Family Law
Marriage
Family Relations
Requirements of a valid marriage (mnemonic = CARS)
(1) Capacity to consent
(2) Be of marriageable age: children do not have a fundamental right to marry.
(3) Not be closely related to the other person: incest is not permitted
• All states have consanguinity restrictions (cannot marry someone related by blood within a certain degree of relationship).
• Some states have affinity restrictions (cannot marry someone related by law, such as a step-child).
(4) Be single: the government can prevent a person from marrying multiple people (polygamy is illegal).
• A bigamous relationship is void from the beginning. However, there is a presumption that the most recent marriage is valid. Furthermore,
removing the impediment (e.g., divorce from the first spouse) will render a subsequent marriage valid.
Constitutionality of marriage restrictions
Marriage is a fundamental right. Therefore, direct burdens on marriage are not permitted (indirect burdens are permitted).
• Marriage cannot be restricted based on race. Loving v. Virginia, 388 U.S. 1 (1967).
• A state cannot restrict a person who does not pay child support from getting married. Zablocki v. Redhail, 434 U.S. 374 (1978).
• Prisoners can get married, but states can reasonably restrict the time and circumstances of marriage. Turner v. Safely, 482 U.S. 78 (1987).
• A state cannot restrict same-sex couples from getting married. Obergefell v. Hodges, 576 U.S. 644 (2015).
Common law marriage is only recognized in about 10 states. It gives the parties the benefits of marriage without having gone through the formalities.
Requirements (mnemonic = CACH):
• capacity to enter into a marital contract,
• a present agreement to be married,
• cohabitation, and
• “holding out” a marital relationship to the community.
• Mutual support obligations: marriage creates mutual support
obligations.
o A creditor who has furnished “necessaries” to one spouse may
sue the other spouse and recover on the debt. See, e.g.,
Cheshire Med.l Ctr. v. Holbrook, 663 A.2d 1344 (N.H. 1995).
o Doctrine of non-intervention: Disallows judicial intervention in an
intact family. E.g., a court may deny a support petition when the
couple is living together.
• Spousal immunity: At common law, spouses could not sue each
other. This has been abolished by most states.
• Intra-family tort immunity: At common law, members of a
family could not sue each other. This has been abolished by
most states.
• Cohabitation: Zoning ordinances that prohibit extended family
members from living together are unconstitutional. Moore v. City
of E. Cleveland, 431 U.S. 494 (1977).
o However, zoning ordinances that limit unrelated individuals from
living together are constitutional. Village of Belle Terre v. Boraas,
416 U.S. 1 (1974).
Ending the Marriage
Divorce
• Fault-based divorce: About 1/3 of states have eliminated fault-based divorces. Other states recognize fault-based divorce in addition to no-fault divorce.
o Potential grounds: adultery, desertion without reasonable cause, cruelty, addiction, mental illness, felony conviction
o Benefits of seeking a fault-based divorce: proving fault may increase alimony and/or property division awards.
- Note: financial misconduct during the marriage is more likely to lead to alteration of awards than is marital misconduct.
• No-fault divorce: recognized in all states
o Typical bases for no-fault divorce include irreconcilable differences and/or a minimum period of separation. No-fault divorce may be granted without any attempt at reconciliation. There are no defenses to a no-fault divorce petition.
Annulment
• If a marriage is void or voidable, an annulment is appropriate. When a marriage is annulled, it is declared invalid from the date of its inception (as if the marriage never occurred).
o Grounds for annulment (mnemonic = FIND): fraud (that goes to the essentials of the marriage, e.g., sexual relations); inability to consummate the marriage; not allowed by law (bigamy, incest, age); or duress.
• Putative spouse doctrine
o Sometimes a spouse can seek divorce-like remedies (e.g., property division or alimony) when an annulment is granted so long as there was a marriage ceremony and a good faith belief in the validity of the marriage. Hicklin v.
Hicklin, 509 N.W.2d 627 (Neb. 1994).
Legal separation (marriage does not end)
• The marriage does not end; the couple merely separates and rights are determined by the court.
Access to divorce
• A one-year residency requirement before a party can obtain a divorce is constitutional. Sosna v. Iowa, 419 U.S. 393 (1975).
• A mandatory court fee for divorces is unconstitutional because it is a bar on some individuals’ ability to obtain a divorce. Bodie v. Connecticut, 401 U.S. 371 (1971).
Alimony and Property Division
Alimony
State statutes that impose alimony obligations on only one sex are unconstitutional. Orr v. Orr, 440
U.S. 268 (1979).
Kinds of awards
• Permanent: not generally awarded unless the couple had a long marriage and there was a
large gap between the husband’s and wife’s economic prospects.
• Temporary: usually awarded if someone needs to get back on their feet.
• Lump sum: a lump sum of money that is fixed and final.
Standards
• Most courts consider factors such as the parties’ financial resources and needs, marital
contributions, and marital duration.
• Some jurisdictions also require consideration of spousal misconduct, one spouse’s support for
the other’s education and training, and whether a spouse lacks capacity for self-support.
• UMDA § 308: Maintenance orders may only be granted if the spouse seeking maintenance
lacks sufficient property to provide for his reasonable needs and is unable to support himself
through appropriate employment or is the custodian of a child whose condition or circumstanc
es make it appropriate that the custodian not be required to seek employment outside the
home.
• The trial court has substantial discretion in choosing to award spousal support.
Modification
• Spousal support awards are not final and may be modified if a court finds there has been a
substantial change in circumstances.
• Termination usually occurs upon death, after a specified time, or if there is remarriage of the
spouse receiving alimony.
Unmarried partners
• Marvin v. Marvin, 557 P.2d 106 (Cal. 1976)—cohabitation agreements are enforceable so long
as the agreement does not involve the explicit exchange of money for sex.
o Some states require such agreements to be in writing, while others will enforce an oral
agreement.
Property division
• Marital vs. separate property
o In most states, marital property is divided at divorce, but separate property remains the property of the
owning spouse.
Marital property
Any property acquired during the
marriage. Title does not control.
Separate property
(mnemonic = BIG):
Property acquired before marriage,
Inheritances,
&
Gifts to one party.
Separate property can become marital if marital funds
or significant effort by the owner-spouse during the
marriage enhances its value or builds equity.
• Equitable distribution: Property is divided equitably and a court will consider what is fair. It will look at
contribution, need, and marital duration.
• Finality: a property division award cannot be modified.
Jurisdiction
• Unless the court has jurisdiction over the defendant spouse, it may not issue a binding order affecting
personal rights, such as spousal support or property division.
o Divisible divorce decree: one court may grant the divorce, while another court orders property division
and/or spousal support.
Premarital and separation agreements
• Premarital agreements will be enforced so long as they are voluntarily made, substantively fair, and full
disclosure of assets and obligations was made.
o Courts may invalidate a prenuptial agreement based on involuntariness, unconscionability, or inadequate
disclosure.
• Unif. Premarital & Marital Agreements Act §9 (Nat’l Conf. of Comm’rs on Unif. State Ls. 2012): a court
must enforce an agreement unless the court finds (1) involuntariness or (2) that the agreement was
unconscionable when executed and the party did not receive adequate disclosure of assets.
• A court will not enforce a premarital agreement regarding child custody or support if it is not in the best
interests of the child.
• Separation agreements may be accepted, rejected, or accepted with modifications by the court.
• Many jurisdictions say that such an agreement can be set aside for fraud, overreaching, or duress that results
in the agreement being substantively unfair to one of the parties.
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Family Law
Adoption
• Rights of biological parents: Biological parents must consent to adoption. Consent can be
revoked prior to entry of a final adoption decree.
• Rights of adoptive parents: Modern courts allow dissolution of adoption in special
circumstances, such as an undisclosed mental or physical illness. The court will consider
factors such as the length of the relationship, the child’s needs, and the parent’s motives.
• Equitable adoption: Even if formal adoption procedures are not followed, some courts say that
a child is “equitably” adopted if the parent and child assume the roles of parent and child
without a formal confirmation.
• Father’s rights when another wants to adopt the child: If a legal father has a relationship with
his child, his parental rights cannot be terminated absent a showing of unfitness. See, e.g.,
Caban v. Mohammed, 441 U.S. 380 (1979).
• Jurisdiction: the state that is the domicile of the adoptive parents can generally enter an
adoption decree.
Procreation
Constitutional right to privacy
• Laws restricting the use of contraceptives or dissemination of information regarding contraceptives
by or to married couples violates the constitutional right of privacy. Griswold v. Connecticut, 381
U.S. 479 (1965).
• A state statute treating married and unmarried persons differently regarding contraceptive use is
unconstitutional. Eisenstadt v. Baird, 405 U.S. 438 (1972).
• Right to privacy includes the right to engage in consensual sexual acts in the home. Lawrence v.
Texas, 539 U.S. 558 (2003).
Abortion
• Abortion is no longer a fundamental right per Dobbs v. Jackson Women’s Health Agency, 597 U.S.
__ (2022). It is now up to the states to regulate abortion how they wish.
o Requiring the father (here it was a husband) to consent to an abortion is unconstitutional. Planned
Parenthood v. Danforth, 428 U.S. 52 (1976).
o Parental consent is not necessary, even for a minor, when failure to perform the abortion
immediately would lead to the mother’s death. Ayotte v. Planned Parenthood, 546 U.S. 320
(2006).
NOTE: these two cases followed the precedents set in Roe v. Wade, 410 U.S. 113 (1973),
overruled in part by Planned Parenthood v. Casey, 505 U.S. 833, (1992) and Casey, but
post-Dobbs, the status of abortion-related rules is uncertain.
Sterilization
• A statute permitting involuntary sterilization of mentally challenged persons is constitutional. Buck v.
Bell, 274 U.S. 200 (1927).
Standards
• Federal legislation requires that all states employ numerical child support guidelines and establish a rebuttable
presumption that the award that results from applying the guidelines to the facts is correct. See 42 U.S.C. §§ 651,
653-658, 664.
o The guidelines take into account factors such as the income and earnings of the parents, the number of
children and their ages, any special needs of the children, etc.
• Parents generally do not have to pay child support after the child reaches 18. However, some states require a
divorced parent to pay for college or education support.
Modification
• The petitioner must show a substantial change in circumstances.
o An involuntary income reduction could warrant relief.
o A voluntary reduction may not afford relief, but some courts look at whether the party exercised good faith in
taking the reduced income.
o Nonpaternity of a child may not be enough to modify child support. Some courts say that a prior legal judgment
bars nonpaternity evidence based on collateral estoppel. Others focus on the interests of the father.
• Federal law absolutely forbids retroactive modification of child support obligations absent circumstances such as
fraud.
Jurisdiction
• Unif. Interstate Fam. Support Act § 603(b) (Nat’l Conf. of Comm’rs on Unif. State Ls. 2001): A registered child
support order “issued in another State is enforceable in the same manner and is subject to the same procedures
as an order issued by a tribunal of” the state where enforcement is sought.
Custody modifications
• Custody can only be modified if there is a substantial change in circumstances and the modification of custody
is in the best interest of the child. Generally, the change must be unforeseen at the time of the initial judgment.
See, e.g., In re Marriage of Carney, 598 P.2d 36 (Cal. 1979) (father who had custody of children became
quadriplegic after accident; court held that his physical handicap was an insufficient reason to change custody). A
showing that a custodial parent is unfit may justify a modification of custody.
o Unif. Marriage & Divorce Act § 409 (1970) (Nat’l Conf. of Comm’rs on Unif. State Ls., amended 1973)
[hereinafter UMDA]: modifications within 2 years of the initial decree are only permitted if there is reason to believe
the child’s present environment may seriously endanger his/her “physical, mental, moral, or emotional health.”
• Relocation: Generally, a move sought in good faith that will serve the child’s best interests will ordinarily be
granted. The court will balance the impact on visitation by the noncustodial parent against the benefits of the move
to both the child(ren) and the custodial parent. See, e.g., Bisbing v. Bisbing, 166 A.3d 1155 (N.J. 2017).
o Some states place the burden of proof on the relocating parent and require that parent to show that the move
would be in the child’s best interest. Other states place the burden of proof on the objecting parent to show that
the move does not serve the child’s best interest. Others allow the parent to move, unless the moving parent is
vindictive, or unless the evidence shows an alternative reasonable visitation schedule is unavailable.
Visitation
Child Custody
Types of custody
• Legal custody: the right to make important decisions on behalf of the child.
• Physical custody: the right to have the child live with the person.
• Joint custody: Two parents share legal and/or physical custody. Many courts only find this to be a
viable option for parents who are able and willing to cooperate with one another in making decisions for
their child.
• Sole custody: One parent has sole physical and/or legal custody. Courts usually grant this when the
other parent is unfit.
Determining custody
Child Support
• Between two parents: the court will decide custody based on the best interests of the child.
• Between a parent and a third party (or the government): the parent will get custody of the child so
long as the parent is fit to be a parent. The burden is on the non-parent to show by clear and
convincing evidence that the parent is unfit.
o Best interests of the child factors:
- Child’s preference: The preference of a child who is mature enough to form and express a
preference is relevant to a custody determination. See, e.g., McMillen v. McMillen, 602 A.2d
845 (Pa. 1992) (child expressed preference to live with his father because his mother left him
alone and his step-father scared him).
• Some courts say the wishes of the child control if the decision is between two fit parents;
other courts say the child’s wishes may be discarded, and still others make it a factor.
- Fitness of the parent: Includes the parent’s physical health, ability to provide love and
affection, ability to care for the child, etc.
- Parent’s religious faith: A court may not favor one religion over another. A court may not
evaluate religion when determining which parent should have custody; however, the court may
evaluate the parent’s ability to provide for the physical and mental health needs of the child.
See, e.g., Kendall v. Kendall, 687 N.E.2d 1228 (Mass. 1997).
- Race and ethnicity: The effects of racial prejudice cannot justify removing an infant child from
the custody of its natural mother who is found to be an appropriate person to have such
custody. Palmore v. Sidoti, 466 U.S. 429 (1984).
- Any other factor relevant to the child
o Tender years presumption: Preference is for the mother to have custody if the child is
below a certain age. See Pusey v. Pusey, 728 P.2d 117 (Utah 1986). Most jurisdictions
have abandoned this approach.
o Primary caretaker presumption: When one parent is clearly the primary caretaker, that
parent should have custody if the child is below a certain age. See, e.g., Garska v.
McCoy, 278 S.E.2d 357 (W. Va. 1981). Most jurisdictions no longer have such a
presumption.
• Unmarried fathers
o Common law presumption: under common law, if the mother was married at the time she gave
birth, her husband was presumed to be the child’s father.
o A presumption that unwed fathers are unfit parents is an unconstitutional violation of equal
protection. Stanley v. Illinois, 405 U.S. 645 (1972).
o Putative father: A biological father who wishes to be the legal father. May have to establish
paternity as required by the state to gain the status of legal father. Only a legal father has
constitutional rights as it relates to parenting and custody.
• § 407: “A parent not granted custody of the child is entitled to reasonable visitation rights unless” such visitation
would seriously endanger “the child’s physical, mental, moral, or emotional health.”
• Grandparent and third-party rights
o Troxel v. Granville, 530 U.S. 57 (2000)—A statute which allowed grandparents to petition for visitation time gave
“no special weight” to a parent’s determination of her child’s best interest, thus the court found it “contravened
the traditional presumption that a fit parent will act in the best interest of his or her child.”
Jurisdiction
• The court must have personal jurisdiction over a nonresident parent in a child custody or support case.
• Unif. Child Custody Jurisdiction & Enforcement Act (Nat’l Conf. of Comm’rs on Unif. State Ls. 2013)
[hereinafter UCCJEA]
o A state has jurisdiction to issue a custody order using the following tests:
Home state test
The state where the child has “lived
with a parent or a person acting as
a parent for at least six consecutive
months immediately before the
commencement of a child-custody
proceeding.” § 102(11).
The home state continues to have
exclusive jurisdiction over custody
so long as no more than six months
have elapsed since the child’s
departure and a parent, or person
acting as a parent, still lives in the
home state.
Significant connections test
If the child has no home state,
a state may exercise
jurisdiction based on
(1) significant connections with
the child and at least one
parent and
Emergency jurisdiction
The child is physically present in
the state and has been
abandoned or subject to abuse.
§ 204.
(2) the existence of substantial
evidence relating to child custody
in the forum jurisdiction. § 201.
o A state that properly issued a custody decree retains continuing, exclusive jurisdiction over that custody
matter until all parties and the child have left the state OR an issuing state court has determined there is no
longer any significant connection between the child and the person remaining in the state. § 202.
• Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A
o A state may not modify a custody order issued by another state if either the child or any contestant continues
to reside in the issuing state and the issuing state’s courts do not decline to exercise jurisdiction.
• Hague Convention
o The international version of the UCCJEA, used to determine which country should have jurisdiction over
custody. Countries are only bound by the Hague Convention if they have signed it. A country has jurisdiction
over custody when the child is a habitual resident of the country.
- Exception: even if a child’s habitual residence is in a particular country, the child need not be returned there
if they will face a “grave risk of physical harm.” Silverman v. Silverman, 267 F.3d 788 (8th Cir. 2001).
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