Defining Family
Perspectives on the Family
Family Characteristics: Live together. Intimacy: Love/Sex. Emotional ties/bond. Pooled finances. Marriage. Genetics
and/or legal ties. Dependency. Social gatherings. Responsibilities to each other. Intent to be recognized as a family.
Themes of the Course
1. FL is Trans-Substantive
a. Not all family law cases, could be a zoning case, for example
b. What is considered family law is changing
c. Implicates both federal and state law (state is most common, statutory interpretation) (federal, ex. ICWAfederal gov't is intruding on Indian Children, etc.)
2. Legal Recognition of Families is Exclusive
a. Law only recognizes certain groups and individuals as families, others are excluded even if they think
they are a family
b. Should the law be expanding the concept of family?
c. Why does the law intervene in some circumstances but not in others?
d. It's not always great to be recognized as a legal family (benefits and legal obligations)
3. Legal rules and social norms are deeply intertwined in the law regulating families.
a. Law and society loop
i. Individuals may shape their behavior to make themselves look more like families
4. The family is both a network of relationships among individual citizens, and a series of relationships between the
individual and the state.
Overview
 Disagreement about what it takes to be considered a family
 Disagreement about which other intimate relationships the law school recognize
o And the rights, benefits, and obligations that should flow from recognition
 Controversies exist b/c distance between the relationships recognized by the legal system and the way people live
 Family law attempts to impose some measure of coherence and rationality upon a wide domain of life
 Distance between form and substance in FL has widened considerably over the past several decades
 Five trends:
o The movement from public to private ordering
 Exemplified by the increased acceptance by courts of premarital and separation contract agreed
to by the parties
o The expanding role of the fed. gov’t through con. law (Loving v. Virginia)
o The broaden commitment to equality
o The burgeoning # of transnational issues
 Presented by families whose members live or hold citizenship in more than one country
o A growing # of procedural innovations ranging from mediation and arbitration to collaborative divorce
 High rate of divorce
o 1 out of 3 marriages end in divorce. Has declined in the last few decades. Also have a higher rate of
marriage and remarriage.
o Decline correlates with the level of education of the parties
o Becoming a nation of separate and unequal families
Cherlin, The Marriage-Go-Round
 Introduction
o Religious people are less likely to divorce.
o High divorce states tend to have less education, to marry earlier, and not to be Catholic
o Having several partnerships are more common in US b/c people exit faster, enter faster, and after
breakup reenter faster
 The American Difference

o Americans marry and cohabit for the first time sooner than people in most other Western nations.
 Most marriages occurred by age 25
o A higher proportion of Americans marry at some point in their lives than in most other nations.
 84% of American women are predicted to be marry by age 40
 Americans begin to have partners at a relatively young age
 Americans turn those partnerships into marriages more quickly
o Marriages and cohabitating relationships in the US are far more fragile than elsewhere.
 American were less likely to be living with that partner 5 year later
o American children born to married or cohabiting partners are more likely to see their parents’
partnership break up than are children in most other countries.
o American parents are more likely to re-partner.
o American women become parents at an earlier age and are much more likely to spend time as
lone parents in their teens or 20s than are women in Western Europe.
o Family life in US involves more transitions than elsewhere.
o Culture Realm
 The contradictory emphases on marriage and individualism found only in US
 People think marriage should be for life, but tend to give others wide latitude to leave
unhappy living arrangements.
Notes
o The public doesn’t see marriages as the only path to family formation
 Shrinking institution of marriage
 Marriage rates linked to education  College graduates more likely to be married.
 Racial differences  Blacks marry less likely than whites. Black kids more likely to live
with one parent.
 Socio-economic  Poor just as eager as other adults to marry.
 Place a higher premium on economic security as a prerequisite for marriage than
do those with higher levels of income and education.
o Education correlates with the age at which people marry and divorce rates
 Reversal of long-standing marital patterns – Now college-educated young adults are more
likely than young adults lacking a bachelor’s degree to have married by age 30.
o Marriage and Social Inequality  Low and moderate-income Americans have the greatest
increase in the number of people who have multiple partnerships.
Formal and Functional Definition of Family
Two categories for those family characteristics
1. Transformative – Birth, Marriage, Adoption, Gov’t intervention
2. Build Up Over Time
Penobscot Housing Dev. Corp. v. City of Brewer (Maine 1981)
Facts
 Penobscot is a non-profit that provides housing to special needs citizens. It negotiated a purchase
agreement to buy a house in a district that was zoned for single family residential use. P applied to the
City’s code for an occupancy certificate and described the use as “group home for 6 adults.”
 City denied the permit and concluded the purpose did not meet the city’s ordinance as a single family.
 Ordinance’s definition of family
o A single individual doing his own cooking and living upon the premises as a separate
housekeeping unit OR a collective body of person doing their own cooking and living together
upon the premises as a separate housekeeping in a domestic relationship distinguished from a
group of occupying a boarding house, etc.
 Formal: Birth, marriage
 Functional: Domestic bonds, cook and live together in same home environment
Analysis
 P’s argued that lower court placed undue emphasis on the role of the staff and ignored the fact that the
purpose of the group home was to create a family environment.
o Requirement of a domestic bond would have been met by the relationship forged among the
residents.
 Requirement of domestic bond is NOT met.
o Concept of “domestic bond” implies the existence of a traditional family-like structure of
household authority.
 Which includes resident authority figures charged with the responsibility of maintaining a
separate housekeeping unit and regulating the activity and duties of the other residents.
 Authority Figure  Absent here
 Include one or more authority figures charged w/ responsibility of maintaining a
separate housekeeping unit and regulating the activity and duties of the other
residents.
 Staff wouldn’t reside at home
 Cohesiveness and permanence in the relationship of the residents  Absent here
 Residents wouldn’t have choice who incoming residents would be
 Short average stay (1 to 1.5 years)
 Bond between residents may resemble the relationship among boarders
 Persons should be doing their own cooking… upon premises as a separate unit.
 Staff would plan and manage activities and preparing meals.
 Extensive outside aid detracts from family nature of home.
 Domestic bonds serve the legitimate zoning interests in maintaining family value and a family style of
life.
Notes
 Blood relationship might take away some of the functional components because blood kinship is more
presumed to be a family.
 Should have sought legislative action.
Borough of Glassboro v. Vallorosi (NJ 1990)
Facts
 Ordinance limits residence in such districts to stable and permanent “single housekeeping units” that
constitute either a traditional family unit.
 City’s residential districts limited the use and occupancy of “detached dwellings” to “families” only
o Defined families as: One or more persons who are living together as a stable and permanent
living unit, being a traditional family unit or the functional equivalency.
o Functional components: “Living together,” “or functional equivalent”
o Formal: “Traditional family unit”
o Amendment purpose: To confine college students to specific locations
 ∆s purchased a home located in this restricted residential district and intended to provide college home
for 10 unrelated college students (semester leases).
o One large kitchen shared, ate together, shared chores, common checking account
Issue
 Whether a group of ten unrelated college students living in ∆’s home constitutes a “family” within the
definition of a restrictive zoning ordinance? Yes.
Holding
 The relationship among the group of students and their living arrangements within the home
demonstrated the “generic character” of a family.
o Relationship among the students show stability, permanency, and can be described as the
functional equivalent of a family.
 City’s injunctive relief is denied.
Analysis
 Π sought injunctive relief against the use and occupancy of the home by the students. Argued that the
occupants didn’t constitute as a “family”
 Case precedent
o Allow zoning regulations to restrict the uses to single housekeeping units  Definition must be
functional and capable of being met by either related or unrelated person.
 Plan by the students shows they want to live together for 3 years = stable and permanent living unit
 Students ate together, share chores, paid expenses together.
 Students intention to remain in the house throughout college
 Cited case for how to properly control this issue
o Disruptive behavior – unrelated households – may properly be controlled through the use of the
general police power.
o Zoning ordinances aren’t the proper method.
 Worried about defining family as too inclusive or exclusive.
Notes
 Societal loop – Hard to define the family, so we frequently fall back on our intuitions on what we think a
family is.
 Less predictable definition. Very broad. Not sure how it is going to be applied in the future.
Hann v. Housing Authority of Easton- Fed Court- Penn, 1989
 Family definition: “Two or more persons who will live together in the dwelling and are related by
blood, marriage or adoption.”
o ONLY A FORMAL DEFINITION
 Requires you to be a formal family and no way around it if you are just a functional
family.
 Hypo: Unmarried parents, three biological children.  Held not to be a family.
o Courts said this definition is not okay – Have to have something more than a formal definition.
Needs to be functional, too.
Summary Notes
 There are different contexts where we have to define family  Ordinance, benefits, etc.
 We tend to replicate what we think a family is
o Even when we try to open these definitions up, they tend to look like traditional family units
o If you don’t go by the formal family process (official family status), you open the families up to
invasions.
o Functional families still have to walk into court and show that they are a family.
State Interests and Constitutional Parameters
Moore v. City of East Cleveland (US 1977)
substantive due process test  Extended families
Facts
 ∆ lives with her son and two grandsons (cousins, not brothers). City said John was an “illegal occupant.”
 Housing ordinance limits occupancy to members of a single family. Ordinance contains a complicated
definition that recognizes a family only a few categories of related individuals. Because ∆’s family
doesn’t fit those categories, ∆ was convicted for a criminal offense. Most formal definition.
Issue
 Does the ordinance violation the 14th amendment due process clause? Yes.
Holding
 This ordinance can’t survive. Fails the rational basis test.
Analysis


Extended family has a fundamental right to decide who they live with.
When a city undertakes intrusive regulation on the family, the usual judicial deference is inappropriate.
o SC recognized that freedom of personal choice in matters of marriage and family life is protected
by the due process clause.
 Changes in family
o The purpose of these ordinances are to promote family values and family needs.
o In times of adversity, the broader family has tended to come together for mutual sustenance and
to maintain or rebuild a secured home life.
o The choice of relatives in this degree of kinship to live together may not lightly be denied by the
State.
 This ordinance slices into the Moore family. Some relatives can live together, others
can’t.  This intrusion prevents the Court from referring to the legislature.
o Const. prevents the City from standardizing its children – and its adults – by forcing all to live in
certain narrowly defined family patterns.
 Family can be regulated, but not intruded upon.
Concurrence
 Brennan – Equal protection
o The line drawn by this ordinance displays a depressing insensitivity toward the economic and
emotional needs of a very large part of our society. “Extended” form is especially familiar
among black families.
 Stevens – Property case, can’t restrict what owners can do with their property
o Unprecedented ordinance constitutes a taking of property w/o due process and w/o just
compensation. Rationale shouldn’t change if not family.
Dissent – Not a fundamental right.
 To equate ∆’s interest of permanently sharing a single house w/ the fundamental decisions to marry and
to bear and raise children is to extend the limited substantive contours of DP beyond recognition.
Notes
 First time SC says there is a fundamental right w/ regards to extended families.
 Distinguishable from earlier cases dealing w/ unrelated individuals where court upheld those ordinances
Village of Belle Terre v. Boraas (US 1974)
groups
Facts
 Village has restricted land use to one-family dwellings.
 “Family” means “one or more person related by blood, adoption, or marriage, living and cooking
together as a single housekeeping unit. A number of persons but not exceeding 2 living and cooking
together as a single housekeeping unit though not related by blood, adoption, or marriage shall be
deemed to constitute a family.” Formal definition; 2 people who meet the functional part of 1st definition
 AE are owners of a house and leased it to six not-related students.
Holding
 Passes RB – The ordinance bears a rational relationship to a legitimate state objective.
Analysis
 Legislative Discretion
o Every line draw by the legislature leaves some out that might have been included.
o Not judicial decision.
o Ordinance = economic and social legislation
 Policing communities, not regulating families.
 No evidence of animosity to unmarried couples.
o The provision brings two unmarried people into the definition
o Formal definition here is enough, doesn’t need an additional functional definition b/c already
encompasses 2 unmarried people
 Doesn’t place a ban on other forms of association
o No freedom of association issue here.
o If you meet the family definition, you can still associate with other people at your home.
 NOT a fundamental right!
o Rational Basis
 Ends – Healthy environment for raising families  Legitimate
 Quiet place, few people, restricted vehicle use
 Means – Police power (can be used to create the kind of community they want) 
Rationally related
Dissent
 Should be strict scrutiny
 Classification burdens the student’s fundamental rights of association and privacy guaranteed by 1st and
14th amendment.
o Reaches beyond control of the use of land and undertakes to regulate the way people choose to
associate w/ each other within the privacy of their own homes.
 The village should continue to pursue those purposes but by means of more carefully drawn and evenhanded legislation.
 Over-inclusive: Definition limits people too much. Going to kick out families even if they don’t cause
the problems that city is trying to prevent
 Under-inclusive: Definition allows families to have huge groups that cause the problems the city is
trying to prevent.
14th Amendment Handout
What is Substantive Due Process?
 Involves a “fundamental right” – Protections afforded by 14th DP clause
o (1) First amendment rights AND (2) “Implicit in the concept of ordered liberty” [right to privacy,
marriage, procreate and raise a family, to travel, to vote]
o Strict scrutiny
 Compelling gov’t interest
 Narrowly tailored
 If not fundamental right…
o Rational basis
 Rationally related
 Conceivable legitimate gov’t interest
o Almost all laws reviewed under rational basis are upheld.
What is Equal Protections of the Law?
 EP clause is violated when a state grants a particular class of individuals the right to engage in activity
yet denies other individuals the same right.
 Suspect Classification
o Strict scrutiny
 Compelling interest
 No less restrictive alternative
o Race and national origin
 Quasi-Suspect Classification
o Gender or illegitimacy
o Intermediate scrutiny
 Important gov’t interest
 Substantially related means
 NOT suspect or quasi classification
o Rational basis
Under-inclusive and Over-inclusive Analysis
 Under-inclusive


o If it doesn’t apply to individuals who are similar to those whom the law applies
Over-inclusive
o If it applies to those who need not to be included in order for the gov’t to achieve its purpose.
The law unnecessarily applies to a group of people.
A law can be both under and over –inclusive.
o The fact that a law is under-inclusive and/or over-inclusive doesn’t meant that it is sure to be
invalidated.
o If strict scrutiny is used, a relative close fit is required.
Marriage
Expectations of Marriage
 Honesty
 Formal commitment (more than dating)
 Sharing of assets
 Governmental Involvement
 Support
 Sex – Maybe children
 Exclusivity
 Life commitment
 Gifts
 Cohabitation
 Love / Romance
 Division of labor (Gender-based)
Notes
 Private contract between the parties
 Assumption that women get married effects women’s rights
 Coverture is gone but a lot of its attributes remains today and influence the marriage relationship
 Marriage = private contract between the parties + creates a status that the state is interested in
o State status = [certain rights and duties incident to the relationship come into being irrespective
of the wishes of the parties
 Courts intervene differently in entacted marriages than divorces.
The Traditional Model of Marriage
Graham v. Graham (MI 1940)
Facts
 H sues his former W based on a written agreement between the 2 made while they were married.
 Agreement: Wife agreed to pay $300 per month to her husband.
 The couple made this agreement to encourage the husband to quit his job and accompany his wife upon
her travels.
Holding
 The contract was not a competent one for married people to enter into.
 Contract between married people that changes the essential obligations of marriage is ILLEGAL.
Analysis
 Coverture: “A man can’t enter into contract w/ wife b/c they are essentially contracting w/ themselves.”
 A married woman has no general power to contract, but can contract only in relation to her separate
property.
 Contract is void b/c it contravenes public policy.
o Contract between married person which attempts to change the essential obligations of marriage
contract = contrary to public policy and unenforceable



Obligations – Gender specific
 H has a duty to support and live w/ his wife
 Wife must contribute her services and society to the husband and follow his
choice in domicile.
o Here, the provision releasing the H from his duty to support his wife makes the contract void.
 H can call upon his wife for payments – practically getting rid of his obligation
o Here, the husband becomes obligated to accompany his wife.
 While under the law of marriage, the W is obligated to follow the H’s choice of domicile.
Slippery slope on public policy implications– Could contract to everything
o Litigation over trivial issues.
o Would destroy the element of flexibility needed in marriage
o Objection is to putting such conduct into a binding contract, tying the parties’ hands in the future
and inviting controversy and litigation between them.
This case is distinguishable from those contracts made after separation (legal).
Bradwell v. Illinois (US 1873)
Facts
 Women sought admission to Illinois bar. She was denied admission b/c she was a woman.
Issue
 Should π be admitted to practice law? No.
 Whether coverture has a place in modern law? Yes. It matters.
Analysis
 Introduces coverture into constitutional law.
 Timidity and delicacy of women is unfit for many occupations.
 Constitution of the family organization indicates the domestic sphere belongs to the woman.
 Interest of the family is repugnant to the idea of a woman having an independent career from her
husband.
 Destiny of women are to fulfill the office of wife and mother.
 Single women are an exception (don’t need separate rules). It’s a temporary.
Blackstone on Coverture
 “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of
the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the
husband; under whose wing, protection, and cover, she performs every thing . . . .”
 Woman legal identity is merged into the legal identity of her husband.
 Women give up things in marriage. Women get support from husband.
 Legal Consequences of Coverture
o Married Women:
 Surrender an independent legal identity upon marriage
 Lack the capacity to contract [contract signed by women = unenforceable]
 Lack the capacity to hold or sell property in their own right
 Cannot vote [woman is represented by husband’s vote]
 Cannot sue or be sued [husband must sue or be sued on behalf of wife]
 Cannot be found guilty of certain crimes [presumed to be acting as behest of husband]
o None of these are real benefits, actually prevents women from engaging in business sphere. No
one will loan them money or sign a contract.
 Single women are ignored under this doctrine. Assumption that all women will be married.
 Definitions (Won’t use again)
o Feme Covert – A woman who is married (a covered woman)
o Feme Sole – A woman who is single (a solo woman)
Challenges to the Traditional Marriage Model
A New American Agenda for Children and Families
 Most dramatic social change – march of mothers into the paid labor force.
 Mothers of school age children are even more likely to be in the labor force.
 Unmarried mothers have been far more likely to work than married mothers.
o Sharpest increase has been married mothers, especially those w/ very young children.
 Reasons
o Increase in the number of available jobs
o Expand women’s access to the work place
o Influence of the women’s movement
o The mechanization of many household tasks
o Declining income and employment opportunities of young men
o Difficulty of maintaining a secure standard of living on one income.
Constitutional Limits on Sex Discrimination
Ginsburg, Gender and the Constitution
 Text of 14th amendment brought concern among feminist b/c of the use of “male” instead of “citizen” in
the second section.
 The judiciary demonstrated utmost deference to sex lines drawn by the legislature.
 In SC, until 1971, no legislatively drawn sex law, however sharp, failed to survive const. challenge\
Marriage and Family Privacy


How much will the gov’t reach into the privacy of marriage?
o Will help at the beginning and the end, but not much in between.
o McGuire: Example of how much or how not reach into marriages.
 Hard to define legally what a marriage is b/c courts won’t interfere in it.
o Doctrine of marital privacy
 Has been constitutionalized.
 Gone from common law doctrine and now shows up in 14th amendment
Modern Marital Privacy - See it in other places
o Torts; Evidence (spousal privilege); Criminal Law (domestic violence)
McGuire v. McGuire (NE 1953)
Facts
 Π, wife, brought this action in equity against her husband to recover suitable maintenance and support
money. Π has two children from previous marriage, no children w/ ∆. Π provides the court w/ numerous
complaints about ∆ like cheap, live in a crappy house, not fun, not a good companion, needs support to
see her daughters, etc.
 TC w/ π. Π legally entitled to a long list of financial obligations by ∆ (improve house, buy new car w/
heater, pay travel expenses, $50 monthly payment).
Holding
 w/ H. To maintain an action for support, the parties must be separated or living apart from each other.
Analysis
 Precedent
o Earle case – If a wife is abandoned by her husband, w/o means of support, a bill in equity will lie
to compel the husband to support the wife w/o asking for a divorce.
o Corchran case – A court of equity will grant alimony to non-divorce couples where the wife is
separated from the husband w/o her fault.
o Brewer case – A wife may bring suit in equity to secure support and alimony w/o a divorce.





Marital relationship has continued for 33 years, wife has been supported in the same manner all those
years w/o a complaint, parties are not separated or living apart.
If the home is maintained and the parties are living as H and W, H is legally support his W.
o The purpose of the marriage relation is being carried out.
Wife has her own money!
Court considered about invading a marriage. Will not get involved w/ marriage intact.
o Married and separate (still have duties within marriage) vs. marriage and together (can’t get
involved)
o Maybe encouraging divorce/separation – Wives can get support if she divorced her husband.
Divide between private and public
o Court won’t get involved in private support.
o Court will considered more and order support b/c divorced wife w/o H’s support will get public
support (welfare).
Dissent
 Should be allowed even though they are not divorced/separated b/c she should still have the right to
maintenance.
 She should not have to get a divorce as a condition precedent to requesting maintenance. However, it
should have been limited to just the $50 a month payment.
Constitutional Right to Privacy
Griswold v. Connecticut (US 1965)
Due process case
Facts
 ∆, executive director of Planned Parenthood, convicted of giving information to married couples to
prevent conception. Criminal code helping Connecticut to control what families are.
 State had two statutes that made it illegal to use or assist the use of contraceptives.
 ∆ argued that the statute violates the 14th amendment.
Holding: Statute is unconstitutional.
Analysis
 This is about privacy within a marriage, not the use of contraceptive.
 State goal = stop premarital sex
 The law operates directly on the intimate relation of husband and wife and their doctor’s role.
 Precedent case: Protection of right to educate, study, and associate (deal w/ privacy)
 1st, 3rd, 4th, 5th, and 9th amendments create a zone of privacy.
o Specific guarantees in the Bill of Rights have penumbras
o Marital relationship falls within that zone.
o A law forbidding the use of contraceptives has a destructive impact upon that relationship.
 Achieved by broad means and thereby invade the area of protected freedoms.
 Police searching marital bedrooms = repulsive to the privacy of marriage
 Marriage = intimate to the degree of being sacred.
Concurring
 Goldberg – 9th amendment says there are additional fundamental rights (right of privacy in marriage)
 White – Deprives married couples liberty w/o due process of law. Goal = okay but the means aren’t
right.
Dissent
 No const. right to privacy. Gov’t can invade if no const. right. 9th and 14th amendments don’t create a
right to privacy. Court doesn’t have the power to supervise the legislature’s arbitrary enactments.
Eisentadt v. Baird (US 1092)
Facts
 ∆ convicted for exhibiting contraceptive articles during a lecture and giving vaginal foam to a girl.


State SC set aside the conviction for the articles (1st amendment), but upheld 2nd conviction.
Statute made it illegal to give contraceptives to unmarried couples, but allowed contraceptives for
married couples.
Issue
 Whether there is some ground of difference that rationally explains the different treatment accorded
married and unmarried persons? No.
Holding
 Like Griswold, but w/ unmarried couples  Expands the right of marital privacy and redefines the right
of privacy by untying it to marriage. Applies to individuals.
Analysis
 The effects of the ban on distribution of contraceptives to unmarried persons has a marginal relation to
the objective of preventing unmarried sex.
 If heath was the rational, the statute would be both discriminatory and overbroad.
o Not the real purpose, more about the deterrence of premarital sex
 We don’t punish people (by having babies) for premarital sex
 Can’t be upheld as a prohibition on contraceptives b/c the rights to access it must be the same for
married and unmarried alike.
 The right to privacy means the right of individual (married or single) to be free from unwarranted gov’t
intrusion into matters that fundamental affect a person as the decision to have kids or not
 Violates Equal Protection – By providing dissimilar treatment for married and unmarried persons who
are similarly situated.
o On appeal – brought up on Due Process and Equal Protection. Court ruled on EP and not DP b/c
they did not want to rule that contraceptive is a fundamental right (or substantive question).
o Rational Basis - Fails
DOMESTIC VIOLENCE
Fundamental Questions
 How much does, and how much should, the law ban or permit abuse?
 And, to what extent should the law punish or protect victims, perpetrators, and those who are wrongly
accused?
 Coverture
o H could use correctional actions to his wife, but w/ limits (stick could be 2 inches long)
o Later, states took this off the book and didn’t allow violence. BUT the states didn’t go into the
marriage to stop violence.
o 1970s: States start creating separate crimes for domestic violence.
 Positives of difference: Continuing relationships, more intimate, violence continues (try
to stop the cycle)
 Marital Rape Exception
o No longer on the books.
o States don’t treat marital rape the same as other types of rape. They recognize it as a crime, but
we do it in a way where there is less punishment.
o Justifications it should be different:
 History of consensual sex in the relationship. Have to find the point where consent ended.
 Where is there coercion? Physical force or emotional force (negotiations).
 Hasday, “Contest and Consent: A Legal History of Marital Rape”
 Think about coverture when thinking about the history here
o Historical Justifications for Marital Rape Exception
 Contract Theory: Have sex when your husband wants to
 Chattel Theory: Property of husband, using property as he sees fit



 Merging Identities Theory: One identity = Can't rape yourself
Marital rape has been modified, but not entirely
o Just a different form of crime if it happens within a marriage- less serious sanctions and/or
procedural hurdles for the prosecution
o Some states require separation at the time of the injury
Arguments for Marital Rape Exemption
o Privacy within a marriage = Protection from outside scrutiny and intervening
 Claim that this privacy protection goes both ways in protecting the sanctity of marriagejoint privacy
 This facilitates marital reconciliation, which is a shared interest of husbands and wives
 Vindictive Wife Argument- exemption should be preserved to prevent wives from
pursuing false charges of marital rape, especially to gain leverage in a divorce suit.
Feminist Argument against Exemption
o Women need and deserve legal rights to protect themselves from the serious harm caused by
unwanted sex in marriage
o Privacy argument sucks – Keeps the state from equalizing women’s rights and protect husband’s
power.
 Already destroys marital harmony. Not state intervention but the rape itself.
o Causes women serious harm
 Deprives women of control over their reproductive capacity, physiological aspects of
motherhood, denies women the right of control their sexuality and their chances for
sexual pleasure, violation of women’s bodily integrity
South Dakota Laws
ADD SDCL §§ 25-1-10.2; 25-10-1, -3.1, -3.2
 South Dakota is the first state to make marital rape a crime
 Civil Protection Orders
o Bars an individual from contacting, being involved with, being around, against another person.
 Most used system to combat domestic violence.
 Purpose: Stop violence from happening, instead of a retroactive approach
Entering into Marriage
Restrictions on Who May Marry

Should society regulate marriage? What restrictions?
o Consider the purpose of marriage.
o In evaluating restrictions, it is useful to consider their effects.
 Won’t prevent couples from having children out of wedlock; will deny couples privileges
and protections attached to marital status
o What branch of gov’t should make the rules? Who should enforce the rules? What limits are
placed on powers of states to regulate marriage by the Constitution?
SDCL §25-1-1. Marriage defined--Consent and solemnization required
o Marriage is a personal relation, between a man and a woman, arising out of a civil contract to
which the consent of parties capable of making it is necessary. Consent alone does not constitute
a marriage; it must be followed by a solemnization.
o VALIDITY: Held Unconstitutional by Rosenbrahn v. Daugaard, 2015, 799 F.3d 918 (8th Cir.
2015).
 Definitions
o Marriage can be:
 Void ab initio (or, void): The marriage was void from the time it started. There never was
a marriage. Example: Bigamy, polygamy.


Incest
Voidable: The marriage was a real marriage while ongoing, but a court can declare it
void. Examples: Age, fraud in the inducement
o Punitive Spouse Doctrine
 A putative spouse is person who has cohabited w/ another to whom he is not legally
married in good faith belief that he was married to that person.
 Equitable doctrine that protects an innocent spouse.
 Property rights, support obligations.
Traditional Restrictions


State v. Sharon H.
Back v. Back: Court found marriage to protect mother and children to grant them support.
Goes out of its way. Concerned about public support.
 All states prohibit marriage between parents and children, brother and sister, aunt and
nephew, uncle and niece.
 Although married cousins are more likely than unrelated couples to have children w/
birth defects, the risk is smaller than many thought.
 Incestuous marriage bans specifically apply to adopted children.
 All affinity relationships cease upon termination of marriages that produced them.
 Reasons for banning this:
 Prevent genetic inbreeding; children trusting of adults b/c know relationships
won’t become sexualized; social taboo; encouraging out married is good to
society; religious component.
SDCL § 25-1-6. Incestuous marriages void
 Marriages between parents and children, ancestors and descendants of every
degree, and between brothers and sisters of the half as well as the whole blood,
and between uncles and nieces, or aunts and nephews, and between cousins of the
half as well as of the whole blood, are null and void from the beginning, whether
the relationship is legitimate or illegitimate. The relationships provided for in this
section include such relationships that arise through adoption.
SDCL § 25-1-7. Marriage with stepchild void
 Every marriage of a stepfather with a stepdaughter or a stepmother with a stepson
is null and void from the beginning.
State v. Sharon H. (1981)
void ab initio marriage
Facts
 ∆s, half-brother and sister, charged w/ engaging in a prohibited marriage.
 Same mother, different fathers. Sharon was adopted by a different family. Dennis was a ward of the
state. Sharon found out she had a half-brother, helped him get parole, then got married.
 TC w/ ∆s. Court reverses.
Analysis



∆’s argue: Adoption law must be read to end all relationships, including blood ties.
o Marriage Law: Prohibits the marriage between a person and their ancestors, descendants,
brother, sister, etc.
o Adoption Law: The adopted child shall no longer be considered the child of his natural parents
o A consanguinity statute prohibits marriages between blood relatives in the lineal.
 Obvious intent of statute to prohibit marriages between blood relatives is a reasonable
interpretation of the statute would prohibit the marriage between ∆s.
∆ arg.  Penal statute = strictly construed in favor of ∆s
o No ambiguity as to whether the marriage of ∆s was prohibited by statute.
o Statute clearly prohibits the marriage between brothers and sisters
Whether the effect of the adoption statute is to destroy all ties between adopted child and the child’s
natural relatives, including ties of blood? NO.
o Marriage law still applies to the facts of this case.
o Adoption law eliminates the legal duties between the parties.
Back v. Back (1910)
Facts
 WB, decedent, married a widow, MD, who then had one living daughter by her former husband, π.
 MD obtained a divorce from WB. 4 years later, WB married π. 2 years later, MD died.
 ∆’s resistance of π’s application as a widow. Argue that the marriage was incestuous and void under the
law.
 Incest Law: Includes marriage between a man and his wife’s daughter, and prohibits such marriage.
 TC ruled that the marriage to π was VOID at its start, and continued to be VOID after MD’s death. Π
NOT a widow.
Issue: Whether the marriage of π to decedent was within the prohibition of marriage? No.
Holding: Marriage between WB and π = valid.
Analysis
 Depends on the construction of words “wife’s daughter”
 Purpose of statute: Punish the carnal knowledge as between persons having the specified relationships.
o The enumeration of relationship is simply a method of stating more definitely what are the
degrees of consanguinity
 The relationship of affinity between WB and π that existed during the continuance of the marriage
between WB and MD terminated when MD divorced WB.
 After that time, π was NOT the daughter of WB’s wife.
Age
Tends to be a voidable marriage – if you get married too young but continue to act
married until age of majority, court will say it’s a real marriage.
 Common law – Children capable of consenting to marriage at age 7, although marriage
was voidable until they reached the age of discretion (presumptive age at which marriage
could be consummated, 12 for girls, 14 for boys)
 Most states permit 16 or 17 year olds to marry w/ parental consent.
 Not lower age b/c of child welfare concerns.
 Purpose: Assumption that parents are acting in the best interest of their children
 Judges may override either parental consent or refusal to consent below the age of
majority
SDCL § 25-1-9. Age of consent to marriage with and without parental consent
 Any unmarried applicant for a marriage license who is eighteen years old or
older, and who is not otherwise disqualified, is capable of consenting to and
consummating a marriage. If either applicant for a marriage license is between
the age of sixteen and eighteen, that applicant shall submit to the register of
deeds a notarized statement of consent to marry from one parent or legal
guardian of the applicant.
SDCL § 25-1-13. Consent of parent or guardian required for marriage of minor--Memorandum in record book
 If either party is a minor, no marriage license shall be granted unless the written
consent of the parent or guardian, duly acknowledged by the parent or guardian,
or proved to be genuine, is filed in the office of the county register of deeds prior
to issuing the license, and a memorandum of the facts shall be entered in the
marriage record book with the other records of the marriage license.
Monogamy
 Many constitutional challenges to bigamy laws.


Much larger proportion of American men and women have more than one spouse during
a lifetime than adults in most polygamous societies.
SDCL § 25-1-8. Bigamous marriage void—Former spouse absent or believed dead
 A subsequent marriage contracted by any person during the life of a former
husband or wife of such person with any person other than such former husband
or wife, is null and void from the beginning, unless the former marriage has
been annulled or dissolved, or unless such former husband or wife was absent
and not known to such person to be living for the space of five successive
years immediately preceding such subsequent marriage, or was generally reputed
and was believed by such person to be dead at the time such subsequent
marriage was contracted, in either of which cases the subsequent marriage is valid
until its nullity is adjudged by a competent tribunal.
 SD marriage’s definition is limited two persons.
Black’s Law Definitions
 Bigamy:
o The act of going through a marriage ceremony while already marriage
o Theory behind this? Protect the first spouse in inheritance, religion
o Void ab initio
 Polygamy:
o The act of being married to more than one person
o Criminal enforcement not really going on anymore, but it could be
enforced somewhat through custodial issues. Ex. Child is in danger
o Social, religious, and practical reasons to not allow polygamy
 Inheritance, public support, taxes
Mental Incapacity
 A widely accepted restriction on who may marry
 Many states restricted marriage by people w/ mental retardation
 Such marriages are voidable if a court finds that one of the parties was either a person w/
mental retardation or lacked the mental capacity to contract to marry.
Constitutional Boundaries on Restricting Marriage
Loving v. Virginia (1967)
void ab initio marriage
Facts
 Two residents of Virginia, black woman and white man, were married in DC legally. After their
marriage, they returned to Virginia. They were indicted for violating Virginia’s ban on interracial
marriages.
 Virginia doesn’t recognize their marriage since they left the state, but cohabitation will be evidence of
this marriage. Virginia uses marriage and criminal code to articulate what Virginia thinks families and
marriage should look like.
 Lovings filed a motion to vacate the judgment on the grounds that the statutes violated were repugnant
to the 14th amendment.
 State TC denied motion (uses a religious lense). CoA upheld the constitutionality.
Issue: Whether a statutory scheme to prevent marriages between persons solely on the basis of racial
classifications violates the EP and DP clauses of 14th amendment? Yes.
Holding: The freedom to marry a person of another race resides with the individual and cannot be infringed by
the State.
Analysis
 State arguments:
o This is a state law issue. States power to regulate marriage.
o EP requires state laws that contain interracial elements must apply equally to whites and blacks.
 Court: Reject the “equal application.”
o Statute not based on race, therefore, only needs to pass rational basis
 Court: Doesn’t pass RB, doesn’t serve a rational purpose.
 Equal Protection
o EPC requires the consideration of whether the classifications drawn by any statute constitute an
arbitrary and invidious discrimination.
 No question that Virginia’s miscegenation statutes rest solely upon distinctions drawn
according to race.
 Racial classifications, especially criminal, must be subject to most rigid scrutiny.
 Must be shown to be necessary to accomplish compelling state objective (no)
o Here: No legitimate purpose independent of invidious racial discrim.
 Due Process (dicta)
o Statute deprives Lovings of liberty w/o DP of law.
o Freedom to marry = one of vital personal rights essential to the pursuit of happiness
o 14thA requires that the freedom of choice to marry not be restricted by racial discrim.
Takeaway: Marriage is a least a fundamental right that can’t be infringed on by discriminatory laws.
 Leaves open: Can state restrict marriages in un-discriminatory ways?
Zablocki v. Redhail (US 1978)
Facts
 WS statutes:
o Class – Any WS resident having a minor issue not in his custody and has child support.
o Prohibition – Court permission cannot be granted unless the marriage applicant submits proof of
compliance of child support and demonstrates that child won’t be on public support.
o No marriage license can be lawfully issued except under court order.
o Marriage enter w/o compliance = void
 Π denied a marriage license for failure to comply with statutes. Teen dad, too poor to pay child support.
o Didn’t satisfy either requirements b/c hadn’t paid his support and child was on welfare.
Insurmountable bar.
o ∆’s purpose of statute: Make parents stay up on their child support
 DC: Statute = unconst.
 Court affirmed.
Issue: Whether a state statute that provides that members of a certain class of residents may not marry, within
the State or elsewhere, without first obtaining a court order granting permission to marry is constitutional? No.
Holding: Statute = unconst.
Analysis
 Π arg.: Violates EP and DP of 14th amendment
o This is an equal protection – classes: ability vs. inability to pay
 Precedent: Right to marry = fundamental importance to everyone. Part of “right of privacy.”
 Reasonable regulations that do NOT significantly interfere with decisions to enter into marital
relationship may legitimately be imposed.
o Here, statutory classification clearly interferes directly and substantially w/ the right to marry.
o Some people in the affected class, like π, will never be able to obtain the necessary court order
 These people are absolutely prevented from getting married.
 Must pass heightened scrutiny b/c fundamental right to marry.
o When a statutory classification significantly interferes with the exercise of a fundamental right, it
can’t be upheld unless it is supported by important state interest and is closely tailored to
effectuate only those interest.
 If EP, socioeconomic status would get RB.
 Over and Under-inclusive
o Over: New spouse will better π’s financial situations.
o Under: Doesn’t limit new financial commitments by applicant other than those arising out of the
contemplated marriage.
Concurrence
 Powell: Intermediate scrutiny, not SS. State law issue.
 Stevens: RB. Statute is invalid for its failure to exempt those persons who simply can’t afford to meet
the state’s financial requirements. Statute = over/under-inclusive (policy arguments)
Dissent: RB is the right test. Statute = permissible. Exact type of prohibition States can do.
Takeaway:
 Loving – immutable characteristic – SS – EP
 This case: Court can’t do exact same analysis b/c we have a non-immutable characteristic that falls
under non-suspect class which means we should use RB (state might win), but instead we pop up to a
higher level of scrutiny b/c we are saying marriage is some type of fundamental right.
Rule (after Loving and Zablocki): States can have barriers to marriages, but those barriers can’t be
insurmountable.
Turner v. Safley (US 1987)
Due process case
Facts
 Prison marriage regulation: Permits an inmate to marry only w/ the permission of the superintendent,
and provides that such approval should be given only when there are compelling reasons.
o Compelling reasons: Only a pregnancy or the birth of an illegitimate child
o Applied disproportionality to the women inmates.
Holding: The ban on the decision to marry is not reasonably related to legitimate penological objectives.
o Regulation is facially invalid.
o Marriage is a fundamental right you don’t lose when you are in prison.
Analysis
 Prison’s arguments
o Rule doesn’t deprive prisoners of a constitutionally protected right (Zablocki and Loving don’t
apply to prisoners)
 Court: Zablocki does apply!
 Prisoners retained const. rights that are not inconsistent w/ his status as a prisoner
 Important attributes of marriage remain:
o Expression of emotional support and public commitment
o Spiritual significance
o Formed in the expectations that they ultimately will be fully consummated
o Precondition to the receipt of gov’t benefits
 These incidents of marriage are unaffected by the fact of confinement.
o These remaining elements are sufficient to form a const. protected marital
relationship in the prison context.
o Even if the regulation burdens inmates’ const. rights, the restriction should be tested under a
reasonableness standard.
 Restriction is reasonably related to legitimate security and rehabilitation concerns.
 Security Concerns: Regulation not reasonably related to penological interest.
o ∆: Love triangles lead to violence.
o Easy alternatives to accommodate the right to marry while imposing a de
minimis burden on the security objectives.
o ∆ hasn’t pointed to anything in the record suggesting the regulation
prevent love triangles.
 Rehabilitation Concerns: Regulation not reasonably related to the rehab goal.
o ∆: Female inmates overly dependent on male figures; come from abuse
relationships; concentrate on developing skills of self-reliance.
o Rule sweeps too broadly
o Barely any objections to inmate-civilian marriages
o Concern really based on female inmates marrying male inmates
Notes
 Doesn’t have to get to equal protection (applied unequally) because it loses under due process.
 Marriage and procreation: Tied together. But here, sex and procreation doesn’t necessarily go with
marriage.
 Before this case, the court has said very little about the other aspects of marriage (besides sex and kids)
 Takeaway: Marriage continues to be a FR, and even though many rights can be abridged in the prison
context, an inmate still has a right to marriage b/c there are other points to marriage besides sex and
marriage. The relationship itself fits in the constitutional dimension.
Obergefell v. Hodges (US 2015)
Facts
 Cases come from Michigan, Kentucky, Ohio, and Tennessee, States that define marriage as a union
between one man and one woman.
 The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased.
o Petitioners claim the respondents violate the Fourteenth Amendment by denying them the right
to marry or to have their marriages, lawfully performed in another State, given full recognition.
 The respondents are state officials responsible for enforcing the laws in question.
Holding
 The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process
and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be
deprived of that right and that liberty.
 The Court now holds that same-sex couples may exercise the fundamental right to marry.
 State laws are now held invalid to the extent they exclude same-sex couples from civil marriage on the
same terms and conditions as opposite-sex couples.
Analysis
 Whether the 14thA requires a State to license a marriage between two people of the same sex? Yes.
o Marriage is scared and offers unique fulfillment. Essential to hopes and aspirations.
o DP: These liberties extend to certain personal choices central to individual dignity and
autonomy, including intimate choices that define personal identity and beliefs.
 Kennedy uses both DP (the most) and EP.
o Fundamental reasons applies to equal force to same-sex couples.
 The right to personal choice regarding marriage is inherent in the concept of individual
autonomy
 The right to marry is fundamental because it supports a two-person union unlike any
other in its importance to the committed individuals. Differs now not man & woman.
 It safeguards children and families and thus draws meaning from related rights of
childrearing, procreation, and education
 Marriage is a keystone of our social order
o Marriage = foundation of family and society
o States themselves make marriage all more significant. States driven by animosity, not a goal.
 Exclusion forms the status that gays are unequal. Grave and continuing harm. Disrespect
and subordinate.
o Equal protection and due process clauses  Prohibits this unjustified infringement of the
fundamental right to marry. (doesn’t say what level of scrutiny, magic languages, tests, etc.)
 Whether the 14thA requires a State to recognize a same-sex marriage licensed and performed in a State
which does grant that right? DOMA
o If States are required by the Constitution to issue marriage licenses to same-sex couples, the
justifications for refusing to recognize those marriages performed elsewhere are undermined
o There is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed
in another State on the ground of its same-sex character.
Dissent
 Roberts: Not about a right to marry, but about a state’s right to define marriage.
SDCL § 25-1-38: Validity of marriages contracted outside state--Same-sex marriages excluded
 Any marriage contracted outside the jurisdiction of this state, except a marriage contracted between two
persons of the same gender, which is valid by the laws of the jurisdiction in which such marriage was
contracted, is valid in this state.
 VALIDITY: Held Unconstitutional by Rosenbrahn v. Daugaard, 799 F.3d 918 (8th Cir. 2015)
Procedural and States of Mind Restrictions

Procedural
o Type of restrictions states put on couples when they are actually going to get married (how to get
married).
 State of Minds
o Need general capacity to contract (consent)
o Equalities in parties in marriage (no force, fraud, etc.)
 Parties enter into marriage freely.
o If someone is found insane when married, court will annul b/c party wasn’t able to contract
 Summary
o Like the substantive restrictions on marriage, the procedural restrictions shape the normative
view on marriage.
 Reflect social norms.
o State of mind (fraud) – Reminds us that historically, that marriage is a civil contract between 2
people and a status that the state cares about (3rd party)
o State is continuing to control marriage
SDCL § 25-1-10. License required for marriage--Fee--Disposition of fees--Form--Certified copies—Fee
o Previous to any marriage within this state, a license shall be obtained from the county register of
deeds of any county, the fee for which is forty dollars. Ten dollars of the marriage license fee
shall be retained by the county in which the fee is collected and placed in the county general
fund. Thirty dollars of the marriage license fee shall be deposited in the county domestic abuse
program fund. The license and record of marriage form shall be prescribed and furnished by the
Department of Health. Certified copies of the marriage record shall be furnished by the county
register of deeds for a fee established pursuant to § 34-25-52 and such fee shall be retained by
the county in which the fee is collected and placed in the county general fund.
SDCL § 25-1-10.1. Application for marriage license--Proof of age required
o To obtain a marriage license, each applicant shall sign the application in person in the presence
of the register of deeds or in the presence of a person duly appointed by the register to act in the
register's behalf. Each applicant shall provide proof of age prior to issuance of the marriage
license. Proof of age may be satisfied by providing a certified copy of a birth certificate or any
photographic identification which includes the applicant's name and date of birth. No person may
use a power of attorney to obtain a marriage license.
SDCL § 25-1-10.2. Application for marriage license--Required statement
o The application for a marriage license shall contain the following statement:
 “The laws of this state affirm your right to enter into this marriage and at the same time to
live within the marriage free from violence and abuse. Neither of you is the property of
the other. Physical abuse, sexual abuse, battery, and assault of a spouse or other family
member, as well as other provisions of the criminal laws of this state, are applicable to
spouses and other family members and violations thereof are punishable by law.”
o The application shall contain a separate line for the signatures of the applicants verifying that the
applicants have read and understand the statement.
PROCEDURAL RESTRICTIONS:
Rappaport v. Katz (S.D.N.Y. 1974)
Facts
 Π - 2 couples, one married by ∆ and the other planning marriage. Complain they were subjected to dress
guidelines (women must wear a dress; groom must wear a coat and tie; one or more rings must be
exchanged).
o Both women wanted to wear pants to their weddings for equality and combatting sex
stereotyping. Also, one couple did not want to exchange rings.
o Argued that these guidelines deprive them of due process of law. Casted in the mold of § 1983
violation.
 ∆ - City Clerk of the City of New York.
Issue: Whether the federal courts should supervise marriage forms and procedure in City Clerk’s offices? No.
Holding: Such a dispute is best and most appropriately resolved by the State.
 ∆’s function is in an area fundamentally of state concern
 The degree of decorum at weddings in local office does not sufficiently justify provoking a federal-state
conflict.
Notes
 Regulations from this case change to suggest a particular form of dress and the exchange of ring
requirement has been dropped.
 Leaving such issues up to the states sounds like Roberts’ opinion in Obergefell.
 American law = no required formalities for the celebration of marriage.
o Really only requires licensing and registration.
 This case is before Zablocki (4 years) – What would happen if this was after Zablocki?
o Upheld, not substantial burden or insurmountable barrier on people. Seen as a diminus
restriction.
 Hypo: Religiously required to wear pants?
 Could go to a religious leader (other options to have other people marry them)
 Might not want to provide specific b/c religious pluralism
 *Reasons why we have less restrictions but also would maybe allow this
regulation
o Arguments against: Economic cost [not viable b/c states can have small fees to get married]
o TAKEWAY: We have religious pluralism—more so in America than other countries—so we
have minimal restrictions. But, question the procedural restrictions govt. can impose on
marriage.
STATE OF MIND RESTRICTIONS:
Lester v. Lester (Domestic Relation of NY 1949)
Facts
 Π, wife, and ∆, husband, were married according to the law. ∆ claims that no valid marriage was entered
into. He brought 2 exhibits: (1) document that provides π’s reason for marring ∆ was to make family
happy AND that the marriage is pretend and is going against ∆’s wishes; (2) document that says
marriage is null and void.
Issue: Has the marriage contract entered into between the parties been the result of coercion, threat, force,
fraud? No.
Holding: π is the wife of ∆ and continues to be until the marriage is annulled.
 Can’t entered into marriage in conformity with the laws and then dissolve it in violation of the law.
o He accepted the benefits of his marriage, so he can’t get out of his obligations to his wife now.
o ∆’s claims of coercion = unfounded b/c he had a relationship w/ π for 10 years




Trying to change the contract of marriage.
o Violates public policy  Signed after they were married is not enforceable when the agreement
runs counter to the established law and the morals of society.
o Can’t cancel the marriage (contract) by mutual assent b/c there is a third party (state)
 Can’t renegotiation the status of marriage b/c we except certain obligations of marriage
 H has only benefited to the contract, hasn’t given anything back (H needs a long-term
obligation – Don’t want wife to be w/o support and on public assistance)
Marriage procured by coercion or fraud = ab initio AND may be annulled
o Marriage presumed to a relationship entered upon freely and voluntarily.
o State has interests in marriage.  Men enter marriage to have babies (family is the result of
marriage).
o Rule: Though marriage is a free institution to be entered into freely and voluntarily b/c of the
community interest in the institution, the state has a right to regulate and institute upon decency
and morals in its maintenance.
Husband wants annulment so he is relieved of his obligation as husband.
TAKEAWAY: Individuals cannot set aside requirements of marriage before entering into it. Also,
cannot unilaterally exit. Finally, cannot condone the coercion when trying to assert coercion in
annulment.
Notes
 Annulment: Marriage considered void, as if it did not happen.
o Wife gets no support; children had during marriage were now considered illegitimate.
o Strict rules of marital property do not apply. Instead, equitable distribution
o Voidable marriage  Go to court to get the court to rule that it was void
 Divorce: While you were married, the marriage was good (valid). Time of divorce, it was not.
o Get all support. Strict rules of marital property apply.
o At this time, divorces were harder to get b/c it was at fault divorce.
 Arranged Marriage
o On the face of them, they are okay. Don’t presume them to be coercion. However, they may
come to a point where they are coercion.
o Most cases: No coercion, people signed the documents willingly, unless strong evidence to show
otherwise.
Johnston v. Johnston (CA CoA 1993)
Facts
 20 months into marriage, wife sought to have marriage annulled. Wife provided detailed testimony
about what she thought her husband was going to be like and how he actually turned out (prince 
frog): bad sex, unemployed, drunk, dirty, etc.
 TC w/ wife and found that wife’s consent has been fraudulently obtained and annulled the marriage.
 Court w/ husband.
Holding: Reversed. No evidence of fraud. No annulment must get divorced.
 Statute: Marriage = voidable if the consent was obtained by fraud.
 The concealment of incontinence, temper, idleness, etc. cannot be the basis for an annulment.
 Fraud must go to the very essence of the marriage before it is sufficient for an annulment.
 Wife wants annulment b/c if the marriage is void, then the deed (she deeded the property to husband and
her name b/c they were married) is void.
Notes:
 What does it mean to be “essence”? Limited to just being about sex.
o Essence = sex and childrearing
o Sufficient fraud in withholding evidence of vernal disease, infertility, can’t have sex.
o Finances or support obligations are NOT sufficient to be fraud.
People sell themselves when they are dating. Might trap people into a marriage by building up
their career and money. Courts just don’t want to get involved in this—really hard to adjudicate.
Common Law Marriage
 This is an actual marriage, not just an equitable remedy
o Evidence and factual basis to determine how you became married.
 Once this is determined, you pop into all the protection of legal marriage
 If you went to court and got an official common law marriage thing - If you want
marriage to end, have to go through divorce proceeding.
 Unlikely, b/c most people don’t go to court to get this valid
o Includes: People who filled out the form wrong, forgot to fill something out
o Excludes: People who think they don’t have to get married (cohabitation and think they are
married under this rule)
 Can’t get common law married in a state if you are only passing through, have to stay for several days
 Punitive Spouse comes in
o Protection for people who fall out of the statutory outline of marriage
o Innocent spouse who thought they were married
o Not substitute for common law marriage – Never considered married
o Equitable remedy for when people are not married, no way to put them in marriage bucket, but
we want to provide some type of protection via property laws through obligation supports.
Why
would
people have common law marriage?

o What interests does the state have for allowing or refusing these marriages?
o What’s at stake for the married people?
 Length of relationships: Most people think it’s 7 years, but in reality it could happen very quickly under
state law.
 Useful device in rural areas where it is hard to come by someone who is legally able to marry you.
o Law has specific licensing requirements, individuals live so remote, they can’t comply w/ those
requires, so the law corrects itself by creating common law marriage where you can enter
marriage w/o going through the licensing process.
 Protected certain people in early times.
o Women – Support obligations b/c women couldn’t work.
o State – Don’t have to provide public assistance to single women.
o Children – Protect them from illegitimacy.
 States start getting rid of common law marriage
o Support obl
o igation isn’t so important and people are able to go get a marriage license.
 South Dakota
o Use to have judicially created common law marriage. Comes from judiciary, not legislature.
o State laws had specific requirements.
Hargrave v. Duval-Couetil (SD 2010)
Facts
 Duval and Hargrave started living together in MA in 1994. They then moved to SD in 1996. The couple
started a yearly routine of spending the summer in SD and winter in Mexico. They bought a house
together in Mexico as husband and wife.
 They were never formally married. H testified that they discussed a formal wedding ceremony, but
mutually decided against it. Didn’t think they needed to marry b/c they held themselves out as H and W.
 D referred to H as his wife on tax forms, beneficiary of benefits, and power of attorney.
 Circuit court concluded that the H meet the requirements of a common-law marriage under both Mexico
and OK.
Issue: Whether the circuit court erroneously recognized Hargrave as Duval’s surviving spouse entitling her to
inherit from his estate? Yes.
Holding: Reversed. Did not meet the common-law requirements of marriage in Mexico or OK.
Analysis
 Whether SD will give effect to a common-law marriage established by SD domiciliary while living in a
jurisdiction that recognizes common-law marriage? Yes.
o A common-law marriage validly entered into in another jurisdiction will be recognized in SD.
 Statute: Any marriage contracted outside the jurisdiction which is valid by the laws of the
jurisdiction in which such marriage was contracted, is valid in this state.
 Case law doesn’t require domicile in the state in which the marriage occurred.
 Whether Duval and Hargrave would be considered validly married under the laws of Mexico or OK?
o Concubinage in Mexico
 A Mexican concubinage is not the legal equivalent of a common-law marriage in US.
o Common-Law Marriage in OK
 OK requires (1) a mutual agreement or declaration of intent to marry, (2) consummation
by cohabitation, and (3) publicly holding themselves out as husband and wife.
 Must establish by clear and convincing evidence.
 CC made no finding on mutual agreement to marry.
 H’s testimony established that no specific time existed when the couple mutually
agreed or declared their intent to marry.
 To meet OK’s requirements, their mutual agreement would have to be more than
an implicit agreement.
 Failing to establish that mutual assent took place, H couldn’t meet the 1st requirement for
entering into a common-law marriage in OK
Notes
 Conduct is essential to common law marriage
o Functional activities transform you into a formal marriage
o But you still have to show up to court and show that you married, don’t have to do that if
formally married.
Non-Marriage Relationships




Cohabitation, fornication, and adultery have begun to be eliminated as criminal offenses.
o Had these statutes to originally encourage marriage
o Binary created – If you wanted to do these things w/o marriage, and you could solve this by
getting married.
Intensity of social and legal norms around illegitimacy have also diminished.
Implied obligations from a sort-of-like-marriage is different from common-law marriage. CLM gives
you full marriage benefits.
Case importance:
o First case that recognizes this type of contracts.
o Along with creating new legal rule, court is articulating that these types of contracts are
necessarily against public policy. Court is saying that these contracts might benefit public policy.
Smock & Manning, Population Studies Center
 Changes in family patterns – Union formation, union dissolution, childbearing
o Lower level of childbearing, higher divorce rates, increase in the average age at marriage, rising
non-martial childbearing, and rising levels of cohabitation.
Unmarried
cohabitation has dramatically transformed the marriage process

o Majority of marriages begin as cohabitating relationships
 Also becoming a context for childbearing and childrearing
 Postponement in marriage, offset by increase in cohabitation
o Increase in children born in these cohabitating relationships
o More common among those w/ fewer economic resources
 People w/ less education appear somewhat more likely to have experienced it
 Cohabititors tend to have lower incomes and higher poverty rates than married couples
 Good economic prospects enhance the likelihood of marriage among cohabitating
couples
Races
report
similar
levels of cohabitation experience, commonplace in all these groups (black, white,

Hispanic)
 Increase is echoed in the beliefs of American people
o More people find it acceptable to determine compatibility
o Debate about the significance of cohabitation: Whether it represents a state in the marriage
process or is a substitute form of marriage?
 Marriage as an institution is not threatened by cohabitation, plays the same role as
engagement
 It is an alternative kind of marriage
 It is more appropriately viewed as an alternative to singlehood than marriage
Marvin v. Marvin (CA 1976)
Facts
 Π and ∆ lived together for 7 years w/o marrying; all property acquired was taken in ∆’s name.
o Entered into an oral agreement that while the parties lived together they would combine their
efforts and would share equally, agreed to hold themselves out as husband and wife.
o Π gave up her career to be a homemaker. In return, ∆ agreed to provide for all of π’s financial
means and needs for the rest of her life.
o 7 years later, ∆ forced π out of his home.
 Π sued to enforce a contract which she was entitled to half the property and to support payments.
 TC w/ ∆.
 Court reversed.
Holding
 Judicial barriers that may stand in the way of a policy based upon the fulfillment of the reasonable
expectations of parties to a non-marital relationship should be removed.
 Express agreements will be enforced unless they rest upon an unlawful meretricious consideration.
 Absent an express contract, the courts may look to a variety of other remedies in order to protect the
parties’ lawful expectations.
Analysis
 Express Contract
o ∆’s argument: Contract is so related to the immoral character of their relationships that
enforcement of it would violate public policy.
 Agreements between non-martial partners fail only to the extent that they rest upon a
consideration of sexual services.
 Precedent: Denied remedies in illicit sexual services, serving as a concubine and
bearing children, and adultery.
 Here: Contract doesn’t rest upon unlawful consideration
o Though sex was part of the consideration, it wasn’t explicitly stated and is
severable from the rest of the contract
o Parties can contract separately their economic affairs (from sex).
 Adults who live voluntarily together and have sex are still competent to contract w/
respect to their earnings and property rights.
o Resolve Cary  Reject the reasoning

Cary: Property accumulated by non-marital partners in an actual family relationship
should be divided equally (applied Family Law Act)
o Society’s views have changed.
 Accept these relationships.  Can’t impose a standard on alleged moral grounds that
have be abandoned by much of society. Law and society loop
 Allows these contracts b/c these relationships look like pre-martial steps.
 Creates an in-between step between criminal and marriage. State will enforce the
contract, but you don’t get all the full protections of marriage.
 Implied Contracts
o Refusal of Enforcement Theories
 Denying enforcement is the punishment for guilty π for being in this illicit relationship.
 Court: Guilty ∆ is benefiting by retaining a disproportionate amount of property
 There isn’t the same equitable interest in the expectations of these parties as there is w/
married people.
 Court: They have some equitable expectations that they will acquire some benefit
of the work, not as high as married people.
 Enforcing these contracts would discourage marriage.
 Court: Nope.
 Court inquiries:
o Look into conduct of parties to determine whether that conduct demonstrates an implied contract
or implied agreement.  Look at the expectations of the parties by their agreement.
o A non-marital partner may recover in quantum meruit for the reasonable value of household
services rendered . . . if he can show that he rendered services w/ the expectations of monetary
reward.
 Possible Relationship Options:
1. Formal Marriage---2. Common Law Marriage---full protections like from Formal Marriage. Usually requires some
intent to be/declare they are married.
3. Putative Spouse Doctrine (“Innocent Spouse Doctrine”)---protects innocent people who think
they are married. May not get 50%, but the court will use its equitable powers to take care of
you.
4. Palimony---Marvin v. Marvin. Still not officially married and would not be entitled to the
protections of marriage. (Cali adopted Palimony likely because it did not recognize common
law marriage.)
Parenting
Limits on Parental Authority
Overarching Questions for Parenting Section
 What does it mean to be a parent?
 How do we define parenthood?
o Formal or functional (activities parents engage in over time: a pattern of behavior)
 What does it mean to be a parent within the law?
o Legal parent vs. person we normally think of as a parent
 How does the law understand parenthood and its relationship to the legal family?
 How does the law understand parenthood and its relationship to marriage?
 Is the parent-child relationship like other status relationships (marriage)?
o Does this look like marriage or does it operate completely different?
Education
 State-sponsored schools were the first serious intrusion on the right of parents to rear their own children.
 States first offered and later forced schooling
 Initially, parents were permitted a range of choice in schooling
 Pierce demonstrates that there are some limits on the power of states to force parents to send their
children to public school
 Meyers v. Nebraska: Statute prohibiting foreign language instruction was unconstitutional burden on the
rights of teachers to work and of families to raise their children.
 Cases do not stand for the principle that parents have the fundamental right the education of their
children.
o Parents can’t tell teachers what they should teach.
o They still form the basis for the fundamental rights of a family relationship.
Pierce v. Society of Sisters (US 1925)
Facts
 Challenged law requires every parent w/ a child between 8-16 to send him to a public school, failure to
do so is declared a misdemeanor.
 State’s purpose – Compel general attendance at public school by normal children
 Πs, Society of Sisters and Hill Military Academy, both engage in privately educating and instructing
youth.
Holding: The law unreasonably interferes w/ the liberty of parents to direct the upbringing and education of
children under their control. [w/ π]
Analysis
 Power of the State reasonably to require that all children of proper age attend some school
o Theory of liberty prevents the State from standardizing its children by forcing them to accept
instruction from public teachers only.
o Children are NOT mere creatures of the state
 Parents have the right and the high duty to recognize and prepare him for additional
obligations.
 Πs have business and property right which they can claim protection for.
o Asking for protection against arbitrary, unreasonable, and unlawful interference w/ their patrons
and the destruction of their business/property.
o Result of this statute would be destructive of π’s primary schools and all other private schools
Although
the plaintiffs are the schools (which have standing), the Court looks toward the parental rights

in its decision.
 Note: Not based on freedom of religion b/c one of the schools is a military school.
Child Labor Laws
Prince v. Massachusetts (US 1994)
intro to triad of rights
Facts
 Prince appeals her conviction from violating MA’s child labor laws by alleging her actions were a
rightful exercise of her religious convictions.
 Prince is the aunt and custodian of Betty, 9 years old. All of the family is Jehovah’s Witness. She
allowed the children to go with her to distribute religious pamphlets and preach.
 She had been warned against doing this by the school attendance officer before. Yet she did it again.
Holding: Upholds the charge against π.
 Aunt/niece relationship not at issue: Court treats like parental relationship
 2 claims liberties are at stake:
o (1) Parent’s right to bring up the child in the way he should go [teach him the tenets and the
practices of their faith]  FR under substantive due process
o (2) Child’s right to observe these and to preach the gospel
 The custody, care, and nurture of the child reside first in the parents.
o
But family itself is NOT beyond regulation in the public interest
 Religion and parenthood rights aren’t beyond limitation
 State = parens patriae (state acting on behalf of vulnerable individuals, which includes children)
o May restrict parent’s control by requiring school attendance, regulating or prohibiting the
child’s labor.
 Its authority isn’t nullified b/c the parent grounds his claim to control on religion.
o State has a wide range of power for limiting parental freedom in things affecting the child’s
welfare (include religious conviction)
 Propagandizing the community creates difficult and inappropriate situations for children
o Harmful possibilities
o State has determined that an absolute prohibition is necessary to accomplish its legitimate
objectives
 Parents free to be martyrs themselves, but doesn’t mean they are free to make their children martyrs
before children reach the age where they can make the decision themselves
 State’s power to control children is more than its authority over adults
 When you leave your home and enter public sphere, it invites more state intervention then if you stay at
home.
Dissent: State has failed to meet its burden of providing the existence of an immediate danger. No proof that
Betty’s action was a menace to the public. No adverse effects on the child.
TAKEAWAY: State regulates family/parental relationship outside of the home more than inside of the home.
TRIAD OF RIGHTS
Parent’s rights to: (1) raise their
children in the manner of their
choosing; (2) exercise religious
freedom; or (3) be free of prejudice
State’s interest in ensuring the child’s
well-being
Child’s right to: (1) care that will
serve his/her best interest; or (2) to
exercise own constitutional rights.
Child Neglect and Abuse
Roe v. Conn (DC 1976)
Facts
 Class action against Alabama Law with one striking story.
 Π’s parental rights were termination based on an investigation prompted by ∆ Coppage. Coppage claims
to be the father of Richard Roe. ∆Coppage report to police and child services that π might be neglecting
RR, she was living with a black man in a black neighborhood.
 Police did a check up on RR. Found π and him living with a black man, RR was in good condition,
house was clean and stocked with food.
 Instructed to get a pick-up order. Judge who approved only knew π was unemployed, white, and w/ a
black man. Judge lacked lots of information about the situation.
o Judge concluded that this habitation in a black neighborhood could be dangerous for a child b/c it
was unhealthy to be the only white kid in a black area.
 Police physically pulled RR from his mother. Six weeks later, there was a hearing. The judge awarded ∆
custody of RR and determined he was the natural father. Π’s 2 petitions were denied.
Holding: State, unless exigent circumstances, must provide notice and a hearing before they can remove the
child.
 Fundamental Right to Family Integrity
o The integrity of the family unit is protected by 14th A due process and EP
o Receives strict scrutiny
 Summary Seizure: Unconstitutional b/c procedural due process failures.
o State statute violates procedural due process under 14th A
o State admin needs vs. families suffering a loss if State severs P-C relationship
 State: Legit interest in protecting children from harm
 Normal procedure: Before intrusion, State should have reliable evidence that a
child is in need of protective care. Should provide notice to parents of the
evidence of abuse and provide them w/ an opportunity for rebuttal at a hearing
 Liberty interest = relationship with child and parent
o No emergency here.
 W/o danger of immediate harm, State’s interest is not sufficient to justify a removal prior
to notice and hearing
 Hearing should be as soon as practicable, NOT 6 weeks later
o Void for vagueness
 Statute’s “welfare” standard is unconst. vague and an unconst. Infringement on the
fundamental right to family integrity.
 Statute: Removal Upon A Finding of Neglect
o Statute defines neglect as any child who has no proper parental care by reason of neglect
 Void for vagueness
 Reasonable minds would differ on what this means/includes
 Terms too subjective to denote a sufficient warning
 DP requires the state to clearly identify and define the evil and to specify the
parental conduct that contributes to the evil
o State’s legitimate interest in the welfare of children
 Minor intrusion permitted when the State has reason to believe that a child’s best interest
is at stake.
 Alternatives: Seminars, weekly counseling, supervision
 State’s interest = compelling enough to sever P-C relationship only when the child is
subjected to real harm and less drastic measures would be unavailing.
o Here, State offered no assistance to π.
 Nor did it explore the possibility of accomplishing its objective of protecting RR’s
welfare by use of alternatives
o State Burden
 Need to show that the child is being disadvantage and that the child is being harmed in a
real way
Notes
 Presumption that parents act for the best interest of their children.
o Under parens patriae power: States shouldn’t intervene unless state is stepping in to protect the
children (i.e. the child’s welfare).
 Limits: Danger = clear and evident, no speculation + Adequate procedures
 TAKEAWAY: Parents can raise children how they want. But, if there is a clear and evident danger (not
speculative and clear in evidence), the State can intervene but must provide procedural due process
protections. ONLY allow not to provide PDP protections if there is an emergency.
Parenthood and Marriage
Unwed Fathers
 Is parenthood about a single relationship between a parent and a child?
 Assumptions that the law and society make about people who have kids outside of marriage.
 What does this tell us about parenthood in general and the connection between parenthood and
marriage?
SDCL Chapter § 25-8: Paternity Proceedings
SDCL § 25-8-7. Proceedings to determine paternity or compel support as civil actions--Rules of procedure-Remedies authorized
 An action to determine paternity or proceedings to compel support by the father are civil actions
governed by the Rules of Civil Procedure. They are not exclusive of other proceedings that may be
available on principles of law or equity.
 Upon determining paternity of a child, the court shall give judgment declaring the paternity of the father
to the child. The court may award a money judgment to the appropriate party for the recovery of the
reasonable expenses of the mother's pregnancy and confinement, for the education, support, or funeral
expenses for the child, or for any other expenses with respect to the child as the court deems reasonable.
 The court shall enter an order for the support and custody of the child. The court may require the person
ordered to pay support to give reasonable security for providing the support. The court may modify or
vacate any order issued pursuant to this section at any time.
SDCL § 25-8-9. Time for bringing proceedings
Proceedings to establish or disestablish paternity and enforce the obligation of the father may be brought at any
time before the eighteenth birthday of the child.
SDCL § 25-8-49. Admission of paternity as prima facie evidence
An admission by an alleged father of paternity of a child born out of wedlock, other than completion of an
affidavit of paternity which creates a presumption of paternity as specified within this chapter, is prima facie
evidence of paternity.
SDCL § 25-8-50. Voluntary hospital-based paternity establishment program
Upon the birth of a child to an unmarried woman, and prior to discharge, any hospital, physician, health care
provider, midwife, or nurse who assists in the birth of the child shall:
(1) Provide an opportunity for the child's mother and alleged father to sign under oath an affidavit of
paternity; and
(2) Provide to the mother and to the alleged father, any necessary oral, video, audio, or written information
furnished by the Department of Social Services which describes, among other things, the rights and
responsibilities of parentage; the benefits of having the child's paternity established; the alleged father's
legal rights and responsibilities, including his right to request genetic testing; the child's right to receive
child support; that a signed affidavit of paternity creates a rebuttable presumption of paternity; that a
signed affidavit of paternity allows the establishment of a support obligation without requiring further
proceedings to establish paternity; and, that completion of the affidavit of paternity is voluntary and is
not required of either the mother or the alleged father.
If obtained, the fully completed, signed, and notarized original affidavit of paternity shall be forwarded to the
Department of Health as provided in chapter 34-25 within seven days following the birth of the child.
SDCL § 25-8-52. Rebuttable presumption of paternity--Signed and notarized affidavit
A signed and notarized affidavit of paternity creates a rebuttable presumption of paternity, admissible as
evidence of paternity, and allows the Department of Social Services to proceed to establish a support obligation
in accordance with the provisions of §§ 25-7A-5 to 25-7A-8, inclusive, without requiring any further
proceedings to establish paternity.
Stanley v. Illinois (US 1972)
Facts
 Joan lived w/ Peter intermittently for 18 years; they had three children. They acted like a married couple,
and Joan took Peter’s last name. When Joan died, Peter lost his children.

Under IL state law, children of unwed fathers became wards of the State upon the death of the mother.
(I.e. unwed fathers are not parents under the IL law, making the determining factor that he is not married
to the mother).
 Peter’s kids were declared wards and placed w/ court-appointed guardians.
 Peter appealed and claimed he had never been shown to be an unfit parent. Married fathers and unwed
mothers couldn’t be deprived of their children w/o such a showing, he had been deprived of EP.
Issue: Whether the means used to achieve these ends are constitutionally defensible? No.
Holding: All parents are const. entitled to a hearing of their fitness before their children are removed.
 Denying π such a hearing was contrary to EP, and court suggests unwed fathers are a quasi-suspect
class. However, court focuses on Due Process (both substantive and procedural).
Analysis
 Statute empowers state officials to circumvent neglect proceedings on the theory that unwed fathers are
not a “parent” whose existing relationship w/ his children must be considered.
o Parents = father and mother of a legitimate child, or the survivor of them, or the natural mother
of an illegitimate child, and any adoptive parent.
 DOES NOT include unwed fathers.
o Normal proceedings
 Children of parents can be taken from them – after notice, hearing, and proof of unfitness
o Unwed father
 More simplistic proceeding – State doesn’t need to prove unfitness b/c it is presumed at
law. Claim of parental qualification is avoided as “irrelevant”
 Private Interest of Father
o Companionship, care, custody, and management of his children
o Right in retaining custody is cognizable and substantial
o Court emphasizes the importance of family
 Integrity of family found in DP, EP, and 9th Amend
o Substantive Due Process – Right to be a parent (established relationship with child for being
involved for the last 18 years)
o Procedural Due Process – Missing out on procedural rights
 State Interest
o Goal to protect the welfare of children, best interest of community, and strengthen child’s family
ties  Using marriage as a proxy for parenthood. About marriage presumption more than father
presumption.
 Private interest of π warrants deference and protection absent a powerful countervailing interest by the
State
o State registers no gain towards its goals when it separates children from the custody of fit
parents. If π is a fit parent, State spites its own goals when it needlessly separates him from his
family.
o Quasi-suspect class – Unwed fathers (IS)
o Marriage isn’t the only way to become a father. Const. rights attach
 Not all unwed fathers are unfit.
o Given the opportunity to make his case, Peter may have been seen to be deserving of custody.
 Procedure by presumption is cheaper and easier than individualized determination, but it risks running
over important interests of parent and children.  Therefore, it can’t stand.
o Const. recognizes higher values than speed and efficiency.
Lehr v. Robertson (US 1983)
Facts:
 Baby Jessica was born out of wedlock. Lehr was at the hospital when she was born but did not live with
her or help raise her. Mother married Robertson 8 months after birth. When Jessica was 2, Robertson
filed adoption petition. Court entered an order of adoption.

One month after the adoption proceeding started, Lehr filed a visitation and paternity petition. He
learned of the adoption proceeding. Asked for a stay. Judge already signed it.
 Family Court granted R’s MTD paternity petition.
 Lehr filed petition to vacate adoption. Denied. AD affirmed.
 Lehr claims that DP and EP give him an absolute right to notice and a hearing before the child may be
adopted.
 NY maintains a putative father registry. A man who files demonstrates his intent to claim paternity and
is entitled to receive notice. Lehr had no entered name in registry.
 NY requires notices of adoption to several classes of possible fathers. Lehr didn’t fit in these classes.
Issue: Whether NY has sufficiently protected an unmarried father’s inchoate relationship w/ a child whom he
has never supported and rarely seen in the 2 years since her birth? No.
Analysis:
 Due Process – No.
o Lehr: A putative father’s potential relationship w/ child is an interest in liberty which may not be
taken away w/o due process of law.
o Substantive Due Process
 Parental rights don’t spring full-blown from the biological connection. They require
relationships more enduring.
 Protection under DP: full commitment to the responsibilities of parenthood
 Mere biological link doesn’t merit equivalent const. protection
 Lehr never had a real relationship w/ Jessica. He didn’t seek to establish a legal die under
after she was 2.
 Either act as a father or act like a husband.
o Procedural Due Process
 Court only concerned w/ whether NY has adequately protect his opportunity to form such
a relationship.
 Legislative plan automatically provides notice to several categories of dads.
o If this was likely to omit many dads, it might be procedurally inadequate.
o Right to receive notice was in Lehr’s control.
 Equal Protection – No.
o Lehr: Gender-based classification violates EP.
o No putative mother registry: Mothers are different from fathers b/c she gives birth.
o Married vs. unmarried fathers: Married fathers have presumption of support.
o Lehr never established substantial relationship
o NY did not operate to deny Lehr EP
Notes:
 State wants to make sure another party is involved to support the child. Want unwed father to be
responsible. But once we have a stepdad, we don’t need that unwed father for support.
 Something beneficial about the marital relationship (even with a stepparent), but only with an adoption.
 Nowhere in statute do you see that dad is required to be involved in child’s life, only needs to provide
support.
 Similar to Stanley?
o Both case say relationship needs biology + something else (postcard or relationship)
o Stanley = one dad. Lehr = Two dads but step isn’t quite b/c needs to do adoption process
 Unmarried fathers have parental rights to their children. However, these rights only exist where the
fathers has gone beyond the biological link (emotional or financial) and can be up to the State to decide
what kind of relationship is sufficient.
o Plus factors – They frequently accord strongly with our views of husbands role in marital family.
The more likely you look like a husband, the more likely your rights will be upheld.
Summary




Stanley: Unmarried fathers are entitled to parental rights w/ their children
But these rights only exist where the father has gone beyond the biological link to establish a
relationships w/ the child (Stanley and Lehr)
This relationship can be either financial support or emotional bonding
The “plus factors” needed to establish paternity accord strongly w/ intuition about a husband’s role in
the marital family
SDCL § 25-8-57. Rebuttable presumption of legitimacy
Any child born in wedlock, or born within ten months after dissolution of the marriage, is presumed legitimate
to that marriage even if the marriage is subsequently declared to be null and void, or subsequently dissolved by
divorce. This rebuttable presumption of legitimacy can only be disputed by the husband or wife, or a descendant
of one or both of them, or a potential biological father of the child. The potential biological father has standing
to file an action to rebut this presumption prior to obtaining genetic test results. The potential biological father
may not rebut the presumption without genetic test results meeting the requirements of § 25-8-58 establishing
that he is the biological father of the child.
This presumption may be specifically rebutted pursuant to § 25-8-64.
SDCL § 25-8-64. Setting aside presumption or prior determination of paternity based on genetic test results-Factors in determining best interest of the child
The court may at any time before the child turns eighteen, find that a presumed or legally determined father is
not the biological father of a child, based on genetic test results that either exclude the presumed or legally
determined father as the biological father of the child or establish another person as the biological father of the
child by the standards set in § 25-8-58. The court may under such circumstances set aside a presumption or
prior determination of paternity if it finds that setting aside a presumption or prior determination of paternity is
in the best interest of the child. The court may consider any of the following factors in determining the best
interests of the child:
(1) The length of time between the proceeding to adjudicate parentage and the time that the presumed or
legally determined father was placed on notice that he might not be the genetic father;
(2) The length of time during which the presumed or legally determined father has assumed the role of
father of the child;
(3) The facts surrounding the presumed or legally determined father's discovery of his possible
nonpaternity;
(4) The nature of the relationship between the child and the presumed or legally determined father;
(5) The age of the child;
(6) The harm or benefit that may result to the child if the presumed or legally determined paternity is
successfully disproved;
(7) The nature of the relationship between the child and any presumed or legally determined father;
(8) The extent to which the passage of time reduces the chances of establishing the paternity of another
man and a child-support obligation in favor of the child; and
Any additional factors deemed by the court to be relevant to its determination of the best interest of the child.
Michael H. v. Gerald D. (US 1989)
Facts
 Carole D. and Gerald D. were married. Lived together as husband and wife. Carole got a bf, Michael. C
had a baby, but G was listed on birth certificate and held Victoria out as his daughter. C told M that he
might be the dad.
 V always remained w/ C, but found herself w/ a variety of quasi-family units. Mom moved in with each
of her bfs, also added a new bf, Scott. Took a blood test and M had a strong probability of being her dad.
 M filed a filiation action to establish his paternity and right to visitation after rebuffed in his attempts to
visit V. GAL represented V and asserted she had more than one psychological father and was entitled to
maintain her filial relationship w/ all of them.

Michael got visitation. G intervened and said no triable issue of fact as to V’s paternity. Presumption
that G is father b/c married to mother.
 Court rejected M and V’s claims.
 Statute: Provides that the issue of a wife cohabiting w/ her husband, who is not impotent or sterile is
conclusively presumed to be a child of the marriage. Presumption may be rebutted by blood tests but
only if motion is made within 2 years of child’s birth.
Issue: Whether the relationship between persons in the situation of M and V has been treated as a protected
family unit under the historic practice of society? No.
 OR: Whether on any other basis it has been accorded special protection? No.
Holding: Our traditions have protected the unitary family against the sort of claim Michael asserts.
 Marriage trumps biology.
 Michael loses.
Analysis
 M contends as a matter of substantive due process that b/c he has established a parental relationship w/
V, protection of G’s and C’s marital union is an insufficient state interest to support termination of that
relationship.
o M has a const. protected liberty interest in his relationship w/ V.
o What M asserts is a right to have himself declared the natural father and thereby to obtain
parental prerogatives.
 What he might establish is not that our society has traditionally allowed a natural father
in his circumstances to establish paternity, but that it has traditionally accorded such a
father parental rights, or at least has NOT traditionally denied them.
 Interest = Denominated as a “liberty” be “fundamental” AND be an interest traditionally protected by
our society
o Case precedent – Rest upon historic respect, traditionally accorded to the relationships that
develop within the unitary family
 Presumption of legitimacy was a fundamental principle of common law.
o Policy reasons: Aversion to declaring children illegitimate AND promoting the peace and
tranquility of State and families.
o Protect the marital unit from an outsider showing up and claiming rights to children
 No precedent addresses the power of natural father asserting parental rights over child born in M’s
marriage w/ another man.
o M has burden that such a power is so deeply embedded in traditions as to be a FR, the lack of
evidence might defeat his case.
 Ability of person like M to claim paternity has not been generally acknowledged.
o What counts is whether the States in fact award substantive parental rights to the natural father.
 We are not aware of a single case that has done so.
 NOT the stuff of which FR qualifying as liberty interest are made.
 Comments to Dissent
o To provide protection to an adulterous natural father is to deny protection to a marital father.
 V’s due process challenge merits little discussion.
Dissent
 Technology means we can focus on biology over marriage.
 Okay w/ separating parenthood from marriage. Relying on DNA test.
 Parenthood v. Right of Adulterous Man
 Wrong to find the limitation in “tradition”
o If we had looked to tradition w/ such specificity in past cases, many decision would have reached
a different result.
Notes
 Separate from Stanley and Lehr
o Parenthood is finite.
 Two precedent – No competing father.
 Here: Only have one father.
o Prioritize the marital relationship over the adulterous relationship.
 If adulterous dad wins, then marital dad loses.
 Fatherhood is tied to marriage.
Lalli v. Lalli (US 1978)
Facts
 Estate and Trust Law: Requires illegitimate children who would inherit from their fathers by interstate
succession to provide a particular form of proof of paternity. Legitimate children are not subject to the
same requirement.
 Π claims to be the illegitimate son of Mario who died intestate. Mario was never married to π’s mom. Π
petitioned TC for a compulsory accounting, claiming he and his sister were entitled to inherit from
Mario as his children.
o Functional claims [dad held them out as his children]
o No formal claims [dad never went through judicial process to legitimize kid]
 M’s wife opposed it and argued that even if π and his sister were M’s children, they were not lawful
distributes of estate b/c they failed to comply w/ statute.
o §4-1.2: Illegit is legit of father if a court has during the lifetime of the father, made an order
declaring paternity
 π argues that statute discriminates him on the basis of his illegitimate birth in violation of EP
 LC ruled π was properly excluded from estate. CoA affirmed. Court affirms.
Issue: Whether the discrete procedural demands of statute places on illegitimate children bear an evident and
substantial relation to the particular state interest? Yes.
Holding: The requirement imposed by statute is substantially related to the important state interests the statute
is intended to promote. No EP violation.
Analysis
 Trimble: IL statute discriminated against illegitimate children in violation of EP.
o Not subject to SS – Invalid if they were not substantially related to permissible state interest.
 Not State Interest here
o Marital status of parents is irrelevant
 Single requirement = evidentiary  Paternity be declared.
 Child not need be legit in order to inherit
o Not encouraging legit family relationships
 Primary State Goal = Substantial
o To provide for the just and orderly disposition of property at death
 Interest directly implicated in paternal inheritance by illegitimate children
 Proof of paternity is difficult
 Means
o Accuracy enhanced by placing paternity disputes in judicial forum during lifetime of dad
 Dad can defend himself, less fraud, less delay, uncertainty minimized
o Π argues that over-inclusive
 Few statutes classification are free from criticism
 EP does not focus on abstract fairness but on whether the statute’s relation to the state
interest it is intended is so tenuous that it lacks the rationality contemplated by 14th A
o Statute only bars inheritance is small number of cases
o Courts apply it liberally
Notes
 Heightened (IS) is applicable when talking about the rights of illegitimate children

Even though, our support obligations (child support) are the same to wedlock and out of wedlock
children. States can still draw distinctions like inheritance as long as marriage is not considered an
absolute bar to be considered a child.
Practice Questions
 Consent
o Husband, old AF, under chemo and medicated. Gets married. Dies. Estate brings action
consenting marriage b/c John didn’t have the capacity to consent to a marriage
 Consent – FR, so therefore different from consent to contract. Have to be capable to
consent.
 How would court rule?
 Fact intense question – How heavily medicated? Does his age effect his capacity.
 A court will examine all of the facts surrounding the alleged marriage.
 It is most likely that a court will find John lacked the capacity to consent and the
marriage is void.
 Age
o Statute allows women to marry at 18, 19 for men.
o What constitutional challenge?
 EP – FR– SS b/c talking fundamental right of access to marry
 If no FR, then go to sex classification - IS
 DP – Fundamental right – SS
o Court ruling?
 Unconst.
 No compelling state interest – Women mature faster than me
 Age Restriction on Marriage
o Adult and minor get married. Adult wants to argue that they were married to get estate once
minor dies.
 Arguments
 Putative spouse doctrine – but Jesse is not an innocent spouse
 Marvin v. Marvin – Equitable remedy by the court.  Palimony
o No evidence of a contract
 Checking child support box on marriage license. Fail to fill out form = no marriage license.
o Only FR issue, when insurmountable barrier. That does exist here.
o RB
 Step mom trying to date minor step son.
o Incest – Most likely to fall but still unlikely.
o Bigamy – Not likely to fall b/c first in right first in time
o Age – Not likely to fall b/c child welfare = state interest
Adoption
Types of Adoption
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Adoption creates a new, legally-recognized parent-child relationship.
o Similar to marriage, there is a transformative moment where you go from unrelated to related.
Child’s birth parents must consent to the adoption unless they have been deemed unfit.
Terminates all pre-existing parental rights.
Two basic types
o Agency Adoption
 Involves either a gov’t agency or an organization that has been licensed by the gov’t
 Private – Infants, parents voluntarily enter this interaction
 Public – States terminate parental rights
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Birth parents typically relinquish all parental rights to the agency
Agency placements involve older children or children w/ special needs who adoptions
may entitle the adoptive parents to financial assistance from the state
o Private (Independent) Adoption
 Affiliated w/ churches or other non-gov’t social service entities
 Birth parents make a child available to the adoptive parents
 Often w/ aid of an intermediary
 Birth parents are more involved in the selection of the adoptive parents
 Most are infants
Both types must be formalized in a court proceeding
State must conduct an investigation into the suitability of adoptive parents
States regulation adoption through parens patriae
o No one can self-adopt. State always has to be involved in the transfer
o Not common law – developed through statutes.
Marywood: Where there is an agency negotiating an adoption agreement, agency must be very clear
with the rights to the birth parent in regards to termination of parental rights – release of obligations.
General Court Process in All Adoptions
o Ensure child is available for adoption
o Ensure new parents are eligible to adopt
o Ensure the adoption is in the best interest of the child
Vela v. Marywood
Facts
 Young pregnant woman went to ∆, a licensed child-placing agency, for counseling. Corina wanted to
give her baby up for adoption to a two-parent family. ∆ discussed the options for an open adoption.
o Π found a prospective adoptive parents and developed a sharing plan.
 Adoptive parents are aware of the plan prior to placement and agree in writing w/
Marywood to conform to this arrangement.
 Birth mom does not sign this agreement.
 Neither Marywood nor the adoptive parents enter into any agreement w/ the birth mom.
 ∆ can’t do anything if the adoptive parents decide, post-adoption, to disregard it.
 Birth mom has no power to enforce such an agreement. ∆ never discussed the
unenforceability of the sharing plan w/ π.
 Moore showed π an “Affidavit of Voluntary Relinquishment of Parental Rights.”
o Didn’t explain the meaning of irrevocable, didn’t give her a copy to study
 Last meeting w/ Moore – Moore read the affidavit to π and talked about each paragraph, Corina knew
that once the relinquishment is signed, it cannot be undone.
 Had baby, signed a temporary foster-care request. Baby placed in foster care.
 Meeting at ∆. Signed the affidavit. Moore said she would always be in that baby’s life.
 Π relied on the sharing plan. Called ∆ and said she wanted the baby back.
 AJ recommended termination of π’s parental rights. Π gave noticed that she was appealing the
recommendation. DC terminated rights.
Issue: How forthright a licensed child-placing agency must be w/ an expectant mother who seeks its counsel
prior to the birth of her child?
Holding: π conclusively established that the affidavit was procured by misrepresentation, fraud, etc. and
therefore not voluntarily signed. Affidavit = void. Rights not terminated.
Analysis
 π argues that there was no clear and convincing evidence that she knowingly and voluntarily executed
the relinquishment affidavit and the evidence shows that she did NOT execute it voluntarily.
o Hurdle #1 – Voluntary?

No evidence that supports the DC’s finding that π voluntarily executed the
relinquishment affidavit.
 Fraud – An act . . . in breach of a legal duty, trust, or confidence . . .
 She signed it in the context of and in reliance on the post-adoption plan
 Wanted to proceed w/ adoption ONLY if she could have post-adoption visits
 ∆’s words = deceptive and vague (Moore carefully selected her words)
 ∆ owed a duty to π of complete disclosure when discussing adoption procedures
 Obligation to tell π the entire truth about the ramifications of the sharing plan and
make her fully aware that it lacked legally binding effect
 ∆’s duty springs from two sources
o When ∆ made a partial disclosure to π about the post-adoption plan, it
assumed the duty to tell the whole truth
o π placed special confidence in Moore
o Hurdle #2 – Fraud?
 Was the affidavit procured by fraud, coercion, overreaching, or misrepresentation?
 Evidence shows that the affidavit was wrongfully procured.
 ∆’s statements and omissions to Corina constituted misrepresentation
 Termination statutes are strictly construed in favor of the parents.
SDCL Chapter 25-5A: Voluntary Termination of Parental Relations
§ 25-5A-1. Definition of terms
Terms in this chapter mean:
(1) “Authorized agency,” the Department of Social Services of South Dakota or any agency licensed by the
department to place children for adoption;
(2) “Child,” any minor;
(3) “Parents,” the mother and father, if living, of a child;
(4) “Putative father,” any person who claims to be, or is named as, the biological father or a possible biological
father of a child, and whose paternity of the child has not been judicially determined.
§ 25-5A-2. Purposes of termination procedure
The procedure for the voluntary termination of parental rights for the purpose of adoption or, if a suitable adoption
plan cannot be effected, for the purpose of providing for the care of the child by some other plan which may or
may not contemplate the continued possibility of eventual adoption, may be initiated whenever it appears that the
parent or parents of any child desires to relinquish such parental rights.
§ 25-5A-4. Waiting period for filing petition
No petition may be filed under this chapter prior to five days after the birth of the child.
§ 25-5A-7. Consent not invalidated by minority
If the individual in whom the right exists under this chapter to petition or to execute waivers or consents has not
reached majority, this fact shall not affect the validity of such petition, consent or waiver notwithstanding any
statutory provisions to the contrary.
§ 25-5A-15. Hearings informal--Best interest of child
Hearings shall be informal in nature and the best interest of the child shall be considered paramount.
§ 25-5A-22. Counseling before termination of parental rights
Any birthparent who plans to petition the court for the voluntary termination of parental rights shall obtain
counseling regarding the termination from a licensed child-placement agency as defined in § 26-6-14, the
Department of Social Services, or either a certified social worker eligible to engage in private independent
practice as defined in § 36-26-17, a licensed counselor, or a licensed psychologist, each of whom must have at
least two years of experience in adoption practice.
§ 25-5A-25. Failure to receive counseling
Failure to comply with §§ 25-5A-22 to 25-5A-24, inclusive, may not be considered a basis for setting aside a
voluntary termination of parental rights or an adoption.
§ 25-5A-26. Termination of parental rights--Validated--Limitation on claims
Except in any case involving fraud, any proceeding for the termination of parental rights commenced by a
parent under chapter 25-5A is in all things legalized, cured, and validated two years after the proceeding is
finalized. If any person has a claim or right arising from the termination of parental rights finalized, that person
shall initiate any action to enforce such right or claim no later than two years of the date when the proceeding is
finalized.
In the Matter of Donna R. Hagedorn (Ind. 2000)
Facts
 Attorney, Hagedorn, neglected the legal affairs of three clients (adopted parents and child) and
misrepresented to them the status of their adoption case.
 Didn’t file the adoption petitions until two years after the child’s birth; didn’t tell them about preplacement investigation; didn’t forward medical bills to parents’ ERs; told parents parental rights were
terminated; provided false information about delays; lied about lost home study; etc.
Analysis
 Failed to provide competent representation
o Failure to arrange pre-placement evaluation, terminate parental rights, to prepare/file petition
 Didn’t abide by client’s decisions
o Disregarded client’s decisions regarding desire to obtain a private adoption
 Didn’t act w/ due diligence and promptness
o By failing to begin formal adoption proceedings
 Didn’t provide informed consent
o Failing to keep couple informed, advise about status, and explain the matter to allow clients to
make informed consents
 Engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation
o Purposefully misleading the couple
Notes
 Show how attorney would do an adoption
 Issues w/ dual representation: Can create a conflict of interest if parties don’t agree or one wants out of
the process.
o Birth parents can rarely hire an attorney.
o Adoptive parents usually hire an attorney.
 Private Adoptions: State is always going to be involved. No self-adoption.
Stepparent Adoption
 Different from typical adoptions. Only severing the rights of one of the two natural parents.
 Increasingly common.
 Need consent from both parents. Custodial and non-custodial parent, unless there is a reason why their
consent is not required.
 Stepparent adoption of adults: Twins when children hit 18 they can have their stepdad adopt them. Bioparent says no, but that’s okay – you don’t need it.
In the Matter of the Adoption of G.L.V. and M.J.V. (Kan. 2008)
Facts
 Twin boys are born to parents who were never married. Mother filed paternity action resulting in the
finding that bio-dad is the natural parents. An order was issued requiring BD to pay child support. Soon,
father left the area. Upon his return, BD filed action to secure visitation rights and was awarded
weekend visitations. He exercised his right only three times.
 Father has no direct contact with his twins since 1997. Parental grandparents have maintained
relationship w/ twins.
 Since 2003, father has been regularly employed and has consistently made monthly child support
payments.
 BM married petitioner stepfather in 2004. 2006, SD filed petition to adopt the twins w/o obtaining the
consent of the natural father.
 CoA affirmed DC’s decision holding that the natural father’s consent was necessary since he performed
his parental duties during the 2 years preceding the adoption.
Issue: Whether the law permits a DC to override the statute’s explicit requirement that a natural father who has
assumed the duties of a parent give his consent to the stepparent adoption if it determines that the adoption is in
the child’s best interests? No.
Holding: Affirmed.
 B/c bio-dad has assumed a sufficient level of parental responsibility, his rights as a parent are entitled to
const. protection. Father has not consented to the adoption.
Analysis
 State Interest
o Dependency (step-dad is a better parent)
 Adoption statutes are strictly construed in favor of maintain the rights to natural parents.
 Consent of the natural father must be given to the adoption unless such father has failed/refused to
assume the duties of a parent for 2 consecutive years.
o Determining whether fathers consent is required:
 Court may disregard incidental visitations, contacts, communications, etc.
o Determining whether father has failed his duties:
 A rebuttable presumption that if the father has knowingly failed to provide a substantial
portion of the child support as required, then such father has failed his duties.
o The court may consider the best interests of the child and the fitness of the nonconsenting parent
in determining whether a stepparent adoption should be granted.
 All the duties associated w/ being a parent may be considered. Focused on 2:
o (1) Love and affection
 Relationship with extended family
o (2) Financial support
 Dad has been paying child support in recent years.
 Fundamental Right
o Natural parent who has assumed his parental responsibilities has a fundamental right, protected
by Const., to raise her child.
 Consent requirement codifies these constitutional protects
 Best Interest of the Child
o Best interest of the child is served by fostering the child’s relationship w/ the natural parent in
cases where the parent has assumed the duties
o Π’s arg. would be inconsistent w/ the plain language of the statute and best interests of the child.
Open Adoption
Birth Mother v. Adoptive Parents and New Hope Child and Family Agency (Nev. 2002)
Facts
 An agreement between appellant, birth mother, and the respondents, adoptive parents and New Hope,
which allowed the birth mother continuing contact after adoption. All parties consented to the
agreement. After the birth mother attempted to terminate her relinquishment of the child, the adoptive
parents refused to continue to allow the birth mother contact w/ the child.
 BM filed a complaint alleging several claims – breach of contract. Seeking specific performance of the
communication agreement.
 Adoptive parents and New Hope filed a MTD. DC granted. Court affirmed.
Holding: The agreement between the BM and the adoptive parents is unenforceable.
Analysis
 State law does state that a child-placing agency may offer open adoptions. Regulation doesn’t explicitly
provide post-adoption contract. Doesn’t provide enforcement for such agreements.
 Adoption decree terminates all rights of natural parents.
o Establishes a new legal family for the adopted child and terminates the legal relationship
between the child and her natural kindred.
 While an agreement may grant a natural parent rights to post-adoption contract, enforcing it would be
inconsistent w/ the Legislature’s mandate that a natural parent may not exercise any right to the adopted
child not incorporated in the adoption decree.
 If the agreement is not incorporated in the adoption decree, theirs rights as to the child are terminated
upon adoption and any contact w/ the child may had only upon the adoptive parents’ permission.
 BM cannot seek relief based on the agreement.
Notes:
 Weird to enforce contract laws w/ adoption agreements: Money damages? Child a commodity? Const.
rights to adoptive parents.
SDCL Chapter 25-6: Adoption of Children
25-6-2. Adoption of minor child permitted--Minimum difference in ages--Best interests of child
Any minor child may be adopted by any adult person. However, the person adopting the child must be at least
ten years older than the person adopted.
In an adoption proceeding or in any proceeding that challenges an order of adoption or order terminating
parental rights, the court shall give due consideration to the interests of the parties to the proceedings,
but shall give paramount consideration to the best interests of the child.
25-6-3. Consent of spouse required for adoption
A married man not lawfully separated from his wife cannot adopt a child without the consent of his wife, nor
can a married woman, not thus separated from her husband, without his consent, provided the husband or wife
not consenting is capable of giving such consent.
25-6-4. Consent of child's parents required for adoption--Court waiver of consent
No child may be adopted without the consent of the child's parents. However, if it is in the best interest of the
child, the court may waive consent from a parent or putative father who:
(1) Has been convicted of any crime punishable by imprisonment in the penitentiary for a period that, in
the opinion of the court, will deprive the child of the parent's companionship for a critical period of
time;
(2) Has, by clear and convincing evidence, abandoned the child for six months or more immediately
prior to the filing of the petition;
(3) Has substantially and continuously or repeatedly neglected the child and refused to give the child
necessary parental care and protection;
(4) Being financially able, has willfully neglected to provide the child with the necessary subsistence,
education, or other care necessary for the child's health, morals, or welfare or has neglected to pay
for such subsistence, education, or other care if legal custody of the child is lodged with others and
such payment ordered by the court;
(5) Is unfit by reason of habitual abuse of intoxicating liquor or narcotic drugs;
(6) Has been judicially deprived of the custody of the child, if the adjudication is final on appeal to the
court of last resort or the time for an appeal has expired;
(6A) Has caused the child to be conceived as a result of rape or incest; or
(7) Does not appear personally or by counsel at the hearing to terminate parental rights after notice
pursuant to §§ 25-5A-11 and 25-5A-12 which was received at least thirty days prior to the hearing.
25-6-4.1. Compelling, coercing, or forcing adoption as felony
It shall be unlawful to compel, coerce, or force by any means, any person to release, sell, place, relinquish, or
give up for adoption any minor child. A violation of this section shall be a Class 6 felony.
25-6-4.2. Offering, giving, or receiving unauthorized consideration for adoption as felony
Any person who offers, gives, or receives any money or other consideration or thing of value in connection with
the placing of any child for adoption, or relating to the consent to adoption, or with the petition for adoption
except such charges as are approved by the court and fees charged by agencies licensed pursuant to chapter 266, is guilty of a Class 6 felony.
25-6-5. Consent of child over twelve required
The consent of the child, if over the age of twelve years, is necessary to its adoption.
25-6-17. Rights and duties of natural parents terminated on adoption--Exceptions
The natural parents of an adopted child are from the time of the adoption, relieved of all parental duties towards,
and of all responsibility for the child so adopted, and have no right over it. Adoption of a child shall be final and
unconditional except as otherwise provided by § 25-6-21. The natural parents of an adopted child shall retain no
rights or privileges to have visitation or other post-adoption contact with the child, except in cases where a
natural parent consents to the adoption of a child by the child's stepfather or stepmother who is the present
spouse of the natural parent or in cases of voluntary termination where there is a written pre-adoption agreement
between the natural parent or parents and the adoptive parents. Any existing child support arrearages shall be
addressed by the court in the order terminating parental rights. The South Dakota Supreme Court decision,
People in Interest of S.A.H., 537 N.W.2d 1 (S.D. 1995), is abrogated by the South Dakota Legislature in so far
as the case gave circuit courts the option to order an open adoption or post-termination visitation. Post-adoption
visitation is an extraordinary remedy and may be exercised only by the adoptive parents when in the child's best
interests. This section does not apply to pre-adoption agreements entered into before July 1, 1997.
25-6-18. Petition for adoption of adult--Consent--Residence with adoptive parent during minority
An adult may adopt another adult by filing a petition requesting the adoption with the judge of the circuit court,
together with an agreement in writing that the person being adopted shall be treated in all respects as a natural
child of the petitioner. Written consent of the adopted person shall also be required. It shall be a further
prerequisite that the person being adopted shall have lived in the home of the adoptive parent during the
person's minority for a period of at least six months, and this fact shall appear in the petition. If the person being
adopted is the biological child of the adoptive parent, the prerequisite of living in the home of the adoptive
parent during the person's minority is waived.
25-6-19. Order for adoption of adult
If the documents required by § 25-6-18 are in proper form and show the proper facts, upon the filing of same
the judge of the circuit court shall enter an order allowing the petition for adoption of an adult and declaring the
adoption completed.
Standards for Adoption
Race
 What role should race have in adoption proceedings?
o If race is a factor, we must decide what that means? Presumption (rebuttable or not); tie-breaker;
one factor of many; or extreme – court take in account race in adoption proceeding.
 Historically, adopted people within your race b/c you wanted them to appear as biological children.
o Started adopting children that didn’t look like them.
o Social reformers start getting involved in cross-racial adoptions – is this harmful for the kids?
 Minority children languish in foster care system b/c most adopted parents are white.
 Now: Cross-racial adoption is not very popular b/c it’s instinct to adopt a child that looks like biological
kid.
 Race can be considered in adoption but it can’t be the dispositive factor.  Best interest of the child
Petition of R.M.G. (D.C. Ct. App. 1982)
Facts
 Competing petitions for adoption of a black child
 D’s mother (black) gave her up for adoption and signed papers relinquishing parental rights. She didn’t
tell the natural father, nor his mother and step-father (black), AE.
 Dept. of HR placed D w/ foster parents, AT, who are white. AT raised D back to health.
 Few months after D came to live w/ AT, they filed a petition for adoption.
 Dept. notified D’s natural father of the proposed object. NF objected. AE then filed a petition to adopt
D. NH consented. Dept. recommended approval of the grandparents petition.
 During hearing, social worker recommended D’s placement w/ grandparents. Experts presented
conflicting information. TC places the child w/ grandparents.
 Court reversed.
Issue: Whether the particular use of race, as authorized and applies, is necessary and thus precisely enough
tailored to achieve the child’s best interest? Yes.
Analysis – Equal Protection
Statutory Authorization of the Race Factor
 Statute doesn’t bar cross-racial adoption.
 Racial classification is sustainable only b/c it is one among a number of relevant factors.
 Racial classification in adoption statute is necessary to advance a compelling gov’t interest (best interest
of the child).  Survives strict scrutiny.
o Racial consideration is the best interest of the child b/c: (1) self of belonging in family and
community; (2) feeling of self-esteem and confidence; (3) survival skills to cope in the world
Judicial Application of the Race Factor
 Whether the racial classification in the adoption statute is precisely enough tailored to the child’s best
interest to survive strict scrutiny? Yes.
 There is a very real risk of misuse of a racial classification in an adoption proceeding.
 When race is relevant in an adoption contest, the court must make a three-step evaluation:
o (1) How each family’s race is likely to affect the child’s development of a sense of identity;
 The probable effect of each family’s race and the child senses of belonging
 To what extent would the family expose the child to others of her own race
o (2) How the families compare in this regard; and
o (3) How significant the racial differences between the families are when all the factors relevant
to adoption are considered together.
Trial Court
 The court made no specific findings as how race would be likely to affect this particular black child
growing up in either families
 The court did not articulate the comparative analysis required by step 2 and 3
Age
 Age of parents is a factor to be considered in determining whether the adoption is in the best interest of
the child, but age is not dispositive.
 Remember: SD has law that says there must be an age difference of 10 years.
Sexual Orientation & Single Parents
 States used to:
o Ban all same-sex couples from adopting
o Ban all single people from adoption
 Run up against States’ interest:
o Finding permanent homes (More children that need to be adopted than adopted families)
o Individualized review of the best interests of the children (Categorical ban doesn’t allow
assessment of individual situations)
 Prefer of adopting children into the marital family.
Arkansas Department of Human Services v. Cole (Ark. 2011)
Facts
 TC held Act I unconst. as a violation of fundamental privacy rights implicit in Ark. Const.
 Act. I prohibits adoption and foster parenting to individual who is cohabitating outside of a valid
marriage.
o Applies equally to cohabiting opposite-sex and same-sex individuals
o Public policy of the state is to favor marriage; it is in the best interest of children to be reared in
homes in which parents are not cohabiting outside of marriage.
 Π Cole and a group of unmarried adults filed a complaint against the State. Allege Act I burdens
intimate relationship and thus violates their due process, EP, and privacy rights.
 CC declared Act I unconst.
o Burdens FR to privacy. Must be analyzed SS. Didn’t pass const. muster unless it provides the
least restrictive method available that is narrowly tailored to accomplish a compelling state
interest.
Holding: Using the SS standard, b/c Act 1 exacts a categorical ban against all cohabitating couples engaged in
sexual conduct, we hold that it is not narrowly tailored or least restrictive means available to serve the State’s
compelling interest of protecting the best interest of the child.
Analysis
 State’s Interest: Stability, domestic abuse, financial means
 FR to privacy includes sexual intimacy between adults.
 ∆ arg. say a FR is not an issue b/c Act I only proscribes cohabitation.
o Makes the ability to adopt condition on the would-be parent’s sexual relationship.
o Act doesn’t merely prohibit cohabitation. Instead, expressly prohibits those persons who cohabit
with a sexual partner becoming adoptive or foster parents.
 ∆ arg. adopting/foster are privileges bestowed by state statutes and not rights
o Exercise of one’s FR to engage in private consensual sex is conditioned on foregoing the
privilege of adopting/fostering.
o Choice is dramatic.
 Must choose either having sex and not adopt OR adopting and not having sex.
 Exerts significant pressure on π to choose between the two.
o US SC has rejected the concept that const. rights turn on whether a gov’t benefit is characterized
as a “right” or a “privilege.”
 ∆ arg. Act I doesn’t penalize anyone for having sexual relations.
o Act. 1 precisely does that.
o If people cohabit it forecloses their eligibility to have children
 Act 1’s blanket ban provides no such individualized consideration and makes the bald assumption that in
all cases where foster/adoption is at issue it is always against the best interest of the child to be placed in
home where an individual is cohabitating.
 Intrusion by the State into a couple’s bedroom to enforce sexual prohibition.
 Burden is substantial and direct.
Notes
 Under Cole reasoning, a state law banning adoptions by single adults would not stand a const. challenge.
 Could a state require a couple be married for a certain length of time (say, two years) before they
become eligible to adopt?
o States have more leeway on rights if there is a temporary restraint, but not on permanent bar.
o This isn’t a permanent bar b/c only two years. If we have good data that there is problems within
early stages in marriage, this has a greater chance to survive.
 When States start making categorical decisions on who can adopt conflicts with the individualized
analysis of what’s the best interest of the child.
o Doesn’t mean that all of these won’t survive.
Miss. Band of Choctow Indians v. Holyfield
Facts
 Twin babies born out of wedlock to mom and dad, both enrolled members of Tribe and were residents
and domiciliary of the Reservation. Mom gave birth to the twins in different town of Mississippi, 200
miles from the reservation.
 Mom and dad both consented to-adoption form. Adoptive parents filed a petition for adoption in the
same court. Chancellor issued a Final Decree, but contained no reference to ICWA.
 Tribe moved the court to vacate the adoption decree on the ground that under the ICWA exclusive
jurisdiction was vested in tribal court. Court overruled the motion, holding that the Tribe never obtained
exclusive juris. over the children involved herein.
 MS SC affirmed.
Issue: Whether under the ICWA definition of “domicile” such facts suffice to render the twins non-domiciliary
of the reservation? Yes.
Holding: Court reversed. Must defer to the tribal court.
Analysis
 Congress intended a uniform federal law of domicile for ICWA.
 Twins domicile is determined by that of their parents.
o Case of illegitimate child has traditionally meant the domicile of its mother.
 May be a place the child has never been.
o The domicile of mom, at all relevant times, has been on the Reservation.
o At their birth the twins were also domiciled on the reservation, even though themselves had
never been there.
 Congressional objectives make clear that a rule of domicile that would permit individual Indian parents
to defeat the ICWA’s jurisdiction scheme is inconsistent w/ what Congress intended.
Notes
 Tribal court determined that it was in the best interest of children to permit the adoptive parents to adopt
them.
 The best interest of the child standard is considered in the context of the genetic continuity of a Native
American tribe.
Adoptive Couple v. Baby Girl (US 2013)
- Facts:
o Little girl who is classified as Indian b/c she is 1.2% Cherokee.
o State SC held ICWA required her to be taken, at the age of 27 months, from the only parents she
had ever known and handed over her biological father, who attempted to relinquish his parental
rights and who had no prior contact w/ child.
- Issue: Whether ICWA protects a parent who never had custody of child? No.
- Holding:
o Majority held that ICWA didn’t apply to the facts of this case where the Indian father never had
custody of the Indian child in the first place and there were no other Indian placements available.
 Prevent breakup of family
 The family wasn’t together b/c father abandoned baby in utero
 The continued custody by custodial parent would be harmful
 Father wasn’t custodial
 Preference should be given Indian placement
 Nobody sought custody and not prohibited to place with white family
The Indian Child Welfare Act
- Introduction
o Indians are not treated in the context of race, but in the context of political group.
o ICWA was put into place when problems arose that were causing the separation of large
numbers of Indian children from their families and tribes through adoption or foster care
placement in usually non-Indian homes.
 ICWA limits the removal of Native children from their tribes.
o To protect the best interests of Indian children.
o To promote the stability and security of Indian tribes and families
o Minimum Federal standards for the removal of Indian children from their families
o Placement of children in foster or adoptive homes which will reflect the unique values of Indian
culture
- Overview
o When does ICWA apply?
 In a “child custody proceeding”
 Foster care placement,
 Guardianship,
 Termination of parental rights,
 Pre-adoptive and adoptive placements,
 Voluntary placements and involuntary placements where parents can’t regain
custody of child upon demand, third party custody disputes,
 NOT:
o Divorce proceedings or custody dispute between parents,
o Juvenile delinquency proceedings
 Involving an “Indian child”
 Who is an Indian child?
o American Indian and Alaska Native children who are:
 Unmarried, under 18, AND a tribal member OR
 Eligible for tribal membership AND has biological parent who is a
tribal member
o Transfer to Tribal Court
 Parent, Indian custodian, or child’s tribe can request transfer
 If Tribe request, parent should be told for time to object
 State must transfer upon request UNLESS
 Tribal court declines juris.
 Either parents objects to transfer
 State court determines that “good cause” exists to deny transfer
o Such as … advanced stage of proceeding, child over 12 objects, difficult
to present evidence or witness in tribal court
o Active Effort to provide remedial services are required.
 After investigation and BEFORE decision made to place child out of home
 Active Efforts
 To assist family to make changes necessary to keep/return child safely home
 Making evaluation of family’s circumstances that take into account prevailing
social and cultural conditions and way of life of the child’s tribe
 Developing case plan using Tribal resources
 Seeking necessary services
 Involving age appropriate child in design and implementation of case plan
 Intervening only when necessary


o
o
o
o
o
Assisting in maintain ongoing familial relationship
Engaging Tribe early, working closely w/ Tribe to access culturally relevant
resources and support network
Child can be removed from his home
 When conduct or condition of parent will result in serious physical or emotional damage
to child
 Causal relationship between condition and damage
 Not relying only on poverty or issues outside of parent’s control
 When active efforts were made
 Document specific efforts and how they were unsuccessful
Burden of Proof
 Foster Care Placement
 Clear and convincing evidence
 Termination of Parental Rights
 Beyond a reasonable doubt
 Qualified expert witness
Where should child be placed outside parent’s home?
 In a setting:
 Least restrictive,
 Most like family,
 Within reasonable proximity to family,
 Meet child’s special needs
 Preference for Foster Placement
 Member of child’s extended family
 Foster home licensed, approved, and specified by child’s tribe
 Indian foster home licensed or approved by State or other non-Native licensing
authority
 Institution for children approved by tribe or operated by Indian org that meet’s
child’s special needs
 Preference for Termination Placement
 Child’s extended family
 Other members of child’s tribe
 Other Indian families
Emergency Removal
 Determination of child’s qualification should be made right away
 If child is not already under juris of Tribal Court
 Child is in danger of imminent physical damage or harm
Voluntary Termination of Parental Rights
 Consent must be in writing, recorded before Judge
 Child over 10 days old
§ 1901. Congressional findings
Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal
responsibility to Indian people, the Congress finds-(1) that clause 3, section 8, article I of the United States Constitution provides that “The Congress shall have
Power * * * To regulate Commerce * * * with Indian tribes1” and, through this and other constitutional
authority, Congress has plenary power over Indian affairs;
(2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed
the responsibility for the protection and preservation of Indian tribes and their resources;
(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than
their children and that the United States has a direct interest, as trustee, in protecting Indian children who are
members of or are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of
their children from them by nontribal public and private agencies and that an alarmingly high percentage of
such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through
administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people
and the cultural and social standards prevailing in Indian communities and families.
§ 1911. Indian tribe jurisdiction over Indian child custody proceedings
(a) Exclusive jurisdiction
An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an
Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is
otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the
Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
(b) Transfer of proceedings; declination by tribal court
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian
child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of
good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by
either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided,
That such transfer shall be subject to declination by the tribal court of such tribe.
(c) State court proceedings; intervention
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian
child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in
the proceeding.
(d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes
The United States, every State, every territory or possession of the United States, and every Indian tribe shall
give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to
Indian child custody proceedings to the same extent that such entities give full faith and credit to the public
acts, records, and judicial proceedings of any other entity.
§ 1912. Pending court proceedings
(a) Notice; time for commencement of proceedings; additional time for preparation
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian
child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian
child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return
receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of
the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary
in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian
custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held
until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary:
Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty
additional days to prepare for such proceeding.
(b) Appointment of counsel
In any case in which the court determines indigency, the parent or Indian custodian shall have the right to
court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its
discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the
child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall
promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the
presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to
section 13 of this title.
(c) Examination of reports or other documents
Each party to a foster care placement or termination of parental rights proceeding under State law involving
an Indian child shall have the right to examine all reports or other documents filed with the court upon which
any decision with respect to such action may be based.
(d) Remedial services and rehabilitative programs; preventive measures
Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child
under State law shall satisfy the court that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have
proved unsuccessful.
(e) Foster care placement orders; evidence; determination of damage to child
No foster care placement may be ordered in such proceeding in the absence of a determination, supported by
clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody
of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the
child.
(f) Parental rights termination orders; evidence; determination of damage to child
No termination of parental rights may be ordered in such proceeding in the absence of a determination,
supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or
physical damage to the child.
§ 1915. Placement of Indian children
(a) Adoptive placements; preferences
In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of
good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other
members of the Indian child's tribe; or (3) other Indian families.
(b) Foster care or preadoptive placements; criteria; preferences
Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting
which most approximates a family and in which his special needs, if any, may be met. The child shall also be
placed within reasonable proximity to his or her home, taking into account any special needs of the child. In
any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the
contrary, to a placement with-(i) a member of the Indian child's extended family;
(ii) a foster home licensed, approved, or specified by the Indian child's tribe;
(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which
has a program suitable to meet the Indian child's needs.
(c) Tribal resolution for different order of preference; personal preference considered; anonymity in application of
preferences
In the case of a placement under subsection (a) or (b) of this section, if the Indian child's tribe shall establish a
different order of preference by resolution, the agency or court effecting the placement shall follow such
order so long as the placement is the least restrictive setting appropriate to the particular needs of the child,
as provided in subsection (b) of this section. Where appropriate, the preference of the Indian child or parent
shall be considered: Provided, That where a consenting parent evidences a desire for anonymity, the court or
agency shall give weight to such desire in applying the preferences.
(d) Social and cultural standards applicable
The standards to be applied in meeting the preference requirements of this section shall be the prevailing
social and cultural standards of the Indian community in which the parent or extended family resides or with
which the parent or extended family members maintain social and cultural ties.
(e) Record of placement; availability
A record of each such placement, under State law, of an Indian child shall be maintained by the State in which
the placement was made, evidencing the efforts to comply with the order of preference specified in this
section. Such record shall be made available at any time upon the request of the Secretary or the Indian child's
tribe.
Divorce
 State Interest in Regulating Divorce
o Ensure financial stability of parties
o Ensure discharge of family obligations
o Protection of children and vulnerable spouses
o Efficient distribution of marital property
o Facilitating remarriage
o Promoting the characteristics of healthy marriage by condemning in the divorce the
characteristics we think are wrong for marriage
Fault-Based Divorce
 Two steps:
o Prove all elements for a “cause” of divorce
o Prove you are a completely innocent spouse
SDCL Chapter 25-4: Divorce and Separate Maintenance
25-4-1. Marriage dissolved only by death or divorce--Status of parties after divorce
Marriage is dissolved only:
(1) By the death of one of the parties; or
(2) By the judgment of a court of competent jurisdiction decreeing a divorce of the parties. The effect of such
judgment is to restore the parties to the state of unmarried persons.
25-4-2. Grounds for divorce
Divorces may be granted for any of the following causes:
(1) Adultery;
(2) Extreme cruelty;
(3) Willful desertion;
(4) Willful neglect;
(5) Habitual intemperance;
(6) Conviction of felony;
(7) Irreconcilable differences.
25-4-3. Adultery defined
Adultery is the voluntary sexual intercourse of a married person with one of the opposite sex to whom he or she is not
married.
25-4-4. Extreme cruelty defined
Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the
marriage.
25-4-5. Willful desertion defined--Special conditions applicable
Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert.
The special conditions or circumstances set forth in §§ 25-4-8 to 25-4-14, inclusive, shall also apply in establishing
desertion under the provisions of this title.
25-4-8. Refusal of intercourse as desertion--Refusal to live together
Persistent refusal to have reasonable matrimonial intercourse as husband and wife when health or physical condition
does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the
other party when there is no just cause for such refusal, is desertion.
25-4-14. Offer to return curing desertion--Refusal of offer as desertion
If one party deserts the other and, before the expiration of the statutory period required to make the desertion a cause
of divorce, returns and offers in good faith to fulfill the marriage contract and solicits condonation, the desertion is
cured. If the other party refuses such offer and condonation, the refusal shall be deemed and treated as desertion by
such party from the time of the refusal.
25-4-15. Willful neglect defined
Willful neglect is the neglect of a person to provide the common necessaries of life for his or her spouse, when having
the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation.
25-4-16. Habitual intemperance defined
Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a
great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental
anguish upon the innocent party.
25-4-17. Continuous period of desertion, neglect, or intemperance required
Willful desertion, willful neglect, or habitual intemperance must continue for one year before either is a ground for
divorce.
Capone v. Capone
(AL. 2006)
Adultery
Facts
 Married and then separated. Husband sued wife for a divorce. W counterclaimed for a divorce, alleging
H had committed adultery.
 W testified that H had an affair w/ co-worker and friend. GF and H talked regularly on the phone, went
of fake work trips, stayed at GF’s house, etc. H denied the affair.
 TC entered a judgment divorcing parties on adultery, incompatibility of temperament, and irretrievable
breakdown of marriage.
 H appeals and alleges that W failed to present sufficient evidence for court to find he committed
adultery.
Holding: Evidence not sufficient. Reverse TC judgment.
Analysis
 Rule: Adultery may be proven w/ circumstantial evidence. Must be sufficiently strong to lead the
guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.
 Counter evidence of adultery: W also friends w/ GF, had dinner together, H admitted they were friends,
but only stayed at GF’s apartment after separation.
Benscoter v. Benscoter (Penn. 1963)
Cruelty
Facts
 H filed a complaint in divorce on indignities to the person.
 H complains that W has expressed her disappointment in not giving her a daughter, only sons. But this
conduct was sporadic, didn’t occur until 15 years of marriage.
 13 years into marriage, W diagnosed w/ MS.
Holding: H not entitled to divorce. H didn’t become dissatisfied w/ W until she became ill w/ MS. He can’t
discard her now.
Analysis
 P’s condition is not has intolerable or burdensome as he alleges b/c he stayed w/ her for so long.
 Ill health of W explains and excuses W’s conduct and the acts of a spouse resulting from ill health do
not furnish a ground for divorce.
 W can’t prove adultery, but her suspicions were not unfounded after she found condoms in his wallet.
 H had to prove clearly and indubitably his status as the injured and innocent spouse.
o Court doesn’t believe that H was the innocent and injured spouse.
Notes
 Cruelty was limited to bodily harm or a reasonable apprehension of it.
o Give right to limited divorce  Legal separation rather than the right to remarry.
 Today most courts consider psychological harm sufficient to grant a divorce for cruelty.
o Even when physical harm is required, it may be met by such evidence as weight
loss/nervousness.
 Sometimes, homosexual adultery was considered as cruel and inhuman treatment.
Jenkins v. Jenkins (LA Ct. App. 2004)
Desertion
Facts
 W moved out of house and filed for divorce. Couple got back together. Then W moved out again and
filed for divorce.
 TC found that W was w/o fault in the divorce and awarded her permanent spousal support.
 H argues that TC erred in finding W not at fault. H alleges that W abandoned him when she moved out
and refused to return. Abandonment constitutes as legal fault and precludes support.
Holding: TC didn’t err. W/ wife.
Analysis
 Abandonment constitutes legal fault for the purposes of precluding support.
o Elements:
 The party has withdrawn from the common dwelling;
 The party left w/o lawful cause or justification; and
 The party has constantly refused to return to live w/ the other.
o Elements 1 & 2 are met: W moved out of home and has no plans to return.
 Issue: Whether W had lawful cause for leaving? Yes.
o W alleges H’s excessive drinking w/ physical and verbal abuse led her to leave.
o Habitual intemperance or excesses, cruel treatment or outrages = Fault for separation
 Habitual Intemperance = Fault
 The extent and habitualness of intoxication, not the quantity of alcohol
 Acts of Cruelty = Separation may be granted.
 Where the conduct of a spouse is calculated permanently to destroy the peace of
mind and happiness of the other so as to utterly destroy the objects of matrimony
o H’s drinking followed by abuse seemed calculated to utterly destroy W’s
peace of mind and happiness rendering the marriage unsupportable.
o TC must have found that W had just cause for moving out of domicile based upon H’s habitually
excessive drinking and abusive language towards W.
 H doesn’t believe he has a drinking problem.
Notes
 Desertion/abandonment originally conceived as the physical departure of a spouse from the marital
home. However, if departing S could establish a legit ground for divorce, then departing from home was
NOT considered desertion.
Defenses to Fault-Based Divorce
 Cases below typically about males getting denied a divorce.
 Courts thought they had to be protectionist for wives b/c if she was divorced, then she may likely
become a ward of the state. Husbands trading up their wives for better new wife.
SDCL Chapter 25-4: Divorce and Separate Maintenance
25-4-19. Grounds for denial of divorce
Divorces must be denied upon showing:
(1) Connivance;
(2) Collusion;
(3) Condonation; or
(4) Limitation and lapse of time.
25-4-20. Connivance defined
Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of
divorce. Corrupt consent is manifested by passive permission, with intent to connive at or actively procure the
commission of the acts complained of.
25-4-21. Collusion defined
Collusion is an agreement between husband and wife that one of them shall commit or appear to have committed or to
be represented in court as having committed acts constituting a cause of divorce, for the purpose of enabling the other
to obtain a divorce.
25-4-22. Condonation defined--Required elements
Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce.
The following requirements are necessary to condonation:
(1) A knowledge on the part of the condoner of the facts constituting the cause of divorce;
(2) Reconciliation and remission of the offense by the injured party;
(3) Restoration of the offending party to all marital rights.
Recrimination: If both parties are guilty, neither one of them is getting a divorce.
 Case below is a good example of the courts telling us what marriage is.
o Marriages are good and bad; these actions are not things wives do.
 Good thing: Tie alimony to fault, then if both sides are guilty, then we aren’t applying the alimony
scheme to a guilty party.
 Bad thing: Maintain encourage perjury when people want to be divorced (incentives them to come up
with lies to get pass this barrier). Doesn’t really keep marriages together – couple isn’t happy, why keep
them legally married?
 Modern Form of Fault Based Divorce
o W/ recrimination gone, don’t have to prove that you are completely innocent.
 Most states have gotten rid of this defense.
o Both parties can be guilty and can still end up getting a divorce.
Rankin v. Rankin
[Recrimination]
Penn. 1956
Facts
 Michael instituted action in divorce against wife, Edith. Complaint alleged cruel and barbarous
treatment and indignities to the person, amended to include desertion.
Holding: H did not establish his right to divorce on the grounds of indignities.
 Cruel and barbarous treatment
o Comprises actual personal violence or a reasonable apprehension or such a course of treatment as
endangers life/health and renders cohabitation unsafe.
o A single instance of cruelty may be so severe as to justify divorce.
o H’s complaint is completely uncorroborated and utterly improbable.
 Car incident where W said she was going to kill him, driving fast, H jumped from car,
and W attempted to run him down.


Indignities
o H says W called him names w/o provocation, refused to have kids, took all his furniture, spit at
him, absent from home, threw hot water, etc.
 His testimony was vague, general, and indefinite.
 Evidence makes it looked like H was the principal offender, and W was innocent.
o It must clearly appear from the evidence that π was injured and innocent spouse.
 Wife countered all of H’s testimony w/ numerous corroborated testimony about what H
did to W.
The fact that married people do not get along well together does NOT justify a divorce.
o Testimony which proves merely an unhappy union is insufficient to sustain a decree.
o If both parties are at fault, neither can clearly said to be the innocent and injured spouse, the law
will leave them were they put themselves.
Hollis v. Hollis
[Connivance]
VA 1992
Facts:
 W alleges adultery. H admits that he was engaged in an adulterous relationship.
 H says that W urged him to date other woman and that he entered into his current relationship only after
his W encouraged it. W wrote two letters saying she wanted H to find other woman and date her. W
even sent a card and flowers to hotel where H and GF were staying. W and H signed document that W
consented to H moving in w/ other woman.
 TC found that H’s adultery resulted from W’s connivance and granted H divorce on no-fault grounds.
Holding: A finding of connivance was sufficiently supported by the evidence.
 Connivance is the consent of one spouse to the proposed misconduct of the other spouse.
o One who consents to another’s misconduct may not seek a divorce based on the misconduct.
 Evidence support connivance includes: W’s letters and notes show W encouraged and consented to H’s
relationship.
Notes
 Would be different in SD, H wouldn’t walk away w/ a no-fault divorce, b/c wife has to consent (which
she hasn’t).
 Sergeant v. Sergeant: W defended divorce suit by stating that H allowed the adultery to happen.
o Court says that innocent woman would never come up with this relationship w/o her husband’s
orchestration of the affair.
o Where is the fine line between hiring a PI to collect evidence vs. watching it happen and not
stopping the affair?
Condonation
 Sex = Reinstatement. YET, cruelty also equaled the forced sex.
Willan v. Willan
[Condonation]
England 1960
Facts:
 H’s petition for divorce based on the grounds of cruelty. TC dismissed the claim based on the ground
that the cruelty had been condoned.
 H alleges that W assaulted him, called him names, demanded sexual intercourse by pestering him and
acting violent towards him.
 Before final separation, the parties were on bad terms, yet sex continued. Solicitors wrote letters to wife
about her misconduct, yet life went on as usual. H continued to voluntarily have sex w/ W.
 Incident of 9/28 – H says wife forced him to have sex, he kissed her in the morning. If the act of
intercourse did amount to condonation, conduct subsequent thereto on the part of the W was sufficient to
bring about a revival.
Holding: Condonation existed.






Acts of condonation are largely bound up with the conduct complained of.
Court found it impossible to say that the subsequent action of the wife in submitting herself to an act of
sexual intercourse could in any circumstances amount to act of cruelty against the H.
H’s intercourse w/ W w/ full knowledge of the matrimonial offence of which complaint is made is
conclusive evidence of condonation by the H of the W.
o Best possible way of showing that the W has been reinstated as a wife.
H was free to submit or to resist.
In a case of H who has sexual intercourse it can only be said of him that what he does on purpose, and
that sexual intercourse w/ his W must be voluntary act on his part.
H condones what she does (pulling hair) by having sex with her.
Collusion
 Two innocent parties. Parties know that to get a divorce, one of them has to be guilty. They make a plan
to portray one of them to be guilty.
Fuchs v. Fuchs
[Collusion]
NY 1946
Facts:
 Final judgment of divorce was rendered in favor of the π (husband) on ∆’s (wife) default.
o First action: π commenced action based on adultery, ∆ appeared and denied the allegations.
Action discontinued.
o Second action: ∆ claims that π stated he wanted a divorce and if she allowed him one, he would
give her full custody of the child. ∆ agreed and advised attorney not to contest the divorce.
 ∆ denies ever having committed adultery.
Holding: Motion to vacate is granted.
 Generally, a party that deliberately suffered a default, the motion to vacate will be denied.
o A party can’t consent to the entry of decree of divorce.
o Strict rules relating to opening defaults are not applied to actions of divorce b/c courts prevent
collusion.
 Precedent allowed reversal when husband bribed wife not to contest divorce by agreeing to pay her
monthly.
o Here, a threat to deprive a mother of her child would be an even more compelling inducement to
persuade her to default in a divorce action.
 State has an interest in the matrimonial status of its citizens and the two guilty spouses are not the only
parties in interest.
 ∆’s right to open the default and defend the action is not affected by the fact that π was remarried.
o ∆ is permitted to answer the complaint. Decree may stand until trial.
o If the defense be sustained, the decree shall be vacated and complaint dismissed. But if π prevail,
the decree shall remain in full force for the protection of π’s second wife.
 If the divorce is reversed, then husband’s second marriage is invalid b/c the first
marriage would never have actually ended.
Notes
 This case shows the tension of such divorces. Public policy concern  Can we actually have a fault
based system knowing how hard spouses will work to get around it?
o Couples playing the system against state’s interests.
Limitation and Lapse of Time
 Legislature took out definition in 2014, but did not eliminate it from the State Code list.
No-Fault Divorce
 Shifting from Fault to No-Fault




o To prevent the encouragement of perjury and animosity between spouses
o Living Apart Statutes
 No-fault alternatives; wait times were long (5-8 years);
o California Commission
 Recommended CA get rid of adversarial system in family law proceedings.
 Family law courts wouldn’t look like two parties litigating against each other.
Instead, court would provide counseling, mediation, negotiation based system.
 Didn’t adopt.
 Instead, adopted no-fault divorce system. No fault based.
o Modern No-Fault Laws
 Living Separate and Apart Statutes
 Example: In re Marriage of Dowd
 Irretrievable Breakdown / Irreconcilable Difference Statutes
 Example: Grimm v. Grimm
Most states added a no-fault ground for divorce to their existing list of fault grounds.
o Irreconcilable differences, irremediable breakdown, incompatibility of the spouses
o Very few fault based divorces granted now.
o Courts are no looking very deep at the breakdown in the marriage. Especially, when both parties
consent.
Uniform Marriage and Divorce Act
o Legal Separation
 Court shall enter a decree of dissolution of marriage if:
 Marriage is irretrievably broken if:
o Parties have lived separate and apart for more than 180 days; or
o Serious marital discord adversely affecting the attitude
o Irretrievable Breakdown
 If both parties state that marriage is irretrievably broken, or one parties say this and other
doesn’t deny it.
 If one parties deny, court should consider all relevant factors.
 Finding of irretrievable breakdown is a determination that there is no reasonable prospect
of reconciliation.
All states have adopted some version of a “no-fault” ground for divorce.
Goal was to decrease animosity between spouses and salvage as many marriages as possible.
SDCL Chapter 25-4: Divorce and Separate Maintenance
 If one side doesn’t want a divorce, then you have to pop into the fault-based divorce.
o In fault, there are still defenses.
o So just because you fill, you could still end up without a divorce.
o However, almost anything falls within the cruelty section.
25-4-17.1. Irreconcilable differences defined
Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not
continuing the marriage and which make it appear that the marriage should be dissolved.
25-4-17.2. Dissolution of marriage--Legal separation--Continuance--Orders during continuance--Consent of
parties
If from the evidence at the hearing, the court finds that there are irreconcilable differences, which have caused the
irremediable breakdown of the marriage, it shall order the dissolution of the marriage or a legal separation. If it appears
that there is a reasonable possibility of reconciliation, the court shall continue the proceeding for a period not to exceed
thirty days. During the period of the continuance, the court may enter any order for the support and maintenance of the
parties, the custody, support, maintenance, and education of the minor children of the marriage, attorney fees, and for
the preservation of the property of the parties. At any time after the termination of the thirty-day period, either party
may move for the dissolution of the marriage or a legal separation, and the court may enter its judgment decreeing the
dissolution or separation.
The court may not render a judgment decreeing the legal separation or divorce of the parties on the grounds of
irreconcilable differences without the consent of both parties unless one party has not made a general appearance.
**Note: SD is unique for this. Requires both parties’ consent for no-fault divorce.
In re Marriage of Dowd
Facts
 H appeals a judgment of dissolution of marriage entered by CC based on irreconcilable differences.
o Argues that CC erred b/c the proof was insufficient to show that the parties lived separate and
apart in excess of 2 years or that the marriage was irretrievably broken down as required by
statute.
Issue: What constitutes as “living separate and apart”?
Holding: Judgment affirmed and marriage should be dissolved under no-fault provision.
 Kenick: Held it was not necessary for individuals in a marriage to live apart to make the provision
applicable. It is the discretion of the TC to determine whether parties meet statute.
o They can be living under the same roof but there is no conjugal visits, separate bedrooms, doing
own laundry and meals.
o Here, W moved out, came back and slept on couch, hadn’t said “love you” for 2 years, last sexy
time was 1 year ago, third time filing for dissolution.
 Apparent that irreconcilable differences existed and that an irretrievable breakdown of the marriage
occurred long ago.
o Parties were unable to live together as husband and wife
o No prospects of reconciliation existed
o Although no physical separation, parties had been living “separate and apart” for more than 2
years
Grimm v. Grimm
Facts
 ∆ argues that court abused its discretion in finding that the marriage had broken down irretrievably.
 Π testified that marriage had irretrievably broken down. Said ∆ was very cold, distant, abusive, cruel,
and dishonest, and controlling. ∆ exposed himself in front of child, committed larceny, and made
inappropriate sexual advances.
 ∆ countered that he was willing to seek counseling and the π’s pattern of behavior of starting/ending
proceedings shows she is mistaken in belief that marriage was broken.
Holding: Court did not improperly find that the marriage had broken down irretrievably.
 Determination of whether a breakdown occurred is a question of fact to be determined by TC
 Fact that ∆ hopes for reconciliation doesn’t support a finding that there are prospects for a reconciliation.
o Factual findings reviewed clearly erroneous standard. Great deference to TC
o A difference, to be irreconcilable, need NOT necessarily be so viewed by both parties.
 Π’s allegations concerning the difficulties in the marriage were serious and spanned almost the entire
length of the marriage.
o Court was within its discretion to credit the π’s version of facts.
Notes
 Courts have rejected claims that no-fault divorce grounds are unconst.
 Having no-fault doesn’t mean that litigation costs will be low.
 Even if we require one side to think the marriage is broken down, it is still a fact-intensive question.
o Listen to evidence, make decision, fact-intensive appeal
Reconciliation Agreements
 Most likely to see these in states w/ a true-no-fault system.
 Private parties want fault back in their personal divorce, but question as whether State/Courts should
allow fault to come back into the divorce.
In re Marriage of Cooper
Facts
 Wife discovered Husband was romantically involved w/ another woman. H wanted the marriage to
continue and was willing to make substantial promises in order to achieve reconciliation.
 Promises were reduced to writing and signed by both spouses. “If any of my indiscretions lead to
divorce, I take full responsibility.” H agreed to other financial payments.
 Later, H left family and W filed for divorce. Sought a temporary order of support and attached the
notarized reconciliation agreement.
 DC w/ W. H said he didn’t remember signing that. CoA reversed.
o H argues that agreement is unenforceable as it violates public policy by considering fault in
dissolution proceedings.
Holding: Agreement is not enforceable.
 Statutory law is silent on the issue, date case law exists!
o Precedent said agreements were invalid.
 Case involves a reconciliation agreement which has a condition precedent the sexual conduct of the
parties within the marital relationship.
o Case law is that contracts which attempt to regulate the conduct of spouses during the marital
relationship are not enforceable.
 Relationship between spouses cannot be regulated by contracts.
o We don’t wish to create a bargaining environment where sexual fidelity or harmonious
relationships are key variables.
 Reject the idea of injecting the courts into the complex webs of interpersonal relationships that would
arise in contracts that can be enforced by probing into the relationship.
 No-fault divorce law is designed to limit acrimonious proceedings.
 Void agreement should be given no weight in the dissolution proceedings.
Notes on Hypo
 Unconscious-ability
o Duress (Getting a divorce or sign the agreement)
 Consideration
o One side (not getting a divorce) vs. Other side (I’ll give you more money)
Limits on Access to Divorce
Positivity of Judicial Divorces (Interest)—why go to court?
 Emotion relief to discuss difficulties in court
 Predictability: Know what to expect
 Right to remarry
Big Question
 If the right to marry is fundamental, does that imply that there is a right to divorce as well?
Boddie v. Connecticut
(US 1971)
Facts
Financial Limits
 Appellants, welfare recipients, brought this action challenging certain state procedures (requirements for
payment of court fees and costs for service of process) that restrict their access to the courts in their
effort to bring an action for divorce. Substantial due process claim.
 Average cost is $60
 No dispute as to the inability of appellants to pay the fees.
Holding: State’s refusal to admit these appellants to its court, the sole means for obtaining a divorce, must be
regarded as the equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution
of their marriages.  Denial of due process.
 State has to allow a way for individuals to exit marriage.
 Marriage involves important interests of society.
 No instance where two consenting adults may divorce and mutually liberate themselves from the
constraints of legal obligations that go w/ marriage w/o invoking the State’s judiciary.
 Court thinks appellant’s plight (resort to state court is the only avenue to dissolution of their marriages)
is similar to that of ∆s faced w/ exclusion from the only forum effectively empowered to settle their
disputes.
 Due process (more procedural due process as opposed to the π’s substantive due process claim)
o A statute may be held constitutionally invalid when it operates to deprive an individual of a
protected right.
o Requires persons forced to settle their claims of right and duty through the judicial process must
be given a meaningful opportunity to be heard.
 A cost requirement may offend due process b/c it operates to foreclose a particular
party’s opportunity to be heard.
 State’s Interests
o Prevention of frivolous litigation is substantial; Its use of fees to allocate scarce resources is
rational; its balance between ∆’s right to notice and π’s right to access is reasonable
o None of these considerations is sufficient to override the interest of these πs in having access to
the only avenue open for dissolving their marriages.
o Other alternatives available.
Notes
 Court is more focused on the right to remarry. Divorce on the table for the ability to remarry later
(marriage is a fundamental right). Not explicitly said.
 If the barrier to access divorce is insurmountable, we will be considered about its const. If there is an
exemption, then we aren’t as concerned.
 State can impose indirect costs to accessing divorce.
o If state decides they want no-fault divorce, they can change their law that increases the price for
an average person, they can do this in an indirect way.
Sonsa v. Iowa
Facts
Residency requirement
 Appellant Carole married Michael and lived in NY. Then, they separated and W moved to Iowa w/ her
children. After one month, she petitioned in Iowa for a dissolution of her marriage. Michael was
personally served when he came to Iowa to visit his children.
 Iowa dismissed the petition for lack of jurisdiction b/c H was not a resident of Iowa and W had not been
a resident of the State for one year preceding the filing of her petition.
 Iowa required the petitioner in such an action be for the last year a resident of the State.
 W argues that Iowa’s requirement of one year’s residence is unconst. b/c establishes 2 classes of persons
and discriminating against right to travel.
 W makes an equal protection claim
Holding: Affirmed. Justice delayed, not denied.
 Durational residency requirement, regulation of domestic relations, is in a virtually exclusive province
of the States.
o Court has traditionally disclaimed any jurisdiction upon the subject of divorce; State has absolute
rights to prescribe the conditions which marriage relations may be dissolved.
 1-year period selected by Iowa is the most common length of time prescribed.
 W not irretrievably foreclosed from obtaining some part of what she sought.
o She would eventually qualify for the same sort of adjudication which she demanded virtually
upon her arrival in the State.
o State’s requirement delayed her access to the courts, but she could ultimately obtain the same
opportunity.
 Iowa may insist that one seeking to initiate such a proceeding have the modicum of attachment to the
State required here.  Child custody and support.
 State’s Interest
o Avoid officious intermeddling in matters in which another State has a paramount interest
o Decide it doesn’t wish to become a divorce mill for unhappy spouses who have lived there as
short a time.
o Making sure spouses are each adequately represented.
Dissenting: W’s year wait prevents remarriage and locks both partners into what may be an intolerable,
destructive relationship. Court doesn’t think her injury is severe enough.
Summary
 Boddie and Sosna: Do they establish a fundamental right to divorce?
o Boodie: Level of scrutiny – maybe rational basis or IS?
o Sonsa: Rational basis, really calls into question whether there is a fundamental right to divorce
o Divorce doesn’t meet the level of a fundamental right. Still questionable, though.
SDCL § 25-4-30. Residence requirements for divorce or separate maintenance
The plaintiff in an action for divorce or separate maintenance must, at the time the action is commenced, be a
resident of this state, or be stationed in this state while a member of the armed services. Subsequently, the
plaintiff need not maintain that residence or military presence to be entitled to the entry of a decree or judgment
of divorce or separate maintenance.
Marriage & Divorce in US: Two Systems
(1) State Civil System (applies to everyone)
(2) Religious System (applies only to those who opt into it)
*Can simultaneously go through both of these; overlap
 Allow religious leaders to approve state marriage in their religious system.
Notes
 Jewish Marriage & the Get
o Get: piece of paper H has to give to W at the end of the marriage at the end of marriage
o Allows her to marry in the Jewish faith again and have legitimate children.
o W/o a get: She can get a civil divorce and a civil remarriage.
o Having a get determines if she can get remarried in the Jewish fate.
o If H refuses to give W a get, he doesn’t face any implication. He still can remarry in the Jewish
faith.
o Summary: Get raises serious issues in civil courts when dealing with religious freedom, contract,
etc. (is it a prenup??)
 Christian Marriage & Covenant Marriage (covenant marriage grounded in Christian belief)
o Benefits: Opt in option.
o Disadvantage: Reintroduces fault after you opted into it.
o So, if SD introduced this, would you endorse it?
Spaht, Covenant Marriage
 Covenant marriage differs from standard marriages:
o Mandatory pre-marital counseling;
 Intent of couple that it be lifelong AND the agreement that the couple will take all
reasonable steps to preserve the marriage
o The legal obligation to take all reasonable steps to preserve the couple’s marriage if marital
difficulties arise;
 Prospective spouses sign a document called a Declaration of Intent that contains their
intent of their covenant, which includes the agreement to seek counseling if difficulties
arise
 Agreement be bound by State law of covenant marriage
 Steps to preserve marriage constitutes a legal obligation
o Restricted grounds for divorce consisting of fault on the part of the other spouse of two years
living separate and apart.
 Only obtain divorce if can prove adultery, conviction of a felony, abandonment for one
year, or physical/sexual abuse OR must live separate for 2 years
 Standard marriage only must live apart from 6 months.
 Restricts entry into and exit from marriage
 Uncommon, only 3 states
Custody

Types of Custody
o Legal Custody: Right and responsibility to make decisions to health, welfare, and education of
the child (Decision-making)
 Sole Legal Custody: Inclusive decision-making authority for the child
 Joint Legal Custody: Both parents have role in decision-making authority
 Increasingly the norm
o Unless something abnormal going on, you can expect both parents have
JLC
o Physical Custody: Provide physical care child on a daily basis
 Sole Physical Custody: Child residing sole/primarily with one parent (residential parent),
who is responsible for child’s daily care
 Use to be the norm; other parent would get visitation rights
 Joint Physical Custody: Child dividing time
 Try to get it as close to 50-50
 Both parents have obligation to provide daily care when child is in their custody
“Best Interest” Standard
 Court shall determine custody in accordance w/ the best interest of the child.
 Relevant factors:
o Wishes of the child’s parents;
o Wishes of the child as to his custodian;
o Interaction of the child w/ his parents, siblings, etc.;
o Child’s adjustment to his home, school, and community; and
o The mental and physical health of all individuals involved.
 South Dakota’s “Best Interest” from Cases
o TC are required to take a “balanced and systematic approach” in weighing various factors, which
may include:
 Siblings should not be split unless there are compelling circumstances
 Fault of parents in divorce is not determinative
 Although, there is a rebuttable presumption that is not in the child’s best interest
to have custody go to a parent w/ a history of domestic violence
 Frequent moves are not in a child’s best interests
 Child’s choice can be considered

Child’s best interest served if custody goes to a parent who is more likely to foster
contact w/ the other parent
 Courts may consider mental and physical health of the parents
o No code section which defines “Best Interest of the Child”
25-4-45. Child custody provisions--Modification--Preference of child
In an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and
education of the children of the marriage as may seem necessary or proper, and may at any time vacate or
modify the same. In awarding the custody of a child, the court shall be guided by consideration of what appears
to be for the best interests of the child in respect to the child's temporal and mental and moral welfare. If the
child is of a sufficient age to form an intelligent preference, the court may consider that preference in
determining the question. As between parents adversely claiming the custody, neither parent may be given
preference over the other in determining custody.
25-4-45.1. Fault not considered in awarding property or child custody--Exceptions
Fault shall not be taken into account with regard to the awarding of property or the awarding of child custody,
except as it may be relevant to the acquisition of property during the marriage or to the fitness of either parent in
awarding the custody of children.
SDCL Chapter 25-5: Parent and Child
25-5-7. Parents equally entitled to custody and earnings of child born in wedlock
Subject to the court's right to award custody of the child to either parent, considering the best interest of the child as to
its temporal, mental, and moral welfare the father and mother of any minor child born in wedlock are equally entitled to
the child's custody, service, and earnings.
25-5-7.1. Joint legal custody order--Factors for court's consideration--Joint physical custody
In any custody dispute between parents, the court may order joint legal custody so that both parents retain full parental
rights and responsibilities with respect to their child and so that both parents must confer on, and participate in, major
decisions affecting the welfare of the child. In ordering joint legal custody, the court may consider the expressed desires
of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may
divide those aspects between the parties based on the best interest of the child. If it appears to the court to be in the
best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided.
Such areas of responsibility may include the child's primary physical residence, child care, education, extracurricular
activities, medical and dental care, religious instruction, the child's use of motor vehicles, and any other responsibilities
which the court finds unique to a particular family or in the best interest of the child. If the court awards joint legal
custody, it may also order joint physical custody in such proportions as are in the best interests of the child,
notwithstanding the objection of either parent.
25-5-10. Custody and earnings of children born out of wedlock
The mother of an unmarried minor born out of wedlock is entitled to its custody, services, and earnings subject to the
court's right to award custody of the child to either parent, considering the best interests of the child as to its temporal,
mental, and moral welfare.
25-5-10.1. Best interest of child not presumed--Change of custody
Notwithstanding any initial entitlement to custody pursuant to § 25-5-10, there is no legal presumption that such
custody is in the best interest of the child, nor is a change of circumstances required for a change of the initial custody as
determined by § 25-5-10.
In re Marriage of Carney
(CA 1979)
Fitness
Facts:
 Dad appeals divorce decree which transfers custody of the 2 minor children from himself to Mom.
o D separated and by written agreement, M relinquished custody of the boys to D.
o While in the military, D was injured and became a quadriplegic.
o D filed for divorce and M moved for an order awarding her immediate custody of both boys. M
did not have contact boys for the last 5 years.
 TC order that the boys be taken from the custody of their father and given them to their M.
o TC failed to respectfully measure Dad’s handicap and premised its ruling on outdated
stereotypes of both parental role and the ability of the handicapped to fill that role.
Holding: Reversed. Order must be set aside as an abuse of discretion.
 A physical handicap that affects a parent’s ability to participate w/ his children in purely physical
activities is not a changed circumstance of sufficient relevance and materiality to render it either
“essential or expedient” for their welfare that they be taken from his custody.
Analysis
 No longer allows court to favor the mother in determining the custody of a child “of tender years.”
o Now declares the “best interest of the child”
o Fathers now have equal custody rights w/ mothers.
 Not first time custody where court has broad discretion.
o Deal w/ a complete change in custody after children have lived w/ D for almost 5 years
o To justify a change there must be a persuasive showing of a changed circumstances affecting the
child.
 Change must be substantial
 A child will not be removed from one parent and given to another unless the
material facts occurring subsequently are of a kind to render it essential for the
welfare of the child that there by a change.
 Burden of showing is on the party seeking the change.
 Here, the circumstances are insufficient.
o Mom’s income is not enough to support children w/o help from Dad.
o D is not employed and is able to remain at home to see to children’s upbringing.
o Other claims lacked support in the record.  Housing, medical, etc.
 Court gave great weight to D’s physical handicap and its presumed adverse effect on his capacity to be a
good father to the boys.
o M and TJ raised and focused solely on the handicap issue.
 TJ’s judgment was affected by serious misconception as to the importance of the
involvement of parents in the purely physical aspects of their children’s lives.
o If a person has a physical handicap, it is impermissible for the court to reply on that condition as
prima facie evidence of the person’s unfitness as a parent…
 Determine whether the parent’s condition will have a substantial and lasting adverse
effect on the best interest of the child.
 D’s mentorship is enough – most valuable service a parent can render.
o TJ sees fatherhood as activity driven.
Rule: B/c BIC is capacious (includes everything), you can take into account the physical limitations of the
parent when you are doing BIC. However, you can’t make it the sole criteria and you can’t show a bias towards
the disability.
**Remember Triad of Rights in Child Custody
 Parent’s Right to: (3) be free of prejudice
Palmore v. Sidoti
(US 1984)
Race and Ethnicity
Facts
 M and D, both white, were divorced. M awarded custody of child.
 Later, D sought custody of the child by filing a petition to modify the prior judgment b/c of changed
conditions. The change was that the child’s mother was then cohabiting w/ a black man.
 TC concluded that the best interests of the child would be served by awarding custody to the father.
Holding: Reversed.
 TC didn’t focus on the parental qualifications of the mother or her present husband, or the father’s
qualifications to have custody of the child.
 Court was candid and made no effort to place its holding on any ground other than race.
o Outcome would have been different had M married a white man.
th
 14 Amend – Discrimination based on race.
o Strict scrutiny – Compelling gov’t interest AND necessary to accomplish that interest
o Child custody based on BIC is a substantial gov’t interest for EP clause
 Whether the reality of private biases and the possible injury they might inflict are permissible
considerations for removal of an infant child form the custody of its natural mother? No.
o Private biases may be outside the reach of the law, but the law cannot, directly, or indirectly,
give them effect.
o The effects of racial prejudice cannot justify a racial classification removing an infant child from
the custody of its natural mother found to be an appropriate person to have such custody.
Notes
 Rule 1: A court cannot give effect to racial discrimination.
 Rule 2: A court can consider race in the “best interest” analysis, but race cannot be dispositive.
Jones v. Jones
(SD 1996)
Race and Ethnicity
Facts:
 Mom appeals from a decree of divorce awarding custody of the couple’s 3 children to Dad.
 Dad is a member of an Indian tribe, mom is white.
 D’s family has a farm where everyone works and is closely-knit.
 Both parents suffer from real struggles like depression and alcoholism.
 Awarded joint legal custody w/ primary physical custody being award to D.
 M argues that TC awarded children to D b/c he is Native.
o TC considered race in determining custody and violated her EP rights.
Holding: Affirmed. No abuse of discretion.
 Proper for TC, when determining BIC in the context of a custody dispute between parents, to consider
the matter of race as it relates to a child’s ethnic heritage and which parent is more prepared to expose
the child to it.
 While TC was not blind to the racial backgrounds of the children, we are satisfied that it did not
impermissibility award custody on the basis of race
o Dad showed a sensitivity to the need for his children to be exposed to their ethnic heritage.
o We form our own personal identities, based in part, on our religious racial and cultural
backgrounds.
Notes:
 How does this court relate back to Palmore’s rules?
o Rule 1: Court focuses on the fact that they read this rule that direct effects of racial
discrimination cannot be considered.
 Court more concerned about something more indirect like Dad’s ability to teach children
about race in society.
 Does SD SC use culture as a proxy for race? Yes.
o They know they can’t talk about race, so they let culture step in.
Kendall v. Kendall
(Mass. 1997)
Facts:
Religion
 Parties professed to hold different religious beliefs when they were married. Π is Jewish and ∆ is
Catholic. Before marriage, the two agreed that children would be raised in the Jewish faith.
 Then ∆ became a member of a fundamentalist Christian faith. He wants his children to accept Jesus and
would never stop trying to save his children.
 Views became polarized when π adopted Orthodox Judaism. Π filed for divorce. Sought to limit the
children’s exposure to the ∆’s religion.
 TJ created an order that limited D’s ability to expose his children to his religious beliefs.
Issue: Whether the harm found to exist in this case to be so substantial so as to warrant a limitation on the ∆’s
religious freedom? Yes.
Holding: Affirmed. The TJ has found demonstrable evidence of substantial harm to the children. Doesn’t
burden ∆’s right to practice religion.
 The overriding goal in accommodating diverse religious practices of parents in the upbringing of their
child is to serve the best interests of the children even where the attainment of that purpose involves
some limitation of the liberties of one or other of the parents.
 TJ found it substantially damage to the children to leave each parent free to expose the children, as he or
she wishes, to his/her religion.
 Clear evidence of substantial harm
o Harm found to exist in this case present more than generalized fears.
o Judge afforded substantial weight to GAL’s report.
o Evidence shows that if the children continue to be caught in the cross-fire of the parent’s
religious differences: ∆’s religion may alienate the children from their custodial parents and may
diminish their own sense of self-worth or self-identity.
 They will be called upon to “choose” between their parents.
o Question that comes to the courts is whether such exposures are disturbing a child to its
substantial injury, physical, or emotion, and will have a like harmful tendency for the future.
Notes:
 Two of parental rights is tied into this case: (1) Raise their children in the manner of their choosing; (2)
Exercise religious freedom
 Rule: Religious can be part of the best interest standard – 1st Amendment can be overrun when Child’s
best interest is damaged by the parents’ exercise of their religious rights.
Johns v. Cioci
(Penn. 2004)
The Child’s Preference
Facts:
 Custody dispute involving 12-year-old daughter who was in the primary physical custody of her mother
for 10 years.
 Parents divorced, had shared legal custody. M had primary physical custody and D had partial.
 Court received a letter signed by the child, expressing her desire to live w/ her M.
 Court then entered a detailed custody order that transferred primary physical custody to D.
 TC denied M’s petition for relocation and granted D’s primary physical custody.
Holding: TC abused its discretion. Affirmed TC’s denial of M’s petition to relocate and reverse TC’s order
granting physical custody to D.
 A party seeking modification of custody arrangements have the burden to show that modification is in
the child’s best interest.
o One substantial factor is the role of that one parent has assumed as the primary caretaker of the
child.
o Court must give attention to the benefits of continuity and stability in custody arrangements.
 M contents that TC abused its discretion in transferring primary physical custody to F, apparently
disregarding the fact that M has been the primary care-giver for almost all of the child’s life.
 TC didn’t take into account the benefits of stability in custody arrangements and the potential harm to
child from disruption of her long-standing patterns of care.
o Child lived w/ mom her whole life.
o Any benefits of a change in custody must be weighed against the benefits of stability and the
potential harm of an abrupt switch in primary caregiver.
 TC’s factual conclusion that the parental households are not equally suitable was unreasonable and thus
an abuse of discretion.
o Houses were equal.
o When households are equally suitable, the preference of the child can tip the scales in favor of
one or the other.
 TC didn’t give adequate consideration to the child’s expressed preference to live w/ M.
o Child’s preference is a factor that must be carefully considered in custody decisions
o Keep in mind the child’s maturity and intelligence AND child’s offers for the preference
 Child’s given reasons: School and Continuity
A Non-Exhaustive List of Potential Alternatives to the Best Interests Standard:
 Gender-based presumptions (starting w/ common law)
 Primary Caretaker Presumption (Garska v. McCoy)
 Psychological Parent Presumption
 Past patterns of care (Young v. Hector, majority)
 Approximate the time (Young v. Hector, dissent)
 Presumption in favor of joint custody (legal and/or physical)
*More likely to show up as factors.
Gender Role in Custody Determination
 Gender use to be the determining factor – First w/ Dads then w/ Moms.
 Courts and states started to move away from gender presumptions.
 Courts instead started to use factors.
o Some of these new factors way in favor of women: Primary caretaker (biology, social
acceptance)
 More women get primary custody than men do.
o Courts struggle to deal w/ family situations when genders do go by their traditional roles
Pusey v. Pusey
(Utah 1986)
Tender Years Presumption
Facts:
 Two sons, 11 and 9 years old. Older boy expressed a preference for living w/ his father, whereas the
younger boy indicated equal attachment to both parents.
 TC awarded custody of the older boy to dad and younger one to mom.
 Mom requests that both children be awarded to her.
Holding: No abuse of discretion to split custody.
 Gender-based preferences in child custody cases are no longer supported.
 Several courts have declared the maternal preference or tender year presumption unconst.
o Over-inclusiveness makes it problematic at the heightened level of scrutiny recognized in gender
discrim cases.
o Lacks validity b/c it is unnecessary and perpetuates outdated stereotypes
o Doctrine might have been helpful historically when dads worked and moms stayed at home, but
that pattern is no longer prevalent.
o By arbitrarily applying a presumption in favor of moms, court is not truly evaluating what is in
the child’s best interests
 Better choice should be based on function-related factors
o Primary caretaker during marriage; identity of the parent w/ great flexibility; identity of parent
w/ whom child has spent the most time with; stability of environment provided by each parent
 Here, both parents found to be fit custodial parents.
o Choice to not follow social work recommendation was in courts’ discretion
o 12-year-old likes dad more; dad likes 12-year-old – Facts support TC’s decision to split custody.
25-4A-26. No presumption of joint physical custody
Nothing in §§ 25-4A-21 to 25-4A-27, inclusive, creates a presumption of joint physical custody. The court shall determine
the appropriate physical care, custody, and control of a minor child based on a determination of the best interests of the
child.
25-5-7.1. Joint legal custody order--Factors for court's consideration--Joint physical custody
In any custody dispute between parents, the court may order joint legal custody so that both parents retain full parental
rights and responsibilities with respect to their child and so that both parents must confer on, and participate in, major
decisions affecting the welfare of the child. In ordering joint legal custody, the court may consider the expressed desires
of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may
divide those aspects between the parties based on the best interest of the child. If it appears to the court to be in the
best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided.
Such areas of responsibility may include the child's primary physical residence, child care, education, extracurricular
activities, medical and dental care, religious instruction, the child's use of motor vehicles, and any other responsibilities
which the court finds unique to a particular family or in the best interest of the child. If the court awards joint legal
custody, it may also order joint physical custody in such proportions as are in the best interests of the child,
notwithstanding the objection of either parent.
Triad of Rights in Child Custody
 State’s Interest in ensuring the child’s well-being
 Parental rights to be free from gender discrimination
 Child’s right to care that will serve his/her best interests
Garska v. McCoy
Facts
Primary Caretaker Presumption
 Mom, 15, moved in with mother and got pregnant w/ roommate’s baby. M moved back to grandparents
where she had the baby. Dad offered no support during pregnancy, but once baby was born sent a box
w/ food and diapers. Then baby got sick and needed hospitalization but couldn’t get medical coverage
unless adopted by grandparents. M signed consent form, D found out about adoption and visited baby
and started sending weekly money orders. Grandparents filed adoption petition and D filed custody
petition.
 TC awarded custody to D for reasons like natural father, education, intelligence, money, etc.
Holding: Reversed.
 No evidence that M was unfit parent and no justification for TC to remove custody from primary
caretaker and vest it in a parent who had no previous emotional interaction w/ C.
 Best interest of the children is best served in awarding them to the primary caretaker parent, regardless
of sex.
o Threshold question which parent is the primary caretaker parent before the domestic strife?
 Who did the performance of the following caring and nurturing duties of a parent:
 Meals, grooming, care of clothes, medical care, social interaction, alternative care,
putting C to bed, disciplining, educating, teaching elementary skills
 Weighs more heavily on the quantity of time, rather than quality of time
o Then court must further determine only where the primary caretaker parent is a fit parent.



Once determined fit and achieves the minimum standard  TC must award the child to
the primary caretaker parent.
 The absolute presumption in favor of a fit primary caretaker parent applies only to tender
years.
Where the facts show that child care/custody were shared in an equal way, then no presumption arise
and court must proceed to inquire further into relative degrees of parental competence.
Presumption justified as necessary to eliminate the use of custody challenges as a weapon in the
economic bargaining between divorcing parents.
Notes
 WV is the only state that has the presumption for primary caretaker
 SD uses primary caretakers as a factor for the best interest of the child
 More common presumption is the sociological parent – looking for the parent who has the best
relationship with the child and who does most of the sociological parenting
o Negatives: Might not be the actual parent (could be grandparent); you can have to sociological
parents
Young v. Hector
Facts
Past Care or the “Approximate the Time” Standard
 Mom and dad both professionals. Had two young daughters and continued their careers and had a live-in
nanny. Parents agreed to relocate to Miami. Mom got a job but dad was unable/unwilling to get a job.
Needs of children were covered w/ nanny help and mom would take over when she came home from
work. Rather than get a job and help financially w/ the children, dad decided to go on trips and spent 14
months away from the home. Mom did almost all of the child care.
 Mom finally asked for divorce. This is when dad began to spend less time away from Miami. He began
to be move involved in the activities of his daughters. Dad would leave once Mom came back from
work.
 Dad says he the primary caretaker for 3 years preceding the divorce. But nanny still took most of the
care.
 TC gave named mom as primary custodial parents.
 Dad appeals and argues that TC abused its discretion when it awarded custody to mom. Gender bias.
Issue: Should mom get custody of kids? Yes.
Holding: There was substantial evidence to support TC’s discretionary call to give mom custody.
 GAL said mom should be primary custodial parent:
o Mom had been more economically stable – steadily employed
 Dad unemployed b/c of his own choice – didn’t want to financially support children
o Mom had been a constant factor and dominant influence in the children’s lives and dad had not.
 Dad would be away from home for substantial amount of time
 Dad home now more but mom has been more consistent.
 TC determined more important to assess the children’s time spent w/ each parent
throughout the course of the marriage and not focus on the years immediately preceding
the divorce
o Mom’s superior ability to control her anger around the children
 Dad’s outburst of anger – Dad needs anger management counseling
 Couldn’t say that TC determination was impermissibly influence by gender bias against the dad.
 Though Dad is home, he isn’t really doing the real parenting and his staying at home wasn’t a joint
decision
Dissent:
 Approximate the Time Standard: The court should allocate custodial responsibility so that the proportion
of the custodial time the child spends w/ each parent approximates the proportion of time each parent
spent performing caretaking functions for the child prior to the parents’ separation.
o Decision below was dictated by gender

Found it hard to believe that if the roles were reversed TJ would have questioned mom’s unemployment.
o Mom employed the nanny, she allowed dad to be stay-at-home, mom’s money shouldn’t have
been considered, dad was away from home for legit reasons, anger issues aren’t real issues.
Modification and Relocation




Most courts will modify a custody decision only if there is a “substantial change in circumstances”
Society take as given that parents can litigate about initial custody placement at the time of divorce.
It does not necessarily follow that courts should retain jurisdiction to “vacate or modify” any custody
order “at any time.” See SDCL § 25-4-25.
Thus the question: Is it a good thing that state statute give courts continued jurisdiction over custody
disputes, thus allowing parents to litigate modification?
o Positive: Allows for parent rehabilitation.
o Negative: Encourages parents to fight in the legal system; continuously puts the child in between
the fighting parents; judicial resources and inefficient; prevents children from continuity of care;
courts involved in a very personal aspect of life.
General Rule on Modification
Custody can only be modified if:
(1) There is a material (or substantial) change in circumstances that
(2) Causes serious harm to the child.
Hassenstab v. Hassenstab
(Neb. Ct. App. 1997)
Changed Circumstances
Facts:
 Parents were married, had one child (Jackie), and got divorced. Divorce awarded Jackie to Mom w/
visitation rights to Dad. 5 years later, D filed a Modification Decree requesting custody of Jackie.
o During trial, evidence of M’s homosexual relationship and alleged suicide attempts came forth.
o Jackie’s preference was to remain w/ M.
 DC denied Dad’s application to modify custody from Mom to him.
 D appealed – arguing DC erred in finding that no substantial and material change in circumstances had
taken place.
Holding: Affirmed. Dad failed to meet his burden of proving a material change in circumstances.
 Custody of child will not be modified unless there has been material change of circumstances showing
that the custodial parent is unfit or that the best interests of the minor child required such action.
o Party seeking modification has burden of showing change.
 Best interest in custody  Factors to consider:
o Relationship of minor child to each parent; Desires and wishes of child; general health, welfare,
and social behavior of child; Credible evidence of abuse; Moral fitness of the child’s parent and
parents’ sexual conduct.
 D’s contention that M is unfit b/c of suicide attempts and alcohol consumption.
o Suicide attempt occurred 7 years ago, has sought counseling, but not in counseling now.
o Record contains no evidence that Jackie has seen M drunk or that drinking has adversely affected
Jackie or endangered her.
o No evidence that change of residence has harmed Jackie.
 Resulted in better living conditions, never changed schools
o D hasn’t shown that the factors were a material change in circumstances requiring a change of
custody
 D’s concerns about M’s homosexuality.
o Sexual activity by a parent, homo or hetero sexual is insufficient to establish a material change to
justify a change in custody.

There must be a showing that the minor child were exposed to such activity or were
adversely affected/damaged by reason of such activity and that a change in custody is in
the best interest of the child.
o No showing that Jackie was directly exposed to sexual activity or that she was harmed by the
homosexual relationship.
o No showing of material change in circumstances.
Morgan v. Morgan
(NY 2011)
Relocation
Facts:
 Mom and Dad married, had two children, got divorced. Decree provided for joint legal custody of the
children, Mom would be the “parent of primary residence” and a detailed parenting schedule.
 In anticipation of Mom’s move to Mass., Dad filed a motion seeking a re-determination of custody
based on “a substantial change in circumstances.”
o Dad argues that he has de facto joint physical custody – putting a higher burden on mom.
 Mom filed a cross-motion seeking permission to move daughters to Mass. Reasons: Home state, entire
family lived there, engaged to Mass. resident, could be stay-at-home mom.
 TJ denied Dad’s motion to re-determine custody; denied Mom’s motion to move.
Holding: TC’s prohibition against relocation reversed, affirm order of remand.
 A custodial parent will be permitted to move if:
o (1) That party has a good faith reason to do so, and
o (2) The children will not suffer from the move.
 12 factors to determine whether removal is warranted:
o Reasons for move; Reason for opposition; Past history of dealing between parties; education,
health, and leisure opportunities; accommodation; visitation and communication schedule;
likelihood parent will continue to foster the child’s relationship w/ other parent; effect of move
on extended family; child’s preference; senior in high school; noncustodial parents’ ability to
relocate.
 TC erred b/c didn’t apply good faith standard or recognize that the standard was satisfied by the reasons
Mom gave.
o Full remand needed.  4 years have elapsed and big changes have occurred since trial.
General Rule of Relocation
 When there is sole physical custody: The moving parent must establish:
o (1) A good faith reason for the move, and
o (2) The children will not suffer b/c of the move.
 When there is joint physical custody: The moving parent must:
o (1) Prove custody should be modified [apply the modification rule here], and
o (2) Then, prove relocation should be allowed.
Ability to Move
 Do we care more about the child or parents’ rights?
o How do the triad of rights come into play?
 Do we care more about the custodial parents or the noncustodial parent?
o Noncustodial parents can move wherever they want.
o Pull in gender-roles and moms being more likely to get custody – Women are then stuck where
they live.
Visitation

What right does a non-custodial parent have to visitation?

o Most cases visitation is considered a right.
 Is it a right or a privilege?
o Is visitation tied to support? Quid pro quo.
Under what circumstances may a court limit or deny visitation?
SDCL Chapter 25-4A: Custody and Visitation Rights
25-4A-10. Supreme Court to promulgate guidelines for noncustodial parenting time
The South Dakota Supreme Court shall promulgate court rules establishing standard guidelines to be used statewide for
minimum noncustodial parenting time in divorce or separate maintenance actions or any other custody action or
proceeding. The standard guidelines shall provide a framework for noncustodial parenting time including frequency and
time for noncustodial parenting time; hours or days of noncustodial parenting time; definitions for weekends, holidays,
birthdays, and other special occasions; and time periods for summer noncustodial parenting time. In establishing the
standard guidelines, the court may consider varying ages and circumstances of children and treat varying ages and
circumstances differently.
25-4A-12. Visitation agreement other than standard guidelines--Requirements
Any agreement by the parties for visitation other than the standard guidelines shall be in writing, signed by both parties
and filed with the court. The agreed plan shall be approved by court order and replace the standard guidelines or any
plan previously filed.
Uniform Marriage and Divorce Act
 Visitation
o Noncustodial parent is entitled to reasonable visitation rights unless that visitation would
endanger seriously the child’s health.
o Court may modify an order whenever modification would serve the best interest of the child.
o Comment
 Visitation rights should be arranged to an extent that suits the child’s interest rather than
the interest of the parents.
 Judge must hold a hearing and make an extraordinary finding to deprive the noncustodial
parent of all visitation rights. To preclude visitation completely, the judge must find that
visitation would endanger seriously the child’s health.
Eldrigde v. Eldrigde
(Tenn. 2001)
Gay Partner and Visitation
Facts:
 Mom and Dad were divorced and agreed to joint custody of two daughters. 2 years later, a dispute arose
regarding M’s visitation rights. M has a live in female partner. M moved the court to establish a
visitation schedule. D moved for sole custody.
 TC awarded sole custody to Dad. Later, M moved court to extend one daughters overnight visitation. TC
entered order.
 CoA held that TC abused its discretion and imposed restrictions prohibiting the presence of M’s GF
during overnight visitation.
Issue: Whether the TC abused its discretion in ordering unrestricted overnight visitation w/ the mother? No.
Holding: Reversed. W/ Mom. Record doesn’t support a finding of an abuse of discretion.
 Evidence supports a reasonable conclusion that unrestricted overnight visitation was in daughter’s best
interest.
o TC can impose restrictions when there is a romantic partner in the house, but only in certain
circumstances. Unless moral harm, have to allow visitations.
 Visitation Order
o Child’s welfare is given paramount consideration and the right of the noncustodial parent to
reasonable visitation is clearly favored.


o Visitation rights may be limited or eliminated if there is definite evidence that to permit the right
would jeopardize the child in a physical or moral sense.
CoA said it didn’t rely on Mom’s homosexuality. But CoA failed to state what it did rely on.
o Didn’t identify any legal or factual error by TC.
o Relied on a distinguishable case about homosexual mother engaged in sex in front of child.
 Here, mom does not do such behavior and only similarity is that mom is gay.
CoA, in spite of deference to TC, has displaced TC’s ruling and imposed a restriction that was
considered and rejected by TC.
o Court finds no justification in the record.
o Record doesn’t show that daughter is in moral crisis b/c of Mom’s gf’s presence during
overnight visitation. Instead, she is caught in the crossfire of divorce.
Notes
 Mom knows she is going to file custody modification and she knows that if there is homosexual activity
going on, dad will be pissed. It seems like they are comporting their relationship to the reaction that
court won’t look favorably upon their relationship.
 Rule: Visitation shouldn’t be made on moral judgments on parental behavior. Instead, focus on the best
interest of the child.
 Sexual relationship shouldn’t matter unless doing it in front of the kid.
Zummo v. Zummo
(Penn. 1990)
Religion and Visitation
Facts:
 Mom is Jewish and Dad is sporadically Catholic. Prior to marriage, parents agreed to raise the children
in the Jewish faith. During marriage, children were very involved in Jewish community; only attended
Jewish activities, no others. Since separation, Dad has refused to arrange for son’s attendance to Sunday
School. Dad wishes to take children to occasional Catholic services as he sees fits. Mom opposes
visitation by father to the extent it disrupts the formal Jewish training of the children.
 TC concluded the restrictions upon father’s right to expose his children to his religious beliefs were
permissible and appropriate.
Issues
 Whether an order prohibiting a father from taking his children to religious services contrary to the
Jewish faith during periods of lawful custody or visitation violated the father’s const. rights? Yes.
o Dad’s const. rights were violated, TC abused its discretion, and the restriction challenged cannot
be sustained.
 Whether the dad may be directed to present the children at Synagogue for Sunday School during his
periods of weekend visitation? Yes.
Holding: Parent have a right to teach children to religion and limited by harm principle.
 Pre-Divorce Religious Training Agreement  Unenforceable.
o Grounds upon which to deny legal effect to such agreements:
 Agreement are generally too vague; would promote a particular religious, serve little
purpose, and entangle the courts in religious matters; and would be contrary to public
policy (1st amendment)
 Perceived Probability of Harmful Effects from Exposure to “Inconsistent” Religions  Evidence
insufficient.
o TC thought it would confuse the children
o Each parent must be free to provide religious exposure as that parent sees fit, during any period
of visitation w/o restriction unless harmful to child.
o In order to justify restrictions, party seeking restriction must demonstration by competent
evidence that:
 The belief or practice actually presents a substantial threat of harm to the children; and
 The restriction is the least intrusive means adequate to prevent the specified harm.

Obligations to Take Children to Religious Services  Upheld.
o TC may const. accommodate the mother’s rights w/ a directive of the type imposed here which
carves out a time period each Sunday during which the mom has the right to custody and control
of the children.
o Balancing – If the court must choose between meaningful visitation and the full benefits of a
desired program of religion, the religion must yield to the greater interest in preserving the
parent-child relationship.
o Mom is flexible – Will allow weekday visitation to Dad to make up weekend time.
25-4-52. Visitation rights for grandparents--Enforcement by circuit court
The circuit court may grant grandparents reasonable rights of visitation with their grandchild, with or without petition by
the grandparents, if the visitation is in the best interests of the grandchild and:
(1) If the visitation will not significantly interfere with the parent-child relationship; or
(2) If the parent or custodian of the grandchild has denied or prevented the grandparent reasonable opportunity to visit
the grandchild.
The circuit court shall issue any orders necessary to enforce or to protect visitation rights granted pursuant to
this section.
As used in this section, the term grandparents includes great-grandparents.
25-4-54. Visitation rights of grandparents--Child placed for adoption
The provisions of §§ 25-4-52 to 25-4-54, inclusive, do not apply if the child has been placed for adoption with a person
other than the child's stepparent or grandparent. Any grandparent visitation rights granted pursuant to §§ 25-4-52 to
25-4-54, inclusive, prior to placement for adoption of the child with persons other than the child's stepparent or
grandparent shall terminate upon the placement of the child for adoption.
25-5-29. Person other than parent permitted to seek custody of child--Parent's presumptive right to custody-Rebuttal
Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or 26-8C, the court may allow any person other than the
parent of a child to intervene or petition a court of competent jurisdiction for custody or visitation of any child with
whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a
significant and substantial relationship. It is presumed to be in the best interest of a child to be in the care, custody, and
control of the child's parent, and the parent shall be afforded the constitutional protections as determined by the United
States Supreme Court and the South Dakota Supreme Court. A parent's presumptive right to custody of his or her child
may be rebutted by proof:
(1) That the parent has abandoned or persistently neglected the child;
(2) That the parent has forfeited or surrendered his or her parental rights over the child to any person other
than the parent;
(3) That the parent has abdicated his or her parental rights and responsibilities; or
(4) That other extraordinary circumstances exist which, if custody is awarded to the parent, would result in
serious detriment to the child.
25-5-31. No right created on behalf of stepparent
Nothing in § 25-5-29 creates any right on behalf of a stepparent to seek custody or visitation with a stepchild who has
lived with that stepparent merely because the stepparent was married to or living with the child's parent.
Troxel v. Granville
(US 2000)
Extended Family
Facts:
 Tommie Granville and Brad Troxel were never married and had 2 daughters. Π, Troxel, are Brad’s
parents. Brad lived w/ his parents and regularly brought the girls to his parents’ home for weekend
visitation. Brad committed suicide. At first, Troxel continued to see girls on a regular basis, but Mom
wished to limit visitation to once a month.

Troxels brought this action under a WA statute that permitted “any person” to petition a court for
visitation rights at any time and authorizes the court to grant such visitation rights whenever visitation
may serve the best interest of the child. Mom opposed the petition.
 TC held that it was in the best interest of the children to have visitation w/ grandparents.
 CoA reversed – dismissed petition and held that π lacked standing under the statute.
 WA SC affirmed – Statute unconst.
Holding: Affirmed. W/ ∆ (mom). Statute unconst. infringes on the fundamental parental right.
 Statute is too broad.
o Language permits any third party seeking visitation a review by a court.
 Mom’s 14th amendment due process rights
 Parent’s decision that visitation would not be in the best interest of the child is accorded no deference.
o No requirement that the court accord parent’s decisions any presumption of validity
 Instead, determination solely in the hands of the judge.
 Contravenes traditional presumption that a fit parent will act in the best interest of child.
 Court’s presumption failed to provide any protection to Mom’s fundamental
const. right.
o TC gave no special weight to mom’s determination for her daughters’ best interest
o Placed burden on Mom of disproving that visitation would be in the best interest of the girls
 If a fit parent’s decision of this kind becomes subject to judicial review, the court must accord at least
some special weight to parent’s own determination.
Dissent
 Scalia: Political process better to handle this issue. No reason to create federal family law.
 Kennedy: Different family structures now, 3rd person may have important role in child’s life, state
deference, state courts better to handle fact-intensive issues.
Narrow (plurality): This statute is unconst. and unconst. as it is applied in this particular case.
 O’Connor isn’t concerned about court intervention or about 3rd party visitation – but more concerned
that statute goes too far into mom’s const. rights (against the notion that parents act in the best interest of
the child) and places burden on mom.
o We assume that parents act in the best interest of their children – Assumption.
o If we start w/ this assumption, then the other said must show harm or best interests.
Farmer v. Farmer
(Ind. CoA 2000)
Separation of Visitation Rights and Child Support
Facts:
 ∆, dad, and former wife, π, have a daughter. Mom has custody. Mom petitioned for a showing of cause
for failing to pay child support and dad petitioned for visitation modification. TC entered a contempt
citation and visitation order.
 ∆ argues that TC’s order is erroneous b/c it intermingles visitation and child support.
o Argues that TC abused its discretion by conditioning his visitation rights upon the payment of
child support AND when it threatened to revoked his suspended sentence (failure to pay
support), if he doesn’t comply w/ visitation.
Holding: Reversed. W/ ∆.
 TC impermissibly conditioned Dad’s visitation rights upon the payment of child support.
o Visitation and child support are separate issues, not to be comingled.
o A court can’t condition visitation upon the payment of child support if a custodial parent is not
entitled to do so.
o TC provided no finding that the failure to pay child support would cause further visitation to
endanger the child or significantly impair her emotional development.
o Court doesn’t condone a non-custodial parent’s failure to pay, visitation rights can’t be
automatically terminated as a result of this failure.

A parent cannot be forced to visit child under the threat of imprisonment.
o Court’s threat crosses into the realm of dad’s visitation rights.
o Though parents are required to provide support, there is no such duty that requires them to visit
or maintain a relationship w/ their children if they choose not to.
o Visitation is an entitlement, not an obligation.
Post-Divorce Financial Matters
Property Distribution
 The means by which the means the law distributes assets that have been gained/earned by the spouses.
 Equitable distributions and thinking of financial means of spouses later divorce
 Determined by state law unless premarital contract
Alimony – Spousal Support
 How we accommodate spouses if we don’t have enough property to go around
 Use to make sure spouses financial means are meet
 Determine by state law or premarital/post marital contracts, but only sometimes
o Can’t waive spousal support.
Child support
 Goal is to make sure the financial needs of children are met
 Based on earnings of parents, standard of living of parents, and needs of the child
 State law and state law governed by federal guidelines. Limit judicial discretion on what the award can
be than compared to the other two obligations.
o Can’t have private agreements about child support
o Laws trump private negotiations
Private Ordering
Brian Brix, Private Ordering and Family Law
 Different types of private ordering: Premarital agreement, marital agreements, separation agreements,
open adoption agreement, co-parenting agreements, etc.
 General Justification for State Enforcement of Private Ordering
o Basic idea: Individuals know better than others do what is in their best own interests.
o Autonomy
o Consent
o Keep divorces out of the courtroom – less litigation
 Justification for Limits on the State Enforcement of Private Ordering
o Public Policy
 Regulation of private transactions is the public interest
o Externalities (3rd party effects)
 Need for governmental regulation when those private agreements directly and
significantly harm 3rd parties.
 Vulnerable 3rd parties are minor children
o Bounded Rationality
 Limits on enforcement for agreements entered by those who are under-age or mentally
incompetent.
 When a party is coerced or defrauded – one would say that this party has not really
chosen has not really assented.
 Insufficiently self-protective
o Exploitation
 When one party is poor and the other has significantly more resources
Mnookin & Kornhauser
 Most couples do not go to court at all, until they have worked matters out and are ready for the rubber
stamp.
 Divorce bargaining into two elements: money and custody.
o Trade custodial rights for money.
 Bargaining Endowments
o It will often be possible for the parties to negotiate some outcome that makes both better off than
they would be if they simply accepted the result a court would impose.
 Private Ordering Against a Backdrop of Uncertainty
o Existing legal standards governing custody, alimony, child support, and marital property are all
sticking for their lack of precision and thus provide a bargaining backdrop clouded by
uncertainty.
 Reasons why divorce cases will be litigated:
o Spite; Distaste for negotiation; Call the Bluff; Uncertainty and Risk Preferences; No Middle
Ground.
 Courts are authorized to scrutinize parental agreements dealing w/ custody more stringently than
agreements on matters that concern other aspects of separation or divorce.
 Law still influences how people negotiate and the resolution they come to
o AS parties goes to negotiate their expectations of what would occur if they litigate.
 50-50 default system on property, going to play a role in determination
 They know there will be court involvement when they have to go sign their agreement in
the court. Court approval
o Looks like the law and society loop – Parties will follow the law as written when they know what
the outcome will be.
o Examples
 Think about maternal presumption of young kids – if you are the mom, you know if you
go to court you will get physical custody of the kid and the question is only how much
visitation dad will get. Once less thing to negotiate b/c that was the default system.
 Dad would have to give more property if he wants more visitation.
 Women never use to have to pay alimony so if you were a wife and got divorced, you
never had negotiate if you paid alimony b/c you never had to.
o If you don’t know the default rules, then everything is on the table.
 Don’t know what the court will sign on and off on. Result they come to will be less
predictable if they don’t know the rules.
 Court is going to have to sign off the agreement.
 Divorce attorney has to think about three interest:
o Want to have client benefited as much as possible
o Interested in writing an agreement that will be court approved.
o Writing a document that insure best interest of the child including the proper application of child
support guidelines
 Issues:
o Child is not your client, but what duty do you have to that child?
 Some duty to protect their interest, make sure they have financial support, and in a good
custody arrangement.
Introduction to Property Distribution
Property, Alimony and Child Support Awards
 Modern divorce law seeks to distribute assets equitably b/w divorcing spouses, w/ the exception of child
support, sent them on their separate ways w/o further financial entanglement.
 Most couples have little or no property available to divide at divorce.
 Courts have typically taken earning capacity into consideration for alimony awards, treating a spouse’s
ability to pay one of the primary considerations when the other spouse is in need of alimony.
o Awarding alimony is the most common response to the typical dearth of marital assets available
for distribution at divorce.
 The line between property and alimony award is often blurred.
 A court may conclude that divorcing spouse is entitled to a certain share of assets regardless of future
need.
 Courts attempting to do financial justice between the parties may look to both tangible asset and future
earnings as sources for accomplishing this objective.
Notes
 Common Law Regime
o Separate title regime – looks at whose name is on the title of the property
o Married w/ separate bank accounts w/ each of your names on the account (husband’s name) and
H buys car w/ his name on it. All has his name on it. Therefore, it is his property.
o Marital property had to be held in names of both parties.
o Easy to administer b/c you just look at who has title to the big ticket items.
o Downside: Men were more likely to work and earn income and purchase property. Frequently,
women were left w/ little economic protection.
o Started going away once women started entering the work force.
 Community Property
o All earnings and all property acquired during marriage is property of the marital community.
o Doesn’t matter who earns or whose name is on the title. If it comes in during marriage, it is
marital property.
o 9 states – 3 require 50-50 distribution at time of divorce. Other 6 states have the same equitable
distribution as in the old separate title regime.
 Equitable Distribution
o Only applies to time of divorce.
o Regardless of how property is acquired, the court gets to use that property to distribute as they
deem equitable.
o Doesn’t mean equal, just has to be equitable.
o Different factors on how to divide the property – much judicial discretion
o Typically, one spouse has more income and the other spouse has less income. Poor spouse
deserves a large piece of finance b/c their homework allowed the rich spouse to bring in all the
income.
Property Division
Uniform Marriage and Divorce Act
 Disposition of Property: Alternative A
o “Kitchen Sink” or “Hotchpot” – Include every piece held by either spouse at the time of divorce
in the pot to be distributed. Makes distinctions based on how and when a piece of property was
acquired.
 Many states don’t like b/c they don’t want inheritance to be included in this.
 Disposition of Property: Alternative B
o Distinguish between individual and marital property at divorce
o Use by almost all states.
SDCL Chapter 25-4: Divorce and Separate Maintenance
25-4-33.1. Automatic temporary restraining order upon service
Upon the filing of a summons and complaint for divorce or separate maintenance by the plaintiff, and upon personal
service of the summons and complaint on the defendant, a temporary restraining order shall be in effect against both
parties until the final decree is entered, the complaint dismissed, or until further order of the court:
(1) Restraining both parties from transferring, encumbering, concealing, or in any way dissipating or disposing
of any marital assets, without the written consent of the other party or an order of the court, except as may
be necessary in the usual course of business or for the necessities of life, and requiring each party to notify
the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary
expenditures made after the temporary restraining order is in effect;
(2) Restraining both parties from molesting or disturbing the peace of the other party;
(3) Restraining both parties from removing any minor child of the parties from the state without the written
consent of the other party or an order of the court; and
(4) Restraining both parties from making any changes to any insurance coverage for the parties or any child of
the parties without the written consent of the other party or an order of the court unless the change under
the applicable insurance coverage increases the benefits, adds additional property, persons, or perils to be
covered, or is required by the insurer.
The provisions of the temporary restraining order shall be printed upon the summons and shall become an order of the
court upon fulfillment of the requirements of service. However, nothing in this section precludes either party from
applying to the court for any further relief or for the modification or revocation of any order.
25-4-44. Division of property between parties
When a divorce is granted, the courts may make an equitable division of the property belonging to either or both,
whether the title to such property is in the name of the husband or the wife. In making such division of the property, the
court shall have regard for equity and the circumstances of the parties.
25-4-45.1. Fault not considered in awarding property or child custody--Exceptions
Fault shall not be taken into account with regard to the awarding of property or the awarding of child custody, except as
it may be relevant to the acquisition of property during the marriage or to the fitness of either parent in awarding the
custody of children.
Steps to Dividing Property at Divorce:
(1) List all property of the couple & individuals
(2) Classify each piece of property as marital or separate property
(3) Place a reasonable value on any assets subject to distribution
(4) Make an equitable distribution of the marital assets
**Obviously #4 is different in a 50/50 community property regime
Property Includes: Cars, houses, land, mortgages, jewelry, furniture, credit card debt, livestock
Degrees and Careers as Marital Property
Should property include:
 Advanced degree?
o If you already have your advanced degree, then no.
 Career advancement?
o If you are already face or ahead in your career, then no.
Postema v. Postema
Facts:
 Π, wife, and ∆, husband, married. ∆ was originally an accountant and π was an LPN. Plan as for ∆ to go
to law school and π would postpone her nurse schooling and work full time to support them during ∆’s
school. Π also assumed the primary responsibilities of maintaining the household. After ∆ finished law
school, he got a job as an associate and π resumed classes in nursing. Later that year, they separated. Π
still went to school but had to work full time during the school year.
 TC found breakdown of marriage was fault to ∆.
o TC determined that ∆’s law degree was a marital asset subject to distribution. Valued the degree
at $80k and awarded π a $32k on the basis that the amount would equalize the parties respective
distributive shares.
Issue: Whether TC erred in finding the law degree to be a marital asset? No.
Holding: Reversed. W/ π. ∆’s law degree was the end product of a concerted family effort giving rise to an
equitable claim for compensation in favor of π in recognition of her unrewarded scarifies, efforts, and
contribution toward attainment of degree.
 Fairness dictates that a spouse who did not earn an advanced degree be compensate whenever the
advanced degree is the end product of a concerted family effort involving mutual sacrifice and effort by
both spouses.
 The Concerted Family Effort
o Remedy consistent w/ fairness and equity requires that an attempt to be made to at least return
financially to the nonstudent spouse the value of what that spouse contributed toward attainment
of the degree.
o Efforts seen though a spouse’s tangible efforts and financial contributions, increase in daily
household tasks, child rearing, household management, emotional and psychological burdens of
educational experiences, change in lifestyle, less time to pursue personal interest, postpone own
education
 Here: π postponed nursing degree, moved, and worked FT to support herself and ∆
 Primary financial provider and primary responsible for daily household tasks
 Characterization of a Claim for Compensation Involving an Advanced Degree
o Court rejects the holding than an advanced degree is properly considered as a factor in awarding
alimony
 When a concerted family effort is involved, a spouse’s entitlement to compensation
constitutes a recognized right; it is not dependent upon factors related to need for support.
o Court rejects a percentage of ∆’s potential earnings – Too speculative, not trying to give her an
expectation of what her husband’s salary might have been, but more of what she actually
contributed.
o There arises a “marital asset” subject to distribution wherein the interest of the nonstudent spouse
consists of an equitable claim regarding the degree
 Valuation
o TC must focus solely on what is necessary to compensate wife for the burdens on her or the
scarifies made by her so that husband could pursue his degree
o Two-steps:
 First, an examination of the scarifies, efforts, and contributions of the nonstudent spouse
toward attainment of the degree
 Second, a determination of what remedy or means of compensation would most equitably
compensate the nonstudent spouse under the facts of the case
 Length of marriage, sources of financial support, and overall division of marital
property
Elkus v. Elkus
NY 1991
Facts:
 At time of marriage, π had just started her opera career. During marriage, π’s career succeeded
dramatically. ∆ traveled w/ π throughout the world, coached and taught her, scarified his own career to
divorce himself to π’s career and to their young children.
 TC w/ π.
 ∆ argue that since π’s career and celebrity status increased in value during the marriage due in part to his
contributions, he is entitled to equitable distribution of this marital property.
 Π argues that since her career and celebrity status are not licensed, they are not marital property.
Issue: Whether wife’s career and/or celebrity status constituted marital property subject to equitable
distribution? Yes.
Holding: Reversed (w/ ∆). To the extend the ∆’s contributions and efforts led to an increase in the value of the
π’s career, this appreciation was a product of the marital partnership, and therefore, marital property subject to
equitable distribution.
 Marital property defined as property acquired during the marriage regardless of the form in which title is
held.
o Things of value acquired during marriage are marital property even though they may fall outside
the scope of traditional property concepts.
 Nothing in statute or precedent supports π’s contention that her career/status are not marital property.
o Any attempt to limit marital property to professions which are licensed would only serve to
discriminate against the spouse of those engaged in other areas of employment.
 Π argues that her career is not marital property b/c she had already become successful prior to her
marriage to ∆.
o ∆’s contributions to π’s career were direct and concrete, going far beyond child care and the like
 Contributed to the increase in π’s career value
 To the extent the appreciation in π’s career was due to ∆’s efforts and contributions, this
appreciation constitutes marital property.
 It’s not the nature of the asset, but more about whether the other spouse contributed to that asset.
Notes:
 Comparing Postema w/ Elkus
o Elkus is not focused on reimbursement like the court did in Postema
 Formula: Where we look at the entire asset and divide it equitably.
 Like how we treat all other property.
o Postema: We are not looking at whole asset, we are looking at reimbursement for what the wife
contributed.
 Not focused on value of the degree, it looks more like a weird type of alimony.
 What does the court do in a situation where wife is a homemaker and not bringing in income but instead
rely on husband’s student loans?
o Legal test: Focused on what wife has given and contributions she made. Postema
o End result: She gets a lot less compensation b/c she didn’t contribute financially (he was
supporting her financially w/ student loans). She will get very little financially.
 Like in Elkus case, if husband is just a homemaker and not part of her career team. How does the case
come out?
o Result: It was important to the court that the husband contributed to her career in some other way
than just a homemaker. If he didn’t work with her career, then it wouldn’t be considered marital
property.
 If just a homemaker, then the spouse is worse off!
 Where do we draw the line on taking things like careers or degrees into account when we are
determining marital property?
o No case anywhere that holds a factory worker’s career is marital property.
o Specialized career or degree – We feel like we can’t justly compensate using typical property
law.
Alimony
 American courts began to award alimony even though a final divorce had been awarded w/o providing
much of a justification.
 Understood as a penalty for marital fault
o Level of alimony was determined in relationship to the previous standard of living, which an
innocent wife had a right to expect would have continued but for the husband’s fault
 Recently: Courts were awarding alimony on a gender-neutral basis
 Think of this as a legal doctrine looking for a legal theory
o Lots of reasons why alimony existed don’t exist now.
 Women more likely to be in workforce, are self-sufficient or the ability to be, both
spouses are likely to contribute economically and household chores.

We do still have situations where a spouse fulfills a dependent role by staying home
where states would want to have alimony on the book
 Privatizing support
 Questions:
o Whether a gender-based rule passes constitutional muster?
o If we are calculating payments on ex-wives needs, how do we define “means”?
 Traditional Alimony
o Ex-husband makes periodic payment to ex-wife.
o Payments are calculated based on ex-wife’s needs.
o Payment terminate upon death of either spouse or remarriage of ex-wife.
 Modified Traditional Alimony
o One ex-spouse (obligor) makes periodic payments to other ex-spouse to other ex-spouse
(recipient)
o Payments are calculated based on recipient’s needs.
 Actual need (Hodge) (state interest in privatizing dependence)
 Marital standard of living (Lorenz)
o Payment terminate upon:
 Death of either spouse
 Remarriage of recipient
 Recipient becomes eligible for other support (Lornez—terminates when recipient able to
collect social security).
Orr v. Orr
(US 1979)
Facts: Statute authorizes the imposition of alimony obligations on husband, not on wives.
Issue: Whether Alabama’s alimony statute which provides that husbands, not wives, may be required to pay
alimony upon divorce is constitutional? No.
Holding: Reversed.
 Classification based on sex is subject to scrutiny under the Equal Protection clause
o Intermediate – Must serve important governmental objectives and must be substantially related
to achievement of those objectives.
 Government offers three objectives
o Statute effectively announcing the State’s preference for an allocation of family responsibilities
under which the wife plays a dependent role and the reinforcement of that model among the
State’s citizens.
 This purpose cannot sustain the statute.
 Old notions of gender roles cannot justify a statute that discriminates on the basis of
gender
o To provide help for needy spouses, using sex as a proxy for need.
 Concede that assisting needy spouses is a legitimate and important gov’t objective
 Substantially related? No.
 Individualized hearings where parties’ relative financial circumstances are
considered already occur.
 No reason to use sex as a proxy for need.
o Compensating women for past discrimination during marriage which has left them unprepared to
fend for themselves in the working world following divorce.
 Concede the reduction of the disparity in economic condition between men and women
causes by the long history of discrim. against women as an important gov’t objective
 Substantially related? No.
 Individualized hearings can determine which women were in fact discriminated
against vis-a-vis their husbands – No admins. ease


Alabama’s alleged compensatory purpose may be effectuated w/o placing burdens
solely on husbands.
Would cost the State nothing more if it were treat men and women equally by
making alimony burdens independent of sex.
Notes
 Zambolki – Here, marriage may economically benefit men (court looks at this here).
 Examples in differences between husband and wife that would pass const. muster:
o Reproduction (decision to abort)
 Cases a long shadow over gender based rules - Skeptical
o Custody determination; child support
 Rule after this case – Every law about alimony must be gender neutral.
o In reality, women are award alimony a lot more than men are.
Need and Ability to Pay
Hodge v. Hodge
(Penn. 1986)
Facts:
 Couple got married. H went to medical training in Mexico and wife remained in US during his first year
of school to work to support the family during H’s studies and caring for the couple’s daughter.
 After H received medical license in February, he filed for divorce in August.
 TC awarded wife alimony of $100 per week for 14 years. Reasoned that this equitable adjustment is
needed in order to place some economic responsibility on the π for ∆’s scarifies made during the
marriage.
 CoA affirmed.
Holding: Reversed. Any alimony order must be based on need.
 Husband argued that it was improper to award wife alimony for 14 years
 Statute:
o Court may allow alimony only if it finds that the party seeking alimony: (1) lacks sufficient
property and (2) is unable to support himself/herself.
 Purpose of Alimony
o Intended to be based on actual need and ability to pay
o Provide one spouse w/ sufficient income to obtain the necessities of life, not to punish the other
spouse
o Rehabilitation not reimbursement.
 Steps to determine alimony
o Step 1: Whether spouse is entitled to alimony?
o Step 2: Take into consideration those expenses incurred in excess of the traditional support
obligation in determining an alimony award.
 LC erred when it attempted to effectuate economic equality through the use of alimony
Notes
 Under this alimony case, contra to the other alimony cases, the non-working spouse would be better off
if just a homemaker b/c she would be more in need.
Standard of Living
Lorenz v. Lorenz
(NY App. 2009)
Facts:
 33 years after marriage, π commenced this divorce action. Two adult children. Both parties were 54
years of age.
 TC equally distributed the marital property and awarded maintenance to π in the amount of $500/week
until such time as π can draw full Social Security benefits, when she becomes 66. ∆ appealed.
 ∆ argues that the court abused its discretion in awarding maintenance b/c π is capable of being selfsupporting.
Holding: W/ π. TC’s amount is within ∆’s mean and crafted to meet π’s needs so that she will be able to
maintain their pre-divorce standard of living.
 In maintenance determination, the amount of earnings necessary to enable the recipient to become selfsupporting must be determined w/ some reference to the standard of living of the parties, as well as the
earning capacity of each party; and these factors carry more weight in a marriage of long duration.
o Purpose: To provide temporary support while the receipt develops the skills and experience
necessary to become self-sufficient
o Self-sufficiency is not always possible
 Here: π’s potential to become self-sufficient is very low
 Ample record to support TC’s decision
o ∆’s income = $100k
π’s income = $20k
o ∆’s health = good health
π’s health = back and health problems
 π’s health impacts negatively on her future earning capacity as self-employed hairdresser
o ∆ built his skills
π devoted time and talent to family’s domestic needs
Notes:
 We just don’t look at need.
 Compare Hodge (no assets so can’t divide to make them whole) – Here accumulating assets for over 33
years
 Take into account in determining need, the standard of living during the course of marriage.
 The longer the marriage goes then the more we can about standard of living.
 Rule: We define need based on the how the parties lived their life while they were married.
 Compare: Lornez leaves w/ big property award and big alimony to maintain her standard of living
(looser rule)
 Hodge: Only about the wife’s ability to support herself later. Wife gets nothing b/c she demonstrates that
she can support herself even though post-divorce the husband’s standard of living with be much higher.
Reimbursement
In re Marriage of Probasco
Facts:
 Both attended college before starting their relationship and had a baby, then got formally married.
Neither party brought property of appreciable value into the marriage. Neither contributed to the
education of the other. Following graduation, wife worked at home caring for the children and handled
all the household finances and helped keep track of husband’s job of insurance at New York life. Couple
lived primarily on borrowed money b/c husband’s income wasn’t enough. The couple started looking
into stating a Perkins franchise. Wife got a job but also helped husband prepare for Perkins business.
 When restaurant opened, wife continued other employment but then switched over to work as
coordinator at restaurant. Perkins became really successful. Marital problems started and wife stopped
working there.
 TC awarded wife alimony and divided property and debt.
 Husband appealed TC’s award of reimbursement alimony of $60k for 13 years.
Holding: Reversed w/ husband. Wife has been compensated for her contributions.
 Purposes of property division and alimony are not the same.
o Property division based on each spouse’s right to a just and equitable share of the property
accumulated as the result of their joint efforts
o Alimony is a stipend to a spouse in lieu of the other spouse’s legal obligation to support
 Three types of alimony
o Traditional – Payable for life or so long as a spouse is incapable of self-support
o Rehabilitative – Support an economically dependent spouse through a limited period of reeducation.
 Not here – Wife was active in job market, career skills not outdated, she hardly scarified
for the benefit of husband, competent business-minded person.
o Reimbursement – Give the support spouse a stake in the student spouse’s future earning capacity
 When awarded – Short marriages devoted almost entirely to the educational advancement
of one spouse
 Shouldn’t be modified or terminated until full compensation is achieved
 Here – Facts militate against an award of reimbursement
 Marriage wasn’t a short one devoted almost entirely to the education
advancement.
 Parties have significant assets to balance the equities w/o the need for an award of reimbursement
alimony.
o Wife has her degree, skills, unencumbered home and car, and a large amount of assets w/ little
debt.
 Wife can keep the payments husband already made on the reimbursement alimony award.
Fault
Dykman v. Dykman
Facts:
 Husband, 85, is a doctor of psychology and wife is a psychiatrist, 52. Wife worked at a consulting firm
and delivered about $12k/month to her husband w/ the thought that he would use the funds for marital
purposes and reduction of marital property debt. But at this time, husband was already planning to
divorce wife and assumed an open relationship w/ one of many young women who he gave substantial
gifts to like cars or money.
 Husband forged wife’s signature to obtain a second mortgage w/o her knowledge and fraudulently
forged her name on tax returns.
Issue: Whether TC’s award of alimony to wife was proper in light of husband’s advanced age? Yes.
Holding: Affirmed.
 Alimony – Primary factors are the need of one spouse and the ability of other spouse to pay.
o Fault or marital misconduct is not a factor in an award of alimony.
o Fault and misconduct will be considered when it meaningfully relates to need or ability to pay.
 Faults considered for alimony
o Husband’s diversion of marital funds to young women
 Wife had a right to believe her substantial monetary contributions to the marriage were
being employed for marital purposes instead of funding husband’s courtship through
lavish gifts
 Result of diversion, wife doesn’t have available marital assets that she believed were
being paid for by her contributions
 Faces bankruptcy
o Wife’s limited ability to practice psychiatry
 Wife has significant speech problems developed from a disorder
 Has no income b/c fired from job b/c of speech but plans to open her own practice that
will become self-supporting within a short period
 Husband’s financial misconduct directly relates to wife’s needs
 Faults not considered
o Snake in a box w/ die bitch; extramarital liaisons
 Husband’s old age doesn’t matter b/c he was employed at the hearing and the award is well within his
ability to pay.
Notes
 Alimony here looks like rehabilitative.
 Some jurisdictions only look at fault when fault is based on economics.
o Similar to property division here in SD. Broadly considered fault in alimony payments.
 Courts here can award more alimony based on fault and can take away all alimony based
on fault. (Infidelity can come into play when discussing alimony).
o If fault can justify changing financial situations of parties after marriage, it might incentives you
to behave a certain way during marriage b/c you know it could impact you economically after
marriage.
o If primary goal is to privatize dependents, then maybe make a rule like Dykman and not take
fault into account unless it is tied to financially.
25-4-38. Alimony pending action
While an action for divorce is pending, the court may in its discretion require one spouse to pay as alimony any
money necessary to support the other spouse or the children of the parties, or to prosecute or defend the action.
25-4-41. Allowance for support when divorce granted
Where a divorce is granted, the court may compel one party to make such suitable allowance to the other party
for support during the life of that other party or for a shorter period, as the court may deem just, having regard
to the circumstances of the parties represented; and the court may from time to time modify its orders in these
respects.
Notes
 Other than true need alimony (stay off public support), we always look at what occurred during the
marriage.
o Need – Just concerned about the need of the individual
o Reimbursement of things that occurred during the marriage
o Rehabilitation – Someone enters marriage w/o skills; we don’t require alimony to rehab them
after the marriage. We are more concerned about when both enter the marriage and one steps out
to be homecare, we grant alimony to rehab them to get them back in the market.
Child Support
 Balance between minimal support of children and parents ability to make payments
 Want parents to financially support their children even if they do not actually care for their children
 Farmer v. Farmer: Require parents to pay child support but you cannot make parents exercise their
visitation with children.
 Joint Custody – Want to make equitable situation when children parents are moving back and forth.
o If a poorer spouse takes care of the children, the state wants to make sure that parent has the
financial ability to care for their children.
 Federal Involvement
o Congress forces States to: Both parents have to support children AND we want children to share
in parents income taking into account standard of living of parents and the standard of living if
parents would have stayed married.
o Fault in divorce, sexual orientation – Not taken into account for making child support awards
o Can’t make them punitive, as so harsh that it keeps people from remarrying
o Want models that encourage both parents to stay involved in child’s life
SDCL Chapter 25-7: Support Obligations
25-7-6.2. Support obligation schedule
 The child support obligation shall be established in accordance with the following schedule subject to
the revisions or deviations as permitted by this chapter. Except as provided in this chapter, the combined
monthly net incomes of both parents shall be used in determining the obligation which shall be divided
proportionately between the parents based upon their respective net incomes. The noncustodial parent's
proportionate share establishes the amount of the child support order.
 If the obligation using only the noncustodial parent's monthly net income is an obligation within the
emboldened [underlined] areas of the schedule, that amount shall be compared to the noncustodial
parent's proportionate share using both parents' monthly net incomes. The lesser amount establishes the
noncustodial parent's child support order.
 [TABLE OMITTED—PLEASE PULL IT UP ONLINE AND BRIEFLY REVIEW IT]
 The share of the custodial parent is presumed to be spent directly for the benefit of the child.
25-7-6.3. Determination of parents' monthly net income--Sources of income
The monthly net income of each parent shall be determined by the parent's gross income less allowable deductions, as
set forth in this chapter. The monthly gross income of each parent includes amounts received from the following
sources:
(1) Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus, or
otherwise designated;
(2) Self-employment income including gain, profit, or loss from a business, farm, or profession;
(3) Periodic payments from pensions or retirement programs, including social security or veteran's benefits,
disability payments, or insurance contracts;
(4) Interest, dividends, rentals, royalties, or other gain derived from investment of capital assets;
(5) Gain or loss from the sale, trade, or conversion of capital assets;
(6) Unemployment insurance benefits;
(7) Worker's compensation benefits; and
(8) Benefits in lieu of compensation including military pay allowances.
Overtime wages, commissions, and bonuses may be excluded if the compensation is not a regular and recurring source
of income for the parent. Income derived from seasonal employment shall be annualized to determine a monthly
average income.
25-7-6.4. Rebuttable presumption of employment at minimum wage
Except in cases of physical or mental disability, it is presumed for the purposes of determination of child support that a
parent is capable of being employed a minimum of one thousand eight hundred twenty hours per year, including while
incarcerated, and the parent's child support obligation shall be calculated at a rate not less than one thousand eight
hundred twenty hours at the state minimum wage. Evidence to rebut this presumption may be presented by either
parent.
25-7-6.8. Schedule used for child support obligations--Sex of obligor disregarded
The schedule in § 25-7-6.2 shall be used to set child support obligations, and shall be applied regardless of the sex of the
obligor.
25-7-6.9. Income above the schedule--Child support adjusted to appropriate level
For a combined net income above the schedule in § 25-7-6.2, the child support obligation shall be established at an
appropriate level, taking into account the actual needs and standard of living of the child.
25-7-6.10. Factors considered for deviation from schedule
Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of
specific findings based upon any of the following factors:
(1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but
only if the application of the schedule works a financial hardship on either parent;
(2) Any financial condition of either parent which would make application of the schedule inequitable. If the total
amount of the child support obligation, including any adjustments for health insurance and child care costs,
(3)
(4)
(5)
(6)
exceeds fifty percent of the obligor's monthly net income, it is presumed that the amount of the obligation
imposes a financial hardship on the obligor. This presumption may be rebutted based upon other factors set
forth in this section;
Any necessary education or health care special needs of the child;
The effect of agreements between the parents regarding extra forms of support for the direct benefit of the
child;
The obligation of either parent to provide for subsequent natural children, adopted children, or stepchildren.
However, an existing support order may not be modified solely for this reason; or
The voluntary and unreasonable act of a parent which causes the parent to be unemployed or underemployed,
unless the reduction of income is due to incarceration.
25-7-6.22. Rebuttable presumption that second job income not to be considered in establishing support
obligation
If a parent has annual primary employment earnings that equal or exceed the current state minimum hourly wage
multiplied by one thousand eight hundred twenty hours, there is a rebuttable presumption that a parent's second job
income is not to be considered in establishing a support obligation.
25-7-6.23. Offset of support obligation when each parent has primary physical custody of at least one child-Computation--Assistance from department
If the parents have two or more children between them and each parent has primary physical custody of at least one
child, the child support obligation shall be determined by computing the amount of each parent's respective support
obligation for the children in the other parent's physical custody, and the support obligations shall be offset in
determining a monthly support obligation. If one or more of the children are receiving assistance from the department
as provided in § 28-7A-7, and in lieu of the offset, each parent shall be obligated to pay the respective support obligation
amount to the other parent.
Introduction
 Parents are responsible for child support until a child reaches majority.
 Child support from its origin has been a private obligation, initially of the father and eventually of both
parents equally.
 Income Share Models
o Two ideas
 A child of divorce should be support at the same level as in intact family
 Both parents should be contributing to child support
o Calculate child support based on what percentage of their overall income intact families spend on
their children
 Equation – Add both parents income to calculate a combined income, then prorate the
resulting basic child support obligations between the parents based on their proportionate
contribution to combined income.
o When one parent has physical custody and the other visitation, income share guidelines usually
assume that the custodial parent is already spending his child support obligation directly on the
child. The non-custodial parent then owes the custodial parent the amount determined through
the guidelines.
 Percentage of Obligor Income Model
o Sets the child support obligations based only on the non-custodial parent’s level of income and
the number of children.
o Custodial parent is assumed to be already spending part of their own income on the child.
 The Melson Formula
o Most fact-specific
o First, every parent should be allowed to retain the minimum amount that is necessary for their
own basic need.
o Second, until every child’s basic needs are covered, parents should not be allowed to retain more
than the minimum amount necessary for their own basic needs.
o Third, children should be able to share in the additional income and higher standard of living of
their parents.
 SD’s Guideline System: Income Share’s Model
o Take into account of both parents’ incomes
o Example 1
 Husband’s monthly income: $4k
 Wife’s: $2k
 3 kids
 Wife gets custody
 Net income: $6k – go to chart look at $1770 (total obligation from both parents)
 Dad’s must pay $1168 (2/3 of $1770) (b/c Dad’s income proportion is 2/3)
 Mom’s $600 is assumed to already go to the children
o We assume that parents are able to pay the minimum money
 Impute a higher salary, full-time even if you work full time, prison – minimum wage and
not the salary you were making outside of jail
 SD set it at minimum wage
Little v. Little
Facts:
 Parties divorced. Court ordered dad, an Air Force lieutenant, to pay $1,186/month for the support of his
2 young children. Dad resigned from his commission and chose to enroll as a full-time student at a law
school. Dad petitioned the court to reduce his child support obligations to $239/month.
 TC denied his request for modification – Dad voluntarily left, failed to considered the needs of his kids,
reduction would be determinant to children. Did decrease payments b/c mom got a higher paying job.
 CoA reversed – applied a good faith test.
Issue: Whether a non-custodial parent’s voluntary decision to leave his employment to become a full-time
student constitutes a sufficient change in circumstances to warrant a downward modification of the parent’s
child support obligation? No.
Holding: Affirmed TC. Dad didn’t act in best interest of his children.
 A court must balance a number of factors to determine whether to modify a child support order to reflect
a substantial and continuing change of circumstances.
 Three different test
o Good Faith Test
 Considers the actual earnings of a party rather than his earning capacity, so long as he
acted in good faith and not primarily for the purpose of avoiding a support obligation
when he terminated employment.
o Strict Rule Test
 Disregards any income reduction produced by voluntary conduct and looks at the earning
capacity of a party
o Intermediate Test
 Balances various factors to determine whether to use actual income or earning capacity in
making a support determination.
 Court adopts intermediate test.
o Paramount Factor: Financial impact of the parent’s decision on the child.
 If a reduction places a child in financial peril, then the court should not permit a
downward modification.
o Most situations, children will not be so severe as to place the child in peril … court must
consider the overall reasonableness:
 Whether the parent’s current education provide him w/ the ability to find suitable work
 If additional training would increase earning potential – more reasonable
 Length of proposed educational program
 Able to finance his child support while in school through other resources
 Whether parent’s decision is made in good faith.
 Here: TC didn’t abuse its discretion in refusing dad’s downward modification
o Frist, impact on children would have been substantial
 Place them well below poverty level. W/o dad’s $ children would face significant
economic hardship
o Second, dad already has a MBA and bachelor’s degree
 Too speculative that he will make more money w/ a JD
o Third, record doesn’t show that dad attempted to obtain suitable employment
o Fourth, dad able to finance school and child support through student loans
o Finally, dad didn’t act in good faith – Chose to follow his own ambitions.
Notes:
 Kost v. Kost: Dad has custody, Mom had no education, job training, etc. and couldn’t get find work. So
mom enrolled in school. Court said no – Children’s interests are always paramount to parent’s interest of
bettering themselves.
 SD: Strict rule test as to imputing income to minimum wages. But more flexible once you are over
minimum wage, but not hitting maximum capacity.
POLICY QUESTION FORMAT:
 Explain the Current Law
o Point to prevailing code §
o Supplement with other relevant statutes
 How does the law change?
o Identify the change – contrast new law w/ current law.
 Benefits/Detriments
o Rely on the cases and statutes we read throughout the semester.
o Cite cases that illustrate your point.
o Cite cases that counter your point.
o Not constrained to case law.
 Recommendation
o SHORT concluded paragraph in which the strongest arguments for/against the proposal were
reiterated.