Family Law Outline 2021
Marriage
1. Thousands of years old
a. First recorded marriage was in 2350 B.C.
2. Marriage is defined as a “Union” of two people
a. Legal recognition of two people becoming a single entity
b. Originally, marriage and marriage benefits were largely deferential to male status
and authority
3. Marriage confers practical to nonpractical benefits
a. Love and commitment
b. Religious benefits
c. Financial and tax boons
d. Legal rights and benefits (power of attorney, property)
e. Protection
4. Marriage: Status of Contract?
a. Technically it’s both, but distinctions in approach result in various effects
b. Viewing it as a contract: imposes contractual understanding of individual
freedoms and consent
c. Viewing it as status: imposes a higher undertaking of social understanding of
marriage as an identity. It can exist independently or be understood from a legal
perspective and can therefore be controlled and intervened upon by the
community or state (allows for more regulation)
5. Status
a. An aspect of an individual’s life or liberty that is subject to being regulated by the
government and which has a direct impact on the individual’s legal rights (or lack
thereof)
i. Examples
1. Status of being a juvenile
2. Status of being convicted of certain crime
ii. For example, dissolving a contract requires only mutual assent of the
parties, while dissolving a marriage requires a judge’s decision
b. Marriage is itself both and neither, it exists as a unique and individual
construction within the law
Premarital Controversies
1. Breach of promise to marry used to exist as a tort action (known as a Heartbalm action)
a. However, now is it not recognized as a viable or legitimate legal action
b. Anti-heartbalm statutes have abolished legal action in regard to breach of promise
to marry
2. HOWEVER; recovery for engagement rings still exists in the form gifts given in
contemplation of marriage
a. Campbell v. Robinson (engagement ring case)
i. Two central issues at core of case
1. Should fault be a consideration for return or retention of the ring
2. Was the ring given in contemplation of marriage (a conditional
gift)(as opposed to an absolute gift)
ii. The court determines that an engagement ring is a conditional gift by
definition stating
1. Engagement rings are, by their very nature, understood to
be premised on the occurrence of the marriage, and thus
are conditional (i.e., title transfers upon satisfaction of
the condition), but this presumption may be rebutted
2. Next, if rings are conditional, should fault (for breaking off the
marriage) be considered?
a. The court says NO, and this is the modern trend
b. Important considerations
i. Generally speaking, most courts and jurisdictions consider an engagement
ring a conditional gift premised on the occurrence of a marriage
1. This typically means that the donor will retain the ring
a. This is done for a number of policy reasons
i. Easily applied using well founded gift giving
property principles
ii. Engagement period can be viewed as a “test period”
in which the couple can determine the permanency
of their relationship
1. A person who breaks off a relationship
shouldn’t be punished when they are
furthering purpose and attempting to avoid
an unhappy and unsavory marriage
iii. Difficulty of determining fault is also huge
1. Will have to run through countless example
of he-said, she-said battles, and make very
personal determinations about the innerworkings of an incredibly personal
relationship to which the court cannot
possible make equitably
Premarital Agreements
1. Premarital agreements offer a number of benefits
a. Protects assets and interests for oneself or children
b. Makes divorce easier and cost less money
c. Shifts risks for the advantage party (to the disadvantaged party’s detriment)
2. Overview
a. Prenups are drafted and signed prior to marriage, and generally come into play
when one party seeks enforcement at the time of divorce
b. Prenups allow the parties to determine in advance, how their property shall be
divided, and what, if any support obligations exist should the parties divorvce
i. Unless the provisions are expressly prohibited by state law (statutory or
judicial), a prenup allows the couple to decide things differently than the
default rules in that state (which is typically of 50/50 split)
1. E.g. the parties could agree to spousal support for a longer time or
a on different terms than a divorce court would or could provide
c. Prenups function as contracts, and operate under the many of the same principles
of contracts
d. Although statutes typically say prenups may apply to beyond property and money,
courts are usually hesitant to enforce prenups that attempt to specify certain
obligations or restrictions on the spouses’ right DURING marriage
i. Important to note: that child custody and legal obligations for child
support cannot be determined or altered by a pre-nup, because they
involve a third party
e. Historically, prenups were originally seen as an “inducement” to divorce, and
therefore would increase or encourage divorces to happen
i. Use or prenups were looked down upon because of this HOWEVER this
has changed since then and lessened
f. Modern trend is for there to be greater autonomy and allow greater flexibility and
private ordering of affairs
i. Of course, this freedom is tempered by a degree of a fairness that is upheld
by the court and statutes as needed (known as unconscionability
3. UPAA (Uniform Premarital Agreement Act)
a. Has been adopted by over 28 states and exists as a uniform basis for states to
approach common questions and problems posted by premarital agreements
(adoptive states will of course modify and alter the act as needed)
4. Simeone v. Simeone
a. Divorcing couple’s premarital agreement is in dispute as wife is seeking alimony
pendente lite, which was signed away under the prenup
i. She made a number of claims
1. Lack of consultation by lawyer (she was not adequately informed
with respect to the nature of alimony pendente lite/didn’t
understand from the language of the prenup that she was waiving
rights she also didn’t fully understand
2. Claim of duress
3. Overall unreasonable payments
ii. Courts refuse to hear or credit pretty much any of the facts or her claims
1. Elects to enforce anti-paternalistic approach based on equality of
women and men (operates under the assumption that parties are on
an level playing field
2. Phrased as a win for women and equality (but is it?)
a. Women now largely lose the ability to make these claims
which served at least in some part as remedies for problems
and inconsistencies that they otherwise would not have
access too
5. In Re of Marriage of Shanks
a. Largely concerned with the UPAA
i. States that a premarital agreement is not enforceable:
1. Lack of voluntariness
2. Unconscionability; AND
3. Lack of disclosure of finances or property (lying about assets)
ii. IUPAA (the state version of UPAA) however, removes the requirement of
the agreement be disqualified by needed to be unconscionable AND
without full and fair disclosure
1. One by itself is sufficient
a. This is clearly more restrictive on prenups but generally
better for equity
b. Discussion of Unconscionability
i. Two types
1. Substantive: is looking for a consistency or mutuality of the
agreement (not equal necessarily, because prenups by nature
protect an advantaged party’s assets)
a. Is the agreement unduly harsh or cruel? Must be
exploitative or oppressive, not merely “unfair.”
b. Here, the agreement maintained premarital assets, and
sought to preserve relative mutual positions prior to
marriage
i. They leave the marriage under different
circumstances, but also entered the marriage under
different circumstances/neither party is unjustly
punished or provided a windfall after the dissolution
2. Procedural: is more of a consideration on unequal bargaining
power, or exploitative advantages among the parties
a. Factors for consideration
i. Relative sophistication
ii. Opportunity to seek counsel
iii. Temporal proximity to marriage
iv. Use of highly technical or confusing jargon
v. Use of fraudulent or deceptive practices to induce
the agreement
1. In this case, none of the factors are present
2. Wife is educated, (a paralegal), given ample
time, offered and encouraged to seek
independent advice, language was not overly
complex, and no deceptive practices were
used
6. Indiana Law Specifically
a. Adopted its own version of the UPAA
i. Absent is any discussion of the “full and fair disclosure” however, this
could demonstrate unconscionability or non-voluntary inducement
b. Rider v Rider
i. Charles and Leslie had a prenup “to protect their assets for themselves and
for their heirs”
1. Indiana’s UPAA provides an appropriate section
a. Spousal maintenance can be altered or modified, but this
can be set aside by a court if extreme hardship becomes
possible
2. Relative position of the spouses also in consideration
a. Unconscionability involves a gross disparity
b. A finding of unconscionability requires a comparison of
the situation of the two parties
c. Pardiek v. Pardiek
i. Gregg and Julie signed a prenup specifying that “during their marriage”
each of them shall continue to be entirely independent of one another as
regards to the enjoyment and disposal of property owned by them prior to
said marriage
ii. Husband owned a paving company, part of Parkland, Inc. Gregg held
shares in Parkland, whose value grew substantially
1. At divorce, Gregg had “acted in bad faith” by using Parkland to
shield profits and increase assets resulting from the paving
business
iii. However, the appellate court reverses the trial court and upholds notion of
contract law, and despite having found “bad faith” by Gregg, they would
not otherwise prevent enforcement of an otherwise valid antenuptial
agreement
Recap/re-visit on premarital agreements
a. General consensus in caselaw that courts will not be enforcing premarital
agreement provisions relating to topics beyond the parties financial obligations
inter se (such as those) regulate conduct during the marriage
b. Generally, prenups operate and are enforceable as contracts.
i. Framework is set up by the UPAA in about half of the states, though they
are framed with some important state by state variations
c. Common issues concerning enforceability of a premarital agreement
i. Was the agreement VOLUNTARY? What constitutes duress or undue
influence under state law
ii. Was the agreement INFORMED? Full disclosure may avoid a finding of
unconscionability, unless the state has legislated otherwise
iii. Where there SUBSTANTIVELY UNCONSCIONABLE? Shanks and
Rider provide some examples of considerations (again, were the provision
grossly inequitable or was there a massive disparity/simple unfairness isn’t
enough because by nature the outcomes wont be perfectly “fair”
iv. Was the agreement PROCEDURALLY UNCONSCIONABLE? Under
the facts of the case, did one party exploit the others lack of understanding
or unequal bargaining power? Here courts are often reluctant to be
paternalistic. (Courts generally wont try to over-police contracts and go
expediting for unfairness even if good arguments could be made)
d. Under the UPAA, and agreement is analyzed for unconscionability based on
the conditions and intentions at the time it was written, not the time it would
be enforced
i. An exception might come if the spouse against whom enforcement is
sought would be made destitute (in terms of both income and assets as to
qualify for public assistance, doesn’t want people becoming a “public
charge)
e. Courts are often reluctant to enforce rules about spouses’ behavior during
marriage, often finding that such attempts conflict with other public policies
f. A premarital agreement may not affect a court’s ability to determine child custody
or support (it concerns a third party)
Licensure and Solemnization
1. Overview
a. States generally require 2 procedural things to create a valid marriage
i. License
ii. Solemnization
b. A license gives public notice of marriage
i. It also assures that legal prerequisites of marriage have been met
ii. Underscores that marriage is civil and the power belongs to the state
c. Solemnization (a witness to marriage)
i. A type of formal recognition of a ceremony of marriage
ii. Allow for authentication, verification, and assuredness
iii. Underscores a solemn undertaking (more traditional notion, but still valid)
d. Traditionally, religious personnel are among those who are authorized to
solemnize marriages, but in doing so, they are performing a secular legal function
and constitutional problems may arise if certain accommodations or privileges are
afforded to certain individuals
e. The general thrust of American law and public policy is to validate marriages
whenever it is reasonably possible
i. Rarely will lack of solemnization render a marriage void (generally it is
still considered valid)
2. Interstate issues can arise
a. But are also fairly rare
i. Place of celebration rule
1. Marriages that were valid when and where they are celebrated
should be valid everywhere, though at the end of the day, state
make their own determination
b. Recognition of marriages as valid or not may turn on the couple’s connection with
the states’s involved and the state’s relative interests in having their own law
govern the matter
3. Carabetta v. Carabetta
a. Wife is petitioning for divorce, husband argues that there was never a marriage in
the first place because they never received a marriage license prior to
solemnization
i. Once again, a marriage license is required as a procedural component of
the law
ii. However, the court finds that this requirement would not alone, be enough
to void the marriage
1. No specific language to render this marriage void, and the statute
itself never imposes a void requirement
b. Remember, although procedurally required, lack of one isn’t often enough to
warrant a void because public policy principles generally favor recognition of
marriage rather broadly (except for in cases of clear fraud/duress/illegality)
4. Indiana Specifically
a. Under Indiana Marriage law, a marriage is “void without legal proceedings,” in
only three circumstances
i. It either party had a spouse who was living at the time the marriage was
solemnized (married to somebody else)
ii. If the parties are more closely related than the law allows
iii. Or, if its common law marriage after 1958
b. Marriages are voidable WITH judicial proceedings in Indiana under two
circumstances: (Would need to be brought by a party and found voidable)
i. Where a party was incapable of contracting to marriage due to age or
mental incompetency
ii. Or where the marriage was procured through fraud by one of the parties
5. MacDougall v. Levick (virginia case)
a. A couple who is married without a license but eventually obtain the license
several days after marriage
b. “public policy is uphold he validity of the marriage status as for the best interests
of society, except where marriage is prohibited between certain persons
i. COURTS WILL BE GENERALLY BE PRETTY LENIENT TOWARDS
MARITAL VALIDATION WHENEVER POSSIBLE—even when
statutes specifically require certain licensing standards
6. Pinkhasov v. Petocz
a. Couple obtains fraudulent marriage purposefully, only holding a religious
ceremony by consciously forgoing license to maintain ability to marry others for
citizenship
i. Court states that no marriage was formed. “Requirements of both licensing
and solemnization are inviolable for valid marriage to exist
b. While the presumption of a legally valid civil marriage is one of the strongest
presumptions known in the law, it may be indulged only so long as there is no
substantial evidence
7. The “Place of Celebration” Rule
a. Not binding, but a concept that courts will generally uphold
b. In re Dalip Singh Bir's Estate
i. Decedent married two wives in India, where this was legal. He later
moved to Cali. (wives did not join him) and later died. The wives petition
jointly for the money in his estate
1. California law says a foreign marriage, if valid where celebrated, is
valid in CA. However CA law also strictly prohibits bigamy this
trial courts says only the first marriage can be recognized
2. Court of appeals reverses. CA’s public policy against bigamy is
not implicated by dividing money equally between wives,
particularly because there is no contest between them and they are
the only interested parties
ii. In re May’s Estaste
1. Decedent and her uncle were legal residents of New York, but they
went briefly to Rhode Island, where they were legally married by a
Rabbi
a. They had 6 children, and lived in NY for 32 years, until her
death
b. Rhode island law generally forbade marriage between
uncle and nieces, but provided and exception for Jews
who’s religious practices allowed such a marriage
i. New York law prohibited such marriages and
provided criminal penalties for solemnizing them
ii. Defaulted however to place of celebration rule in
favor of general presumption of marriage validity
iii. “Where such marriage is valid, the statute’s
scope should be extended by judicial
construction”
iv. Because the marriage was valid where it was
celebrated (Rhode Island) it was legally recognized
as valid in New York (however the court is not
bound to do this and just elected to
c. McPeek v. McCardle
i. Couple obtained (but apparently never filed) in Indiana, but go to Ohio to
have the ceremony
1. Both before and after marriage, couple lived in Ohio
2. Wife dies intestate and family farm becomes contested between
surviving husband and daughters
3. Court determines that Indiana should recognize the marriage
as valid even if it were invalid in the place of solemnization
a. Basic principle of recognizing a marriage even where
invalid where contracted is protection of the justified
expectation of the parties
8. Takeaways
a. Different states have different approaches
i. Generally, equities (fairness) of a case will be the deciding factors
ii. However, states deference to legislature could prove controlling
depending on the region or state
1. This is variable and inconsistent, turning on good arguments on
stringent statutes
iii. Really no consistent or controlling law on the approach
Solemnization
1. Solemnization
a. The celebration of the marriage or rites by personal appearance together
b. One not need to be a rocket scientist to properly solemnize a wedding, but states
have always treated the power to officiate as a grant of trust and circumscribed the
universe of individuals who merit it
2. Center for Inquiry, Inc v. Marion Circuit Court
a. A secular humanist organization brings suit against Marion Circuit court
seeking injunction against Indiana law that criminalized unauthorized
parties from solemnizing a marriage
i. Statute does grant authority to a number of other religious sects
specifically, those who have clergy
ii. Center for Inquiry claim this violates neutrality principle by advantaging
certain religious groups and disadvantaging similar belief systems and by
violating equal protection laws of the 14th amendment
b. Despite being secular, humanist groups’ beliefs play the same instrumental role in
their lives
3. States require solemnization, but there is virtually no gatekeeping to his role
a. Very easy
b. Can be done online
c. No explicit steps or rules for solemnization to count
4. If an organization calls itself a church and complies with legal and tax requirements, the
First Amendment’s religion clauses generally prohibit government or courts from second
guessing what is and is not a “legitimate” set of religious beliefs
a. “members of the clergy” can fit this distinction
5. Takeaways
a. States require both license and solemnization to create a legally valid marriage
i. Details are set out in state statutes
b. State case law varies about the effect on marriage when license is missing (be sure
to understand the facts and the reasoning in cases we considered)
c. Strong bias in American law and public policy to validate marriages
whenever possible, and its rare for courts to declare a non-licensed wedding
as being invalid despite statutory requirements
d. Legal issues may continue to arise around issues of religious liberty and
discrimination in who may solemnize a wedding
Substantive Requirements of Marriage/Constitutional Limits on State Power to Regulate
Marriage
1. Overview: The Constitutional Right to Marry
a. State laws defined who may marry and under what conditions
b. But the US Supreme Court has declared a constitutional “right to marry” and has
invalidated certain state restrictions
2. Where does this “right to marry” actually come from in the Constitution? Has the Court
provided a solid, persuasive framework?
a. 14th amendment pricinples
i. Due process and equal protection clauses are the relevant clauses
ii. Due process protects a zone of personal liberty, autonomy, and privacy
around certain intimate and personal choices central to dignity and
autonomy
3. Baseline Standard of review for marriage is “rational basis”
a. Can the government articulate some legitimate interest that’s served by the
law/regulation?
4. However, when the law discriminates on the basis of race, sex, or deny anyone a
fundamental right, the law is subject to a heightened level of scrutiny
a. A critical examination
5. The Supreme Court has said that there is a Constitutional right to marry, but what can this
possible mean?
a. Despite being a fundamental right there are still a bevy of restrictions and
prohibitions
i. Can’t marry animals, immediate family members, multiple people
(polygamy)
1. Although it is a fundamental right (due process concept) there are
limiting ideas and principles
6. Mclaughlin v. Florida
a. Supreme Court strikes down a FL law that effectively made interracial
cohabitation a crime
i. Although marriage was not at issue here, the reasoning and approach
certainly laid a foundation for future decisions
1. Applies strict scrutiny (racial disparity)
7. Loving v. Virginia
a. Law in question prohibited interracial marriages, but was more concerned with
preserving “racial purity” of white race, rather than interracial marriage in general
i. Court correctly identifies that this law is fueled by White Supremacy and
is founded upon racist roots
1. Despite totally equal application of the law towards blacks and
whites, the invidious purpose and racist origin makes this a
violation of equal protection
a. (State really tries to squirm out of this by saying they apply
the law equally)
b. Court applies strict scrutiny in this case, and finds that the central purpose of the
law is repugnant to the Constitution
i. Court also invokes the due process clause and concludes that marriage
is by nature a fundamental right and freedom and cannot be deprived
without due process of law
c. This case is seminal in both marriage and equality law
i. But how broadly can this right to marriage be read?
8. Between Loving and Zablocki
a. The court has been busy in this area of the Constiution, expanding the field
i. Boddie v. Connecticut
1. Supreme Court strikes down excessive divorce filing fees for
indigent because they implicate the right to marry. The court later
upheld the constitutionally of filing fees in other contexts
(bankruptcy, welfare appeals) because those didn’t implicate the
fundamental right to marry
9. Zablocki v. Redhail
a. Provides, other than Loving and Obergefell, the most extended discussion of the
right to marry
b. At issue is the constitutionality of Wisconsin state law that denies the granting of
a marriage license to parents who are failing to meet child support obligations
(dead-beat father statute)
i. State argues that the government’s purpose is to ensure compliance
with child support payments, and prevent future public charges in the
case of future children
1. At root, their major concern is welfare of children
c. Although the regulation possesses a “legitimate” state interest (child welfare,
marriage support obligations)
i. Generally, this type of regulation would received rational basis review
ii. HOWEVER, because marriage has been classified and elevated to the
status of a fundamental right, the court elects to apply a heightened
level
d. The court’s critical examination (a form of heightened scrutiny) necessitate that a
state interest/regulation must be sufficiently important state interest, and
that it is closely tailored to effectuate only those interests
i. It is applied because at issue is state regulation seeks to interfere with a
fundamental right (WHICH IS INHERENTLY SUSPECT)
e. This a substantial interference, rather than a smaller, more reasonable incremental
regulatory measures
i. Main concern is that this law doesn’t actually accomplish or further the
objective the government it exists for
1. It just serves a punishment for not meeting support obligations
a. But does nothing to actually encourage or induce a
payment
b. The preventing more children also makes little sense
because it doesn’t actuall prevent that, it would just make
those new children born out of wedlock (something that
explicitly goes against public policy)
f. Zablocki is the most doctrinal of the court’s marriage cases (why it is due
process/equal protection)
i. The “right to marry” is anchored in the 14th amendment due process
clause. But when it is denied to a class of persons, the court shifts to equal
protection
ii. Because a fundamental right is at stake, the reason for prohibiting
marriage must be given “critical examination” to see if it accomplishes the
interests asserted by the state
1. The Court differentiates between reasonable regulation and laws
that “interfere with decisions to enter into a marital relationship.”
Only the latter would get critical examination. But is this line so
easily drawn?
10. Turner v. Safely
a. Missouri Regulation necessitates that inmates receive permission prison
superintendent to marry
i. Really on pregnancy or birth serves as a compelling reason the
superintendent
b. Court considers this regulation as being over paternal and a violation of due
process and equal protection
i. Marriage remains a fundamental right
ii. Prisoners even still benefit from the institution of marriage and can still be
found to fulfill a marriage
iii. Right to marry isn’t completely unrestrained, but it cannot take the form of
a complete ban on inmate marriage
1. Government’s asserted reasoned for prohibiting marriage (violent
love triangles and female rehabilitation are not furthered by the
ban)
Restrictions on Marriage
1. Incest
a. These laws prohibit marriage between relationships based on consanguinity
(bloodlines) or affinity (legal relationships due to marriage/adoption)
b. In Re Adoption of M
i. Attempting to annul (void) an adoption order in order to allow adoptive
daughter and father to marry (after adopted daughters bares his child)
2.
3.
4.
5.
6.
7.
8.
ii. During adoption, generally preexisting birth-parents rights are terminated
upon a final judgment
1. Destroying or annulling this type of relationship is generally very,
very difficult
c. Here though the court, applying a best interests of the adoptive child (daughter in
this case) rule comes to the conclusion that it would be in the best interest of the
daughter to dissolve the adoptive relationship
i. Allows her to marry her child’s father
ii. Helps remove possible stigma
iii. Grant other benefits of marriage and lineage
iv. “damage done” essentially (they already had a sexual relationship, not
dissolving doesn’t actually stop anything)
d. For the above to happen the facts and circumstances generally need to be very
egregious or extreme
Israel v. Allen
a. Holds that it is illogical to prohibit marriage between adopted brother and sister
i. No natural repugnance in terms of physical detriments towards offspring
ii. Affinity doesn’t hold the same problems
Bigamy
a. A marriage to more than one person, though not a plural marriage
Polygamy
a. Man married to more than one wife, no marital bond between the wives
Polyandry
a. Women married to more than one husband, no marital between men
Polyamorous
a. Plural relationship where everyone engaged possesses a type of marital/special
bond
Reynolds v. United States
a. George Reynolds, an official of the Mormon church, was prosecuted for violating
the federal Morrill Act, which outlawed bigamy in federal territories, including
the Utah territory
b. Reynolds claims that this prohibition on bigamy was a massive violation of
religion
c. Strictly prohibited plural marriages
i. Religious doctrines are not untouchable or beyond the reach of regulation
ii. Laws of general neutral application—even if they infringe religious
practice—are not unconstitutional
Collier v. Fox
a. Nathan and Vicky Collier are legally married
i. But Nathan is also in a consensual and informed relationship with
Christine
ii. Vicky and Christine want to both be married to Nathan
1. Essentially, they are seeking legal recognition
iii. Civil claim over statute is denied primarily by precedential value of
Reynolds v. United States
1. Takeaway: Although there is a fundamental right to marry, bigamy
is under the control and regulation of the law
2. So long as Reynolds exists, no constitutional right to bigmy can
exist (up to the State still/States are able to regulate bigamy as they
see fit)
9. Other restrictions
a. Age requirements
i. Most states have a minimum age for marriage
1. Sometimes these restrictions differ (parental authority, extreme
circumstances
ii. Kirkpatrick v. District Court
1. Couple get divorced and is awarded joint legal custody of 15 year
old daughter
2. Daughter voices desire to marry 48 year old guitar teacher
3. They cannot marry in their home states (New Mexico, barring
specific circumstances) but can in Nevada (Nev. Makes exceptions
for those under 16 that have parental consent)
a. Mother does consent btw
4. Father doesn’t like this and files for a restraining order
a. Nevada grants but then revokes because of her automatic
emancipation upon marriage (which the court recognizes)
5. Father petitions the court once again to annul the marriage, and
evokes his fundamental right to exert care, custody, and control
over his child
a. Claims that consent of both parents is required
6. Court makes it clear that the constitutional right to marry is
extended to even children—however—because she is a minor, it
can be limited somewhat (IN THIS CASE, IS IT LIMITED BY
PARENTAL CONSENT)
7. Court finds that two parent consent is an “oddity”
a. No constitutional requirement for both parents’ consent
b. Fraud or Duress
i. Fraud or duress makes a marriage voidable, but not void from the
beginning
ii. Allegations of fraud or proof of fraud does not automatically void a
marriage
c. Fraud offends notions of contract law and consent
i. Want parties to be fully aware and honest when entering into a marriage
ii. Courts are generally pretty demanding upon evidentiary requirements
d. Traditionally, a marriage was made voidable by fraud between the parties, e..g,
one party fraudulently induced the other into marrying
i. Courts in most jurisdictions have determined that concealment of a prior
marriage is not amount to an inducement on behalf of fraud
ii. Fraud by one of the parties must be essential to the marriage relationship,
NOT MERELY a character foible, or moral deficiency (concealment of a
previous marriage for example is not considered inducement or fraud)
1. Additionally, fraud by one of the parties character, morality,
habits, wealth, or social position is generally insufficient to void a
marriage
2. Getting a finding of fraud is pretty difficult IT IS A VERY
STRICT STANDARD
3. Of course, this will vary by state
iii. Can fraud by both parties against the government also be ground for
annulling a marriage
1. Parties participated in a sham marriage
2. Met procedural requirements, but never meant to be married in
practice (immigration purposes)
a. YES, the public policy for marriage is to encourage and
protect it
b. A sham marriage has an illegal purpose and is thus
voidable, offending traditional notions of marriage
Constitutional Rights to Marriage/Substantive Restrictions on State Regulation
1. Obergefell v. Hodges background
a. “From Outlaws to Inlaws”
i. Change of public perception and social meaning of what it means to be
gay
2. Marriage Equality Timeline of Major Events
a. 1972: USSC dismisses challenge to state anti-gay marriage laws because it does
not present a “substantial federal question”
b. 1993: a ruling by the Hawaii Supreme Court creates the possibility that legal
same-sex marriages might begin in that state
c. 1996: Congress passes DOMA
d. From the mid 1990’s and through the 2000’s: more than 30 states enact statutory
or state constitutional bans on same sex marriage
e. 2004: Massachusetts is first state to legalize same sex marriage
f. 2010: The first federal court invalidates a state anti-marriage law (in CA)
g. 2013: United States v. Windsor strikes down DOMA as violation equal protection
laws
h. 2015: Obergefell v. Hodges: strikes down remaining restrictions
3. Reciprocal Natures of Public Sentiment and Supreme Court Decisions
a. They influence one another and shape social attitudes
i. Neither happen independently nor are they completely isolated
4. United States v. Windsor
a. First case that gets to the supreme court related to same-sex marriage
i. Was concerned with the constitutionality of DOMA
ii. DOMA prohibited and federal recognition of same-sex marriage (didn’t
prevent states from recognizing same sex marriage themselves)
iii. DOMA was defeated and struck down as a violation of Equal Protection
1. DOMA’s official legislative history said, “the effort to redefine
marriage to extend to homosexual couples is a truly radical
proposal that would fundamentally alter the institution of
marriage” and that DOMA was intended to express “both moral
disapproval of homosexuality, and a moral convictions that
heterosexuality better comports with traditional (especially
judeochrisitan) morality
2. Doctrinally, Windsor is best understood as the latest in the
Supreme Court line of Equal Protection cases where laws can fail
based on their “animus” towards a particular group
iv. Here, DOMA’s avowed purpose and practical effect are to impose a
disadvantage, a separate status, and so a stigma upon all who enter into
same-sex marriage made lawful by the unquestioned authority of the
States
v. DOMA’s history of enactment and its own text demonstrate that
interference with the equal dignity of same-sex marriages, conferred by
the States in the exercise of their sovereign power, was more than an
incidential effect of the federal statute. IT was its essence
5. Obergefell v. Hodges
a. Obergefell is an example of a constitutional dialogue between the Supreme Court
and the larger culture
i. Ultimately, the Court never gets too far out or too far behind public
perception
ii. Sometimes they do, but often have their finger on the pulse of society
b. “Changed understanding of marriage” are characteristic of a Nation where new
dimensions of freedom become apparent to new generations, often thiorugh
perspectives that begin in pleas and protests and then are considered in the
political sphere and the judicial process
c. The large number of federal and state judicial opinions addressing marriage
equality by the time Obergefell reflected “the more general, societal discussion of
same-sex marriage and its meaning that has occurred over the past decades”
d. You know Obergefell brother, use it
6. Masterpiece Cake Ship
a. Business cannot discriminate on the basis of sexuality, race, etc
i. Owner denies same-sex couple to sell a wedding cake
7. Pavan v. Smith
a. Woman has a baby that is born to her, and is in a same-sex marriage
b. State refuses to put the name of her wife on the birth certificate
i. State law says that it puts the name of the biological father on the
certificate
ii. Exception for couples who use artificial insemination and will put the
husbands name, despite possessing no biological connection the child
c. State argues that birth certificates are simply a device used for biological record
i. Court points to exception for non-biological fathers, and that this is
denying same-sex couples the same rights seemingly on the basis of their
same-sex nature
d. Court points towards Obergefell and the fundamental right that marriage entrails
and that same-sex couples are entitled to the same rights, benefits, and obligations
as straight couples
e. Not about the right to get married, but the rights that persist and emanate
from marriage
i. E.g. equality in marriage is not just getting married but also all the rights
that come with marriage and are a result of marriage
8. In Re of Marriage of Kristy Gardenour v. Denis Blondelie
a. “Is California same-sex “registered domestic partnership” an Indiana marriage?
i. YES
1. Before same-sex marriage was legal in California, the state created
the registered domestic partnership,” which was intended to
provide same-sex coupels with all the same state level benefits and
obligations of marriage just by a different name
2. CA law made it clear that an RDP (registered domestic
partnership) is identical to marriage / by not recognizing CA’s
RDP’s as the equivalent of marriage, it would allow individuals to
escape certain obligations CA imposes upon domestic partners,
namely in respect to children
ii. Decide to recognize RDP’s because it would be against public policy by
allowing a spouse to escape child responsibilities and obligations simply
by crossing state lines
9. Some key takeaways on Substantive restictiosn on the Right to Marry
a. The Constitutional doctrine of “the right to marry” was announced in loving and
developed in Zablocki, Turner, and Obergefell. Its roots are in the 14th
amendment’s due process protections for liberty and autonomy
b. The court has referred to Equal protection analysis to evaluate state justifications
for barring particular groups (e.g. parents behind on child support; gays and
lesbians) from marrying. The court has used explicitly or implicitly, a strong,
“critical examination” form of judicial review
c. However, certain restrictions on marriage—e.g. license requirements, age limites,
fraud, incest, bigamy) haven’t been subject to serious challenge, because the
state’s interest seems strong. They might only get low-level “rational basis”
review or (as in Kirkpatrick) a sort of balancing test
Common Law Marriage
1. Not a huge thing, but good to know.
a. A less formal marriage that doesn’t have license or ceremony
i. Still entitled to divorce, all benefits and rights
ii. Trouble is tetling when they actually exist
b. Some state still allow it, although this is not typical or the norm
i. Certain elements need to be met however
1. Generally need to be publically known (hold themselves out)
2. Need to demonstrate an intent by the parties to be married
2. Indiana Law
a. A marriage is void if it’s a common law marriage after 1958
3. Traditionally 4 Elements for common law marriage
a. Capacity to enter common law marriage (age, mental status, no fraud)
b. Present agreement to be married
c. Cohabitation
d. Holding yourself out to be husband and wife
Some Common Government Provided “Incidents of Marriage” (benefits/effects)
1. State
a. Duty of support during marriage; doctrine of necessaries
b. Access to orderly divorce proceedings, including equitable distribution of marital
assets and debts, and possibly alimony/spousal support
c. Inheritance and survivorship rights
d. Next-of-kin rights
e. Marital evidentiary privileges
f. Paternity presumption
2. Federal
a. Inheritability of pension and social security benefits
b. Taxes (filing status, deductions, exclusions)
c. Zoning preferences
d. Immigration benefits/preferences
3. Ownership and Control of Property During Marriage
a. “Common law” system: property and assets are separately owned and controlled,
whether acquired before or during marriage, except where joint assets are used or
the spouses agree it is marital property
b. “Community property” system: Each spouse has an equal interest in property
and assets acquired during marriage by the efforts of either spouse
i. These rules cover who owns and controls what during marriage. At
divorce, even common-law states may see everything acquired during
marriage as “marital property” subject to equitable division
4. Spousal Support (in this case literal support, NOT alimony)
a. Common law inherited a series of practices and beliefs about allocation of
property and spousal support
i. Often gender based roles of husband and support
1. Blackstone: “women is under the wing, cover, and protection of
husband”
ii. Now, gender-based inequities have largely been abolished, but spousal
support still exists
b. What is the duty of Spousal Support Today?
i. How are we to tell when a spouse is adequately performing his or her duty
of support during marriage
1. Has become more theoretical than real
c. Doctrine of Necessaries
i. Under the common law, if a husband refused to supply his wife with
“necessaries,” she was authorized to purchase them on his credit, making
him liable to the supplier for their costs
ii. The doctrine was designed to serve not as a free-standing cause of action
for wives, but as a self-help remedy
iii. This circuitous approach stemmed from difficulties in fashioning a private
remedy for spousal non-support in a legal system which forbade a wife to
maintain a lawsuit against her husband
iv. In time, the common law developed the doctrine as a mechanism by which
the idea of spousal support court be enforced
v. Today, where the doctrine is applied, it must be gender neutral to comply
with constitutional equal protection
1. What counts as a “necessary”
a. Food, clothing, shelter, medical care are common examples
i. All of which are deemed pivotal, important, and
necessary to live
d. Sharpe Furniture v. Buckstaff
i. Wife goes furniture shopping, signs in her own name for special order of a
custom made sofa
1. Sofa was delivered, but no payments were ever made
2. The store sues the couple for payment
ii. Doctrine of necessaries “traditionally required the creditor to show that he
supplied to the wife was an item that was, in fact, a necessary and that the
defendant had previously failed or refused to provide his wife with this
item.” It arises not from principles of agency, but from husband’s legal
duty to support his wife.
1. It creates a contract implied in law
iii. In this case, the expensive sofa was a legally necessary item.
1. The family are a prominent family and their socio-economic
standing justifies a finding that the sofa at issue here was a suitable
and proper item for their household.”
a. Thus, the husband was liable
5. Barton v. Adjustment Bureau
a. Indiana takes a more limited/narrow view of necessaries
b. Lawsuit to recover medical expenses incurred by spouse
i. The objective of Indiana’s marital duty of support is to protect
dependent spouses and ensure, “their continued sustenance”
ii. Indiana Supreme Court frames the doctrine of necessaries in this way:
1. Each spouse is primarily liable for his or her independent debts.
(Remember, Indiana follows common law rules about property
(and debts) during marriage)
2. When, however, there is a shortfall between a dependent spouse’s
necessary expenses and separate funds, the law will impose limited
secondary liability upon the financially superior spouse by means
of the doctrine of necessaries
3. We characterize the liability as “limited” because its outer
boundaries are marked by the financially superior spouse’s ability
to pay at the time the debt was incurred. It is ‘secondary’ in the
sense that it exists only to the extent that the debtor spouse is
unable to satisfy his or her own personal needs or obligations
iii. Some states have abolished the doctrine of necessaries Emanuel v.
McGruff (Ala. 1992)
• Medical creditors sued late husband’s estate to pay deceased wife’s
medical bills.
• Decisions had previously recognized that a husband “owes the
duty of furnishing his wife with necessaries, including medical
and hospital treatment for her cure and comfort comporting
with his station in life.”
iv. Held: “The doctrine of necessaries creates a gender-based
classification that is not substantially related to serving important
governmental interests. The doctrine denies husbands equal
protection of the law, and therefore is unconstitutional.”
1. Should the doctrine of necessaries simply be made genderneutral? “This is a question that must be deferred to the
legislature; the legislature can decide for the future whether the
doctrine of necessaries shall be applied to both spouses or to
neither spouse.
6. Epstein v. Epstein
a. Wife initiates divorce proceeding
i. Wife alleges that husband was guilty of infidelity
b. Background
i. There used to be fault-based divorce (such as proving adultery)
ii. Now, there is no-fault based divorce, however in this case shewas no
saying that specifically to get the divorce, merely that by proving marital
fault, she will improve her settlement
iii. Wife has installed some type of spyware on his email correspondence and
attempts to use this wire-tap as evidence of guilty
iv. Husband learns of this “wire-tapping” (a civil cause of action) and
counter-claims for the invasion of privacy from the wire-tap
c. Traditional (old) law used to bar spouses from suing one another based on
the principle of a husband and wife being a single legal entity (can’t sue
yourself)
i. NOW, this option has opened but is still relatively narrow
ii. View of marriage has changed (instead of being a single entity) they are
now seen as more of a partnership of two individuals
7. Interspousal Tort Immunity
a. Brooks v. Robinson
i. Issue: Should one spouse be allowed to maintain a tort action (for injuries
from a car accident) against the other spouse?
1. Previous reasoning doesn’t carry much weight (single entity no
longer good reasoning)
2. Additionally, the chief reason relied upon by the courts to disallow
spousal suits is tha the personal tort action would disrupt and
destroy the peace and harmony of the home which is against public
policy
i. This of course assumes that after the sort of conduct
that results in a tort action (battery, abuse) that there
is any marital harmony left to preserve
b. One reason for preventing law suits between spouses is the
possibility of fraud and collusion
c. Of course, the courts already have safeguards in place to
prevent this type of problem
d. Court elects to abolish interspousal tort immunity in light
of contemporary society and changed understandings of
marriage
8. Marital Communications Privilege
a. Typically, applies in both civil and criminal proceedings. Details vary by state
b. Begins at marriage (i.e. does not apply to communications before marriage) but
generally survives divorce
c. Under federal law, either witness-spouse or party-spouse may invoke the
privilege, operation once again varies by state
d. It can be waived, it is not absolute
e. Usually cannot be claimed in certain situations e.g. where one spouse is
prosecuted for crimes against the other or their children
f. Presence of a third persons at the time of the communication usually destroys the
privilege, though courts have granted exceptions for the presence of children
9. Spousal Adverse-Testimony Privilege
a. Usually only applies to criminal proceedings
i. Prevents any adverse testimony by a current spouse about:
1. Acts, or about
2. Communications in the presence of third parties (and thus not
covered by the communications privilege)
3. Not absolute, can be waived
4. In federal courts after Trammel, it can be invoked by the witnessspouse, but the party-spouse may not use it to prevnt testimony of
a willing witness spouse
5. State evidence laws vary
10. State v. Gutierrez (murderous husband case)
a. Spousal confidential communication was founded on sentiments of the natural
repugnance of forcing spouses to testify against one another
i. Public policy and public good is promoted by the open and harmonious
confidences symbolized by marriage
ii. Viewed it as confidential information in an effort to promote harmony and
sanctity
b. Wife in this case was privy to private communications in which Gutierrez
confessed to the murder of his first wifes uncle for molesting her as a child
i. However, the New Mexico court in this case doesn’t find those sentiments
that compelling
1. Most people are not even aware that the privilege exists
2. Even if they know, most communications made during marriage
are premised on the foundation of confidentiality
3. Disparate gender impact (women, often the sufferers of abuse,
would be barred from testifying)
a. In that a women’s legal personality was subsumed by
Husbands
4. Truth seeking function of the courts is dimimshed for amounts to
very little or unnecessary protection (balancing test)
Non-marital/Non-traditional Relationships
1. Households are increasingly becoming populated by nonmarried individuals
a. People are cohabitating without getting married
b. Family law in response must adjust in order to encompass and protect the interests
of what were originally considered “non-traditional” (non-nuclear) families
2. Belle Terre v. Boraas
a. Basically a case that states that it is legitimate to use the police power to regulated
and control how certain places and zoning ordinances are enforced.
i. More people=more problems
1. more traffic
2. Less parking/crowded streets
3. More noise
ii. Land-use regulations are a permissible state interest
1. “The police power is not confined to elimination of filth,
stench, and unhealthy places. It is ample to lay out zones where
family values, youth values, and the blessings of quiet seclusion
and clean air make the area a sanctuary for people.”
iii. The idea with this case and related cases is to analyze why a city or state
must look to regulate what kind of families live in certain locations and
whether restrictions are permissible
3. U.S. Department of Agriculture v. Moreno
a. Food Stamp Act is at issue (purpose of act is to aid low-income families to pay for
food)(Subsidization)
i. Amendment is instated that would alter the definition of “household” so
that it only includes groups of related individuals.
ii. This unduly removes a great deal many of different households
compositions (prioritizes family relationships while disadvantaging those
living together and not related)
iii. Eventually becomes a question of 5th amendment equal protection
(Remember federal, so 14th (which applies to states) is not used here)
iv. Notedly, this creates a classification between similarly situated
individuals which discriminates unduly
1. Does so without rational relation to a legitimate government
interest
v. Specifically, the Court takes notice that this specific amendment to the
Food Stamp Act had Congressional intent to target hippie communes from
taking advantage of food stamps, despite framing it as an anti-fraud
measure
1. BUT the Court states that a bare Congressional desire to harm
politically unpopular groups CANNOT be a legitimate purpose
of the law
vi. Court points out that allowing a greater number of people to benefit from
food stamps, specifically when it comes to multi-faceted households is
charitable and necessary for many of these impoverished people to survive
4. Moore v. City of East Cleveland
a. Zoning ordinance limited occupancy of a “dwelling unit” to members of a single
family
i. The ordinance itself contained an unusual and complicated definition of
“family” which only creates a few categories of related individuals
ii. The ordinance also criminalized “living with an illegal occupant”
b. Moore was arrested and fined by city for living with both her son and his child,
along with her deceased daughter’s son (therefore meaning that the children living
together were cousins, not brothers)
c. Government asserted a series of rationales for such strict zoning rules
i. Prevents overcrowding
ii. Parking
iii. Minimizing traffic
iv. Reducing the burden on the Cleveland School Systems
1. HOWEVER, while the Court finds that these interests are
legitimate, they are only marginally served by the supposed
justifications
v. This is considered a substantive due process case, in which the Court
admonishes the zoning ordinance and enshrines the family within a
zone of privacy that cannot easily be intruded upon
d. Court finds that there are intimate choices and decision making that goes on when
deciding to raise and house a family
i. Sanctity of the family should be protected
1. The definition of family specifically CANNOT be limited to
purely a NUCLEAR family
2. Constitutional places strict limits on governments ability to “rule
out” or control family makeup and composition
e. MOST NOTABLY: CREATES A ZONE OF PRIVACY AROUND THE
FAMILY HOUSHOLD THAT THE GOVERNMENT CANNOT INTRUDE
LIGHTLY
i. There is simply to big of an interference to be considered a valid exercise
of state power
Unmarried Couples Rights Inter Se
1. Cohabitation prior to marriage was at one point a crime, and was strongly discouraged by
both law and society
a. It has quickly increased and has become very prevalent
2. Marvin v. Marvin
a. Should an agreement between two cohabitating people be enforced despite never
being “lawfully married”
b. Gave rise to the term of “palimony” (an informal way of referring to unmarried
support payments)
3. Marvin’s impact
a. In the decades since Marvin, state courts have recognized various forms of legal
obligation
i. Express contracts
1. Written
2. Oral
ii. Implied contracts
1. These derived form (are implied by) the actions, conduct or
circumstances of the parties. They are intended to vindicate
justified expectations and prevent “unjust enrichment.”
b. While most state recognize one or more of these forms of obligation, their specific
law varies
c. Allegations of an express or implied agreement concerning property/asset division
of support obligations are evaluated under ordinary contract principles. They are
questions of fact, based on evidence, for a fact-finder
4. Obligations that can arise from cohabitation
a. Turner v. Freed (Indiana case)
i. Boyfriend (Turner) and girlfriend (Freed) lived together for 10 years.
ii. After a breakup, GF sues BF on a theory of unjust enrichment. Trial court
awarded her 18,000. Court of appeals affirms
1. Court reasons that the relationship provided a home, resources, and
financial security to GF for a number of years. But BF also
received modest benefit from food, clothing, and other
financial contributions made by GF, and he received
substantial benefit from her homemaking and housekeeping
responsibilities, allowing him to spend time growing his small
business
2. The, court finds, BF would be unjustly enriched if (GF) were
awarded no part of the value of the assets BF acquired in his
name alone, and which drew in value, during their cohabitation
b. Putz v. Allie (Another Indiana case)
i. After their 11-year cohabitation ended, coupled entered into a written
settlement agreement under which Putz would pay Allie 40K over six
years as a way of dividing their jointly acquired property
1. Allied had rendered services in Putz’s jewelry store for three to
five days per week, over 4 to 5 years, without receiving a paycheck
ii. Putz then tried to back out, claiming it was an unenforceable “palimony
agreement” and rested upon no consideration other than the parties’
relationship
1. Indiana courts have recognized that it is in the best interests of the
public not to unnecessarily restrict person’s freedom to contract
a. In earlier case, the court had held, “that a party who
cohabitates with another without subsequent marriage is
entitled to relief upon a showing of an express contract or a
viable equitable theory such as an implied contract or
unjust enrichment.”
b. Here, the contract must be enforced. Moreover, this was a
contract for “palimony” because, unlike Marvin, there were
no ongoing support or maintenance payments involved
5. Hewitt v. Hewitt
a. Finds in the opposite as the cases above
i. Couple never marries but has three children
ii. Women basically occupied total domestic space for benefits of man’s
paycheck/financial assets
iii. The court here basically refused to recognize marriage-like rights and
benefits without an actual marriage and will not uphold an unmarried
contract
6. Blumenthal v. Brewer
a. Court upholds ruling and policies in Hewitt
b. Find that current judicial and legislative trend is to uphold and bolster the
importance of marriage
i. Weaponize Obergefell to strengthen the importance of marriage and use it
as a reason to refute argument that marriage is changing and is not as
important as it once was (ironically)
1. The court is far more deferential to legislature and doesn’t want to
rob legislature of the duty to decide social issues
a. “not our job to create innovations about which is the
domain of the legislature”
7. Unrelated Persons as Families—Some Takeaways
a. These cases give us a chance to thing critically about how the government should
decided what kinds of relationships will be legally recognized and protected
b. The Supreme Court has warned that local governments may not “standardize”
children and adults “by forcing all to live in certain narrowly defined family
patters” (Moore), but this is more a principle than a rule with clear boundaries
(Remember, Moore involved blood relatives still)
c. While state and local governments are free to define family broadly if they
choose, there is no constitutional right to form a legally recognize family who are
not related by blood, marriage, or adoption (Belle Terre Case)
d. Where adults have cohabitated in marriage-like relationships, most states are open
to claims based on common law principles (such as implied contract or unjust
enrichment) to allow division of property and assets)
Substantive Due Process
1. Substantive Due process (SDP) is a method of identifying certain unenumerated rights
that the Supreme Court has found
a. These considerations are derived from the 14th amendment
i. Many unenumerated rights have sprung forth from the language of the 14th
amendment without explicitly listing them
2. SDP is a method of identifying certain unenumerated rights that the Supreme Court
has found entitled to protection because they are encompassed within the meaning
of “liberty” in the due process clause
a. NOTE: The constitution does not merely create or grant rights; it also
protects rights or liberties that are thought to be inherent or natural to
humans
b. Certain laws, in their substance, not their lack of proper procedure can wrongfully
deprive “liberty”, and thus are incompatible with “due process of law”
3. History of SDP and important decisions
a. During the Lochner era (1887 to 1937), the Court primarily used SDP to mostly
protect economic liberties (laissez-faire capitalistic approach)
b. The starting point for modern substantive due process is Griswold’s (1965) “right
of privacy/penumbra” language, later effectively relocated in Roe (1973) to the
Due Process Clause
i. In Planned Parenthood v. Casey, the court says that the Due Process
Clause protects a “realm of personal liberty, protecting “intimate and
personal choices . . . central to personal dignity and autonomy.”
c. SDP: Refresher/Overview
i. In identifying such rights, the Court has said that the nation’s history
and legal traditions are the “starting point BUT not in all cases the
ending point.” (Lawrence v. Texas) The process is also informed by
new knowledge, evolving national values, and “reasoned judgment in
identifying interests of the person so fundamental that the State must
accord them its respect
ii. When government is alleged to infringe such a right, the law receives a
heightened, more demanding judicial review than deferential rational
basis review, though the level has varied by issue and case
1. SDP remains controversial because it involves the Supreme Court
relying on the Justice’s own understandings of “liberty”,
sometimes invalidating laws made by elected legislatures
a. These decisions can be counter-majoritarian (a function not
a bug)
b. Some rights are so fundamental that they cannot be left to
the whim of legislative majorities
i. The court’s review using substantive due process
protects these rights
4. Meyers v. Nebraska
a. Teacher who taught German in school was criminal convicted for such teaching
i. The court decided the case upon privacy grounds and argued that it is the
right of the parents to decide and control their child’s rearing without
substantial hinderance
ii. The decision was from the Lochner Era
1. Court was influenced by protecting people from intrusion for
carrying out their lives as they see fit in terms of contract and
conduct
5. Pierce v. Society of Sisters
a. Sister case to Meyers
i. In this case, a statute mandated that children between the age of 8 and 18
to attend public schools was determined to be unconstitutional by violating
rights of parents to dictate their child’s education
ii. The right of parents to choose how their children are educated is
considered an appropriate private zone of parental discretion that should
remain untouched by governmental intrusion
1. Rights of parents to control upbringing and education of their
children
6. Griswold v. Connecticut
a. Mostly concerned with the use and distribution of contraceptives, specifically the
availability of female contraception (the pill, rather than condoms)
i. The pill served as both a powerful agent of liberation and as a divisive
point of contention among more traditional conservatives
b. Statute criminalized both using and providing contraception or providing advice
or counseling about use of contraception
i. The bill of rights protects privacy in other ways
1. 1st amendment right to free association
2. 3rd amendment prevention of quartering troops (privacy of home)
3. 4th amendment protection against illegal search and seizures
4. 5th amendment protection against self-incrimination
ii. All of which protect a broad notion of privacy which can be read to
generate a “penumbra” right, and that this broad protection of privacy by
the various constitutional amendments can help draw inferences and
conclusions to infer rights that are guaranteed generally
1. Somewhat silly, and not super concrete, but is certainly an early
form of substantive due process that he been refined throughout
history
th
7. 9 amendment
a. The enumeration in the Constitution of certain rights shall not be construed to
deny or disparage others retained by the people
i. Essentially, specific enumeration is not exclusive and does not foreclose
the possibility of other fundamental rights existing
8. Since Griswold in 1965, the Supreme Court has found constitutional rights based in
substantive due process related to
a. Abortion (roe, reaffirmed in planned Parenthood v. Casey)
b. Right to marry (Loving, Zablocki, Obergefell)
c. Maintaining family relationships (Moore v. East Cleveland)
d. The parent-child relationships
e. Private set between consenting adults (Lawrence)
9. Tracking the doctrine of SDP
a. Meyer v. Nebraska (1923) & Pierce v. Society of Sisters (1925): parental
control of children’s upbringing and education
b. Griswold .v Connecticut (1965): right of married couples to use contraception
c. Eisenstadt v. Baird (1972): Extends privacy re: contraception to unmarried
individuals (through equal protection)
d. Loving v. Virginia (1965): right to marry; see also Zablocki, Turner
e. Roe v. Wade: (1974): right to reproductive choice
f. Moore v. East Cleveland: (1977): Right of family members to live together
g. Planned Parenthood v. SE Pennsylvania v. Casey (1992): reaffirms roe (though
it alters its framework) and abortion’s place in substantive due process, and
observes “our precedents have respected the private realm of family life which the
state cannot enter.”
h. Troxel v. Granville (2000): reaffirms a string of earlier cases protecting a
parent’s right to care, custody, and control of their child
i. Lawrence v. Texas (2003): Sexual privacy; liberty to engage in intimate
relationships
j. Obergefell v. Hodges (2015): right to marry as applied to same-sex couples
Abortion Cases and Family Law
1. Roe v. Wade (1973)
a. Abortion is a fundamental right, part of the right of privacy first articulated in
Griswold, which the Court now says is rooted in the Due Process Clause
b. Emphasizes the harms women might suffer without this right
c. Declines to decide where life begins, and says a fetus is not a “person” within the
meaning of the 14th amendment
d. Acknowledges compelling interests on the part of states in 1) maternal health and
2) the “potential life” the fetus represents
e. Thus, after the first trimester, states may regulate abortion to protect maternal
health. After the second trimester (then considered the point of viability) states
may, if they wish prohibit abortion altogether
2. Bellotti v. Baird (1979)
a. Holding: Where the pregnant minor goes to her parents and consent is denied, she
still must have recourse to prompt judicial determination of her maturity or best
interests. If the minor satisfies a court that she has attained sufficient maturity to
make a full informed decision, she then is entitled to make her abortion decision
independently
i. Court recognizes that the options facing a minor that is pregnant are much
different than for example, a minor seeking to marry. A minor is not
permitted to marry before the age of majority, simply because her decision
to marry can be postponed. . . the abortion decision cannot be postponed
or it will be default have far-reaching consequences
ii. Moreover, the potentially severe detriment facing a
pregnant woman, see Roe, is not mitigated by her minority.
Indeed, considering her probable education, employment
skills, financial resources, and emotional maturity,
unwanted motherhood may be exceptionally burdensome
for a minor.”
3. Planned Parenthood v. Casey (1992)
a. In Casey, in the court of reaffirming Roe, the Court said the Due Process Clause
protects “a realm of personal liberty” protecting “intimate and personal choice. . .
central to personal dignity and autonomy.”
b. Underscores that reproductive choice fits within the broader modern doctrine of
the due process clause that captures the liberties to make intimate and personal
choices central to personal dignity
c. BUT CASEY ALSO NARROWS THE ABORTION RIGHT
i. Abandons Roe’s trimester framework
1. After viability, a state may still ban abortion entirely, based on its
compelling interest in protecting potential life
a. Roe had pegged viability at 28 weeks, it is currently
thought to be about 24 weeks
d. Casey is now more accommodating than Roe to state interests in discouraging
abortion
i. Before viability, states may regulate and even discourage abortion as long
as such laws do not impose an “undue burden”—that is, as long as their
purpose or effect is not to place a “substantial obstacle in the path of
woman seeking an abortion.”
4. Casey’s undue burden standard
a. Finally, Casey held that a PA law requiring a woman to notify her husband of
her intent to seek an abortion did create an undue burden because of the
possibility that fear or spousal abuse or intimidation might prevent some
women from accessing abortion
5. Whole Women’s Health (2016)
a. Texas passed a law requiring clinics to essentially become “mini-hospitals”
i. The law required
1. Abortion clinic doctors have admitting privileges at a nearby
hospital, and
2. Abortion clinics meet the same standards as ambulatory surgical
centers and upgrade their building, safety, parking, and staffing to
meet hospital like standards
ii. Although the government claims that these requirements are for safety, it
is clear that political purpose is to force abortion clinics out of business
b. In a 5-3 decision, the Court applied the Casey “undue burden” standard to
invalidate the law
i. The law imposed an undue burden because 1) the requirements were not
actually necessary to improve the safety of abortion and would give no
benefit to women, but 2) their result would be a sharp reduction in clinics
and total abortion availability in Texas
ii. WWH makes clear the undue burden standard requires a heightened
scrutiny and an independent review of facts by a court, not the
rational-basis standard which simply accepts the governments
proffered justification without serious question
Same-Sex Couples & the Right to Marry
1. Bowers v. Hardwick (no longer good law, but background for Lawrence)
a. Court discussed all the previous privacy cases in a petition to seek relief from
criminal sodomy laws. The Bowers court finds no connection between family,
marriage, or procreation on one hand, and homosexual sodomy on the other
b. The Court upheld state sodomy bans, and states that proscriptions against sodomy
and homosexuality have historical precedent
2. Lawrence v. Texas
a. Police responded to a weapon discharge claim made by Garner’s jealous
boyfriend and found Lawrence and Garner engaged in a homosexual act (which
was criminalized by Texas statute)
i. Avoiding constitutional challenges to earlier sodomy law (which also
covered heterosexual sodomy acts) by married couples
ii. However, the Texas state law that was enacted specifically showed moral
disapproval of homosexual conduct, and its purpose was for the deterrence
of such immoral sexual activity
b. However, Moral disapproval on its own, without objective harm, is not enough to
justify this type of Statute
i. Clearly this was made with specific animus involving intimate conduct
that is rightfully protected by the zone of privacy and SDP
The Rights of Parents Relating to Children
1. No one case dictates the rules or applicable doctrine (it is varied and inconsistent)
2. One thing is certain:
a. There is a Constitutional Status of the Parent-Child relationship
i. “It is the natural duty of the parents to give his children education suitable
to their station in life.” Meyer v. Nebraska
ii. It is the natural duty of the parent to give his children
education suitable to their station in life.” - Meyer v.
State of Nebraska, 262 U.S. 390 (1923) (striking down
law prohibiting teaching German to a child)
iii. “The child is not the mere creature of the State; those
who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare
him for additional obligations.” - Pierce v. Society of
Sisters, 268 U.S. 510 (1925)
iv. We have recognized on numerous occasions that the
relationship between parent and child is
constitutionally protected.” -- Quilloin v. Walcott
(1978)
3. The constitutional doctrine of family privacy and autonomy, grounded in the 14th
Amendment Due Process Clause (substantive due process), creates what the Court
has called “a private realm of family life.” Taken as a whole, the cases protect
“intimate and personal choices...central to personal dignity and autonomy.”
a. It encompasses cases involving parental rights,
procreation, contraception, reproduction, sexuality, family
living arrangements, and marriage.
b. Although the Court sometimes uses terminology suggestive of fundamental rights
and strict scrutiny, its analysis in these cases, especially the more recent ones,
more often resembles a balancing test or intermediate scrutiny.
4. Overview
a. Biological Parenthood and Legal Parenthood are two very different things
i. Legal parenthood is our main focus because biological parenthood is
pretty straightforward
ii. Legal parental rights and obligation are created and enforced through state
law, though subject to certain protections from federal constitutional due
process or equal protection
b. Why does it matter?
i. Legal parents have inherent custody or visitation rights
ii. They also have authority to make decisions the child lacks capacity to
make on their own
c. Legal paternity may be established by presumption (in marriage), affidavit, or
court order. This could be done using genetic testing
5.
6.
7.
8.
9.
i. State and federal laws encourage clear paternity determination and the
pursuit of fathers for child support
d. Legal maternity may be demonstrated either through a genetic connection or be
evidence of having given birth
i. Regulation of gestational surrogacy remains a state-by-state patchwork
Presumption of Paternity (presumption is marriage):
a. Reflects a powerful concern for the children’s welfare, best interest, as well as
family privacy. State family law generally discourages the disruption of
established family intimacy
Same-sex couples
a. For married couples, the trend is for spouses to be considered legal parents of
non-biological children of their spouses by virtue of a modernized “parentage
presumption.” However, implementation in states have been uneven
b. For unmarried couples, some states allow for use of a gender-neutral “voluntary
acknowledgement of parenthood”
Legal Parenthood can also be established by adoption
a. Traditionally, adoption severed and replaced the legal ties of both biological
parent(s), either by court order or consent
b. Many state now allow “second-parent adoptions, which maintain legal ties of one
biological parent (or previous adoptive parent)
i. As a general rule, sperm or egg donors do not have parental obligations
where they are anonymous or where a clear written agreement is in place
ii. Step-parents who have not adopted the child have no inherent parental
rights
iii. But parents who have conceived through intercourse, even where fraud
might be involved, cannot disclaim parental obligations
De facto parents
a. States are beginning to warm to this idea, increasingly recognizing various form
of de facto parents, “psychological parents”, or in loco parentis relationships.
These may give rise to full parental rights and status, or more limited rights such
as shared custody or visitation
b. It is not uncommon for courts to confront situations where more than two persons
assert parental rights in a relationship to the same child (
c. In cases of serious abuse or neglect, parental rights can be terminated for
unfitness. The state must meet a burden of “clear and convincing” evidence of
the parent’s unfitness
Michael H. v. Gerald D (presumption of paternity case)
a. Do not read as a constitutional law case
i. Child is fathered by Michael, yet mother is married to Gerald
ii. California statute regards Gerald (the Husband) as father due to marital
presumption of paternity
1. Presumption evolved out of certain policy principles
a. Protect and insulate marital family
b. Ensure legitimacy (which makes it simpler to determine
interests and inheritance)
c. Prevents outside attacks from a third party (as in this case)
iii. Biological father (Michael) asserts a due process claim that contends that
parents have a number of fundamental rights when it comes to children,
children rearing, and parentage. There is a general due process right to
privacy and intimacy by the government.
1. Scalia and plurality disagree and find no merit in this instance
2. Points to deeply held tradition in preserving and protecting marital
union
3. Essentially, it views Michael’s constitutional claim as existing
outside of what has already been previously decided by the court
iv. The Court contends there is a traditional conception of the nuclear family
and that in this case, there is no constitutional protection
Artificial Insemination/Adoption
1. Henderson v. Box (7th Circuit 2000)
a. With married, opposite-sex couples who use sperm donors, Indian routinely
allows the husband to listed as the “father” on the birth certificate and to be
legally presumed the father (paternity presumption)
b. But for a married same-sex lesbian couple using sperm donors, Indian refused to
consider the biological mother’s spouse a presumed legal parent or appear on the
birth certificate
i. Basically, the state wasn’t applying the same presumption of legitimacy to
lesbian couples as it does to a heterosexual relationship
ii. Court’s consideration in Pavan v. Smith applies here, and Indiana must
treat married same-sex couples equally to opposite-sex couples
c. U.S.S.C denied cert
2. Artificial Insemination
a. Early Statutes (UPA) specified that there was no parental presumption during
artificial insemination AS LONG AS A PHYSICIAN WAS CONSULTED AND
PRESENT
i. This has since been dropped for the most part
ii. But initially, the state had an interest in having a neutral intermediary,
rather than a “natural reproductive act”
1. Government has an interest in ensuring that children have
financial/emotional support and were hesitant to allow fathers to
contract out parental obligations
b. In Re M.F. (artificial insemination case)
i. Male friend of lesbian couple agreed to donate sperm for pregnancy
ii. They sign a contract relieving him of parental obligations and
relinquishing possibility of support
1. One child is born under this contract and eventually the donor once
again donates perm for a second child
2. After the mothers eventually separate, biological mother petitions
state for welfare/support and the prosecutor seeks to prove
paternity to establish support from the donor
iii. Note: Donor IS the biological father of both children
1. Court decides that the contract covers the first child, so while the
biological father, he is not considered the legal father (there was
due consideration with full understanding by the parties)
2. However, the Court finds that the contract DOES NOT cover the
second child
a. Specifically, because it never spoke of another child,
donation, or pregnancy specifically, and therefore he had
parental obligations for the second child
iv. NOTE: if you father a child through sexual intercourse YOU CANNOT
CONTRACT OUT OF PARENTAL OBLIGATIONS
3. Dubary v. Wells (6th Circuit 2007)
a. Dubay and Wells became involved in a romantic relationship
i. Dubay informed wells he had no interest in becoming a father, to which
Wells replied she was infertile and, as an extra layer of protection, was
also using contraception
ii. Dubay, in reliance on these assurances, participated in a consensual sexual
relationship
b. Shortly after, Wells informed DUbay that she was pregnant with his child
i. Then a Michigan state court order Dubay to pay child support. Sorry, dude
c. Dubray brings an equal protection (gender discrimination) challenge to the federal
courts against Michigan’s paternity law against him in these circumstances
i. He notes that women, unlike men, can control birth through abortion, and
almost more easily place an unwanted child for adoption
ii. The federal courts reject these arguments
4. Adoption
a. Overview
i. Adoption is creature of statute in the United States and was unknown at
common law. However, courts continue making law through interpreting
adopting statutes
1. There is NO constitutionally protected right to adopt a child. THE
STADARD IS WHAT IS IN THE CHILD’S BEST INTEREST
ii. While adoption placements often are facilitated by private agencies,
ultimately an adoption requires a court order
iii. As a general rule, such decrees terminate the legal relationship
between the child and its biological parents based on the consent of
the biological parents (if those parental rights have not already been
terminated by nonconsent, such as a CHINS case)
iv. Additionally, unmarried fathers who do not grasp their parental rights
early on, or who do no register through putative father registry, may lose
the right to be informed about, or object to, a child being placed for
adoption
1. Recent legal controversies have focused on
a. “Second-parent” adoptions
b. Joint adoptions by unmarried couples
c. Law limiting joint adoptions to married couples only
i. Backdoor way of preventing same-sex couples from
adopting (but really not relevant anymore after
Obergefell)
v. Also: the full faith and credit clause that is owed in marriage is also
extended in terms of one’s state recognition of adoption in another state
5. Adoptive Couple v. Baby Girl
a. Note: Pretty rare for federal government to set specific requirements and
mandates on family law cases
i. ICWA is an exception to the rule (The Indian Child Welfare Act)
1. Instated to prevent the mass removal of Native Children from their
tribal families and their placement in non-native families (often
white)
2. These removals were propelled by bigotry and stereotyping
ii. Couple here wants to adopt a native American child
1. Mother relinquishes her rights to adoptive parents
2. Father relinquishes parents rights to mother, but not to adoptive
parents (doesn’t consent to the adoption)
iii. Central question, did he forfeit his rights to object to the adoption?
1. Traditionally, unmarried fathers that don’t “grasp” their parental
rights lose the ability to contest an adoption which will lead to
termination of their rights
2. ICWA however changes this standard by giving heavy preference
to Native families, this statute is far more protective of parental
rights, designed specifically that way
a. IN this case, because of ICWA, the court does not
terminate parental rights even though he had failed to
“grasp” his rights early on because of the elevated
protection.
6. Who may adopt?
a. Adoption typically terminates all previous parental rights. But statutes
traditionally made exceptions for step-parents so that when people re-married, a
step-father could adopt his wife’s child without affecting her parental rights
b. Since same-sex couples could not marry until recently, statutes and court
decisions begain to recognize “second-parent adoptions”—modeled on the stepparent adoption laws—so that unmarried person 1 could adopted unmarried
person 2’s child without unmarried person 2’s own parental rights (which may
have come either through childbirth or an earlier adoption)
c. IN order for a step-parent or second-parent adoption to be granted, the legal
relationship of one of the birth parents to the child must have been judicially
terminated or relinquished by consent
7. Adoption of M.M.G.C (Indiana Case)
a. Held that an unmarried partner may adopt, and become the second parent to the
first parent’s adoptive child
i. The strength and genius of the common law lies in its ability to adapt to
the changing needs of the society it governs . . . we cannot close our eyes
to the legal and social needs of our society, and this Court should not
hesitate to amend, alter, or abrogate the common law when society’s needs
dictate
1. Allowing a second parent to share legal
responsibility for the financial, spiritual, educational,
and emotional well-being of the child in a stable,
supportive, and nurturing environment can only be
in the best interest of that child.”
8. Adoption of KSP
a. Holding: Unmarried partner may adopt and become second parent to, first
parent’s natural child
i. The reason of the original parents must divested of their parental rights is
to shield the adoptive family from unnecessary instability and
uncertainty arising from unwanted intrusions by the child’s biological
family
b. This objective, however, is not advanced by application of the divesting statute in
situations involving stepparents adoptions or second-parent adoptions, where the
biological parents and proposed adoptive parents are both integral members of the
proposed adoptive family.
i. It would be absurd to fear that the biological parent, here Mother, could
‘intrude’ into her own family
c. To deny children of same-sex partners, as a class, the security of a legally
recognized relationship with their second parents serves no legitimate state
interest . . . by allowing same-sex adoptions the statutes purpose is furtherd
9. An adoption order in one state must be recognized in all other states
a. Adoptions are court ordered, and the equivalent of final judgments
i. The constitutions full faith and credit clause bolsters this
ii. Requires that states honor court judgments from other states, regardless if
the judgment conflicts with that states public policy
10. V.L v. E.L (2016 SCOTUS CASE)
a. E.L. gave birth to three children, and V.L legally adopted them in Georgia
b. The couple then moved to Alabama, split up, and E.L, tried to block V.L from
seeing the children
c. A final judgment in one state, if rendered by a court with adjudicatory authority
over the subject matter and persons governed by the judgment, qualifies for
recognition throughout the land.
i. A state may not disregard the judgment of a sister state because it
disagrees with the reasoning of the judgment or deems I wrong on the
merits
1. IN SHORT ADOPTION ARE RECOGNIZED ACROSS STATE
LINES
11. Infant Girl v. Morgan County Case (Indiana case)
a. Can unmarried individuals adopt a child together?
i. Single people can adopt no problem, but state statute mandates that
married people must adopt jointly (married couples cannot adopt
unilaterally)
ii. What about join adoptions by unmarried couples?
1. State argues that because married people must adopt jointly, that
unmarried couples cannot adopt jointly
2. HOWEVER, the law never states this—it is entirely silent on this
topic and the court refuses to interpret the statute this way
a. The unmarried couple is able to adopt jointly
12. Establishing Paternity in Indiana
a. By Indiana Statute, a man is presumed the father if married to the mother.
This is rebuttable through a paternity action
b. What about single fathers?
i. In all other circumstances, legal paternity of a natural father is established
either by paternity affidavit or court order.
1. Legal paternity can be established by a paternity affidavit signed
by bother parents a) at the hospital within 72 hours after birth, or b)
at local heath department office nay time before the child is
emancipated (age 19 unless otherwise ordered by the court), as
long as no other father is listed on the birth certificate
a. A paternity affidavit may be set aside if genetic testing
excludes the person who executed the paternity affidavit as
the biological father
c. Filing a paternity action in court
i. May be filed by the mother (or pregnant woman); man who thinks he is
the father; the mother and putative father together; the child; the division
of family and children; or a prosecuting attorney
ii. Generally must be filed within 2 years of child’s birth, but there are some
exceptions
iii. A child can file the case up until the child’s 20th birthday
iv. If the child has received public benefits, the state can file as long before
the child’s 19th birthday or graduation from high school (whichever is
earlier)
v. Court must grant genetic testing if requested by a party
d. Under Indiana Law, when is a natural’s parents consent NOT required by
adoption
i. Unwed fathers
1. The consent of the biological father of a child born out of wedlock
is NOT required if his paternity has not be established by affidavit
(which is executed jointly by a mother and father) or court order
(often after genetic testing), or if he has not registered with the
putative father registry
Parental Rights
1. De facto parenthood
a. (a number of other terms as well, but this is the best umbrella term, psychological
parenthood/in locus parentis)
i. Claims seeking recognition of “psychological” or “de facto” parenthood
have increasing success in state law, usually through court decisions
ii. Philosophical question: should legal parenthood involve bright line rules,
or should it be more functional? Should family courts do “rough justice’
where it makes sense?
iii. Statutes and cases are sometimes unclear about what is exactly allowed
1. Should they have full parental rights, status, and responsibilities
equivalent to those created by birth or adoption?
2. Opportunities to petition for custody, visitation, or “parenting
time”
3. Temporary status of “in loco parentis”
iv. The threshold inquiry is usually one of standing
1. Is the petitioner here among the category of persons who are
entitled to claim rights of visitation, custody, or fell de facto parent
status?
v. Where laws allow someone to petition for de facto status, typically a
hearing and fact finding is still required to determine whether granting the
status to the specific petitioner would be in the child’s best interests
vi. New, functional understanding of parenthood and custody rights create the
opportunity for more than two people to have some legal relationship to
the child
2. Custody Definition
a. Legal Custody: decision-making rights (healthcare, school, moving, any parental
discretionary choices)
b. Physical custody: literally having direct physical possession of child or children
(where the child lives)
3. In Re Scarlett Z.D
a. Unmarried couple, Maria and Jim want to adopt.
i. Mother adopts child with father’s consent, but they do not file jointly
(barred by Slovakian law)
1. After the couple breaks up, Jim is seeking care and custody for
Scarlett
ii. First issue is whether Jim (father) has standing to bring suit (seek custody)
1. Illinois statute only allows a nonparent to bring suit if child is not
in parent’s custody
a. This is not the case here, Jim lacks standing to bring the
suit
iii. Jim asserts farther that he is a de facto parents and even though he lacks
legal parentage, his engagement and obligations in Scarlett’s life marks
him as a de facto parent whose constitutional rights protect his ability to
preserve his relationship and interact with his child
1. Court here does not find merit in these arguments and elects to
apply and uphold the stricter and more narrow Illinois law
4. Does Indiana Recognize De Facto Parents in any way?
a. Female petitioner, after breakup with female partner, sought “parenting time
rights, child support obligations, and certain other parental rights and
responsibilities with respect to a six-year-old child, A.B.
b. Our 2002 decision, In re Guardianship of B.H., in which this in which this Court
affirmed a trial court's grant of permanent guardianship Court affirmed a
trial court's grant of permanent guardianship to two children’s stepfather
after the death of their mother, to two children’s stepfather after the death of
their mother, rejected the children's biological father's motion to dismiss the
stepfather's request.”
c. Several things are clear from B.H. First, Indiana Courts have the authority to
determine ‘whether to place a child with a person other than the natural
parent, which we hold necessarily includes the authority to determine
whether such a person has the rights and obligations of a parent
d. Second, Indiana law provides a measure of protection for the rights of the natural
parent, but, more importantly, it embodies the innumerable social,
psychological, cultural, and biological considerations that significantly
benefit the child and serve the child’s best interest
i. As such, Indiana trial courts are accorded deference in their
determinations as to the child’s best interest in these circumstances
1. Courts have the discretion to determine when persons other than
natural parents seek certain relief
Surrogacy and Parentage
1. Regulation of surrogacy is an entirely mixed bag across the states and there is little
consistency across state lines
a. Some states only allow certain forms of surrogacy and others completely prohibit
it , even going as far as criminalizing it
2. Should state law allow surrogacy by recognizing surrogacy contracts? What human and
policy considerations should inform this judgment?
3. If surrogacy contracts are recognized and enforceable, what conditions should state law
impose to structure the process and protect everyone’s rights?
a. Should gestational surrogacy by distinguished from traditional
b. What rights and restrictions should be placed on each party
c. Procedurally, how should legal parenthood be established
4. Johnson v. Calvert
a. Calverts contract with Johnson to be a surrogate mother
i. Genetic material is from Calverts
1. Egg is from Chrispina
2. Sperm is from Mark
a. Gestational surrogacy
ii. Johnson breaches the contract for surrogacy and refuses to relinquish the
child
1. She claims that she has a right to motherhood based on her birthing
of the child
a. Constitutional Substantive Rights
b. Both Johnson and Calvert have valid competing claims to motherhood
i. One is genetic mother (Calvert)
ii. One is the birth giver (Surrogacy)
1. Essentially a tie must be brought
c. The court elects to prioritize the genetic consideration + the intended parents
doctrine, both of which trump mere birthing
i. Signed agreement and assent of Calvert set the events in motion
1. The Calvert’s were the primary moves, and it was through their
initiation that this child was created
a. Giving birth is simply a powerful evidence that supports
motherhood, but is not itself indicative
d. Gestational surrogacy operates a similar role as a foster parents
i. Someone who is a temporary parent until a more powerful legal obligation
and relationship is formed with a different person
5. In Re Paternity and Maternity of Infant R
a. Child was born to a surrogate but was genetically the product of egg and sperm
from husband and wife (surrogate was wife’s sister.) The three petitioned the
juvenile court together to establish Wife, rather than Surrogate, as the legal
mother
i. Juvenile court denied the petition, because no Indiana statute
provides procedurally for establishment of maternity. It is ordinarily
presumed that a woman who gives birth to a child is the child’s
biological mother.
1. Husband’s paternity was established by affidavit
b. The court holds that intended Wife must prove by clear and convincing evidence
that she is the child’s biological mother
i. “it is the policy of the state . . .to recognize the important of family and
children in our society
ii. “well-settled for the best interests of the child to have his or her biological
parentage established
iii. “if courts of equity ignore the traditional realities that laws have yet to
recognize, a child born in the circumstances herein would be denied the
opportunity afforded to other children of this State
iv. “we are aware of no reason why the public interest in correctly identifying
the child’s mother any less relevant or important than identifying the
child’s father
6. Surrogacy Contracts
a. In places where the law forbids surrogacy
i. When two different states have a connection to a legal problem, which
state’s law is applied
ii. The legality of the contract and its terms, as well as the capacity of the
parties, usually will be judged under the law of the state where ethe
contract is executed
1. At least one part will need some connection to the state in order for
its law to be applied
2. Issues about performance of the contract will be governed by the
law of the state where the contract is to be performed, thus, this
should be where the surrogate lives and will give birth
7. P.M. v. T.B (belligerent surrogate mother/racist intended parents)
8. Options for establishing parentage in surrogacy
a. Allowing the intended legal parents to be identified in writing in the contract
i. What if one or both intended parents lack a genetic connection to the child
ii. If a traditional surrogacy is being used, her parental rights would
likely need to be terminated by court order
b. Could require pre-birth parentage orders from a juvenile court
c. Could require post-birth parentage determinations from a juvenile court (see
Indiana Paternity and Maternity of Infant R case above)
Constitutional Status of the Parent-child relationship
1. “It is the natural duty of the parent to give his children education suitable to their station
in life”—Meyer v. Nebraska
a. The child is not the mere creature of the state; those who nurture him and direct
his destiny have the right coupled with the high duty, to recognize and prepare
him for additional obligations” – Pierce v. Society of Sisters
2. Remember, there is “private realm” of family law, where the custody, care, and nuture of
the child reside first in the parents, and that these decisions must be respected by the
government without undue hinderance (Prince v. Massachusetts)
3. “The relationship between the parent and child is constitutionally protected (Quillion v.
Walcott) (rights of unwed fathers)
4. “There is a fundamental liberty interest of natural parents in the care, custody, and
management of their child.” –Santosky v. Kramer (requirements for terminating parental
rights
5. “in light of. . . extensive precedent, it cannot now be doubted that the 14th amendment
protects the fundamental right of parents to make deciions concerning the care, custody,
and control of their children. (this interest) is perhaps the oldest of the fundamental
liberty interest recognized by this court.” Troxel v. Granville
6. Troxel v. Granville
a. Reaffirms the Court’s long line of cases that parents have a “fundamental liberty
interest” in the “care, custody, and control” of their children
b. Despite Justice Steven’s urging, the Court says nothing about whether the child
has its own constitutionally protected rights vis-à-vis a parent
c. Fit parents are legally presumed to act in the best interest of their children
d. Nonetheless, the plurality applies something more like a balancing test or
intermediate scrutiny to the Washington state law allowing “any person” to seek
visitation. The law itself is not unconstitutional, but in applying it (or another
law like it), a family court must give special weight” to the custodial parent’s
own determination of the child’s best interests.
i. So the visitation statute isn’t said to be totally incompatible with state
interests, HOWEVER
1. No deference was granted to the fit mother’s parental rights
2. Right of parents is a fundamental right, however, the court applies
more of a balancing test to determine whose interest should prevail
a. Parental rights generally grant special weight to parents
will, however, it is not absolute and can be overcome by
the Court’s discretion
b. Fit parents are legally presumed to act in the child’s best
interests however
i. This presumption can be rebutted
7. Stanley v. Illinois
a. Illinois has law that states that unwed fathers are presumed to be unfit
i. After the passing of his significant other, the father of three children are
taken from him and considered wards of the state
1. Father gets no voice in the process
ii. Here, there is no presumption of legitimacy of paternity because he is
unwed
iii. Court finds that there must be judicial inquiry into a matter to overcome a
presumption of fitness of a parent, regardless of marital status
1. Father cannot just be unilaterally deprived without a hearing
or inquiry
iv. Also a problem of equal protection
1. Wed fathers don’t lose parental presumption
2. Unwed fathers lose their parental presumption
a. Similarly situated people are treated differently based
entirely upon their marriage status
b. Here, the balance between the State’s interest of protecting the child’s best
interests, and the parents constitutional liberty interest of child rearing and control
comes into conflict
i. The court finds that the unwed father has a presumption of fitness, and his
right to rearing and control trumps the state interest (they cannot take
away rights by presumption, but necessitates a hearing or other procedural
due process protection
ii. Additionally, the state’s interest isn’t actually furthered by the statute,
because the child’s best interest are presumed to be with the a “fit” parent
1. Ergo removing him only goes against his best interest, counter
intuitive rule, hence why a judicial inquiry is necessary
8. Santosky v. Kramer
a. What evidentiary standard should be met in a termination of parental rights
case?
i. Under New York law, it only required a preponderance of the evidence
standard to involuntarily terminate parental rights
ii. Is this proper?
b. After a determination of neglect, the court and DCS removed the child from the
home of John and Annie Santosky
c. Court envokes the Matthews v. Eldridge balancing test to determine the
correctness of the preponderance of the evidence standard: balancing—
i. The private interest of affected by the proceeding (parental rights/interests,
child’s best interests
ii. The risk of error created by the State’s chosen procedure (how likely this
standard might get it wrong)
iii. The countervailing governmental interest supporting use of the challenged
procedure
d. Specifically, weighing these factors the court concludes
i. The first factor, the parent’s fundamental interest to preserve their
parent/child relationship is certainly overpowering in regard to the
use of a lower evidentiary standard
ii. The second factor, risk of error is also very high
1. States power and resources to prosecute dwarf the defense
2. No double jeopardy protection
3. Generally, termination cases targets are mostly poor, uneducated,
and are generally minorities subject to biases of the state and judge
iii. The third factor, weighing the government’s interest is also not as
persuasive as it might seem
1. The government’s interest is protecting the best interests of the
child, who in turn shares a strong interest in preserving the
parent/child relationship
2. A lower standard that pursues termination isn’t necessarily always
“in the child’s best interest, at least, it might not warrant the lower
standard
9. Wrap up about Parentage and Parental Rights
a. Marital Presumption of legitimacy/paternity
i. Understand its original purpose
1. To preserve marital harmony/ease of implementation “don’t want
people just challenging legitimacy all over the place”
ii. How should it be extended to same-sex couples (Pavan and Henderson v.
Box holds that same sex couples must be treated equally for birth
certificate)
iii. Under what circumstances, and for how long should state law allow it to
be rebutted? (probably varies by state but generally up to 2 years after
birth)
iv. What constitutional or statutory rights should a biological father have
where a child is born into someone else’s marriage
v. Paternity of unmarried fathers can be established by affidavit or if its
contested, a court order. Some states have begun making these affidavits
gender neutral
b. Sperm and Egg donors
i. Donors are not held liable for child support if anonymous or a proper
written agreement. Otherwise, they likely will be
ii. Should state law require a doctor as third-party intermediary be involved
iii. Are there times when a course of conduct (i.e. a donor beings holding out
the child as his own) should justify an agreement be set aside)
c. Psychological and De Facto Parentage
i. The analysis in LB provides representative analysis
ii. Where the status is regonized as proving standing, a petition (with factual
proof) and a best-interests analysis are still required
d.
e.
f.
g.
iii. Is creating the category of parent a job for courts or legislature
iv. What rights and obligations should attach? Legal party with birth or
adoptive parents? Some form of custody? Visitation only?
Adoption
i. Creates the same legal parent/child relationship as natural parenthood
ii. Unless a state allows adoption by more than two persons, remember that
there must be a parental “slot” available
1. Original parental rights generally need terminated either by
consent or involuntarily
iii. Unwed fathers may not be presumed unfit, but may lose their
constitutional right to consent (or receive notice of adoption) if they are
not supported the child, held it out as their own, or registered on the
putative father registry
iv. Should unmarried couples (whether gay or straight) have access to justice
or joint or second-parents adoptions
Surrogacy
i. Should surrogacy agreements be enforceable? If so, how should surrogacy
be regulated? What rights and responsibilities should each party have?
1. “Intended parents” (See Calvert) provides a well-accepted standard
of resolving disputes. Also, the cases suggest that genetic
connection to the child (not giving birth) is the ultimate
determinant of legal maternity
2. Even if a state doesn’t recognize surrogacy agreements (as in
Indiana) genetic or intended parents may still be able to use legal
mechanisms to establish legal parentage
More than two parents?
i. Under what circumstances might a child have more than two people who
have legal rights to custody/visitation and legal obligations of support
ii. Potential candidates include presumed parents (child born during
marriage), genetic parents (including sperm donors), if different from the
presumed parents; adoptive parents; step-parents; traditional or gestational
surrogacies; de facto parents. How should conflicts among these be
resolved?
1. Be sure you understand the principles (and their limitations) in all
the cases
Parental rights and Responsibilities under the Constitution
i. Although the Court frequently calls a legal parent’s rights fundamental,
this does not prevent the state from asserting it’s own interest in the
welfare of children or pursuing other policies though to provide for a
child’s best interests.
ii. Cases dealing with unwed fathers, termination, and other CHINS cases, de
factor parents, visitation statutes (Troxel)
iii. Where there is a fit parent who still have custody, under what
circumstances should a court still be able to detmeinr what would be in the
child’s best interests” such as grandparents visitation or designation of a
de facto parent?
iv. The court has never held that there is a reciprocal constitutional right of
children
Medical Leave/Healthcare and Family Law
1. FMLA
a. (Family Medical Leave Act)(federal statute)
2. The basics
a. The family and medical leave act is a federal law that requires employers to
provide eligible employees up to 12 workweeks of unpaid leave a year, and
requires group health benefits to be maintained during the leave
i. Note: some state-law plans may be more generous and would apply as
long as they are compatible with the FMLA
b. Employees are entitled to their same or an equivalent job at the end of their
FMLA leave
c. Applies to all local, state, and federal government employers, and private-sector
employees who have 50 or more employees for at least 20 workweeks
d. Employee must have worked at least 1,250 hours during the 12 months prior to
the start of their leave
3. Qualifying Conditions
a. Birth of a child, and to bond with the newborn child
b. Placement of a child for adoption or foster care
c. To care for an immediate family member (spouse, child, parent) with a serious
health condition
d. To take medial leave whe the employee is unable to work because of a serious
health condition
e. For qualifying exigencies arising from a family member being on active military
duty
4. Issues for lawyers and litigation often center on the interpretation and application of
language in the statute and implementing regulations
5. Caldwell Case
a. Rule:
i. Congress intended to include visits to a doctor among absences covered by
Family Medical Leave Act (FMLA) when the employee has symptoms
that are eventually diagnosed as constituting a serious health condition,
even if, at the time of the initial medical appointments, the illness has not
yet been diagnosed nor its degree of seriousness determined. Thus, as long
as a plaintiff satisfied, at some point in time, the "more than three
consecutive days" requirement for establishing a serious health condition,
his intermittent absences were protected under the FMLA if they were
necessary to determine if a serious health condition exists, or to treat such
a condition.
b. Facts:
i. The court previously entered summary judgment against Juanita
Caldwell's FMLA claim on the grounds that she had failed to submit
evidence that the inflammation of her son Kejuan's ears was a "serious
health condition" entitling her to FMLA leave. Specifically, the court
found that no evidence had been submitted which might allow a jury to
find that Kejuan was incapacitated for more than three days during the
time period proximate to Caldwell's absence from work. In addition, the
court found the undisputed facts showed that Kejuan's illness eventually
developed into a "serious health condition" as defined by FMLA, but was
not a serious health condition at the time Caldwell took off from work to
seek initial diagnosis and treatment. The Eighth Circuit Court of Appeals
reversed and remanded the case for further proceedings.
c. Issue:
i. Did the son’s illness constitute a "serious health condition" under the
FMLA?
d. Answer:
i. Yes.
e. Conclusion:
i. In the appellate court's reversal of the district court's previous grant of
summary judgment in favor of the employer, it held that even if the son
did not sustain "incapacity" prior to his surgery, the inflammation in his
ears resulted in a period of incapacity that lasted more than three days
once he had a tonsillectomy and adenoidectomy. The district court, in
granting plaintiff's motion for summary judgment, held that there was no
material dispute that the son was incapacitated for more than three days
following his surgery and that the son's physician conducted at least two
post-operative medical visits to monitor his condition. Moreover, the son's
surgery and post operative visits related to the condition for which
plaintiff initially sought treatment and diagnosis. Thus the son's illness
constituted a "serious health condition"
6. Family Responsibilities Discrimination
a. There is no federal law that addresses, as such, discrimination against caregivers
or based on family responsibilities
i. Rather, federal courts as well as the EEOC have recognized such
discrimination as unlawful for of sex discrimination
ii. The Supreme Court’s interpretations of both the equal protection clause
and title VII recognize gender stereotyping—stereotypes about the roper
roles or abilities of women and men—as a form of unlawful sex
discrimination
Divorce and Separation
1. Divorces are often messy and difficult to articulate
a. More amicable divorces can occur completely without court intervention,
however, they often require outside help
2. Traditional divorces
a. Divorce used to be “fault-based”
i. Looked less like a contract (cannot agree to rescind)
ii. But would require a showing of fault, and would still sometimes “trap”
people together
1. Fault divorces are much more difficult to get because it require
more court intervention and tends to “want” to protect the marital
union
iii. This required adversarial litigation
1. Traditionally, divorce required adversarial litigation and proof by
one of the other party’s fault.
a. Common fault grounds includes
i. Adultery
ii. Cruelty
iii. Desertion
iv. Alcohol/drug addiction
3. Today, no fault divorce, usually predicated on an “irretrievable breakdown” of the
marriage, is available in every state
a. In some states, it has become the sole ground for divorce, while other states also
retain the option of proceeding under a fault-based ground
b. For no-fault, some states require a waiting (i.e., separation) period, others don’t
c.
4. In dividing property/assets/debts at dissolution, differences between the “common
law” and “community property” regimes of ownership and control have much less
significance. Even in states where courts used use 50/50 as a presumptive starting
point, courts have broad discretion under the default approach, of “equitable
distribution” to adjust division to the particular circumstances of the marriage and
couple
a. Fault, especially economic misconduct, might still be considered in dividing
property
5. Spousal support or maintenance (alimony) has become limited and rare
a. Generally, a result from increase gender equality (women are now less likely to be
dependent and therefore less likely to require support)
6. Divorce can be unilateral
a. A court may grant a divorce without the responding spouse’s presence of consent
(as long as the responding spouse has been given notice of the proceedings), but a
court may not divide property or determine support obligations without both
spouses being before it.
7. Children and Divorce
a. Where children are present, courts award “legal” and “physical” custody based on
the “best interest of the child” standard.
i. Unlike most court orders, such determinations remain modifiable based on
changed circumstances
8. Brown v. Brown
a. Adultery case
i. Accusatory party has burden of showing evidence of its occurrence. Often,
there is no direct evidence, just circumstantial evidence
ii. This is okay however, they only must show both opportunity and intention
to cheat
9. No Fault Divorce
a. States vary in their exact criteria, but they usually involve one, or a combination
of, the following:
i. A judicial finding of “irretrievable breakdown” (or similar language)
1. This can be stipulated to by both spouses, or asserted by only one
spouse and not denied by the other.
2. Some states (e.g. Indiana) allow a hearing to be waived
3. If one spouse denies irretrievable breakdown, a court may continue
the matter to allow for the possibility of reconciliation
ii. A period of living “separate and apart”
1. Some states look to the period preceding the filing of the
dissolution petition; others start the clock when the petition is filed
b. In re Marriage of Tomlins
i. Dissolution petition filed Oct 29, 2008, Illiunois required a 2-year period
of living separate and apart following filing of the petition
1. “Relevant considerations to whether the parties were living
separate lives include whether the parties ceased martial relations
and the type of communication, or lack thereof, between the parties
2. Chistropher had moved out permanently in April 2009. But the
parties had not sex since Oct. 2008 and had been sleeping in
separate beds
3. Result: Two year requirement was met
a. Illinois later eliminated the mandatory separation period,
though 6 months is irrebuttable proof if the spouses can’t
agree on the divorce
c. In re Marriage of Davis, California Supreme Court 2015:
i. “[B]oth legal usage of the phrase ‘living separate and
apart’ and colloquial understanding of what it means
for someone to live ‘separate’ and ‘apart’ from
someone else do not include persons living together in
the same home. Ordinary usage of the language itself
contemplates the parties' occupation of separate
residences.” ... “We conclude that living in separate
residences ‘is an indispensable threshold requirement’
for a finding that spouses are ‘living separate and apart’
for purposes of [the California dissolution statute].”
1. Strict requirement/must be living in separate residences
2. However, CA legislators have since then abolished the living
separate and apart requirement
d. Bennington v. Bennington
i. Husband moves to van on property of house where his disabled wife
resides
1. Does this constitute living separate and apart enough to constitute a
divorce (statutory period was 2 years)
a. He was living permanently in a literal sense, however he
was still very much performing marital duties, helping his
disabled wife, and providing fiscally for her
e. What about tort damages being brought in divorce action?
i. Spousal immunity is no longer a thing, however does that allow tort
damages to come into play in divorce proceedings?
ii. It tort claims are brought in the same action as a divorce, what torts should
be allowed?
1. Physical abuse?
2. Emotional?
3. Financial malfeasance?
iii. Unlike the dissolution, property, and child custody matters, a tort action
may be triable to a jury and may involve a separate award of damages, so
the case may need to be bifurcated
iv. In a given case, does the alleged tort truly constitute a separate cause of
action, or does it merely reiterate/amplify arguments made in the
dissolution action?
10. There are questions of jurisdiction when considering divorce actions
a. Remember, personal jurisdiction over the defendant in a civil action
i. A state may exercise personal jurisdiction over any out-of-state defendant,
so long as that defendant has “sufficient minimum contacts” with the
forum state from which the complain arises, such that the exercise of
jurisdiction “will not offense traditional notion of fair play and substantial
justice” ---International Shoe Co. v Washington
b. Williams v. North Carolina
i. Could one spouse establish residency in a new state, then obtain a divorce,
even if the other spouse has never appeared in the state
ii. YES
1. Divorce is not an ordinary “in personam” action where traditional
jurisdictional rules of personal jurisdiction apply. The focus on the
“status” of the person seeking the divorce, and the state’s
connection to that status
2. The existence of the power of a state to alter the marital status of
its domiciliaries. . . is dependent on the relationship which
domicile creates and the persuasive control which a state has over
marriage and divorce within its own borders.”
iii. “Each state, by virtue of its command over its domiciliaries and its
large interest in the institution of marriage, can alter within its own
borders the marriage status of the spouse domiciled there, even
though the other spouse is absent.”
iv. This holding meant that all other states were required to recognize the
validity of the divorce court judgment (including the state where the
former spouse lived), as long as the divorce court had proper jurisdiction
over the petitioner (e.g. the petitioner had actually established domicile
there/not just camped out temporarily to purport to gain residency).
11. Divorce, the Constitution, and social change
a. Williams v. North Carolina (1942) began a series of divorce-related decisions in
which the Court “severed the connection between state power and marital
status, changing the shape of both divorce law and American federalism.” By
giving individuals the power to choose which jurisdiction would control their
marital status, “the divorce cases fundamentally altered state power to set the
normative boundaries of family life” and “moved individual interests to the center
of marital status determinations.”
12. Basic principles of “domicile:”
a. Physical presence
i. Indispensable, but the requirement can be satisfied by the even briefest
presence
b. Intent
i. Intent to establish a new home, sometimes more importantly, the lack of
intent to return to the previous home (here, court often find that actions
speak louder than words)
c. Everyone has a domicile, and no more than one at any given time
d. Once established, a domicile continue until superseded by a new one
13. Review
a. Divorce has its own unique rules of jurisdiction
i. As long as the plaintiff/petitioning spouse has established residency,
the state’s courts may adjudicate his/her marital status (i.e. grant
divorce)
ii. Even if they do not have personal jurisdiction over the other spouse
1. Unlike a typical “in personam” legal action, the relevant focus is
on the “res” of the marital status before the court
b. As long as the residency was legitimately established (usually meaning the spouse
seeking divorce established “domicile”) then the court has proper jurisdiction and
thus the divorce decree must be given full faith and credit by the courts of other
states
c. The respondent spouse must still be given proper notice, and may voluntarily
choose to participate in the divorce proceeding
d. An “ex parte divorce” based on the above rules does not extent property rights
related to the marriage.
i. Conventional personal jurisdiction over the respondent spouse IS
required before a dissolution court may adjudicate property division
and/or spousal support. (estin v. Estin
14. Kimura Case
a. Japanese citizen who lives in Iowa petitions for divorce from his wife who lives in
Japan
i. Iowa grants the divorce, but wife appeals claiming that the court lacks
jurisdiction)
1. Personal jurisction: before a court can exercise its power over you,
it must first establish authority
2. Under traditional notions of personal jurisdiction, the wife’s appeal
would have more merit, however—divorce cases are not evaluated
under this traditional test for personal jurisdiction as state above
15. Orr v. Orr (1979)
a. Alabama's alimony statutes only required husbands to pay alimony, but not
wives. William Orr challenged these statutes as unconstitutional, and the
Supreme Court agreed:
i. “Legislative classifications which distribute benefits and burdens on the
basis of gender carry the inherent risk of reinforcing stereotypes
about the ‘proper place’ of women and their need for special
protection. Thus, even statutes purportedly designed to compensate
for and ameliorate the effects of past discrimination must be carefully
tailored.”
ii. “Where, as here, the State's compensatory and ameliorative purposes are
as well served by a gender-neutral classification as one that gender
classifies, and therefore carries with it the baggage of sexual stereotypes,
the State cannot be permitted to classify on the basis of sex.”
Property Allocation and Division
1. Property division can get deeply involved and complicated
a. Property refers broadly to real property, personal property,
bank/retirement/investment accounts, and most other assets (or debts)
2. At divorce, all states have abandoned the “title theory” or common -law rules of property
ownership and control. Laws usually refer to “marital property,” which courts are
directed to divide equitably.”
3. Property Division
a. Courts must consider both financial and non-financial contributions to marital
property
b. Even if an asset it deemed separate (e.g. it was acquired before marriage), its
growth in value due to “marital labor” by either spouse might be deemed
marital property.
c. If the parties can’t agree on division (or if it’s not governed by a valid pre-marital
agreement), the court will hold a trial and make factual findings as the basis for
division
4. What about something less tangible?
a. Can a law degree be considered a piece of divisible property?
i. Indiana presumes a 50/50 marital property split
1. However this can be rebutted based on a number of considerations
a. Contributions by each spouse to the acquisition of the
property
b. The extent to which the property was acquired
c. Property before marriage
d. Inheritance or gifts
e. Economic circumstances
b. Roberts case (can a law degree be considered a piece of equitable property)
i. Student loans/debt from law degree
ii. Earning potential
iii. Contribution to someone’s education
1. Wife worked full time and maintained household while husband
devoted all his time to law school studies
a. Graduated third in his class and served as chief editor of
Law Reivew
i. Husband divorced wife shortly after graduation
ii. Wife argues that the law degree earned by husband
WITH HER SUPPORT is considered a piece of
marital property and should be assigned a value that
can be divided
2. Indiana DOES NOT consider a law degree or other professional
degrees as traditional property
a. Doesn’t lend itself to the same considerations
i. Doesn’t have a set value
ii. Is intangible
iii. Would largely be based on speculation
b. Most states apply a similar rule
3. This kind of application looks far more like alimony or
maintenance rather than a specifically a property division
a. Forward looking person’s potential or future interest rathe
than present interests (difficult to ascertain)
5. Ketterle v. Ketterle (Nobel Prize winning husband)
a. Appellate court affirms trial court’s property division of 62% to wife and 38% to
husband
b. “the husbands and wife’s ability to acquire future income and assets are strikingly
different
c. Husband’s nobel prize in physics identified him as a superstar in the scientific and
academic universe, and gave him substantial ability to acquire future income and
assets
i. IF the evidence demonstrates that one party has little or no ability to
produce income and little prospect or obtaining assets by other means
(such as inheritance), and the other party has a history or producing
income, then a strong case exists for property assignment and or/alimony
in favor of the pary with minimal economic prospects (Not binding but
useful nonetheless)
6. Elkus v. Elkus (opera coach husband)
a. In New York, “[m]edical licenses have been held to enhance the earning capacity
of their holders, so as to enable the other spouse who made direct or indirect
contributions to their acquisition, to share their value as part of equitable
distribution. A Medical Board certification, a law degree, an accounting degree, a
podiatry practice, the licensing and certification of a physician's assistant, a
Masters degree in teaching, and a fellowship in the Society of Actuaries [cites
omitted] have also been held to constitute marital property.”
b. Likewise, “the skills of an artisan, actor, professional athlete or any person whose
expertise in his or her career has enabled him or her to become an exceptional
wage earner should be valued as marital property subject to equitable
distribution.”
i. “During the course of the marriage, the [husband’s] active involvement in
the [wife, a famous opera singer]'s career, in teaching, coaching, and
critiquing her, as well as in caring for their children, clearly contributed to
the increase in its value. Accordingly, to the extent the appreciation in
the plaintiff's career was due to the defendant's efforts and
contributions, this appreciation constitutes marital property.”
(Emphasis added)
7. Methods for valuing Degrees and Licenses as Propery
a. Reimbursement:
i. Compensates the supporting spouse for monetary contributions made to
the educated spouse’s education. Avoids possible unfairness to the
educated spouse of an award based on projected future earnings that may
never occur
b. Opportunity cost:
i. In addition to reimbursement, compensates the supporting spouse for
educational and/pr employment opportunities there were sacrificed in
order to permit the professional educated spouse to attend school
c. Present-Value-of Future-Increased Earnings:
i. Court must project increased earning the educated spouse will receive over
lifetime as a result of the professional license. The court then awards the
supporting spouse an equitable share of this projected amount, which
depends on the spouse’s contributions to the educated spouse’s training.
This theory determines the actual economic value of the license to its
holder and awards the supporting spouse a fair share
d. Labor theory of value
i. The supporting spouse receives one-half of the professionally educated
spouse’s earning for as many years as he or she supported the educated
spouse. This method attempts to achieve simplicity and fairness by
granting the supporting spouse half of the licensed spouses income as it is
earned, eschewing complex formulae but returning the supporting
spouse’s investment
8. Alimony aka support or maintenance
a. Obligations for alimony, where they arise, are gender neutral
b. Thanks primarily to greater gender equality and professional opportunities for
owmen, the majority of divorces today do not involve award of maintenance
c. Alimony is almost always discretionary to the court
i. Most statutes allow, but do not require such awards, and statutes may
restrict the circumstances or duration
d. Alimony is most common for short-term “rehabilitation,” or in long
marriages where on spouse has become significantly more dependent
e. Unlike property division, which usually involves a final decree, alimony awards
usually can be modified based on changed circumstancesa
i. Prenups or voluntary agreements at time of divorce can provide for
something less, more, or different than what’s provided by statute (as long
as they don’t violate or contradict public policy)
f. Most states no longer consider ordinary marital fault in maintenance awards,
though financial misconduct affecting marital assets is more likely to be
considered
9. Indiana Law on alimony
a. If the court finds a spouse to be physical or mentally incapacitated to the extent
that the ability of the incapacitated spouse to support themselves is
materially affected, the court may find that maintenance for the spouse is
necessary during the period of incapacity, subject to further order of the court
i. If the court finds that:
1. A) a spouse lacks sufficient property, including marital property
apportioned to the spouse, to provide for the spouse’s needs; and
2. B) the spouse is the custodian of a child who physical or mental
incapacity requires the custodian to forgo employment;
a. The court may find that maintenance is necessary for the
spouse in an amount and for a period of time that the court
considers appropriate
10. Mani case (should fault be considered in alimony or support considerations)
a. The court says only fault with economic consequences should be considered in
these types of proceedings
b. The man is economically dependent on his wife
i. He cheats on her
ii. They get divorced
c. They had a very high standard of living, living off of her fathers investments
11. Financial Consequences of Divorce—Wrap up
a. All states have abandoned the “title theory” of property division and now apply
“equitable distribution.” This allows courts to consider the contributions made by
each spouse to marital assets, including homemaking and child rearing. It gives
trial judges enormous discretion
i. Most states still retain the title-based-common-law system to govern
property ownership and control during marriage
ii. At divorce, some states divide “marital property”—a term of art meaning,
at the time of divorce, all property acquired during the marriage,
regardless of whose resources were used, in essence, a “deferred
community property” approach. Other states, (including Indiana) also
include property acquired before marriage or though gift/bequest
b. Most states use a 50/50 split as the presumptive starting point, but allow rebuttal
evidence based on a variety of factors
i. The trend is away from consideration of fault in property division, except
for financial misconduct or dissipated assets
ii. Equitable division applies to debts as well as assets
iii. The majority rule (INCLUDING INDIANA) is that educational
degrees and other professional credentials ARE NOT A FORM of
“property” to be divided, though a spouse’s future earning capacity
may still be a factor in dividing whatever property and assets already
exist
c. Remember, an award for alimony is discretionary to the court. States vary in their
policies on factors and duration
i. Remember that a valid premarital agreement can override equitable
division and state laws on alimony, AS LONG AS IT DOESN’T
PRUPORT TO DO ANYTHING THAT’S AGAINST THE STATE’S
PUBLIC POLICY
Child Custody After Divorce
1. As a part of a divorce decree, a court must determine which parents get
a. 1) legal custody
b. 2) physical custody of any minor children
i. Both may be awarded as “joint custody”
c. Custody is governed by the “best interests of the child standard.”
i. States may provide a non-exclusive list of factors for courts to consider
d. Assuming both parents are legally fit, neither goes into the process with a
superior right to the child (though historically there was presumption in favor of
the mother)
2. A divorced parent who does not get legal or physical custody is still required to
financially support the child, though they lose some of the rights typically associated
with parenthood.
a. A parent who does not have physical custody will typically have visitation rights
3. Custody decrees are not final judgments, they remain modifiable based on changed
circumstances
4. The federal Parental Kidnapping Prevention Act
a. Creates standards to determine what state has jurisdiction to make a custody
determination (typically where the child has lived the past 6 months) and
limits the power of the other states to make a conflicting custody determination
5. Painter Case (Artsy dad v. Traditional Grandparents
a. Key takeaway
i. “legal training and experience are of little practical help in solving the
complex problems of human relations”
b. Could this same outcome happen today, given intervening Supreme Court cases
c. If not, what rights, if any, should law provide the Bannisters? (For example,
should they be able to petition for visitation? De facto parent status)
d. Under the BIOTC standard, can we ever avoid the kind of subjective judicial
biases about values, convention, etc. the painter case displays
i. What role should expert testimony about the child’s interest play?
1. In this case, a parent who (while unconventional) loses custody of
his child to his deceased wife’s parents who are deemed by the
court to be more in the child’s best interests.
2. Of course, this likely could not happen today
a. Specifically, because of Stanley and Troxel case
6. In re Marriage of Gambla and Woodson (Ill App Ct 2006)
a. The court approves limited consideration of race as a tie-breaker:
i. “With the parties being equal as to all of the ... statutory
factors, the trial court looked to other relevant factors. One
factor was the fact that Kira is both African-American and
Caucasian and that, as an African-American woman, Kimberly
could provide Kira with a ‘breadth of cultural knowledge’ as to
her African-American heritage.
ii. The trial court noted that Kira would have to learn to exist as a
biracial woman in a society that is sometimes hostile to such
individuals and that Kimberly would be better able to provide
for Kira's emotional needs in this respect. The trial court
believed that this factor tipped the scale slightly in Kimberly's
favor, and it awarded Kimberly sole custody of Kira.”
1. The court distinguished Palmore: “the supreme court determined
that the custody award was unconstitutional, not because the trial
court considered race, but because the trial court considered ONLY
race
a. Volumes of cases from other jurisdictions have
interpreted Palmore as not prohibiting the
consideration of race in matters of child custody
7. Modification of physical custody, generally:
a. Under the prevailing standard in use by most states, a change in custody may be
made if circumstances have changed since the initial custody determination
so as to require a change of custody (such as a showing the child is endangered
by the current custody). This usually requires a showing the child’s welfare will
be substantially enhanced.
i. A somewhat less strict approach (such as used in Indiana) allows a court
to consider changes in circumstances but without requirements like
protection from endangerment or substantial enhancement. The child’s
best interest still remains the focus
8. Child Support Rules and Guidelines
a. The law has attempted to anticipate a number of these problems
i. In Indiana, a child is considered emancipated for the purpose of child
support at age 19
1. However, a court MAY make an order providing for college
expenses past the age of 19
9. Neudecker v. Neudecker (Indiana) (CAN BE ORDERED TO PAY SUPPORT FOR
COLLEGE EXPENSES)
a. “Common experience teaches that one of the major
concerns of most families is that qualified children be
encouraged to pursue a college education in a manner
consistent with individual family values.
b. The statutory authorization in dissolution cases to order either or
both parents to pay sums for their child's education
expenses constitutes a reasonable implementation of
the child support criteria that the court must consider
the standard of living the child would have enjoyed
had the marriage not been dissolved.”
c. The ‘standard of living the child would have enjoyed had
the marriage not been dissolved’ means whether and to
what extent the parents, if still married, would have
contributed to the child's college expenses
d. “In finding a rational relationship between the child
support statutory scheme and the state interest in seeing
that children of divorced parents are afforded the same
opportunities as children of married parents, the Court of
Appeals was correct.
e. The expenses of college are not unlike those of
orthodontia, music lessons, summer camp, and various
other optional undertakings within the discretion of
married parents but subject to compulsory payment by
inclusion in a child support order in the event of
dissolution.”
10. Garrod v Garrod (Ind App 1992)
a. “Where a parent becomes voluntarily unemployed or
underemployed, the trial court must calculate support based upon
a determination of potential income. Ind. Support Guideline
3(A)(3); Matter of Paternity of Buehler (1991), Ind.App., 576 N.E.2d
1354. The purpose for determining potential income is to
discourage a parent from taking a lower paying job to avoid the
payment of significant support; and to fairly allocate the support
obligation when one parent remarries and, because of the income
of the new spouse, chooses not to be employed.
b. As Judge Garrard so succinctly stated: ‘No mention is made of
using child support as a tool to promote a society where all work
to their full economic potential, or make their career decisions
based strictly upon the size of potential paychecks.’ Id. at 1356.
Accordingly, the trial court's determination of the father's
support obligation based upon his potential income was
reversed because the evidence indicated that his earnings had
been relatively the same at trial as they had been for the
duration of the ten-year relationship resulting in the birth of the
child for whom he was ordered to pay support.
c. Likewise, here the record does not show that David is
voluntarily unemployed or that his current decline in income
was purposely brought about to reduce support payments.
While the income from the rental properties has decreased,
there is no evidence that David is operating the business
differently than he did when he and Susan were married.
“Because the evidence does not support a finding that David is
voluntarily unemployed or underemployed, the trial court
erred by making a finding as to David's potential income in
determining whether modification of the support order was
appropriate.
11. McCloud v. Sterns
a. South Carolina case
b. Very difficult to order a noncustodial parent to pay child support
i. Can a court order a divorced parents from having to pay for child’s college
education when no such right is possible to be ordered for non-divorced
parents?
1. Was challenged under equal protection grounds for treating
divorced parents and nondivorced parents differently
2. While this is what is happening, because this is not a suspect
classification, or a protected class, it receives rational basis
scrutiny
ii. All the court has to do is prove a legitimate state interest
1. A pretty low bar and the state has an interest in promoting the
children of divorced parents to go to college
2. It is upheld
a. Noncustodial parents are forced to pay for college expenses
iii. What if the child had not contact with father and wants nothing to do with
him?
1. Likely yes, but remember heavily a state by state basis
c. Pullman case
i. When a divorced parent later has additional children in a new marriage,
how should child-support be altered?
1. Majority says no, it should not be changed
2. Poopy decision tho fr
a. Doesn’t actually help anything, and just drains potential
resources from new family which the state shouldn;’t want
to discourage