FAMILY LAW
Prof. Doug NeJaime
Fall 2010
I. Private Family Choices
A. Intimate Partners
Lawrence v. Texas - It isn’t clear whether the right at issue in this case is a fundamental
right or what level of scrutiny the SC is applying, but the Court strikes down the TX
sodomy law b/c it regulates private sexual conduct.
Planned Parenthood v. Casey - At issue was a spousal notification law that required
women to notify their husbands before getting an abortion. The Court holds that the
law is unconstitutional because requiring notice can operate as an unofficial veto to the
woman’s decision to get an abortion. The Court also announces a new standard: “the
undue burden" standard, which strikes down laws that place an undue burden on the
exercise of Constitutional rights (balancing test).
B. Parents and Children
Meyer v. Nebraska - The law did not allow children who had not yet completed 8th grade
from being instructed in foreign languages.
Pierce v. Society of Sisters - The law required all children to attend public school. Both
cases announce that parents have a right to direct the upbringing of their children.
Prince v. Mass. - A JW mother has her kids selling Watchtowers at night and is
prosecuted for violating child labor laws. The Court announces that sometimes the
State can act for the benefit of children is spite of the parents’ wishes.
Wisconsin v. Yoder - The Amish object to a law that requires children to attend school
until they are 16 years of age. The court carves out an exception for the Amish because
it feels the Amish do a fine job of educating their children.
II. Getting Married
A. Preparing to Marry
1) Breach of the Promise to Marry
Rivkin v. Postal - The majority of states no longer have a breach of promise to
marry claim. The minority of states that do retain this claim require some proof
of promise to marry (i.e. a written contract or two disinterested witnesses).
2) Return of Conditional Gifts
Fowler v. Perry - The court holds that the ring should be returned to the man
when marriage doesn’t happen. The minority approach is no-fault (it doesn’t
matter who ended the relationship).
3) Premarital Contracts
General Rule - Premarital Contracts will be enforced so long as they are not
unconscionable.
B. Constitutional Limits on the Right to Marry
Loving v. Virginia - Sixteen states prohibited marriage between people of different
races. The VA statute at issue in this case imposed criminal sanctions for interracial
marriages between whites and non-whites. The SC strikes down the statute based on
Equal Protection and Substantive Due Process. The Court talks about marriage as the
“basic civil right of man” that is “fundamental to our very existence and survival.”
Zablocki v. Redhail - A WI statute prohibits “deadbeat dads” from remarrying without
court permission. The SC strikes down this statute because it interferes with the
fundamental right to marry.
C. Other Restrictions on the Right to Marry
1) Incest
In Re Adoption of M. - An adult who was adopted as a child is pregnant with her
adoptive father’s child. They now want to undo the adoption so that they can
get married. The court grants the request because it says that it is in the best
interests of the adopted adult and her unborn child.
2) Bigamy
State v. Holm - Holm married Suzie (legally) and then married to Wendy
(religious ceremony) and then Ruth (Suzie’s sister, religious ceremony). The
Utah bigamy statute provides that it is violated when you either purport to
marry another person when you are already married or if you cohabit with
another person. The court holds that this statute does not violate the free
exercise clause because it was not aimed at a certain religion. The court says
that Lawrence does not apply her because it was not about coercion or public
conduct and this case does deal with public conduct (a public marriage).
3) Age
Kirkpatrick v. District Court - Age restrictions on marriage do not face strict
scrutiny in constitutional challenges because there is no fundamental right to
marry if you are a minor.
4) State of Mind (Fraud and Duress)
a. Two Approaches to Fraud
i. The “Essentials of Marriage” (i.e. sex and kids)
ii. Material Misrepresentation
Blair v. Blair - The husband is seeking an annulment based on
fraud because the wife told him that he was the father of her
child (she had sex with H when she was still married, but the
child was fathered by a third guy). The husband argues that he
wouldn’t have seen the woman again and thus would not have
married her if he knew that this wasn’t his kid. The court
doesn’t buy this. The threshold for showing fraud is pretty high.
5) Procedural Restrictions (Blood Tests, Waiting Periods, Licensure, Solemnization)
Majority Rule: Procedural failure does not invalidate the marriage
Carabetta v. Carabetta - The parties did not get a license, but were married in
the Roman Catholic Church. Years later the husband is trying to void the
marriage because they didn’t get a license. The court holds that the marriage is
valid.
D. Informal Marriages
Common Law Marriage (recognized in small minority of states)
1) Capacity to enter a marital contract
2) Present agreement to be married
3) Cohabitation
4) Holding out to the community as spouses
Jennings v. Hurt - Although common-law marriages are recognized in South Carolina
where the couple lived together, the court holds that the couple did not have a common
law marriage.
III. Being Married
A. The Changing Nature of Marriage
1) Marital Property Regimes
a. Common Law - Property owned separately, belongs to spouse who acquired
it unless designated otherwise (i.e. tenancy by the entireties)
b. Community Property - Property owned jointly; present, undivided, one-half
interest; 9 states, including CA
McGuire v. McGuire - The wife is suing her husband because he doesn’t provide
new clothes or a toilet for her. The court refuses to intervene in an intact
marriage to tell the husband how he should support his wife.
2) Names in the Family
Neal v. Neal - Whether a child receives the mother’s or the father’s surname
depends on the best interests of the child.
Henne v. Wright - Two appeals are consolidated: Deborah Henne wants to name
her child after the father to whom she is not married. Another mother wants to
name her child McKenzie, because she likes that name. There is a state law that
requires the child to be named after the husband’s surname, or after the
mother’s surname. If the child is going to be named after the father to whom
the mother is not married, the mother must get the father’s consent. The court
holds that the right to name a child something other than the husband’s
surname is not a fundamental right.
B. Tort and Criminal Law
1) Alienation of Affection
1) Valid Marriage
2) Wrongful conduct by defendant with plaintiff’s spouse
3) Loss of affection or consortium
4) Causal connection between defendant’s conduct and loss of affection
*Criminal Conversation requires sex.
* Still exists in 7 states.
Jones v. Swanson - The husband is suing the wife’s lover for causing the breakup of his marriage. The def. argues that there was no causal connection
between the affair and the dissolution of the marriage. The court holds that
there was enough evidence to uphold the jury’s verdict, but the court does
reduce the damages award.
Bailey v. Faulkner - The Alabama legislature had passed “anti-heartbalm”
statutes that abolished the alienation of affection cause of action. A pastor was
counseling a married couple while carrying on a secret affair with the wife who
was also the church secretary. The husband brings a negligence claim against
the pastor, but the court dismisses it because it is just like an alienation of
affection claim.
2) Tort Actions between Spouses
a. Interspousal Immunity
Common Law: H & W were one identity
Married Woman’s Property Acts: Can sue over property
* Trend toward abrogation of intentional and negligent torts
Cal. HIV/AIDS Law – Knowledge of HIV+ Status + Failure to disclose +
unprotected sexual activity + intent to infect = felony
*Constructive knowledge of HIV+ Status is enough for civil liability
between H & W
G.L. v. M.L. - The husband is being sued by the wife for infecting her
with herpes. The court holds that interspousal immunity does not apply
in this case; the husband can’t assert the marital privilege when he has
abused that privilege.
b. Wiretapping
Glazner v. Glazner - The husband was found civilly liable under federal
wiretapping statutes. It doesn’t matter that the parties were married,
the wiretapping statute still applies.
3) Evidentiary Privileges
Marital Communications Privilege – Protects confidential spousal
communications made during lawful marriage
*Privilege outlives the marriage.
Privilege Against Adverse Spousal Testimony – Spouse may exclude evidence by
other spouse of criminal acts and communication in the presence of third
persons.
*Applies only to testimony adverse to the non-witness spouse.
*Available only during marriage.
Trammel v. United States - The State’s case against the husband in a drug
trafficking case was based mostly on the testimony of his wife against him. The
court holds that the wife can testify against her husband, despite his wishes.
*Spouse can still refuse to testify against spouse.
*Spousal Communications rule left undisturbed.
C. Domestic Violence
1) Marital Rape
People v. Liberta - The N.Y. court strikes down a marital exemption to the rape
statute.
2) Battered Woman Syndrome
Cycle of Violence – Tension building phase, acute battering incident, contrition
phase.
Learned Helplessness – Battered Woman loses motivation to respond.
BWS as Self-Defense – Problems b/c lethal force responding to attack w/ hands,
no immediate threat b/c H is drunk/asleep and W appears to be the aggressor.
Hawthorne v. State - The wife shot and killed her husband, and attempted to
offer an expert witness to testify regarding BWS to show that the wife acted in
legally justified self-defense because her belief that she was in imminent danger
was reasonable considering the circumstances of the relationship.
3) Duties of Law Enforcement
Domestic Violence Remedies Against the State: 1) Fed EP in Enforcement and 2)
Negligence (State).
*REJECTED Claims: Fed SDP and Fed Procedural DP.
Town of Castle Rock v. Gonzales - The P is suing the Town of Castle Rock based
on a procedural DP claim, arguing that she had a property interest in a
restraining order against her husband which was not being enforced by the
police. The Court holds that although state statutes said that there was
mandatory enforcement of restraining orders and mandatory arrest of violators,
the police still have discretion to enforce a restraining order or not. The Court
also states that there is no property interest in a restraining order.
D. Employment
1) Prohibitions on Adverse Treatment
Private Employment (At Will) – Title VII (“because of sex”), PDA, FMLA, EPA,
ADA, State and Local ADL, Collective Bargaining Agreements.
Public Employment – Constitutional Bases: 1st Amendment (speech, association),
EP (race, sex/gender, S.O.?), SDP (“arbitrary and capricious”); Statutory Law;
Collective Bargaining Agreements; Civil Service Rules; Reg.’s; Exec. Orders.
a. Title VII
Disparate Treatment – Sex Discrimination, Sexual Harassment, Sex
Stereotyping.
Disparate Impact – Facially neutral policy or treatment w/ negative and
disproportionate effect on protected group.
*If prima facie showing, Employer avoids liability by showing policy is
job-related and required as a matter of business necessity.
i. Sexual Harassment
Quid Pro Quo – “Tangible employment action” against P (firing,
demoting, refusing to promote, pay) b/c of P’s refusal to submit
to or continue sexual relations.
Hostile Work Environment - Harassment is “sufficiently severe
and pervasive to alter the conditions of employment and create
an abusive work environment.”
*Both objectively and subjectively offensive.
ii. Sex Stereotype Discrimination
Hopkins v. Price Waterhouse - Women’s Double-Bind:
Workplace rewards “masculine” traits, women workers
expected to be “feminine.” “An employer who acts on the basis
of a belief that a woman cannot be aggressive, or that she must
not be, has acted on the basis of gender.”
b. Pregnancy Discrimination Act
“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 … as
other persons not so affected but similar in their ability or
inability to work.”
c. Family and Medical Leave Act
*Sex-neutral, but aimed at sex stereotypes and sex-based
treatment.
Eligibility: at least year of employment, relatively large
employers (50+ employees), includes state government
employers.
Coverage: birth (doesn’t treat pregnancy as disability); adoption
(broader than PDA); “serious health condition”; illness, injury,
impairment, or physical or mental condition that involves
inpatient care in hospital, hospice, or residential medical care
facility; OR continuing treatment by a health care provider
Protection: 12 weeks for 12-month period, unpaid leave (more
likely to be paid under PDA), job restoration (or equivalent)
Relationships Covered: traditional, immediate family: child,
spouse, parent (in loco parentis extension); non-traditional,
extended family: other relative, unmarried partner, same-sex
partner?
*Recent policy change by Dep’t of Labor to include children of
same-sex partner (but no inclusion of same-sex partner/spouse)
2) Pregnancy Leave
Cleveland Board of Ed. V. LaFleur - The policy required pregnant women to give
notice to their employer 5 months before the birth of the child and mandatory
termination at 4-5 months before delivery. There was priority for re-hiring, but
no re-instatement.
IV. The Reality of Contemporary Families
A. Constitutional Limits on Definitions of “Family”
B. Cohabitation
1) Criminal Sanctions
Substantive Due Process
What is the right?
1) Right to Associate
2) Right to Privacy (sexual liberty)
3) Right to live with whom you want (family)
4) Right to raise a family
Is the right fundamental?
If yes, Strict Scrutiny.
If no, Rational Basis Plus or Heightened Scrutiny.
What is the Gov’t Interest?
State interest in traditional family
Protect marriage
Morality
2) Employment
Shahar v. Bowers - The court holds that is was ok for the Georgia AG to fire
Shahar due to her purported marriage to another woman.
3) Unmarried Couple’s Rights
Marvin v. Marvin - Actor Lee Marvin cohabited with Michele for seven years and
when they split up, Michele claimed that they had an oral contract that Michele
would get half of the earnings from the time that they were to together.
C. Parents’ and Children’s Rights in the Non-Marital Family
Inheritance - As long as father is identified, equal treatment of children regardless of
marital status of parents.
Clark v. Jeter - Pennsylvania had a six-year statute of limitations for paternity suits
brought by illegitimate children. By the time the case gets to the SC, Penn. had changed
its SOL to 18 years. The Court applies Intermediate Scrutiny and finds that the 6-year
SOL violates Equal Protection.
Stanley v. Illinois - Under Illinois law, the children of unwed fathers become wards of the
state upon the death of the father. Because the classification is not exactly genderbased, Stanley’s EP claim gets RB review. Stanley also had a Procedural DP claim based
on his parental rights, because the state took his children without determining that he
was an unfit parent. The Court holds that this law does violate EP and PDP.
Michael H. v. Gerald D. - Two fathers are fighting for parental rights where the natural
father (Michael H.) had an affair with Gerald D.’s wife. Ct holds that marital
presumption applies, so the bio dad is not the legal father.
1) Extending Paternity Laws to Same-Sex Couples
Elisa B. v. Superior Court - Elisa and Emily are partners and decide that they both
want to have children from the same sperm donor. Elisa had Chance and Emily
had twins, Ry and Kaia. Elisa works while Emily takes care of the children. They
break up and Elisa doesn’t want make support payments. The court must
decide whether Elisa is a parent to the twins. The court looks to the UPA
provisions on fatherhood to determine the issue. Even though the UPA treats
mothers and fathers differently, the court holds the provisions concerning
fatherhood apply to Elisa in this case.
D. Adoption
1) Stepparent and Second Parent Adoption
a. Stepparent Adoption
- Terminates legal parental rights of non-custodial parent
- But not rights to inheritance
- Need consent of non-custodial parent (but court can act without
consent as well)
- And consent of child in some cases
Adoption of Tammy - Susan gave birth to Tammy by a known sperm donor
(Helen’s cousin) and Helen wants to adopt Tammy. Tammy won’t inherit from a
huge family trust unless she is adopted by Helen. Everyone agrees that it is in
the best interests of the child to be adopted, but the court can’t grant the
petition without statutory authority. Because the statute does not prohibit
unmarried people from adopting, the adoption cannot be denied on that
ground. The next question is whether the adoption by the non-biological mom
terminates the parental rights of the biological mom. The court states that this
would not serve the purpose of the statute.
2) Regulation of Adoption Placement by Sexual Orientation
Lofton v. Sec. of DCFS - The court says that adoption is not a fundamental right,
it is a statutory privilege. The EP claim based on Sexual Orientation thus gets RB
review. P also has a SDP claims to “family integrity,” parental rights, Lawrence
claim (sexual privacy). These are not fundamental rts, so the SDP claim gets RB
review. This case is different from Lawrence b/c it concerns public conduct
(adoption). The Gov’t interest: Children with straight m/f parents who are
married b/c it brings stability and good role models, including sexual roles.
Florida DCFS v. in re: Matter of Adoption of X.X.G. & N.R.G. – The Ct relies on
experts to find that the FL gay adoption ban has no RB.
Traditional RB
- Deferential
- Means-Ends analysis not necessary
- Actual purpose doesn’t matter
- Strong presumption of validity
RB + or RB w/ Bite
- Does look at the purpose
- “Morality” is not enough
* This is applied when identity groups are singled out (gays, disabled, hippies,
etc.)
Cole v. Arkansas DCFS – Ct. finds that there is a RB for the law against cohabiting
couples being foster parents, etc. b/c research shows kids do better in married
households. Under state rt to privacy the law gets SS and the law is overinclusive b/c it excludes some people who would be good parents and seems
animated by singling out gay people, thus it is unconstitutional.
E. Reproductive Technology
Considerations in Deciding Parenthood – Biology, Contract, Conduct, Family Form and
INTENT.
Which Technology?
Sperm Donation – Husband is the father, donor has no rights unless provided
for.
Ova Donation and Gestational Surrogacy - UPA § 201 treats egg donors like
sperm donors; gestational mother presumed legal mother. But UPA § 801
allows agreements to make ova donor legal mother
* Johnson v. Calvert: Intent
* Lesbian couple? 2 mothers. K.M. v. E.G. – biology & conduct
What Kind of Relationship?
Married Couple – Marital Presumption
Unmarried Single Woman – Intent
Unmarried Different-Sex Couple – Intent
Unmarried Same-Sex Couple – Conduct, biology and INTENT
Thomas S. v. Robin Y. – Thomas is a known sperm donor who has a relationship w/ his
daughter who is being raised by lesbians and he wants legal recognition as the child’s
parent. The Ct holds that the sperm donor is the father, so the lower Ct must determine
what rts he has.
K.M. v. E.G. – E.G. claimed she wanted to be a “single parent,” but she and K.M. were
registered domestic partners and they used K.M.’s ova for the procedure thru which
E.G. gave birth to twins. Cal. legislature changed UPA (§ 7613) to reach both married
and unmarried women, so that unmarried women could avail themselves of artificial
insemination without fear of parental claims by the donor. But nothing indicates that
Cal. intended the provision to apply if a man provided semen to be used to impregnate
his unmarried partner in order to produce a child that would be raised in their joint
home.
Jacob v. Shultz-Jacob – The trial Ct awarded custody among the three parties (lesbian
couple + sperm donor/father) but ordered support only among the lesbians, refusing to
include the sperm donor in the suit for support. The Ct reversed the lower Ct, saying
that support should be determined among the three parties, as well.
V. Divorce
A. Role of Counsel
B. Fault-Based Divorce
1) Fault-Based Grounds
a. Adultery
Adultery = an adulterous inclination coupled with an opportunity to
consummate the inclination
Inclination = an infatuation with a particular person or a general
adulterous propensity
Lister v. Lister – Couple divorced after 18 years, wife claims husband is
having affair w/ and employee. H argues on appeal that there is no
evidence of adultery. The standard of proof applied in this situation is
clear and convincing evidence.
b. Cruelty
Cruelty = Course of conduct of cruel behavior that creates an adverse
health effect
- “Conduct endangering life, limb, or health, or creating a
reasonable apprehension of danger, or unnatural and infamous
conduct making the marital relation revolting.”
- Harm need not derive from physical attack by spouse
- Harm can be mental
- Main consideration is “the intolerableness of the plight
created for the non-offending spouse”
Muhammad v. Muhammad – Robert and Pebra convert to Islam and
move to the Univ. of Islam in Miss., where the environment is very
oppressive for women. The Ct hold that this does qualify as cruelty.
c. Desertion
Desertion = 1) Cessation of cohabitation (separation), 2) without cause
or consent, 3) but with intent to abandon or terminate the relationship,
4) continuing for a statutory period.
Constructive desertion = Intolerable conduct by one spouse
toward an innocent spouse that causes the innocent spouse to
leave the marital home.
Reid v. Reid – W brings claim of constructive desertion as grounds for
divorce based on: no sex, H worked too much, didn’t help with
childrearing and no intimacy. H counterclaimed for desertion b/c W left
and then filed for divorce 2 months later. The Ct finds that W deserted
H, so she does not get spousal support.
2) Fault-Based Defenses
a. Recrimination
- Equal guilt bars the right to divorce
- Must be sufficient to constitute grounds for divorce
Parker v. Parker – W’s affair keeps her from getting a divorce based on
the grounds of cruel and inhuman treatment.
b. Condonation
- Spouse who condones marital misconduct is barred from using that
misconduct as grounds for divorce.
- Includes adultery, and in some jurisdictions also includes: Cruelty,
Habitual drunkeness/alcoholism and Desertion/abandonment
Haymes v. Haymes – The Ct refused to adopt the view that one instance
of sex during an attempt at reconciliation constitutes condonation. The
Ct wants to encourage reconciliation.
c. Other Defenses
Connivance: Express or implied consent to misconduct
*Limited to adultery
Collusion: Agreement to (1) commit marital offense to obtain divorce,
(2) introduce false evidence of offense not actually committed, or (3)
suppress a valid defense
Insanity: Mental illness can negate “guilt”/responsibility
C. No-Fault Divorce
CA = Pure No-Fault: Divorce based on “irreconcilable differences, which have caused the
irremediable breakdown of the marriage.”
1) Living Separate and Apart
Liberal approach: Satisfied by evidence of separate beds/bedrooms.
Stricter approach: Requiring different addresses.
Bennington v. Bennington – H sleeps in a van in the driveway, but he helps W,
who is disabled. W is seeking alimony only, H counterclaims based on grounds
of gross neglect, extreme cruelty, and he includes the no-fault grounds of living
separate and apart. The Ct says that the time H lived in the van in the driveway
doesn’t count b/c H helped his wife during this time.
D. Access to Divorce
Boddie v. Conn. – Ps can’t get divorced b/c they can’t afford to pay the $60 filing fee.
This is a procedural DP claim based on a SDP rt. The Ct notes that there is no other way
to get divorced besides going to court. The Ct holds that for this class of Ps, the filing
fees are unconstitutional.
VI. Financial Consequences of Dissolution
A. Property Distribution
Durational Residency – P must reside in forum state for certain period of time (usually 6
months).
Jurisdiction
Ex Parte - Domicile + notice = divorce decree only; full faith and credit (absent
later showing of lack of domicile)
Bilateral - domicile + personal jurisdiction = comprehensive decision (divorce+)
Diversity – Fed Cts can decline JDX
Ferguson v. Ferguson – The Ct decides to adopt a system of equitable distribution in
place of the title system which is already in place. The rationale that his Ct uses to
justify equitable distribution is contribution, which factors in non-economic
contributions, as well.
1) Pensions and Employee Benefit Plans
Bender v. Bender – The issue is whether unvested pension benefits are property
for purposes of property division. The answer: yes, under the theory that
pensions are deferred compensation. (This is the majority Rule).
Three Approaches:
1) Present Value – Determine current value of pension and
offset w/ other property.
2) Present Division – Each spouse will get a fixed % of pension
when (if) it vests.
3) Reserved JDX – Ct will determine the division when the
pension vests.
2) Investment in Spouse’s Future Success
In Re Marriage of Roberts – The Ct must decide whether a JD degree is a marital
asset that can be divided. The Ct decides that advanced degrees obtained
during marriage are not marital property. (Majority Rule). However, W in this
case can be reimbursed for her contributions during law school through
property division.
B. Spousal Support
1) Award of Support
Mani v. Mani – H & W were married for 27 years, and were retired living on
income from W’s investments, until H had an affair w/ W’s friend. The question
is whether (and how much) support H should receive. Economic fault can be
considered in the calculation of alimony, but ordinary fault not considered.
However, “egregious fault” to be considered as a threshold inquiry and could
bar alimony altogether.
Michael v. Michael – H & W reversed gender roles, but H was not a very good
homemaker. The Ct reverses the TC’s award granting 75.5% of the property to
W and says that the TC erred in not awarding support to H. The Ct says that H
should get 3 years rehabilitative support.
Rosenberg v. Rosenberg – H & W have a lot of $, H had multiple affairs, both are
alcoholics, W abuses prescription drugs; W goes to rehab and H tries to divorce
her. The Ct gives W more that ½ the marital property b/c she contributed more
than H. W does not get the appreciation in stock that H owned before the
marriage (most courts would not come out this way). The Ct says that indefinite
support is appropriate in this case b/c W is unlikely to be able to earn anywhere
near as much as H.
2) Modification
a. Changed Circumstances
CA = Automatic Termination upon Remarriage
Lucas v. Lucas – W is in a de facto marriage w/ a new guy and H wants
to terminate support. The Ct orders a remand to determine how W’s
current economic situation affects the support order.
C. Child Support
1) Child Support Guidelines
- Both parents share legal responsibility for supporting their children.
- Subsistence needs of parents and children.
- Child’s basic needs or to share parents’ standard of living.
- Ensures that child shares in parents’ income.
- Award doesn’t take into account child’s legitimacy.
- No sex discrimination against parent in determination.
- No extraneous negative effects – doesn’t negatively impact the possibility of
remarriage.
- Encourage the involvement of both parents – tie to visitation.
2) Child Support Models
Income Shares – Both parents divide child support obligation in proportion to
their incomes (38 states, including CA).
Percentage of Income – Percentage of non-custodial parent’s income (10
states).
Downing v. Downing – The H in this case has an income which is off the charts of the
support guidelines. The Ct rejects a “share the wealth” approach and invokes the
“Three Pony Rule” (no child needs more than three ponies).
3) Post-Majority Support
Majority rule: Most states, including CA, do not authorize child support,
including college support, after age 18.
Curtis v. Kline – This is a EP challenge of a law which requires divorced parents
to pay for their children’s college education. What is the classification? Either 1)
Married vs. Divorced parents or 2) Children of Married parents vs. all other
children. The Ct says this statute is a classification discriminating against
children based on the marital status of their parents. The statute fails under RB
review. The gov’t interest put forward is to protect the children of divorced
parents, but the majority doesn’t buy this rationale and invalidates the statute.
4) Modification
- State split on effect of new families (some states give preference to the first
family)
- General rule: A voluntary reduction in income does not justify a child support
modification.
5) Separation Agreements
- Generally enforceable in Ct unless terms are unconscionable.
Unconscionability: Procedural (no counsel for one party, rushed
agreement, etc.); Substantive (extremely one-sided terms, such that no
rational person would make the agreement, and no honest and fair
person would accept it).
- Spousal support can be made non-modifiable
- Merger (agreement has no separate legal existence) vs. Incorporation
(agreement is the same as any other contract)
VII. Child Custody
A. Types of Custody Disputes
1) Parent vs. Parent
- Shift from Paternal presumption Maternal presumption  B.I.C.
- “Tender Years” Doctrine
- Primary Caretaker Preference – This is part of the BIC standard in many states
- Legal (decision-making) vs. Physical (residential) Custody
2) Parent vs. Non-Parent
3) Parent vs. State
B. Best Interests of the Child/Parental Fitness
CA BIC Factors: Health, safety, and welfare of the child; Domestic violence; Frequent and
continuing contact with both parents; Substance abuse; Other relevant factors
1) Race
Palmore v. Sidoti – The father argues that mother should not have custody b/c
she is married to a black guy. This is bad for child b/c interracial marriage is not
socially accepted. SC says that this is not a compelling gov’t interest. Just b/c
racial bias exists, that doesn’t mean the Ct should give effect to it.
2) Sexual Orientation
3 Approaches
Per Se Rule: Homosexuality = lack of fitness
Nexus Test: Must show adverse impact of sexual orientation on child
(Majority Rule)
Sexual Orientation Not Relevant
Fulk .v Fulk – Ct seems to apply a nexus test in pointing out that S.O. is not as
important as the impact of sexual conduct on the child.
3) Religion
CA Approach - Custody and visitation cannot be based on religious beliefs or
practices unless those beliefs or practices are shown to be detrimental to the
child.
Sagar v. Sagar – Father has legal custody (but no physical custody) and is
arguing that his parental rts have been violated b/c he wants to have a Hindu
ritual performed, but W (who has physical custody) doesn’t want the ritual
performed. The Ct decides to wait until the child is old enough to decide for
herself.
4) Careers
Rowe v. Franklin – Mom moves to KY where she is a part-time Army pilot and is
attending law school full-time. She is cohabiting w/ a guy and is pregnant w/ his
child. Dad is an unemployed iron worker.
C. Joint Custody
CA Approach - Neither a preference nor a presumption for or against joint legal custody,
joint physical custody, or sole custody, but allows the court and the family the widest
discretion to choose a parenting plan that is in the BIC. Presumption for joint custody if
parents agree.
Bell v. Bell – Parents have agreed to share custody (legal and physical) of their child. The
TC granted sole custody to the mother b/c it says they can’t cooperate b/c they couldn’t
agree about daycare arrangements. In Alaska, there is a presumption favoring joint
custody. The Ct holds that joint legal custody is required in this situation.
D. Denial of Visitation
General Rule: Visitation is not conditioned on payment of support.
Exception: Visitation may be denied when the non-custodial parent willfully and
intentionally fails to pay support.
Turner v. Turner – Dad has been harassing mom & child, hasn’t been paying support and
keeps requesting a support modification. The TC terminates vistitation and holds dad in
criminal and civil contempt. The Ct holds that denial of visitation is not a punishment
for failure to pay child support.
E. Third Parties
1) Grandparents
CA Statute: Reasonable visitation to a grandparent … if BIC, BUT Rebuttable
presumption that grandparent visitation is not in BIC if: Both parents object OR
Parent with sole legal and physical custody objects.
Troxel v. Granville – WA statute say “any person” can petition for visitation “at
any time.” The Ct says that parents should have more say about raising the
children than the state.
Beth R. v. Donna M. – Lesbian couple got married in Canada and have 2 children:
1 born before marriage, 1 after. The NY Ct says that a marriage valid where
performed is valid in NY. Thus, the kids are “children of married parents” and
2nd kid is presumed to be the child of both.