated very differently. Plays to
stereotypes of female caregiving.
1. Marriage (presumption for dad. but also applied to non-bio mom in a lot of states. Trumps usually but not always. )
(includes marriage after the child is born)
2. Biology (ONLY MOMS)
3. Biology Plus (for unwed fathers) – doesn’t need the 2 years cohabititation, but need more to show parenthood.
Moms can block it.
4. Function (ALI living 2 years. Some jurisdictions first 2 years.) Looking forward after the child is born. (Chatergee
and Bethany)
a. parent by estoppel (no established 2nd legal parent. Mom is estopped from denying parentage to this
other person.)
b. de facto parenthood – requires caregiving.
5. Intent – signs that the person intended to be the father. (mostly applies to reproductive technology. Chatergee
and King- bc of adoption) More looking back to creation of the child and adoption of the child
6. (Statutory re standing to petition for visitation. non-parent to get some visitation and adoption
Biological moms are #1 parents bc of limits of technology. But no DNA tests are easily accessible. So the scientific reason
why we presume parenthood through marriage for men is gone. Other reasons: encourages single moms to get married and
wants to encourage marriage, also sexist reasoning that women are solely responsible for reproduction. (btw often it is the
women who don’t want to get married, and then the men get no rights. Disadvantages fathers!)
Retroactive support? Don’t think so.
Can children seek child support on behalf of themselves? Typically, rely on parents to bring action for them. For poor people,
enforcement of child support only happens when parent goes on public assistance. Then the state goes after father.
PROBLEM – focus on private payers not in a position to pay instead of state.
UPA - Marital Presumption (section 4) AND Functional Presumption (section 5)
Man is presumed to be the father of the child if he is married to the mother and the child is born during the marriage OR if
child has already been born and you’ve held yourself out as the child then the presumption applies.
So if a father finds out the kid is biologically not theirs, they are estopped from not paying support BUT can’t force visitation.
To prevent this either be in charge of own birth control or test within the window of time to establish paternity (1 or 2
years). Acknowledging paternity in a stated document.
*Does not apply to domestic partnerships
In NY you can be a biological father and without establishing biology plus, the child can be put up for adoption and can’t
contest that.
NY Law: Marital Presumption – (same as UPA)
35
EVOLVING DEFINITIONS OF PARENT
ALI Principles (Both have a period of at least 2 years. Hard to prove functional parenthood)
Parent by estoppel  a person who acts as a parent so as to estop the child’s legal parent from denying the PP’s status
including: (1) where PP is obligated for child support (2) has lived with child for at least 2 year and there is reasonable belief
he is the father (3) has an agreement with the legal parent since birth or for at least 2 years to serve as the coparent
*looks at actions of legal parent opening the door to someone who wants to be the parent, and then they are estopped
from denying.
De-Facto Parent  a person who has (1) regularly performed an equal or greater share of caretaking as the primary
custodial parent or (2) has lived with the child for a significant amount of time, at least 2 years, and has acted as a parent for
non-financial reasons or as a result of the inability of the legal parent to care for the child
These are the 3 paths to parenthood the 3 adults could argue for in Micahel H. v. Gerald D.
Type of Father
Rights
Responsibilities
Marital
Presumed to be the fit legal father
All attendant responsibilities including
with all attendant rights. But this
financial support
presumption is usually rebuttable now
by the proof of another man being the
bio father. BUT rebuttal may be
precluded by estoppel.
Biological
Depends upon Father’s legal status.
Financial supper until child is an adult
Non Custodial fathers, and even
support
father precluded from visiting may be
liable for support
Unwed Biological
“Biology Plus” can lead to rights
Financial support unless someone else
(Stanley). Father must take some
is the legal father. Financial support
steps, ex. names on birth certificate,
can be evidence leading to rights.
acknowledgement of paternity, holds
himself out as the father
36
Analysis:






5 routes to parenthood
Any relevant statutes on visitation?
Child’s interests?
Any possibility of parsing these rights out? Like Jason P. – giving visitation but not custody
More than 3 parents?
POLICY – privatize dependency and prioritizes nuclear family with 2 parents
Grandparent Visitation

Who falls in the scope of people that have rights to visit?

Should grandparents have a right to visit over the parent’s objection? (based on how close to grandchildren?)

Concern: Prying into private lives, respect family privacy & autonomy
37


Prior to Troxel, all states allowed grandparents to petition for visitation, some cts had best interests std, others said
grandparents has no right to visitation in face of parental objection
NOW: All states have 3rd party visitation statutes that permit grandparents & others to petition for visitation BUT LIMITED
o
Why? Changes in mortality, fertility, transportation, communication, work day, retirement, stds of living has
transformed parenthood
Troxel v. Granville (SCOTUS 2000)
F: Tommie & Brad in a relationship ended in June 1991, never married, 2 daughters, Brad lived w/ parents & regularly brought daughters to
his parents’ home, May ’93 Brad committed suicide, saw grandparents regularly then in Oct mother wanted 1 visit/month (maybe moving
on, doesn’t want ch reminded of suicide)
P: Troxels filed petition for visitation for 2 weekends, overnight visits/mo, & 2 weeks in summer, Mother said 1d visit/month & no
overnights, Super Ct granted 1 weekend per/month, 1 week per summer, 4 hrs on grandparent’s bdays, Ct of App reversed b/c nonparents
lack STANDING unless custody action pending, Sup Ct affirmed b/c infringes on fundamental right of parents to rear children
H: Visitation was uncon infringement on mother’s rights—3rd party visitation rights can’t stand unless showing of harm
R: SCOTUS said infringes on SDP right to control upbringing of children, unconstitutional, Justices were divided, too broad, no deference to
parent’s decision making, presumption that fit parent acting in best interests of children, consider harm
Stevens’ Dissent: consider harm & child’s interests in continuing relationship
Net result -> Ct’s rewrite statutes visitation to limit who can seek visits & deference in fit parent’s decision
Policy: After Troxel, many jurisdictions revised their statutes to limit the # of persons who may seek visitation & give deference to fit
parent’s wishes, some states moved to harm rather than best interests (factors to consider in granting visitation p. 752)
Cts increasingly willing to grant visitation rights to stepparents given long-term relationship with child (infringe on biological parents constit
rights?
Bethany v.
Jones
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
ON EXAMS
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Clark v. Jeter
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Rights of nonmartial kids
Wallace v.
Smith

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
Strict liability
for Child
Support
Stanley
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Parental rights
of Unwed
Fathers
Michael H. v.
Gerald D.
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
[before getting to custody, first need to establish who is a legal parent. Very on/off switch. Who
is a parent and who is not. 2 ways to become a parents: (1) biologically (2) adoption (*also
through marriage for men). New movement called ‘functional parenthood’ which takes child’s
point of view as to who their parent is.]
Elisha and Emily were partners, and Elisha carried the child. a few years later, they break up.
Not married bc wasn’t allowed at the time. If they were then marital presumption would apply
and they’d go to court to figure out custody. Biological mother, Elisha, used the fact they
weren’t married to say that Emily could not see their child.
Court looks to factors (function + intent) to deem Emily as a de-facto parent:
o she was the stay at home parent for 3 years
o called her ‘mommy’ and parents ‘grandparents’
o always was intention for them to be co-parents
This is still a high bar – and most states require 2 years of parenthood. Much higher than
biological. Problematic bc allows the biological mom to gatekeep and kick someone out.
Used to be you didn’t have to support non-marital children. Mother of child was arguing against
the non-marital father for child support. 10 years after the birth of the child although the state
has a 6 year statute of limitations. With divorce you can ask for it anytime. Here, she may not
have needed it before or known who father was, and it should be the child able to get access to
support.
Father arguing that it is unfair. Maybe he didn’t know the child existed. No notice.
Court says too bad. it’s about the kid. On the hook for child support.
Father sues bc he only had sex with the mother if she was on birth control. Court says he didn’t
take any steps to prevent the pregnancy he’s on the hook for child support.
Court says too bad. (Exception – boys who are victims of statutory rape)
Men can be on the hook for child support until the child is an adult, at any time. No defense
once its proven you are the biological father. Caveat – unless there’s another legal father in
the picture. If the mother is married to someone else, then he’s on the hook.
After mother died, children put in foster care. Presumption that unwed father were unfit. No
proceedings to find out if there was any neglect on his part.
He had lived on and off with the mother and kids over the years. he had been involved, had paid
some support (imp. factor)
Fathers shouldn’t necessarily be treated as the automatic legal parents, but they should get a
hearing, which he did! Fathers always on the defensive to prove they are fit.
2 subsequent case narrowed this which made the bar higher for unwed fathers to meet. The
step-father is there. So if there is another man who is willing to pay, then an cut the biological
father off. (Also, why does there have to be this magical #2 and not 3?)
Several courts have recently recognized the marital presumption for same sex couples.
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
Chatterjee v.
King
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



Stacy M. v.
Jason M.



Bridge
between
functional and
intentional
parenthood


Carol has an adulterous affair with Michael while married to Gerald. A child is born, while Carol
and Gerald are still together, but was likely Michael’s child.
Court rules that the marital presumption is not unconstitutional.
2 women in a long term relationship, a domestic partnership. King adopted and is automatically
the parent. Not a second parent adoption, so when they broke up, King said she wasn’t going to
give Chatterjee any contact
UPA creates a presumption of parentage for a man who holds a child out as his own
Lower court said that a mother/child relationship can only be established through biology or
adoption
Higher court reversed, saying the UPA presumption applied to women as well, who can
establish parentage by holding the child out as their own.
POLICY  point of the UPA is to protect children and give them 2 parents.
Couple gets divorced. Father is ordered to pay child support for 3 children. gets genetic testing
and it establishes he is not the biological father of the youngest child.
He seeks equitable relief that would maintain visitation but stop the financial support of the
child.
Court held that they couldn’t stop the child support without taking away all of his paternal
rights, including visitation.
Strength of the marital presumption
Public Family Law and Adoption
Neglect often interpreted as abuse. Children who are taken away and put into the foster care system are usually much
better off had they stayed in their original homes.
We have a punitive child welfare system that punishes parents for neglect.
Sexuality
FL was only state that didn’t allow same sex couples to adopt, only to foster. Challenged about this and responded that
fostering is temporary (can be up to 5 years!). Court found there was no rationale for this law. Children need permanence
and its unconstitutional. (Prior case where the adoptive male couple had taken in some very sick kids, had HPV, got rid of
HPV, and lost the kids to a heterosexual couple. Outcry so they became guardians.) Good example of craziness of family law.
Religious Exemption – Fulton – state function of an adoption agency – getting state $ - why should they be able to exclude
same-sex couples.
Adoptive

takes place in the private adoption system and see a lot of racial, gendered issues.
Couple v. Baby

Child of woman and Cherokee father. He wanted to relinquish all rights. exchange was over text
Girl
and he was on the way to the army. he said he would surrender rights, thought it meant to ‘her’
and not up for adoption.

ICWA – Indian Child Welfare Act – no termination of parental rights (of an Indian Child without)
a determination, supported by evidence beyond a reasonable doubt, that staying with parent or
Indian custodian is likely to result in physical or emotional damage to the child. Preferences: 1.
within extended family 2. within the child’s tribe and 3. with members of another tribe. None of
that happened here. Only for Indian children bc there was a long history of social workers taking
native children and putting them in white families. Kind of like reparations.

Alito avoids the whole question of the community/tribe intervening by saying ICWA doesn’t
apply bc he is not the parent. Says bc he never did the biology+ that non-marital fathers have to
do then he is not a parent.

Adopted parents want to keep the child. She looked white and was adopted as a baby. Get to
keep her.
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Example of a dad who did more than biology. Biology plus.
Scalia – the father is the father!
Usually 3 people vying for 2 spots. Frank and Peter.
FIND OUT MORE FACTS
Mothers do a lot of gatekeeping – in these cases and lesbian mother cases. Eq
Child is young but not impossible to speak to them and what he calls them
End off with why don’t we allow all of them to be involved?
How would paternity be resolved under UPA
Peter – they intend to marry., mother’s choice, new sibling, he intend to adopt, like the traditional family
Frank:
Custody
I assume for this that frank was granted parental rights. Under the best interests of the child. Here are a few factors that Courts
will consider, de-facto custody presumption. Look at the fact he wasn’t married to the mom, not biological. De facto
presumption doesn’t go very far
if Mary succeeds in getting primary custody, can Frank be relieved of paying child support? if not another man in the picture
then he would be estopped. If they don’t pay its bc someone else is paying, then visitation is taken away completely. Men are
financial providers. Same-sex couples – follows some of the same patterns in looking at who was caregiver
Remember, parentage comes first! that helps determines custody.
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