Getting Married - Historically, marriage was seen as a contract which imposed rights and obligations
on both parties. BUT, courts early on realized that marriage is more than a mere contract but the
foundation of family and society. (Maynard v. Hill)
I. BREACH OF PROMISE TO MARRY (HEART BALM)
A. General Criticisms: Breach of promise to marry is too old-fashioned in its view of marriage
and also relies on stereotypes about women being unable to be self-sufficient and needing
husbands.
B. Views
1. Abolished - most states (through anti-heartbalm legislation)
2. Limited Use – the few states that allow a claim for breach of promise to marry often
include limitations: strict standards (Rivkin) or limiting damages
a. Rivkin v. Postal – Ct held that Postal failed to meet the burden of proof for a breach
of promise to marry claim since she failed to produce “written evidence” of a
promise to marry OR the testimony of two “disinterested witnesses”
C. Damages
1. Breach of promise to marry is a hybrid action (combines contract + tort elements)
2. Damages may be recovered for:
a. monetary and social value of the marriage (expectation damages)
b. expenses incurred in preparation for marriage (reliance damages)
c. mental anguish and humiliation (tort damages)
d. punitive damages
D. Traditional Defenses: (1) plaintiff’s fraudulent misrepresentation, (2) physical and mental
defect, (3) unchastity to the plaintiff, (4) plaintiff’s lack of love for defendant, and (5)
mutuality of decision to terminate engagement
E. Seduction (tort) – occurs when a chaste woman has intercourse in reliance on defendant’s
promise to marry
1. Criticism: seduction is based on an archaic way of thinking about sexual relations.
Today pre-marital sex, rightly or wrongly, is a common occurrence.
2. A handful of states recognize the action, but rename it intentional misrepresentation
II. GIFTS IN CONTEMPLATION OF MARRIAGE (engagement rings)
A. Rule: Who gets to keep the ring will be based on whether the court goes by the traditional
fault based approach or the modern no-fault approach.
1. Exam: approach is usually determined by the divorce rationales (i.e. does state have fault
grounds?)
B. Fault-Based (Traditional) – whoever breaks the promise should get to keep the ring
1. Rationale: ring is a symbol of agreement to marry and person at fault broke the
agreement
C. No-Fault (Modern Trend) – regardless of fault the engagement ring should be returned to
donor
1. Rationale: ownership of ring is conditional upon the marriage and if the condition is not
satisfied, the ring should be returned to owner
a. Furthermore, the purpose behind an engagement is test the waters and it would be
irrational to penalize someone for trying prevent a possibly unhappy marriage (that
would probably end in divorce)
2. Fowler v. Perry – After Perry broke off an engagement, she attempted to pawn the ring,
but it was stolen in the process. She received insurance proceeds from the ring, but
Fowler sought recovery. The ct applied a no-fault approach and held that b/c an
engagement ring is a conditional gift given in contemplation of marriage and the
marriage did not occur, the ring should be returned.
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I.
PMA REQUIREMENTS FOR VALIDITY: Procedural and Substantive Fairness
A. Rule: Courts typically require pre-marital agreements to have (1) procedural (disclosure +
voluntariness) and (2) substantive fairness in order to be considered valid.
1. Modern Trend: has moved toward viewing pre-marital agreements from a more contract
based perspective and granting validity to a greater scope of agreements.
a. Rationale: This is probably due to changing conceptions of gender which once
thought that there needed to protect women.
b. OTOH: this would seem at odds with the movement away from the traditional
notions of marriage as a contract relationship.
B. Procedural Fairness (disclosure + voluntariness)
1. Full Disclosure – disclosure or knowledge of spouse’s finances
2. Voluntariness – both parties must enter into the contract voluntarily (no fraud, dures)
a. A threat not to marry is not duress.
C. Substantive Fairness – fair and reasonable
1. Factors: related property values, parties’ financial circumstances, spousal support
provided
2. When to determine fairness?  (1) prior to execution and/or (2) at enforcement
D. Unconscionability (Uniform Premarital Agreement Act (UPAA)
1. Rule: UPAA furthers the trend in recognizing pre-marital contract validity by requiring
unconscionability on top of the common law conceptions of procedural and substantive
fairness.
I.
MARRIAGE IS A FUNDAMENTAL RIGHT
A. Rule: The right to marriage is a fundamental right. (Loving v. Virginia)
1. OTOH: Ct in Zablocki held that only those restrictions/classifications that interfere
directly and substantially with the right to marry will require strict scrutiny.
B. Race
1. Loving v. Virginia – SC held that a statutory ban on interracial marriages was
unconstitutional under the EPC and DPC of the 14th Amendment. The court held that
marriage is a fundamental right that is essential to our existence and survival.
C. Poverty
1. Zablocki v. Redhail – SC held that a statute that prevented marriage by persons who
didn’t pay child support was unconstitutional under DPC. Court holds that marriage is a
fundamental right. While the court found the state’s interest in protecting children
compelling, the statute was overinclusive and not narrowly tailored.. There were other
ways to achieve the state’s goals.
D. Inmates (Failed rational basis for DP)
1. Turner v. Safely – restricting inmates right to marry = uncon’l b/c even inmates can still
enjoy benefits of marriage. Different to regulate b/c of health vs. on certain types of ppl.
I.
VOID V. VOIDABLE – invalid marriages are classified as either (A) void or (B) voidable
A. Void – marriage that is invalid from inception; never had legal existence
1. Substantive Defects (same-sex, bigamy, incest)  VOID
2. Either party or a third party may challenge the validity of the marriage at any time and in
any proceeding
B. Voidable – marriage that is valid until subsequently declared invalid
1. Less Serious Substantive Defects (age)  VOIDABLE
2. Only one of the parties may challenge the validity of the marriage and only during the
marriage (i.e. not after death of party). Also, it cannot be collaterally attacked (in another
proceeding)
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II. SAME SEX MARRIAGE
A. Rule: Traditionally, marriage is between a man and a woman.
1. Modern Trend: There has however become a slow progression towards recognizing
same-sex marriages. Starting from Lawrence (“emerging awareness” that same-sex
conduct is not illegal), laws have slowly evolved to allow same-sex marriages (i.e.
Goodridge).
2. OTOH: Federal legislation has attempted to slow that progression (i.e. DOMAs).
B. Rationale for allowing traditional rule: SEE Goodridge (rejecting the rationales for
traditional marriage rule)
1. Goodridge v. Dept. of Public Health (same sex marriage legal in MA) – MA SC held
that the state could not deny civil marriage to same-sex couples. It held that the states
interests of (1) proving a favorable setting for procreation, (2) providing an optimal
setting for child rearing, and (3) preserving state resources are not sufficient to survive
rational basis review.
C. Progression Towards Allowing Same-Sex Marriage
1. Lawrence v. Texas (privacy in the bedroom) – SC held a state statute which prohibited
same-sex sexual intercourse violated the DPC. Ct found that there was an “emerging
awareness” that liberty gives substantial protection to adults in how they conduct their
private sex lives. The court’s obligation was to define the liberty of all, not to mandate a
moral code.
a. Scalia’s Dissent –predicted that Lawrence “decrees the end of all morals legislation”
and that laws on bigamy, adultery, incest, and bestiality could be called into
question.
D. DOMA: Limiting Progression
1. Defense of Marriage Act (DOMA) was passed by Congress to undermine the movement
to recognize same-sex marriages. DOMA does this by:
a. Defining “marriage” as union of man and woman and “spouse” as person of
opposite sex
b. Specifies that states are not required to give effect to same-sex marriages under the
Full-Faith and Credit
E. Domestic Partnerships
1. As an alternative to ‘marriage’ states have recognized domestic partnerships as a means
of granting same-sex couples the legal benefits of marriage w/o legalizing same-sex
marriage.
F. Rule of Lex Loci – under the rule of lex loci, a marriage valid where it was performed is
valid everywhere, unless contrary to public policy.
III. INCEST  VOID
A. Rule: States provide the level relations (i.e. blood) within which a person cannot marry.
Incestuous relationships are void and thus invalid.
B. State Interests – protection of: (1) gene pool, (2) persons from exploitation, (3) family from
assumption of incompatible roles, and (4) societal concepts of decency
1. In Re Adoption of M (relations by adoption) – Ct vacated an adoption to allow a father
marry his adopted daughter b/c the daughter was having his baby (legitimize the child).
The court deemed that there were “truly exceptional circumstances” since the child’s best
interests were at stake.
C. Constitutionality of Incest Prohibitions
1. Smith v. State (no privacy violation) – In a Post-Lawrence decision, the ct held that
incest statute did not violate a fundamental right. Furthermore, the statute was rationally
related to the state’s goals of promoting morality and family stability.
2. Scalia’s Dissent in Lawrence – “decrees the end of all morals legislation”
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BIGAMY  VOID
D. Rule: All states prohibit bigamous marriages and even provide criminal sanctions. The
bigamous relationship is void and thus invalid from inception.
E. State v. Green (no free exercise violation) – Ct held that a bigamy statute did not violate Free
Exercise Clause b/c it was rationally related to the state’s interests of (1) regulating marriage,
(2) preventing marriage fraud, (3) preventing misuse of government benefits, and (4)
protecting vulnerable individuals from exploitation.
F. Scalia’s Dissent in Lawrence – “decrees the end of all morals legislation”
G. Enoch Arden Statutes – defense to bigamy where a person who remarries after the
disappearance of a spouse, w/o knowledge that the first spouse is alive, is not guilty of
bigamy
H. State v. Holm – defendant legally married to one woman, participated in religious marriage
exercises with others.
IV. AGE
A. Rule: All states establish a minimum age for marriage (most 18) due to the assumption that
maturity is necessary to make such a decision.
B. Consent – Minors below the statutory age to marry w/ parental and/or judicial consent
C. Void v. Voidable – some states classify nonage as void others as voidable
D. Uniform Marriage and Divorce Act (UMDA) – minor may marry w/ either parent’s consent
or after finding that a minor is capable of assuming the responsibilities of marriage and that
the marriage would be in his best interests
V. STATE OF MIND RESTRICTIONS: FRAUD & DURESS
A. Rule: Fraud or duress (enough to overcoming free will) serves as a ground for annulment and
thus makes the marriage voidable.
B. Tests (varies by state)
1. Essential Test – misrepresentation must go to the essentials of the marriage (i.e.
childbearing)
a. Rationale – policy should favor preservation of marriage
2. Materiality Test – misrepresentation needs only be material (i.e. would not have married
but for…)
a. Blair v. Blair – Ct denied husband’s request for annulment based on the wife’s
fraudulent representations regarding son’s paternity. Ct found that he would have
married her anyway b/c he loved her and he had questions about paternity prior to
marriage.
C. Consummation – IF the marriage was consummated, courts may require a higher standard.
D. Limited Purpose Marriages – where couples would marry in name only to legitimate the
child, and after the birth, obtain a divorce. Courts have occasionally recognized these
marriages to legitimize the child.
I.
COMMON LAW MARRIAGE – recognizes marriages that don’t go through the procedures in
marriage
A. Rule: Only a handful of states recognize common law marriage. The states that recognize
common law marriages require there to be: (1) capacity, (2) an agreement to be married, (3)
cohabitation, and (4) holding out to the community.
1. Rationale: CL marriage avoids harsh consequences, protects poor and ignorant, and
protects children from illegitimacy
B. Agreement to be Married - agreement may be inferred from cohabitation or other
circumstantial evidence
C. Standard of Proof – clear and convincing evidence
D. Impediments to Marriage – valid marriage cannot be formed if a party is already married
1. Jennings v. Hurt – Court held that there was no common law marriage b/c after the
removal of the impediment to marriage (i.e. Hurt’s marriage to another woman) there was
not evidence that the parties’ (1) held themselves out to be married or that there was any
(2) agreement to enter into a common-law marriage.
E. Choice of Law – in general, courts will recognize marriages formed in common-law states
even if their state doesn’t recognize them.
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II. PUTATIVE SPOUSE DOCTRINE – recognizes a marriage were party didn’t realize an
impediment
A. Rule: The putative spouse doctrine requires that the parties (1) participated in a marriage
ceremony (2) in good faith, in the (3) belief that a valid marriage took place, and in (3)
ignorance of an impediment to the marriage.
B. Rationale: allows court to protect parties from the harshness of having a marriage deemed
invalid.
C. Marriage Ceremony: courts may recognize a putative marriage w/o a ceremony (i.e.
common law marriage or if they believed no ceremony was needed)
I.
DUTY OF SUPPORT
A. Rule: Traditionally the husband had to support (provide necessaries) and wife had to perform
domestic services. Today, both parties have duty to support each other.
B. Necessaries Doctrine: Husbands were required to provide wives with necessaries (i.e. food,
shelter). This created equal protection problems and thus most states either abolished or made
it gender-neutral.
II. DOCTRINE OF NON-INTERVENTION
A. Rule: Courts are reluctant to intervene in issues relating to an ongoing marriage (doctrine of
non-intervention).
1. Therefore, courts won’t step-in regarding duty of support claims while the parties are still
married.
B. McGuire v. McGuire – Court refused to intervene a wife’s demand for support money
(husband was frugal – ex: no indoor bathroom) b/c the parties were not separated/divorced.
The court held that the living standards of the family are matters of the household.
I.
METHODS OF NAME CHANGE
A. Common law  person had consistent, non-fraudulent use of name
B. Statutorily designed judicial procedure
II. WOMAN’S NAME
A. Name Retention – all states recognize a woman’s right to retain her birth name at marriage
B. Post-Divorce Name Change – most states allow women to change names back to birth name
after divorce
A. Children’s Names - Conflicts in Choice of Names
1. Courts usually use one of the following standards:
a. custodial parent presumption,
b. presumption favoring the status quo, or
c. best interest of child test (followed by majority of jurisdictions)
2. Best Interest Factors: child’s preference, effect of name change on parent-child
relationship, how long the child has had the surname, social difficulties child might
encounter
3. Neal v. Neal – Wife was pregnant when she separated from her husband (divorced after
birth). She gave birth and on the birth certificate put her maiden name as the child’s
surname. Court held that no law presumes that it is detrimental for a child to have a
name that is different from parent.
B. NO Constitutional fundamental right to choose child’s surname
1. Even though Pierce v. Society of Sisters and Meyer v. Nebraska established that parent’s
have a fundamental to make decisions regarding their children, those rights involved
choices in education and child rearing. Choosing a child’s name does not rise to the level
of the rights in Pierce and Meyer.
2. Henne v. Wright – Statute restricted mother’s choices in choosing a surname.
Defendants challenged the statute as a violation of their 14 th Amendment right to choose
the surnames of their children. Court held that there is NO fundamental constitutional
right of privacy to choose a child’s surname and the state’s goals are furthered by the
statute.
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1) Interspousal Tort Immunity - G.L. v. M.L.
a) Wife contracted herpes from Husband, who was having an extra-marital affair
b) Old Rule: the husband and wife could not sue each other for torts
committed against one another
c) Here, the NJ court allowed the suite by one spouse against the other and thus,
did away with interspousal tort immunity
2) S.Ct Ruling
a) Abrogated the entire doctrine of interspousal tort immunity.
(1) *Interspousal tort immunity no longer applies at all*
3) Privilege against Spousal Testimony
i) Two types
(1) Confidential Marital Communications (State/Federal)
(a) Spousal communications when they are the only ones present.
(b) It is private communication
(c) No third parties present. If third parties are present than it is not
private.
(i) *must be married at the time the communication was made*
(2) Adverse Testimony Privilege (Federal)
(a) The witness spouse holds the privilege
(i) If the witness spouse does not want to testify, they are
protected under federal law (Trammel v. United States)
I.
BATTERED WOMAN SYNDROME (BWS)
A. Battered woman’s syndrome is a theory used to explain why women who are abused by
husbands do not leave.
B. Evidence – BWS can be used to show the reasonableness of fear of imminent danger in a self
defense claim.
1. Hawthorne v. State – Court held that testimony could be given regarding BWS b/c the
typical person would not understand why a person would not leave her mate, would not
inform authorities, etc.
2. Standard for evidence – “generally accepted by scientists in the particular field of
study”
C. Violence Against Women Act – created a federal remedy against spouses that crossed state
lines w/ intent to injure. Also provided for interstate protection orders.
II. DUTY OF LAW ENFORCEMENT
A. Special Relationship – Suits against police must be brought under §1983 (must show
deprivation of constitutional right under color of law). For domestic violence, for a cause of
action to arise, you must show the state had a special relationship to the victim and thus was
required to protect.
1. DeShaney – SCOTUS held that “absent a special relationship, the state has no
constitutional duty to protect its citizens against deprivation of life, liberty, or property
committed by private individuals.”
B. Town of Castle Rock v. Gonzales – Gonzales claimed that the police violated her due process
rights when they failed to enforce a restraining order. Her ex-husband had taken the children
despite a restraining order and murdered the children. SC held that there was no DPC
violation b/c she did not have a property interest in police enforcement of the restraining
order.
Page 6 of 28
C. Viable Theories of Liability After Castle Rock and DeShaney
1. Custodial Relationship Doctrine – provides that police have an affirmative duty to protect
a victim in state custody
a. BUT – it ONLY applies if victim is injured in police custody
2. Violation of Equal Protection
a. BUT – requires actual proof that the non-arrest policy of some police dept. denies
battered spouses the protection given to victims abused by others (hard to do)
3. Liability under state tort theories
a. BUT – may be precluded by sovereign immunity
D. Police Non-Intervention in Domestic Violence: WHY?
1. perception that wives are just trying to scare husbands
2. concern for family dissolution
3. concern that abuser may retaliate
4. “man’s home is his castle”
E. Temporary Restraining Orders (TRO) – restrain a person from committing further acts of
violence or harassment
F. Mandatory Policies – sometimes needed b/c wives will not press charges or change their
minds
1. Mandatory Arrest – some states require mandatory arrest for misdemeanor domestic
violence cases
2. No-Drop Policy – requires the prosecutor to pursue criminal action against the abuser
regardless of victim’s wishes
III. MARITAL RAPE
A. Common Law Marital Exemption
1. Under common law, a husband could not be guilty for raping his wife.
B. Modern Trend: No Marital Exemption
1. Almost all states today have abolished or limited the marital exemption
2. People v. Liberta – Wife had TRO against husband, but husband threatened to kill her
and forced her to have sex with him. Court ruled that there is no rational basis for
distinguishing b/w marital and non-marital rape. Such a distinction was based on archaic
notions and a married woman has the same right to control her own body as an unmarried
woman does.
I.
I.
Parents have a fundamental right to direct the upbringing of their children
A. Pierce v. Society of Sisters – SCOTUS held that a statute that required children to be sent to
public school “unreasonably interferes with the liberty of parents and guardians to direct the
upbringing and education” of their children.
TRADITIONAL DEFINITION
A. Rule: The traditional definition of family includes parents and children.
1. BUT: The traditional family model hasn’t been relevant for while now.
2. Due to changes in society regarding divorce, same sex relations, etc., few families, if any,
would still fit that definition.
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II. FUNCTIONAL DEFINITION: does the family function like a family?
A. Rule: Sometimes courts adopt a functional definition of family which considers different
factors to see if the group acts like a family. (Braschi v. Stahl Factor Test – where a gay
couple was considered a family b/c they had a long-term relationship w/ emotional and
financial commitments and held themselves out as a family)
1. OTOH: Functional definitions can be (1) intrusive (i.e. have to interview family to see
how they act) and (2) it is hard to define what functions a family really has.
2. OTOH: Today, most “traditional families” (i.e. parents/kids) wouldn’t meet a functional
definition.
B. Braschi Factors
1. exclusivity and longevity of relationship
2. level of emotional and financial commitment
3. how the members held themselves out to society
4. reliance upon one another for daily family services
5. permanent authority figure (Penobscot)
Communal Family - Involves non-related individuals (i.e. group homes, students)
I. FUNCTIONAL FAMILY REQUIREMENT
A. Rule: Cts may require a group not related by blood to meet a functional family definition.
1. ForEx: In Borough of Glassbororo, the court held that a group of student living together
during college had the stability and functional lifestyle (i.e. chores) of a traditional
family.
2. OTOH: In Penobscot, the court refused to consider a handicapped group home as a
family unit b/c it lacked stability (patients are in and out) and a permanent authority
figure.
II. CONSTITUTIONAL VALIDITY OF STATUTES
A. Rule: The courts are often reluctant to extend protection to communal families. (Village of
Belle Terre – court held that a zoning ordinance that excluded communal families was
constitutional).
1. Rationale: Perhaps this is due to the fact that court still looks towards traditions of blood
ties.
2. OTOH: In Moreno, the court held an act that limited benefits to only traditional families
was unconstitutional b/c blood lines were not rationally related to preventing food stamp
fraud.
Extended Family - Does ordinance involve related individuals (i.e. grandparents, aunts/uncles, etc.)
I. Rule: The SC has held that the extended family deserved protection under the Constitutional b/c
notions of extended families are deeply rooted in the nation’s history and traditions. (Moore v.
City of Cleveland – statute that prevented grandma from living w/ grandkids was unconstitutional)
A. ForEx: Living with grandparents…
B. OTOH: The SC has also held that the Constitution does not grant extended families an
affirmative right to benefits. (Lysing v. Castillo – SC upheld statute prohibited extended
family from being defined as a family unit for food stamps).
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2.
Cohabitation - Marvin v. Marvin
a.
Case determines how property should be distributed that was acquired in a
nonmarital relationship. (Marvin agmt – express, oral, implied, unjust enrichment)
Hewitt (IL note case)
b.
Couple lived together 15 years, held each other out as H and W. Man said no
formal ceremony necessary b/c after she got pregnant the law considered them
married. Court said won't recognize oral agreement b/c would be like recognizing
common law marriage & that has been abolished in all states (PP arg.)
c.
Many jurisdictions DO RECOGNIZE property division for unmarried cohabitants
but varies a lot on how they calculate the division, Hewitt is minority view.
Recovering in Torts - Graves v. Eastbrook
1. Court lays out new factors (Dunphy case factors) to consider when deciding if
the relationship meets the "closely related" standard. Note that Judges and
juries, by following these factors, can figure this out in these types of cases.
a. Account of duration of relationship
b. Degree of mutual dependence
c. Extent of common contributions to a life together
d. Extent and quality of shared experience
e. Whether P and the injured person were members of the same household
f. Emotional reliance on each other
g. Particulars of day to day relationship
h. Manner in which they related to each other in attending to life's mundane
requirements
2. Number of jurisdictions are slowly changing their statutes to allow domestic
partners to sue for wrongful death of their partners.
a. In terms of how this applies to same sex relationships, could be harder
to prove all these factors b/c some same sex couples may not be as
outward with their relationships. In many states, this holding wouldn't
apply to same sex couples.
Employment - Shahar v. Bowers
1. Rule - Even rights such as freedom of association can be overcome by a gov't
employer's interest in maintaining the effective functioning of his office.
2. P argues that Dike applies and that a SS test should apply to her rights in this case.
Court overturns Dike in this holding and says correct test = Pickering balancing test
(which is used where the Gov't is the employer) b/w P's freedom of association
rights and AG's right to regulate emplyoment to make his office function effectively.
3. Court distinguishes b/w "condition" and "conduct"
a. Cannot make laws that specifically target homosexuals as a group and
denies them benefits (relates to persons condition).
b. You CAN, however, have laws that target specific conduct/btx that a Gov't
employer does not support. (conduct here being wearing a ring, sending out
invitations, "flaunting" relationship).
4. How would this case come out today after Lawrence? How broad is Lawrence?
a. Could be that this is still public conduct even though it's a very private
decision. Status v. Conduct issue here.
5. Only 16 states protect employment regardless of sexuality.
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6. Don't Ask, Don't Tell Policy:
a. Members of the military or armed forces face discharge if they reveal their
sexual orientation. Can't ask them when they enlist about their sexual
orientation, but if there are allegations after enrolled or they come out, you
can discharge them. (recently found invalid, & cannot dismiss w/ this)
7. Heterosexual couples that are unmarried could face adverse employment actions
based on their sexual conduct. (where two ppl are married and get together after
both divorce and it's known they had an affair during work b/f divorce, could be fired).
8. Spousal-equivalency employee benefits
a. Employers are starting to offer these employee benefits to same sex
partners. Benefits include all the same, and sometimes more, benefits that
heterosexual employees are able to get for themselves and their
spouses/children.
b. Norman Case: CA SC found female who left CA to preserve her relationship
with her male partner (living together engaged) when he moved to another
state for a job had not established good cause. Will not give her benefits for
unemployment. Had they been married this would not have been the
outcome.
c. MacGregor Case: CA SC found female claimant's move to follow her
nonmarital male partner of three years, with whom she had a child, to care
for his aged father, had established good cause and gave her benefits.
Difference here seems to be the presence of a child, not the idea nuclear unit
(no marriage) but more "functional" than just engaged couple with no child.
"looking like a family seems to matter."
Cohabitation – Kowalski
1. Accident became in a wheelchair can’t talk, parents trying to keep lesbian lover (T) from
becoming guardian, even though T provided better care for her.
2. Always see preference and greater standing in granting guardianship to family
members, particularly parents, rather than anyone else. Case shows the
preference for the "formal" in favoring the parents for so long before giving
guardianship to T. (Form v. Function)
Discriminating against married/unmarried - N Dakota Fair Housing Council v. Peterson
1. Rule:
a. Can't discriminate in renting to ppl based on marital status. (Housing/civil rights
code)
i. Court says this means status as in "divorced, widowed, not married, or
married".
b. Cannot open and notoriously live with a person of the opposite sex where you
are unmarried. (criminal statute)
2. Holding: it is not unlawful to deny housing to an unmarried couple seeking to
openly and notoriously live together as H and W. Under the statute, the rules of
statutory construction, legislative, admin, and judicial history, we conclude it's not
unlawful discriminatory practice under ND statute to refuse to rent to unmarried ppl
seeking to cohabit.
a. Would this decision be different after Lawrence? Maybe… here we have
private conduct in the home entirely, Lawrence probably should change it,
but no guarantees.
b. More states than not take the view of ND.
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A. Paternity Presumptions - Original Uniform Parentage Act (UPA)
1. Keys: presumption that children born into marriage (or close) or receiving the child into
the home and holding them out as your own
2. A man is presumed to be the natural father of a child if:
a. child is born in marriage or w/in 300 days of termination
b. before child’s birth, man tried to marry child’s mother (but marriage is/could be
invalid) AND child is born w/in 300 days of the termination
c. after child’s birth, man and child’s mother have or have attempted to marry, and
i. he has acknowledged paternity in writing, w/ consent is named on birth
certificate, or he is obligated to support under written promise or court order,
d. he receives the child into his home and openly holds out the child as his natural
child; or (changed to “first two years of child’s life…” in new UPA)
e. he acknowledges his paternity in writing
3. Rebutting the Presumption
a. rebutted by clear and convincing evidence. (ex: genetic evidence, father not around)
b. if 2 or more presumptions apply, weigh the policy rationales
B. Genetic Testing
1. PRWORA requires that at either party’s request the court must order genetic testing
2. Courts may deny genetic testing for the best interests of the child (i.e. preserve child’s
ties to the father who held himself out as father)
C. Voluntary Establishment of Paternity
1. Both the PRWORA and revised Uniform Parentage Act provide for recognition of
voluntary establishments of paternity. (i.e. father comes out and says they are the father)
I.
PROCEDURAL LIMITATIONS
A. Statute of Limitations
1. Rule: Traditionally, states only provided short periods to establish paternity in order to
avoid fraudulent claims.
a. OTOH: Clark v. Jeter (6 years too short) and the Child Enforce Amendments (18
years) have changed that view and increased SOL.
b. Rationale: It is not the child’s fault the he was born into that situation and should not
be punished for it.
2. Clark v. Jeter – Statute required that a non-marital child must prove paternity before
seeking support and that paternity must be proven w/in 6 years of birth. Legitimate
children could seek support at any time. SCOTUS held statute unconstitutional under
Equal Protection b/c 6 years did not provide a reasonable opportunity to assert a claim.
3. Child Enforcement Amendments of 1984 – made creation of an 18 year SOL is a
condition for receipt of federal funds. (Strengthened by the Family Support Act of 1988)
B. Standard of Proof – “preponderance of evidence.”
C. Jurisdiction – can be established by
1. failure to pay support (tortuous act)
2. breach of contract
3. “doing business” in state
I.
UNMARRIED FATHERS CUSTODY
A. Rule: All biological parents, marital and non-marital, have a right to a custody hearing.
(Stanley v. Illinois)
B. Stanley v. Illinois – SCOTUS held that a presumption (no fitness hearing) that non-marital
fathers were unfit was unconstitutional on equal protection grounds. Court held that all
biological parents, including non-marital, are constitutionally entitled to a hearing on their
fitness before children are removed from their custody.
Page 11 of 28
II. BIOLOGY-PLUS TEST
A. Rule: Biological non-marital fathers have constitutionally protected parental rights as long
as they accept the responsibilities of being a parent (biology plus test).
1. Rule: The scope of protection depends on the degree the father manifests an indicia of
parenthood (custodial, parental, financial relationships)
B. Indicia of Parenthood is evidenced by a (1) custodial, (2) parental, and/or (3) financial
relationship the father has to the child.
C. Putative Father Registries eliminate the need for adoption notifications or consent if they
failed to take the initiative by registering (i.e. no plus in biology-plus test)
D. Uniform Adoption Act allows termination of the rights of the biological father who has not
demonstrated an interest in his child unless there is a “compelling reason” why he didn’t. (i.e.
deception by mother)
E. Mother cannot “thwart” the father’s attempts to establish an indicia of parenthood
(Adoption of Kelsey S. – where ct held that biological connection was constitutionally
protected if father “grasps the opportunity” to create a relationship with his child)
III. CHILD OF MARRIAGE PRESUMPTION
A. Rule: Most states still use a rebuttable presumption (i.e. genetic evidence) that a child is of
the marriage (legitimate). Even with genetic evidence a court could rule that parental
obligations still exist for the best interests of the child.
1. Rationale – declaring children illegitimate b/c it would deprive them of certain rights (i.e.
inheritance) and it could lead to them becoming wards of the state
B. Extant (existing) Marriage – If the couple is not living together, the presumption may not
apply.
C. Michael H. v. Gerald D. – SC held that a presumption that a child was a child of marriage to
be constitutional. Court held that based on the traditional preference for legitimizing
children, the “other man” (not husband) did not have a fundamental right to maintain a
relationship w/ his biological child.
D. Establishing Paternity – Some states and the new UPA allow putative father’s to request
blood tests in order to establish paternity
TRADITIONALLY – In lesbian mother disputes, there was traditionally a heavy advantage in
favor of the biological mother.
II. Traditionally, courts used the “only one mother rule”  prevented lesbians from both being
considered parents
A. Johnson v. Calvert – in a dispute b/w a gestational surrogate mother and genetic mother the
Court ruled for the genetic parent noting that a child cannot have two mothers and that the law
only recognizes one mother.
1. Overruled by KM v. EG
2. Distinguished in Elisa B. v. Superior Court (child cannot have two mothers and one
father; child cannot have 3 parents)
I.
III. Modern trend has been to recognition of the “second parent” (non-biological parent)
A. Rationale: two parents can provide more support and the courts are increasingly less likely to
let matters of “morality” and other issues that may have previously deterred the best interests
of the child.
B. Elisa B. v. Superior Court (child support) – Court held that the non-biological parent was a
presumed mother and liable for child support b/c she (1) took the children into her home and
held (2) them out as her own.
1. In discussing the one-mother rule from Johnson v. Calvert, the court said that a child
cannot have 2 mothers and 1 father (i.e. 3 total parents)
C. KM v. EG – both lesbian partners (egg donor and gestational mother) were parents of a child
born via IVF (See Assisted Reproduction)
Page 12 of 28
I.
REVOCATION OF CONSENT
A. Rule: Some states allow a biological parent to revoke consent under some circumstances.
B. Approaches
1. Time Period
a. Ex: Uniform Adoption Act allows parents to revoke consent w/in 8 days of child’s
birth
2. Fraud, Duress, Coercion
3. Best Interest of the Child
a. Some states determine which parent (adoptive or natural) would be in the best
interests of the child
A. Race/Ethnic Matching – debatable whether allowable
1. Rule: Federal legislation provides that no state can deny someone the opportunity to
become an adoptive parent on the basis of race, color, or national origin of the individual
or child (if the state wants to receive federal funds).
a. OTOH: The legislation removes mandatory race-matching. Race/ethnicity can still
be a FACTOR in decisions! Furthermore, it would be difficult to enforce in practice.
b. Debate – It could be argued that the best interests of the child would be served in
matching race by avoiding confusion and social stigma. It could also be argued,
however, that it is better to provide homes for as many children as possible.
B. Religion Matching
1. Some states allow parents to have a preference for religion matching (NY)
Second Parent Adoption - Adoption of Tammy
Rule
 A person of full age may petition the probate court in county where he resides for
leave to adopt as his child another person younger than himself, unless such other
person is his or her wife or husband, brother, sister, uncle or aunt, of the whole or
half blood. Other than requiring that a spouse join in the petition, if the petitioner is
married and spouse is competent to join therein, the statute does not expressly
prohibit or require joinder by any person.
 Legislature considered and defined those combinations of ppl which would lead to
adoptions in violation of public policy. Clearly absent is any prohibition of adoption by
two unmarried individuals like the petitioners.
 Purpose of termination provision is to protect the security of the child's newly created
family unit by eliminating involvement with the child's natural parents. Termination
provision is intended to apply only when natural parents are not parties to the
adoption petition.
Holding: approve the adoption for same sex unmarried couple so that child can inherit
from family trust of non bio mom (in childs Best Interest).
II. SEXUAL ORIENTATION
A. Whether same-sex adoptions are allowed depends on the state. Trend seems to be moving
toward allowance of same sex adoptions (put more children in homes).
B. Lofton v. Sec. of Dept. Children and Family Services – Court held that a FL statute which
prohibits same-sex couples from adopting was not a violation of the EPC. Court held that
adoption is not a right, but a statutory privilege and that the state can make restrictions on
adopting in order to further the best interests of the child.
1. Court also holds that the best interests of the child would be to be in a traditional family
“anchored by both a father and mother.”
Lofton – adoption is a is a statutory privilege, NOT a fundamental right
Page 13 of 28
Parental Theories
I.
BIOLOGICAL PARENTS
A. blood/genetic relations
II. PSYCHOLOGICAL PARENTS (PART OF FUNCTIONAL PARENTHOOD)
A. Psychological parenthood is based on:
1. day-to-day interaction,
2. companionship,
3. continuity of care,
4. shared experiences.
B. Can be fulfilled by a biological or adoptive parent as long as they are not absent adult
III. FUNCTIONAL PARENTHOOD
I. Rule: Functional parenthood emphasizes conduct and familial relationships in order to
determine parenthood.
A. AKA: psychological parenthood, de facto parenthood, parenthood by estoppels
II. Rule: Visitation of non-biological parent was in best interest of child if there is a (1) parentlike relationship PLUS (2) a significant triggering event.
A. Factors on Parentlike Relationship:
1. Whether the biological parent ‘consented to, and fostered, the petitioner’s formation
and establishment of a parent-like relationship w/ the child
2. Whether the petitioner resided together w/ the child in the same household;
3. Whether the petitioner assumed “obligations of parenthood” by taking significant
responsibility for the child’s care, education and development.
4. Whether the petitioner served in the parental role for a sufficient period of time to
enable establishment of a ‘bonded, dependent’ parental relationship.
B. Significant triggering event:
1. If the custodial parent interfered substantially with the parent-like relationship
2. If the parent seeking visitation sought court ordered visitation w/in a reasonable time
after the custodial parent’s interference.
I.
DONOR RIGHTS (FROM CHILD SUPPORT)
A. Rule: In an institutional, anonymous setting, courts will typically find that the sperm donor
has no parental rights or obligations. The UPA follows this approach.
1. OTOH: In non-instructional, non-anonymous courts may ignore non-support agreements
for the best interests of the child. (Ferguson v. McKiernan)
B. Ferguson v. McKiernan – Mother sought child support from a non-institutional, nonanonymous sperm donor even though there was an agreement (like in clinics) where the donor
was freed of his parental rights and liabilities. Ct reluctantly awarded child support using a
“best interest of the child” approach.
C. UPA – UPA provides that a:
1. donor is not a parent of a child conceived by means of assisted reproduction
2. donor can neither sue to establish parental rights, nor be sued and required to support the
resulting child
Page 14 of 28
II. DISPUTE IN ASSISTED REPRODUCTION: SURROGACY AGREEMENTS
A. Rule: In disputes regarding assisted reproduction (i.e. surrogacy disputes), courts will look to
the (1) intent of the parties in an agreement (Johnson v. Calvert) and/or (2) “best interest of
the child” (KM v. EG)
B. Intent Test – agreements/intentions that are voluntarily chosen and bargained-for should be
enforced.
1. Johnson v. Calvert (uses intent test) – gestational surrogate mother refused to give up the
child she carried for the genetic parents. The court ruled for the genetic parents holding
that the intent was for the genetic parents to raise the child. Court also noted that a child
cannot have two mothers and that the law only recognizes one mother.
2. New Uniform Parentage Act (uses intent approach)
a. treats donors (egg and sperm) w/ no legal status and makes the intended mother the
legal mother.
b. recognizes the legal mother as the woman giving birth.
c. gestational written agreements are allowed, but the gestational mother must
relinquish all rights/duties and the pregnancy is done through artificial means (not
intercourse).
d. allows for payment of consideration.
C. Best Interests of the Child
1. KM v. EG (reject intent test) – Woman donated her ova to a lesbian partner (who
intended to raise the child alone) for use in IVF. Court held that both women were
mothers under the UPA b/c both parents had understood the child would be raised in their
joint home. Court rejected the intent test used in Johnson v. Calvert.
D. Two Parent Preference
1. Modern trend has been toward court’s preferring to recognize two parents to a child in
order to legitimize the child and also to provide an extra source of support. Today, courts
care less about who the 2nd parent is (i.e. courts care less about absence of genetic and
gender).
I.
PROCEDURE TO TERMINATE PARENTAL RIGHTS
A. Stage 1: Unfitness Stage (aka ‘fact finding hearing’) – initial stage where court determines
unfitness
1. Standard of Proof – clear and convincing evidence (Santosky v. Kramer)
B. Stage 2: Best Interests Stage (aka ‘dispositional hearing’) – court determines whether
termination would be in best interests of the child
1. Standard of Proof – should be clear and convincing evidence, BUT some states have
interpreted Santosky to only apply to the unfitness stage so they may require another
standard
II. ISSUES
A. Standard of Proof – the minimum standard of proof to terminate a parent’s rights is “clear
and convincing evidence”
1. Santosky v. Kramer – SCOTUS rejected the “preponderance of evidence” standard and
held that due process required at least “clear and convincing evidence.” The court
reasoned that the interests of the parent in keeping the family intact and the state’s
interest in reducing costs/burdens required use of a stricter standard.
B. Parent’s Right to Counsel – SCOTUS has held that procedural due process did NOT require
the parent’s to be appointed counsel
Page 15 of 28
Fault Based Grounds for Divorce
I.
ADULTERY (29 states)
A. Rule: To prove adultery you must show by clear and convincing evidence that there was an
(1) opportunity to commit the offense AND (2) disposition to commit it
1. BUT: Due to the private nature of adultery, circumstantial evidence may be used
II. CRUELTY (AKA ‘CRUEL AND INHUMAN TREATMENT’)
A. To prove cruelty you must show: A (1) course of conduct of (2) cruel behavior that (3)
creates an adverse health effect
1. Course of Conduct – cannot be a single occurrence UNLESS the single act was
extremely brutal
a. usually must show that the conduct was habitual or occurred so often that its
reoccurrence was expected
2. Cruel behavior – must be more than unkindness or rudeness. Must be so unreasonable
and severe to be considered inhumane.
3. Adverse health effect – can be satisfied by apprehension of danger to health; includes
both mental and physical health
B. MUHAMMAD V. MUHAMMAD - divorce granted bc of habitual cruel and inhuman
treatment, controlled what she ate, where she could go, her mail etc., husband hit her once.
III. DESERTION (AKA ABANDONMENT) (27 states)
A. Rule: To prove desertion you must show that there was an (1) end to cohabitation (2) without
cause or consent, an (3) intent to desert (not resume cohabitation) that (4) continued through a
statutory period
IV. CONSTRUCTIVE DESERTION
A. Rule: Constructive desertion involves conduct by one spouse that causes the other to leave
the home
1. Acts as a defense to desertion OR as a ground for divorce
2. Lack of intimacy is not enough  can be looked at as simply just unhappiness
B. Reid v. Reid – Wife sought divorce on the grounds of “constructive desertion” b/c of
husband’s impotency, work habits, and “lack of intimacy.” Court rejected wife’s claim of b/c
the cause of her feelings cannot be attributed to the husband (she was simply unhappy).
Therefore, when wife left she was the one deserting and thus she forfeited her right to spousal
support.
V. OTHER GROUNDS
A. Drunkenness or Drug Addiction
B. Willful Nonsupport
C. Criminal Conviction or Imprisonment
D. Impotence
E. Insanity
FAULT BASED DEFENSES
I.
RECRIMINATION (double fault)
A. Recrimination – bars divorce in cases where both parties are at fault (both have grounds for
divorce).
1. Still applicable in some states although it has been seen as inconsistent in modern society
(See Parker v. Parker)
B. Rationale – Recrimination centers on the belief that only innocent parties are entitled to
divorce, but should that be a reason to deny a divorce?
C. Parker v. Parker – Wife sought divorce on grounds of cruelty, but husband claimed
recrimination based on wife’s adultery. Court held that the misconduct by the wife occurred
AFTER the separation and therefore the court denied the husband’s recrimination claim and
allowed the divorce.
1. Furthermore, the court held that recrimination was impractical and inconsistent w/
modern society.
Page 16 of 28
II. CONDONATION (forgiveness)
A. Condonation – defense to divorce b/c a spouse who forgiven a marital wrongdoing cannot
use it as a grounds for divorce
1. Cohabitation for a short period ≠ condonation
B. Criticism – Condonation puts innocent spouses in position where they must immediately
choose to stay in a relationship or end it. Is that fair?
C. Haymes v. Haymes – Couple separated and then tried to reconcile (had sex on vacation), but
could not. Husband claims that their attempt at reconciliation is a defense to the wife’s claim
of abandonment. Court holds that a short attempt at reconciliation (w/ sex) does not bar
her divorce claim.
III. CONNIVANCE – constitutes express or implied consent by the plaintiff to the misconduct
alleged
A. Only requires corrupt consent by plaintiff
B. Cannot occur w/o commission of marital offense
IV. COLLUSION – an agreement b/w husband and wife to commit (or give false evidence of a)
marital offence that would be a ground for divorce
A. Requires corrupt consent of both parties
B. Can take place w/o any marital offense (could give false evidence)
V. INSANITY – can be ground for divorce AND defense
Trend: The modern trend has moved away from the use of fault based grounds for divorce. Others,
however, still maintain fault based grounds and have simply added no-fault divorce to the fault based
system.
 Currently all states offer some form of no-fault divorce. Two prominent approaches are the:
(1) California Family Law Act and (2) Uniform Marriage and Divorce Act
I. CALIFORNIA FAMILY LAW ACT
A. Dissolution of the marriage (divorce) may be based on:
1. irreconcilable differences which have caused the irremediable breakdown of the marriage
OR
2. incurable insanity
B. Irreconcilable differences must be determined to be (1) substantial reasons for not
continuing the marriage and (2) make it appear that the marriage should be dissolved.
C. Note: Does not have a durational “living separate and apart” requirement
II. UNIFORM MARRIAGE AND DIVORCE ACT
A. Dissolution of the marriage requires the marriage to be (1) irretrievably broken and that
there be (2) evidence that:
1. parties have lived separate and apart for more than 180 days OR
2. there is serious marital discord
B. To be irretrievably broken, there must be a determination that there is no reasonable
prospect of reconciliation in the marriage.
III. New York Domestic Relations Law  maintains some fault based grounds(p. 521)
A. Does NOT ALLOW UNILATERAL DIVORCE
1. Other states do
Page 17 of 28
a) Living Separate and Apart (not in CA) - [ELEMENTS]
i) Rule: Most divorce statutes (i.e. Uniform Marriage and Divorce Act) provide that living
separate and apart for a statutory period is a no-fault ground for divorce. (CA version does
not)
(1) BUT: Living apart may mean more than just physical separation. It could mean living
apart in a “marital sense.” (Bennington v. Bennington – husband lived in van outside
home, but still performed marital duties so was not living apart)
ii) Three Types of “Living Separate and Apart” Provisions
(1) Parties must live apart under judicial decree or separation agreement for a prescribed
period OR
(2) Parties must live apart voluntarily with mutual consent OR
(3) Parties must live apart for a statutory period (least restrictive)
b) Irreconcilable Differences / Irretrievably Broken (in both CA and UMDA) [ELEMENTS]
i) Rule: Statutes usually require some sort of differences that make the marriage unable to work
out.
ii) CA requires irreconcilable differences (substantial reasons for not continuing the marriage)
while the UMDA requires the marriage to be irretrievably broken (no reasonable prospect of
reconciliation)
I.
TORT CLAIMS IN DIVORCE  ALLOWED
A. Some courts allow tort claims in the context of a divorce.
B. Feltmeier v. Feltmeier (IL) – A divorced wife sues ex-husband for IIED based on physical
abuse during the marriage. Court held that the repetitive cycles of abuse can be outrageous
and beyond the trials of everyday married life. Court also held that the “continuing tort rule”
applied and thus her claims were not barred by the statute of limitations.
Property Division
I.
APPROACHES TO PROPERTY DISTRIBUTION
A. Identification – Is it property?
B. Characterization – Is it marital or nonmarital?
C. Valuation – How much is it worth?
D. Distribution - How much does each spouse get?
II. APPROACHES
A. Separate Property Regime (“Title System”)  replaced by equitable distribution
1. Rule: Under the separate property (title) regime, marital assets were split by title. There
was no accounting for non-financial contributions.
a. But: This system has been replaced equitable distribution regime.
B. Equitable Distribution Regime (UMDA)  majority
1. Rule: A majority of states (most modeled after original UMDA) currently use the
equitable property regime where courts consider various factors (i.e. non-marital
contributions, employment, etc.) to get to a fair distribution of marital property.
a. Exam: Any non-marital property (acquired prior to marriage & exceptions during)
are not split, but remain with the owner.
Page 18 of 28
2.
3.
ORIGINAL UNIFORM MARRIAGE AND DIVORCE ACT (UMDA)
a. Provides that a court may, (1) without regard to marital misconduct (no-fault), (2)
equitably apportion b/w the parties the assets belonging to either or both (3) however
and whenever acquired, and (4) regardless of whether the title is in the name of the
husband or wife or both.
b. Marital property includes all property acquired by during the marriage EXCEPT:
i. gifts/inheritance,
ii. property exchanged for separate property, and
iii. property that was part of an agreement not to be included.
c. Nonmarital property remains w/ the owner and is not split. Nonmarital
property includes:
i. exceptions listed above AND
ii. property acquired prior to marriage
d. UMDA Factors to Consider
i. contributions (including non-financial)
ii. employment and future employment opportunities
iii. duration of marriage
iv. economic circumstances of each spouse at dissolution (including child custody)
Fault may or may not play a role, depending on the jurisdiction.
III. ISSUES TO CONSIDER
A. Debt – debt is also subject to distribution usually under the same principles as property
distribution.
B. Fault –has is less important today, but some states continue to use fault as a factor for
consideration. (not UMDA)
1. Financial misconduct is one of the only grounds used b/c financial misconduct, as
opposed to other forms of fault (i.e. divorce), have a direct impact on the value of the
property to be distributed.
C. Equity – In some states, if division of marital property did not produce an equitable result,
some courts may allow distribution of separate (nonmarital) property.
D. Modifying – Property distribution is not modifiable
E. Attorney Fees – Spouse in superior financial position pays. If equal, pay own fees.
F. Family Home – even if one spouse owned the home prior to marriage (separate property)
courts may consider the spouse’s contributions in maintaining and preserving to hold that the
home is marital property.
IV. IS IT MARITAL PROPERTY?
A. Rule: Courts will typically only recognize currently existing property, not future ones (i.e.
enhanced earning capacity)
B. Pension Benefits – vested as well as unvested pensions are marital property (majority rule)
1. Bender v. Bender – Couple had little marital assets and therefore wife asked for the
husband’s fireman pension which would vest in 6 more years. Court held that the
husband’s expectation in the pension plan was sufficient to constitute a “presently
existing property interest for equitable distribution purposes.” The unvested pension
benefits were not too speculative to be considered property subject for division.
2. Valuation Systems
a. Present Value – calculates PV and divides property; severs ties immediately
b. Present Division – court determines the $ of shares of pension benefits to which
spouse is entitled
c. Reserved Jurisdiction – court reserved jurisdiction to distribute the pension until
benefits have matured
3. Retirement Equity Act (“REA”) provides for enforcement of “qualified domestic
relations orders” (QDROs) which authorize retirement plan administrators to make
payments directly into former spouse’s account for spousal/child support.
Page 19 of 28
C. Enhanced Earning Capacity (Degrees & Licenses)
1. Majority View – enhanced earning capacity from a degree or license is not a marital
asset.
a. OTOH: It can be used as a factor for determining the amount of spousal support
(ALI approach) or in how to divide the property (i.e. give spouse w/o enhanced
capacity more property).
b. In Re Marriage of Roberts (degree) – wife decided to allow husband to concentrate
on law school, but husband divorced wife after getting his degree. Court held that
the value of a degree is too uncertain to be considered a marital asset.
2. Minority View – NY is the only state that treats degrees and licenses as marital
property. The spouse can get the present value of the enhanced earning capacity.
D. Goodwill (i.e. reputation of business)
1. Majority of courts will consider goodwill marital property if the goodwill is not based on
the reputation of the spouse in the business.
I.
SPOUSAL SUPPORT - APPROACHES / RATIONALES
A. UMDA Approach  self sufficiency / rehabilitation
1. Rule: The UMDA grants spousal support (maintenance) only if the spouse (1) lacks
sufficient property to provide for their reasonable needs and (2) is unable to support
themselves.
a. Rationale: stresses self sufficiency of the parties
2. To determine support, courts DO NOT CONSIDER FAULT, but do consider:
a. financial resources
b. time necessary to acquire education or training to enable party to be self sufficient
c. standard of living during marriage
d. duration of marriage
e. age and physical/emotional condition of spouse
f. ability of spouse providing support to meet their own needs
3. Michael v. Michael – A wife agreed to work while the husband pursued a writing career.
Court awarded the husband rehabilitative maintenance so that he could become selfsupporting.
4. Rosenberg v. Rosenberg – involved a “traditional” marriage where the wife took care of
the home and children and the husband almost exclusively focused on his business.
Court holds that the (1) wives non-financial contributions entitle her to share of marital
property and (2) indefinite alimony was appropriate b/c she is unlikely to become self
supporting.
B. ALI Approach  compensation for loss in the standard of living
1. Rule: The ALI approach treats spousal support as means to compensate a spouse for loss
in a standard of living that they would face during divorce.
2. ALI calculates support by multiplying:
a. difference in spouses’ expected income at dissolution AND
b. a durational factor (# of years of marriage x .01)
c. Property division may be considered in calculation of how much support is
necessary
II. ROLE OF FAULT  DEPENDS ON STATE
A. Mani v. Mani – Court refused to deny a husband spousal support b/c his adultery did not
affect the economic status of the couple and it was not “egregious.” Court held that only
egregious fault (murder) or conduct which affects the economic status of the parties can be
used in calculating spousal support.
Page 20 of 28
III. MODIFYING SPOUSAL SUPPORT – Changing Circumstances
A. Rule: Courts can modify spousal support upon a showing of substantial change in
circumstances. The change must usually be (1) involuntary, (2) long term, (3) and on-going.
1. Furthermore: The UMDA not only calls for a substantial change in circumstance, but
one that would make the terms “unconscionable.”
B. Lucas v. Lucas – Divorced wife began living w/ another man in a “de facto marriage” and exhusband sought termination of spousal support. Ct held that due to the instability of a defacto marriage (as opposed to a marriage), it would be unlikely that a de facto marriage could
result in termination of spousal support.
C. Termination – Spousal support is usually terminated at:
1. death or
2. remarriage by the party receiving maintenance
Approaches to Calculate Child Support
I.
Income Shares Model (Majority)  like parent’s still together
A. Rule: The income shares model attempts to give the child the same support as if the marriage
had not ended. Model is based on theory that as income increase, the % of the income spent
on child decreases.
B. Calculation:
1. Calculate the combined parental income
2. Determine the total obligation of the parents based on % of the combined income that
would have gone to child. Cts use a chart that lists the % based on different levels of
income.
3. Divide the obligation based on the proportion of the parent’s income to the combined
income (i.e. if wife made 60% of household income, wife would pay 60% of total
obligation).
II. Percentage of Income Model  % of parent’s income
A. Rule: The percentage of income model allocates support based on the % of the parent’s
income.
B. Calculation: take a % (usually provided by statute) off of the parent’s income regardless of
level of income
III. Melson Formula  child’s support after parent’s living expenses
A. Rule: The Melson Formula divides support from the parent’s available income (i.e. take off
parent’s subsistence first). It is the most complex formula and therefore the least widely used.
IV. CHILD SUPPORT ISSUES
A. Family Home – use of a home by the custodial parent is considered to be part of support
obligation therefore could be taken into account beyond the formulas.
B. Post-majority Support
1. Usually, after 18 a parent’s support obligations end, but some states do allow postmajority support. In these states, the court typically focus on reasonable expenses.
2. Curtis v. Kline – Court held that a statute which required divorced/unmarried parents to
provide for post-majority education costs was unconstitutional b/c it required divorce
parents to do what married parents did not have to do.
C. There is currently no federal statute that would standardize child support calculations.
Modification of Child Support
I.
THREE PONY RULE  there’s a limit to how much is needed
A. Rule: After a certain point in income an increase in child support goes beyond the reasonable
and realistic needs of the child. (i.e. no kid need 3 ponies)
B. Downing v. Downing – father had substantial increase in income and mother filed for
increase in child support obligations. Ct rejected the “share the wealth” approach and
reasoned that after a certain point, extra support would be unreasonable. Because there was
no evidence of a change in the child’s needs, the court denied an increase in support.
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II. APPROACHES TO REMARRIAGE / SUCCESSIVE FAMILIES
A. First Family First – child support for the first family is of primary concern
1. Pohlmann v. Pohlmann – Husband petitioned to reduce his child support obligations
based on his decrease in income, his own remarriage, and new children in his new
marriage. Ct held that a parent who chooses to remarry and become responsible for new
children does so at his own risk.
B. Second Family First – support is deducted from second/current family first before
determining support for the first family
C. Federal Legislation: the Family Support Act of 1988 leaves it up to the states to determine a
parent’s obligations when there are successive families.
III. OBLIGATIONS OF STEP-PARENTS
A. Some states require step-parents who accept and receive the child into their home have
obligations for the support, but the obligation does not continue after divorce.
Imputed Income
1) The amount of child support paid is related to the income of the parent of parents supporting the
child. However, if a parent is unemployed or underemployed, courts will sometimes impute
income to the parent and base the child support order on the imputed income.
2) Example: income equivalent to the minimum wage may be imputed to a voluntary unemployed
obligor. Similarly, if a parent is voluntarily underemployed, the court may base the child support
order on the net income that the obligor previously earned.
3) Olmstead v. Ziegler – dad was attorney that made large salary, decided to become a teacher, and
then wife made more money than him, court held he voluntary choose to be a teacher, and that his
wife and children should not fun his endeavors, since it was his choice.
Enforcement
Focus on the DEADBEAT DAD PROBLEM
I. CRIMINAL VIOLATIONS – some states provide statutes making it criminal for non-support
A. State v. Oakley – Def. was charged w/ refusing to pay child support for his many kids.
Instead of imprisonment, the trial judge put him on probation and as a condition said that the
Def. could not have kids until he demonstrates he could support them. The court noted the
growing concern for ‘deadbeat dads’ and upheld the condition despite there being a
fundamental right to procreate.
B. Contempt – failure to pay support could result in contempt of court (not following court
orders) which could result in imprisonment or monetary fines
1. Imprisonment – Usually not used by courts b/c it would prevent parent’s from making
support payments at all
II. LIMITATIONS ON ENFORCEMENT
A. Inability to Pay – if they can’t pay support, they can’t pay fines and other things
B. Burden of Proof – Deadbeat Parents Punishment Act: creates a presumption of willful nonpayment
III. FEDERAL LEGISLATION (FAMILY SUPPORT ACT)
A. Due to concern for the growing deadbeat dad problem, different federal legislations (i.e.
Family Support Act – Title IV-D) require states to use various procedures in enforcement of
child support awards including:
1. income withholding
2. automatic tax refund interception
3. automatic liens on assets
4. withholding/suspension/restriction of licenses (i.e. drivers, professional, etc.)
5. notification of credit reporting agencies
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I.
OLD CHILD CUSTODY PRESUMPTIONS
A. Tender Years Presumption (Maternal Preference)  abolished/unconstitutional
1. Presumption that the child should remain with the mother unless there was a showing of
her being unfit (burden on father to prove). This standard was found to be an
unconstitutional gender based classification. (Devine v. Devine)
B. Primary Caretaker Presumption
1. Presumption that it was in the best interest of the child to allow the child to stay with the
person who took care of the child. Today, it is no longer used as a presumption, BUT is
used as a factor in a best interest analysis
2. Factors that could be relevant: who takes care of meals, hygiene, medical, cleaning,
education, discipline
II. ALI PRINCIPLES APPROACH – “PARENTING PLANS”
A. Parenting Plans are part of the ALI Principles and are used in some states. They are written
agreements b/w the parents which lay out who will have the decision-making and caretaking
authority and also how future disputes will be resolved.
1. Courts will enforce agreements parenting plans as long as they were entered into
voluntarily and would not harm the child.
B. If the parents did not create a parenting plan (i.e. state doesn’t require it), then the court
will award custody based on the allocation of responsibilities during the marriage.
1. The ALI also provides factors that can be used to rebut award:
a. child’s preference
b. need to keep siblings together
c. harm to child’s welfare (based on emotional attachment to a parent)
d. avoiding impractical and unstable arrangements
e. need to deal w/ parental relocation
I.
BEST INTERESTS OF THE CHILD STANDARD  depends on state statutes
A. Rule: States today use a best interest standard that looks at different factors including wishes
of the parent/child, relationships the child has, etc. (UMDA approach)
1. Criticisms: doesn’t provide clear standards, judgments are merely predictions about what
judges think the future will be and what they think a child’s interest are.
B. Uniform Marriage and Divorce Act (UMDA) – factors to consider
1. parent’s wishes
2. child’s wishes
3. relationship of the child w/ his parents, siblings, and any other person who may affect the
child’s best interest
4. child’s adjustment to his home, school, and community
5. mental and physical health of all individuals involved
6. ct. SHALL NOT consider conduct that doesn’t affect a parent’s relationship to the child.
II. FACTORS IN BEST INTEREST ANALYSIS
A. Race as a (SOLE) Factor – unconstitutional
1. ALI Principles prohibit use of race and ethnicity of any party (parent, child, etc.) to
determine custody.
2. Supreme Court has held that race cannot be used as the basis for custody awards.
a. Palmore v. Sidoti (US) – the mother married a black man after her divorce and the
lower court held that due to the possible discrimination that the child could face from
living in an interracial family, the child’s best interests would be served by not
giving the mother custody. The SC reversed and held that a custody award based on
race was unconstitutional on equal protection grounds.
3. Racial diversity as a positive – courts have awarded custody based on the fact that a one
parent is racist and the other lives in a diverse environment and that it was in the child’s
best interest to promote
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B. Sexual Orientation  Likely to be a NEGATIVE factor: 3 Approach
1. EXAM: Talk about Lawrence; Talk about State DOMAs
2. 3 Approaches
a. Per Se Rule – homosexuality is a irrebuttable presumption of unfitness
b. Rebuttable Presumption – homosexual conduct is a rebuttable presumption of
unfitness; can be rebutted w/ proof of absence of harm
c. Nexus Approach (followed by MOST states) – parent’s sexual orientation is a factor
only when it has/will have an adverse impact on the child
i. Preferred method by both UMDA and ALI Principles
3. Fulk v. Fulk – mother had a homosexual affair and the lower court used that as basis for
its custody decision. Court held that marital fault, religion, personal values, or lifestyle
choices cannot be the SOLE basis of a custody decision.
C. Domestic Violence  negative factor in almost all states
1. ARGUE: witnessing domestic violence is harmful to childe
2. Domestic violence is a factor in almost all states
a. Some courts only facto r in domestic violence if it has been directed at the child.
(Statistics show that there are higher rates for child abuse among spousal batterers)
3. Trend  evidence of domestic violence creates a rebuttable presumption against abuser
4. Written Findings – a few states require judges to make written findings about the
existence of domestic violence
5. Empirical Data – Data shows that courts still grant children to abusers
D. Lifestyle Choices (i.e. career advancement)
1. Rowe v. Franklin – mother took child to another state to pursue career/education. Trial
court removed the child from mother’s custody b/c of her questionable decision-making
(i.e. became pregnant w/ another) and her ‘personal agenda’ (i.e. law school). Court held
that the trial court reached its decision in error by relying on the wrong factors.
I.
II. JOINT CUSTODY – gives BOTH parents legal custody and MAYBE both get physical custody
of the child
A. Rationale: The rationale behind joint custody is that the child’s best interest is maintained by
frequent contact w/ both parents. Each parent has important things that it can bring to the
parent-child relationship.
B. Legal Custody – major decision-making responsibility for child (upbringing, education,
health, etc.)
C. Physical Custody – who stays w/ child and takes care of day-to-day decisions
III. APPROACHES
A. Option in best interest determination (most common)
B. Presumption or Preference of Joint Custody
IV. FACTORS TO CONSIDER
A. Cooperation b/w Parents – because of the shared decision making authority in joint custody,
some states will require evidence that the parent’s will be able to cooperate.
1. Bell v. Bell – Court held that dispute between parents regarding day-care choice was not
enough evidence that the parents could not cooperate in joint custody. There was other
evidence that the parents were able to accommodate each other’s schedules and share
parenting duties.
B. Domestic Violence – states treat evidence of domestic violence as either a (1) bar or (2)
rebuttable presumption in child custody awards.
V. ISSUES
A. Parental Divorce Education – In some states, parents who are divorcing must undergo
education programs to teach them about the effects of divorce on children and how they can
resolve disputes.
1. Shows the changing preference to get BOTH parents involved, shows the changing
attitude about maternal preference
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B. Young Children – some have argued that w/ younger children will joint custody serve to
harm them? Confuse them? Lack of stability?
Visitation
I.
VISITATION – Under visitation one parent gets custody and the other gets visitation rights.
A. Judges Discretion – Judges have a great deal of discretion in determining the scope of
visitation. Judges can also set conditions on the length, place, supervision required on visits.
II. DENIAL OF VISITATION RIGHTS – courts are reluctant
A. Rationale: Courts feel it is in the child’s best interest to have a relationship with the noncustodial parent and parent-child relationships are a protected interest under the Constitution.
Therefore, courts are usually hesitant to deny visitation rights.
B. Abuse – Showings of abuse or other characteristics evidencing unfit parental quality (i.e. drug
use) could be used to deny visitation rights, but even in such cases courts may simply grant
supervised visitation.
C. Non-Payment of Support – inability to pay child support is insufficient to deny visitation,
BUT willful failure when a parent has the financial means could lead to a denial of visitation
rights.
1. Turner v. Turner – father was granted visitation rights and ordered to pay child support.
He was financially unable to make the child support payments and eventually he went to
jail and lost his visitation rights. Court held that he should not have been denied
visitation b/c denial should only occur when the parent is ABLE to pay support, but does
not.
Modification of Child Custody
I.
STANDARD  modifying std > initial award std
A. Rule: Standard for modifying a custody award is usually higher than for initial awards.
1. Rationale: Cts worry about the stability of the parent-child relationship (that just changed
from divorce)
B. Rule: Most standard require the plaintiff must show (1) material or substantial change AND
(2) best interests of child would be served by modification OR (3) endangerment to the child.
1. Liberal Approach (some states) – modification is simply in best interest of child
2. UMDA – requires (1) “endangerment” to the child OR 2 year waiting period after 1st
award
C. Relocation is probably in sufficient to be considered a substantial change
D. Joint custody – can be modified under a more relaxed standard (i.e. simple best interest of
child) and thus if joint arrangement doesn’t work out, court can modify
II. RELOCATION – when custodial parent attempts to move, non-custodial will seek to modify
A. Rationale: Child’s best interest may be promoted by preventing the move which would cause
disruption on top of the separation (i.e. new family arrangement + new location).
1. OTOH, the parent’s interest in moving to a new area may be tied to the child’s interests
(i.e. job opportunity)
B. Standard
1. Custodial Parent Presumption – some courts use a rebuttable presumption of the
custodial parent’s right to relocate
2. Child’s Best Interest (most courts) – most courts will use a best interest of the child
standard
a. Good faith is a threshold requirement in attempts to modify due to relocation (i.e. if
parent attempts to move as revenge does not work).
b. Motive may also play a role if it is not in the child’s best interest. (Ciesluk v.
Ciesluk – mother’s desire for a “fresh start” in a new marriage not a child’s interest
factor)
3. ALI Principles – primary parent may relocate w/ child if (1) that parent was exercising
majority of custodial responsibility and (2) there is a legitimate reason for the move.
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C. Factors (from Ciesluk): (1) history of relationships of parents w/ kid, (2) anticipated impact
of move on kid, (3) education opportunities, (4) extended family’s location, and (5)
advantages of staying w/ primary caregiver
D. Burden of Proof – The burden of proof is usually on the custodial parent who wants to move
to show that the move will be in the child’s best interest. Some states do, however, place the
burden on the non-custodial parent.
E. Constitutional Right to Travel – Does denial infringe parents right to travel?
1. 3 approaches to balancing right to travel w/ rights of minority parent.
a. Elevate the relocating parent’s right to travel over the other competing interests
(WY)
b. Elevate the child’s interest to a compelling state interest therefore eliminating the
need to balance the parent’s competing rights (MN)
c. Treat all competing interest equally, each parent shows how child’s interest will be
impacted (NM)
Role of Special Participants
I.
REPRESENTATION FOR THE CHILD: Guardians and Attorneys
A. Counsel act in different roles: advocate, fact-finder/investigator, mouthpiece (follow child’s
wishes)
1. Leary v. Leary – Judge appointed counsel for children in a custody dispute, but did not
specify role. One parent disputed that judge made error in not instructing, but court
determined that the attorney investigated the child’s preferences and gave her findings to
the judge who made the decision. No reversible error was made.
B. Guardian ad Litem – makes (1) determination and (2) recommendation regarding the child’s
best interest.
1. Responsibility is primarily to the court -- he has absolute immunity for ‘judicial function’
(testifying and making reports/recommendations)
C. ABA Standards of Practice
1. Abolish “guardian ad litem”
2. Provide two types of child lawyers: (1) Child’s Attorney and (2) Best Interests
Attorney.
a. Child’s Attorney – provides legal representation like a traditional lawyer
b. Best Interests Attorney – investigates and advocates the child’s best interest
3. Both types of lawyers:
a. Should make evidence based arguments
b. Should NOT play any other role in the case and should not testify, file a report, or
make recommendations
c. Should accept the appointment only if they understand what their function will be
II. ROLE OF EXPERTS
A. Experts can play various roles including: provide judgments, opinions, educate
judges/court on issues, etc.
B. Criticisms of Expert Use: expert evaluations give a false sense of reliability and courts rely
on their opinions to too great a degree
C. Parental Alienation Syndrome – parent’s conscious or subconscious attempt to alienate the
child from the other parent; admissible in court, but not widely accepted by psychologists
D. In Re Rebecca B. – custodial mother found out that the father was sleeping in the same bed as
the daughter on overnight visits. Father cross petitions for sole custody. Experts (clinical
director, psychologist) gave testimony that child’s best interest would be to be w/ father.
Lower court says the testimony was flawed and gives custody to mother. The appellate court
held that the court erred in ignoring the expert testimony which was convincing.
Parent v. Non-Parent Disputes
I.
NATURAL PARENT PRESUMPTION
A. Natural Parent Presumption – natural get custody minus unfitness and except in loco
parentis exception
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1.
Rule: In parent v. non-parent custody disputes, there is a rebuttable presumption that the
natural parent should get custody. The presumption may be rebutted by evidence of
UNFITNESS.
B. In Loco Parentis Exception
1. Rule: For those who are in loco parentis (those who hold themselves out as parent and
take on parental responsibilities) they do not need to show UNFITNESS, but can provide
clear and convincing evidence of BEST INTEREST.
2. Jones v. Boring Jones – involved a lesbian couple where the court awarded custody to
the non-biological parent b/c the non-biological parent rebutted the presumption that the
natural parent should get custody. The non-biological proved with clear and convincing
evidence that the child’s best interest would be best served with her getting custody.
Note: In Jones v. Boring Jones, the court factored in the fact that the biological mother
attempted to sabotage the non-biological mother’s relationship w/ the child
C. Policy: Certain parties have strong relationships w/ children which could benefit the children
1. OTOH: Parent’s right to privacy (i.e. choose how to raise a child)
D. Visitation Rights for 3rd Parties
1. Law favors parental decisions, if the 3rd parties request for visitation is opposed by the
parent, the court will usually weigh in favor of the parent due to the presumption that a fit
parent acts in the best-interest of child.
2. State Statutes – All states have visitation statutes that grant 3rd parties (i.e. grandparents)
visitation right
3. Stepparents
a. Traditionally, stepparents were not entitled to any parental rights once a marriage
terminated.
b. Trend, has been toward recognizing stepparents visitation rights given the best
interest of the child to maintain a relationship of someone who was a in loco
parentis.
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II. ALTERNATIVE THEORIES TO PARENTHOOD – FOR USE IN CUSTODY DISPUTES
A. Functional Parent
1. Forms: psychological parenthood, de facto parent, parenthood by estoppel, in loco
parentis
2. Psychological Parent
a. Psychological parenthood is based on: day to day interaction, companionship, and
shared experiences
b. Does not need to be biological or legal parent, can be any ‘caring adult’
3. Factors: Parentlike Relationship + Significant Triggering Event
a. Test to Determine Parent-Like Relationship
i. Whether biological parent consented to and fostered the relationship
ii. Whether the petitioner resided w/ the child in the same house
iii. Whether the petitioner assumed the ‘obligations of parenthood’ (i.e. care,
education, finances, etc.)
iv. Whether the petitioner served in parental role for a significant period of time
b. Significant Triggering Event
i. If custodial parent interfered substantially w/ the parent-like relationship AND
ii. If the parent seeking visitation sought court-ordered visitation w/in a reasonable
time after the parent’s interference
B. ALI Principles: recognizes that biology is not determinative; allows same-sex couples into
the mix
1. Parent by Estoppel – person who acts as a parent so that the child’s legal parent is
estopped from denying the other’s parental status
a. Created when someone:
i. is obligated to pay child support
ii. lived w/ child 2 years and reasonably believes to be the father,
iii. had an agreement w/ legal parent since the child’s birth to be a co-parent
2. De Facto Parent – person who is not a legal or parent by estoppel
a. De facto parent is a person who has:
i. regularly performed equal or greater share of caretaking as primary parent,
ii. lived w/ child for at least 2 yrs, and
iii. acted as parent for real reasons w/ agreement of legal parent or as a result of
complete failure by legal parent to fulfill caretaking functions
3. BOTH parent by estoppel and de facto parent are entitled to some custody and
decision-making authority
III. LESBIAN MOTHER DISPUTES
A. In custody disputes b/w heterosexual couples, each parent starts off on equal footing and
both try to show best interests
B. For lesbian couples, the biological mother has a natural parent presumption in favor of her
getting custody.
C. Used functional definitions to help
IV. FIT PARENT PRESUMPTION
A. Rule: A FIT parent is presumed to act in the best interests of the child. (Troxel)
B. Troxel v. Granville – Statute allowed any person at any time to petition for visitation. After
the death of one parent, the other parent wanted to limit the grandparent’s visitation rights.
The SC held that the court violated the parent’s due process rights b/c the court did not give
weight to her decision which, being a fit parent, was presumed to be in the best interests of the
child. NOTE: court said the statute was unconstitutional as APPLIED, did not discuss
whether statue was unconstitutional on its face.
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