Family Law Outline
Introduction to Family Law: Marriage, Family, and Privacy in Contemporary America
Overview
1. Importance of Family Law
a. Most common area in which individuals interact with the law
b. Being a well-rounded lawyer
c. On the bar exam
d. Very common practice for smaller firms
2. Misconceptions/Vestigial Structures
a. Originally was thought to apply only to people with a lot of property.
i. There was thought to be a separate body of law for less well-off people.
b. Only “legitimate” or “traditional” (i.e., nuclear; 1950s-style) families were the
subject of family law.
c. About marriage and divorce.
3. Sources of Family Law
a. Constitution
b. Statutes
c. Regulations
d. Common Law/Judicial Doctrines
e.  Mostly state law
4. Purposes of Family Law
a. Protective Function
i. Protecting individuals from harm by others
ii. Protecting from physical, economic, etc. harm
b. Facilitative Function
i. Helps people arrange their lives as they choose
ii. E.g., premarital agreements, parenting plans, etc.
c. Arbitral Function
i. Helping people resolve their conflicts
ii. E.g., divorce, child custody, maintenance, child support, etc.
d. Expressive Function
i. “It works by deploying the law’s power to impart ideas through words and
symbols. It has two (related) aspects: Law’s expressive abilities may be
used, first, to provide a voice in which citizens may speak and, second, to
alter the behavior of people the law addresses.”
ii. Symbolic dimensions of marriage, e.g., fault-based divorce
e. Channeling Function
i. “Law creates or (more often) supports social institutions which are thought
to serve desirable ends.”
ii. Debate about the social institution of marriage and its purposes
f. Private Welfare Function
i. Families provide care and material support for their members.
5. Why is the state concerned about family matters?
a. Family is where we generate, nurture, and prepare the next generation of citizens.
Want to provide a healthy, stabile environment.
i. The family is the locus of the generative work of society.
ii. Want to protect vulnerable children.
b. Family is the primary unit that collects and transmits wealth to the next
generation.
i. Family is the primary way in which vulnerable children and adults are to
be supported.
c. Law promotes certain public policy assumptions regarding the family.
d. Protect rights.
e. Promote responsible behavior.
6. Family Models
a. Types
i. Nuclear/Traditional Family – Married husband and wife and children
1. Breakdown in recent history
ii. Alternative Family Arrangements – E.g., same-sex couples with or
without children
iii. Nonfamily Households
1. Single adults living alone
2. Cohabitating adults not related by marriage, birth, or adoption
b. Change
i. Law increasingly permits individuals greater freedom to define their
relationships.
ii. Today, there are more single households than married households.
Married couples are losing market share.
iii. Traditional family was all about child-rearing. Now, marriage and family
are becoming more about the adults.
1. Conjugal View VS Close Relationship Model
iv. Rising divorce rate since the 1970s
v. Delayed marriage
vi. Declining number of remarriages
vii. Flood of alternatives to marriage
viii. New reproductive technologies
ix. Childless marriage
c. Reevaluation of Marriage
i. Equivalence between cohabitation and marriage
ii. Redefining marriage as a couple-centered bond
iii. Disestablishment or the separation of marriage and state
iv. Challenges to definition of marriage as between one man and one woman
7. Demographics of Marriage
a. African Americans marry at much lower rates than whites. They often lack the
resources to marry, e.g., marriage license.
b. Even unmarried Americans still largely subscribe to the idea that marriage is
better.
c. People with higher education are more likely to marry and more likely to stay
married. This reinforces the advantages they already enjoy in life.
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d. People that like to marry will not always stay married, but they will marry and
divorce and marry again.
8. Reasons to Marry or Not Marry
a. Loss of Identity
b. Putting off marriage because of the possibility of a long, arduous divorce later
c. Different tax treatments
d. Health insurance
e. Pros/Cons of perpetual engagement/cohabitation
Constitutionalization of Family Choices
Defining the Family
1. Family Associational Rights – 1st Amendment right
2. Moore v. City of East Cleveland (U.S. 1977)
a. Facts – Appellant lives in her East Cleveland, Ohio, home with her son and two
grandsons (who are first cousins). An East Cleveland housing ordinance limits
occupancy of a dwelling unit to members of a single family, but defines “family”
in such a way that appellant's household does not qualify. Appellant was
convicted of a criminal violation of the ordinance. Her conviction was upheld on
appeal over her claim that the ordinance is unconstitutional.
b. Holding – Ordinance violated Due Process Clause of 14th Amendment.
i. Searching Review – “When city undertakes intrusive regulation of the
family, usual judicial deference to the legislature is inappropriate, as
freedom of personal choice in matters of marriage and family life is one of
the liberties protected by due process, and thus when government intrudes
on choices concerning family living arrangements, Supreme Court must
examine carefully the importance of the governmental interests advanced
and the extent to which they are served by the challenged regulation.”
1. Implied, not stated expressly
2. Definitely not rational-basis review
3. State Goals - “Preventing overcrowding, minimizing traffic and
parking congestion, and avoiding undue financial burden on city’s
school system.”
ii. Substantive Due Process Analysis
1. “Careful respect for the teachings of history and solid recognition
of the basic values that underlie our society.”
2. Fundamental Liberty Interest in Defining Family – “The
Constitution protects the sanctity of the family precisely because
the institution of the family is deeply rooted in this Nation’s
history and tradition.”
a. History and tradition recognize this sort of family. Deep
roots.
b. Serves important societal functions, especially in times of
adversity.
c. Brennan, Concurring
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i. Emphasizes that these extended family arrangements are more prevalent in
minority and immigrant communities (i.e., vulnerable communities).
ii. The nuclear family is a fixture of white suburbia.
iii. Brennan noted that there was no evidence that the ordinance in this case
was racially motivated. East Cleveland was a black, middle-class,
upwardly striving community. The residents wanted to exclude lowerclass, “ghetto” families. They wanted to preserve their middle-class,
“Leave It to Beaver” community.
d. Stewart & Rehnquist, Dissenting
i. State may regulate any household that is not a marital household.
Substantive due process only protects the traditional, nuclear family.
Right to Privacy
1. Meyer v. Nebraska (U.S. 1923)
a. Substantive Due Process
b. Law restricting foreign-language education violated the Due Process clause of
the 14th Amendment.
2. Pierce v. Society of Sisters (U.S. 1925)
a. Substantive Due Process
b. Law providing that parents could satisfy the state’s compulsory education law
only by enrolling their children in public schools violated the Due Process clause
of the 14th Amendment.
c. “Liberty of parents and guardians to direct the upbringing and education of
children under their control.”
3. Prince v. Massachusetts (U.S. 1944)
a. “The custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the State can
neither supply nor hinder. There is a private realm of family life which the State
cannot enter.”
4. Poe v. Ullman (U.S. 1961)
a. Denied certiorari because there was no realistic prospect of enforcement (arrest
and prosecution). Parties were seeking declaratory judgment.
b. Justice Harlan dissented and, reaching the merits, took a broad view of the
“liberty” protected by the 14th Amendment Due Process clause to include not
merely state violations of one of the first eight amendments which had been held
to be “incorporated” in the 14th, but against any law which imposed on “liberty”
unjustifiably.
5. Griswold v. Connecticut (U.S. 1965)
a. Facts – CT law criminalized using contraceptives or aiding and abetting the use of
contraceptives. Doctors could not give contraceptives to anyone, including
married couples.
b. Holding (Douglas) – Violated 14th Am., DPC.
i. Question – Constitutional violation in denying contraception to married
couples?
ii. Strict Scrutiny
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c.
d.
e.
f.
1. (1) Compelling state interest and (2) as narrowly tailored as
possible to achieving that interest.
2. Warranted only for discrete and insular minorities, political
breakdown, or if the statute interfered with a constitutionally
protected right. Carolene Products.
a. No constitutional provision addressing marital privacy.
b. Penumbral Right – Provisions in Bill of Rights have
penumbras and innovations that embrace a broader right to
privacy. E.g., 3rd, 4th, and 4th Am. are premised on
privacy.
3. Purpose of strict scrutiny is that the government should not
interfere with constitutionally protected rights.
4. CT law fails.
iii. Purported State Interest – Preventing illicit sexual relations, e.g.,
premarital sex and adultery.
1. Rationale – Lack of contraceptives may discourage illicit sexual
relationships because, if contraceptives are out there, married
people might use them during adulterous affairs. Law will curtail
premarital sex because, if condoms are not available at home,
unmarried teenagers will not be able to steal them.
2. Other means of achieving state interest. E.g., criminalize adultery;
school abstinence programs; etc.
iv. Fundamental Rights – Limit consideration to specific constitutional
provisions and construe them generously.
1. Limits recognition of unenumerated rights to rights that we have
recognized as protected. Makes the leap to, e.g., a general right of
privacy less problematic.
2. Fails the Lochner test because there are constitutional provisions
that would have supported the right of contract.
3. Test will not constrain judicial discretion in recognizing
unenumerated rights.
v. Lochner is dead. Deference to legislature on policy matters.
1. But Right to Contract – May be discernable from Takings Clause
and Contracts Clause. Penumbras.
Goldberg, Concurring
i. Marital privacy is protected by concept of “liberty” in DPC. Due Process
Clause alone.
ii. 9th Amendment – Rule of construction. Constitution protects
unenumerated rights.
Harlan, Concurring
i. Same as Goldberg, but does not rely on 9th Amendment.
White, Concurring
i. CT law does not satisfy rational basis. Banning married couples from
using contraceptives does not reduce illicit sexual relationships.
Black, Dissenting
i. Constitution does not mention privacy  no constitutional right.
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ii. DPC incorporates only rights specified in the Bill of Rights.
iii. Finding other rights is policymaking—similar to Lochner.
g. Stewart, Dissenting
i. [Same]
6. Wyman v. James (U.S. 1971)
a. Facts - The plaintiff, a recipient of AFDC, was notified that her home would be
visited by a caseworker. The plaintiff offered to supply information relevant to
her need for public assistance, but she refused to permit the caseworker to visit
her home, and pursuant to New York statutory and administrative provisions, her
AFDC benefits were terminated because of such refusal.
b. Caseworker’s home visit was not a “search” within the meaning of the 4th
Amendment.
c. Even if the visit was a search, it was not unreasonable, it served a valid and proper
administrative purpose for the dispensation of the AFDC program, it was not an
unwarranted invasion of personal privacy, and it violated no right guaranteed by
the 4th Amendment.
7. Eisenstadt v. Baird (U.S. 1972)
a. Facts – After delivering a lecture on overpopulation and contraception, the
appellee invited members of the audience to come to the stage and to help
themselves to contraceptive articles, and he personally handed a package of
contraceptive foam to a young woman. As a result of giving the foam to the
woman, he was convicted in a Massachusetts state court for violating a
Massachusetts statute which made it a crime to sell, lend, or give away any
contraceptive drug, medicine, instrument, or article, except that physicians were
permitted to administer or prescribe contraceptive drugs or articles for married
persons, and pharmacists were permitted to fill prescriptions for contraceptive
drugs or articles for married persons.
b. Holding – Violated Equal Protection clause of 14th Amendment because it treated
married and unmarried persons dissimilarly
i. State Purposes
1. Protecting Health – Rejected
2. Preserving Morals – Rejected
3. Limiting Contraception – Valid
4. Deterrence of Premarital Sex – Rejected
ii. No reasonable relation
iii. Punishment for breaking contraception law was worse than punishment
for illicit fornication.
iv. “Whatever the rights of the individual to access to contraceptives may be,
the rights must be the same for the unmarried and the married alike.”
c. Douglas, Concurring
i. Would also base the decision on the 1st Amendment, since passing a
contraceptive article to a member of the audience could be regarded as
merely a projection of the appellee’s visual aid in conjunction with his
lecture, and therefore as a permissible adjunct of free speech.
d. Burger, Dissenting
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i. The Massachusetts statute validly required, as a health measure, that all
contraceptives be dispensed by a physician or pursuant to a physician’s
prescription.
ii. The marital status of the recipient of the contraceptive foam had no
bearing on the present case.
iii. The appellee was properly convicted for dispensing medicinal material
without a license.
8. Lawrence v. Texas (U.S. 2003)
a. Substantive Due Process
b. Right to personal privacy extends to consensual intimate relations between adults
of the same sex.
Creating Families and Legal Obligations
Entering Marriage
Constitutional Rights and Substantive Requirements
1. Generally
a. Marriage laws express social values on many issues.
b. Modern Retreat of Marriage Regulation
i. Transformation of understanding about the central purposes of marriage.
ii. Significant constitutional limitations on government power over family
law, as reflected in Supreme Court opinions over the past half century.
2. Common Features Across Jurisdictions
a. Bars on bigamous or incestuous marriages
b. Minimum age for capacity to give consent
3. Loving v. Virginia (U.S. 1967)
a. Facts – VA law prohibited a white person from marrying a non-white person.
Interracial couple married in DC, returned to VA and pled guilty, and Supreme
Court of Appeals of Virginia upheld law.
b. Holding (Warren)
i. Invalidated law.
1. Due Process Clause – Unconstitutional.
2. Equal Protection Clause – Unconstitutional.
ii. Standard of Review – Not stated explicitly.
iii. Right to Marry – Fundamental right under “liberty” of DPC.
1. “One of the vital personal rights essential to the orderly pursuit of
happiness by free men.”
2. “One of the ‘basic civil rights of man.’”
iv. Only direct and substantial restrictions on right to marry invoke strict
scrutiny.
1. Permissible Restrictions – Age; siblings; polygamy; same-sex
marriage; etc.
2. Loving – Invidious racial discrimination.
4. Zablocki v. Redhail (U.S. 1978)
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a. Facts – Under the terms of a Wisconsin statute—providing that any resident of
Wisconsin having minor issue not in his custody and which he is under an
obligation to support by any court order or judgment may not marry, within
Wisconsin or elsewhere, without first obtaining a court’s permission to marry,
which permission cannot be granted unless the applicant submits proof of
compliance with the support obligation, and, in addition, demonstrates that the
children covered by the support order are not then, and are not likely thereafter, to
become public charges—a Wisconsin resident, who was under a court order to
support his illegitimate child, was denied a marriage license by the County Clerk
of Milwaukee County, on the sole ground that he had not obtained a court order
granting him permission to marry.
b. Holding – Unconstitutional under the Equal Protection Clause of the 14th Am.
i. Searching Review
1. State Purposes
a. “The permission-to-marry proceeding furnishes an
opportunity to counsel the applicant as to the necessity of
fulfilling his prior support obligations.”
i. This interest would be satisfied with, e.g., a
certificate saying that counseling was received. A
man with such a certificate could then marry.
b. “The welfare of the out-of-custody children is protected.”
i. No money collection device.
ii. A man could marry another person, and together,
their household would enable him to make his
child-support payments.
c.  Important interests
2. Law failed close-tailoring prong.
ii. Fundamental right to marry. Loving.
iii. “Reasonable regulations that do not significantly interfere with decisions
to enter into the marital relationship may legitimately be imposed.”
1. Subject to rational-basis review, unlike laws that “interfere directly
and substantially” with the choice to marry.
2. WI law is clearly violative.
iv. Poverty as a suspect class.
1. Not adopted in subsequent opinions.
c. Stewart, Concurring
i. No fundamental right to marry
ii. The Wisconsin statute was unconstitutional because it exceeded the
bounds of permissible state regulation of marriage, and invaded the sphere
of liberty protected by the 14th Amendment’s Due Process clause.
d. Powell, Concurring
i. The Wisconsin statute was unconstitutional under either due process or
equal protection standards, since the state had not established a
justification for the statute’s foreclosure of marriage to many of its citizens
solely because of their indigency.
ii. Should not push Loving beyond race.
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iii. Marriage is a matter traditionally entrusted to the states, which regulate
marriage in many ways, e.g., no incest or bigamy, premarital blood tests,
etc.
iv. When the state becomes very intrusive, we must look to Due Process or
Equal Protection.
e. Rehnquist, Dissenting
i. Under the appropriate standards whereby, for equal protection purposes,
the statute had to pass only the rational basis test, and whereby, for
purposes of due process, it had only to be shown that the statute bore a
rational relation to a constitutionally permissible objective, the Wisconsin
statute was a permissible exercise of the state’s power to regulate family
life and to assure the support of minor children.
5. Turner v. Safley (U.S. 1987)
a. Facts – A suit filed in the United States District Court for the Western District of
Missouri challenged the constitutionality of a Missouri prison regulation as
practiced at a Missouri prison which housed both male and female inmates: an
almost complete ban on inmate marriages.
b. Holding – Law is unconstitutional.
i. Inmates’ constitutional rights maybe restricted somewhat.
ii. Failed rational-basis review.
iii. State’s interests in prison security and inmate rehabilitation could be
served effectively by other, less restrictive means.
Same-Sex Marriage
1. Historically, no recognition of same-sex marriage.
a. Legal in seven jurisdictions as of May 2012.
2. Reasons for Barring Same-Sex Marriage
a. Moral disapproval
b. Children’s welfare
i. Promoting stability of opposite-sex marriages/avoiding instability of
same-sex marriages
ii. Better for children to grow up with both a mother and father
3. Sexual orientation is NOT a suspect class in Equal Protection jurisprudence.
a. Quasi-Suspect and Intermediate Scrutiny – Lawrence; Romer.
4. Constitutional Protections
a.
5. Bowers v. Hardwick (U.S. 1986)
a. Upheld a law that criminalized sodomy between consenting adults.
b. Overruled by Lawrence.
6. Lawrence v. Texas (U.S. 2003)
a. Substantive Due Process
b. Right to personal privacy extends to consensual intimate relations between adults
of the same sex. Right to private conduct within home and dignity as a human
being.
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c. Moral disapproval of homosexuality is not a legitimate state interest. Society may
not use the criminal law to impose its morals.
d. Overruled Bowers.
e. Scalia, Dissenting
i. Lawrence will lead to recognition of same-sex marriage.
ii. Most laws are based on morality.
7. Goodridge v. Department of Public Health (Mass. 2003)
a. Same sex couples have a right to marry.
b. No rational basis for preventing same-sex couples from marrying. Domestic
partnerships do not have the same status or emotional saliency as marriages.
8. Perry v. Brown (9th Cir. 2012)
a. Holding – Proposition 8 is unconstitutional under the Equal Protection clause of
the 14th Amendment.
b. Standard of Review – Rational Basis
i. Purported State Interests
1. Responsible procreation and childbearing
2. Children are better off when raised by two biological parents.
3. Marriage reduces the threat of “irresponsible procreation.”
4. Protecting religious liberty
5. Protecting children from being taught in public schools that samesex marriage is the same as traditional marriage.
a. “The prospect of children learning about the laws of the
State and society’s assessment of the legal rights of its
members does not provide an independent reason for
stripping members of a disfavored group of those rights
they presently enjoy.”
ii. No legitimate purpose for Proposition 8
c. Proposition 8 Withdrew a Right
i. Special Status of “Marriage” Label
1. Significant cultural importance
2. “Domestic partnership” is not as good.
3. Kennedy’s remark that children of same-sex couples want their
parents’ unions to be as valid as any other
ii. “In adopting the amendment, the People simply took the designation of
‘marriage’ away from lifelong same-sex partnerships, and with it the
State’s authorization of that official status and the societal approval that
comes with it.”
iii. “Withdrawing from a disfavored group the right to obtain a designation
with significant societal consequences is different from declining to
extend that designation in the first place.”
9. Interstate Recognition of Same-Sex Unions
a. Majority Rule – “A marriage which satisfies the requirements of the state where
the marriage was contracted will everywhere be recognized as valid unless it
violates the strong public policy of another state which had the most significant
relationship to the spouses and the marriage at the time of the marriage.” Rest.
2d Conflicts of Law § 283(2).
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i. Not recognized  No state benefits of marriage
ii. 41 states have strong public policy against same-sex marriage through
laws or constitutional amendments.
iii. Divorce – Must return to the state granting the marriage.
b. Full Faith and Credit Clause
i. U.S. Const. art. IV, § 1.
ii. Allows some leeway to refuse enforcement on policy grounds.
c. DOMA
i. Same-sex marriage valid under state law is not recognized for federal
purposes.
ii. States are not required to recognize same-sex marriages performed in
other states.
iii. Obama administration has stopped defending DOMA in court because it
believes that it is unconstitutional.
iv. United States v. Windsor.
Marriage Regulations
1. Marriage Formalities – Two Formal Requirements
a. Marriage license; and
b. Solemnization
c.  Today, if a couple has a license and a ceremony, the marriage typically will be
recognized even if everything is not perfect.
2. Marriage License
a. Purpose – Determining eligibility to marry
b. Must submit application with information about identities, marital histories, age,
etc.
c. Three-Day Waiting Period – Preventing spur of the moment marriages and
drunken sailors from marrying before they ship out.
3. Solemnization
a. Makes clear that parties intended to marry and that they actually were married.
b. Uniform Marriage and Divorce Act § 206
(a) A marriage may be solemnized by a judge of a court of record, by a public
official whose powers include solemnization of marriages, or in accordance with
any mode of solemnization recognized by any religious denomination, Indian
Nation or Tribe, or Native Group. Either the person solemnizing the marriage, or,
if no individual acting alone solemnized the marriage, a party to the marriage,
shall complete the marriage certificate form and forward it to the [marriage
license] clerk.
(b) If a party to a marriage is unable to be present at the solemnization, he may
authorize in writing a third person to act as his proxy. If the person solemnizing
the marriage is satisfied that the absent party is unable to be present and has
consented to the marriage, he may solemnize the marriage by proxy. If he is not
satisfied, the parties may petition the [______________] court for an order
permitting the marriage to be solemnized by proxy.
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(c) Upon receipt of the marriage certificate, the [marriage license] clerk shall
register the marriage.
(d) The solemnization of the marriage is not invalidated by the fact that the person
solemnizing the marriage was not legally qualified to solemnize it, if neither party
to the marriage believed him to be so qualified.
4. Blood Tests
a. Most jurisdictions no longer require blood tests.
b. Rationales
i. Designed to protect young women from VD. Rested on the assumption
that young women were virgins.
ii. Public health
5. Capacity to Marry
a. Two Questions
i. Does each party have the capacity to marry? (Age requirement or parental
consent)
ii. Do the parties have the capacity to marry each other?
1. If it is lacking, the attempted marriage is void.
b. Age
i. Rationale – Lack of capacity to consent to marriage
ii. Must have reached required age or have parental consent (exception)
1. Traditional Reason – A young girl may become pregnant, and
when this happens, everyone would want the girl to be married.
2. If parents refuse to give consent, the situation is curable (unlike
marriage between relations). When the parties are old enough,
they may marry.
3. Rationale – Parents know their children best. We believe that
parents typically act in their children’s best interests. (But this is
not always the case.)
4. Most state laws do not create an appeals regime, in which a child
may appeal his or her parent’s decision to allow him or her to
marry.
5. Some states have established a minimum age under which a person
may not marry without both parental and judicial consent.
iii. Attempted marriages are voidable.
c. Current Marital Status
i. Cannot marry if currently married (no bigamous marriages)
1. Other bodies of law do not contemplate multiple spouses and are
not equipped to deal with them. Exceptions would be needed to
address plural marriages.
2. Concerns about the financial support necessary for supporting
multiple households. American culture values self-sufficiency.
3. Feminist critique of one man having many wives.
4. Issues about child rearing. How would growing up in a plural
marriage affect a child’s development? Positively or negatively?
5. We want people to be informed about their marriage decisions.
We do not want one man marrying multiple women, each of whom
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does not know about the other wives. Society is protecting the
women (victims) by making simultaneous spouses illegal.
ii. Cannot marry if divorce is not yet final
d. Relatives
i. Terms
1. Consanguinity – Blood relationships
2. Affinity – Relations by marriage
ii. Most states define “family” for purposes of incest/marriage prohibitions in
terms of blood relations.
iii. All jurisdictions prohibit marriage between blood relations, but only some
prohibit relations between emotional relations.
iv. DC allows first cousins to marry, but other states do not. Depends on
state’s public policy.
v. DC disallows marriage between step-relations and spouses of blood
relations.
1. Emotional and power relations
2. Family dynamics can become very complicated.
vi. Attempted marriages are void.
6. Void Marriages
a. Offend strong public policies
b. Absolutely void without a request for annulment
c. Union is of no legal effect.  No formal dissolution is required.
d. Either party to the marriage or a third party can challenge a void marriage.
e. E.g., same-sex (most states), bigamous, or incestuous marriages; marriages where
the parties lack capacity to marry each other
7. Voidable Marriages
a. Offend less strident public policies
b. Legally invalid unless and until one party has it annulled.
c. Only the party that lacked consent or capacity (or guardian) can bring an action to
void the marriage.
d. E.g., marriage where one party is underage, lacks physical capacity, or was
induced by fraud or duress
8. Mental Capacity
a. Old age; dementia; stroke victims; Alzheimer’s Disease; alcohol; drugs; etc.
b. To give valid consent to marriage, a party must be capable of understanding the
rights, duties, and responsibilities of marriage at the time of the marriage contract.
c. Temporal Question – Could lose mental capacity temporarily because of influence
of alcohol or drugs.
d. Capable of ratification once party regains mental competence.
9. Mutual Assent
a. Parties must demonstrate their mutual intent to be married.
b. Sometimes, parties may annul an attempted marriage if it was undertaken in jest
or without serious thought.
i. Mixed success and annulment is pretty rare.
10. Fraudulent Inducement
a. Shotgun weddings; arranged marriages; etc.
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b. Consent to marriage is legally ineffective if it was induced by fraud.
c. Fraud must relate to “the essence of the marriage.”
i. Varies from case to case depending on the parties’ values and priorities.
ii. Marriage is a contractual agreement about how two people want to live
their lives. From this perspective, many things could go to the essence of
the marriage.
iii. Impotency and Sterility – May go to the essence of the marriage because
one of the purposes of marriage is child rearing.
iv. Not Sufficient – Fraud about finances, adultery, occupation, past, or
criminal history
1. If historically marriage had been about alliances between
propertied families, then finances do seem to go to the essence of
marriage.
2. “False representations as to fortune, character, and social standing
are not essential elements of the marriage, and it is contrary to
public policy to annul a marriage for fraud or misrepresentations as
to personal qualities.”
Equitable Doctrines
Common Law Marriage
1. Elements
a. Living together (typically for seven year);
b. Holding themselves out as married; and
c. Mutual intention to be married
d.  Capacity to be married in the jurisdiction
2. Policy Rationales
a. Impracticality of strict compliance with marriage formalities in frontier society
b. Financial dependency of economically unstable women
c. Avoiding branding children with legal status of illegitimacy
d. Effacing the potentially threatening nature of nonmarital domestic relationships
by labeling them as marriages
e. Protect innocent/unknowing married partners
3. Current Legal Status – Permitted in fewer than 12 jurisdictions
4. Third parties often raise challenges to common-law marriages.
5. Interstate Recognition of Common-Law Marriages
a. Governed by conflict-of-law rules.
b. Upheld as valid throughout the US if it was successfully created in a state that
recognized common-law marriage when the marriage was formed.
c. Common-law marriages created before statutory abolition remain valid.
6. In re Estate of Hunsaker (Mont. 1998)
a. Facts – In probate proceeding, woman sought to establish that she was decedent’s
common-law wife.
b. Elements and Burden of Proof – “The party asserting that a common-law
marriage exists has the burden of proving: (1) that the parties are competent to
14
enter into a marriage; (2) that the parties assume a marital relationship by mutual
consent and agreement; and (3) that the parties confirm their marriage by
cohabitation and public repute. The party asserting the existence of a commonlaw marriage must prove all three elements.”
i. Fourth Element – Capacity to married in the jurisdiction
ii. All elements must exist at the same time.
c. Presumption in Favor of Marriage – “Public policy generally favors the finding
of a valid marriage.”
d. Implied Mutual Consent to Be Married – “The mutual consent of the parties
does not need to be expressed in any particular form. Mutual consent can be
implied from the conduct of the parties. Mutual consent must always be given
with such an intent on the part of each of the parties that marriage cannot be said
to steal upon them unawares.”
e. Public Repute (No Secrets) – “The court considers how the public views the
couple. Relevant to this inquiry is whether the couple holds themselves out to the
community as husband and wife. A common-law marriage does not exist if the
parties keep their marital relationship secret. Cohabitation and public repute are
continuing factors that extend through the life of the marriage.”
7. Burden of Proof
a. Most states require demonstration by clear and convincing evidence.
8. Capacity to Marry
a. Required for common-law marriages
b. If incapacity or impediment is removed later, most courts require renewed acts
after the removal to establish the requisite elements of common-law marriage.
9. Date of Marriage
a. Difficult to establish, but very important
10. Present Agreement to Marry
a. Parties must agree to marry today, not a month or year from now. (That is an
engagement.)
b. Majority Rule – Circumstantial evidence suffices.
c. Minority Rule – Pennsylvania requires “an exchange of words in the present
tense, spoken with the specific purpose that the legal relationship of husband and
wife is created by that.”
11. Holding out as Married
a. Evidence
i. Understandings of third parties
ii. Filing status on tax returns, real estate deeds or leases, loan applications,
and other financial documents
iii. Will benefiting common-law spouse
iv. Use of common names
v. Intermingling of financial affairs
vi. Shared or joint possessions
vii. Spouses’ testimony
b. Absence of Holding Out – Often persuasive evidence that parties did not regard
one another as spouses
12. Formal Marriage – May undermine the notion of a preexisting common-law marriage
15
13. Common Law Marriage with Former Spouse – Courts require proof of a new agreement
to marry, cohabitation, or holding out after the dissolution of the formal marriage.
Putative Spouse Doctrine
1. Generally
a. Equitable doctrine for an innocent spouse that relied in good faith on a mistaken
belief in the validity of the marriage
b. NEVER overlaps with common-law marriage because the doctrine requires a
formal marriage ceremony.
c. Does NOT validate the defective marriage.
i. Marriage remains void.
ii. Innocent party receives relief that he or she would have received if the
marriage had ended in divorce.
d. Remedies Without Doctrine – Relief afforded to cohabitating, nonmarital partners
2. Williams v. Williams (Nev. 2004)
a. Putative Spouse Doctrine
i. “Under the putative spouse doctrine, an individual whose marriage is void
due to a prior legal impediment is treated as a spouse, so long as the party
seeking equitable relief participated in the marriage ceremony with the
good-faith belief that the ceremony was legally valid.”
ii. “Under the putative spouse doctrine, when a marriage is legally void, the
civil effects of a legal marriage flow to the parties who contracted to
marry in good faith. That is, a putative spouse is entitled to many of the
rights of an actual spouse.”
iii. Elements – “The putative spouse doctrine has two elements: (1) a proper
marriage ceremony was performed, and (2) one or both of the parties had a
good-faith belief that there was no impediment to the marriage and the
marriage was valid and proper.”
iv. Good Faith
1. Defined as an “honest and reasonable belief that the marriage was
valid at the time of the ceremony.”
2. Cannot remain willfully blind to red flags warning of serious
defects in the marriage.
3. Rebuttable presumption of good faith
4. Fact-sensitive inquiry
5. “Once a spouse learns of the impediment, the putative marriage
ends.”
a. Property or support rights cease to accrue after the truth
comes to light.
b. Property Division (Majority Rule) – Court applies doctrine when dividing
property acquired during the marriage, applying equitable principles, based on
community property law, to the division.
i.  Many states allow putative spouses to recover an equitable distribution
of community or marital property.
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c. Spousal Support – “Absent fraud, the doctrine does not apply to awards of
spousal support.”
i. “States are divided on whether spousal support is a benefit or civil effect
that may be awarded under the putative spouse doctrine. Although some
states permit the award of alimony, they do so because their annulment
statutes permit an award of rehabilitative or permanent alimony.”
ii.  Many states allow putative spouses to recover alimony or spousal
support.
d. Annulment – “Proper manner to dissolve a void marriage and resolve other
issues arising from the dissolution of the relationship.”
3. Post-Discovery Requirements
a. When a spouse discovers that the marriage is not legal, he or she is required to
leave.
b. One year to decide what to do
c. If the spouse that left decides to return and cures the problem with the other party,
the law holds that one spouse has forgiven the other.
4. Defective Common-Law Marriages – Some states extent the putative spouse doctrine to
defective common-law marriages.
Social and Economic Rights and Obligations
Law and Social Roles in the US and Comparable Countries
1. History of Common Law – Blackstone (Pages 185–87)
a. Coverture – Wife is subsumed under husband.
b. Husband and wife are one person in law. Wife’s legal existence is suspended
during marriage or incorporated and consolidated into that of husband.
i. Wife cannot bequeath property to her husband; cannot testify in court in
her husband’s defense; etc.
c. Criminal Matters – Wife may be punished separately because marriage is a civil
union.
d. Wife is considered separately from husband when she is inferior to him and acting
by his compulsion.
e. Husband may restrain and correct wife, but it must be reasonable. Cannot treat
wife like a child or slave.
f. Paternalism – “These are the chief legal effects of marriage during the coverture;
upon which we may observe, that even the disabilities, which the wife lies under,
are for the most part intended for her protection and benefit.”
g. Prenuptial Agreements – Voided by marriage because a man cannot contract
with himself. Neither party can enforce the agreement after the marriage.
i. Solution – Add a third party to the contract, e.g., the father of the bride or
her brother, etc.
h. Economic Rationale – Marriage was a contract between propertied families.
Men and women approached the contract as equals. Marriage contract eradicated
the equality that preexisted the contract.
2. Family Names
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a. Common Law – Men and women could changes names in any manner although
under the law of coverture, it was customary for a married woman to use her
husband’s last name.
b. Modern Law
i. May change any part of name at will.
ii. Change must not defraud, misrepresent, or interfere with rights of others.
iii. Most states allow a married woman to maintain her name or accept her
husband’s last name.
1. Other alternatives require more effort or fees.
c. Naming Options – Pages 188–89
d. Changing Name
i. NOT automatic upon marriage
ii. Time consuming
iii. Marriage Certificate  THEN affirmative steps to change driver’s license,
Social Security card, passport, voter’s registration, etc.
iv. Written notice must be given to banks, employment offices, insurance
companies, hospitals, credit card companies, utility offices, post offices,
property recorders, creditors, etc.
v. Proper Documentation  Name change made without cost.
e. Children’s Last Names
i. Jurisdictions vary. (See page 189.)
ii. Very liberal policies in US. In France, e.g., French children may only be
given French first names. No non-French first names on French birth
certificates.
iii. Dispute – Is a name change in the child’s best interests? In re Change of
Name for ACS (Alaska 2007).
f. Policy
i. Sense of identity
ii. High divorce rate and consequences for name changes
3. Women’s Changing Legal Status – See pages 190–95.
a. Women’s Movement and Civil Rights Movement
b. Title VII
c. Ruth Bader Ginsburg and the Equal Protection Clause; sex as a quasi-suspect
class and development of intermediate scrutiny
4. Work and Family: Domestic and Economic Roles
a. Poor and African-American women historically have worked more than middleclass, white women.
i. Today, more women of all races and socioeconomic statuses work.
b. Women have not achieved pay parity with men.
i. Because men earn more than women, it often makes economic sense for a
wife to take time off when one spouse must take time off, e.g., to care for
a family member.
c. Working mothers are more likely than working fathers to work part-time, rather
than full-time.
d. Ongoing debate about whether it is good for mothers of young children to work
outside the home
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e. Representation in Types of Jobs
i. Men – Construction, production, and transportation
ii. Women – Administrative support
iii. Professional Jobs
1. Women are more likely to hold.
2. Men hold highest-paying jobs.
f. Married persons earn more than people of other marital statuses.
g. “Second Shift” – Domestic caregiving that must be tacked onto the “first shift”
of paid work.
i. Borne primarily my women.
ii. Women are more likely to perform child-care responsibilities.
iii. Women spend more time on housework, food preparation, and cleanup,
and men spend more time on lawn, garden, and automotive care.
1. Women’s tasks are time-sensitive and must be done over and over
again.
2. Men’s tasks generally can be delayed.
iv. Aging Family Members – Mothers, daughters, and daughters-in-law
provide most of the care.
v. Men increasingly are taking on more tasks traditionally done by women.
5. Family and Medical Leave Act
a. Benefits
i. Eligible employees may take up to 12 weeks of UNPAID leave from work
for medical reasons related to a spouse, child, or parent.
ii. Maternity and paternity leave
iii. Caring for a sick family member
b. Eligibility
i. Employer
1. NOT applicable to private employers with fewer than 50
employees at any one workplace
a. Potentially Excluded Employers:
i. Small, boutique businesses
ii. Family businesses
iii. Fast food restaurants (most do not have 50
employees at each worksite)
iv. Gas stations
v. Some grocery stores
b. If there were a headquarters and satellite offices, it
probably would be the case that each satellite office would
be considered a separate worksite.
2. Applies to all public agencies
3. Applies to public and private elementary and secondary schools
ii. Employee
1. Must have worked for employer for a full year.
2. Must prove that he or she or a covered family member suffers from
a serious medical condition (other than childbirth or adoption).
c. Other Countries – Better family leave policies than the US. See pages 211–13.
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d. Dual Discrimination – Court may not allow dual claims under Title VII for, e.g.,
a black woman. See page 213.
e. Same-Sex Partners – Individual can use FMLA leave to care for the child of his
or her same-sex partner.
f. 29 C.F.R. § 825.100 – FMLA
(a) The Family and Medical Leave Act of 1993, as amended, (FMLA or
Act) allows eligible employees of a covered employer to take jobprotected, unpaid leave, or to substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 12 workweeks in
any 12 months [to engage in specified family caretaking]. . . . In certain
cases, FMLA leave may be taken on an intermittent basis rather than all at
once, or the employee may work a part-time schedule.
(b) An employee on FMLA leave is also entitled to have health benefits
maintained while on leave as if the employee had continued to work
instead of taking the leave.
(c) An employee generally has a right to return to the same position or an
equivalent position with equivalent pay, benefits, and working conditions
at the conclusion of the leave. The taking of FMLA leave cannot result in
the loss of any benefit that accrued prior to the start of the leave.
g. 29 C.F.R. § 825.101 – Purpose of the Act (Pages 209–10)
(a) The Act is intended to balance the demands of the workplace with the
needs of families, to promote the stability and economic security of
families, and to promote national interests in preserving family integrity.
(b) The FMLA was predicated on two fundamental concerns—the needs
of the American workforce, and the development of high-performance
organizations.
(c) The FMLA is both intended and expected to benefit employers as well
as their employees.
h. 29 C.F.R § 825.122 – Definitions of Spouse, Parent, Son or Daughter
(b) Spouse. Spouse means a husband or wife as defined or recognized
under State law for purposes of marriage in the State where the employee
resides, including common law marriage in States where it is recognized.
(c) Parent. Parent means a biological, adoptive, step or foster father or
mother, or any other individual who stood in loco parentis to the employee
when the employee was a son or daughter as defined in paragraph (d) of
this section. This term does not include parents “in law.”
(d) Son or daughter. For purposes of FMLA leave taken for birth or
adoption, or to care for a family member with a serious health condition,
son or daughter means a biological, adopted, or foster child, a stepchild, a
legal ward, or a child of a person standing in loco parentis . . . .
6. Pregnancy Discrimination Act
a. Part of Title VII – Pregnancy discrimination is sex discrimination.
b. Prohibits employers from treating pregnant employees differently from nonpregnant employees.
c. Return-to-work protections are similar to those in the FMLA.
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d. 42 U.S.C. § 2000e(k) – “The terms ‘because of sex’ or ‘on the basis of sex;
include, but are not limited to, because of or on the basis of pregnancy, childbirth,
or related medical conditions; and women affected by pregnancy, childbirth, or
related medical conditions shall be treated the same for all employment-related
purposes, including receipt of benefits under fringe benefit programs . . . . This
subsection shall not require an employer to pay for health insurance benefits for
abortion, except where the life of the mother would be endangered if the fetus
were carried to term, or except where medical complications have arisen from an
abortion.
7. Discrimination Based on Family Responsibilities
a. Definition – Family responsibilities discrimination occurs when an employee
suffers an adverse employment action based on unexamined biases about how
workers with family caregiving responsibilities will or should act, without regard
to the workers’ actual performance or preferences.
b. Sex Stereotyping (EEOC Guidelines)
i. Employees can prevail in a sex discrimination action based on stereotypes
without showing that other similarly situated employees were treated
differently.
ii. The stereotypes need to be tied to gender in order to be actionable under
the federal sex discrimination law.
c. Statutes
i. No federal statute expressly prohibits discrimination based on family
responsibilities.
ii. Typical Claims – Title VII (and state counterpart); FMLA (and state
counterpart); common law claims, such as wrongful discharge, IIED,
defamation, and breach of contract
Spousal Obligations
1. General Support Obligation
a. Common Law
i. Husband was required to support wife.
ii. Husband had right to wife’s “domestic services,” i.e., household, sexual,
etc.
iii. Wife’s Claims
1. Bring claim against husband for support.
2. Use necessaries doctrine to induce third parties to extend credit.
b. McGuire v. McGuire (Neb. 1953)
i. Facts – Action in equity by wife to recover suitable maintenance and
support money.
ii. Earle v. Earle
1. Support Obligation Based on Lifestyle – “It is the duty of the
husband to provide his family with support and means of living—
the style of support, requisite lodging, food, clothing, etc., to be
such as fit his means, position, and station in life—and for this
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purpose the wife has generally the right to use his credit for the
purchase of necessaries.”
a. Family’s station in life determines necessaries.
b. Who determines the family’s station in life? (A: husband)
c. Merchants, i.e., third parties, should be able to rely on the
husband to pay for whatever necessaries his wife might
purchase.
2. Wife’s Claim w/o Divorce – “If a wife is abandoned by her
husband, without means of support, a bill in equity will lie to
compel the husband to support the wife without asking for a decree
of divorce.”
iii. Polster v. Polster
1. Wife’s Condition Is Unendurable – “Where the husband’s
conduct is such as to render the wife’s condition unendurable in his
home she may leave the home without forfeiting her right to
maintain an action for maintenance against him.”
2. Constructive Abandonment – “Where the husband has been
guilty both of maltreatment of his wife and refusal to support her,
the wife does not forfeit her right of action for maintenance merely
because she lives under the same roof with her husband, if she
lives separate and apart from him; and that while there may not be
an abandonment of the wife by the husband from a physical point
of view, there is an abandonment of the obligation resting upon the
husband to provide for the support of the wife.”
iv. Living Separate and Apart Requirement – “It is an indispensable
requirement of a maintenance statute that the wife should be living
separate and apart from her husband without her fault, and that therefore, a
wife living in the same house with her husband, occupying a different
room and eating at a different time, was not entitled to separate
maintenance.”
1. Spouse MUST leave when financial dispute arises.
2. Remaining is a form of IMPLICIT CONSENT.
v. Policy – Appellate court held that the court cannot structure the family
finances more deeply.
1. Invading the privacy of the family/home.
2. Marriages operate behind closed doors.
3. If the court gave the wife relief, another wife soon would argue
that she was the only woman on the block without a dinette set and
that the court should order her husband to buy her one.
2. Necessaries Doctrine
a. Definition – To compensate her for legal disabilities during the marriage, the wife
may use her husband’s credit to buy necessaries from a third party using her
husband’s credit. If the husband refused to pay, the creditor could sue him for the
debt.
i. Necessaries – Depended on:
1. Family’s social position; and
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2. Husband’s ability to pay
3.  No bright-line rule. Food, clothing, and shelter do not
necessarily qualify.
ii. When the sale occurred, the wife had to be:
1. Cohabitating with husband; or
2. Living apart through no fault of her own
iii. Creditor must rely on husband’s, not wife’s, credit.
iv. Merchant must sue husband and prevail to collect the debt.
b. Most states retain the doctrine.
c. Today  Gender neutral
d. Two Approaches
i. One spouse is primarily responsible for payment of his or her own debts
for necessaries before a third party may seek payment from other spouse.
Cheshire Med. Ctr. v. Holbrook (N.H. 1995); Pa.
ii. Spouses are jointly and severally liable for all debts for necessaries. Ill.
3. Spousal Property Distribution upon Death
a. Community Property States – Regardless of what the will says, surviving spouse
is entitled to one-half of martial property.
b. Common Law States – Surviving spouse may be left out of the will.
i. Old Protections (Pages 224–25)
1. Dower
2. Curtesy
3.  No longer extant in most jurisdiction.
ii. Elective Share
1. Surviving spouse receives one-third or one-half of deceased
spouse’s estate.
2. Statutory protection
3. Enacted in almost all common law states.
4. Applies to all property, not just real estate.
5. Gender neutral
6. Provides for full ownership, not just a life estate.
c. Children
i. Disinheritance – Except in Louisiana, a parent can disinherit a marital or
nonmarital child for any reason—or no reason—at all, regardless of the
child’s age or financial need.
ii. Majority Rule When Parent Dies Testate (with a Will)
1. A parent can disinherit a minor or adult child for any reason—or
no reason—at all, regardless of the child’s age or financial need;
2. A legally enforceable obligation to pay child support must be
satisfied before distribution of assets under the will; and
3. A child support order survives the parent’s death and is not
extinguished by it.
iii. Minority Rule (Louisiana)
1. Parent may NOT disinherit a minor or adult child, except for “just
cause.”
2. “Just Cause” – Child:
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a. Attempted to murder or commit an act of violence against
the parent;
b. Refused after reaching majority to contact the parent for
two years;
c. Married while a minor without the parent’s consent; or
d. Convicted of a crime carrying the death penalty or life
imprisonment
iv. Equal Protection – Requires equal treatment of marital and nonmarital
children.
v. Intestacy Law – Children take equally without regard to age or other
condition.
d. Spouse Dies Intestate (Without a Will)
i. Surviving spouse receives a substantial share, or all, of the estate.
ii. Application
1. Majority – Intestacy law applies only to spouses.
2. Minority – Intestacy law applies to surviving partners of same-sex
couples possessing another legally recognized status, e.g., civil
union or domestic partnership.
Medical Decision-Making
1. Right of Married Women to Control Their Pregnancies
a. Planned Parenthood of Southwestern Penn. v. Casey (1992)
i. Facts – Concerned PA law requiring a 24-hour waiting period, detailed
information about the fetus and procedure, and official reporting and
recording; spousal consent; and parental consent before performing an
abortion.
ii. Holding (O’Connor, Kennedy, Souter)
1. Plurality Opinion
2. Reaffirmed Roe. Explicitly stated right to an abortion.
a. Fundamental Rights – Rights to personal dignity and
autonomy; and to personal decisions relating to family and
parenthood and bodily integrity.
i. Protected although not mentioned in Constitution 
same for abortion.
b. Right to abortion is particular to women (biology).
3. Trimester Framework – Overruled
a. Viability – Retained
i. Before viability  state may not ban.
ii. After viability  state may ban except to protect
life or health of mother.
4. Undue Burden Test
a. Between rational-basis and strict scrutiny.
b. “A finding of an undue burden is a shorthand for the
conclusion that a state regulation has the purpose or effect
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of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus.”
c. “To promote the State's profound interest in potential life,
throughout pregnancy the State may take measures to
ensure that the woman's choice is informed, and measures
designed to advance this interest will not be invalidated as
long as their purpose is to persuade the woman to choose
childbirth over abortion. These measures must not be an
undue burden on the right.”
d. Undue Burden – Regulation whose purpose or effect is to
place a substantial obstacle in the way of a woman seeking
an abortion.
i. Scalia – Standard-less; invites judicial activism.
1. Correct that some judicial discretion is at
play.
2. Counterarguments
a. Will become clearer over time.
b. Impossible to remove all judicial
discretion.
5. Governing Law
a. Undue Burden Test – Most narrow position with which five
justices agreed (or would have agreed).
6. 24-Hour Waiting Period
a. Upheld
b. Not an undue burden; just makes process take longer.
c. Counterarguments – Purpose is to discourage abortions, not
provide informed consent; normal informed consent does
not require 24-hour waiting period.
7. Spousal Notification
a. Invalidated – Gives husbands dominion over wives; may
prevent significant number of women from getting
abortions.
b. Section 3209’s husband notification provision constitutes
an undue burden and is therefore invalid. A significant
number of women will likely be prevented from obtaining
an abortion just as surely as if Pennsylvania had outlawed
the procedure entirely. The fact that § 3209 may affect
fewer than ONE PERCENT of women seeking abortions
does not save it from facial invalidity, since the proper
focus of constitutional inquiry is the group for whom the
law is a restriction, not the group for whom it is irrelevant.
Furthermore, it cannot be claimed that the father’s interest
in the fetus’ welfare is equal to the mother’s protected
liberty, since it is an inescapable biological fact that state
regulation with respect to the fetus will have a far greater
impact on the pregnant woman’s bodily integrity than it
25
will on the husband. Section 3209 embodies a view of
marriage consonant with the common-law status of married
women but REPUGNANT TO THIS COURT’S PRESENT
UNDERSTANDING OF MARRIAGE and of the nature of
the rights secured by the Constitution.
c. Two Accepted Interests for Spousal Notification
i. Protect life of fetus; and
ii. Promote communication in marriages
d. Problems with Spousal Notification
i. Difficulty and inconsistency of reporting such
incidents;
ii. Law enforcement might not take the original report
seriously;
iii. Spousal assault often is serial;
iv. Retaliation is a real possibility’
v. Husband might disclose a woman’s intention to
have an abortion to her community;
vi. Husbands have made arguments about custody
based on a woman’s abortion history;
vii. Psychological harm;
viii. Harm threatened to children;
ix. A husband may deprive his wife of necessary
finances;
x. Furthermore, pregnancy often is a flash point in
volatile relationships.
e. Dissent
i. This is just notification. What’s the big deal?
ii. Denominator – All married, pregnant women.
8. Stare Decisis
a. Sometimes, it is better to settle the law than to get it right.
b. Important so that people know what rights they have and
how to exercise them.
i. Court is concerned with the reliance on Roe of the
generation of women growing up in its wake.
c. Overturned Plessy and Lochner because their factual
underpinnings had eroded.
d. Stewart in Griswold and Roe – Once a matter has been
decided, the debate is over. The right to an abortion flows
inexorably from the right recognized in Griswold.
9. Legitimacy of Court
a. Affirms Roe partly to avoid back-and-forth. Public would
conclude that all the Court does is politics, and its
legitimacy would be severely undermined.
iii. Stevens, Concurring in Part, Dissenting in Part
1. Strict Scrutiny – More protection for right to abortion.
2. Affirm trimester framework.
26
iv. Blackmun, Concurring in Part, Dissenting in Part
1. [Same]
v. Rehnquist, Dissenting
1. Rational-Basis
2. Overrule Roe.
3. Stare Decisis
a. Less important in constitutional law cases.
b. Court is effectively the only actor that can influence
constitutional law because it is so difficult to amend the
Constitution, etc. Thus, the Court is interested in getting
constitutional law cases right and should be more willing to
overturn erroneous decisions in constitutional contexts.
vi. Scalia, Dissenting
1. [Same]
2. Legitimacy of Court
a. Creating “desirable” rights not in Constitution poses a great
danger of undermining legitimacy of Court.
i. Would mark a return to Barron v. Baltimore and
The Slaughterhouse Cases.
b. Abortion is a political issue that people are debating, and
the Court should not make up language (i.e., undue burden
test) and put its thumb on one side of the scale.
b. Ayotte v. Planned Parenthood of Northern New England (U.S. 2006)
i. Although “we have long upheld state parental involvement statutes,” such
statutes must provide for the “very small percentage of cases [in which]
pregnant minors, like adult women, need immediate abortions to avert
serious and often irreversible damage to their health.”
c. Stenberg v. Carhart (U.S. 2000)
i. Court “expressly held that a statute banning intact D&E was
unconstitutional in part because it lacked a health exception.”
d. Gonzalez v. Carhart (U.S. 2007)
i. Facts – Concerned federal law prohibiting intact D&E (“partial-birth
abortion”) with no exception for the life or health of the mother.
ii. Holding (Kennedy)
1. DPC of 5th Amendment because it is federal law.
2. Test – Undue Burden Test
a. Applied deferentially, like rational-basis.
b. Not an undue burden for a “large fraction of women.”
3. Purported Government Interests
a. Respect for human life.
i. Does not save any fetuses because there are other
methods of late-term abortions available. Advances
government’s interest in potential life only if
unavailability of intact D&E would prevent women
from obtaining abortions.
27
ii. Other late-term abortion procedures involve fetus
dismemberment.
b. Protecting integrity and ethics of medical community.
c. Ensuring that “so grave a choice is well-informed.”
i. Does not inform because intact D&E is banned
regardless of information given.
d. Protecting health of mother, including from adverse
psychological effects of a regrettable abortion.
i. Intact D&E is only option for many women.
e. PRINCIPLE STATE INTEREST – Protecting actual life.
4. Beginning of Life
a. Intact D&E is a second-trimester procedure, i.e., before
viability. So if state’s primary interest is protecting actual
life and it has banned this second-trimester procedure,
Court possibly is saying that actual life may begin before
viability.
i. First step to overruling Roe.
b. Court may be saying that state has an interest in protecting
the culture of life—whether or not a pre-viability fetus is an
actual life. By banning intact D&E, state is protecting the
culture of life.
i. Short leap to banning other abortion procedures.
5. Room for as-applied challenge, i.e., woman arguing that ban on
intact D&E is an undue burden for her.
iii. Thomas, Concurring
1. No right to abortion in Constitution.
iv. Ginsberg, Dissenting
1. Medical uncertainty  law may pose an undue burden.
2. Stenberg v. Carhart (2000) – Invalidated state intact D&E ban for
lacking exception for health of mother.
3. Majority relies on baseless and antiquated notions of women’s
rights and social role.
4. As-applied challenge will not help a woman needing an abortion
now.
2. Autonomy of Teenage Girls to Make Medical Decisions
a. Rights of Minors v. Rights of Adults – “There are three reasons justifying the
conclusion that the constitutional rights of children cannot be equated with those
of adults:
i. “The peculiar vulnerability of children;
ii. “Their inability to make critical decisions in an informed, mature manner;
and
iii. “The importance of the guiding role of parents in the upbringing of their
children.” Bellotti v. Baird (U.S. 1979).
b. Parental Consent and Notification for Teens
28
i. Statutes must include a JUDICIAL BYPASS PROCEDURE, enabling a
pregnant minor to go directly to court to obtain permission for an abortion
without first consulting with or notifying her parents.
ii. If the minor can persuade the court that she is “mature enough and well
enough informed to make her abortion decision, in consultation with her
physician, independently of her parents’ wishes,” or that an abortion is in
her best interests, the court must authorize the abortion. Bellotti.
iii.  Important safeguard for teens. Abusive or extremely religious parents.
3. Delegation of Medical Decision-Making for Incompetent Adults
a. Majority Rule – Person is incapacitated.  Spouse is default medical decision
maker, unless the person previously designated an alternative surrogate.
b. Living Will – Written document that states a person’s wishes regarding lifesustaining medical care in the event that he or she becomes incompetent.
c. Health Care Proxy (Power of Attorney) – Written document appointing another
person to make health care decisions for the signer in the event that the signer
becomes incapacitated.
i. Proxy must implement the patient’s wishes as reflected in (1) a living will
or (2) through prior expressions or other indicia of the patient’s values and
preferences.
d. Disputes as to Living Wills and Health Care Proxies – Some medical centers
use ADR or specialists in bioethics.
e. Family Consent Laws – Set forth a hierarchical scheme of default health care
decision makers, usually family members.
i. About 40 states
ii. Spouse  adult children  parents  adult siblings  other blood
relatives
iii. Close Friends – May serve as surrogates in some states, but usually placed
near the bottom of the hierarchy.
iv. Courts may appoint specific guardians.
4. Same-Sex Partners (Pages 243–44)
a. Many states confer medical decision-making power on partners in same-sex
relationships when the relationship has some legal recognition.
b. Best Practice – Same-sex partners should execute health care proxies naming
their partners as their agents.
c. Hospital Visitation Rules – Page 244
Federal Law and Family Finances
1. Tax Treatment
a. Marriage Penalty (Pages 255–56) – If two people marry, they may ratchet their
combined income into a higher tax bracket, and they may pay more in taxes.
Unmarried people therefore may pay less.
b. Tax system is set up for a single-breadwinner model, which is unrealistic for
almost everyone in the United States today.
c. Earned Income Tax Credit (Page 256)
29
i. Antipoverty program that provides a fully refundable tax credit worth a
percentage of earnings on a sliding scale that declines and is phased out
once income reaches a certain level.
ii. Very important for the working poor.
iii. Not related to marital status.
2. Joint and Several Liability for Tax Deficiencies
a. Filing a joint income tax return exposes spouses to joint and several liability on
tax deficiencies.
b. Innocent Spouse Doctrine
i. I.R.C. § 6015(b).
ii. Elements – Must prove:
1. Spouse neither knew nor had reason to know of the understatement
on the tax return; and
2. When all facts and circumstances are taken into account, it would
be inequitable to hold spouse liable for the unpaid taxes, interest,
and penalties.
a. Courts examine whether the innocent spouse significantly
benefitted from the understatement of tax.
iii. Relief – Innocent spouse must prove every element.
iv. Very unlikely to be awarded “innocent spouse” status.
c. Proportionate Relief
i. I.R.C. § 6015(c).
ii. For taxpayers who are divorced, legally separated, or no longer living
together.
iii. Limits liability to allocable share of tax deficiency.
iv. NOT available if spouse had actual knowledge of the understatement when
he or she signed the joint return.
d. Equitable Relief
i. I.R.C. § 6015(f).
ii. For taxpayers who CANNOT get relief under I.R.C. § 6015(b) or (c).
iii. Relief available if “taking into account all the facts and circumstances, it is
inequitable to hold the individual liable for any unpaid tax or any
deficiency (or any portion of either).”
3. Bankruptcy
a. Pages 257–58
4. Joint Liability for Debts
a. Each spouse is fully liable for joint debts contracted during the marriage.
b. Liability continues during the marriage and after it ends.
c. One spouse runs up bills based on credit that was established jointly.  Each
spouse may be individually liable for the entire amount.
d. Each spouse may be responsible for expenses construed as necessary for family
support.
Nonmarital Families
Unmarried Couples: Cohabitation
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1. Generally
a. Increasing public tolerance of cohabitating couples
b. Almost ¼ of all children are born into cohabitating households.
c. More than 50 % of cohabitation relationships, whether or not they culminate in
marriage, end in separation within five years.
d. NOT tied to a heightened risk of divorce.
e. Laws
i. Relatively few applicable laws
ii. Recent legal changes
iii. No uniformity among states.
2. Intent (Contract-Based Agreements)
a. Marvin v. Marvin (Cal. 1976)
i. Contract Rule – “Courts should enforce express contracts between
nonmarital partners except to the extent that the contract is explicitly
founded on the consideration of meretricious sexual services.”
1. “The fact that a man and woman live together without marriage,
and engage in a sexual relationship, does not in itself invalidate
agreements between them relating to their earnings, property, or
expenses. Neither is such an agreement invalid merely because the
parties may have contemplated the creation or continuation of a
nonmarital relationship when they entered into it. Agreements
between nonmarital partners fail only to the extent that they rest
upon a consideration of meretricious sexual services.”
2. Court looks to consideration underlying the agreement, not other
uncertain tests.
a. Fact-specific inquiry: direct evidence; circumstantial
evidence about how the parties live and treat each other;
etc.
ii. Severability – “A contract between nonmarital partners, even if expressly
made in contemplation of a common living arrangement, is invalid only if
sexual acts form an inseparable part of the consideration for the
agreement. In sum, a court will not enforce a contract for the pooling of
property and earnings if it is explicitly and inseparably based upon
services as a paramour. However, even if sexual services are part of the
contractual consideration, any severable portion of the contract supported
by independent consideration will still be enforced.”
1. Sex is not the only aspect of the relationship that causes
cohabitation.
2. Withholding of sex does not necessarily abrogate other terms of
the agreement concerning support that are not tied to sex.
iii. Summary of Contract Rules – “Adults who voluntarily live together and
engage in sexual relations are nonetheless as competent as any other
persons to contract respecting their earnings and property rights. Of
course, they cannot lawfully contract to pay for the performance of sexual
services, for such a contract is, in essence, an agreement for prostitution
31
and unlawful for that reason. But they may agree to pool their earnings
and to hold all property acquired during the relationship in accord with the
law governing community property; conversely they may agree that each
partner’s earnings and the property acquired from those earnings remains
the separate property of the earning partner. So long as the agreement
does not rest upon illicit meretricious consideration, the parties may order
their economic affairs as they choose, and no policy precludes the courts
from enforcing such agreements.”
iv. Remedies Without Express Contract – “In the absence of an express
agreement, the courts may look to a variety of other remedies in order to
protect the parties’ lawful expectations.”
1. Implied Contract – “Courts may inquire into the conduct of the
parties to determine whether that conduct demonstrates an implied
contract or implied agreement of partnership or joint venture, or
some other tacit understanding between the parties.”
a. Contract implied-in-fact
b. Contract implied-in-law
2. Constructive or Resulting Trust (Page 267) – “The courts may,
when appropriate, employ principles of constructive trust or
resulting trust.”
3. Quantum Meruit – “Finally, a nonmarital partner may recover in
quantum meruit for the reasonable value of household services
rendered less the reasonable value of support received if the
nonmarital partner can show that he rendered services with the
expectation of monetary reward.”
4. Restitution (Unjust Enrichment)
5.  DO NOT FORGET EXPRESS CONTRACT CLAIMS.
v. Policy (Old Argument) – Courts gave rights to married persons—not nonmarried persons—because they wanted to encourage marriage. Giving
support rights to non-married persons would undermine this rationale.
1. “The structure of society itself largely depends upon the institution
of marriage . . . . The joining of the man and woman in marriage is
at once the most socially productive and individually fulfilling
relationship that one can enjoy in the course of a lifetime.”
2. Husband argued that he did not want to expose himself to these
support obligations, and that is why he elected not to marry.
b. Enforceability
i. No consideration based on sexual services  Courts enforce express
contracts between cohabitants.
1. Two states require memorialization in writing.
c. Devaney v. L’Esperance (N.J. 2008)
i. Rule – Cohabitation is not necessary for a woman to collect support, but a
marriage-type relationship is required, e.g., dating, sexual relations,
companionship, etc. The trappings of marriage are required if there is no
cohabitation.
32
1. Big outlier. Only state to impose support obligations without
cohabitation.
2. Policy – Engagement is like a letter of intent. Parties intend at
some point in the future to marry each other. But engagement also
conveys that the parties are not married at present.
3. Determining Property Rights in the Absence of an Agreement
a. ALI Recommendations – Pages 276–78
i. Deference to State Law – State law puts people on notice in their local
jurisdictions.
ii. § 6.03(7)(e) – “The extent to which the relationship wrought change in the
life of either or both parties.” If there is a child, the date of change is read
back to the date of conception.
b. Common Law
i. Some courts have found that informal, marriage-style relationships can
give rise to property or support rights. Olver v. Fowler (Wash. 2007).
ii. May apply to same-sex couples. Vasquez v. Hawthorne (Wash. 2001).
c. Fleming v. Spencer (Wash. 2002)
i. Mixed Question of Law and Fact – “Determining whether a meretricious
relationship exists is a mixed question of law and fact.”
ii. Meretricious Relationship – “A meretricious relationship is a stable,
marital-like relationship in which both parties cohabit knowing that a
lawful marriage does not exist. To determine whether such a relationship
exists, courts look at five factors: (1) continuous cohabitation; (2) duration
of the relationship; (3) purpose of the relationship; (4) pooling of
resources; and (5) intent of the parties. These factors are neither exclusive
nor hypertechnical but merely a means to examine all relevant evidence.
Ultimately, a court decides whether a meretricious relationship exists on a
case-by-case basis.”
1. Continuous Cohabitation – People can live apart but still maintain
a committed relationship, e.g., long-distance relationships.
2. Duration of Relationship – The clock does not begin running when
competency to marry exists, i.e., a committed relationship can exist
before competency to marry exists.
3. Purpose of Relationship – Long-term commitment and support
4. Pooling of Resources – Financial or otherwise
5. Intent of Parties – Is there a committed relationship despite the
decision not to marry? The absence of marriage does not always
affirmatively indicate the intent not to commit.
iii. Capacity to Marry Is Irrelevant – “Equitable claims based on a
meretricious relationship do not depend on whether the parties can legally
marry each other.”
iv. Property Interests – “After determining that a meretricious relationship
exists, the trial court evaluates the interest each party has in the property
acquired during the relationship. The appellate court reviews the trial
court’s decision on this matter under the abuse of discretion standard.
There is a rebuttable presumption that property acquired during such a
33
relationship belongs to both parties. A party may rebut this presumption
with evidence demonstrating that he acquired the property in question with
funds that would otherwise be characterized as separate property if he was
married. Although a party may have taken sole title to the property, that
fact alone does not rebut the presumption of common ownership.”
v. Property Distribution – “An appellate court reviews the trial court’s
distribution of property at the end of a meretricious relationship under the
abuse of discretion standard. In making the distribution, the trial court
should prevent one party from being unjustly enriched and may look to the
dissolution statute for guidance.”
d. Property Rights Following Death of Partner in Meretricious Relationship –
Property rights survive the death of one or both partners. Olver v. Fowler (Wash.
2007).
e. Advising a Client
i. First Question – What is your goal/intention? Do you want to have the
trappings of a marriage without a marriage, or do you want to protect your
assets from your partner?
ii. If the latter, keep your finances separate; do not make any statements—
ever—that you “want to be together forever”; do things that indicate an
arms-length, although close, relationship; do not allow your partner to pay
for half of your common residence; etc.
4. Other Incidents of Nonmarital Cohabitation
a. Criminal Prohibitions
i. Few states still criminalize fornication or cohabitation.
ii. Adultery – Illegal in slightly less than half of the states.
b. Tax Treatment
i. Nonmarital cohabitants must file as single persons. Cannot file jointly.
Not considered to be married.
ii. Cohabitant generally cannot be claimed as a dependent, but it is possible.
See pages 284–85.
5. Domestic Partnerships and Civil Unions
a. Civil Unions
i. States that recognize out-of-state marriages may not recognize out-of-state
civil unions.
ii. Limited to same-sex couples in some states.
iii. Might choose a civil union so that the parties do not have to merge their
finances.
b. Domestic Partnerships
i. Varying degrees of protection—not as much as civil unions.
ii. Couples need only fill out a form. No solemnization ceremony is
required.
iii. States that recognize out-of-state marriages may not recognize out-of-state
domestic partnerships.
c. Designated Beneficiary Agreement – See page 286.
Establishing Parenthood
34
Common and Statutory Law
1. History
a. Pages 288–89
2. Majority Rule
a. Marital presumption, i.e., married husband and wife are presumed to be the
parents of a child born into the marriage, exists in some form.
b. Husband, wife, and biological father have the opportunity to rebut the
presumption.
3. Determining Paternity
a. Biological father and mother are NOT married.  State laws establish how
nonmarital fathers may establish paternity.
b. Constitutional Framework
i. Stanley v. Illinois (U.S. 1972)
1. Nonmarital fathers must receive procedural justice concerning
their parental rights.
ii. Quilloin v. Walcott (U.S. 1978)
1. Stanley did not require the state to grant the absent biological
father a veto when the marital stepfather attempted to adopt the
child because the biological father had not shouldered significant
responsibility for the child’s upbringing.
iii. Caban v. Mohammed (U.S. 1979)
1. Biological father could veto the marital stepfather from adopting
his two children because he had a “substantial relationship” with
them.
iv. Lehr v. Robertson (U.S. 1983)
1. Biological relationship between a father and child does NOT
warrant constitutional protection unless the father has developed a
substantial relationship with the child.
v. Michael H. v. Gerald D. (U.S. 1989)
1. Statute at Issue
a. Goal – Ensure that children had two parents; that a child
born into a marriage was not cast out by a father that
questioned paternity.
b. Two-Year Time Frame for Challenge – Concern for child;
concern about evidence going stale.
2. Fundamental Liberty Analysis (Substantive Due Process)
a. Must be both “fundamental” and “an interest traditionally
protected by our society.”
b. “Due Process Clause affords only those protections so
rooted in the traditions and conscience of the American
people as to be ranked as fundamental.”
c.  Contrast with Brennan’s broader approach in n.6 on
pages 297–98.
35
d.  Scalia defines the liberty interest at issue very narrowly
as that of an unmarried, biological father to claim paternity
of a child that was born into an existing, intact marriage
and has not been denied by the mother’s husband.
e.  Scalia’s analysis pivots on the unitary family, which
includes marital families and unmarried parents and their
children. (Page 296)
3. Preference for Marital Father – “Where, however, the child is
born into an extant marital family, the natural father’s unique
opportunity conflicts with the similarly unique opportunity of the
husband of the marriage; and it is not unconstitutional for the State
to give categorical preference to the latter.”
a. “The claim that a State must recognize multiple fatherhood
has no support in the history or traditions of this country.”
This is not really true. Think of widows and widowers;
stepfamilies; etc.
b. BUT Michael H. inserting himself in this matter will be
very disruptive to the family unit.
4. Child’s Substantive Due Process Claim – “Even if we were to
construe Victoria’s argument as forwarding the lesser proposition
that, whatever her status vis-a-vis Gerald, she has a liberty interest
in maintaining a filial relationship with her natural father, Michael,
we find that, at best, her claim is the obverse of Michael’s and fails
for the same reasons.”
5. O’Connor, Concurring in Part
a. No single mode of historical analysis, such as that adopted
by the plurality, should be imposed when identifying due
process liberty interests.
b. Stevens, Concurring in Judgment
i. “Because I am convinced that the trial judge had the
authority under state law both to hear Michael’s
plea for visitation rights and to grant him such
rights if Victoria’s best interests so warranted, I am
satisfied that the California statutory scheme is
consistent with the Due Process Clause of the
Fourteenth Amendment.”
c. Brennan, Dissenting
i. A natural father’s biological link to his child,
combined with a substantial parent-child
relationship maintained between them, guarantees
the natural father a liberty interest in his relationship
with the child
ii. The presumption statute, as interpreted by the
California courts, not only prevented the putative
father from establishing his paternity but also
36
prevented him from obtaining visitation rights as a
nonparent.
iii. The flaw in the statute was the kind that procedural
due process was designed to correct.
iv. The presumption statute violated the putative
father’s procedural due process rights, because
California’s purported interest in protecting
matrimonial privacy did not measure up to the
interest of the putative father and the child in
maintaining their relationship with each other and
thus did not justify denying the putative father a
hearing before terminating his rights.
v.  Court is breaking with its past paternal-rights
cases. Marriage has never been the pivot point in
paternal-rights cases.
vi.  Liberty encompasses a variety of preferences.
Scalia has a cramped notion of the family.
vii.  “The atmosphere surrounding today’s decision is
one of make-believe.” These sorts of situations
occur every day.
d. White, Dissenting
i. An unwed father who has demonstrated a sufficient
commitment to his paternity by way of personal,
financial, or custodial responsibilities has a
protected liberty interest in a relationship with his
child.
ii. The putative father in this case established such a
liberty interest.
iii. The presumption statute was not justified by
California’s purported interests in protecting a child
from the social stigma of illegitimacy or preserving
the sanctity of the marital unit.
iv. The statute, as applied, violated the putative father’s
procedural due process rights, because it denied him
any meaningful opportunity to be heard in order to
establish his paternity and develop a relationship
with the child.
vi. Protecting a Nonmartial Father’s Rights – After Michael H. “a
biological father does protect his paternity by developing a social
relationship with his child, but this step demands the creation of a family,
a step itself depending upon an appropriate relationship between the man
and his child’s mother.” The father must have established a marriage or
marriage-like relationship with the mother.
vii. Child’s Interests in Identifying Biological Father
1. Information about medical history and genetic heritage
2. Relationship might benefit child in various ways.
37
3.  Society’s Interest – Child receives adequate financial support
from the father, thereby decreasing the need for public assistance.
viii. Dual Paternity – Louisiana recognizes that a child may have (1) a
biological father and (2) a legal father. Smith v. Cole (La. 1989).
c. Voluntary Paternity Registration Systems
i. States have different systems without effect in other states.
ii. General constitutionality upheld by Lehr.
iii. Burden on a man who is or believes that he is a child’s father to register
with a state agency if he wishes to claim paternity and receive notice of
any prospective adoption.
iv. After receiving notice, the man may seek to establish paternity and assert
his right to veto the adoption.
v. Time Frame to Register – Varies by state.
vi. Lack of notice about registry, pregnancy, or birth typically does not
excuse noncompliance.
vii.  Federal Law – States must establish procedures for a “simple civil
process for voluntarily acknowledging paternity,” including hospital-based
systems. 42 U.S.C. § 666(a)(5).
d. Uniform Parentage Act
i. Pages 309–11
1. First UPA (1973) defined parentage very liberally so as to give as
many children as possible two legal parents.
a. Why? A: Inheritance; child’s emotional development; care of
child if one parent dies; broader range of relatives to provide
financial and emotional support; Survivor’s benefits; Veteran’s
benefits; potential eligibility for college; etc.
2. In 2002, the UPA was substantially revised in light of advances in
reproductive technology, same-sex relationships, and the increasing
number of children born outside marriages.
Artificial Reproductive Technology: Determining Maternity
1. Johnson v. Calvert (Cal. 1993)
a. Facts – A childless married couple and another woman entered into a contract
providing that an embryo created by the gametes of the couple would be
implanted in the other woman’s uterus, that the child born would be the couple’s
child, and that the surrogate mother would relinquish all parental rights to the
child, in return for which the couple would pay the surrogate a specified fee and
buy her a life insurance policy. The surrogate became pregnant, but relations
between her and the couple deteriorated. After the surrogate made a demand
suggesting she might refuse to surrender the child, the couple sued for a
declaration they were the legal parents of the unborn child, and the surrogate then
filed her own action to be declared the mother.
b. Legal Dispute – Under the UPA, each woman satisfies one definition of “mother,”
but the court cannot say that there are two mothers in this context.
c. UPA – Parent-Child Relationship
38
i. The “parent and child relationship” means “the legal relationship existing
between a child and his natural or adoptive parents incident to which the
law confers or imposes rights, privileges, duties, and obligations. It
includes the mother and child relationship and the father and child
relationship.”
ii. “The parent and child relationship extends equally to every child and to
every parent, regardless of the marital status of the parents.”
iii. The “parent and child relationship” is thus a legal relationship
encompassing two kinds of parents, “natural” and “adoptive.”
iv.  “Although the UPA recognizes both genetic consanguinity and giving
birth as means of establishing a mother and child relationship, when the
two means do not coincide in one woman, she who intended to procreate
the child—that is, she who INTENDED TO BRING ABOUT THE BIRTH
OF A CHILD THAT SHE INTENDED TO RAISE AS HER OWN—is the
natural mother under California law.”
d. True Egg Donation – “In a true ‘egg donation’ situation, where a woman
gestates and gives birth to a child formed from the egg of another woman with the
intent to raise the child as her own, the birth mother is the natural mother under
California law.”
e. Holding – Genetic parents were the natural parents of a child gestated by
appellant surrogate.
f. Kennard, Dissenting
i. Disagrees with the plurality’s intent test and states that the analysis should
focus on family law.
ii. Concentrates on which set of parents would be best able to raise the child.
1. If the court were always to make this decision, it would destroy the
institution of surrogacy. There would be no contracting regarding
these issues; there would be no certainty.
2. Surrogacy Policy – Is it exploitative?
a. White, professional biological parents and a low-income, black surrogate mother.
b. It is important for the surrogate mother to be fully informed about what she is
doing. (But then concerns about a paternalistic state arise.)
c. Liberty and right of contract versus regulation and possible paternalism
d. Did the surrogate intend to have a lifelong relationship with the child, including
support obligations, etc.?
e. Does the involvement of a surrogate post-birth threaten the unitary family?
3. Modern Trend – Shift from a one-mother/one-father paradigm to a more open twoparent paradigm. Builds on the intent, biology, and contract approaches to determining
parenthood.
4. K.M. v. E.G. (Cal. 2005)
a. Facts – An egg donor sought to establish a parental relationship with twin fiveyear-old girls born to the gestational mother, the donor’s former partner. When
the children were born, the gestational mother and donor lived together and were
registered domestic partners.
b. Rule – “Cal. Fam. Code § 7613(b), which provides that a man is not a father if he
provides semen to a physician to inseminate a woman who is not his wife, does
39
not apply when a woman provides her ova to impregnate her partner in a lesbian
relationship in order to produce children who will be raised in their joint home.
Accordingly, when partners in a lesbian relationship decide to produce children in
this manner, both the woman who provides her ova and her partner who bears the
children are the children’s parents.”
i. MUTUAL INTENT to produce a child that would be raised in a marital
home is crucial.
ii. UPA – Because the exception in § 7613(b) does not apply, the UPA
governs. Both women are mothers under the UPA.
1. “The parentage of the twins is determined by application of the
UPA. E.G. is the twins’ mother because she gave birth to them
and K.M. also is the twins’ mother because she provided the ova
from which they were produced.”
2. Two mothers were OK in this situation. One is not trying to
displace the other. Their motherhood claims are not mutually
exclusive.
c. Holding – “K.M. asserts that she is a parent of the twins because she supplied the
ova that were fertilized in vitro and implanted in her lesbian partner, resulting in
the birth of the twins. As we will explain, we agree that K.M. is a parent of the
twins because she supplied the ova that produced the children, and Family Code
section 7613, subdivision (b), which provides that a man is not a father if he
provides semen to a physician to inseminate a woman who is not his wife, does
not apply because K.M. supplied her ova to impregnate her lesbian partner in
order to produce children who would be raised in their joint home.”
d. Werdegar, Dissenting
i. Just as intrusive as giving the surrogate parental rights in Johnson.
1.  Not true because this case involves two parents only, not two
parents and third party coming between them.
Adoption
1. Generally
a. Adoption is much more liberal in terms of race, religion, etc.
b. Adoption practices are much more open.
2. Adoption Streams
a. Private Adoption
i. Negotiated between the biological parents and the adoptive parents.
ii. Sometimes includes stepparent adoption; adoption by other relatives.
iii. Usually occurs at birth or early in life.
iv. Support payments often are involved, but there can be no payments that
could be construed as payment for the child.
b. Agency Adoption
i. State-licensed agencies
ii. Less likely to involve infants. More minority children and more children
with disabilities.
c. Public Adoption
40
i. Often interacts with agency adoption.
ii. Children are in foster care, and these children need permanent homes.
iii. Many children are older and minorities, and they often are disabled or
have other issues.
iv. Many parents become full adoptive parents by serving as foster parents
first. Like a test run for a particular child. If a child becomes free for
adoption, the foster parents usually are first in line to adopt him or her.
d. International Adoption
i. Very popular over the past twenty years. Young children often were free
for adoption.
ii. One of the most promising routes for the wealthy.
iii. These avenues have been closing recently. Other countries do not want
Americans raising their children. E.g., Russia.
iv. Information problems, i.e., mother’s health history, etc.
3. Same-Sex Adoption
a. Both parents could be adoptive, or one parent could be a biological parent and the
other would seek to become an adoptive parent. Also comes up when couples use
alternative reproductive technology.
4. Adoptive Couple v. Baby Girl (S.C. 2012)
a. Facts – In 2009, a couple from South Carolina sought to adopt an Indian child
from her non-Indian single mother in Oklahoma. The biological father contested
the adoption on the grounds that he was not properly notified in accordance with
ICWA, and won his cases in trial court and on appeal with the state supreme
court.
b. Revocable Consent – Consent is revocable until the adoption is final.
c. Holding – The SC Supreme Court held that a Native American (Indian) child
could not be adopted by non-Indian parents without complying with the
requirements of the Indian Child Welfare Act (ICWA). The court ordered the
child returned to her biological father after she had lived with her adoptive parents
from birth until two years of age.
d. Indian Child Welfare Act – If a child has enough blood to be considered a
member of the tribe, the tribe has an independent interest in the child. When this
happens, the tribe must consent to any adoption. The law provides that adoptions
should go to family, tribal members, and members of other tribes before adoption
outside the Indian community is permitted.
e. Argued before SCOTUS on April 16, 2013.
FAMILY BREAKDOWN
Divorce Generally
1. Statistics on Divorce in the United States – Pages 421–22
2. History of Divorce – Pages 422–24
a. History Generally
b. Divorce in the Protestant Reformation
41
c. Divorce Ecclesiastical Courts
3. Stages of Divorce
a. Realization that the marriage is over;
b. Legal issues that must be addressed;
c. Economic disentanglement;
d. Co-parenting arrangements: this involves negotiation over what roles the parents
will play;
e. Division of friends: you lose a lot of people that used to be part of your support
system; and
f. Reestablishment of individual autonomy
4. Recognition of Divorces – States may choose whether or not to recognize divorces
performed in other jurisdictions.
Fault-Based Divorce
1. Generally
a. Originally a religiously grounded premise for divorce
b. Divorce was available only to an innocent party victimized by a spouse’s serious
misconduct.
c. Originally required a showing of bodily harm. Waldron v. Waldron (Cal. 1890).
d. Workarounds for Fault-Based Divorce
i. Addition of more malleable offenses, e.g., mental cruelty, to traditional
fault grounds
ii. Judges looked the other way when litigants gamed the system.
iii. Resourceful litigants could migrate to other states with more favorable
legal regimes.
e. Reasons for Choosing Fault-Based Divorce
i. Allows immediate divorce, unlike no-fault divorce, which typically
requires a waiting period during separation.
ii. Financial implications in states where marital fault may shape property
and alimony awards
iii. Aggrieved spouse may desire formal acknowledgement of victimization
and want to hold the victimizing spouse publicly accountable.
f. Until 2010, New York was the last state to have a pure fault-based regime.
2. Fault Grounds
a. Physical Cruelty
i. Originally, a high level of physical cruelty was required. Some abuse was
OK. Waldron v. Waldron (Cal. 1890); Boldon v. Boldon (Ala. 1978).
1. Still appears sometimes. S.K. v. I.K. (N.Y. 2010).
ii. Das v. Das (Md. 2000)
1. Physical Cruelty
a. “A single act may be sufficient to constitute the basis for a
divorce on the ground of cruelty, if it indicates an intention
to do serious bodily harm or is of such a character as to
threaten serious danger in the future.”
42
b. “Where violence has been inflicted and threats have been
made, a court of equity should not hesitate to grant relief,
especially where the facts indicate a probability that
violence might be repeated.”
b. Mental Cruelty
i. Requires a showing of “habitual, continuous, permanent, and plain
manifestation of settled hate, alienation, and estrangement on the part of
one spouse, sufficient to render the condition of the other intolerable.”
Anderson v. Anderson (Ark. 1980).
ii. Das v. Das (Md. 2000)
1. “The original definition of ‘cruelty’ has grown more broad, to
encompass mental as well as physical abuse.”
2. “Cruelty as a cause for divorce includes any conduct on the part of
the husband or wife which is calculated to seriously impair the
health or permanently destroy the happiness of the other. Thus any
misconduct of a husband that endangers, or creates a reasonable
apprehension that it will endanger, the wife’s safety or health to a
degree rendering it physically or mentally impracticable for her to
properly discharge the marital duties constitutes cruelty within the
meaning of the divorce statute.”
iii. Spence v. Spence (Miss. 2005)
1. “In the context of a divorce based upon the ground of habitual,
cruel and inhuman treatment, a party must show a course of
conduct on the part of the offending spouse which is so unkind,
unfeeling or brutal as to endanger or put one in reasonable
apprehension of danger to life, limb or health, and further, that
such course of conduct must be habitual, that is, done so often, or
continued so long that it may reasonably be said a permanent
condition.”
2. Burden of Proof – “The burden of proof for habitual, cruel and
inhuman treatment is of a less stringent standard than that of
proving adultery. Habitual, cruel and inhuman treatment is to be
proven by a PREPONDERANCE OF THE CREDIBLE
EVIDENCE.”
c. Adultery
i. Encouraged a lot of PRIVATE SPYING. Suspicious wives hired young
women to lure unfaithful husbands into hotel rooms, and private eyes
photographed these occurrences.
1. Also, courts were reluctant to delve into these issues.
ii. Adulterous Sexual Acts
1. All forms of sexual contact between persons of any gender—not
just intercourse—generally qualify as “adultery.” (States differ in
their definitions, however.)
2. No Sex Until Divorce Is Final – Long-term separation is not
enough. If you are separated and have sex with a third party, your
spouse can pursue fault-based divorced.
43
a. Infidelity during separation may destroy any prospect of
reconciliation.
b. Some courts are more reluctant to grant divorce based on
post-separation adultery. Smith v. Smith (Ala. 2005).
iii. Circumstantial Evidence – May be proven through circumstantial
evidence because direct proof usually is in short supply.
iv. No Innocent Explanation – Many jurisdictions require that the evidence
exclude any innocent explanation.
1. Many jurisdictions have heightened proof requirements.
v. Spence v. Spence (Miss. 2005)
1. Clear and Convincing Evidence – “In order to prevail on a claim
of adultery, a party must prove his or her claim by clear and
convincing evidence.”
2. Required Showing – “This showing by clear and convincing
evidence must demonstrate both an adulterous inclination and a
reasonable opportunity to satisfy that inclination.”
3. Ultimate Burden of Proof – “Although circumstantial evidence
may aid in proving such a claim, the proponent retains the burden
of presenting satisfactory evidence which is sufficient to lead the
trier of fact to a conclusion of guilty.”
4. No Innocent Explanation – “When one alleges adulterous
activity, the burden of proof is a heavy one because the evidence
must be logical, tend to prove the facts charged, and be
inconsistent with a reasonable theory of innocence.”
vi. Gender Disparity (Old Regime)
1. Women had to prove repeated instances.
2. Men had to prove only one instance.
d. Desertion
i. Elements
1. Willful abandonment of cohabitation for a sufficient period of
time, usually lasting at least one year; and
2. Intent to abandon (e.g., no contact information)
ii. Minority Rule – Desertion may occur when the spouses live under the
same roof but have ceased sexual relations.
iii. Constructive Desertion
1. A spouse that has left may show that her spouse drove her to it by
making life within the marital home reasonably intolerable.
2. Requires a smaller quantum of proof than cruelty. Das v. Das
(Md. 2000).
e. Imprisonment for a Felony
f. Incurable Insanity
g. Substance Abuse
h. Willful Nonsupport
i. Impotence
3. Fault-Based Bars and Defenses
a. Recrimination
44
i. Both spouses are guilty of offsetting faults.
ii. People hurling accusations at each other. Tit for tat. Innocent party gets
so angry that she does something that destroys her standing as the good
party, e.g., wife discovers that her husband is having an affair and then
goes out and has an affair herself.
iii. Courts are reluctant to apply it. Many jurisdictions have repealed it or
limited it to adultery or cases where the same fault ground is at issue.
b. Provocation
i. Spouse’s faulty conduct was reasonably provoked by the other spouse.
ii. Spouse’s conduct NEED NOT be so bad that it qualifies as free-standing
fault.
iii. Faulty conduct must be proportionate to the provocation, e.g., wife cannot
have an affair if a woman mails her husband her underwear.
c. Connivance
i. Similar to Entrapment – Bars relief if the spouse seeking divorce is found
to have participated in manufacturing the fault upon which divorce is
sought.
ii. Express or implied consent to the offending spouse’s behavior.
iii. E.g., wife encourages husband to see other women because she does not
want to have sex with him.
d. Condonation
i. Fault ground has been forgiven and no longer can be invoked to dissolve
the marriage.
ii. Reviving Prior Wrong – Offending spouse must “revive” the prior wrong
by doing it again for it to form the basis for divorce.
1. Misconduct reviving the prior wrong NEED NOT itself constitute a
new ground for divorce.
2. Lesser offenses suffice as long as they “amount to more than slight
acts of coldness, unkindness, or mere quarrelling, and must be so
pronounced as to raise a reasonable probability that if the marriage
relation is continued a new cause for divorce will arise.” Tigert v.
Tigert (Okla. 1979).
iii. Express – Wronged spouse forgives the offending spouse.
iv. Implied – Wronged spouse signals forgiveness by resuming normal
marital relations.
v.  Different standards as to what constitutes condonation: “I forgive you”;
having sex while screaming, “I will never forgive you”; etc.
vi. In re Marriage of Hightower (Ill. 2005)
1. Definition – “Condonation, in the law of divorce, is the
forgiveness of an antecedent matrimonial offense on condition that
it shall not be repeated and that the offender shall thereafter treat
the forgiving party with conjugal kindness.”
2. Intent – “Condonation is a question of intent and is to be shown
by words and deeds that reflect full, free, and voluntary
forgiveness.”
45
3. Burden of Proof – “The burden is on the party raising the
affirmative defense of condonation to prove by a preponderance of
the evidence that the wronged party intended to forgive the
matrimonial offenses of his or her spouse.”
4. Fact Question – “Whether an injured spouse intended to forgive
the marital offense is a question of fact, which turns on appraising
the credibility of the witnesses and weighing their testimony.”
5. Factors Showing Forgiveness – “In determining whether a party
intended to forgive his or her spouse’s behavior, courts look to a
combination of factors, including an expression of forgiveness, the
fact of cohabitation, the length of time the parties cohabited after
the injured spouse learned of the matrimonial offense, whether the
cohabitation was the result of necessity, and whether the parties
continued to have sexual relations.”
e. Collusion
i. Spouses conspire to manufacture grounds for divorce. Fraud on the court.
ii. Court may raise the bar sua sponte because it implicates the court’s
subject-matter jurisdiction.
No-Fault Divorce
1. Generally
a. Every state had adopted no-fault divorce by the mid-1980s.
b. General Elements
i. Courts look only to marital breakdown—whether the marriage is
irretrievably broken—as exemplified in different ways. No blame or
victimization required.
ii. Remaining Requirements: (1) separation; and (2) residency for a specified
period.
2. Pure No-Fault Regimes
a. Minority Rule – About one-third of the states, including DC, are pure no-fault
regimes. E.g., Kentucky (Pages 442–44)
b. UMDA makes “irretrievable breakdown” of the marriage the exclusive ground for
divorce.
3. Mixed Fault/No-Fault Regimes
a. Majority Rule – All other states have both fault-based and no-fault divorce. E.g.,
Pennsylvania (Pages 444–45)
b. Party seeking divorce may choose whether to proceed on fault or no-fault
grounds.
4. Living Separate and Apart
a. Majority Rule – Most states require a mandatory separation period.
b. Minority Rule – UMDA requires no mandatory waiting period.
c. Same or Separate Dwellings
i. States differ.
ii. If the parties live in the same house, they must effectively live separate
lives. Frey v. Frey (Pa. 2003).
46
d. Intention to End Marriage
i. Subjective intent to dissolve marriage is required.
ii. “The separation must be ‘coupled with an intention on the part of at least
one of the parties to live separate and apart permanently, and [this]
intention must be shown to have been present at the beginning’ of the
separation period.” Pearson v. Vanlowe (Va. 2005).
iii. Separation because of military service or incarceration may not qualify
without subjective intent to dissolve marriage.
iv. Factors Showing Intent
1.  Fact-specific inquiry
2. Attending social gatherings;
3. Acting jointly in financial matters;
4. Having meals together
5.  Parties may continue to share food and keep a clean house and
still intend to live separate and apart.
e. Reconciliation Attempts
i. May reset the clock on the spouses’ separation period.
ii. BRIEF OVERTURES toward reconciliation do NOT terminate the
separation period.
iii. INTENTIONAL RESUMPTION of the marital relationship terminates the
separation period.
1. “Mere casual cohabitation between the parties, after the separation,
unaccompanied by resumption of normal married life . . . is not
sufficient to show a reconciliation or an agreement to live and
cohabit together again on a permanent basis as husband and wife.”
f. Separation Agreements
i. Establish spouses’ intent to live separate and apart.
ii. Determine financial and other consequences of dissolution.
g. Shortening Waiting Period – May occur if both parties consent to divorce. E.g.,
Pennsylvania.
5. Irretrievable Breakdown
a. Definition – “Either or both spouses are unable or unwilling to cohabit and there
are no prospects for reconciliation.” Caffyn v. Caffyn (Mass. 2004).
b. Richter v. Richter (Minn. 2001)
i. Irretrievable Breakdown
1. Multifactor Analysis – “If there is a dispute about whether a
marriage is irretrievably broken, the court shall consider all
relevant factors and find whether the marriage is irretrievably
broken.
a. Note that the court must make a finding of irretrievable
breakdown.
2. Definition – “‘Irretrievable breakdown’ occurs when there is no
reasonable prospect of reconciliation.”
3. Elements – “To find irretrievable breakdown of a marriage in a
case where the existence of such a breakdown is contested, the
finding of irretrievable breakdown must be supported by evidence
47
c.
d.
e.
f.
g.
that (i) the parties have lived separate and apart for a period of not
less than 180 days immediately preceding the commencement of
the proceeding, or (ii) there is serious marital discord adversely
affecting the attitude of one or both of the parties.”
4. Party’s Testimony Is Sufficient – Sufficient basis for a finding of
irretrievable breakdown of a marriage.
ii. Marriage as Contract – “Marriage, so far as its validity in law is
concerned, is a contract. That marriage is a contract for determining its
validity does not mean marriage is a contract in the usual sense of that
term.”
iii. What recourse does the court have if one party states that the marriage has
suffered an irretrievable breakdown and one says that it has not?
1. Court could order a cooling off period or counseling.
2. If Mr. Richter could stop the divorce process, he would be locking
his wife into a marriage in which she did not want to participate.
Sometimes, there is no good way to satisfy the interests of both
parties.
Should courts inquire into whether there has been an irretrievable breakdown?
i. Business Judgment Rule Scenario – Judge does not substitute his or her
judgment for the judgment of the parties involved. How can a third party
understand the inner workings of a marriage?
Some courts decline to find irretrievable breakdown. In re Estate of Carlisle
(Iowa 2002).
Mandatory Divorce Counseling – Some courts require it.
Summary Dissolution – For short marriages without many financial assets and
no children. Available in California (Pages 454–55)
No Constitutional Bars to No-Fault Divorce – See cases on page 455.
Annulment (Pages 463–67)
1. Definition – Declaration recognizing that the marriage attempted by the parties never
came into existence at all because of a fatal impediment at the time of formation.
2. Required Showing – Marriage suffers from a serious defect dating back to its inception
rending it void or voidable.
3. Legal Protections
a. State law and common-law doctrines
b. No legal protections of marriage and divorce, e.g., maintenance, child support, or
legitimacy of children.
4. Revival of Alimony Following Annulment – Former spouses are married and then
divorce. One spouse pays alimony to the other, which terminates when the other spouse
remarries. If that marriage later is annulled, the alimony may be revived.
5. Canonical Annulments – Have no legal effect.
Legal Separation (Limited Divorce) (Page 467–69)
48
1. Purpose – Formalizes marital property and support rights where a married couple intends
to remain married while living separate and apart.
2. Required Showing – Generally requires proof of a ground justifying actual divorce.
States vary, however.
a. Grounds may be broader or narrower.
b. After an adequate ground is shown, the court may enter a decree.
3. Separate Maintenance – Page 469
4. Reasons for Legal Separation
a. Hope for reconciliation
b. Religious or other objections to divorce
c. Wish to retain legal benefits of marriage
FINANCIAL ASPECTS OF DISSOLUTION
Property Regimes at Marriage and Divorce
1. Premises
a. Marriage is a partnership, and it must be unwound fully and fairly.
b. Each party earned his or her share of marital assets.
2. Minority Rule – Rules apply to cohabitants and domestic partnerships.
Property Regimes During Marriage
1. First Question – State residency (where marriage is domiciled) determines which law
applies.
2. Title Theory (Separate Property)
a. Definition – Spouse who holds title to each asset retains ownership of it.
b. Applies only during the life of the marriage.
i. No states any longer apply title theory for dividing marital assets when a
marriage dissolves.
c. Forms of Title
i.  Apply when spouses share ownership of real property.
ii. Joint Tenancy
1. Each is the owner of the whole estate and an undivided part of it.
2. Death of one spouse  Surviving spouse retains ownership of
entire estate (without any need for probate or estate taxes).
3. Dissolution of Marriage  Spouses would have to sell property
and split the return.
4. Spouses should not become joint tenants.
iii. Tenancy by the Entirety
1. Applies only to married couples because it requires “unity of
person.”
2. Death of one spouse  Surviving spouse receives ownership of
the entire estate.
3. Protected from partition, except by mutual consent or operation of
law.
49
iv. Tenancy in Common
1. Each spouse has an equal right to possession of the estate.
2. Neither spouse has a right of survivorship.
3. Spouse could bequeath his or her share to a third party.
3. Community Property
a. 8 states
b. Definition – Each spouse has a present, vested one-half interest in all property
acquired during the marriage. Marital property is equally co-owned by both
spouses. Neither spouse can buy, sell, or trade it without the participation of the
other.
c. Divorce – 3 states require division of all community property into equal shares.
E.g., California.
i. Majority Rule – Equitable, rather than equal, division of assets.
d. Separate Property – Acquired by either spouse before the marriage or during the
marriage by gift, bequest, or devise.
i. Sometimes, courts give weight to title, but other times, they do not.
e. Disposal of Community Property – During the marriage, it is not permitted
without the consent of the other spouse.
4. Division of Marital Property
a. Three Regimes – (1) Equitable distribution; (2) community property; and
(3) hotchpot (or “kitchen sink”).
b. Equitable Distribution
i. Page 474
ii. Definition – Each spouse is entitled to a fair share of the marital property,
regardless of how it is titled. Each spouse earned his or her share. Not a
handout.
iii. Premise – Marriage is a partnership into which work is put.
iv. Majority Rule – 42 States and DC
1. Marriage – Title Theory
2. Divorce – Equitable Distribution
v. Two Principles – Property is allocated according to:
1. Spousal contributions; and
2. Spousal need
vi. Gifts Between Spouses – The funds used to purchase these gifts probably
have arisen from the marriage. The funds were marital property, and the
gift is marital property in another form.
c. Community Property
i. Minority Rule – 8 States
ii. Definition – Each spouse has a present, vested one-half interest in all
property acquired during the marriage. Equitable or equal division.
d. Hotchpot (or “Kitchen Sink”)
i. Minority Rule – 14 States
ii. Based on UMDA.
iii. Definition – Court may consider and divide all property owned by either
or both spouses, regardless of how or when it was acquired.
iv. Rationale – Fairness
50
v. NO NEED to characterize property as separate or marital.
e. Proposals for Reform – ALI (Page 477)
i. Section 4.03 is nothing new.
ii. Section 4.06 – Captures the fact that property can have a mixed
characterization: partly separate and partly marital. Allows for
negotiations as to who receives the property at the dissolution of a
marriage.
iii. Section 4.08 – Accepted in most jurisdictions.
Dividing Marital Property
1. Three-Step Process
a. Identifying and characterizing each asset as marital or separate;
b. Valuing each marital asset; and
c. Distributing all divisible assets equitably or equally (or ordering a monetary
award from one spouse to another to adjust their financial positions in accordance
with the court’s decision).
d.  Minority Rule – Courts may divide all property owned by a couple, regardless
of when or how it was acquired.
2. Finality – DISTRIBUTION OF PROPERTY IS FINAL AND NOT SUBJECT TO
MODIFICATION AFTER THE DIVORCE IS GRANTED. In re Marriage of Selinger
(Ill. 2004).
a. Eliminates need for continued contact between former spouses.
b. EXCEPTION – Extrinsic fraud is grounds for revisiting a distribution order. Polk
v. Polk (Ohio 2010).
Marital or Separate Property
1. Marital Property
a. Title Theory – Includes all of the assets that were acquired during the course of
the marriage using marital funds.
b. Community Property – Includes all property acquired during the marriage, but not
acquired through the use of separate property or gifts, inheritances, etc.
2. Majority Rule – Preference for characterizing UNCERTAIN PROPERTY as marital.
a. REBUTTABLE PRESUMPTION that property is marital.
b. Broad construction of marital property; narrow construction of separate property.
Fields v. Fields (N.Y. 2010).
3. Converting Separate to Marital Property
a. Comingling – “Separate property becomes marital property by commingling if
inextricably mingled with marital property or with the separate property of the
other spouse. If the separate property continues to be segregated or can be traced
into its product, commingling does not occur.” Langschmidt v. Langschmidt
(Tenn. 2002).
b. Transmutation – “Transmutation occurs when separate property is treated in
such a way as to give evidence of an intention that it become marital property.”
Langschmidt v. Langschmidt (Tenn. 2002).
51
c.  “Dealing with property in these ways creates a REBUTTABLE
PRESUMPTION of a gift to the marital estate.” Langschmidt v. Langschmidt
(Tenn. 2002).
d.  Party seeking to prove martial property bears the burden of proof.
4. Nack v. Edwards Nack (Va. 2007)
a. Marital Property, Comingling, and Transmutation – “State law defines
marital property as all property titled in the names of both parties, whether as joint
tenants, tenants by the entirety or otherwise, except as provided by state law,
which recognizes the concept of part marital and part separate, or ‘hybrid’
property. State law presupposes that separate property has not been segregated
but, rather, combined with marital property. When such assets are combined by
the contribution of one to another, resulting in the loss of identity of the
contributed property, the classification of the contributed property shall be
transmuted to the category of property receiving the contribution.”
i. Property Acquired Before Marriage – “Property acquired by either
party before the marriage is presumed to remain separate property.”
ii. Property Acquired During Marriage – “Property acquired during the
marriage is presumptively marital, unless shown to be separate property.”
iii. Comingling and Transmutation – “When marital property and separate
property are commingled by contributing one category of property to
another, resulting in the loss of identity of the contributed property, the
classification of the contributed property shall be transmuted to the
category of property receiving the contribution. However, to the extent
the contributed property is retraceable by a preponderance of the evidence
and was not a gift, such contributed property shall retain its original
classification.”
1. Comingling – Assets have been treated carelessly, and so it is no
longer possible to trace their origins to separate property. Very
easy to comingle cash because cash is fungible.
2. Transmutation – Has to do with the way that the character of an
asset changes during the course of a marriage. Based on the
intention of the original owner and the way that he or she acts with
regard to the property.
a. Husband’s Mercedes – Wife made a gift of marital property
to the separate estate of her husband because she knew that
the car was his. She transmuted a portion of marital funds
to separate property.
b. Tracing Separate Property
i. “However, to the extent the contributed property is retraceable by a
PREPONDERANCE OF THE EVIDENCE and was not a gift, such
contributed property shall retain its original classification.”
ii. “In order to trace the separate portion of hybrid property, a party must
prove that the claimed separate portion is identifiably derived from a
separate asset. Whether a transmuted asset can be traced back to a
separate property interest is determined by the circumstances of each case.
However, if a party chooses to commingle marital and non-marital funds
52
to the point that direct tracing is impossible, the claimed separate property
loses its separate status. Even if a party can prove that some part of an
asset is separate, if the court cannot determine the separate amount, the
unknown amount contributed from the separate source transmutes by
commingling and becomes marital property.”
iii.  See also Page 489.
1. Florida rejects efforts to trace the source of comingled funds.
Pfrengle v. Pfrengle (Fla. 2008).
2. Length of time that assets are comingled may matter to
traceability. In re Marriage of Wojcik (Ill. 2005).
5. Mischaracterization of Property – More than a de minimus impact on property
distribution  Reversible abuse of discretion because it prevents a “just” division of
marital assets.
6. Evidentiary Standard for Rebutting Comingling or Transmutation – Varies across
jurisdictions.
a. Two Ways – (1) Show intent to keep property separate or (2) trace back to
separate property.
7. Gift to Marital Estate
a. Majority Rule – Comingling or transmutation “creates a REBUTTABLE
PRESUMPTION of a gift to the marital estate.” Langschmidt v. Langschmidt
(Tenn. 2002).
b. DONATIVE INTENT can render property marital even when it can be traced to
separate property. Steinmann v. Steinmann (Wis. 2008).
i. Three Elements – (1) An intention on the part of the donor to make an
immediate gift of property; (2) delivery of the property to the done; and
(3) acceptance of the gift by the done. Jackson v. Jackson (Ohio 2008).
c. Protecting Separate Property – In the Matter of the Marriage of Bolster (Wash.
2008).
i. Execute clear documents indicating intent to gift separate property.
ii. Obtain acknowledgments and/or quitclaims executed by the spouse of the
person receiving the gift.
iii. Full disclosure of the character and value of the gifted property.
8. Contributions and Reimbursement
a. Spouse contributes separate funds to a marital asset.  Funds can be traced. 
Spouse may be entitled to reimbursement. In re Marriage of Weaver (Cal. 2005).
9. Marital Home
a. Rebuttable presumption that a marital residence purchased after the marriage is
marital property. Fields v. Fields (N.Y. 2010).
b. Minor Children  Courts try to award the marital home to the custodial parent in
the interests of continuity and stability.
i. Spouses may agree, e.g., to sell the marital home after the youngest child
leaves for college.
10. Appreciation of Separate Property During Marriage
a. Middendorf v. Middendorf (Ohio 1998)
53
i. Marital Property – “All income and appreciation on separate property,
due to the labor, monetary, or in-kind contribution of either or both of the
spouses that occurred during the marriage.”
1. Either Spouse’s Contribution to Separate Property
a. “When either spouse makes a labor, money, or an in-kind
contribution that causes an increase in the value of separate
property, that increase in value is deemed marital
property.”
b. “An increase in the value of separate property due
to either spouse’s efforts is marital property.”
ii. Separate Property – “All real and personal property and any interest in
real or personal property that is found by the court to be any of the
following: . . . Passive income and appreciation acquired from separate
property by one spouse during the marriage.”
1. Passive Income – “Income acquired other than as a result of the
labor, monetary, or in-kind contribution of either spouse.”
a. E.g., you own land, and all by itself, it appreciates in value.
2. Executives’ and managers’ work is NOT passive. It is labor.
b. Other States – All income and profit from separate property remains separate.
E.g., California.
c. Appreciation of Marital Asset – Some states treat the appreciation as marital,
regardless of whether either of the spouses contributed to the appreciation. E.g.,
Oregon.
d. Dates of Marriage
i. Beginning – Day of legal marriage ceremony.
ii. Ending
1. Some states regard as separate all property (and increases in value)
acquired after the date of legal separation. E.g., California.
2. Some states continue to count as marital all property acquired until
the date on which one party files for divorce, the trial is held, or
divorce is granted. E.g., New York.
11. Timing and Methods of Valuation – Pages 496–97
a. To be upheld, a court must show that evidence was received and that it was
considered. Court cannot just throw darts at a board.
b. Expert Evidence – Several different methods, and all are acceptable.
i. Court does NOT have to adopt the value that any expert assigns to an
asset, but it must consider that values.
c. Stock Options – Difficult to value. DC allows the transfer of stock options in the
event of divorce, but this is not true in most jurisdictions.
12. Contributions of Homemakers
a. Injustice of title system toward homemakers’ contributions
b. Primary Acknowledgement of Homemakers’ Contributions – Equitable
distribution of all marital assets in title jurisdictions
c. Valuation – Difficult and may vary widely
i. Based on opportunity cost or economic contributions to the household.
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ii. Modern Approach – “Courts look not only at cash contributions and
assistance in the spouse’s workplace or business, but also to domestic
work in the home such as caring for children, cooking meals, cleaning
house, and washing and ironing clothes.”
d. Corporate Wives
i. Pages 499–500
ii. Corporate wives, in addition to their household duties, claim that they are
indispensible to the advancement of their husbands’ careers. E.g.,
networking; dinner parties; etc.
iii. Wendt v. Wendt (Conn. 2000).
The New Property
1. Professional Licenses, Degrees, and Future Earning Capacity
a. Human Capital – Education, opportunity, and enhanced earning potential
b. New York is the only state that recognizes a professional license as a marital
asset. O’Brien v. O’Brien (N.Y. 1985).
c. Holterman v. Holterman (N.Y. 2004)
i. Facts – The parties married when the husband was a third-year medical
student and the wife, who had a masters degree in business administration,
was employed full-time as a program analyst. Two years later the wife
was diagnosed with chronic fatigue syndrome and fibromyalgia. After 19
years of marriage and two children, the wife sued for divorce.
ii. Professional License – “Both parties in a matrimonial action are entitled
to fundamental fairness in the allocation of marital assets, and that the
economic and noneconomic contributions of each spouse are to be taken
into account. Trial courts that examine the statutory factors are granted
substantial discretion in determining the extent to which the distribution of
marital property, including enhanced earnings attributable to a
professional license, will be equitable.”
iii. Standard of Review – “Absent an abuse of discretion, a reviewing court
may not disturb the trial court’s award.”
iv. Smith, Dissenting
1. “This is not a case where one party made sacrifices to put the
other through school, but was prevented by divorce from enjoying
the resulting benefits.”
2. “We should hold that the application of O’Brien is restricted to
cases where its application produces some significant benefit.”
3. “In the other 49 states, a professional license is not itself an asset
subject to equitable distribution, although in many states the
enhanced earning capacity reflected by a license may be
considered in awarding alimony or maintenance, or in distributing
other assets.”
4. “O’Brien should not be used where, as here, the enhanced earning
capacity associated with the professional license is already fully
reflected in the license holder’s earnings.”
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d. Death of Spouse with Professional Certification – Surviving spouse is NOT
entitled to anything.
2. Enhanced Earning Capacity
a. California – Professional education, training, and earning capacity are separate
property, but community funds used to support that education are reimbursable.
b. Oregon and Pennsylvania – Page 507
3. Tax Consequences
a. Distribution of assets does NOT appear on a tax return.
b. Exception – Property is sold to effectuate the division.
4. Attorney’s Fees in Divorce Cases
a. Court may use equitable powers to order that one spouse must pay the other
spouse’s attorney’s fees. Yount v. Yount (Tenn. 2002).
b. Award must be reasonable. Arnal v. Arnal (S.C. 2005).
c. Lawyer’s Ethical Duties When Paid by Third Party – Page 508
5. Life Insurance
a. Court may use equitable powers to order obligors to purchase life insurance to
guarantee satisfaction of their obligations.
b. Used when (1) a transfer of assets is structured to take place gradually or (2) there
is a suspicion of recalcitrance.
6. Payment Structures
a. Detailed payment schedule stretching over many years. In re Hayes (Mont.
2002).
b. Distribution is paid in installments.  Obligation must be secured. Winters v.
Patel (3d Cir. 2004).
c. Lawyer can be held liable for sloppy drafting, e.g., using “my wife.” Winters v.
Patel (3d Cir. 2004).
7. Intellectual Property – Pages 509–10
8. Pension Plans – Page 510
a. ERISA – Page 511
b. Qualified Domestic Relations Orders (QDROs) – Page 511
c. Federal Retirement Benefits – Page 511
9. Social Security Benefits – Pages 511–12
a. Many courts do not consider Social Security benefits in determining financial
health.
b. For longer marriages—defined under federal law as lasting ten or more years—if
one spouse has not worked and is covered under Social Security only as a
caretaking spouse or has earned a minimal salary, that spouse can claim a portion
of the other spouse’s Social Security benefits.
i. Claiming spouse cannot collect until both spouses are age-eligible to
collect.
ii. Claim is lost if the spouse remarries, and the new spouse entitles the
person to a higher level of Social Security compensation.
10. Stock Options – Page 512
11. Goodwill and Closely Held Businesses – Pages 512–14
a. Personal Goodwill – Non-divisible at divorce
b. Business Goodwill
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i. Definition – The additional value to a business of a person’s reputation.
Value over and above the assets of the business. Difference between the
book value and the actual value of a business.
1. E.g., Martha Stewart.
ii. Valued in dividing the worth of a business.
iii. Expert opinions usually are required to determine the value of business
goodwill.
iv. Problem – Sometimes, business goodwill is indistinguishable from
personal goodwill.
12. Shares in Close Corporations – Page 514
13. Personal Injury Damages – Page 514
14. Disability Benefits – Pages 514–15
15. Lottery Winnings – Page 515
16. Frequent Flyer Miles – Arguments
a. “I put in weeks and months of work flying around the world for different
meetings.”
b. “You got to see the world and stay in luxury hotels. I want a piece of your miles.”
What is Equitable?
1. UMDA – Distribution of assets should be treated like dissolution of a partnership.
2. Ketterle v. Ketterle (Mass. 2004)
a. Facts – The trial judge found that winning the Nobel Prize identified the husband
as a superstar in the scientific and academic universe, and she projected his
having substantial ability to acquire future income and assets. Relying heavily on
this factor, the judge assigned the wife a greater percentage of the existing marital
assets. The husband argued that the division was disproportionate.
b. General Rule – “An equitable, rather than an equal, division of property is the
ultimate goal of state law. As provided by statute, the trial judge has broad
discretion to assign to either the husband or the wife all or any part of the estate of
the other, after consideration of the factors enumerated in the statute. A division
of marital property which is supported by findings as to the required factors will
not be disturbed on appeal unless plainly wrong and excessive.”
c. Holding – The appellate court held that the trial court expressly considered all the
appropriate factors. The judge’s findings on the wife’s inability to acquire future
income and assets are well-supported, given the wife’s limited vocational skills
and mental illness. The husband argued that all of the money received from the
Nobel Prize was offset by liabilities. The appellate court held that the trial court
properly credited the husband with half of the award and properly found that the
husband could make a gift of half of the prize to his mentor and collaborator in his
research.
3. Award Exceeding Total Marital Assets – May be an abuse of discretion when a court
awards (1) one spouse an amount exceeding the total marital assets and (2) debts to the
other spouse. Smith v. Smith (Ind. 2010).
4. Prodigious Spouse
a. Often awarded a disproportionate share of the marital assets.
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5.
6.
7.
8.
b. Estates Valued Over $3 Million – Does the award to the dependent spouse enable
him or her to generate sufficient income to support substantially the same lifestyle
that existed during the marriage?
i. Any larger share may exceed the dependent spouse’s contribution.
Disproportionate Share
a. Must be supported by a reasonable basis. Smith v. Smith (Tex. 2004).
b. Court must provide an explanation, or it may be reversed. Gohl v. Gohl (Neb.
2005).
Fault-Related Factors
a. Pennsylvania – No consideration of fault in distributing marital assets.
b. Other States – Court may consider contributions to the marital breakdown in
determining equitable distribution of assets.
c. Economic Fault (All States) – Courts weigh economic fault in crafting equitable
distribution orders.
d. Bad Behavior – Does NOT necessarily constitute dissipation. Walter v. Walter
(N.C. 2002).
Extrinsic Fraud – Grounds for revisiting a distribution order. Polk v. Polk (Ohio 2010).
a. Usually requires experts to identify hidden funds.
Assigning Assets to Marital Children
a. Marital assets were deposited in a separate titled asset to benefit the children by
providing for their college education.  Asset is marital and reserved for the
benefit of the children. Barnett v. Barnett (Miss. 2005).
Post-Divorce Debts and Bankruptcy
1. Allocating Debt Accrued During Marriage
a. Liabilities/debts accumulated during marriage are marital property.
i. Subject to division.
ii. E.g., borrowing; mortgages; car loans; business debts; obligations under
contracts or judgments; etc.
b. Community Property Rule – All, or virtually all, of the marital property is
available for creditors of either spouse to seize in order to satisfy a debt incurred
by either spouse during marriage.
c. Sunkidd Venture, Inc. v. Snyder-Entel (Wash. 1997)
i. Facts – The tenant executed an extension of the lease with the landlord
before marrying his former wife. The landlord responded to the tenant’s
notice to quit with certain charges and assigned its claim for them to the
collection agency, which filed a complaint against the former wife in the
district court. The former wife filed a answer denying any contractual
relationship or duty to pay.
ii. Presumption of Community Debt – “A debt incurred by either spouse
during marriage is a community debt. This presumption may be rebutted
by clear and convincing evidence that the debt was not contracted for
community benefit.”
1. Test for Community Debt – “The key test is whether, at the time
the obligation was entered into, there was a reasonable expectation
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the community would receive a material benefit from it. Actual
benefit to the community is not required as long as there was an
expectation of community benefit.”
iii. Types of Community Debts
1. Non-Family Debts – “When a spouse’s act creates a community
liability, it is enforceable only against the community property and
the acting spouse’s separate property.”
2. Family Debts – “If the obligation is for a family expense,
however, it can be enforced against the separate property of one
spouse even though the other spouse alone incurred the liability.”
a. Necessaries – “Family expenses are synonymous with a
family’s ‘necessaries,’ those items required for the
sustenance, support, and ordinary requirements of a family.
Rental of the family residence is a recognized family
expense that subjects the spouses to both community and
separate liability.”
b. Did the expense benefit the marital unit?
c. Expenses on paramours never benefit the marital unit.
d. Gambling Debts – Was the gambling proportionate to the
couple’s typical lifestyle, or was it unusually large?
iv. Thompson, Dissenting
1. “Rental expense for a dwelling in which the family did not reside
should not be a family expense.”
d. Failure to Allocate Marital Debt – Reversible error. Maloy v. Maloy (Tenn.
2008).
e. Availability of Separate Property
i. Majority Rule – Community debt may be satisfied by (1) marital property
or (2) the incurring spouse’s separate property. In re Marriage of
Jorgenson (Colo. 2006).
f. Debts Prior to Marriage – Obligation of incurring spouse
g. Marriage Benefited from Separate Property – Appropriate to use marital funds
to repay joint debts connected with the property. In re Marriage of Crook (Ill.
2004).
2. Impact of Post-Divorce Bankruptcy Filing
a. Modern Law – Domestic support obligations, e.g., property settlement, child
support, alimony, etc., are NOT dischargeable in bankruptcy. 11 U.S.C.
§ 101(14A), 523(a)(5).
i. Domestic support obligations are priority claims in bankruptcy.
ii. Prior to Bankruptcy Reform Act of 2005 – Post-divorce payments to settle
the distribution of property were dischargeable in bankruptcy.
b. Child Support and Alimony – NEVER were dischargeable debts.
c. Phegley v. Phegley (Bankruptcy Court 2011)
i. Intent Test – “When deciding whether a debt should be characterized as
one for support or property settlement, the crucial question is the function
the award was intended to serve.”
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1. “Whether a particular debt is a support obligation or part of a
property settlement is a question of federal bankruptcy law, not
state law. A divorce decree’s characterization of an award as
maintenance or alimony does not bind a bankruptcy court but is
however a starting point for the determination of the award’s
intended function. The burden of proof is on the party asserting
that the debt is nondischargeable.”
2. Factors – “Factors considered by the courts in making that
determination include (1) the language and substance of the
agreement in the context of surrounding circumstances, using
extrinsic evidence if necessary; (2) the relative financial conditions
of the parties at the time of the divorce; (3) the respective
employment histories and prospects for financial support; (4) the
fact that one party or another receives the marital property; (5) the
periodic nature of the payments; and (6) whether it would be
difficult for the former spouse and children to subsist without the
payments.”
ii. Policy Favoring Enforcement of Family Obligations – “Exceptions
from discharge for spousal and child support deserve a liberal
construction, and the policy underlying § 523 favors the enforcement of
familial obligations over a fresh start for the debtor, even if the support
obligation is owed directly to a third party.”
d. Attorney’s Fees – Can be a form of domestic support for bankruptcy purposes.
Williams v. Williams (8th Cir. 1983).
i. If no one paid the attorney, the attorney would pursue the wife for the
debt. If the attorney does this, the wife will not be able to pay her living
expenses. Thus, attorney’s fees are living expenses and maintenance—not
distribution.
e. Debts to Third Parties in Divorce Decree
i. Not dischargeable in bankruptcy.
ii. E.g., attorney’s fees.
f. Strategic Allocation of Debt to Avoid Creditors’ Claims – Court will reject
settlement agreement. Clayton v. Wilson (Wash. 2010).
How Equitable Is Equitable Distribution?
1. See Pages 539–43.
Alimony (Maintenance or Spousal Support)
Justifications and Approaches
1. Generally
a. Concerns ongoing payments after the marriage ends.
b. Historically, alimony was rarely awarded. The rate of alimony awards remains
low.
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i. Two-thirds of alimony awards are temporary.
c. When a couple divorces, neither spouse can maintain the same lifestyle living
apart. There is not enough money to go around.
d. Standard of Living Post-Divorce
i. Men – Generally improves.
ii. Women – Generally diminishes.
e. Alimony concerns ongoing transfers of money.  Available only to relatively
affluent couples (small percentage of divorcing couples overall).
2. History
a. Two Problems with Current Regime
i. Lack of consistency, resulting in a perception of unfairness; and
ii. Inability to predict accurately an outcome in any given case
b. History of Alimony – Pages 545–47
c. Gender Neutrality
i. All states have gender-neutral alimony statutes.
ii. Orr v. Orr (U.S. 1979)
1. Alimony statutes could NOT exclude men as potential recipients.
2. Two Legitimate and Important Government Objectives
a. Assisting needy spouses; and
b. Reduction of the disparity in economic condition between
men and women caused by the long history of
discrimination against women
3. “A gender-based classification which, as compared to a genderneutral one, generates additional benefits only for those it has no
reason to prefer cannot survive equal protection scrutiny.”
a. Equal Protection challenge
b. Intermediate scrutiny
3. Uniform Marriage and Divorce Act
a. Focuses on spousal need, rather than fault.
b. UMDA – § 308: Maintenance
(a) In a proceeding for dissolution of marriage, legal separation, or
maintenance following a decree of dissolution of the marriage by a court
which lacked personal jurisdiction over the absent spouse, the court may
grant a maintenance order for either spouse only if it finds that the spouse
seeking maintenance:
(1) lacks sufficient property to provide for his reasonable needs;
and
(2) is unable to support himself through appropriate employment
or is the custodian of a child whose condition or circumstances
make it appropriate that the custodian not be required to seek
employment outside the home.
(b) The maintenance order shall be in amounts and for periods of time the
court deems just, without regard to marital misconduct, and after
considering all relevant factors including:
(1) the financial resources of the party seeking maintenance,
including marital property apportioned to him, his ability to meet
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his needs independently, and the extent to which a provision for
support of a child living with the party includes a sum for that
party as custodian;
(2) the time necessary to acquire sufficient education or training to
enable the party seeking maintenance to find appropriate
employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of the spouse
seeking maintenance; and
(6) the ability of the spouse from whom maintenance is sought to
meet his needs while meeting those of the spouse seeking
maintenance.
4. Justifications for Alimony
a. Generally
i. Historical Rationales
1. Compensation for an “innocent” wife.
2. Husband has all of the property, and wife needs support.
ii. Contemporary Issue – Why must one spouse support another after divorce
and equitable distribution of marital property?
iii. Modern Trends
1. Legislatures are prohibiting alimony in shorter marriages.
2. Lawyers and judges are promulgating guidelines for longer-term
marriages.
b. Rationales
i. Providing Compensation – For (1) contributions to the household or
(2) foregone opportunities.
ii. Addressing Needs
iii. Rewarding Expectations
iv. Dissolving a Partnership – Difficulty: when a partnership dissolves, the
partners do not have ongoing obligations to each other.
c. ALI: Compensation for Loss (Pages 555–57)
i. Explanation – “Possibly most influentially, the ALI Principles
recommend an alimony formula, which they base on a theory of ‘spousal
compensation,’ and which, like all of the guidelines just discussed,
consider two different variables, income of the spouses and duration of the
marriage. If the income differential is significant enough and the marriage
lasted long enough, the guidelines provide a set of multipliers for
determining alimony. The amount is a function of the income of the
parties. The duration is a function of the length of the marriage.”
ii. Compensatory Payments – Purpose is to support the spouse who has
incurred a loss in earning capacity during the marriage based on the
greater responsibilities for the family.
1. See also the rationale on page 557.
2. ALI eschews consideration of fault.
iii. Text – Pages 555–56
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iv. Rule of Statewide Application
1. More predictability, which helps to promote settlements.
2. More intra-jurisdiction consistency.
3. ALI does not care what the rules are, but it wants the states to
come up with rules.
Factors and Alimony Awards
1. Court decides to award alimony.  Must then determine amount and duration.
a. Majority – States statutorily establish various factors, presumptions, or guidelines.
i. 39 States – Statutory list of factors
ii. 45 States – Standard of living is a determinative factor in calculating
amount of alimony.
iii. 31 States – Consider payee’s status as a custodial parent.
iv. 23 States – Marital fault is NOT a factor.
b. Minority – States have NOT statutorily established any factors, etc.
2. Fault-Based Alimony
a. UMDA and ALI remove all consideration of fault.
b. Some states retain fault-based alimony or take fault into consideration.
c. Risks
i. Dirty-laundry fact-finding is required.
ii. Court must determine relative fault of each spouse.
iii. Consideration of fault may diminish consideration of other factors.
3. Parisien v. Parisien (N.D. 2010)
a. Discretion on Duration of Alimony – “A district court may award spousal
support to a party in a divorce action for any period of time.”
b. Standard of Review – “Spousal support determinations are findings of fact and
will not be set aside unless clearly erroneous. A finding of fact is clearly
erroneous if it induced by an erroneous view of the law, if there is no evidence to
support it, or if an appellate court is left with a definite and firm conviction a
mistake has been made.”
c. Factors – “In awarding spousal support, the district court must consider the
relevant factors of the Ruff-Fischer guidelines. Factors to consider under the
Ruff-Fischer guidelines include: the respective ages of the parties, their earning
ability, the duration of the marriage and conduct of the parties during the
marriage, their station in life, the circumstances and necessities of each, their
health and physical condition, their financial circumstances as shown by the
property owned at the time, its value at the time, its income-producing capacity, if
any, whether accumulated before or after the marriage, and such other matters as
may be material. The needs of the spouse seeking support and the supporting
spouse’s needs and ability to pay must also be considered.”
d. Permanent and Rehabilitative Spousal Support – “There are two types of
spousal support. [1] While PERMANENT SPOUSAL SUPPORT is appropriate to
provide traditional maintenance for a spouse who is incapable of rehabilitation,
[2] REHABILITATIVE SPOUSAL SUPPORT is awarded to provide a spouse time
and resources to acquire an education, training, work skills, or experience that
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will enable the spouse to become self-supporting. Rehabilitative spousal support
is preferred, but permanent spousal support may be required to maintain a spouse
who cannot be adequately retrained to independent economic status.”
e. Outcome – Wife is receiving PERMANENT SPOUSAL SUPPORT.
i. Terminates when the wife turns 65. At this point, she can begin collecting
Social Security and Medicare. The payments will be less than the
maintenance she was receiving, but she will be receiving something.
ii. Her ex-husband will be 67 when his ex-wife turns 65. The court is
worried that he no longer will be able to make the maintenance payments.
1. Alimony almost never lasts indefinitely anymore. You cannot
squeeze blood from a stone.
4. Income Equalization
a. Partnership Theory – Supports income equalization. Marriage is analogous to a
partnership—with an agreement to share profits, assets, and debt.
b. In re Marriage of Reynard (Ill. 2003)
i. Court’s Discretion – “The trial court has discretion to determine the
propriety, amount, and duration of a maintenance award.”
ii. Factors – “These factors include the income and present and future
earning capacity of the parties; the needs of each party; any impairment of
earning capacity due to devoting time to domestic duties or having
forgone or delayed opportunities due to the marriage; the time necessary
to acquire appropriate education, training, and employment; the ability of
the party to support himself or herself; the standard of living established
during the marriage; the duration of the marriage; the age and physical and
emotional condition of the parties; contributions and services by the party
seeking maintenance to the education, training, or career of the other
spouse; and any other factor the court expressly finds to be just and
equitable.”
1. Weighing of Factors – “The court is not required to give the
factors equal weight and has broad discretion to grant a temporary
or permanent maintenance award for either spouse in amounts and
for periods of time as the court deems just.”
2. Income equalization is NOT required.
3. The payor must be able to provide for him- or herself before being
ordered to pay maintenance.
iii. Cautious Award of Maintenance – “Maintenance should only be
awarded when necessary. Maintenance is not the absolute right of every
party to a marriage.”
iv. McCullough, Dissenting
1. Focuses on the wife’s sacrifices and the inequitable distinctions in
the way that the trial court treated the spouses. Court viewed their
assets differently and forced the wife to sell her assets.
2. Husband had a better capacity to attain assets in the future, but he
was not forced to sell assets. The wife had a lesser capacity to do
this, but she was forced to sell assets that the she would never get
back.
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Enforcement
1. Judicial Enforcement
a. Court retains jurisdiction over a divorce decree, and then a spouse brings another
lawsuit to enforce the decree through civil or criminal contempt proceedings.
2. Private Enforcement
a. Can be enforced as a private contract.
b. Separate Trust Fund for Alimony Awards
c. Payor Spouse Obtaining Life Insurance – States may specify that a payor spouse
can be required to obtain life insurance only when special circumstances
demonstrate a need for the precaution.
3. Enforcement for Military Personnel
a. Uniformed Services Former Spouses Protection Act (Page 578)
b. Servicemembers Civil Relief Act (Page 578) – May frustrate enforcement of
alimony awards against active-duty service members.
4. Attachment of Wages (Page 578)
Modification
1. General Rule – Unless the alimony order prohibits modification, either spouse may
petition the court to increase or decrease alimony due to an unexpected and substantial
change in circumstance concerning the financial situation of either spouse.
a. Court must examine the change in circumstances and compare it to prior cases.
b. Factors to Consider
i. Effect of modification on the non-requesting party;
ii. Length of marriage;
iii. Each party’s current health;
iv. Purpose of the alimony originally awarded; and
v. Other relevant factors
c. Are the changes self-induced, or are they based on factors beyond the parties’
control?
2. Courts have WIDE DISCRETION in in deciding whether to modify an alimony award.
3. Courts usually enforce AGREEMENTS PRECLUDING MODIFICATION OF ALIMONY.
4. Martindale v. Martindale (Tenn. 2005)
a. Modification of Alimony – There must be a substantial and material change in
circumstances that was unforeseeable at the time of agreement.
i. The recipient or obligor can seek modification.
ii. Fact-driven and requires consideration of multiple factors.
b. Example – What if the payor suddenly is making a lot more money after the
marriage has ended?
i. Alimony – It should not make a difference. It depends on whether the
source of the new money has anything to do with the marriage.
ii. Child Support – It should make a difference.
Forms of Alimony
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1. Classified According to Duration
a. Pendente Lite
i. Temporary
ii. Used for support during divorce proceedings.
iii. Depends on (1) dependent spouse’s reasonable need and (2) other spouse’s
ability to pay.
b. Final Awards – Discussed Below
2. Rehabilitative (Transitional or Short-Term) Alimony
a. Provided for a short period while the recipient becomes “self supporting.”
b. Period of time varies depending on type of rehabilitation required.
c. Courts may require evidence of rehabilitative efforts. E.g., South Carolina.
3. Reimbursement Alimony
a. Spouse whose financial contributions during the marriage directly enhanced the
other spouse’s earning capacity is awarded compensation.
b. Does NOT terminate upon remarriage or other cohabitation.
4. Bridge-the-Gap (Limited-Duration) Alimony
a. Provides necessary funds to “bridge the gap” between married and single status—
that is, to meet identifiable, short-term support needs that are not expressly
rehabilitative in nature.
b. Recognized only by a few states.
5. Permanent, Indefinite, or Periodic Alimony
a. Spouse receives support for an undefined duration, awarded in periodic
installments, to take effect from the final order of dissolution until either party’s
death or the recipient’s remarriage.
b. Awarded when a court determines that a dependent spouse, because of age,
illness, or disability, cannot reasonably be expected to become self-supporting, or
the resulting differences in the parties’ respective standards of living would be
unconscionably disproportionate.
c. Usually terminates upon remarriage or other cohabitation.
d. Rarely awarded
6. Lump-Sum Alimony
a. Alimony transferred in a single payment.
7.  Types of Alimony
a. Transitional Spousal Support (Rehabilitative Alimony) – Facilitates recipient
spouse’s training for employment.
b. Spousal Maintenance – Support for recipient spouse for a specified or indefinite
period of time
c. Compensatory Spousal Support – Available when one spouse has contributed
significantly to the other spouse’s acquisition of skills.
Tax Treatment
1. Tax Treatment of Alimony
a. Alimony may be deducted from the payor’s gross taxable income. Alimony is
treated as taxable income to the receiving spouse.
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i. Payor always wants to characterize payments as alimony because of the
tax advantages.
b. Requirements
i. Must be part of a dissolution.
ii. Must be paid for at least three years.
iii. Must be paid in the same amount of money every year unless there is a
sensible schedule specifying otherwise or a circumstance not under the
payor’s control occurs.
iv. Must be in cash, not equity. (But it can include cash payments to third
parties.)
v. Must terminate upon the payor’s death.
1. But there can be life-insurance provisions.
2. There are other termination circumstances: remarriage of payee or
payee cohabitating with another partner.
2. Child-support payments cannot be deducted from the alimony owed.
ALTERNATIVES TO LITIGATION
1. Reasons to Litigate
a. Spite
b. Distaste for Negotiation
c. Calling the Bluff: The Breakdown of Negotiations
d. Uncertainty and Risk Preferences
e. No Middle Ground
2. Risks of Litigation
a. Cost of litigating is burdensome.
b. Relinquishing control to courts of children and financial survival.
c. Ratchets up antagonism, and children get caught in the crossfire.
Separation Agreements
1. Strongly favored by courts and legislatures because they allow parties to resolve issues
that courts cannot resolve.
2. Fiduciary Relationship Between Parties
a. Married persons have a fiduciary relationship and must continue to disclose
financial information until they are divorced.
b. In most states, fiduciary duty to disclose continues until date of divorce decree.
c. Nonfinancial Information – Spouses do NOT need to disclose nonfinancial
information after the decision to divorce has been made.
3. UMDA – § 306: Separation Agreement (Page 886)
4. Separation Agreement and Divorce Decree
a. Approval or Ratification
i. Court endorses the agreement as valid under state law and as reasonable.
ii. Agreement is NOT part of the judgment.
iii. Enforceable only under contract principles.
b. Incorporation
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i. Agreement becomes part of the judgment.
ii. Enforceable by contempt of court and under contract principles.
c. Merger
i. Agreement becomes fully part of the judgment.
ii. May NOT be enforced as a separate contract.
iii. Enforceable only by contempt of court
5. Modification of Marital Separation Agreements
a. Incorporated or Merged into Judgment – Absent a provision barring
modification, the agreement may be modified after entry of the judgment on the
same grounds permitted for modification of other court orders.
b. Not Incorporated or Merged into Judgment – Modifiable under ordinary
contract principles.
c. UMDA § 306(f) – Parties may bar or limit future modification, except regarding
child custody, visitation, or support.
i. Minority Rule – Parties cannot divest a court of judicial authority to
modify an agreement. Toni v. Toni (N.D. 2001).
6. Voiding a Separation Agreement
a. Court review typically is minimal.
i. May sua sponte probe parties’ economic circumstances to ensure
conscionability.
ii. No duty of independent investigation.
b. UMDA § 306(b) (Majority Rule) – Agreement concerning alimony or property
rights is presumptively binding on the court—absent proof of fraud, duress, or
unconscionability.
7. Special State Interests
a. States have interests in marriage, families, and children that they do not have in
other matters between private parties.
b. States have an interest in ensuring that the terms are not unconscionable.
Alternative Dispute Resolution
1. Predominant method of resolving marital-dissolution disputes today.
2. Not Appropriate
a. Domestic violence
b. Extremely controlling spouse
3. Negotiation
a. Parties seek to resolve their rights and obligations before a final court decision.
i. Strongly influenced by predictions and expectations about the background
rules of law. What would a court decide?
b. Most Common Method – 90% of disputants resolve financial and child-related
matters through negotiations.
c. Occurs before a suit has been filed, during trial, and during appeal.
d. Policy – Pages 898–907
4. Mediation
a. Definition
i. Facilitated negotiation
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ii. Parties present all or part of their dispute before a neutral third party, the
mediator, who helps them work through the issues and reach solutions.
iii. Consensual, rather than adjudicative, process, as the parties retain ultimate
decision-making authority.
b. Mandatory Mediation – Usually required by statute. (Majority Rule)
i. Constitutional Challenges (Access to Courts; Due Process) – Rejected
because the judicial process remains available.
ii. Short Delays – No denial of access to courts because the mediation
process is relatively brief. Only delays court resolution.
iii. Longer Delays – Viable constitutional challenge may be possible, but it is
unlikely to prevail. Litigation itself imposes significant delays.
c. Mediator
i. Purposes
1. Maintain constructive progress on negotiations.
2. Maintain civility.
ii. Qualifications
1. Private Providers – Minimum standards are set by the providers
themselves.
2. Public Providers – Minimum standards are set by statute or court
rule, e.g., specified number of hours of training.
3. ABA Mediator Standards – Page 918
4. ABA Professional Conduct Rules for Mediators – Pages 918–19
iii. Authority – No authority to impose a binding decision or require that the
parties reach an agreement.
iv. Duties
1. At the end of each session, the mediator drafts the tentative points
of agreement in a memorandum of understanding.
2. At the end of mediation, the mediator sends the parties any
completed terms of their agreement.
v. Co-Mediation – Lawyers may work with clergy, mental-health
professionals, child psychologists, social workers, marriage counselors,
etc.
vi. Unauthorized Practice of Law
1. Page 919
2. May lead to civil or criminal sanctions.
3. General Rule – Practice of law is restricted to those who (1) hold
law licenses and (2) have been admitted to the state bar after
examination for education and character. Rest. (3d) of Law
Governing Lawyers §§ 2, 4.
4. Depends on Type of Mediation (Hazy Demarcation)
a. Facilitative
i. Merely facilitates the parties’ negotiation.
ii. Not worth the time and expense.
b. Evaluative
i. Takes a proactive role in moving the negotiation
forward.
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ii. Greater likelihood of giving legal advice.
iii. Only type of mediation worth the time and expense.
d. Mediated Agreement
i. Parties execute it.  Enforceable under contract principles.
ii. May be submitted to the court as a binding order or for incorporation or
merger into the judgment or decree.
e. Unresolved Issues – May be litigated.
f. Child Custody
i. Joint and shared custody arrangements are much more common than with
negotiation or litigation.
ii. Parties may trade financial claims for custody rights.
g. Lawyers Attending Mediation – Page 920
h. Children Attending Mediation – Pages 920–21
i. Confidentiality
i. Uniform Mediation Act Recommendations – Pages 921–22
ii. Rules of Evidence and Procedure – Page 922
iii. State Laws – Page 922
j. Mandatory Reporting of Child Abuse and Neglect
i. States vary.
ii. Mandatory Reporters – Must report if child abuse or neglect is reasonably
suspected to have occurred.
iii. Permissive Reporters – May report suspected acts, but not required to.
5. Collaborative Divorce
a. [See article on portal, which was the only assigned reading.]
b. Each party has its own lawyer, but if the divorce goes to litigation, each lawyer
must withdraw because of waiver of the attorney-client privilege.
i. This places some fire under the clients to resolve their issues together.
Neither wants to pay for a new lawyer or new experts.
c. Lawyers are not acting as normal lawyers do. A lawyer is not zealously pursuing
his or her client’s best interests to the exclusion of the other party’s best interests.
d. Experts are shared between the parties.
e. Lawyers are barred from testifying if the collaborative endeavor fails.
f. There is a lot of discretion in family law. A lot of the law is unclear. Having a
lawyer to help a party sort out the law is helpful, but the uncertainty counsels in
favor of working with the other party rather than going to litigation.
g. These attorneys attempt to avoid riling animosity between the parties.
Prenuptial Agreements
1. Who should have a prenuptial agreement?
a. One party has a lot more money than another. Family money; family informally
insists on a prenuptial agreement.
b. Husband is elderly and wealthy, and the wife is young and without wealth.
c. Both parties are older, have assets, and do not want to merge their assets. They
want to ensure that their own children and grandchildren receive their wealth.
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2. List of Jurisdictions’ Premarital Agreement Acts Based on the UMDA Model –
Supplement Page 47
a. Minority Approach – No special law governing prenuptial agreements. E.g., Pa.
3. Features
a. Subject matter may include property, personal rights not in violation of public
policy or criminal code, etc.
b. Must be voluntary.
c. There must be knowledge or presumed knowledge of the other party’s financial
situation.
4. Timing
a. Must not be sprung up, e.g., shortly before the wedding. Probably must be
brought up more than 30 days before the wedding.
b. Each party must have the opportunity to consult independent counsel.
5. Second-Look Doctrine – Courts look to whether the agreement was unconscionable at
the time of (1) signing or (2) enforcement.
6. New UMDA Approach
a. Does NOT apply to separation agreements.
b. Favors participants’ rights to set the financial terms of their marriages.
c. Must be in writing.
d. Must have adequate due process at the time of signing.
e. Must have full disclosure at the time of signing.
f. Must not be unconscionable at the time of execution.
g. Must meet minimal standards of fairness at the time of enforcement.
7. Time-Sensitive Terms – Courts will accept prenuptial agreements that include different
terms depending on the length of the marriage. E.g., if the marriage is longer, one spouse
will get more money; if the marriage lasts for ten years, the agreement will go away; etc.
8. Unenforceable Terms
a. Wife must do certain housework.
b. Wife must not weigh more than 115 pounds on penalty of divorce.
i. State sets terms for entering and leaving marriages, and courts will not
allow private parties to establish new terms.
ii. Also, courts generally do not like to interfere with intact marriages.
iii. Courts do not want to obviate the protections afforded to victims of
domestic violence.
JURISDICTION
1. Generally
a. Forum shopping is less important today regarding divorce, but it is still relevant
for child custody.
b. No doctrinal reason for according jurisdiction to state courts.
2. Jurisdiction Requirements
a. Personal
b. Subject-Matter
3. Federal Jurisdiction
a. Diversity Jurisdiction
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4.
5.
6.
7.
8.
i. “Domestic Relations Exception” to federal diversity jurisdiction. Reaches
divorce, property distribution, child custody, and child support.
ii. Federal courts may retain jurisdiction over intra-family torts,
constitutional claims, and other things.
b. Full Faith and Credit Clause – Other states must recognize that the marriage has
ended.
Divisible Divorce
a. Court may have jurisdiction to grant a divorce, but not jurisdiction over any other
attendant matters.
b. Usually occurs when one party has left the state where the marriage is domiciled.
Grounds for and Granting of Divorce
a. SJ Jurisdiction – Must have personal jurisdiction over at least one party.
i. The “rem” is the marriage. One party can submit the marriage to the
court.
ii. Party must satisfy a state’s domicile and residency requirements. May
appear ex parte to seek divorce.
iii. Other party must have notice, e.g., service, putting a notice in a
newspaper.
b. If only one party submits, courts may reach no other issues, except for property
belonging to the parties that is in the state.
c.  All other attendant matters require personal jursidction and looking at the
state’s long arm statute.
Distribution of Property & Maintenance
a. Court must have PJ over both spouses.
b. Usually in the state where the marriage was domiciled, even if one party has left
the jurisdiction.
i. Where was the marriage performed
ii. Where did the parties live
iii. Were the children born and raised here
iv. Are there sufficient minimum contacts with the state to make the assertion
of PJ consistent with DP?
c. Once jurisdiction is asserted, the court may continue to assert it, even if one of the
parties leaves the state.
d. Jurisdiction over both parties  May decide all property matters.
i. Kitchen sink  May decide all property matters even if the property is
outside the court’s jurisdiction.
e. Courts usually use their own property regimes, e.g., title theory or community
property, for property located in other jurisdictions.
i. Law governing the marriage governs the property.
f. No continuing jurisdiction because property distributions are final.
Child Support and Modification
Child Custody and Modification
a. Focus – Not on child’s best interests, but on adults’ rights and the government’s
interest in achieving judicial resources by avoiding duplicative or competing
orders.
b. UCCJEA
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i. Uniform law
ii. Emphasize and begin with home state jurisdiction, using same definition
as UIFSA
1. States with significant connections and substantial evidence
pertinent to the custody jurisdiction
2. Last Resort Jurisdiction – No child left behind.
3. Emergency Jurisdiction – Abandoned or crisis children
iii. In 48 states and DC
iv. Initial Order
1. Child’s home state has SJ jurisdiction.
2. Other states – May assert SJ only if the child has no home state or
the child is in another state where there are significant connections
and evidence pertinent to custody.
a. May assert jurisdiction when parent or child lives in
jurisdiction or there are still significant ties.
b. Also may assert jurisdiction if all other states have declined
and believe that the asserting state would be best.
c. Also may assert if none of the other conditions could be
satisfied and no other state could claim jurisdiction
3. It is neither necessary nor sufficient that the adults or child be
present in the state. Personal jurisdiction is not required for the
court to issue a custody order.
v. Modification
1. Also emphasizes continuing exclusive jurisdiction in issuing court,
unless no parent or child has significant ties anymore or there is no
substantial evidence there anymore, e.g., everyone moves.
2. May modify if and only if it would be the proper court if the initial
custody order were being considered today.
a. Use analysis for children without a home state. No other
court is the obvious home state court.
vi. Jurisdiction may be moved if a court determines that neither the parents
nor child still live in the jurisdiction.
c. PKPA
i. Federal statute
ii. Governs all interstate custody disputes.
iii. Require states to give FFAC to custody orders from other jurisdictions if
the custody decision was made consistent with PKPA. Courts cannot
issue competing orders while another proceeding is going on.
1. PKPA Proproety
a. State must have jurisdiction under PKPA.
b. One of the following must be true:
i. Issuing state was the home state when it issued the
order and one of the parents or child still lives there.
ii. No other state has jurisdiction, and it would be in
the best interest of the child for the court to assume
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jurisdiction, and there are significant connections
and available evidence
iii. Child is physically in the state and the child was
abandoned or there is an emergency
iv. No other state has jurisdiction or the home state
declines and it is in the best interest for the state to
continue exercising jurisdiction. [?]
v. State had claim to original jurisdiction even though
another state acted.
iv. Emphasize and begin with home state jurisdiction, using same definition
as UIFSA
v. Modification
1. Where state A issues an initial custody order, state B may not
modify it unless it has jurisdiction to do so under PKPA and state
A no longer has jurisdiction or declines to exercise jurisdiction.
(Only one jurisdiction at a time may modify).
2. (Applies to UCCJEA) Court may not modify another state’s
custody order unless:
a. It would have current jurisdiction to make a decision if the
custody decision were sought today; and either the original
issuing state decided it no longer has continuing
jurisdiction or defers to the state that wants to consider
modification as being more convenient for the parties; or a
court in either state decides that no one resides in the state
issuing the original order anymore.
d. Issues
i. Should jurisdiction over the child always follow the child?
ii. What about wrong removal? If jurisdiction follows children, we may be
rewarding parents that act badly.
9. Different Laws
a. Support and Custody
i. Different laws. Designed to promote consistence. Designed to cover
children until majority.
ii. Child Support
1. Federal
a. UIFSA
i. Latest in a series of uniform laws
ii. In 1998, Congress required all states to enact and
follow UIFSA. Related to recipient of child support
enforcement funds. All states have adopted it.
iii. Title 46 of DC Code.
iv. Initial Order
1. Jurisdiction is always in child’s home state,
except when there is none.
2. Home State – State where the child has lived
with a parent or person acting as such for 6
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months preceding petition for support. If a
child is less than 6 months old, court will
begin inquiry at date of birth. Temporary
absences are not subtracted from the 6
month period.
a. Prefer home state for initial decree
because the parties and evidence are
there. Relatively easy location to
determine.
3. PJ over Nonresident Parent – Court may
assert jurisdiction if the individual is
personally served while in the state,
individual enters an appearance, individual
ever resided with child in jurisdiction,
individual provided prenatal support while
residing in the state, child resides in the state
as a result of the acts or directives of the
individual, or individual engaged in sex in
the state that could have resulted in the child
being conceived in state, or individual
asserted parentage in a registry, or if there is
a reason under the state’s long-arm statute
that is constitutional.
4. Once Jurisdiction is established, the court
has continuing jurisdiction over the matter.
5.  If the order requires support until 21, and
the new state has a new, lesser duration, the
original order controls. Prevents forum
shopping.
v. Modification
1. Issuing court has continuing exclusive
jurisdiction so long as it remains the sole
controlling order; and one of the parties or
the child remains in the jurisdiction; or even
if none remain in the jurisdiction, the adults
consent to continuing jurisdiction. Court
that issued the original order must relinquish
jurisdiction if another court asserts that it is
the home state of the child. This trumps the
original issuing state.
a. Kind of defeats the purpose of
UIFSA.
vi. Enforcement
1. Any state in which a party lives has a duty to
enforce through a 4D agency.
b. FFCCSOA
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i. Other states must respect initial orders where the
issuing court had jurisdiction.
1. Problem – Child Support orders always
remain open to modification.
ii. Prioritizes orders where multiple states claim
jurisdiction, and an order has been issued.
iii. Deal only with child support, not spousal support.
iv. One state may modify another’s order only if it
could claim initial jurisdiction were the action
beginning today; and the court that issued the earlier
order no longer has continuing jurisdiction because
neither of the adults, nor the child lives there
anymore, or because the parties consent to transfer
of jurisdiction.
10. Jurisdiction and Structure of State Courts
a. Courts typically are at the lowest level of the state court hierarchy. Many judges
view them as training ground for the real work. Resource-strapped. Lack of time.
b. Proposals for Reform
i. Elevating family courts to the level of comparable trial courts and
compensating the judges commensurately.
ii. Unified Family Courts
1. Problem Being Addressed – Preventing children and families from
appearing in front of a ton of judges for different issues. No one
understands the full record. Judges may not be aware of parallel
hearings or orders.
2. No single definition of unified family court.
3. Four Common Elements
a. Comprehensive jurisdiction over all matters affecting a
family
i. Dispute over whether criminal matters (stemming
from family matters) should be included. States
vary.
b. Efficient modern administrative designed to support the
idea of one family one team.
c. One Family, One Team – Appearing before the same judge
and service providers.
d. Multidisciplinary Training for All Court Staff – Helping
everyone understand family matters and the struggles that
clients face.
POST-DISSOLUTION RIGHTS AND RESPONSIBILITIES FOR CHILDREN
Child Support
Rationale and Principles
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1. Generally
a. Definition – Private payments for children who do not live with both parents.
b. Usually transferred to the custodial family through the child support enforcement
program, which is operated at the state and local levels and regulated by the
federal government.
c. Support Obligation – Unless parental rights are terminated, both parents retain a
support obligation until a child reaches the age of majority (and sometimes
longer).
i. In some fatherhood cases, men have duties to pay for pregnancy expenses.
d. Critical to living conditions in a custodial parent’s household.
e. As cash assistance has diminished, child support has become more important for
poor families.
i. Poor families are receiving more child support because they are less likely
to receive TANF today.
ii. The child support enforcement program has become more effective at
collecting child support in recent years.
f. Issues in Child Support
i. What happens when a person owes child support payments to two
families? A: The first family must be prioritized. “First mortgage.”
ii. Three Pony Rule – No child needs more than three ponies.
2. Assignment and Pass On
a. Assignment
i. Custodial parent receiving public assistance must sign over to the
government the right to collect any child support.
ii. Government collects support payments from obligor.  Government may
reimburse itself for any payments made to the custodial parent before
turning over the child support to her.
b. Pass On
i. States may elect to pass on modest amounts of child support to the
intended recipients, i.e., custodial parent and children, before reimbursing
the federal government.
3. Support Obligations of Persons Other Than Biological Parents
a. Stepparents
i. No general common-law obligation to support a stepchild merely because
of marriage to the child’s biological parent.
ii. State Statutes – May impose support obligations, but they usually are more
limited than those imposed on biological or adoptive parents.
iii. In loco parentis or estoppel doctrines may impose support obligations.
b. Persons In Loco Parentis or Parents by Estoppel
i. In Loco Parentis
1. Person who assumes parental obligations is treated as a parent.
2. Test – Examine person’s conduct and statements to determine
whether he or she INTENTIONALLY assumed parental obligations.
Zellmer v. Zellmer (Wash. 2008).
3. Can be terminated at will. In re B.S.M. (Colo. 2010).
4. Usually relevant only to prior support or to claims by third parties.
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ii. Parent by (Promissory or Equitable) Estoppel
1. Imposes support obligations on persons who promise support, treat
a child as their own, or discourage contact between the
noncustodial biological parent and child.
2. Reserved for particularly compelling cases. In re Glaude (N.H.
2004).
c. Adoptive Parents
i. Adoptive Parents – Full support obligations of biological parents, as
adoptive parents are legal parents.
ii. Biological Parents – Retain support obligation until the court enters the
adoption decree.
d. Grandparents
i. No general common-law obligation to support a child because of the
grandparent-grandchild relationship.
ii. Support Scenarios
1. Legal guardian or custodian
2. In loco parentis
3. Parent by estoppel
4. Agreed to provide support
iii. Minority Rule (Over 12 States) – Statutory support obligation when an
UN-EMANCIPATED MINOR CHILD becomes a parent. Continues until
the un-emancipated minor child reaches majority.
e. Children’s Support for Their Parents
i. Support obligation only where a “filial responsibility” statute imposes the
obligation. Obligation is much lower than parents’ obligation to support
children.
ii. About 30 states have “filial responsibility” statutes.
iii. Enforcement
1. Private support actions
2. Civil enforcement by public agencies
3. Criminal enforcement
Post-Majority Support Obligations: Support During Post-Secondary Education
1. Parent’s support obligation usually terminates when a child reaches the age of majority,
which is 18 in most states.
2. Common Law – Parents have no obligation to support their children’s pursuit of postsecondary education past majority.
3. Support Obligation Scenarios
a. Marital settlement agreements, divorce decrees, and child support and visitation
agreements may contain provisions requiring parents to support their children’s
pursuit of post-secondary education past majority.
b. 20 States – Statutes authorizing courts to order that divorced parents provide child
support until graduation from high school and for a few years thereafter while the
child pursues or completes studies. E.g., Missouri.
c. General Approach – Impose the support obligation only on the noncustodial parent.
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4. Rationales
a. Divorced parents may use conflict over a child’s college education as a proxy for
their own conflicts.
b. Divorced spouses may not have as much money as they otherwise would have had to
send a child to college.
c. Age of Child at Divorce – If the spouses divorce when the child is, e.g., 16, this could
be very destabilizing.
d. There is statistical data showing that children of divorce are at a disadvantage as far
as paying for post-secondary education is concerned.
5. No Viable Equal Protection Claims – Rejected Equal Protection challenges to statutes that
impose post-majority educational support obligations on divorced parents, but not on parents
in intact families. In re Marriage of Kohring (Mo. 1999).
6. Pamela T. v. Marc B. (N.Y. 2011)
a. Facts and Holding – A father was ordered to contribute 40% of the costs of his son’s
college expenses at a private university by a state law. SUNY cap was not applied.
The father could contribute to the son’s college education. The fact that the private
school was more expensive that a public college was not a reason to interfere with the
child’s school choice. While the mother had considerable more savings than the
father and a pension plan, the father’s net income was over $100,000 and his child
support obligation was low.
b. Authority of Court – “The enactment of [state law] reflects the New York
legislature’s realization of the important role that college plays in the lives of New
York’s young people and it confers upon the courts of New York the authority to
direct a parent to contribute to a child’s private college education, even in the absence
of special circumstances or a voluntary agreement.”
c. Factors – “The statute provides that when a court exercises its discretion to direct
such a contribution from a parent, it is to do so having regard for the circumstances of
the case and the parties, the best interests of the child, and the requirements of justice.
Case law [sets] forth specific factors that are to be considered in determining whether
to award college expenses. These factors include the educational background of the
parents and their financial ability to provide the necessary funds, the child’s academic
ability and endeavors, and the type of college that would be most suitable for the
child.”
d. SUNY Cap
i. Judicially created concept
ii. Situations Where SUNY Cap Applies – “One of the circumstances under
which the SUNY cap is to be applied is where the parties have entered a binding
stipulation or separation agreement specifically providing for such a limitation
on the amount a parent is to contribute towards a child’s college education,
irrespective of whether the child attends a public or a private college. Another
situation is where an agreement specifically requires both parties to consent to
decisions concerning college and one party withholds consent on the basis of
the cost of a particular college.”
e. Court will NOT evaluate or rank colleges.
i. No judicially manageable standards
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ii. “It is difficult to conceive of a workable procedure — let alone a methodology
— for a court to make a finding that one college is ‘better’ than another.”
iii. Commercial college rankings are better indicators.
iv. Deeply Personal Choice – “Unquestionably, the selection of a college for a
child goes far beyond the statistical and the quantifiable, and is instead a very
personal, very subjective decision. It is a decision that should be made not by a
court but by the child, ideally with the help and support of both parents.”
f. Cost Is Not Dispositive – “Provided that the funds are available to finance the child’s
education, the fact that a college is a private school and costs more than a public
school is not a reason to interfere with the child going to the school he chose and he
wants to attend. One of the factors to be considered when making a determination
under is the parents’ educational background.”
Federalization of Child Support
1. Family Support Act of 1988 – Congress required states to adopt guidelines.
a. Based on (1) child’s need and (2) parent’s ability to pay.
b. Apply to (1) initial entry of support and (2) modification.
c. Purpose – Restrain discretion of trial judges.
d. Federal funds were tied to states’ compliance.
2. Three Models of Child Support
a. Income Shares Model
i. Majority Rule – Two-thirds of states
ii. The parents’ income is combined to replicate total income of an intact
family.
iii. The basic child support obligation is prorated according to each parent’s
income.
b. Percentage of the Obligor’s Income Model
i. About 13 states
ii. Determines the child support order amount by applying a state-determined
percentage to obligor income.
c. Melson Formula
i. 3 states
ii. Three-Step Process
1. After determining the net income for each parent, a self-support
reserve (also called a “primary support allowance”) is subtracted
from each parent’s income.
2. Each parent’s income less the self-support reserve is applied to the
child support obligation calculation.
3. To the extent that either parent has income available after covering
the self-support reserve and his or her share of the child’s primary
support needs, an additional percentage (the SOLA) of the
remaining income is applied to the child support obligation.
iii. Has received critical acclaim.
iv. Works best for poor and middle-class families, but it can be used for more
affluent families too.
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3. Income
a. All guidelines require determination of parental “income.”
b. Imputed Income to Unemployed or Underemployed Parent
i. Permissible when a parent’s labor force participation should produce more
income, based on the parent’s education and experience.
ii. When income is imputed, allocation of the child support obligation is
based on the parent’s potential income, rather than her actual income.
iii. Earning Capacity – Depends on obligor parent’s earning capacity.
“Earning capacity is composed of:
1. “The ability to work, including such factors as age, occupation,
skills, education, health, background, work experience and
qualifications;
2. “The willingness to work exemplified through good faith efforts,
due diligence and meaningful attempts to secure employment; and
3. “An opportunity to work which means an employer who is willing
to hire.” In re Marriage of Henry (Cal. 2005).
iv. Seek-Work Order – Court may issue before imputing income. Violation
can expose the obligor to civil contempt proceedings.
c. Courts consider what proportions of their incomes parents of different income
levels spend on their children.
i. Low-income families spend higher proportions.
ii. High-income families spend lower proportions.
4. Deviation from Guidelines Amount
a. Presumption – The guidelines are correct.
b. Deviation is permitted only for compelling reasons.
i. Parenting Time
1. Unusual custody arrangements may justify deviation.
2. More parenting time  Less child support required
ii. Child’s Financial Resources
1. Some states permit or require consideration.
2. Child Is a Trust Beneficiary – Whether lower child support is
required depends on (1) the child’s need or (2) the settlor’s intent
expressed in the trust.
3. Social Security – States vary. Three approaches. (Page 616)
iii. Parental Agreement
1. Parents may agree to a deviation, but a court must approve it.
2. Parents may agree to additional child support, but not less.
iv. Legitimate Reasons for Paying Less Child Support
1. Noncustodial parent has assumed financial obligations not
contemplated by the guidelines.
2. Parenting plan provides for visitation with the obligor parent for
periods that are substantial, but less than would trigger automatic
reduction under extensive visitation deviation guidelines.
5. Low-Income Obligors
a. Child support guidelines apply to all parents, including poor parents. 45 C.F.R.
§ 302.56.
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b. State approaches vary. (See page 617.)
c. Many “deadbeat dads” simply cannot pay what they are ordered to pay. Cannot
pay child support without impoverishing themselves.
Modification of Child Support
1. Generally
a. Child support order defines only a parent’s “present obligations.” Crews v. Crews
(N.J. 2000).
b. Agreements prohibiting modification of support orders are unenforceable as
against the public policy of protecting children. Larson v. Larson (N.D. 2005).
i. Always open to modification.
c. Parents may be required to disclose financial information on a regular basis to
ensure that everything is on the level.
2. “Change of Circumstances” Standard
a. UMDA § 316(a) – “The provisions of any decree respecting maintenance or
[child] support may be modified . . . only upon a showing of changed
circumstances so substantial and continuing as to make the terms
unconscionable.”
i. Least accommodating standard
ii. No state has followed the UMDA.
b. Bradley Amendment
i. Enacted in 1986.
ii. States must maintain laws that:
1. Provide that an unpaid, court-ordered child support installment
constitutes a vested right when due;
2. Prohibit retroactive modification of vested child support
arrearages;
3. Consider past-due child support installment as a final judgment;
and
4. Extend full faith and credit to enforcement of judgments for pastdue child support.
iii. Frustrates informal agreements.
iv. “Nonconforming” Child Support Payments – Informal support does
NOT excuse payments mandated by the order or create entitlement to a
credit for these payments.
v. Blunting Bradley Amendment – State laws that abate the child-support
obligation during extended periods when the child resides with the
obligor. E.g., Missouri.
3. In re Marriage of Nelson (Iowa 1997)
a. Facts – The trial court modified an increase in the ex-husband’s child support
obligations for his two children from $425 per month to $695 per month. The exhusband contended, among other things, that the trial court did not correctly
calculate his income and that of his ex-wife.
b. Cautious Modification – “When justice clearly demands it, the child support
guidelines provide for a modicum of flexibility. Special circumstances can call
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4.
5.
6.
7.
8.
for an adjustment up or down when necessary to do justice between the parties.
Any request for variation should however be viewed with great caution. It must
be remembered that impetus for the guidelines came from the federal and state
legislatures and the amounts were fixed only after exhaustive study of suggestions
invited from all known public and private interests. The guidelines must therefore
be respected as carefully considered social determinations.”
c. Child Support Trumps Indebtedness – “The guidelines clearly and expressly
render the reduction of debt a priority status inferior to the needs of his children.
The guidelines presuppose that debts can be refinanced, but that childhood cannot
be postponed.”
i. Obligor may need to take out loans and go into debt to pay child support.
ii. Society has made a judgment that children come first, and the court will
enforce that. If that means that he has to sell his car, then so be it.
Remarriage, New Household, and Obligations to Other Children
a. Some decisions create a PREFERENCE FOR CHILDREN OF THE FIRST
FAMILY. Mandel v. Mandel (Mass. 2009).
b. Some decisions hold that child support guidelines permit APPORTIONMENT OF
PAYMENTS AMONG CHILDREN OF MULTIPLE RELATIONSHIPS. Ameen v.
Ameen (Okla. 2003).
c. New children are A FACTOR in modifying a child support obligation. Ameen v.
Ameen (Okla. 2003).
Health or Medical Needs
a. Obligor parent’s health or special medical needs may support downward
modification of a child support order. Macauley v. Duffy (N.Y. 2002).
b. Child’s health or special medical needs may support upward modification of a
child support order. Miller v. Jacobsen (S.D. 2006).
Parent’s Lost or Changed Employment
a. Court may grant downward modification of child support obligations, at least
temporarily, where the AFFECTED PARENT DILIGENTLY SEEKS
REEMPLOYMENT. Brewer v. Brewer (Fla. 2005).
b. Court may grant downward modification of child support obligations where it
finds that the parent changed employment in a GOOD-FAITH EFFORT FOR
SELF-IMPROVEMENT. Lucante v. Lucante (N.J. 2010).
i. Must be short-term, i.e., not attending medical school.
ii. Must be reasonably likely to increase a parent’s earning potential.
c. Court may deny downward modification of child support order where the obligor
parent’s CRIMINAL BEHAVIOR OR OTHER WRONGDOING leads to
unemployment. Lambert v. Lambert (N.J. 2000).
Other Considerations (Pages 630–31)
a. Lottery Winnings
b. Personal Injury Recoveries
c. “In-Kind” Payments
d. Inheritances
e. Inter Vivos Gifts
f. Commissions, Overtime Pay, and Other Remuneration from Employment
Cost of Living Adjustments
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a. Generally included in the initial child support order.
b. Helps to avoid rancor.
c. Court may retain authority to approve any adjustments.
9. State “Rules of Thumb”
a. State laws establishing entitlement to modification when the existing child
support amount varies by more than a specified amount or percentage above or
below the amount that would be due currently under the guidelines. E.g., Iowa.
10. Imputing Income on Modification
a. In re Marriage of Pollard (Wash. 2000)
i. Initially Setting Child Support Amounts – “In setting child support, the
trial court must take into consideration all factors bearing upon the needs
of the children and the parents’ ability to pay. Overall, the child support
order should meet each child’s basic needs and should provide any
additional child support commensurate with the parents’ income,
resources, and standard of living. To facilitate these goals, the legislature
directs that the child support obligation should be equitably apportioned
between the parents.”
ii. Voluntary Unemployment or Underemployment
1. “A parent may not avoid a child support obligation by voluntarily
remaining unemployed or underemployed.”
2. “Voluntary unemployment or underemployment will not allow a
parent to avoid his or her financial obligation to the children who
are the subjects of the support order. When assessing the income
and resources of each household, the court must impute income to
a parent when that parent is voluntarily unemployed or voluntarily
underemployed.”
3. Avoiding Imputation of Income – “An underemployed parent
may not escape imputation of income unless he or she is gainfully
employed on a full-time basis and is not underemployed to reduce
the support obligation.”
iii. Imputing Income – “The court determines whether to impute income by
evaluating the parent’s work history, education, health, age and any other
relevant factor. If the court decides the parent is gainfully employed on a
full-time basis, but also underemployed, the court makes a further
determination whether the parent is purposely underemployed to reduce
his or her support obligation.”
iv. Policy – The mother cannot work less because there is no one at the table
advocating for the earlier, preexisting children. The mother and her new
husband cannot make the decision that the mother will work less so that
she can take care of her new children.
11. Imputed Income Scenarios (Pages 634–35)
a. Further Education
b. Relocation
c. Early Retirement
i. Should a police officer be able to take early retirement when her daily job
is dangerous?
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d. New Spouse’s Income
e. Voluntary Change of Employment
f. Parental Fault
Child Support Enforcement
1. Civil Enforcement
a. Most enforcement is civil.
b. Statutes Affecting Child Support Enforcement – Pages 637–39
c. Each missed payment creates an obligation that is enforceable in court.
i. When the enforcement burden is on the recipient (private model), this
means that he or she must go to court each time that there is a missed
payment. This takes a lot of time and effort.
d. Child Support Enforcement (CSE) Program (IV-D Agencies)
i. Created by the Social Services Amendments of 1974.
ii. Enforces and administers child support in each state.
1. Collection efforts;
2. Helping custodial parents locate noncustodial parents;
3. Establishing paternity where necessary; and
4. Establishing, enforcing, and modifying child support obligations
iii. Assists welfare recipients, whose cooperation is a condition of receiving
public assistance.
iv. Assists other custodial parents for a nominal fee.
v. Fees – Today, there is a sliding scale.
vi. Policy – Payment of child support serves a child’s emotional needs.
e. Custodial Mothers’ Noncooperation
i. Federal law requires custodial mothers to cooperate in good faith unless
“good cause” for noncooperation is established.
ii. Good Cause
1. PRWORA allows states to define “good cause.”
2. Good cause generally exists when the parents’ relationship was
marked by domestic violence or when the child was conceived by
rape or incest.
iii. Mothers must provide the names of their children’s fathers in order to
apply for federal aid.
1. Many women cannot do this for various reasons: privacy,
numerous partners, etc.
f. Civil Contempt
i. Obligor parent can pay court-ordered child support but refuses.
ii. A missed payment is a prima facie case of a violation.
iii. May be jailed until parent agrees to pay child support.
iv. Rebuttable Presumption – There is a rebuttable presumption that an
obligor parent can pay child support. Parent may rebut this presumption
and avoid contempt proceedings.
g. Federal Civil Penalties – Professionals can lose their professional licenses.
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h. No Debtors’ Prison – Child support is NOT a debt, but a duty that parents owe to
their children and society. Wetmore v. Markoe (Tex. 2004).
i. No 13th Amendment Violation – Child support obligations do NOT violate the
13th Amendment. United States v. Ballek (9th Cir. 1999).
j. Private Enforcement
i. States may contract with private firms to perform the functions of IV-D
agencies.
ii. Bounty hunters
k. Bankruptcy
i. Bankruptcy Abuse and Prevention and Consumer Protection Act of 2005 –
Obligors filing for bankruptcy continue paying child support, and child
support obligations receive high priority in bankruptcy.
2. Criminal Enforcement
a. Child Support Recovery Act of 1992 – Federal crime (1) to willfully fail to pay
support to a child who resides in another state, where the obligation has remained
unpaid for more than a year or is greater than $5000; or (2) to travel in interstate
or foreign commerce with intent to evade a support obligation
b. Deadbeat Parents Punishment Act of 1998
i. Amended CSRA.
ii. Increased punishments.
iii. Created a rebuttable presumption that a parent in arrears has the ability to
pay the obligations due. Presumptions shifts the burden of proof to the
nonpaying parent.
c. State Law – Imprisonment for willful nonpayment of amounts that the obligor is
found to be capable of paying based on actual or imputed income.
d. State v. Oakley (Wis. 2001)
i. Facts – Defendant, who during the relevant time period paid no child
support and was in arrears in excess of $25,000, challenged the
constitutionality of the condition of his probation that he not father another
child unless he could show that he could support that child and his current
children. Defendant argued that the condition violated his right to
procreate.
ii. No More Children Without Support – “While on probation, Oakley
cannot have any more children unless he demonstrates that he had the
ability to support them and that he is supporting the children he already
had.”
1. Could Have Been More Severe – “The judge fashioned a
condition that was tailored to that particular crime, but avoided the
more severe punitive alternative of the full statutory prison term
through the rehabilitative tool of probation.”
2. “Judge Hazlewood preserved much of Oakley’s liberty by
imposing probation with conditions rather than the more punitive
option of imprisonment.”
iii. Right to Procreate – “Fundamental liberty interest of a citizen to choose
whether or not to procreate.”
iv. Lesser Rights for Convicted Individuals
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1. “Convicted individuals do not enjoy the same degree of liberty as
citizens who have not violated the law.”
2. “Incarceration, by its very nature, deprives a convicted individual
of the fundamental right to be free from physical restraint, which in
turn encompasses and restricts other fundamental rights, such as
the right to procreate.”
3. “Given that a convicted felon does not stand in the same position
as someone who has not been convicted of a crime, conditions of
probation may impinge upon constitutional rights as long as they
are not overly broad and are reasonably related to the person’s
rehabilitation.”
a. Subject to rational-basis review (and satisfies it).
v. Bradley, Dissenting
1. All of the women on the court dissented.
2. We do not have a property examination to determine how many
children a person should have. We do not say that a person is too
poor to have children.
3. What animates their legal analysis? A: If Oakley did father a
child, he could force or coerce the woman to have an abortion
because he will go to jail if she gives birth.
4. Slippery Slope Concerns – It takes sterilization of women, not
men, to reduce the number of children. The dissent is worried
about this dystopian outcome. Concern for limits on women’s
reproductive choices.
3. Challenges to Civil and Criminal Enforcement
a. Biggest Barrier  Unemployment (and Low Income)
b. Fatherhood Programs – Page 654
c. Incarceration
i. Many noncustodial fathers in arrears are in prison.
ii. Does NOT terminate the child support obligation unless a court terminates
the prisoner’s parental rights.
iii. Downward modification of the support obligation during imprisonment
may facilitate enforcement.
iv. When a person leaves jail, he faces all of the burdens of an ex-felon, e.g.,
difficulty obtaining housing or a job, difficulty communicating with his
former spouse, etc.
v. State May Disallow Modification – Imprisoned parent is “similarly
situated to other parents who are voluntarily unemployed because criminal
activity foreseeably can lead to incarceration and such activity is
obviously within an individual’s control.” Suggs v. Suggs (Ala. 2010).
CHILD CUSTODY: INITIAL DECISIONS
Overview and Principles
1. Generally
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a. Child Custody Statistics – Pages 657–58
b. Child’s Healthy Development After Divorce
i. Reduction of parental conflict;
ii. Presence of a well-functioning custodial parent; and
iii. Regular contact with the noncustodial parent
c. Child custody agreements are not valid until approved by a court.
2. History
a. Pater Familias – Father is “master” of the family with authority over its members.
b. 1820s – Women’s Movement leading to shifts in focus
3. Tender Years Doctrine
a. Doctrine
i. Children of tender years, i.e., infants and very young children, should be
placed with the mother unless she was unfit to care for them.
ii. After the first few years of life, girls belong with mothers, and boys with
fathers.
b. Rejection
i. State courts began to find Tender Years Doctrine to be unconstitutional.
ii. Rejected in all 50 states.
c. Some trial courts continue to apply the Tender Years Doctrine but may be
reversed for doing so.
d. Minority Rule – Considered as one of many factors in child custody
determinations. Used as a tiebreaker.
4. Best Interests of the Child
a. Determines child custody on a case-by-case basis with the mother and father on
equal footings and the child’s happiness and welfare at the center of the analysis.
b. Painter v. Painter (Iowa 1966)
i. Court Does Not Rank Lifestyles of Fit Parents – “It is not our
prerogative to determine custody upon our choice of one of two ways of
life within normal and proper limits and we will not do so.”
1. Case is not about unfitness.
ii. Parental Preference – “There is presumption of parental preference,
which exists by statute.”
1. Here, that preference has been weakened.
iii. Best Interests of Child – “In a custody case, the primary consideration is
the best interest of the child.”
iv. Parent’s Wishes – “In custody matters, the parent’s wishes are entitled to
consideration.”
v. Reliance on Extended Family (Policy) – Society may want to encourage
parents to rely on extended family in times of crisis without jeopardizing
their parental rights.
c. Proper Expert Practices (Pages 717–18)
i. Should not agree to be hired by either party. Should agree to testify only
if he or she is retained by the court. Should be disinterested.
ii. Should tell the court what he or she believes is best for the child, and the
court should decide what that information means to its ultimate decision.
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In practice, however, courts often will adhere closely to the opinions of
persuasive experts.
iii. Should interview each adult alone. Should observe adult-child
interactions. Should observe the child’s interactions with siblings and
other children.
d. Gender Bias – Because fathers typically have a lesser role in raising children, any
extra effort by a father usually goes a long way with a court. Extra effort by a
mother usually does not go as far.
5. Psychological Parent
a. Applying psychoanalytic principles, including knowledge of child development,
to legal issues surrounding child custody.
b. Relied heavily on Attachment Theory.
c. Child’s needs and perceptions are at the heart of the custody decision.
i. Beneficial internal emotional constellations
ii. Emotional security
d. Four Foundational Principles
i. Psychological Parent Model
ii. Child’s need for continuity of relationships, surroundings, and
environmental influence
iii. Child’s Sense of Time – Urgency and quick resolution of legal disputes
iv. Replacing the “best interests” standard with “the least detrimental
alternative”
e. Criticisms – Page 682
i. Mental-health professionals and courts may read facts differently.
f. No state follows this approach.
i. Several states consider primary caretaking as a factor in child custody
determinations.
ii. Part of the common law of several states.
6. Uniform Marriage and Divorce Act § 402: Best Interest of Child
The court shall determine custody in accordance with the best interest of the child.
The court shall consider all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or
parents, his siblings, and any other person who may significantly affect the
child’s best interest;
(4) the child’s adjustment to his home, school, and community; and
(5) the mental and physical health of all individuals involved.
The court shall not consider conduct of a proposed custodian that does not affect
his relationship to the child.
a.  Staring point, not an ending point.
7. State Definitions of “Best Interests”
a. Majority Rule – Statutorily specified factors
b. Minority Rule – “Totality of the circumstances” test
c. Parent’s Abuse of Controlled Substances or Alcohol
i. Page 690
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ii. ADA does NOT apply to custody disputes.
8. ALI § 2.08: Allocation of Custodial Responsibility
a. Attempts to approximate family patterns before dissolution.
b. History – Pages 692–93
c. Minimum Time – There will be a minimum amount of time with a child for each
parent, regardless of previous childcare duties, and that time will be determined
by a rule of statewide application.
d. Modification – Adjustments are possible because family patterns change
following dissolution, e.g., a stay-at-home mother probably will have to work
following divorce.
e. Criticism (Page 693)
i. Fails to achieve gender equality because so many families continue to
follow traditional gender roles.
ii. Would allocate more of a child’s post-dissolution time to the mother
because mothers do most of the pre-divorce work caring for a child.
iii. Fails to recognize the dynamic nature of marital relationships.
9. Constitutional Considerations
a. Grounded in the Meyer-Pierce line of decisions.
b. McDermott v. Dougherty (Md. 2005)
i. General Rule – “In disputed custody cases where private third parties are
attempting to gain custody of children from their natural parents, the trial
court must first find that both natural parents are unfit to have custody of
their children or that extraordinary circumstances exist which are
significantly detrimental to the child remaining in the custody of the
parent or parents, before a trial court should consider the ‘best interests of
the child’ standard as a means of deciding the dispute.”
ii. Fundamental Right of Parents – “Fundamental right of parents to make
decisions concerning the care, custody, and control of their children.”
Troxel v. Granville (U.S. 2000).
1. Follows the Meyer-Pierce line of decisions.
2. See pages 661–64 recounting Supreme Court cases.
iii. Dispute Between Two Fit Legal Parents – “In a situation where both
parents seek custody, each parent proceeds in possession, so to speak, of a
constitutionally protected fundamental parental right. Neither parent has a
superior claim to the exercise of this right to provide care, custody, and
control of the children. Effectively, then, each fit parent’s constitutional
right neutralizes the other parent’s constitutional right, leaving, generally,
the best interests of the child as the sole standard to apply to these types of
custody decisions. Thus, in evaluating each parent’s request for custody,
the parents commence as presumptive equals and a trial court undertakes a
balancing of each parent’s relative merits to serve as the primary custodial
parent; the child’s best interest tips the scale in favor of an award of
custody to one parent or the other.”
1. “The non-constitutional best interests of the child standard, absent
extraordinary (i.e., exceptional) circumstances, does not override a
parent’s fundamental constitutional right to raise his or her child
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when the case is between a fit parent, to whom the fundamental
parental right is inherent, and a third party who does not possess
such constitutionally protected parental rights. In cases between fit
natural parents who both have the fundamental constitutional rights
to parent, the best interests of the child is the ultimate,
determinative factor.”
2. Two-Step Analysis
a. Is the legal parent fit?
b. Are there “any ‘EXCEPTIONAL CIRCUMSTANCES’
exist that might overcome the presumption favoring a fit
parent's rearing of his child”?
i. Rare: usually, only abuse or neglect suffice.
ii. Exceptional Circumstances – “The factors which
emerge from our prior decisions which may be of
probative value in determining the existence of
exceptional circumstances include the [1] length of
time the child has been away from the biological
parent, [2] the age of the child when care was
assumed by the third party, [3] the possible
emotional effect on the child of a change of
custody, [4] the period of time which elapsed before
the parent sought to reclaim the child, [5] the nature
and strength of the ties between the child and the
third party custodian, [6] the intensity and
genuineness of the parent’s desire to have the child,
[7] the stability and certainty as to the child’s future
in the custody of the parent.”
iv. Dispute Between Fit Legal Parent and Third Party – “When the
dispute is between a fit parent and a private third party, however, the
parties do not begin on equal footing in respect to rights to care, custody,
and control of the children. The parent is asserting a fundamental
constitutional right. The third party is not. A private third party has no
fundamental constitutional right to raise the children of others. Generally,
absent a constitutional statute, the non-governmental third party has no
rights, constitutional or otherwise, to raise someone else’s child.”
1. “In the balancing of court-created or statutorily created standards,
such as the best interest of the child test, with fundamental
constitutional rights, in private custody actions involving private
third parties where the parents are fit, absent extraordinary (i.e.,
exceptional) circumstances, the constitutional right is the ultimate
determinative factor; only if the parents are unfit or extraordinary
circumstances exist is the best interest of the child test to be
considered.”
2. Custody is transferred appropriately only if the third party becomes
a legal parent.
3. Third party prevails only if the legal parent is found to be unfit.
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v. Best Interests of the Child
1. “Governs courts’ assessments of disputes between fit parents
involving visitation or custody.”
2. “The ‘best interest’ standard is not a rule to be used to take
children away from fit parents and give them to third parties
because a judge believes the child will be better off with richer,
better educated, more stable, third parties.”
a. A court is not equipped to decide which parent is better in
detailed ways; which parent will improve a child’s
economic or social circumstances; etc.
3. Fit Parents Presumption – “It is presumed that fit parents act in
the best interests of their children.”
4. Fit Parents Presumption – “Where parents claim the custody of a
child, there is a prima facie presumption that the child’s welfare
will be best subserved in the care and custody of its parents rather
than in the custody of others, and the burden is then cast upon the
parties opposing them to show the contrary.”
vi. Being Away at Sea Is Not an Exceptional Circumstance – “Under
circumstances in which there is no finding of parental unfitness, the
requirements of a parent’s employment, such that he is required to be
away at sea, or otherwise appropriately absent from the State for a period
of time, and for which time he or she made appropriate arrangements for
the care of the child, do not constitute ‘extraordinary or exceptional
circumstances’ to support the awarding of custody to a third party.”
vii. Wilner, Concurring
10. Custody Disputes Between Two Third Parties
a. Fact-specific
b. Neither party is a legal parent, and neither has a constitutional right to the child.
c. Relatives generally are preferred to strangers or mere friends.
d. Is one party a psychological parent to the child? Long-term care? Close
relationship? Affection?
11. Regaining Custody After Relinquishing for Temporary Informal Care – Factors:
a. Circumstances under which parent relinquished custody;
b. Proof that the parent is fit and will properly care for the child;
c. Amount of contact, as measured by visitation, financial support, or both, that the
parent had with the child while in the care of a third party; and
d. Degree of attachment between the child and the third party
12. Forfeiting Presumptive Right to Custody of Children
a. Fact-specific
b. Possible in exceptional cases. Vaughn v. Davis (Miss. 2010).
13. Servicemembers Civil Relief Act (Pages 672–73) – Civil actions that “may adversely
affect” service members on active duty shall be temporarily suspended.
Factors
Home Environment, Health Issues, and Gender Roles
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1. Blevins v. Bardwell (Miss. 2001)
a. Best Interests of Child Are Primary – “In a child custody matter, an appellate
court must defer to the polestar consideration in every child custody case, the best
interests of the child.”
b. Factors – “While the polestar consideration in child custody cases is the best
interest and welfare of the child, the age of the child is subordinated to that rule
and is another factor to be considered. Age should carry no greater weight than
other factors to be considered, such as: health, and sex of the child; a
determination of the parent that has had the continuity of care prior to the
separation; which has the best parenting skills and which has the willingness and
capacity to provide primary child care; the employment of the parent and
responsibilities of employment; physical and mental health and age of parents;
emotional ties of parent and child; moral fitness of parents; the home, school and
community record of the child; the preference of the child at the age sufficient to
express a preference by law; stability of home environment and employment of
each parent, and other factors relevant to the parent-child relationship.”
i. Health of Mother
1. Mother had some mental-health issues (depression; schizoid
personality; suicidal ideation) predating the birth of the child.
Father argues that this is significant information.
2. Mother responds that the Air Force took her back despite her
mental-health issues.
ii. Home Environment
1. Father and grandfather both smoke.
2. Court is concerned about child living with a critically ill patient.
a. However, in the past, and even today, many children live
with elder family members that pass away in their homes.
b. Court seems to be imposing its view about sheltering
children from reality. Is this appropriate?
2. All child custody cases are heard in the same courts and decided under the same statutes
regardless of the parents’ marital status. Wyatt v. Wyatt (La. 1993).
3. Professional Women – Pages 700–01
4. Women in Military Service – Page 701
5. Smoking – May be a legitimate reason to limit visitation, especially where a child is
particularly vulnerable due to asthma, etc. Badeaux v. Badeaux (La. 1989).
6. Parents with Disabilities – Courts may consider parent’s physical and mental health
when determining the best interests of the child. In re Marriage of Carney (Cal. 1979).
a. Disability is one factor, but it is NOT dispositive. In re Marriage of Carney (Cal.
1979).
b. ADA does NOT apply to child custody determination.
Allegations of Immorality
1. Zepeda v. Zepeda (S.D. 2001)
a. Factors in Determining Child Custody – See Pages 705–06.
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b. Nexus Test for Marital Misconduct – “Generally, marital misconduct alone is
not a controlling consideration when making a child custody determination.
However, when misconduct results in some demonstrable harm to the child,
parental fitness becomes an issue. Harm is self-evident when misconduct occurs
in the presence of a child mature enough to perceive it.”
i. Parent seeking denial of custody must establish a nexus between the
parent’s behavior and harm to the child.
c. Court’s Restrictions on Wife – No relationships with men in front of the child;
no alcohol; only work-related Internet usage.
i.  Many tailoring and enforcement problems.
2. Other Jurisdictions
a. PER SE RULE that parental immorality warrants loss of custody or at least a
rebuttable presumption of loss.
b. Parental immorality may be one of many factors considered.
i. ADULTERY continues to carry significant weight.
1. Outrageous, rather than discrete;
2. Numerous infidelities;
3. Obsessive to the point of neglecting the child; and
4. Child has witnessed adulterous acts.
3. Parent’s Sexual Orientation
a. Courts use (1) the nexus test or (2) per se approach.
i. Nexus Test
1. No deprivation of custody unless the parent’s sexual orientation
causes, or will cause, harm to the child.
2. Majority Rule – 50% of states and DC
ii. Per Se Approach
1. Homosexuality is proof of immorality, which creates a
presumption that the parent should not have custody of the child.
2. Minority Rule
4. Court-Imposed Internet Restrictions – Page 709
a. Courts should require at least some evidence showing adverse effects on children
from parents’ use of adult websites.
Domestic Violence
1. Legal and mental-health professionals agree that abusers should not receive custody.
2. ABA Policy – Seek protective orders for victims of domestic violence.
3. Wissink v. Wissink (N.Y. 2002)
a. “In any action concerning custody or visitation where domestic violence is
alleged, the court must consider the effect of such domestic violence upon the best
interest of the child, together with other factors and circumstances as the court
deems relevant in making an award of custody.”
b. Comprehensive Psychological Evaluation – “Where the record reveals years of
domestic violence, which is denied by the child who witnessed it, and the child
has expressed her preference to live with the abuser, the court should have
ordered a comprehensive psychological evaluation. Such an evaluation would
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4.
5.
6.
7.
8.
likely include a clinical evaluation, psychological testing, and review of records
and information from collateral sources. The forensic evaluator would be
concerned with such issues as the nature of the psychopathology of the abuser and
of the victim; whether the child might be in danger of becoming a future victim,
or a witness to the abuse of some other victim; the child’s developmental needs
given the fact that she has lived in the polluted environment of domestic violence
all of her life and the remedial efforts that should be undertaken in regard to all
parties concerned.”
c. Psychological Injury to Child – “With regard to child custody determinations,
there is overwhelming authority that a child living in a home where there has been
abuse between the adults becomes a secondary victim and is likely to suffer
psychological injury. Moreover, that child learns a dangerous and morally
depraved lesson that abusive behavior is not only acceptable, but may even be
rewarded.”
d. Rebuttable Presumption Against Custody – “In many states a rebuttable
presumption that perpetrators of domestic violence should not be eligible for legal
or physical custody has been accepted and the courts of those states are required
to specify why custody should be granted to an offender and how such an order is
in the best interest of the child.”
All 50 states and DC require courts to consider domestic violence in resolving custody
disputes.
Different Approaches
a. Domestic violence is one factor among many in determining a child’s best
interests. E.g., New York, Indiana, etc.
b. Domestic violence creates a rebuttable presumption against awarding custody to
an abusive parent. (22 states)
c. Courts must consider domestic violence (1) when establishing visitation rights or
(2) as a defense to an allegation that a spouse abandoned the children by fleeing
the home. E.g., Rhode Island.
One Parent Kills the Other Parent – Some states bar custody when there has been a
conviction. E.g., New York.
False Accusations of Abuse – Pages 716–17
Friendly Parent Provisions – Pages 715–17
Race
1. Palmore v. Sidoti (U.S. 1984)
a. Facts – A Caucasian couple were divorced in Florida and custody of their 3-yearold daughter was awarded to the mother. Subsequently, the father sought
modification of the custody award on the grounds that the child’s mother was then
cohabitating with a Negro, whom she later married.
i. Two Bases of Trial Court’s Decision
1. Mother’s immoral cohabitation relationship. (But she later cured
the problem when she married the man.)
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2. Interracial relationship at home would stigmatize the child and
subject her to peer pressure at school, e.g., name-calling or
aversion from her schoolmates’ bigoted parents, as she grew up.
b. 14th Amendment and Strict Scrutiny – “A core purpose of the 14th
Amendment is to do away with all governmentally imposed discrimination based
on race. Classifying persons according to their race is more likely to reflect racial
prejudice than legitimate public concerns; the race, not the person, dictates the
category. Such classifications are subject to the most exacting scrutiny; to pass
constitutional muster, they must be justified by a compelling governmental
interest and must be necessary to the accomplishment of their legitimate purpose.”
i. Granting custody based on a child’s best interests is a compelling
government interest.
c. No Legal Toleration of Racial Prejudices – “The Constitution cannot control
such prejudices but neither can it tolerate them. Private biases may be outside the
reach of the law, but the law cannot, directly or indirectly, give them effect.”
d. Racial Prejudice Is Not Ground for Modification – “The effects of racial
prejudice, however real, 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.”
i. It is absolutely impermissible to consider race in a custody dispute
between two fit parents.
e. Arguments That Child Should Remain with Mother
i. Continuity and stability
ii. Father clearly is racist, and the mother is not racist. A court may be able
to consider a parent’s invidious, racist attitudes when determining custody.
iii. If the father received custody, this certainly would poison the daughter’s
view of her mother and her mother’s interracial marriage. There is no
evidence that the mother had attempted to poison her daughter’s view of
her father.
2. Parker v. Parker (Tenn. 1999)
a. Shows that trial courts can get away with race-based custody determinations.
3. Changing Demographics
a. Increasing number of interracial marriages
b. Increasing number of interracial children
c.  May diminish the lingering role of race in custody decisions.
Siblings and Religion
1. Arthur v. Arthur (Ohio 1998)
a. Sole or Joint Custody – “During a divorce proceeding, a trial court is required to
allocate the parental rights and responsibilities for the care of the minor children
pursuant to state law. The trial court has two options when allocating parental
rights and responsibilities. The court may either designate one parent as the
residential parent and legal custodian who bares the primary rights and
responsibilities for the care of the children, or the trial court may issue a shared
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parenting order requiring the parents to share all or some of the aspects of the
physical and legal care of the children.”
b. Religion – “A parent may not be denied custody on the basis of his or her
religious practices unless there is probative evidence that those practices will
adversely effect the mental or physical health of the child. Evidence that the child
will not be permitted to participate in certain social or patriotic activities is not
sufficient to prove possible harm.”
i. Nexus Test – “A parent may not be denied custody on the basis of his or
her religious practices unless such practices adversely affect the mental or
physical well being of the child.”
ii. Nothing should be done to a child that is irreversible.
2. First Amendment Rights
a. Majority Rule – Each parent has a constitutional right to expose a child to the
religious practices that he or she observes, absent a clear showing of harm to the
child. Abbo v. Briskin (Fla. 1995).
b. Minority Rules
i. Distinction between religious beliefs and religiously motivated actions.
1. Nexus Test – “Disapproval of mere religious beliefs or nonbelief
cannot be a consideration in a custody determination, as judges are
not trained to mediate theological disputes. Yet consideration of
religiously motivated behavior with an impact on a child’s welfare
cannot be ignored. It is one of the many relevant factors that must
be part of the holistic custody calculus required under Kansas
law.” Harrison v. Tauheed (Kan. 2011).
ii. Spiritual and religious well-being is one of the “best interests” factors.
3. Medical Science – Trumps contrary religious belief. Winters v. Brown (Fla. 2011).
4. Siblings
a. Preference for siblings remaining together. Alverson v. Alverson (Ala. 2009);
ALI Principles.
b. Separating Siblings
i. Appropriate when the siblings have different needs. Nomland v. Nomland
(Pa. 2002).
ii. Siblings have never lived together or have been separated for a substantial
amount of time.
iii. Siblings express strong preferences to live with different parents.
iv. Siblings do not get along well.
v. Significant age difference between the siblings
vi.  Courts also must consider parents’ respective capacities to care for their
children and the parents’ moral, mental, or physical qualifications.
c. Half- and Stepsiblings
i. Separated more frequently than biological siblings because they are not
children of the same marriage.
ii. May be kept together if the bond between them is strong. In re Marriage
of Flibotte (Iowa 2009).
d. States have enacted statutes protecting the visitation rights of siblings in the child
welfare system. (Page 728)
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5. Pets
a. Pages 730–31
b. Traditional View – Treated as personal property.
c. Modern Trend – Treat as members of the family. Court may look at best interests
of a pet and order custody or visitation.
d. Rationales
i. Autonomy and best interests of the pet
ii. Property rationale
iii. Emotional comfort to a spouse that is alone
iv. Whoever undertook more care for the pet during the marriage
Child’s Preferences
1. Generally
a. Majority Rule – Court must consider a sufficiently mature child’s custody
preference but may weigh that opinion as it sees fit.
i. Discretion in determining maturity and weight.
b. Minority Rule – Deference to the wishes of children over a specified age, e.g., 12
or 14.
c. (Vast) Minority Rule – Court has discretion to consider a child’s custody
preference and how much weight to accord it.
d.  All States – The younger the child, the less likely that his or her opinion will
be solicited or taken seriously.
2. Two Primary Methods for Ascertaining Child’s Preferences
a. Speaking Directly to Judge – Either (1) in open court or (2) through an in camera
interview in which the child typically is promised confidentiality.
b. By Delegation Through an Appointed Representative
3. Testifying in Open Court
a. FRE allow children to testify in open court.
b. Child must understand the difference between truth and falsehood. (Preliminary
questions)
i. Two-Thirds of States – Require a preliminary inquiry into a child’s
competence when the child is below a specified age.
c. Less Preferred Alternative
i. Stressful, traumatic
ii. May be less reliable.
iii. Child may be intimidated by parents’ presence.
4. In Camera Interviews
a. Best protects a child’s emotional interests. Less traumatic.
b. More candid
c. Kentucky, Oregon, Wyoming, DC – Pages 732–34
d. Due Process Challenges
i. Creating a record of the in camera interview facilitates appellate review
and protects parents’ procedural due process rights.
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1. Some States – Record preserves parents’ procedural rights even
when it is not available for the parents’ review. Myers v. Myers
(Ohio 2007).
2. Other States – No recent opportunity to consider the issues.
Abbott v. Virusso (Mass. 2007).
5. Guardian Ad Litem (GAL)
a. Court-Appointed – Court always may use equitable powers to appoint a GAL at
its discretion.
b. Child is NOT entitled to a GAL in a private custody dispute unless abuse or
neglect is suspected. (Majority Rule)
c. Multiple Siblings – Usually only one GAL
d. Payment for GAL – Court may order one or both parents to pay the GAL.
e. Qualifications – (1) Lawyer; (2) layperson; or (3) Court Appointed Special
Advocate (CASA), a layperson with special training
i. Drawbacks of Lawyers – (1) Bound by Rules of Professional Conduct and
(2) cannot serve as witnesses in cases on which they are working.
f. Duties
i. Vary across jurisdictions.
ii. Fact-gathering; advocate for a child’s best interests; advocate for a child’s
views; or a combination
iii. May NOT be required to communicate a child’s views to the court.
iv. May be required to communicate his or her own opinion as to a child’s
best interests. Patel v. Patel (S.C. 2001).
v.  Court, not GAL, ultimately must make its own decision. Bencomo v.
Bencomo (Haw. 2006).
g. Duration of Duties – Attorney must continue to serve until the matter is
completely resolved, including through any appeals. (Ethics Rules)
h. Hearsay – GAL generally can transmit hearsay to the court as long as there is an
opportunity for cross-examination. Bates-Brown v. Brown (Ohio 2007).
i. Lawyers should not testify as GALs in cases that they are trying. (See page 735.)
6. Lawyer’s Role
a. Majority Rule – Does NOT recognize a child’s right of participation or of
requiring lawyers to advocate children’s wishes.
b. Ethics Rules
i. Lawyer should ask court which rules will apply.
ii. American Academy of Matrimonial Lawyers – Recommends that
family courts appoint lawyers for children for only one purpose: “to
advocate for the outcome desired by the child.” Not driven by a children’s
rights ideology but by the goal of maintaining strict professional
constraints on attorneys.
iii. ABA
1. Firm but not absolute stance favoring CLIENT-DIRECTED
LAWYERING for children in abuse and neglect proceedings.
2. While permitting the lawyer to advocate the child’s “legal
interests” if the child cannot or does not express a position, the
ABA Abuse and Neglect Standards generally require a lawyer to
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maintain a traditional lawyer-client relationship with a child who is
capable of directing counsel. Under the Standards, the attorney
“owes the same duties of undivided loyalty, confidentiality, and
competent representation to the child as is due an adult client.”
iv. Uniform Law Commission – Two Approaches
1. Traditional Child’s Attorney
2. “Best Interests Attorney” – “An attorney who provides legal
representation for a child to protect the child’s best interests
without being bound by the child’s directives or objectives.”
c. State Laws
i. Majority Rules
1. Permit children’s lawyers to engage in “best interests”
representation.
2. Child Representation in Family Court – Authorize discretionary
appointment of a legal representative—whether denominated an
attorney or a guardian ad litem—to represent the child’s best
interests.
ii. Minority Rules
1. Authorize the appointment of either a traditional attorney or a best
interests representative, or both, at the court’s discretion.
2. Attorneys exercise the core responsibility to decide whether they
should represent a child’s best interests or a child’s directives. In
this model, the judge appoints an attorney for a child and, after
interviewing the child client, the lawyer determines whether the
child is capable of directing the representation.
d. Reporting Abuse
i. Attorneys have to preserve client confidences. States require different
classes of individuals to report abuse, but they do not require lawyers to
report abuse.
ii. Could you involve a doctor or someone else with a duty to report abuse?
How would you go about involving this third party?
iii. A lawyer could explain the benefits of consenting to disclosure of the
information. (Lawyer as Counselor) Clients that reveal abuse to their
lawyers often trust their lawyers very deeply.
iv. If a parent makes an allegation of abuse against the other parent,
discussing abuse may be required. A lawyer will have to investigate the
matter, and the matter already will have been disclosed.
v. If you ask a judge for more resources to hire an expert medical examiner,
the judge may say, “Why are you asking for this now?”. The lawyer will
respond, “Your Honor, I have more information now than I did before.
New facts have come to light.” The judge should know what this means,
i.e., that there is abuse.
7. UN Convention on the Rights of the Children – NOT binding on the United States
Joint Custody
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1. Generally
a. Joint Legal Custody – Parents share decision-making on important issues
relating to a child’s upbringing, e.g., education, medical care, religion, etc.
b. Joint Physical Custody – Parents share day-to-day decision-making and
responsibility for their children, as well as the right to have the children divide
their time roughly equally between both homes.
i. Covers everything from liberal visitation to equal parenting time.
ii. Benefits
1. Stronger relationships with both parents. Child feels like she has a
home with each parent. Children can have meaningful
relationships with more than one person.
2. Child does not have to pick sides.
3. Some degree of continuity of family life.
iii. Disadvantages
1. Older children may not want to be shuffled between homes. They
make their own plans; have their possessions mostly in one house;
etc. Younger children may not want to be shuffled around either.
What if a young child loses a cherished stuffed animal?
iv. Why would only one parent request joint custody?
1. Because the non-requesting parent does not believe that the
requesting parent should have custody.
2. The requesting parent is trying to assert leverage.
3. The requesting parent is attempting to continue physical or
psychological abuse.
c. Starting Presumptions
i. Both parents love the children.
ii. Children will benefit from continuing custodial relationships with both
parents.
d. Sole Physical and Legal Custody – Noncustodial parent retains paternal rights.
2. In re the Marriage of Hansen (Iowa 2007)
a. Legal Custody
i. “‘Legal custody’ carries with it certain rights and responsibilities,
including but not limited to decision-making affecting the child’s legal
status, medical care, education, extracurricular activities, and religious
instruction.”
ii. “A parent who is awarded legal custody has the ability to participate in
fundamental decisions about the child’s life.”
b. Joint Legal Custody
i. “When joint legal custody is awarded, neither parent has legal custodial
rights superior to those of the other parent.”
ii. Denial of Joint Legal Custody – “If the court does not grant joint
custody, it shall cite clear and convincing evidence that joint custody is
unreasonable and not in the best interests of a child.”
c. Physical Custody
i. “‘Physical care’ involves the right and responsibility to maintain a home
for the minor child and provide for routine care of the child.”
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ii. “The parent awarded physical care maintains the primary residence and
has the right to determine the myriad of details associated with routine
living, including such things as what clothes the children wear, when they
go to bed, with whom they associate or date, etc.”
d. Joint Physical Custody
i. Must be decided on a case-by-case basis.
ii. Best Interests of Child – Determination must be based on the best
interests of the child, not perceived fairness to the spouses.
1. Joint physical custody is denied.  Best interests analysis.
iii. “If joint physical care is awarded, both parents have rights to and
responsibilities toward the child including, but not limited to, shared
parenting time with the child, maintaining homes for the child, and
providing routine care for the child.”
iv. “If joint physical care is not warranted, the court must choose a primary
caretaker who is solely responsible for decisions concerning the child’s
routine care. Visitation rights are ordinarily afforded a parent who is not
the primary caretaker.”
v. Denial of Joint Physical Custody – Court need NOT cite clear and
convincing evidence that joint physical custody is unreasonable and not in
the best interests of a child.
vi. Factors for Joint Physical Custody
1. “Stability and continuity factors tend to favor a spouse who, prior
to divorce, was primarily responsible for physical care.”
2. “Long-term, successful, joint care is a significant factor in
considering the viability of joint physical care after divorce.”
3. “The approximation principle is a factor to be considered by courts
in determining whether to grant joint physical care.”
4. “Joint physical care is most likely to be in the best interest of the
child where both parents have historically contributed to physical
care in roughly the same proportion. Conversely, where one
spouse has been the primary caregiver, the likelihood that joint
physical care may be disruptive on the emotional development of
the children increases.”
5. “A second important factor to consider in determining whether
joint physical care is in the child’s best interest is the ability of
spouses to communicate and show mutual respect.”
6. “The degree of conflict between parents is an important factor in
determining whether joint physical care is appropriate.”
7. Will joint physical custody exacerbate inter-parental conflict to the
detriment of the children?
8. “The lack of mutual acceptance can be an indicator of instability in
the relationship that may impair the successful exercise of joint
physical care.”
9. “A fourth important factor in determining whether joint physical
care is in the best interest of the children, particularly when there is
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3.
4.
5.
6.
a turbulent past relationship, is the degree to which the parents are
in general agreement about their approach to daily matters.”
a. MOST IMPORTANT FACTOR
10.  No factor is dispositive.
11.  Summary: “Statements in the case law indicating that joint
physical care is strongly disfavored are overbroad. Factors often
of importance in determining the viability of joint physical care
include an overriding interest in stability and continuity, the degree
of communication and mutual respect, the degree of discord and
conflict prior to dissolution, and the extent to which the parties
agree on matters involving routine care. While in many contested
cases, the best interests of the child will not be advanced by joint
physical care, the courts must examine each case based on the
unique facts and circumstances presented to arrive at the best
decision.”
Presumptions in Favor of Joint Custody
a. No consensus as to the number of jurisdictions with such presumptions.
b. DC presumes that joint custody is in a child’s best interests.
c. Other States – Presumption applies only when both parents request joint custody.
d. All Other States – Expressly permit joint custody as an option at the court’s
discretion.
Physical and Mental Abuse and Joint Custody – Page 756
Fathers’ Rights Movement – Pages 756–57
a. Criticism – Page 758
Military Parents Deployed Overseas – Most states have laws preventing modification
of child custody and visitation orders while one parent is overseas.
POST-DISSOLUTION CUSTODY DISPUTES AND VISITATION
Decision-Making
1. Only a small portion of joint custody cases continue to be litigated after a court issues its
initial decree.
Collapse of Joint Parenting
1. Nicita v. Kittredge (Conn. 2004)
a. What should a judge do in this kind of acrimonious situation?
i. Give sole custody to one parent. What supports this decision? A: Parents
cannot agree on medical care, education, etc. This discord is having a
demonstrably negative effect on the children’s lives.
ii. If the court decided that there is no other choice than granting sole custody
to one parent, which parent would you choose? A: Best interests of child.
2. Court’s Paren Patriae Authority – Even when parents agree about custody or visitation
arrangements, a court may modify provisions of a marital settlement agreement relating
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3.
4.
5.
6.
to care, custody, and education under its parens patriae authority to decide what is in the
child’s best interests. E.g., Maryland.
a. “There are times when a breakdown of communication between parents renders
joint custody no longer in the best interests of the child.” In re Paternity of A.S.
(Ind. 2011).
Disputes About Children with Special Needs – Page 768
Medical Information and Medication – Where evidence clearly indicates that
restrictions are in the best interests of a child, a court may limit, and even deny, visitation,
without ruling on a parent’s fitness. Higginbotham v. Higginbotham (Ind. 2004).
Parent Education Programs – Most states offer some form of parent education in
conjunction with divorce.
Parenting Coordinators – Page 769
Tie-Breaking Arrangements
1. Elk Grove Unified School District v. Newdow (U.S. 2004)
a. “Under California law, while the custodial parent undoubtedly has the right to
make ultimate decisions concerning the child’s religious upbringing, a court will
not enjoin the noncustodial parent from discussing religion with the child or
involving the child in his or her religious activities in the absence of a showing
that the child will be thereby harmed. Animated by a conception of ‘family
privacy’ that includes not simply a policy of minimum state intervention but also
a presumption of parental autonomy, the state cases create a zone of private
authority within which each parent, whether custodial or noncustodial, remains
free to impart to the child his or her religious perspective.”
b. “California cases are concerned with protecting the fragile, complex interpersonal
bonds between child and parent and with permitting divorced parents to expose
their children to the diversity of religious experiences that is itself a sound
stimulant for a child. The cases speak not at all to the problem of a parent seeking
to reach outside the private parent-child sphere to restrain the acts of a third
party.”
c. Summary of Holding
i. Respondent father could not sue as next friend of his daughter because a
superior court gave the child’s mother the ultimate decision-making
authority in issues involving the child’s educational, physical, and mental
well-being and needs.
ii. The United States Supreme Court refused to entertain the claim of the
father because his standing to sue was founded on family rights that were
in dispute.
d. If there is a tiebreaker, legal custody is pretty meaningless.
e. Rehnquist, Concurring
i. “Respondent asserts that the School District’s Pledge ceremony infringes
his right under California law to expose his daughter to his religious
views. While she is intimately associated with the source of respondent’s
standing (the father-daughter relationship and respondent’s rights
thereunder), the daughter is not the source of respondent’s standing;
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instead it is their relationship that provides respondent his standing, which
is clear once respondent’s interest is properly described.”
2. Other Jurisdictions – Each legal parent retains a constitutional right to educate the child
in the parent’s own religion absent a clear showing that doing so would substantially
harm the child. Finnerty v. Clutter (Ind. 2009).
3. Free Exercise Clause
a. Gives a parent (1) the individual right to practice his or her religion and (2) the
right to instill his or her religious beliefs in his or her child.
b. Parent’s religious beliefs evolve.  Free Exercise Clause may prevent a court
from enforcing parental agreements about their child’s religious upbringing.
4. Establishment Clause
a. Some courts have held that the Establishment Clause bars courts from examining
the appropriateness of any religious belief or practice.
b. General Rule – Nexus Test: A parent may not be denied custody on the basis of
his or her religious practices unless there is probative evidence that those practices
will adversely effect the mental or physical health of the child. Harrison v.
Tauheed (Kan. 2010).
c. Best Interests of Child – Court may intervene when religious practices or
disputes interfere. Holder v. Holder (Ohio 2007).
Visitation
1. Definition – Temporary custody for a discrete period of time.
2. One parent receives sole physical custody.  Other receives liberal visitation, which
usually means every other weekend, one overnight weekday visit, a few weeks during the
summer, and some major holidays.
Fit Noncustodial Parent’s Right to Visitation
1. General Rule – Parent has a right to visitation unless visitation would be detrimental to
the best interests of the child.
2. ALI
a. Abandoned concept of visitation, which it regards as a form of “custodial
responsibility.”
3. UMDA § 407: Visitation
(a) A parent not granted custody of the child is entitled to reasonable visitation
rights unless the court finds, after a hearing, that visitation would endanger
seriously the child’s physical, mental, moral, or emotional health.
(b) The court may modify an order granting or denying visitation rights whenever
modification would serve the best interest of the child; but the court shall not
restrict a parent’s visitation rights unless it finds that the visitation would
endanger seriously the child's physical, mental, moral, or emotional health.
4. Everyday Decisions – Generally, the parent with whom the child is staying at the time
can make ordinary parenting decisions, e.g., haircuts. These decisions, however,
generally do not form the basis for limiting or eliminating visitation because parents have
a fundamental liberty interest in making such decisions.
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Denial of Visitation
1. Visitation generally will be terminated only when a parent is determined to be unfit.
a. Courts use a NEXUS TEST.
2. Modification of Visitation – Until a child reaches the age of majority, visitation can be
modified at any time but only when the parent seriously endangers the child’s well-being.
3. Usack v. Usack (N.Y. 2005)
a. Rule – “A parent, of course, has a statutory duty to support a child until the age of
21. However, where it can be established by the noncustodial parent that the
custodial parent has unjustifiably frustrated the noncustodial parent’s right of
reasonable access, child support payments may be suspended.”
i. Minority Rule
4. Majority Rule – Denial of visitation is NOT a defense to an action for failure to pay
child support. Sampson (D.C. 2004).
5. Periodic Accounting of Child Support Expenditures – Required by some jurisdictions
to reduce friction between parents. E.g., Missouri.
6. Online/Video Chat Visitation – Some courts may order it in addition to in-person
visitation. E.g., Utah.
7. Remedies for Injured Noncustodial Parent
a. Modification of visitation order or parenting agreement to provide a more detailed
schedule and conditions for visitation
b. Additional “make-up” visitation
c. Contempt proceedings
d. Civil damages for IIED
8. Parental Discretion During Visits
a. Page 780
b. Some courts impose stringent conditions.
c. Some courts allow a parent to decide how to spend his or her parenting time.
Miller v. Smith (Vt. 2009).
9. Supervised Visitation
a. For parents that are not unfit, but where there are sufficient concerns about a
child’s safety or well-being that the parent cannot be alone with the child.
b. Court finds that a child might be harmed during an unsupervised visit with a
noncustodial parent.  May order supervised visitation. Dufresne v. Dufresne
(La. 2008).
c. Locations – Page 781
d. Supervisors – Page 781
i. Sometimes, family members. Usually not the oldest sibling. Typically,
one of the grandparents on the noncustodial parent’s side. This can be
dangerous if the relative does not take the responsibility seriously, and in
fact, relatives should not be supervisors.
e. Domestic Violence
i. Appropriate situation for supervised visitation.
ii. Might warrant no visitation at all, which is an exception to the usual
UMDA policy.
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10. Frustration of Visitation by Custodial Parent – May constitute a change of
circumstances warranting modification of the custody order. Miller-Jenkins v. MillerJenkins (Vt. 2010).
11. Visitation and Domestic Abuse – Supervised visitation may be impossible.
Third-Party Visitation
1. Troxel v. Granville (U.S. 2000)
a. Fundamental Liberty – “The Due Process Clause of the 14th
Amendment protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children.”
2. Standing to Seek Visitation – State statutes generally create standing for third parties to
seek visitation, rather than substantive rights to visitation.
3. Grandparents – May have visitation rights when (1) an unmarried parent is deceased
and (2) a court finds visitation to be in the best interests of the child. Harrold v. Collier
(Ohio 2005).
a. All 50 states, but not DC, have grandparent visitation statutes.
b. If the parents are alive and do not want the grandparents to see the child, there is
no way for the grandparents to obtain access. The parents’ constitutional rights
trump the grandparents’ rights.
4. Living Parents Denying Visitation to Grandparents
a. Pages 788–89
b. Ohio, Louisiana, New Jersey, and New Hampshire
5. Stepparents
a. Traditional Rule – No independent visitation rights.
b. Visitation rights may be created by statute or common law. About one-third of
states have such statutes.
i. Pages 789–90: Indiana and Montana
6. Siblings
a. General Rule – Where a child lives with a parent who has no right to visit the
child’s sibling, the child usually has no standing to seek visitation.
b. New Jersey – Siblings do have standing to seek visitation.
De Facto Parents
1. Fatherhood – De facto parent cases frequently arise when a married man believes that he
is the biological father of a child in his household but discovers that another man is the
biological father when the couple breaks up.
2. Source of Law
a. Equitable claim;
b. Best interests of the child standard; or
c. State statute
3. ALI
a. Parent by Estoppel – § 2.03
(b) A parent by estoppel is an individual who, though not a legal parent,
(i) is obligated to pay child support; or
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(ii) lived with the child for at least two years and
(A) over that period had a reasonable, good-faith belief that
he was the child’s biological father, based on marriage to
the mother or on the actions or representations of the
mother, and fully accepted parental responsibilities
consistent with that belief, and
(B) if some time thereafter that belief no longer existed,
continued to make reasonable, good-faith efforts to accept
responsibilities as the child's father; or
(iii) lived with the child since the child’s birth, holding out and
accepting full and permanent responsibilities as parent, as part of a
prior co-parenting agreement with the child’s legal parent (or, if
there are two legal parents, both parents) to raise a child together
each with full parental rights and responsibilities, when the court
finds that recognition of the individual as a parent is in the child’s
best interests; or
(iv) lived with the child for at least two years, holding out and
accepting full and permanent responsibilities as a parent, pursuant
to an agreement with the child’s parent (or, if there are two legal
parents, both parents), when the court finds that recognition of the
individual as a parent is in the child's best interests.
b. De Facto Parent– § 2.03
(c) A de facto parent is an individual other than a legal parent or a parent
by estoppel who, for a significant period of time not less than two years,
(i) lived with the child and,
(ii) for reasons primarily other than financial compensation, and
with the agreement of a legal parent to form a parent-child
relationship, or as a result of a complete failure or inability of any
legal parent to perform caretaking functions,
(A) regularly performed a majority of the caretaking
functions for the child, or
(B) regularly performed a share of caretaking functions at
least as great as that of the parent with whom the child
primarily lived.
c. Allocation of Parenting Time – § 2.18
(a) [The court] not allocate the majority of custodial responsibility to a de
facto parent over the objection of a legal parent or a parent by estoppel
who is fit and willing to assume the majority of custodial responsibility
unless
(i) the legal parent or parent by estoppel has not been performing a
reasonable share of parenting functions, or
(ii) the available alternatives would cause harm to the child
i.  Gives priority to legal parents and parents by estoppel.
4. Uniform Parentage Act – Recognizes as a parent a person who has lived with the child
during its first two years of life and openly holds out the child as his or her own. § 106.
5. Pennsylvania – De Facto Parent
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a. De Facto Parent – “The child has established strong psychological bonds with a
person who, although not a biological parent, has lived with the child and
provided care, nurture, and affection, assuming in the child’s eye a stature like
that of a parent.” T.B. v. L.R.M. (Pa. 2001).
b. Regardless of relationship with biological parent.
c. Equivalent to in loco parentis doctrine.
d. Renders legal adoption unnecessary.
6. Wisconsin – De Facto Parent
a. “To demonstrate the existence of a petitioner’s parent-like relationship with a
child, the petitioner must prove four elements: (1) that the biological or adoptive
parent consented to, and fostered, the petitioner’s formation and establishment of
a parent-like relationship with the child, (2) that the petitioner and the child lived
together in the same household, (3) that the petitioner assumed the obligations of
parenthood by taking significant responsibility for the child’s care, education, and
development, including contributing towards the child’s support, without
expectation of financial compensation [a petitioner’s contribution to a child’s
support need not be monetary], and (4) that the petitioner has been in a parental
role for a length of time sufficient to have established with the child a bonded,
dependent relationship parental in nature.” V.C. v. M.J.B. (N.J. 2000).
b. Most common test
7. C.M.G. v. L.M.S. (Del. 2010)
a. De Facto Parent Status – “De facto parent status is established if the Family
Court determines that the de facto parent:
“(1) Has had the support and consent of the child’s parent or parents who
fostered the formation and establishment of a parent-like relationship
between the child and the de facto parent;
1. Does NOT require ongoing consent. Only consent at the
“formation and establishment of a parent-like relationship.”
2. Subsequent withdrawal of consent does not change anything.
“(2) Has exercised parental responsibility for the child; and
“(3) Has acted in a parental role for a length of time sufficient to have
established a bonded and dependent relationship with the child that is
parental In nature.”
3. Statute does not specify a sufficient length of time.
4. NOT dependent on ongoing consent.
b. De factor parent status is determined.  Best interests analysis.
c. Holding – The great weight of the evidence established that an adoptive mother
supported and consented to her same-sex domestic partner’s fostering and
establishing a parent-like relationship with the adopted child, as required for de
facto parent status on petition for custody. The adoptive mother and the domestic
partner had shared in the costs associated with adopting the child from
Kazakhstan. Prior to the adoption, the two parties agreed that the domestic
partner would be called mommy, and the adoptive mother would be called
“Sheshe” the Kazakhstan word for mother. They had co-habited with the child
for over a year before deciding to separate. After the separation, the adoptive
mother still agreed to spend Mother’s Day with the domestic partner and the
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child, presenting the domestic partner with a Mother's Day card on behalf of the
child.
8. Lack of Standing – Some states deny standing to third parties seeking custody or
visitation based upon a lack of statutory authority.
a. Pages 802–03
b. Michigan, Maryland, Texas, and North Carolina
9. Neighbor as De Facto Parent
a. Pages 803–04
b. Parenting Responsibility Statute – See Colorado statute on page 804.
Modification and Relocation
1. Modification
a. Source of Court’s Authority – State’s parens patriae interest in the welfare of
children. Courts retain jurisdiction over custody and visitation until a child
reaches the age of majority.
b. Modification Standard – Court must find that:
i. Circumstances have changed substantially since the original decree was
entered; and
ii. Change in custody will serve the best interests of the child.
iii.  Change in circumstances must (1) have occurred after the initial decree
was entered and (2) have been unforeseeable by the parties at the time of
the initial decree.
1. Anticipated changes in circumstances should be incorporated into
the custody or visitation order.
iv.  State law may require that a specified period of time, e.g., two years,
must have passed before a court may issue a modification order.
c. Changed Circumstances
i. Majority Rule – Focus is on changed circumstances of the custodial
parent, not the noncustodial parent. State v. Neustel (N.D. 2010).
ii. “Material” – Conglomeration of changes, adding up to a different
calculation of the child’s best interests.
iii. Minority Rule – Modification may be based on the child’s best interests
without any showing of changed circumstances.
d. Modifying Joint Physical Custody
i. Some States – Less stringent inquiry. E.g., Alabama.
ii. Changed Circumstances – Parents’ inability to cooperate; child’s need for
consistency; etc.
iii. Both Parents Request Termination of Joint Custody – Court must
terminate joint custody. Reversible error if it does not. Le v. Nguyen
(Okla. 2010).
e. Informal Modifications – Parents should have the court approve any changes.
Hurtt v. Hurtt (Ark. 2005).
2. Relocation
a. Modern Trend – Decide cases on a case-by-case basis.
b. ALI – Page 807
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c. Custodial Parent – Limitations on the ability to move apply only to the custodial
parent.
i. Noncustodial parent is free to relocate without court’s consent.
d. Notice – Custodial parent usually must provide notice to the noncustodial parent.
(Majority Rule)
e. Interests Considered
i. Majority Rule – Child
ii. Minority Rule – Parent seeking relocation
f. Fredman v. Fredman (Fla. 2007)
i. Relocation Statute and Factors – “No presumption shall arise in favor of
or against a request to relocate when a primary residential parent seeks to
remove the child and the move will materially affect the current schedule
of contact and access with the secondary residential parent. In making a
determination as to whether the primary residential parent may relocate
with a child, the court must consider the following factors:
“1. Whether the move would be likely to improve the general
quality of life for both the residential parent and the child.
“2. The extent to which visitation rights have been allowed and
exercised.
“3. Whether the primary residential parent, once out of the
jurisdiction, will be likely to comply with any substitute visitation
arrangements.
“4. Whether the substitute visitation will be adequate to foster a
continuing meaningful relationship between the child and the
secondary residential parent.
“5. Whether the cost of transportation is financially affordable by
one or both parties.
“6. Whether the move is in the best interests of the child.”
1.  “When a primary residential parent seeks to relocate a
child, state law requires the court to consider all the statutory
factors without any presumptions in favor of either party. The
factors address, among other things, the relocating parent’s quality
of life, the other parent’s ability to maintain a meaningful
relationship with the child, and the child’s best interests. Thus, the
relocation statute requires the court to consider the competing
interests, with an appropriate focus on the parents’ rights, along
with the best interest of the child.”
ii. Right of Both Parents to Determine Child’s Residence – “To the extent
that the mother is arguing that she has a fundamental right as a parent to
decide where her children live, she must recognize that the father shares
the same fundamental right.”
iii. Fundamental Right to Travel – “The United States Supreme Court has
long recognized that the nature of the federal union and constitutional
concepts of personal liberty unite to require that all citizens be free to
travel throughout the length and breadth of the United States uninhibited
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g.
h.
i.
j.
k.
by statutes, rules, or regulations which unreasonably burden or restrict this
movement.”
iv. Fundamental Right to Care, Custody, and Control of Child – “A
minority time parent has an equally important constitutional right to the
care and control of the child.”
1. Must balance both parents’ rights and best interests of the child.
v. Equal Protection and Similarly Situated Persons – “An equal
protection analysis is appropriate only if similarly situated individuals are
treated differently. Equal protection is not violated merely because some
persons are treated differently than other persons. It only requires that
persons similarly situated be treated similarly.”
1. Mother and father are NOT similarly situated here.
Burden of Proof – Some states’ burdens or rebuttable presumptions are highly
favorable to primary residential parents wishing to relocate. E.g., Wisconsin.
i. Pages 816–17
Bad-Faith Relocation – Motivated wholly or in part by a desire to frustrate the
noncustodial parent’s access to the child.  Court will disallow. Galarza v.
Galarza (Okla. 2009).
Divorce Decree Restricting Travel – May not be enforceable. Helton v. Helton
(Tenn. 2004).
Court Cannot Order a Parent to Live in a Location – “In an initial
determination to allocate parental responsibilities, a court has no statutory
authority to order a parent to live in a specific location. Rather, the court must
accept the location in which each party intends to live, and allocate parental
responsibilities accordingly in the best interests of the child.” Spahmer v. Gullette
(Colo. 2005).
International Relocation
i.  Condon v. Cooper (Cal. 1998).
ii. Three Problematic Aspects (Pages 819–20)
1. Culture Problem
2. Distance Problem
3. Jurisdictional Problem
iii. International Relocation Substantially Diminishes Relationship with
Noncustodial Parent – “Any relocation to another continent is likely to
represent a de facto termination of the nonmoving parent’s rights to
visitation and the child’s rights to maintain a relationship with that
parent.”
iv. Moving Parent Must Show Why Relocation Is in the Child’s Best
Interests – “Thus, when a relocation would have this practical effect,
before allowing the move-away a trial court should require the moving
parent to satisfy the burden of showing the termination of those rights
would be in the best interests of the child. If the moving parent cannot
satisfy this burden, perhaps he or she could tender an arrangement where
the moving parent finances the other parent’s visitation or the child spends
alternate years in the two countries, or some other plan which
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accommodates the valuable relationship between the nonmoving parent
and the child.”
v. Enforceability of Agreement Until Majority – “Before permitting any
relocation which purports to maintain custody and visitation rights in the
nonmoving parent, the trial court should take steps to insure its orders to
that effect will remain enforceable throughout the minority of the affected
children. Unless the law of the country where the children are to move
guarantees enforceability of custody and visitation orders issued by
American courts, and there may be no such country, the court will be
required to use its ingenuity to ensure the moving parent adheres to its
orders and does not seek to invalidate or modify them in a foreign court.”
The Hague Convention on International Child Abduction
1. Kidnapping of Children by Parents – Illegal in every state.
a. Social policy against kidnapping trumps the best-interests emphasis on continuity.
2. Supervised Visitation – Appropriate where the risk of abduction is apparent. Lee v. Lee
(Ala. 2010).
3. New Jersey v. Froland (N.J. 2005)
a. Pages 821–22
b. Facts – Following indictment of defendant and codefendant for multiple offenses,
including first-degree kidnapping of codefendant’s children, defendant was
convicted in the Superior Court of first-degree kidnapping. Defendant appealed.
Codefendant, whose case had not yet gone to trial, filed motion to dismiss
kidnapping charge, which the Superior Court granted. State appealed.
c. Holding – On consolidation of both appeals, the Superior Court held that:
i. Codefendant could be convicted of violating amendment to kidnapping
statute making it unlawful for a person to remove or confine a child with
intent to permanently deprive a parent of custody of the child;
ii. Defendant, who was wife of custodial parent, could be convicted of
kidnapping;
iii. Evidence was sufficient to support defendant’s conviction; and
iv. Presumption did not arise that prosecutor’s act of choosing to prosecute
defendant for kidnapping in addition to interference with custody was
result of prosecutorial vindictiveness.
4. Intentional Interference with a Custodial Relationship
a. Common-Law Tort (Civil)
b. Recognition
i. Majority Rule – 16 States and DC
ii. Minority Rule – 3 states have declined to recognize the tort.
c. Purpose – Compensate parent wrongfully deprived of a custodial relationship with
the child.
d. Elements
i. The plaintiff had superior custody rights to the child; and
ii. The defendant intentionally interfered with those rights.
e. Remedies
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i. Reimbursement for costs of locating and pursuing the child
ii. Punitive damages
f. Affirmative Defenses – Brown v. Brown (Fla. 2001).
i. Reasonable, good-faith belief that removing the child was proper
ii. Acting to prevent physical harm to the child
5. Criminal Interference with Custody
a. Penalties – Carries serious penalties, including imprisonment for a first-time
offense.
b. Affirmative Defenses
i. Reasonable, good-faith belief that removing the child was proper
ii. Acting to prevent physical harm to the child
6. Hague Convention on the Civil Aspects of International Child Abduction
a. Ratified by US in 1988.
b. 68 countries have mutual agreements with the US providing full enforcement.
c. Purpose – Limiting the main incentive for international abduction: forum
shopping of custody disputes
d. Provisions (Pages 825–26)
i. Article 3 – Wrongful Removal
ii. Article 4 – Covered Children
iii. Article 8 – Where to Seek Enforcement
iv. Article 12 – Return Remedy
v. Article 13 – Where Return Is NOT Required
e. Cuellar v. Joyce (9th Cir. 2010)
i. Living Conditions
1. Grave Risk – “At the time the Hague Convention on the Civil
Aspects of International Child Abduction was adopted, the State
Department took care to emphasize that grave risk does not
encompass a home where money is in short supply, or where
educational or other opportunities are more limited.”
2. Poverty – “Poverty is not a reason to deny relief.”
3. Considering Conditions Before Conception – “The animating
idea behind the Hague Convention on the Civil Aspects of
International Child Abduction is to eliminate any tactical
advantages gained by absconding with a child. The time to take
such considerations into account is before undertaking the
volitional acts that lead to conception. Once the child is born, the
remote parent must accept the country where the child is habitually
resident and its legal system as given. Absent a showing of grave
risk, or that one of the Convention’s other narrowly-drawn
exceptions applies, whatever case the remote parent may have for
custody must be made there.”
ii. Medical Concerns – “A parent may be able to defeat or delay return to
the country of habitual residence by showing that it would disrupt an
ongoing course of medical treatment and severely impact the child’s
health. But the parent would have to provide clear and convincing
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f.
g.
h.
i.
evidence both of the child’s serious medical needs and of the home
country's inability to provide the necessary care.”
iii. Psychological Harm – “The fact that a child has grown accustomed to her
new home is never a valid concern under the grave risk exception, as it is
the abduction that causes the pangs of subsequent return. Rather than
allowing an abducting parent to profit from the psychological dislocation
that he has caused, the Hague Convention on the Civil Aspects of
International Child Abduction attempts to avoid the harm by deterring
parents from abducting their children in the first place.”
iv. Consent to Abduction – “Being victim of a successful abduction can
never prove consent. Even ambiguous statements or actions don’t suffice;
the Hague Convention on the Civil Aspects of International Child
Abduction requires the parent opposing removal to unequivocally
demonstrate that the petitioning parent consented to the child’s indefinite
stay in America.”
State Department’s Role – Page 831
Wrongful Removal – Violation of the “custody rights” of another adult under the
laws of the country in which the child “habitually resides.”
Habitual Residence
i. Not defined in Convention.
ii. Different from “Home State” – Page 831
iii. Elements – (1) Physical presence and (2) parents’ shared intent as
demonstrated by both statements and actions. Gitter v. Gitter (2d Cir.
2005).
iv. Timing – Point in time immediately before removal or retention. Barzilay
v. Barzilay (8th Cir. 2010).
v. Factors – “Factors relevant to a determination of habitual residence
include: the settled purpose of the move to the new country from the
child’s perspective, parental intent regarding the move, the change in
geography, the passage of time, and the acclimatization of the child to the
new country.” Barzilay v. Barzilay (8th Cir. 2010).
1. Settled Purpose – Critical. Barzilay v. Barzilay (8th Cir. 2010).
2. Parental Intent – Other courts consider it to be critical. Mozes v.
Mozes (9th Cir. 2001).
3.  Some courts consider both to be critical. Karkkainen v.
Kovalchuk (3d Cir. 2006).
Affirmative Defenses
i. Child has become well settled in her new environment.
ii. Parent filing the petition for return was not actually exercising custody
rights at the time of the wrongful removal, or the parent had consented or
acquiesced to the removal or retention.
iii. Returning the child would pose a grave risk to the child or otherwise place
her in an intolerable situation.
iv. Returning the child would violate the fundamental principles of the
returning state relating to the protection of human rights and fundamental
freedoms.
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1. E.g., female genital mutilation; honor crimes; etc.
j. Covered Children
i. NOT minors over 16.
ii. Minors over 16 may consent to removal or seek return to their home
country.
iii. Younger children have no right to testify or have a court credit their views.
Kufner v. Kufner (1st Cir. 2008).
k. Domestic Violence – No domestic violence exception
l. Violation of Visitation Rights – Denying access to parents who have a right to
visitation, but no custodial rights, is not considered a violation under the Hague
Convention. Croll v. Croll (2d Cir. 2000).
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