An Illumination of Family Law
Family Law, Fall 2013, BYU Law, Prof. Wardle
Note: All this garbage is nice if you want to practice Family Law, but if you want to get a good grade
in this class, you should dedicate a lot of time to studying practice exams, available from the library.
Wardle will recycle those questions, even if they are not covered in the current textbook . . .
Contents
I. Introduction ............................................................................................................................................... 4
A.
Family Law and the Constitution/Traditional Approach ........................................................... 5
B.
What is family?................................................................................................................................... 5
C.
Jurisdiction for Family Law Claims ................................................................................................ 6
D.
Competing Principles of Modern Liberalism—The Trilemma—Fishkin ................................ 6
E.
Non-Interference? ............................................................................................................................. 6
F. Utah ......................................................................................................................................................... 7
II.
Pre-Marriage Issues and Marriage Essentials ........................................................................................ 7
A.
Rings in Broken Engagement/Damages for Calling off Wedding ............................................ 7
B.
Fraudulently Induced to Marry ....................................................................................................... 7
C.
Making Prenuptial Agreements ....................................................................................................... 8
D.
Interpreting Prenuptial Agreements ............................................................................................... 8
E.
Marriage with a Minor ...................................................................................................................... 9
F. Competence & Consent ....................................................................................................................... 9
G.
Bigamy ................................................................................................................................................ 9
H.
Incest .................................................................................................................................................10
I.
Same-Sex Marriage Bans ....................................................................................................................10
J.
Transgender Marriages .......................................................................................................................10
K.
Constitutional Issues .......................................................................................................................11
1. Race Restrictions .............................................................................................................................11
2. Marriage and Substantive Due Process ........................................................................................11
3. Polygamy ..........................................................................................................................................11
4. Same-Sex Marriage ..........................................................................................................................11
5. Minors ...............................................................................................................................................12
L. Marriage Formalities ...........................................................................................................................12
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1. Licensing & Solemnization ............................................................................................................12
2. Common Law Marriage .................................................................................................................12
3. Covenant Marriage ..........................................................................................................................13
4. Attempted Marriage/Quasi Marriage ...........................................................................................13
5. Choice of Law..................................................................................................................................14
6. Comparative Marriage Regulation ................................................................................................14
III.
Legal Regulation of Parentage Creation ...........................................................................................14
A.
Parental Rights with No Marriage ................................................................................................14
B.
Non-Marital Children Born in a Marriage ...................................................................................15
C.
Legitimacy ........................................................................................................................................15
D.
Parentage/Parental Responsibilities .............................................................................................15
E.
Surrogacy ..........................................................................................................................................16
F. Dual Parenthood .................................................................................................................................17
G.
Disposition of Frozen Embryos ...................................................................................................17
H.
Adoption...........................................................................................................................................17
1. Voluntary Termination ...................................................................................................................17
2. Involuntary Termination ................................................................................................................18
3. Placement of Children ....................................................................................................................19
4. Legal Consequences of Adoption .................................................................................................19
5. International and Interstate Adoption .........................................................................................20
6. Indian Child Welfare Act ...............................................................................................................20
I.
Preventing Parentage ..........................................................................................................................20
1. Contraception ..................................................................................................................................20
2. Abortion ...........................................................................................................................................21
IV.
Legal Regulation of Ongoing Spousal Relations ............................................................................21
A.
Marital Status/Financial Incidents ................................................................................................21
B.
Marital Property Regimes ...............................................................................................................22
C.
Doctrine of Necessaries .................................................................................................................22
D.
Medical Decision Making ...............................................................................................................23
E.
Testimonial Privilege ......................................................................................................................23
F. Heart Balm Causes of Action ............................................................................................................24
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G.
Spouse Abuse ...................................................................................................................................24
1. Married People.................................................................................................................................24
2. Protective Orders ............................................................................................................................25
3. Non-Marital Violence .....................................................................................................................25
V.
Legal Regulation of Ongoing Parent-Child Relations .......................................................................25
A.
Emancipation ...................................................................................................................................25
B.
Child Liability ...................................................................................................................................26
C.
Juvenile Courts ................................................................................................................................27
D.
Abuse and Neglect ..........................................................................................................................28
E.
Constitutional Parental Rights .......................................................................................................28
F. Limits on Parental Rights ...................................................................................................................28
G.
Religion and Children’s Rights ......................................................................................................29
H.
Children’s Interests and Rights .....................................................................................................29
I.
Medical Rights......................................................................................................................................30
J.
Child Support and Parent Support ...................................................................................................31
K.
Parental Liability and Immunity ....................................................................................................32
1. Family Members Suing Each Other .............................................................................................33
L. Uniform Transfers to Minors Act/Uniform Gifts to Minors Act ...............................................33
M.
Rights of Other People Who have Developed Relationships with Kids ................................33
1. Grandparent Rights.........................................................................................................................34
2. Stepparents .......................................................................................................................................34
3. Foster Families.................................................................................................................................35
4. Non-Marital Partners ......................................................................................................................35
VI.
Divorce and Whatnot .........................................................................................................................35
A.
Jurisdiction .......................................................................................................................................35
B.
Procedure .........................................................................................................................................36
C.
Fault Divorce ...................................................................................................................................37
1. Defenses ...........................................................................................................................................37
D.
No-Fault Divorce ............................................................................................................................38
1. Noneconomic Consequences ........................................................................................................38
2. Divorce Reform...............................................................................................................................39
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3. Comparative Law ............................................................................................................................39
4. Alternatives ......................................................................................................................................39
5. Utah ...................................................................................................................................................39
E.
Property Distribution .....................................................................................................................39
1. Complex Property Distribution ....................................................................................................40
2. Tax Consequences...........................................................................................................................41
3. Other Random Cases......................................................................................................................41
F. Alimony.................................................................................................................................................42
1. Kill Alimony .....................................................................................................................................44
2. Tax .....................................................................................................................................................45
G.
Separation Agreements ...................................................................................................................45
1. Bankruptcy .......................................................................................................................................45
H.
Terminate Quasi-Spousal Relations..............................................................................................46
I.
ADR ......................................................................................................................................................46
VII.
Children in Divorce.............................................................................................................................47
A.
Inter-State .........................................................................................................................................47
B.
International Custody .....................................................................................................................48
C.
Utah Custody, More Generally .....................................................................................................49
VIII.
Child Custody ..................................................................................................................................49
A.
Historical Approaches ....................................................................................................................49
B.
Best Interest of the Child ...............................................................................................................49
C.
Experts, Custody Evaluations, etc. ...............................................................................................50
D.
More Custody ..................................................................................................................................51
E.
Modify Custody ...............................................................................................................................53
F. Relocation .............................................................................................................................................54
1. Class Notes .......................................................................................................................................55
I.
Introduction
A significant part of family law relates to the legal creation or recognition of family
relationships and the rights, duties, benefits and privileges that flow therefrom, and another
part of family law relates to the dissolution or disestablishment of family relationships and
sorting out the rights, duties, benefits and privileges that result.
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You can view it in terms of laws about the creation, maintenance, and dissolution of
horizontal relationships (spouse-like) and vertical relationships (parent-child like).
Family law started with the ecclesiastical courts. It is still there in some foreign countries.
Religion has influenced family law. Family law was once aspirational. Now, it is
accommodating. As a general matter, family law belongs to the state courts—often to the
intermediate appellate court.
Family is an important part of society. It is the building block, etc. A nation cannot rise
higher than the status of the family.
Jurisdiction over parties? 1) Does statute or common law authorize assertion of jurisdiction?
2) If so, is it constitutional? 3) If so, has the law been followed?
A.
Family Law and the Constitution/Traditional Approach
Figuring out traditional v. functional is significant because it deals with the benefits
the government will give to families.
Moore v. City of East Cleveland, 431 U.S. 494 (1977): The law was restrictive as to
what qualified as a family for single-family dwellings. The Court’s decision reflects
that the law was a violation of substantive due process. Basically, this interference
was not tailored adequately to honor family rights rooted in history or tradition or
implicit in concepts of ordered liberty. Some of the other justices argue that this is
more of a rational basis matter. The plurality was in favor of a larger conception of
family that included close relatives with some degree of kinship.
Family law started creeping into constitutional questions with cases like Meyer v.
Nebraska, in which the prohibition on teaching foreign languages was struck down as
interfering with family decisions
B.
What is family?
Braschi v. Stahl Associates Co., 543 N.E.2d 49, (1989): Not federal constitution, but
this is an example of a court taking a functional approach to determine that a gay
couple was functioning as a family and thus qualified for the rent control statute.
Traditionally, the term family has included persons related by blood, marriage, or
adoption, and in law as in colloquial usage, that is still the most common and the
default meaning. The legal meaning of the term family is not unitary. It does not
necessarily mean the same thing in every statute or legal context. Rather, it has many
meanings and statutes vary in defining family. In Moore, the Supreme Court was
going respectably broad, looking to history and tradition. Some say that selfdefinition should count. Perhaps that would fit under concepts of ordered liberty.
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Also, there is a difference between formal and functional definitions, and some that
even argue for a self-definition standard. What are the advantages? Formality leads to
efficiency. What are the disadvantages? Functional leads to extensive legal analysis.
Self-definition leads to gaming of the system, perhaps.
States are supposed to define and regulate marriage. That is part of what helped kill
DOMA.
The Supreme Court generally used to stick to a highly traditional version of family,
though it is now departing. Eva Rubin argued that the family tradition is a
mythological construct based on the Bible.
C.
Jurisdiction for Family Law Claims
There must be a law that asserts jurisdiction. The law must be constitutional. And,
the law must be followed.
Generally, in personam jurisdiction is required for pecuniary or property claims.
Determination of relationship status is not in personam.
Ankenbrandt v. Richards, 504 U.S. 689 (1992): The federal courts have previously
employed a domestic relations exception for stuff that technically would qualify
for diversity jurisdiction. The exception’s origin is questionable, but we will uphold
it. It only applies to divorce, alimony, and child custody. [The Court seems to
have not thought about child support or adoption.] Here, the claim is for torts,
so the lower court cannot dispose of it based on the domestic relations exception.
D.
Competing Principles of Modern Liberalism—The Trilemma—Fishkin
 Merit: limited goods and opportunities ought to be distributed on the basis
of merit.
 Equality: People should have equal opportunities to compete successfully for
good and opportunities on the basis of merit—these opportunities should
not depend upon immutable characteristics such as race, sex, etc.
 Family Autonomy: State should not intervene in family relations, child
rearing, etc.
E.
Non-Interference?
Family autonomy concerns allowing the family unit to resolve internal matters
without judicial interference and also involves protecting the family from outside
interference—i.e. the government.
As a general rule, courts will not attempt to settle intra-family disputes regarding the
domestic rights and duties of family members inter se in an ongoing family. The
exceptions to this rule generally fall into three categories:
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


F.
The family is breaking up or has broken up (e.g. upon death, incapacity,
divorce, separation, desertion, abandonment, emancipation)
The family has failed to function as a family ( e.g. in cases of neglect, abuse,
abandonment, etc.).
The conduct complained of involves a violation of exceptionally strong
public policy (e.g. if the life of a child or incompetent adult is at risk, child
labor, compulsory education, polygamy, etc.).
Utah
Utah does not really have an overarching definition of family. It defines it for reach
statute. Parent-time seems to be tied into claims grandparents might make.
There is argument that tortious act and injury inside of Utah can lead to people
having sex outside of Utah becoming amenable to jurisdiction.
II.
Pre-Marriage Issues and Marriage Essentials
A.
Rings in Broken Engagement/Damages for Calling off Wedding
States differ on the matter. 1. As per Campbell v. Robinson in S.C.: Ring is a
conditional gift that can be called back before marriage, unless something changes in
status. Person holding ring would have burden to demonstrate that it is not an
engagement ring or that it subsequently became their property. Basic gift law is
followed, not fault like in a divorce. 2. No fault and ring goes back to buyer. 3.
Purchaser if mutually called off or if holder of ring was at fault. This method is
unpopular because it is difficult to determine who called off the engagement or
whose fault it was or if it was justifiable.
Jackson v. Brown, Utah 1995: Guy called of marriage because he actually was
married, already. Court did not want emotional rights of action. There is recovery for
IIED and economic problems only.
B.
Fraudulently Induced to Marry
Courts can annul fraudulent marriages. In most states, that means that it will be
treated as if the marriage never happened. In order for annulment, there needs to be
fraud touching the conditions essential to marriage. Essentials easily includes
ability/willingness to have sexual relations, bear children. Heroin addictions and antiSemitism has qualified. Fraud as to wealth, social status, and feelings does not qualify
usually.
Once discovered, the fraud can be forgiven. Marital relations is typically the sign that
this happened. If it has been forgiven, the annulment cannot happen.
Montnegro v. Avila—gigolo got imported, siphoned money, refused to have
children, etc. Court determined that woman discovered fraud late into marriage, did
not forgive, behavior seemed to suggest the guy never intended children.
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Wardle suggests that judges will often fudge fraud for the right case.
Utah: Jaacke v. Glenn: Lady lost job because of marriage to felon. The Ct. App.
allowed annulment because of the seriousness and her lack of complicity.
C.
Making Prenuptial Agreements
Generally, they must be in writing and focus on economic matters. The validity of a
prenuptial agreement is dependent upon its valid procurement, which requires its
having been executed voluntarily, with knowledge of its content and legal effect,
under circumstances free of fraud, duress, or misrepresentation.
Independent counsel is desirable, but if the terms are clear and there was sufficient
opportunity for party to seek independent counsel, the lack can be ignored. In
W.Va., the presumption of validity for prenuptial agreement applies only when
independent counsel was involved. Otherwise, enforcer needs to prove everything.
Many states require full disclosure of assets.
Unconscionable can kill—but states differ whether it must be unconscionable at time
of agreement or time of effect.
Ware v. Ware: W. Va.: Owners of pizza joint. Lawyer explained a bunch of stuff.
Dove v. Dove: 1. No fraud, duress, mistake, misrepresentation, or nondisclosure of
material facts. 2. Agreement not unconscionable. 3. Taking into account all facts and
circumstances, including changes beyond contemplation at time of agreement’s
execution, enforcement would be neither unfair nor unreasonable.
Beesley, Utah, 1994: Failure to disclose was immaterial because she would have
signed anyway. Was there coercion? Court was not convinced, even though lady had
moved from Texas and was nearly stranded in Utah.
Utah, Uniform Premarital Agreement Act: Agreement void for involuntary or (fraud
+ lack of disclosures that were possible + not waiver of disclosure + could not have
reasonable had an adequate knowledge of the property). Further, cannot kill alimony
to point that they would be eligible for public assistance.
Policy: If they kill agreements, people might not get married. But they don’t want to
ignore bad situations. States don’t want marriage to be an economic investment with
people jumping ship if finances go bad.
D.
Interpreting Prenuptial Agreements
Courts should stick to the writing of the agreement. Language governs, provided that
it is clear and explicit and does not involve an “absurdity.” Also, mutual intention of
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parties is relevant. Ambiguities should be resolved against the party creating them.
An agreement needs to be pretty broad.
Deschamps, Montana, 2009: Agreement did not really address improvements. The
wife not getting the worth of what she contributed would be absurd. Husband loses.
E.
Marriage with a Minor
Depending on the jurisdiction and specific laws/situation, it will be void ab initio or
voidable by a person with standing to petition for the marriage to be annulled based
on the defect. If the defect is cured, the marriage can be ratified.
Public policy would dictate whether it should be void or voidable. Public policy
might argue who is getting married for what reason, pregnancy, maturity, etc. Also
best interest and competency would be relevant.
In Robinson v. Commonwealth, the creeper was pulling naughty stuff with a very
young girl. Some of the rape charges were dropped against him because of the
marriage and because that marriage was merely voidable instead of void. The court
determined that the marriage was voidable based on parsing public policy from
statutes addressing the marriage of minors. The dissent argued that the situation was
something that the public policy should not support.
UTAH: Void as per statute. But, Utah seems to take a voidable approach. A court
can decline to annul a marriage for best interests.
F.
Competence & Consent
Lack of competence or consent can result in the marriage being voidable and,
perhaps in some cases, void. Policy is that you want competent people to make good
decisions about marriage, but you want to preserve marriages, limit the negative
effects on children, etc. Ratification is allowed.
Clark v. Foust-Graham features the trial court tossing all but the question of undue
influence where the black realtor married the old racist. Undue influence involved 1)
a person subject to influence, 2) and opportunity to exert influence, 3) a disposition
to exert influence, and 4) a result indicating influence. Old guy was subject, there was
opportunity, disposition aka motive, and a result odd enough to suggest an
influenced result. Standing was questionable, but the suit began while guy was alive
and daughter was GAL.
G.
Bigamy
Bigamy is illegal in all states. Spawns from polygamists, fraudsters that disappear with
the bank account, and people who jump the gun after a divorce decree is entered.
Generally, it will be void, but ratification seems possible after removal of the
impediment.
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Putative spouses (as in good faith, color of law) have some rights, but they cannot
totally trump other putative or legal spouses.
State v. Clements, South Dakota 2013: Because bigamous marriages are void,
defendant argued the marriage never occurred and that it was impossible to commit
the crime. The court held that it is the appearance, etc.
UTAH: VOID. But, putative spouses recognized.
H.
Incest
The further East you go, the more likely you will find states allowing closer degrees
of sanguinity, but generally, anything in four degrees of consanguinity is bad. You
can marry on the fifth degree. It will be void, unless the state where it happened
allows it. Full faith and credit allows marriages from other states unless the current
state has an extreme public policy against it.
In Mason v. Mason, the court declined to void the marriage because the state’s policy
was not insanely against first cousin marriages.
IRS looks to validity in place marriage happens.
Utah: Void
I.
Same-Sex Marriage Bans
Obergefell v. Kasich, Ohio 2013: Ohio law bars recognition of same-sex marriages,
even if enacted outside of estate. However, this court, moved by the sob story and
paying lip service to rational basis, legitimate state purposes, etc. prevents the state
from denying this particular marriage.
States will specify status of marriage and one man and one woman. Other states
declare they will not recognize anything but one man and one woman. Some give
legislature power to reserve marriage to opposite-sex couples.
Utah: Void
J.
Transgender Marriages
For purposes of determining whether a marriage is legit based on gender
requirements, states differ as to how gender is determined. Some go off their parts,
birth, chromosomes (most common?). The time of testing is at time of marriage.
M.T. v. J.T., New Jersey 1976, appeared to go off the body parts at time of marriage
and made the husband who paid for the sex-change amenable to alimony.
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K.
Constitutional Issues
1.
Race Restrictions
Loving v. Virginia, U.S. 1967: As per Korematsu, racial classifications get
heightened scrutiny. Here, the Court could find no permissible state
objective to prohibit white people from being in interracial marriages.
Virginia’s excuses failed especially because only white people were prohibited
from participating in interracial marriages. The court further noted that the
right to marry and pursue happiness was a right.
Same-sex marriage advocates rely on this case. Wardle claims it is
distinguishable because it was based on race. This might be arguable, seeing
as the Fourteenth Amendment was based on race.
2.
Marriage and Substantive Due Process
Zablocki v. Redhail, U.S. 1978: Wisconsin prohibited persons subject to child
support orders from getting married until they prove to a court that they are
current. Somebody who was not current challenged this. Loving mentioned
SDP, even though it could have stuck to EPC. Marriage is a fundamental
right. Reasonable regulations that do not interfere with decisions to marry are
allowable. This law burdens people. The state’s interest is okay, but tailoring
is bad. There are other ways. Moreover, a marriage might help make the guy
current.
3.
Polygamy
Potter v. Murray City, D. Utah 1984: Cop fired for not being law-abiding.
Compelling interest is what controls, here. Case seems to focus on the
positives of monogamy rather than negatives of polygamy. Basically just says
the weight is against him.
4.
Same-Sex Marriage
Hernandez v. Robles, New York 2006: Can a rational legislature give benefits
to an opposite-sex couple but not a same-sex couple? Man and woman can
give stability. We also buy the studies that support a need for a mother and a
father. Even if you were to get to DPC, everybody can marry. This is not an
intrusion into the home, though inquiring why a couple is not having
children would be.
Dissent: DPC allows you to marry person of your choice. Should not be so
narrow in looking at rights. Protect the minority. Marriage has evolved to get
rid of coverture. Is there a legit reason to exclude same-sex couples?
Homosexuality is suspect class because of past discrimination. Loving does
not buy ability to marry who you are allowed to marry.
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DOMA was killed on federalism basis.
5.
L.
Minors
Moe v. Dinkins: Mother refused to consent to daughter’s marriage because
of welfare check. Daughter was moved in with guy and had baby on the way.
State can interfere with minors because of their status. States have interests
to protect immature minors. The right is not forever barred. The age
criterion for measuring maturity is reasonable enough.
Marriage Formalities
1.
Licensing & Solemnization
Licensing allows the state to ensure you are following regulations, keep
records, etc. Failure to follow the rules will render marriage voidable or void.
Marriage was informal until things started getting regulated in the thirteenth
century.
Violation of licensing may not usually affect validity of marriage, but may
result in fines or imprisonment.
Solemnization, once a European thing only, is now the rule in the United
States. Laws regulate who may perform the ceremony, the form of the
ceremony, and the physical presence of the parties. One-third of the states
allow proxy marriages.
Yaghoubinejad v. Haghighi, New Jersey 2006: Sketchy marriage. Legislature
requires a license and has abolished common law marriage. No license,
absolutely no marriage.
2.
Common Law Marriage
In Utah, you need 1) present tense language/mutually assume marriage
rights, duties, and obligations, 2) hold out to public, and 3) cohabitation. Idea
was to target welfare fraud. For a putative spouse, you need actual
solemnization and a good faith belief in the validity of the marriage (duty to
inquire can arise at some point). Putative spouse might get half of life
insurance.
Basically, historically, present tense and carnal knowledge. Sometimes carnal
knowledge would be used to establish a marriage with a teenage love to
invalidate a marriage. Fleet Street was cheap until Lord Hardwicke’s Act.
Then, Gretna Green was popular because Parliament did not have power in
Scotland. Government began to clamp down and kill common law marriage.
Presently, even jurisdictions that allow common law marriage view it with
disfavor.
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Etienne v. DKM Enterprises, Cal. App. 1982: Wife is trying to claim an
insurance share, but needs to establish marriage. They kind of visited Texas, a
common law marriage state. Court declined to recognize marriage. Need
more than a sojourn, but less than domicile. Recreation or business is not
sufficient. Here, they were pretty much on vacation.
Common law marriage can be legitimated after impediments disappear.
You can also argue that even without cohabitation, it looked enough like a
marriage—the example of the Vietnam (or Korean?) War guy, where wife
completely behaved like wife.
California Rule for Determining Which Wife is Legal:
 Presumption for second marriage
 First wife has burden to prove validity, based on records of
jurisdiction where she and husband have been domiciled
 Then, it is the second wife’s burden to prove first marriage is invalid
or not existing
Whyte v. Blair, Utah 1994: Statute requires the elements of common law
marriage. Statute requires that court recognize during marriage or within 1
year of relationship ending. Court can recognize that marriage existed at time,
even if it does not now exist. Dissent says that common law gives a lot of
ambiguities, it goes against trend, and allows people to be tainted by what
they want the outcome to be.
3.
Covenant Marriage
Louisiana, Arizona, and Arkansas enacted covenant marriage laws, which
required counseling before marriage and limited divorce options. The
movement has pretty much lost steam.
4.
Attempted Marriage/Quasi Marriage
Some people cohabitate, but try to avoid marriage, or cannot marry because
of various laws. Sometimes they discover their marriage is no good after
death, and need surviving spouse status. Putative spouse or estoppel usually
the way out of this situation.
Wilds Bascot, Louisana 1987: Holographic will gave a same-sex partner an
inheritance. But a concubine law limits the inheritance of people who look
like marriage so as to protect legal marriages. If same-sex marriage is not
legal, however, you cannot have a same-sex partnership looking like marriage.
The court ruled that way, even though the same-sex partner pretty much was
all that.
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5.
Choice of Law
Generally, American jurisdictions have laws giving effect to marriages that
are valid elsewhere, unless there is a strong policy prohibition against the type
of marriage. There are also laws about people who deliberately try to evade
marriage laws.
Restatement: 1) Figure out what the local jurisdiction says about choice of
law in its statutes. 2) Figuring out the validity is dependent upon the local
jurisdiction’s choice of law, AND generally, it will be valid if was valid where
happened unless public policy prohibits. 3) Foreign marriages the same as
domestic marriages as far as incidents go.
American Airlines, Florida 2000: The guy tried to claim status as common
law husband even though he and decedent never participated in a formal,
civil, or religious marriage ceremony. They had a Colombian civil union of
sorts. Essentially, the court determined that even in Colombia, this civil
union did not rise to the status of a marriage.
Following categories of restrictions would be helpful to determine if
something looks like a foreign marriage: 1) Consanguinity, 2) age, 3) mental
or physical competence, 4) voluntary consent, 5) gender-integration, 6)
monogamy.
6.
III.
Comparative Marriage Regulation
There is a difference between formalities and essentials. Formalities are
common law marriage, solemnization, etc. Essentials are stuff like minors,
incest, etc. It is easier to justify foreign formalities. For essentials, they will
also follow place of celebration, unless evasion or public policy is involved.
Legal Regulation of Parentage Creation
A.
Parental Rights with No Marriage
The key to a father having rights is that biology guarantees an opportunity, but if the
father neglects the opportunity, he will lose out.
Stanley: It is unconstitutional to completely deny non-marital fathers their rights. The
man gets a hearing at the very least.
Quilloin v. Walcott, U.S. 1978: Non-marital father wanted to block adoption of child
by the mother’s husband. Father did not legitimate his child, did not consistently
provide financial support, contact with child was disruptive or not there. Thus, court
concluded he did not have power to block adoption.
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Caban v. Mohammed, U.S. 1979: Father blocking adoption of children by mother’s
current husband. State law blocked adoptions without mother’s signature, but gave
nothing similar to father’s. This was unconstitutional.
Lehr v. Robertson, U.S. 1983: Child was up for adoption. Father found this out at
the same time he filed for parent rights. Court ignored him and signed off on
adoption. A father gains substantial protection under due process if he demonstrates
full commitment to the responsibilities of parenthood by coming forward, etc. Court
was not convinced he did this. As for EPC, if one parent has established a
relationship and the other has not, the state can accord unequal rights to them. In
sum, if father does nothing, he has no remedy. Mother practically wins automatically.
Ignorance of the putative father registry is not an excuse for fathers.
B.
Non-Marital Children Born in a Marriage
Michael H. v. Gerald D., U.S. 1989: The mother was married to some guy, and she
was extremely adulterous. The neighbor became the father of one of her children
and even lived and established a relationship with the child from time to time. The
husband also held the child out as his own and continued the marriage. California
requires challenges to paternity to be mounted within two years. Otherwise, the
husband is considered the father. The biological father is claiming that he has
established his rights as a parent as per Lehr. Scalia and the plurality come back and
say that there are no fundamental rights for a father when there is a husband.
Stevens, the concurring vote, says that such relationships should be protected, but
that California gave sufficient opportunity to the father. He was basically balancing
DPC and EPC. The dissenters say that the rights should not be interpreted so
narrowly.
C.
Legitimacy
States often have regulations about how and when children may be legitimated—to
take intestate, for example. Such laws need to meet the EPC, but the state has
interests to make things orderly and protect against fraudsters.
In Lalli, New York required legitimation before death of the father. The U.S. upheld
that law because it was entirely possible for legitimation to occur, and there was a
state interest. The dissent argued that this still hurt a lot of people, because
practically, where the father is willing to legitimate, you often do not need to bring a
case for the immediate benefits. Previously, the Court had struck an Illinois law that
required acknowledgment and marriage to the mother as being unreasonable,
impossible.
D.
Parentage/Parental Responsibilities
Parentage can determine liability for parental responsibility. Law presumes that the
husband is the father. Presumption of paternity can only be overcome by clear and
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convincing evidence. Testing is pretty much the only thing that wins. To get there,
you have reasonable possibility that parentage is in doubt. Once that happens, only
good cause can prevent testing because the presumption is in favor of testing. Good
cause? 1) Length of time between proceeding and the father suspecting. 2) Length of
time presumed father has been acting. 3) Facts surrounding discovery. 4) and 5)
Nature of relationship between child and competing fathers. 6) Age of child. 7)
Degree of physical, mental, and emotional harm that may result to child. 8) How
much time has made it difficult to find a real father and get child support. 9)
Whether child wonders. 10) Child’s interest. 11) Other factors.
In D.W. v. R.W., New Jersey 2012: Presumed father and child hated each other, and
child was pretty much an adult. Child was on good terms with biological father.
Court thought it idiotic, but had to let testing happen.
Utah: J.W.F. in 1990: Mother abandoned child in Utah. Husband tried to claim child.
State challenged legitimacy. Court ruled it was okay to challenge legitimacy and said
that deciding who to allow that to is a case-by-case issue. Here, there were crimes
involved.
Also in Utah, Pearson 2006: Biological father ignored information for a while, but
intervened when mother got divorced. Court kicked him out, essentially saying he
does not get more rights than a father who did not assert parental rights and lost to
adoption.
E.
Surrogacy
Of interest, in the United States, new stuff is okay until banned and in Europe not
okay until made okay.
Baby M, New Jersey: Couple really wanted a baby. Surrogate mother was
impregnated with husband’s sperm. She basically tried to run with the baby and
claim that it was hers. Couple claimed contract. Court voided contract—said it was
too much like baby selling, which was extremely illegal. Also took a paternalistic
policy view. Ultimately, gave surrogate mother the rights, but had trial court decide
custody between surrogate mother and father based on best interests of the child.
Johnson v. Calvert, California 1993: Surrogate mother carried child where the couple
were the biological parents. Dispute ensued. Based on definitions of Uniform
Parentage Act, both birth and blood relation can establish motherhood. Here, both
surrogate and the contracting mother could claim one of those. Court concludes that
when those are in dispute, the issue should be who intended to bring forth the
child—basically a but for intention sort of thing. Court declines to get involved in
policy or empirical evidence. Also ignores DPC because it is zero sum—both can
claim they have some sort of right. Dissent? California allows only one mother (now
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different based on a recent statute), so a decision has to be made and best interest
seems good.
Various state statutes dictate that agreements are okay or are prohibited or whatever.
F.
Dual Parenthood
It should be noted that California has passed legislation saying that a child can have
more than two parents.
Elisa B v. Superior Court, California 2005: Lesbians got impregnated from sperm
bank. They were totally enmeshed in lives. Court noted that biology does not
preclude if you’re playing with assisted reproductive technology and taking on
responsibilities. Conduct and co-parenting combined with no father in the equation
made it allowable to stick it to the lady who tried to run off. Conduct and coparenting were key. This was based on precedent that a guy won rights based on his
conduct and co-parenting.
Japan and Germany have interesting views about dual parents, especially where one
of the alleged parents is a foreigner. Basically, they often will recognize only one
parent.
G.
Disposition of Frozen Embryos
There are three approaches for resolving an embryo dispute. 1) Contractual
approach. 2) Contemporaneous mutual consent. 3) Balancing test. The court in
Witten, Iowa 2003, did not like sticking it to somebody in a contract on such a
sensitive area. Nor did it want to be balancing a test and making a decision. So, it
went with the idea that the contract is default, but each action to move out of status
quo requires contemporaneous consent. Any expense to keep the status quo goes to
the person insisting on keeping it that way.
H.
Adoption
Romans viewed adoption as baby selling or as preventing extinction of family lines.
For an adoption to occur, somebody’s parental rights will have to be terminated.
1.
Voluntary Termination
Parent can go through highly formal process, which is overturned only for
extreme duress, coercion, or fraud. A person can give up rights to a
government agency or waive parental rights. Statutes may also dictate when
revocation of this is allowable.
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2.
Involuntary Termination
This happens where the father will not give up a child the mother has placed
for adoption or where the mother wants to make the stepfather the father.
Also seen in foster care situations where parents will not give up.
Fathers that have established an actual/de facto parental relationship are
entitled to procedural protections such as notice and opportunity to be
heard. See Stanley and Caban. But, when a father has failed to establish or
has ceased to maintain a parental relationship for a substantial period of time,
they require less procedural protection.
Quilloin, U.S. 1978: Guy did not legitimate, etc. Support was intermittent.
DPC and EPC could not do anything for this guy. He had not really
established rights. As for EPC, he was not being denied anything because he
had never had rights. Court can conclude that adoption and denial of
legitimation are in best interest of child.
Also, Lehr again. Basically, father did not use putative father registry. Never
established rights. No DPC. And if no rights, no EPC.
For adoption, courts are going to be more willing to broadly interpret
grounds to terminate parental rights. Federal statutes grease the skids to get
children out of the foster system. For instance, they make the rehabilitation
time of parents shorter.
In summary: State law concerning adoption or termination of parental rights
will involve an interest to help the child. If the biological father never uses
opportunity to achieve substantial rights, he has no rights under DPC and
those rights cannot be subject of EPC claim. Thus, state statutes that go
toward terminating any rights are not interfering with substantial rights or
denying equal protection. And, even if there are rights involved, DPC can
only go so far to help these parents out.
Policy? Want to help children. Need to make it easy to get children into good
homes. But we do not want to be screwing over fathers too much.
Utah: B.B.D 1999: Woman went to Utah to give up child to family. Father
did not properly file any notices or claims in Utah before filing of adoption
petition. Thus, he lost.
Utah: Swayne v. LDS SS 1990: LDS SS is a government actor when it is
effectuating termination of father’s rights. But, the law was constitutional
when applied to the situation—basically, the guy had reasonable time to
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assert rights—three days. If the mother had sneaked, perhaps reasonable
time would be different.
Utah, State ex rel. W.A., 2002: Child’s presence in Utah, Utah’s interest in
child, the Pennoyer v. Neff status exception of personal jurisdiction, make it
legitimate for Utah to terminate a mother’s parental rights even though
mother never stepped foot in Utah.
3.
Placement of Children
All sorts of people get to give their opinions. Private and public agencies
handle placement. They can place people anonymously or not. Anonymous
requires good cause shown to reveal—like medical needs. International and
domestic adoptions happen, as well as different age children.
In Utah, E.H. v. R.C and S.C. 2006 allowed a mother who had relinquished
rights to testify in best interest of child hearing.
The state must be in a neutral place when it comes to religion and adoptions.
Agencies placing children are often viewed as government actors. Basically,
there is an establishment clause issue. Free exercise can push the other way.
It is permissible to allow matching the religious of birth and adoptive
parents, or allowing birth parents to specify a preference. This was what
happened with Dr. Scott v. Family Ministries, the agency that got the
Cambodians and restricted who could have the children.
Racial preference for adoptions is a hot topic. Adoption agencies cannot use
race as the main factor. As for homosexuals, equal protection and rational
basis/tailoring will be involved.
4.
Legal Consequences of Adoption
Generally, adoption is equal to normal parentage in the eyes of the law. Some
legal language can cause trouble—for instance, “heirs of my body.”
Questions of full faith and credit, finality, visitation rights of grandparents,
etc. can come up. Adoption is not really found in the common law. Courts
follow statutes strictly and do not really try to get into equitable matters.
Promise Doe v. Sundquist, Tennessee 1999: A new law specified conditions
for adopted children to get their hands on adoption records. Former birth
mothers sued claiming the statute in its retroactive effect violated vested
rights and state constitutional privacy rights. The court concluded that there
never was a complete guarantee, so no right of total secrecy had vested. And,
privacy rights were not violated because there were limits as to who could get
the information.
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5.
International and Interstate Adoption
Home country has to terminate parental rights, approve placement and grant
of rights, approve emigration, and then home country has to approve
immigration. Then, parents might need to establish status with state. The
Hague Convention has put a whole bunch of bureaucracy into the situation
and has contributed to a decline in adoptions.
6.
Indian Child Welfare Act
This ensures that states cannot make off with Indian children. The tribe has
jurisdiction in most cases.
Mississippi Band of Choctaw v. Holyfield: ICWA applies to children
domiciled on Indian reservation. Children are domiciled with parents. Thus,
tribe had jurisdiction.
Adoptive Couple v. Baby Girl: Justice Alito gives a very literal reading in case
where father was only very partially Indian and raised objections too late,
although mother did sketchy stuff. To adopt, must show that continued
custody will result in serious harm. Here, no custody in the first place. To
adopt, must show efforts have been made to prevent breakup of family.
Here, no family. Preference to Indian adopters? There were no candidates.
Dissent said that this was hollow liberalism. Father was not going to provide
support anyway.
Utah: Aunt took child off reservation, initiated adoption. Mother consented,
but changed her mind. Lots of arguments. Here, it is clear that the mother
was domiciled on reservation, child has mother’s domicile, thus the tribe had
jurisdiction.
I.
Preventing Parentage
1.
Contraception
Griswold, U.S. 1965: Douglas: Penumbras—zone of right of privacy created
by the various constitutional guarantees. State cannot intrude into the marital
bedroom. Basically, DPC.
Eisenstadt v. Baird, U.S 1972: State’s supposed interests of deterring sex and
protecting people from bad products are not being furthered by the statute.
Moreover, DPC and EPC violated by denying single people contraceptives.
Basically, EPC.
Lawrence was based on privacy and due process liberty interests.
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2.
Abortion
Under common law, it was illegal after quickening of fetus. Under statutes,
was originally very strictly prohibited, but the statutes were beginning to
loosen up when the cases came along that blew it wide open.
Roe v. Wade, U.S. 1973: Blackmun: Right of personal privacy, as part of the
penumbra, includes the abortion decision. But, this right is not unqualified
and must be considered against important state interests in regulation. State
can protect health of woman and potentiality of life, basically after first and
second trimesters, respectively. Unborn are not persons under definitions of
Constitution (neither are minors, apparently). Also dragging feet on admitting
that there is life or potential of life, because then, you say that you value
different forms of life more or less.
Planned Parenthood v. Casey, U.S. 1992: Before viability, state has no
interests except for health of the woman. State can restrict after viability if it
allows for medical emergencies. However, state cannot put a substantial
obstacle on the right of the woman to choose. State can express a profound
respect for life.
Informed consent is not a burden. Undue burden to require spouse
notification. Record keeping is not an undue burden. Waiting period not a
burden. Parental consent okay? As long as judge can give okay, and judges
do.
Gonzales v. Carhart, U.S. 2007: State can express its opinion. Cannot
impinge on right to choose. Statute prohibiting one method is not void for
vagueness. Interest in preventing desensitization is legit.
IV.
Legal Regulation of Ongoing Spousal Relations
A.
Marital Status/Financial Incidents
Status is the legal identity, role, state, condition, standing social position, class and
honor that result from being married. Incidents are the rights, privileges, immunities,
duties, and limitations.
Sometimes, spouses are treated as separate property owners and other time, they are
treated as joint partners.
Discrimination based on marital status is an issue that arises sometimes. Antinepotism statutes can be something like that.
Prince George’s County v. Greenbelt Homes, Maryland 1981: Lower courts took a
broad view to family in face of requirements that only person and immediate family
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could reside in a place. While each separately had a marital status, collectively, they
did not. So, it wasn’t really discrimination based on what the status was. it wasn’t
discrimination based on status.
With Supreme Court Cases, the assumption of joint ownership and mutual
responsibility underlies most decisions, even in post-modern era.
Bennis v. Michigan, U.S. 1996: Husband and wife lose car because of husband’s act
of gross indecency in car.
Egelhoff v. Egelhoff: ERISA rules about marriage incidents overrule state rules.
Basically, a beneficiary designation.
Boggs v. Boggs: ERISA preempts rules.
B.
Marital Property Regimes
Coverture once was the main rule.
Common law puts property into one person’s hands. Gradually, women got more
equal rights in this. The marital property distinction arises in divorce. Tenancies in
the entirety require consent of both spouse or ending of marriage to sever.
Community property is the system in states influenced by Spain or France. Nine
states. Community property is split at divorce. Spouses keep separate property.
Kirchberg v. Feenstra, U.S. 1981: Louisiana’s now superseded law saying that
husbands controlled joint property is overruled because of EPC. State’s claim that
somebody has to be in charge and that wife could take steps to prevent dirt bag from
giving property away is not sufficient.
Utah, Peterson v. Peterson 1977: Ex-wife was trying to get at funds in guy’s bank
account. He claims those were his new wife’s funds. You cannot whack the joint
tenant of your defendant if the defendant has no equitable interest in the account.
This has to be established by clear and convincing evidence and established by
person trying to stop garnish order. Dissent says that this is a gift, etc.
C.
Doctrine of Necessaries
Merchants can sue spouse responsible for providing support. Nowadays, it seems to
cut both ways and is more often than not used by hospitals to go after some grieving
widow/widower for the medical bills. Generally, the key is put people at their
accustomed standard of living. There are family expense statutes.
Sharpe Furniture, Wisconsin 1980: Wife bought couch. Husband had informed
credit bureau that he would not be responsible for her. Wife did not assert that
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husband would be responsible. There was a reasonable inference of need. Item was
reasonable and proper. Husband was put on line.
Washington v. M’Lissa Clark, Washington 1977: Between mistrial and trial, wife
married husband who had some assets. She tried to claim the state should foot bill
for lawyer. Expense is not antenuptial. Guy needs to provide for spouse. Putting a
member of the family in jail is not up to accustomed standard of living.
Policy: basis of doctrine was that wives provide consortium. That is difficult to
enforce. Having a wife working often is useful to the husband.
Marriage of Hirsch, Cal. App. 1989: Is wife on line for liability of husband in tort?
For negligence, yes. For intentional tort, no. Idea is that husband was doing
something that benefitted the “community property.” This applies to community
property states. With common law states, see statutes. Also consider that husband
controls joint property often.
In Utah, expenses of family are put jointly and severally on spouses.
D.
Medical Decision Making
Spouses are presumed to both know and care for each other and thus able to speak
for each other with respect to healthcare decision-making. Other family members
might have problems with that, though.
In re Schmidt, Illinois App. 1998: Lady was a vegetable. Husband and daughter were
both in favor of pulling the plug. Other family members were opposed and cast
aspersions onto the husband. The surrogacy act talked about list of people to look to
in making guardian-type decisions. As for appointing a guardian to make decisions,
court rejects rigid application of hierarchy in the surrogacy act, says that courts can
consider degree and quality of the relationship. Basically, here, we have a spouse that
law generally favors, nothing to indicate that relationship too bad, and a court that
made a decision. No abuse of discretion.
E.
Testimonial Privilege
Basically, the privilege that you can block the adverse testimony of a spouse that is
not confidential is gone. But, a spouse cannot be forced to testify. And, you can
block adverse testimony of spouse where there was a confidential communications
privilege.
Trammel, U.S. 1980: Lady made a plea deal and ratted on spouse. Spouse tried to
block. Above rule was applied. Idea that a wife is part of husband and thus cannot
testify against self is dead and baloney. This helps marital harmony—blocking a
spouse who wants to testify isn’t going to help harmony anyway and will hurt
government. Allowing spouse to decline preserves.
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As for states, it is up to the laws there.
Utah does no compel people to testify against spouse.
F.
Heart Balm Causes of Action
Some states have heart balms, some do not. Criminal conversation probably very
unpopular. Alienation of affections sometimes remains. IIED can be an option.
Sharp v. Roskelley, Utah 1991: Doctor started sleeping with employee. Husband
sued for alienation of affections and criminal conversation. Alienation of affections
remains after this case. Criminal conversation is abolished.
Shoemaker v. Management Recruiters, Oregon 1993: Wife was sexually harassed and
it led to a loss of consortium, which the husband sued for. The court concluded that
wife did suffer injury, and that loss of consortium remained and that husband could
get something out of it. It distinguished a case where wife was not injured.
Utah: Wife has claim for injuries, and husband can do a joinder for loss of
consortium.
Nelson v. Jacobsen, Utah 1983: Husband and wife were drunk, cheating, idiots.
Court retained loss of affections. Both spouses can sue. Griswold and Eisenstadt do
not apply because these are not government actors, zero sum game. Case: 1) Happily
married, genuine love and affection. 2) Destroyed. 3) Wrongful and malicious acts of
defendant produced and brought about the loss and alienation of such love and
affection. Does not need to be sole cause. Needs to be controlling cause, which is
outweighing the combined effect of other causes. Trier of fact should consider
duration to calculate value lost.
Norton v. MacFarlane, Utah 1991: Nelson is still good law. Another case refused to
recognize the non-physically injured spouse’s claim.
Heiner v. Simpson, Utah 2001: Can bring IIED and NIED with alienation of
affections. Separate torts.
G.
Spouse Abuse
1.
Married People
Common law was unhelpful with domestic violence. Courts required
exception, extraordinary circumstances. In State v. Rhodes, North Carolina
1868, the court declined to get involved. Said that interfering in family unit
was greater evil than some of the bad stuff. Basically, court was claiming lack
of jurisdiction.
People v. Liberta, New York 1984: Couple was separated with protective
orders. Wife was lured to hotel, raped, etc. Guy claimed spousal exception to
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rape. Court concluded that spousal exception did not apply with a separation
order, and then abolished spousal exception.
2.
Protective Orders
These can contain prohibitions, property, etc. Effective on service, etc.
Mitchell, Mass Apt. Ct. 2005: Vacating protective order was not proper
where husband used evidence of obeying protective order and where
husband presented new evidence. As a general principal, judgments are final
and you cannot vacate an order with supposed new evidence unless it was
unavailable at time of hearing. Domestic orders based on rule that
substantial, or material and substantial change of circumstances can change
things. For continuing order or not, discretion is broad. But the more likely
the party may be put at relief, the more substantial the showing. Court
reversed, made it so that order could be continued as if it had not been
vacated.
Utah: Lawyer can tell client to get the protective order pro se.
3.
V.
Non-Marital Violence
Much higher than marriage abuse. Carswell, Ohio 2007: It involved a law that
called stuff domestic violence if it happened with people living as a spouse.
The argument was that it was unconstitutional because Ohio says that you
cannot give marital status to unmarried or whatever. This ruled that it wasn’t
giving marital status but was just broadly defining the crime.
Legal Regulation of Ongoing Parent-Child Relations
A.
Emancipation
Children want/need rights, but the state is properly concerned about their capacity.
Children cannot direct their own upbringing, cannot make contracts, cannot manage
their earnings or finances, and, among other things, cannot generally be free from
their parents’ authority. Emancipation provides a child, on the one hand, the rights
and responsibilities of an adult—i.e., the right to contract with third parties, the right
to sue and be sued, and the right to consent to one’s own medical treatment. On the
other hand, emancipation provides a parent, freedom from “the care, custody and
earnings of a child.”
Emancipation and the age of majority are not always the same. Age of majority can
be a factor in emancipating. Alcohol, cigarettes, voting, armed forces, marriages kick
in at different ages. On the flip side, some juveniles get tried as adults.
In re Marriage of George, Kansas 1999: Daughter had her own child, quite school,
so father claimed he was not responsible for child support. Court reasoned she was
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still living with mother, dependent, and under parental control. Thus, not
emancipated.
Emancipation by common law occurs by an act of a parent or child without any
judicial determination. The acts by which a child is emancipated include military
service, marriage, and agreement between the parent and child,
The acts by which a child is not emancipated include: incarceration of the child, child
birth, changing the child’s surname, and temporary employment and abstention from
school.
Emancipation by operation of law may include but are not limited to when either the
child’s conduct is “inconsistent with subjection to control by his parent,” when a
child reaches the age of majority, or when it is in the best interests of the child.
Unemancipation: Courts are split in determining whether a child who marries and
becomes emancipated can then become unemancipated when the child divorces
before the age of majority.
In Utah: The period of minority extends in males and females to the age of eighteen
years; but all minors obtain their majority by marriage. It is further provided that
courts in divorce actions may order support to age 21.
In R. R. v. C. R. or whatever, Utah adopted emancipation common law, but statutes
can dictate that parents cannot escape support or something else. The state had to
deal with delinquents, and the state tried to bill the parents. Parents said that the
respective children had emancipated when they left.
B.
Child Liability
Generally, minors are held liable for their own actions if done intentionally or
negligently, and children between age seven and age fourteen are deemed
presumptively incapable (but that presumption can be overcome). At fourteen courts
begin to consider liability.
A child may be held to an individualized and subjective standard of care in tort
instead of being held to a reasonable person standard. Rather than being held to a
standard of care applied to all children generally, children are expected to conduct
themselves at a level of care for a child of their age, and capabilities based on
intelligence and experience.
Horton v. Hinley, GA 1992: Somebody got lit on fire or whatever. Precedent/statute
made 13 and under immune. Court did not want to depart from that.
Utah: Statutes dictate liability—generally makes parents liable up to a certain amount.
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C.
Juvenile Courts
Juvenile offenders were treated the same as adult offenders through the nineteenth
century. The only protection afforded to juvenile offenders was the infancy defense,
which allowed a court to excuse a juvenile for his behavior when he showed his
personality or maturity did not allow him to fully understand the extent of his
actions.
By the early twentieth century, Illinois had created the first state-wide juvenile court
system. This system allowed juvenile offenders to be rehabilitated by providing the
juvenile with services to promote his welfare and by imposing non-punitive
dispositions. Soon thereafter, every state had its own juvenile justice system.
Until the 1960s, the juvenile courts were essentially unsupervised and unchecked,
and juvenile offenders did not have the rights they would have had if they had been
in adult criminal court. In Gault, the Supreme Court ruled that the juvenile system
had failed to achieve its goal of rehabilitation by imposing punitive dispositions.
More importantly, the Court held the juveniles are entitled to procedural due process
standards and the fair treatment afforded to adults in criminal court. These
entitlements meant juvenile offenders are required to receive notice of charges;
notice is given to both parents; and juveniles have the right to counsel, the
opportunity for confrontation and cross-examination in court, and protections
against self-incrimination.
For the next decade, the Supreme Court continued to define the juvenile courts’
parameters. First, in In re Winship, 397 U.S. 358 (1970), the Court extended the
reasonable doubt standard of proof to the juvenile courts.
However, in McKeiver v. Pennsylvania, 403 U.S. 528 (1971), the Court declined to
extend the right to jury trials to the juvenile courts, continuing to allow the judge to
be both the trier of fact and adjudicator of the law.
Next, in Breed v. Jones, 421 U.S. 519 (1975), the Court extended the Double
Jeopardy Clause to juveniles who had been tried in juvenile court, making no
allowance for a retrying in adult criminal court.
Today, the juvenile justice system continues to hear cases regarding children in need
of supervision as well as children in need of aid. Of great concern for children and
practitioners is the ability of the juvenile court to waive jurisdiction and allow a case
to be brought in adult criminal court.
Walker v. State, Arkansas 1992: Kid had a racially-motivated accidental killing.
Because of nature of charge, he was tried as adult, but was convicted of something
ultimately that the juvenile court could have heard. Court concluded that once the
adult court had jurisdiction, it could do whatever. Prosecutors won’t go nuts, they
have responsibilities.
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Dangerous to have judges with too much discretion and too overburdened. Smaller
juries are possible. On the other hand, it is a pain to have to have juries for all the
juvenile cases.
Court has ruled that death and complete life sentences are not constitutional for
minors.
Juvenile courts are often not courts of record.
D.
Abuse and Neglect
The right of parents to direct the upbringing of their children has been recognized by
the Supreme Court in many instances. However, reasonable state interference is
permitted when “the moral, emotional, mental, and physical welfare of the minor” is
at issue. Stanley v. Illinois, 405 U.S. 645, 652, 92 S. Ct. 1208, 1213 (1972).
The legislatures have codified states’ parens patriae power by imposing limitations on
removal of abused or neglected children. Statutes for abuse and neglect include
mandatory reporting statutes, social services statutes, criminal statutes, and child
protective statutes. For a state to intervene, it must balance its parens patriae power
with the rights of the parents.
DeShaney v. Winnebago County DSS, 489 U.S. 189 (1989): Basically, the state knew
problems were happening, but just did not do a whole lot other than record. The
Court concludes that 14th Amendment protects from government action, does not
make government liable for acts of private parties.
E.
Constitutional Parental Rights
Meyer, Nebraska 1923: DPC affords that teacher has right to make living and parents
have right to educate children, etc. Thus, strict scrutiny. War is over. No acceptable
interest to say that having children cultured in German is bad. Moreover, this puts
limits on some, not others, as far as opportunities, effect.
Pierce v. Society of Sisters: Oregon compelled education in the public schools. This
puts private schools out of business, prevents parents from sending children to
private religious school. Based on Meyer, we’re not seeing good reasons, etc. Court
expressed some hesitation about giving a corporation a right.
In re J. P., 648 P.2d 1364 (Utah, 1982), holding that a Utah law which provided for
termination of parental rights upon a mere showing of best interests of the child
(instead of parental unfitness) was unconstitutional.
F.
Limits on Parental Rights
Generally, parents are deemed the lawful guardians of their children and are entitled
to control, train, direct, and speak for their children. This guardianship relationship is
grounded in the reality that children are born completely incompetent and
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dependent, and mature in a slow process over the course of many years. Parental
rights are not without limit.
Prince, U.S. 1944: JWs are passing out stuff. Child wanted to pass stuff out. It was
illegal for children to be selling/passing stuff out like that. Parental control of
conduct and religious stuff of children does not allow children to be violating laws
that the state has made for child labor or child welfare. State has found a unilateral
ban to be necessary. Child does not have quite the same religious rights as adults,
too. Thus, the conviction stands. We acknowledge that parents have first place to
deal with children, but the government also has an interest.
G.
Religion and Children’s Rights
Yoder, 1972: Are Amish compelled to send children to school? State has compelling
interest for mandatory education, but that has to be balanced against other rights,
like religious rights. Court rejected idea that state can regulate actions, not beliefs.
Also rejected fact that law is generally applicable. State’s compelling interest was not
going to make a difference here other than destroying the religion. The Amish would
be destroyed by this. Court does not touch whether child has right to claim
education against parents. This is very limited to the Amish.
H.
Children’s Interests and Rights
Minors and organizations anxious for minors to become liberated from the restraint
of their parents, have urged that minors enjoy certain personal rights which they may
exercise without parental permission, and even against outright parental oppositions.
In the past four decades children’s rights have achieved unprecedented recognition,
particularly in courts. A parent’s right is “a dwindling right which the courts will
hesitate to enforce against the wishes of the children, the older he is.”
The best interest standard spread internationally during the twentieth century,
universally promulgated through the United Nations Convention on the Rights of
the Child (CRC), a triumph of a unique concept to protect children adopted by a
global community of persons concerned for children’s welfare creating a new area of
children’s rights.
U.S. has not signed onto the international children’s rights thing.
One state high court has ruled that constitutionally a child has a protected liberty
interest in establishing a relationship with and knowing both of his or her parents.
See L.F. v. Mason v. Breit, 736 S.E. 2d 711 (2013). The Court in L.F. v. Mason v.
Breit found a constitutionally protected liberty interest for a child in a relationship
with both of her unmarried parents, and that a child cannot be deprived of either
parent based on a custodial parent’s assertions. This case is significant because it is
the first time any court has recognized such a liberty interest for children.
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I.
Medical Rights
As per Prince, the state may intervene to protect children from being harmed by
parental decisions. Medical treatment and physical discipline tend to be two
important areas of such intervention, and areas that bring forth constitutional
implications. Parent’s wishes cannot be overriding practitioners or other people
involved.
State v. McKown, Minnesota 1991: Some Christian Scientists managed to kill their
kid who needed insulin. Somehow, they got off from criminal charges, but natural
father sued mother, stepfather, nurse, doctor, local religious representative, church
headquarters. Punitive damages were disallowed. Court goes through duty of care,
standard of care, analysis, etc. Basically, only those close enough to the situation had
a duty of care. Standard of care was basically the religious one, but when a children
are involved, at some point the parent has to yield on certain religious beliefs. With
matters of health/conduct, people have to yield. This is like Prince.
Many states have modified parental rights where mature minors are involved, and
many state have codified the common law rule that mature minors may consent to
treatment for non-emergency treatment although some states have not adopted that
common law rule. All states allow minors of a certain age, which varies by state, to
consent to treatment for sexually transmitted disease, drug abuse, and alcohol
treatment. For abortion and contraceptive decision, the Supreme Court of the United
States has held that a state may not prohibit the distribution of contraceptives to
minors (see Carey v. Population Services, 431 U.S. 678 (1977), although Casey allows
states to limit abortion to minors with parental notification or parental consent laws
that do not present an undue burden on the abortion right (see chapter 9).
The bright line to qualify a minor as a mature minor is obscured, possibly by gender,
possibly by the subjective nature of judging a child’s maturity. The case of Virginia v.
Cherrix highlights that lack of clarity in the mature minor being part of his or her
own personal medical decision making. When 16-year-old Abraham Cherrix was
battling Hodgkin’s disease his parents were taken to court for medical neglect when
the teen refused a second round of chemotherapy after consultation with his parents.
After several hearings where his doctors objected to his refusal resulting in judicial
orders for forced chemotherapy, his parents lost custody of Abraham, though his
story was perceived from several media interviews of Abraham discussing his
research on non-chemical methods of battling cancer, his case was taken up by a
guardian ad litem who argued for his maturity in his own medical decision making.
The Virginia General Assembly passed a bill dubbed “Abraham’s Law,” giving
parents and children more leeway in refusing medical treatment. That law permits
parents or legal caregivers to refuse medical treatment for a child if they and the child
are in agreement, if the child is at least 14 years of age and of sufficient maturity, if
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they have considered all options, and they believe their decision is in the child’s best
interest. Governor Tim Kaine said upon his signing the bill that the measure “strikes
the appropriate balance between the rights of parents and a mature child to make
informed medical decisions, and the responsibility of the state to protect the health
and safety of children.”
J.
Child Support and Parent Support
While children are ‘persons’ in the eyes of the law from the moment of birth, and
can receive, hold, and convey property, their parents are considered to be their
natural legal guardians with the legal right and duty to manage such property interests
for the benefit of their children.
The law did not trust that persons younger than 21 years of age had the maturity,
judgment, and wisdom necessary to wisely manage their resources or to protect
themselves from being exploited and from wasting their resources.
Similarly, parents had the legal duty to support their children until they reached the
age of majority.
In the common law of England and America, as children became adults and as their
parents became less able to support themselves, the child who was able had a duty to
support his or her needy parents:
Today, twenty-nine states have filial support statutes on their books under which
financially capable adult children can be held responsible for the unpaid medical bills
of their indigent parents, including nursing home bills. The statutes are enforceable
even against the children of elderly individuals who have not planned for end-of-life
care and become eligible to rely upon Medicaid to fund long-term care expenses.
Step-parents, likewise, had a duty to support their step-children at common law,
based less on “natural affection” of biological ties and more on the reciprocal
obligations of husband and wife. Dissolves if marriage dissolves.
Today, unless there is a statute, stepparents are not liable for the support of
stepchildren unless the relationship of in loco parentis exists, or if contract or
equitable estoppel principles apply. Contract and equitable principles do not usually
arise until divorce of the parent and stepparent, and the parent wants to hold the
stepparent liable for post-divorce support of the stepchildren. The relationship of in
loco parentis arises when a stepparent voluntarily and intentionally takes the child
into his or her home and assumes the responsibility for the child.
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People in the Interest of S. P. B., (Colo. 1982): Father argues violation of DPC/EPC
where he has to pay child support when he offered to pay for abortion. Only the
woman can decide on the matter of pregnancy. Also, analysis of irrebuttable
presumption that father support children. Those do not stand unless it is true or
state has no other alternative. Here, there are interests and no good way to fulfill
while avoiding the presumption: The interest of the child in receiving adequate
support, the interest of the state in ensuring that children not become its wards, and
the interest of the parents in being free from governmental intrusion into the
intimate sphere of family life. Moreover, we don’t want people dodging child support
duties by offering abortion.
K.
Parental Liability and Immunity
Children cannot typically sue and be sued under contract law because children are
able to avoid contracts they have entered into (with some exceptions). The ability to
disaffirm a contract rests solely with the child, so parents cannot enforce, disaffirm,
or be liable for their children’s contracts. But what happens when a child’s acts cause
a tort? The parent-child relationship can create liability for the parent;
however, intentional torts require intent. Most states conclude that a child under the
age of seven cannot form intent and there is a rebuttable presumption that children
ages eight to fourteen cannot form the requisite intent. You can see how a plaintiff
could have a difficult burden of proving a child had intent to cause a tort. Case law
and state statutes have provided liability for parents when a parent has failed to
supervise the child and, under some circumstances, vicariously liable for the child’s
act.
Generally, state courts have held that, in the absence of a statute, the mere fact of
paternity is not sufficient to sustain an action at common law for parental liability
for the injury or damage intentionally inflicted by their children. At common law,
vicarious liability for the torts of a child can be imposed on a parent only
where there is an agency relationship, where the parents themselves are guilty
in the commission of the tort, or where a “child ha[d] a tendency to engage in
vicious conduct that might endanger a third party, and the child’s parents
[are] aware of such propensities.” Most states statutorily cap the amount of
damages recoverable from the child’s parents, with Texas allowing the most at
$15,000. Further, most states only allow recovery for a child’s willful or malicious
conduct.
Bryan v. Kitanora, (D. Haw. 1982): Juveniles stole car, tried to steal weapons,
injured some soldiers. Defendants claim that the statute unconstitutionally burdens
the family by imposing liability on parents without fault in a manner that violates the
due process and equal protection clauses of the 14th amendment of the United
States Constitution. With regard to DPC, the state is not interfering with some right
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of choice. Therefore, this is a non-fundamental right, if a right at all. Therefore,
rational basis—and the state has that. As for it being an irrebuttable presumption,
this merely kills one defense they might have. It kind of sucks because even the best
parent can have a crappy child, and then there are the non-custodial parents who are
still liable.
Lavin v. Jordon, (Tenn. 2000): Gangbanger son shot the pizza guy. Parents knew he
had a serious behavior problem and had guns. The state had statutes capping limits
on parental liability. Plaintiffs tried to bypass this, saying it created an independent
cause of action, but court rejects this and caps the limit.
1.
Family Members Suing Each Other
Formerly, there was intra-family immunity, but now people can sue each
other for physical injuries at least.
Burnette v. Wahl (Or. 1978): Child try to sue parents for crappy parenting—
psychological injuries. Court declines to recognize such an action.
L.
Uniform Transfers to Minors Act/Uniform Gifts to Minors Act
Basically sets it up so that parents can be the custodians of gifts to children and hold
on the behalf of children and possibly make payments. Donor can transfer to sew-insew as custodian of minor. It is kind of a quasi-trust.
Carlene S. Sutliff v. Gregory L. Sutliff, (Pa. 1987): Guy spent the custodial funds
belonging to children and claimed that it was child support. Court says that does not
count as his payments because of fiduciary duty, etc. Parents can be surcharged for
bad faith. Parents can use funds for children perhaps when the parent’s own funds
are inadequate, but cannot be using it for their obligations.
M.
Rights of Other People Who have Developed Relationships with Kids
The doctrine of family autonomy recognizes the rights of parents to direct the
upbringing of their children – to care for them, supervise and control them without
interference from the state or third parties – except in special circumstances of abuse
or neglect or abandonment. Family autonomy is recognized as part of the
fundamental right of family privacy. Parental rights are balanced by the parental duty
to provide what is best for a child. When unable to do so, a court must intervene to
provide for the best interests of the child.
Often, however, there are other persons who have developed close relationships
with a child. For example, extended family members, especially grandparents and
stepparents, may also be in a care giving role. But as you will see in this chapter,
courts and codes are beginning to open up parenthood in many ways, not necessarily
to abridge parental rights, but in efforts to provide for the best interest of children.
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1.
Grandparent Rights
The common law gives grandparents nothing, but nearly all states have
abrogated the common law, and granted visitation for grandparents under
specific circumstances.
Troxel v. Granville, 530 U.S. 57 (2000): This is a plurality opinion. Statute
giving anybody opportunity to petition for visitation and receive based on
best interest of child standard struck down for being overly broad and
interfering with fundamental parental rights. Parent presumably acts in best
interest of child unless proven unfit. Inference from this case is that you need
unfit parent or perhaps a parent that is gone, although in this case, the parent
was dead. Also, the parents were not married.
MOST STATUTES: Have a presumption that the parents know what they’re
doing that probably need clear and convincing to overcome. They look to
best interests of the child, for a pre-existing relationship. Usually, there has to
be some sort of disruption--illegitimate child, divorce, custody dispute. A
married couple’s parents cannot get to grandchildren often.
2.
Stepparents
“In most American states, there is a policy that encourages stepparents “to
be generous and loving with their stepchildren” without the deterrent of a
potential duty of support if the marriage breaks down. Consequently,
stepparents usually do not have an obligation to support stepchildren.” To
prevent a child from becoming a ward of the state, however, a few state
legislatures require stepparents to support stepchildren who live in their
household. Id. Courts might also make similar orders of stepparents.
During the marriage, stepparents may establish an “in loco parentis”
relationship with the stepchild by voluntarily and intentionally assuming the
role of a parent to the stepchild. During the marriage, some statutes have
imposed a child support obligation on stepparents or if the stepparent has
established an in loco parentis relationship. Traditionally, stepparents and
stepchildren have had no protected liberty interests in their relationship and
stepparents have been treated as third parties in custody cases. Some courts
have granted standing to stepparents in custody and visitation cases when the
marriage ends, especially if the stepparent has stood “in loco parentis” with
the stepchild.
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VI.
3.
Foster Families
Smith v. Org. of Foster Families, 431 U.S. 816 (1977): Foster families argue
they are being deprived under DPC/EPC by the procedures that determine
when children are removed to another home or sent to their biological
parents. Biology is important, though perhaps there is no other parents.
Should also be noted that foster relationships begin as contract with state.
Without holding there is a right, the court notes that DPC appears to have
been met. First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional *849 or
substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.”
4.
Non-Marital Partners
Elisa B. v. Superior Court of California, 117 P.3d 660 (Cal. 2005)
In the present action for child support filed by the El Dorado County
District Attorney, we conclude that a woman who agreed to raise children
with her lesbian partner, supported her partner’s artificial insemination using
an anonymous donor, and received the resulting twin children into her home
and held them out as her own, is the children’s parent under the Uniform
Parentage Act and has an obligation to support them.
Divorce and Whatnot
Historically, divorce was an Act of Parliament, and then Parliament and American
legislatures started making up statutes. They always required domicile of the parties, starting
with the man, and then extending as equality started catching on.
Historically, could get divorce from bed and board or divorce from bonds of matrimony.
One guy advised to get separation, get heart balm actions, and then go to Parliament.
A.
Jurisdiction
Alimony is in personam, property in rem, etc. The different elements of divorce will
have different jurisdiction requirements.
Some 1906 case (Haddock) says that wrongful abandonment means that the marital
domicile state still holds jurisdiction and does not have to honor a divorce the
abandoning spouse gets in some other state.
Williams I, 1942: Even if the original state is annoyed, if the other state had domicile
and whatnot (aka some Due Process stuff), then that divorce is valid and entitled to
Full Faith & Credit.
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Williams II, 1945: North Carolina is entitled to conclude that Nevada did not actually
have domicile, and thus, the divorce is invalid. Six weeks in a cheap motel did not
count. Black—this makes questions on thousands of uncontested divorce decrees.
Sherrer, 1948: Lady who moved to Florida, worked, etc. and then did shady divorce
and marriage and then returns back to Massachusetts has a valid divorce—especially
because the husband made an appearance in the Florida court and defended. Res
judicata. Not ex parte. It seems the res judicata was a really strong motivation, but it
seems to me the domicile establishment was a lot stronger. Claim that wife did not
have intent to remain permanently and thus no domicile pretty much fails, here. Main
holding is that you waive if you show up.
It is now pretty much universal that states have laws specifying that domicile gives
them jurisdiction, with some 90-day exceptions for military members. Courts will
often uphold if there is some significant connection.
If both parties appeared, they can be estopped from denying that the court had
jurisdiction.
Estin, 1948: Nevada cannot cancel an alimony judgment of New York by issuing a
new divorce. The creditor’s rights are accepted, etc.
Bustamante, Utah 1982: The lady was basically pulling the illegal immigrant on a
tourist visa shtick. That kind of makes domicile hard if you’ve made legal statements
that you intend to only stay temporarily in Utah. The court calls it what it is—intent
to stay permanently and says that the court has jurisdiction. Dissent claims that the
legal statements are meaningful, and that there are definitely questions of fact. The
court adopts the dual intent approach—intent to stay here forever, but then might
have to leave as per immigration.
B.
Procedure
States can do whatever they want with regard to divorce procedures.
Sosna, 1975: Iowa denied divorce where applicant had lived less than a year in the
state. State has absolute right. This is more than budgetary and recordkeeping
concerns. This is about making sure they are not a destination state, etc. And, the
denial of the right to marry is only temporary. Rational basis, practically. The rational
basis is what the dissent does not like so much. Does not violate rights to travel state
from state, etc. Total denial would be struck down.
Cloutier, 2003 Maine: The court ignored the mediation points after thinking about
them and then entered a decree the husband did not like so much (lost his house).
The high court says that the state courts have inherent authority over divorce
matters. This is not a civil matter where they could simply contract. Parental interests
were involved. Court had discretion and did not abuse it.
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C.
Fault Divorce
Loving made marriage fundamental, Zablocki made right to adjust support
fundamental, and Boddie held that you cannot block access to divorce by overly high
fees. Thus, divorce may be fundamental.
From no divorce allowed, the law gradually transformed into fault divorce. Adultery,
abandonment, abuse, total craziness.
Generally, most states are no-fault or would rather grant the divorce on the no-fault
ground. Moral turpitude can come into alimony sometimes. Often, child custody
becomes the forum where the parties try to get some order that points out that it was
the other person’s fault.
Watts v. Watts, 40 Va. App. 685 (2003): Plaintiff does not have to prove the adultery
beyond reasonable doubt. Where there is no other reasonable explanation or perhaps
some sort of economic need, adultery is not proven. Court had authority to weigh
unequal marital contributions and did not abuse discretion in dividing the estate
unequally, but did screw up classifying community property. Separate property is: (i)
all property, real and personal, acquired by either party before the marriage; (ii) all
property acquired during the marriage by bequest, devise, descent, survivorship or
gift from a source other than the other party; (iii) all property acquired during the
marriage in exchange for or from the proceeds of sale of separate property, provided
that such property acquired during the marriage is maintained as separate property;
and (iv) that part of any property classified as separate pursuant to subdivision.
Where separate property is contributed to marital property, “to the extent that the
[separate] property is retraceable by a preponderance of the evidence and was not a
gift, the [separate] property shall retain its original classification.”
Ibrayeva v. Kublan, Va. App. Dec. 11, 2012. On appellate review, divorces are
presumed to be legit. The lower court is the finder of fact. The court may grant
divorce based on any type divorce, even if others are available. Corroboration
generally required on claims, but where collusion is obviously not there, the bar
lowers. The wife’s attorney may have been kind of crappy.
1.
Defenses
Divorce traditionally can be refuted with defenses which include provocation
(being forced to act in a manner that provided fault grounds to the other
party), condonation (general condoning or forgiveness of the action
exhibited by responsive actions), connivance (corrupt consent to the action),
recrimination (committing an act of the same general nature as the grounds
alleged), reconciliation (forgiveness and resumption of the marital
relationship), collusion (spouses conspiring toward fraudulent creation or
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fabrication of grounds to circumvent divorce laws), and insanity (mental
incapacity). These defenses can be used to defend against a cause of action
for divorce. They tend to be restricted or abolished, however, in states that
moved to enactment of a pure no-fault divorce law scheme.
Davis v. Davis, D24407 NY App. Div, 2nd Dept. (2009): Social
abandonment, in which the husband completely ignores wife without leaving,
is not abandonment for sake of achieving a divorce.
D.
No-Fault Divorce
Though fault-based divorce rules generally served to protect victimized spouses, the
judicial effort to hear all the evidence surrounding marital fault and possible defenses
was draining on the system, and dramatically compromised the personal privacy of
the parties, paving the way for no-fault divorce, which would serve to reduce the
hostility surrounding family breakdown and preserve the integrity of the judicial
system.
Eventually, states started moving toward a no-fault, unilateral divorce process. (NY
previously had done a bilateral no fault divorce based on 2 years of separation.)
Jurisdictions now provide no-fault divorce generally in three categories: 1) living
separate and apart for a designated period of time; 2) marital breakdown
(irretrievably broken or irreconcilable differences); and 3) mutual consent of the
parties, generally evidenced by written agreement.
Judges really try to avoid fault divorce if they can give a no-fault divorce.
Vandervort v. Vandervort, 134 P.3d 892 (Okla . App. 2005): Couple filed in wrong
court of state for a divorce based on idea that they would protect husband’s assets
with wife in nursing home. Naturally, the husband turned into a bum, so now the
wife wants the divorce invalidated. In cases where parties to a divorce collude to
procure a judgment and one party later seeks to vacate that judgment, the law
generally “will leave them where it finds them.” However, the Oklahoma Supreme
Court has also observed that “where the jurisdiction of the court is invoked and
obtained by a fraudulent ‘concoction’ and the fraud is consummated through the
instrumentality of a court of justice, it would impeach the moral sense and that of
justice that courts be not protected against such fraud.” Apparently, you are not
supposed to get a divorce based on collusion—where you don’t actually have
differences.
1.
Noneconomic Consequences
Personal consequences of divorce are often greater than clients initially
comprehend. Marital disruption can precipitate intense and complicated
emotional responses from rejection to incompetence, anger, instability,
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helplessness, even loss of identity. These detrimental consequences can lead
to mental health issues, social issues, and physical health issues.
Divorce is an economic disaster for most families. Neither party fares well
financially There are also elements of gender vulnerability in divorce that
have been described as the “feminization of poverty.”
Constructive abandonment can be a cause for divorce. But, in the above, the
court concluded that it was not going to allow a complicated, non-sexual,
claim.
2.
Divorce Reform
Divorce is too easy, etc. People are starting to think of solutions in the
United States.
3.
Comparative Law
There is forum shopping in some cases. Also matters of what happens when
a gay couple wants a divorce in an anti-gay marriage state.
4.
Alternatives
1. Separate maintenance without divorce
2. Divorce from bed and board
3. Reconciliation agreement
4. Annulment
Utah
If you go for irreconcilable differences, then neither party is at fault. Utah
also requires mediation on any contested issue. This is Haumont. You do not
assign or employ fault, essentially. So pretty much, it seems that Utah is no
fault even though the statute includes all sorts of stuff.
5.
Also a mandatory waiting requirement, unless there are extraordinary
circumstances, which judges seem to give. A divorce education class is also
required. Also a divorce orientation course.
E.
Property Distribution
Equitable distribution is the predominant scheme. Most states distinguish marital or
community property. Utah goes for everything. Separate property is gifts, bequests,
devises, inheritance, or before marriage or after divorce. Marital or common
property is everything else.
Three phases of property distribution upon divorce in the United States:
1. Title distribution. The spouse with title gets the property. Absent statutory
language, court cannot redistribute property. This disadvantaged women both
when they could not hold title and even after they technically could hold title.
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The states with Spanish and French roots already had community property
going for them.
2.
Discretionary distribution. Also, equitable distribution. Courts could do what
they wanted, and did, and it was not very predictable.
3. Marital property equitable distribution, current. Basically, stuff is deemed
marital or separate property. The marital property can get distributed equitably,
depending on different factors or laws controlling.
Trend is that more and more property is falling subject to these divorce provisions.
In Utah, court may make orders about property, debts, children, etc.
Newmeyer v. Newmeyer, Utah 1987: Deference to trial court’s split of the property.
There is no case law suggesting that an inheritance becomes part of the marital
property. We conclude that the trial court exercised its discretion within the bounds
set by our cases when it credited Kathryn with the inheritances she put into the
homes. Also, was okay for judge to award the appreciated value of property. She gets
$1 alimony so that the court can retain jurisdiction to modify alimony.
Ex Parte Andrews, 24 So.3d 1091 (Ala. 2009): Court tossed a claim that the lower
court abused discretion by giving husband 2% when wife had been super rich.
Previous cases had been overturned with more favorable percentages, but that
doesn’t trump everything. Key point is that she held all this before marriage, is
leaving with a lot of assets, and some serious debts. Not unfair.
Under prevailing marital property equitable distribution principles, there are four
major issues that may arise upon property division: (1) Is the disputed asset property?
(2) Is it marital property? (3) How should it be valued? (4) How should it be
distributed.
As to #4: Economic circumstances at time of divorce, contribution and length of the
marriage are the three most commonly listed considerations. Marital misconduct
(fault) may affect property distribution amounts in only about fifteen states
ALSO--equal division presumption that can be de jure or de facto depending on
state. Deferred distribution might happen if it seems like getting it divided quickly
would result in a lot of loss or could not happen.
When you file for divorce, shut down your joint accounts! You can still be on
the line for credit cards based on the contract with the bank.
1.
Complex Property Distribution
New property is the idea that property like benefits, licenses, goodwill, etc.
are also property. The wealth of a middle or lower class person is not going
to be in realty.
Karen C. Martinez v. Jess M. Martinez818 P.2d 538 (Utah 1991): Wife tried
to make claim on the medical license of her husband after having contributed
toward his efforts in getting it. The Ct. App. made a test for equitable
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restitution. The Court of Appeals' concept of equitable restitution cannot be
sustained for three reasons. First, the concept of equitable restitution is based
on the proposition that a failed marriage is a venture akin to a commercial
partnership in which the spouses invest their time and effort solely for
remunerative activities. Second, an award of equitable restitution would be
extraordinarily speculative. Third, although the Court of Appeals stated that
it rejected the proposition that Dr. Martinez's medical degree should be
valued as a property interest and Mrs. Martinez given an interest in it, that
court's concept of equitable restitution is essentially indistinguishable.
Skills, earning capacity, and personal attributes are not property. Child
support, alimony, property division are adequate tools to achieve equity here,
especially with equalization of living.
Martinez is seemingly overruled by Ashby. In Ashby, couple allegedly
contracted that he would support her. Court of Appeals says that Martinez
only bars stuff that isn’t contract. Contracts are enforceable, and general
contract principles appeal.
Pension: Usually split. If vested, that is easy. If not vested and is dependent
on him working, that is a lot harder. Federal pensions will complicate, but a
QDRO will be allowed.
Goodwill: Must be realizeable.
Educational degree or license: New York is allowing people to go after it,
but other states do not like this so much.
Disability, Worker Comp, Personal Injury: States differ on following
mechanical or analytic approaches. The latter looks to what the
compensation was replacing, etc.
2.
Tax Consequences
Hoover, 1996: If it isn’t something that is going to disappear at the death of
the receiving party, then it is not qualified to receive the refund. The court
will not get overly involved in looking at the state law. It will read the divorce
decree and make a decision. MUST have specific termination date—no later
than death of ex-spouse. Calling it alimony does not make it alimony.
3.
Other Random Cases
Virginia B. HALL v. Blaine D. HALL, 858 P.2d 1018 ( Utah Ct. App. 1993):
The trial court abuses its discretion when it fails to enter specific, detailed
findings supporting its financial determinations. Court must make the split
systematically and fairly. If not fairly, must have reasons. Here, court fudged
by not taking out inheritance before splitting and then trying to justify later
on.
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IN UTAH: Courts can reallocate ALL property, even property brought into
the marriage.
Ila Rae HOGUE v. Jimmy HOGUE, 831 P.2d 120 (Utah Ct. App. 1992):
Guy gave wife property before marriage, and then court split it after
marriage. Utah can reallocate non-marital property, though there is a
strong presumption that such property will go separate. Particularly
here, the court noted that they were treating it as a joint property anyway,
even to the point of evading creditors/taxes.
Shirlene Rae TURNER v. Thomas DeLan TURNER, 649 P.2d 6 (Utah
1982): There is no fixed rule or formula for the distribution of a marital
estate. In MacDonald v. MacDonald, supra, the Court listed fifteen factors
which may be considered in adjusting the rights and obligations of the
parties. They include: the respective ages of the parties; what each may have given up for
the marriage; what money or property each put into the marriage; the physical and mental
health of the parties; the relative ability, training and education of the parties; the duration
of the marriage; the present income of the parties; the efforts exerted by the parties in
acquiring marital property; the present mental and physical age of the parties; the life
expectancy of the parties; the ability of the wife to provide income for herself; and the ability
of the husband to provide support. We see no abuse of discretion.
Bettinger, Utah: Divorce provided for husband receiving half of equity at
remarriage, but they didn’t sell at remarriage and it was later sold. Value of
house is value at sale, not at marriage. Ambiguity in how to deal with it
deferred if trial court addresses. There should be no estimates when there is
an actual sale price available. Otherwise, court did not err in discretion. Also
goes toward the trial court having discretion. Ambiguities in court
settlements.
Woodward, Utah: Pension divided once it gets its matching contribution and
vests. We don’t want to decide stuff based on weird property labels. Half of
potential interest also counts. If present, future, etc. interest was acquired
during marriage, it is a marital interest. The fractions are coverture fractions.
Problem with this case is that it doesn’t account for salary inflating or later
getting increased.
Sorensen, Utah: No goodwill should be included in the split because it has
not been sold and it is mostly just the husband’s reputation and earning
potential anyway.
F.
Alimony
It was easy for the courts to stomach this because often they were dealing with
separation divorces, where the marriage was still intact. But, it soon attached to pure
divorce. Because divorce was often predicated on fault, the alimony would also be
predicated on fault. Eventually, modern divorce law has out in more standards, etc.
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Rationale for alimony—separation has duty to support wife, lifetime commitment,
fault, welfare. Problems now is that marriage is terminable at will, no-fault, affluence
and women’s access to jobs. New theory: economic efficiency, independence,
cultural feminism, economic investment
Orr, U.S. 1979: May not give alimony only to women; may not use gender as a proxy
as per EPC. State’s justifications just don’t work. It benefits rich women. It
reinforces stereotypes, etc. Arguably, this guy did not have standing.
Olson, S.D. 1996: Bob wanted to reduce alimony because ex-wife had allegedly
reduced some expenses and he had dramatically increased the overhead in his
dentistry practice. Awards of alimony are reviewed on abuse of discretion. There
must be a change of circumstances after the award of alimony. The party asking for
modification bears the burden of proving a change in circumstances has
occurred-i.e. that there have been changes in the needs of the recipient and in
the financial abilities of the obligor. In assessing the obligor's ability to pay
alimony, the court may evaluate the obligor's income in relation to his
earning capacity to determine whether the obligor has attempted to avoid the
alimony obligation by intentionally reducing his income. . . . In doing so, the
court may consider whether the obligor has either acted with the primary goal of
reducing his gross income. When assessing increases in the recipient's need for
alimony, the trial court must consider both increases in the actual expenses of the
recipient and changes in the recipient's non-support income. The fact that the
recipient's income has increased does not necessarily indicate that the
recipient's long-term economic circumstances have been improved to such an
extent that alimony is no longer required or should be reduced. Cannot speculate
about equity of original award.
Moore, S.D. 2009: Goal is to see if the lower court could have reasonably made
the decision that it made. “The change in circumstances refers to a change in
the necessities of the recipient and the financial ability of the obligor.” “In
considering the financial necessities of Wife and the ability of Husband to
pay, both income and expenses of the parties must be considered.” Several
factors to consider include: the intentional reduction of gross income; an
inquiry into earning potential when a party is under-or unemployed; the
intentional inflation of expenses; and the offsetting effect of cohabitation on
expenses. When assessing increases in the recipient's need for alimony, the
trial court must consider both increases in the actual expenses of the recipient
and changes in the recipient's non-support income. There was a lot of issues
about what was actually happening. If anything, husband’s earning potential has
dropped, and you shouldn’t be invading. Also, the proof of need is somewhat
lacking. Burden is on person claiming.
In Pfohl v. Pfohl, 345 So. 2d 371 (1977), an influential case, a Florida appeals court
ruled that a house-Husband could obtain alimony upon showing a financial ability by
the Wife to pay for such an award coupled with a demonstrated need of H to
support, taking into consideration the standard of living shared by the parties to the
marriage.
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Issuing court retains jurisdiction.
Possibility of rehabilitative thing.
The court shall consider at least the following factors in determining alimony:
(i) the financial condition and needs of the recipient spouse;
(ii) the recipient's earning capacity or ability to produce income;
(iii) the ability of the payor spouse to provide support;
(iv) the length of the marriage;
(v) whether the recipient spouse has custody of minor children requiring support;
(vi) whether the recipient spouse worked in a business owned or operated by the
payor spouse; and
(vii) whether the recipient spouse directly contributed to any increase in the payor
spouse's skill by paying for education received by the payor spouse or allowing the
payor spouse to attend school during the marriage.
(b) The court may consider the fault of the parties in determining alimony.
(c) As a general rule, the court should look to the standard of living, existing at the
time of separation, in determining alimony in accordance with Subsection (8)(a).
However, the court shall consider all relevant facts and equitable principles and may,
in its discretion, base alimony on the standard of living that existed at the time of
trial. In marriages of short duration, when no children have been conceived or born
during the marriage, the court may consider the standard of living that existed at the
time of the marriage.
(e) When a marriage of long duration dissolves on the threshold of a major change in
the income of one of the spouses due to the collective efforts of both, that change
shall be considered in dividing the marital property and in determining the amount
of alimony. If one spouse's earning capacity has been greatly enhanced through the
efforts of both spouses during the marriage, the court may make a compensating
adjustment in dividing the marital property and awarding alimony.
Willey, Utah 1997: Trial court MUST MAKE FINDINGS.
In Utah in particular, the courts can take a lot of things into account. Especially
foreseen things.
1.
Kill Alimony
Death pretty much does it, unless there is a clear intent otherwise.
Some alimony is predicated on remarriage or cohabitation. In the other cases
above, the cohabitation made no difference on the financial situation, so it
was considered a wash. If you’re trying a cohabitation, you need residing +
sexual relationship. Residing is something more than being a visitor, even a
frequent visitor. Pendleton, Utah 1996. Guy was residing, even though he
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was away often. Does he eat there? Does he have a key? Does he come and
go at will?
2.
G.
Tax
Under ' 215 of the IRC, alimony payments are deductible to the payor and
taxable to the payee. Under ' 71(b) payments from a spouse to a former
spouse are treated as alimony (whether periodic or lump sum) if five
conditions are met (unless the divorce decree or separation provides
otherwise):
A. Payments are in cash or equivalent, to or for the benefit of a spouse.
B. Payments are pusuant to a divorce decree, support decree or written
separation agreement.
C. Parties are not cohabiting with each other (1 month grace period).
D. Payments must end at payee=s death.
E. Payment may not be treated as child support or be designated that the
payment is not includable /deductible as alimony.
Separation Agreements
Separation agreements are marital contracts and their validity generally follows the
same rules and requirements for execution of antenuptial agreements (See Ch. 2).
Both parties must be competent to enter into the agreement which must be in
writing, voluntarily signed by the parties, and done with full disclosure. A finding of
fraud, undue influence, duress or overreaching invalidates the agreement. In most
states husband and wife enjoy marital privileges of communication in a confidential
relationship. Some states also adopt an unconscionability standard, where the terms
of the agreement must be fair and equitable at the time of applying the agreement to
the circumstances at the time of separation and litigation. Other state courts may use
a version of fair and reasonableness in the application of the agreement. Significantly,
because marriage is favored in public policy of states couples wishing to enter into a
separation agreement must be already living separately so that a separation agreement
will not encourage, facilitate or promote divorce. Most modern courts narrowly
construe the language.
Schipper v. Quinn, 908 A.2d 413 (Vt. 2006): Fraud killed it. Followed Maryland
court as was proper. Principles of contract law apply if the separation agreement is
not superseded by the divorce decree. Furthermore, most state courts continue to
have jurisdiction over provision pertaining to child support and custody even if the
Agreement is not superseded by the divorce judgment.
1.
Bankruptcy
The auto stay is not lifted for support payments unless it is going toward the
women/children.
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H.
Terminate Quasi-Spousal Relations
Almost all states are Marvin these days (aka, possible to get palimony) In Utah,
Layton established that the court was not going to jump on palimony as being
invalid. Interestingly, though, she did not win after all of this.
Marvin: We conclude: (1) The provisions of the Family Law Act do not govern the
distribution of property acquired during a nonmarital relationship; such a
relationship remains subject solely to judicial decision. (2) The courts should enforce
express contracts between nonmarital partners except to the extent that the contract
is explicitly founded on the consideration of meretricious sexual services. (3) In the
absence of an express contract, the courts should inquire into the conduct of the
parties to determine whether that conduct demonstrates an implied contract,
agreement of partnership or joint venture, or some other tacit understanding
between the parties. The courts may also employ the doctrine of quantum meruit, or
equitable remedies such as constructive or resulting trusts, when warranted by the
facts of the case.
Basically, with Marvin, the Court was stretching ridiculously far to make up any sort
of ground to give somebody standing. Dissent thinks it should stop at express or
implied contract and we should not be shoving marital status stuff on people who
don’t choose to get married. Moreover, state would prefer to have people married.
Hewitt v. Hewitt, 394 N.E. 2d 1204 (Ill 1979): We accordingly hold that plaintiff's
claims are unenforceable for the reason that they contravene the public policy,
implicit in the statutory scheme of the Illinois Marriage and Dissolution of Marriage
Act, disfavoring the grant of mutually enforceable property rights to knowingly
unmarried cohabitants. Common law marriage has been abolished. The judgment of
the appellate court is reversed and the judgment of the circuit court of Champaign
County is affirmed.
I.
ADR
Mediation: A very popular method of dispute resolution, mediation is a process
where a third party, the mediator, encourages the disputants to find a mutually
agreeable settlement by helping them to identify the issues, reduce
misunderstandings, vent emotions, clarify priorities, find points of agreement and
explore new areas of compromise and possible solutions. See Pearson & Thoennes,
Mediating and Litigation Custody Disputes: A Longitudinal Evaluation, 17 Fam. L.
Q. 497 (1984); and Holly A. Streeter-Schaeffer, A Look at Court-Mandated Civil
Mediation, 49 Drake L. Rev. 367 (2001).
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2. Arbitration: The resolution of a dispute by a third person, usually with special
expertise in the area of the dispute and selected by agreement of all the parties in a
de-formalized, often binding, but less adversarial than litigation is legal arbitration.
3. Private Negotiation: Attorneys outside of court or the parties themselves
compromise and settle their claims in private negotiation. Though wholly
unstructured, the Model Rules of Professional Conduct explicitly recognize that
lawyers have an ethical duty to work to settle a case when it can serve the best
interest of their clients.
Collaborative Family Law: Sometimes called Collaborative Practice, this type of
ADR allows parties with the assistance of specially trained family law attorneys to
negotiate their issues in a controlled, safe, and respectful setting using structured
negotiations, various financial experts, and counselors. Lawyers agree not to take part
in any future litigation on behalf of the client to focus solely on settlement of a fair,
stable, and sustainable legal agreement that works in a customized fashion for the
dissolving family. See Pauline H. Tesler, Collaborative Family Law, 4 PEPP. DISP.
RESOL. L.J. 317 (2004).
5. Summary disposition: Procedures adopted in some states allowing for automatic
divorce without a hearing may be available by summary disposition, often based
simply on the documents submitted to the court. Qualified parties must meet certain
state requirements (e.g. short marriage, no children, no real property, few assets, etc.)
and agree to the terms of their dissolution. In summary disposition the court
effectively rubber stamps their agreement. Check your jurisdiction.
6. Administrative proceeding: Some states have administrative agencies to insure
collection of child support, and other may add spousal support. These proceedings
occur more quickly and informally than judicial proceedings.
VII.
Children in Divorce
A.
Inter-State
The UCCJEA establishes which state has the power
to establish or modify custody, and an important consideration involves home state
status. Not only can the home state determine custody but the home state will then
retain jurisdiction to modify custody as long as certain conditions are met.
The UCCJEA clarifies which state has jurisdiction to modify a child custody
determination. By doing so, there is less incentive for parents to kidnap their children
in the hopes that a different forum will offer a more favorable custody ruling. There
are a number of implications of this system. First, there may be distinct advantages in
filing for custody or visitation in one jurisdiction rather than another. AKA--same
sex couples want to file for rights while they are in a state that will give them.
Unless certain limited exceptions can be met, the UCCJEA provides that the state
making the initial custody determination continues to have exclusive jurisdiction
unless “(1) a court of this State determines that neither the child, nor the child and
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one parent … have a significant connection with this State and that substantial
evidence is no longer available in this State concerning the child's care, protection,
training, and personal relationships; or (2) a court of this State or a court of another
State determines that the child, the child's parents, and any person acting as a parent
do not presently reside in this State.”
Emergency jurisdiction possible, but limited, unless a court in the home state
concludes that the connection has become too tenuous.
Castro v. Castro, 818 N.W.2d 753 (N.D. 2012): Visitation is part of custody, so the
court cannot just dump that on another state. Home state applies to 6 months or
since birth.
Utah v. Drake: Utah wants child back to California court. Utah court determines that
best interest of child can change jurisdiction. Best interest involves letting California
have jurisdiction. Dissent argues the trial court should have stayed rather than
dismiss.
B.
International Custody
If both countries are signatories to the Hague Convention on the Civil Aspects of
International Child Abduction, then jurisdictional matters can be determined in light
of the Convention’s dictates. An important issues involves the rights accorded to the
custodial parent versus the right accorded to a parent who (merely) has rights of
visitation.
The Convention permits a child not to be returned to the habitual residence under
certain conditions, for example if the return would expose the child to a grave risk of
physical or psychological harm. Also, if child has been living there for a year.
Sometimes, the focus is not on the grave risks posed by domestic violence but,
instead, on the conditions in the habitual residence. See, for example, Silverman v.
Silverman, 338 F.3d 886 (8th Cir. 2003) (rejecting that existence of suicide bombers
was enough to establish that returning the children to Israel would pose a grave risk
of harm to them); Bernal v. Gonzalez, 2012 WL 7113186 (W.D. Tex. 2012) (rejecting
that ongoing drug cartel violence in Mexico sufficed to establish that returning the
children to Mexico would constitute a grave risk of harm).
Abbott: Right to veto the child moving out of the country is a custodial right, which,
if violated, results in the child going back, even if the parent in that country has no
custody rights. Dissent says that technical considerations make this absurd.
Ohlander v. Larson: Basically, woman filed in Utah when husband took child. But
then, she ran with child from Utah, so court wanted to whack her on contempt. The
circuit overturned, saying that they need to be filing on the right side and
adjudicating appropriately.
Some circuits say that concealment tolls the year.
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C.
Utah Custody, More Generally
Tucker, Utah: Court needs to make all sorts of findings. We affirm because the trial
court’s decision was supported by findings. We have further held that where
applicable, certain factors should be considered, including factors relating to a child's
feelings or needs: the preference of the child; keeping siblings together; the relative
strength of the child's bond with one or both of the prospective custodians; and, in
appropriate cases, the general interest in continuing previously determined custody
arrangements where the child is happy and well adjusted. The trial court should also
consider factors relating primarily to the prospective custodians' character and
capacity to function as parents, such as moral character and emotional stability;
duration and depth of desire for custody; ability to provide personal rather than
surrogate care; significant impairment of ability to function as a parent through drug
abuse, excessive drinking, or other cause; reasons for having relinquished custody in
the past; religious compatibility with the child; kinship, including, in extraordinary
circumstances, stepparent status; and financial condition.
Hudema: Court was too much on morals and religion and whatnot, but apparently it
still had discretion over some things. Continuity can be overcome by some things.
Not all factors are equal. How the child is doing is really important. Not all forms of
continuity are equal. She moved, changed continuity destroyed some of the things
that make continuity is good. We’re not going to award custody based on who is the
better Mormon. BURDEN IS TO PROVE THAT IMMORALITY/PROBLEMS
DISRUPT THE CHILD
VIII.
Child Custody
A.
Historical Approaches
It took a while before children were not property, and even longer before the wife
had equal rights to the children.
Shelley v. Westbrook, 37 Eng. Rep. 850 (Ch. 1817): Blasphemer father denied
custody in an uncharacteristic decision.
Tender Years Doctrine swung the pendulum to having the mother take custody.
B.
Best Interest of the Child
This is the standard for custody awards in most states. Primary caretaker also
displaces Tender Years. States will sometimes let children have a say as an element.
Joint custody and legal/physical custody, etc.
Palmore v. Sidoti, 466 U.S. 429 (1984): Burger, unanimous opinion: The trial court
and lower appellate court determined that the interracial environment was not in the
best interest of the child and thus changed custody based on that. This court
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reverses, saying that courts cannot be making decisions based on race, nor on bases
that are pretexts for race.
Fulk v. Fulk, 827 So. 2d 736 (Miss. Ct. of App. , 2002): FAILURE TO DISCUSS
These factors include: (1) age, health and sex of the child; (2) determination of the
parent that had the continuity of care prior to the separation; (3) which has the best
parenting skills and which has the willingness and capacity to provide primary child
care; (4) the employment of the parent and responsibilities of that employment; (5)
physical and mental health and age of the parents; (6) emotional ties of parent and
child; (7) moral fitness of parents; (8) the home, school and community record of the
child; (9) the preference by law; (10) stability of home environment and employment
of each parent; and (11) other factors relevant to the parent-child relationship. There
were all sorts of things that sounded bad. The father was abusive. The mother was
tied to an emotionally unstable lesbian. The lower court did not do a lot of good
reasoning. We are reversing so the lower court can do better findings and then even
if it comes out with same conclusion, it must give mother the minimum statutory
visitation.
C.
Experts, Custody Evaluations, etc.
Some courts will have an investigator make a report. This may be useful, but there is
questionable methods, useless reports, and potential abuse of the system, especially
by idiosyncratic investigators.
??
Craig B. HOGGE v. Tamra HOGGE (Jackman) 649 P.2d 51(Utah 1982): The case
requires us to clarify the relationship between two legal principles: first, the
requirement that a court modify a decree awarding custody of a minor child only
where warranted by a showing of a substantial change in circumstances; and, second,
the court's obligation to decree whatever custody arrangements serve the best
interests of the child. Lady was nuts at divorce and did not get custody. She comes
back later and says she is ironed out and she gets custody from the court. By statute,
the district court has continuing jurisdiction over the subject matter of a divorce and
may later make such changes in custody provisions as it determines are "reasonable
and necessary" for the welfare and "best interests" of the child. U.C.A., 1953, ss 303-5(1), 30-3-10. However, since a custody decree is predicated on a particular set of
facts, that decree is res judicata and will not be modified in the absence of a showing
of a "substantial" or "material" change of circumstances which warrants doing so.
Accordingly, we hold that in the future a trial court's decision to modify a decree by
transferring custody of a minor child must involve two separate steps. In the initial
step, the court will receive evidence only as to the nature and materiality of any
changes in those circumstances upon which the earlier award of custody was based.
In this step, the party seeking modification must demonstrate (1) that since the time
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of the previous decree, there have been changes in the circumstances upon which the
previous award was based; and (2) that those changes are sufficiently substantial and
material to justify reopening the question of custody. In the second step, having
found that a substantial and material change in circumstances justifies a
reconsideration of the custody award, the trial court must consider the changes in
circumstance along with all other evidence relevant to the welfare or best interests of
the child, including the advantage of stability in custody arrangements that will
always weigh against changes in the party awarded custody. The court must
determine de novo which custody arrangement will serve the welfare or best interest
of the child, and modify, or refuse to modify, the decree accordingly.
Larson, UT Ct. App.: On November 6, 1992, Marc filed a petition to modify the
custody provisions of the divorce decree. Marc filed the petition because he was
concerned that the move to Oregon would not be in the children's best interest, as it
would inhibit his ability to maintain a parental relationship with his children, disrupt
their religious training, and remove them from their friends and relatives. After an
evidentiary hearing, the trial court granted Marc's petition to modify the divorce
decree. The court found that it was in the best interests of the children to remain in
the Park City area and ordered that if Alicia moved from Summit County, Utah,
physical custody of the children would thereupon be transferred to Marc, and Alicia
would then have reasonable and liberal rights of visitation. The trial court also
determined that the parties had the ability to pay their own costs and attorney fees.
Conclusion that Park City essential is insufficiently tied to best interest of children,
also the religious compatibility is insufficiently tied to best interest of children,
particularly where the lack of compatibility is questionable.
Sigg, UT App: Ms. Sigg was a total jerk about following the divorce decree. That
sufficed as a change of circumstances.
Hutchinson, Utah: This controversy between former spouses over the custody of a
child born to the wife before their marriage requires us to clarify the legal standard
governing a child-custody dispute between a parent and a nonparent. Best interest of
child is paramount. Child custody is not parental rights necessarily.
Bonwich, Utah: Adoption gives rights as against the actual parent even.
D.
More Custody
A number of factors are considered when courts decide who should have custody
including who will best promote the bests interests of the child, how well the parents
can cooperate with each, and whether the custodial parent would promote contact
with the other parent.
Courts are definitely in favor of custodial parent facilitating communications
between children and other parent.
Ronny M. v. Nanette H., 2013 WL 2367881 (Alaska 2013): Ronny was abusive.
Florida courts went through all the jazz of the abuse, doing the divorce, etc. There
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were restraining orders and whatnot, but then Ronny jumped all the hoops and
achieved maximum parent time. He then stopped doing parent time, and Nannette
moved to Alaska, remarried, etc. In November 2010 Nanette filed a complaint with
the superior court in Anchorage seeking primary physical and sole legal custody. She
also requested child support. Ronny filed an answer and asked that he be awarded
primary physical custody and that the parties share joint legal custody. Ronny filed
for everything. The court gave him telephonic visitation on an interim basis. They
had trial with Ronny and Nannette blowing smoke like crazy. The court eventually
settled in favor of Nannette for physical and then join legal. An abuse of discretion
exists where the superior court considered improper factors in making its custody
determination, failed to consider statutorily mandated factors, or assigned
disproportionate weight to particular factors while ignoring others. A factual finding
is clearly erroneous when a review of the record leaves the court with a definite and
firm conviction that the superior court has made a mistake We give particular
deference to the trial court's factual findings when they are based primarily on oral
testimony, because it is the function of the trial court, not of this court, to judge the
credibility of witnesses and to weigh conflicting evidence. The superior court granted
primary physical custody to Nanette and a form of joint legal custody to Nanette and
Ronny after finding that: (1) there was no evidence that the boys had special needs;
(2) Nanette had been the primary custodian of the boys and had done a good job of
meeting their needs; (3) there was love and affection between the boys and both
parents; (4) Nanette had provided stable home with a positive environment for the
boys; (5) Nanette had gone above and beyond in fostering a relationship between the
boys and their father, but Ronny had not done the same; (6) there had been a
significant history of domestic violence by Ronny against Nanette, but Ronny had
overcome the statutory presumption against awarding custody to the perpetrator of
domestic violence; and (7) there was no evidence of substance abuse.
Ronny contends that the superior court abused its discretion in awarding primary
physical custody to Nanette and a modified form of joint legal custody to Nanette
and Ronny. His argument is threefold: (1) it was not in the boys' best interests to
move to Alaska with Nanette; (2) the superior court erred in finding that Nanette
was more willing and able than Ronny to facilitate and encourage the relationship
between the children and the other parent; and (3) it was an abuse of discretion for
the superior court to give Nanette ultimate decision-making authority in its award of
joint legal custody. A proposed move is legitimate if it was not primarily
motivated by a desire to make visitation more difficult. We have emphasized
that the best interests of the child remain paramount, such that child custody
determinations are based upon the facts and circumstances of each particular case.
This analysis applies to the circumstances of this case.
Nanette testified that she had a legitimate reason for moving to Alaska: She wanted
to live closer to her husband's place of employment, and she was able to secure a
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higher-paying job for herself in Alaska. Nanette also testified that the move was in
the boys' best interests: Their grades have improved since moving to Alaska, they are
involved in Boy Scouts, football, basketball, and track, and they live in a nice home
with a big yard. Nanette's testimony that Ronny voluntarily stopped exercising his
visitation rights two years before she and the boys relocated to Alaska also suggests
that the move was not primarily motivated by a desire to hinder Ronny's visitation
rights. Court must also consider willingness and ability to facilitate child’s
relationship with other parent. This favored Nannette.
E.
Modify Custody
Many states require that a substantial or material change in circumstances have
occurred (or at least have come to light) since the last custody decision before
custody can be modified. Important (possibly negative) factors that were known
prior to the previous decision were presumably already taken into account, and
insignificant changes that have recently occurred would not justify the destabilizing
effects that would likely result from a change in custody. A separate question
involves what counts as a substantial change in circumstances.
Watkins, Neb. 2013: This case involves Matt's attempt to modify the decree so that
Matt has full custody of Brittni and Cristian. After a bench trial, the district court
denied Matt's request to modify the custody arrangement set forth in the decree and
dismissed the complaint for modification. This case is somewhat complicated by the
intertwining relationships of the persons involved. Tonda is in a relationship and
residing with Corey Neumeister. At the time of trial, Tonda and Corey had been
living together for approximately 1 1/2 years. Matt is residing with his wife, Victoria
Watkins, formerly Victoria Neumeister. At the time of trial, Matt and Victoria had
been married for approximately 1 1/2 years, and they have one child together,
Braydon Watkins, who was 4 years old at the time of trial. Victoria was previously
married to Corey, but they are now divorced. While they were married, Victoria and
Corey had two children together: Joss Neumeister, who was 7 years old at the time
of trial, and Conner Neumeister, who was 5 years old at the time of trial. Corey is
also the father of Clayton Neumeister, who was 10 years old at the time of trial. On
June 1, 2011, Matt filed an amended complaint to modify the decree of dissolution
of Tonda and Matt's marriage, seeking full custody of Brittni and Cristian. Matt
alleged that since the decree was entered, a material change occurred affecting the
welfare and best interests of Brittni and Cristian in three respects: (1) Tonda was
cohabitating with Corey, a registered sex offender; (2) Corey's son Clayton was under
the jurisdiction of the juvenile system and posed a threat to the other members of
the household, including Brittni and Cristian; and (3) Tonda had been evicted from
various residences and was unable to provide the necessary level of stability for
Brittni and Cristian to remain in her custody. The court found in favor of Tonda and
against Matt on the issue of Matt's seeking full custody of Brittni and Cristian and
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dismissed the complaint. The court also found in favor of Tonda and against Matt
with respect to restrictions on Corey's and Clayton's contact with Brittni and
Cristian, and ordered that the current restrictions are to apply until further order of
the court upon modification proceedings. Child custody determinations are matters
initially entrusted to the discretion of the trial court, and although reviewed de novo
on the record, the trial court's determination will normally be affirmed absent an
abuse of discretion.. An abuse of discretion occurs when a trial court bases its
decision upon reasons that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence. Pursuant to the plain language of
§ 43–2933(1)(b) and (3), when a person involved in a custody dispute is residing with
someone who is required to register as a sex offender under the Sex Offender
Registration Act as a result of a felony conviction in which the victim was a minor or
as a result of an offense that would make it contrary to the best interests of the child
if the person had custody, such cohabitation development shall be deemed a change
in circumstances sufficient to modify a previous custody order, unless the court finds
that there is no significant risk to the child and states its reasons in writing or on the
record. Because Matt established that Tonda resided with a sex offender, the statute
provides that a change of circumstances sufficient for modification has occurred, and
it is presumed under the statute that Tonda may not have custody, unsupervised
parenting time, visitation, or other access to Brittni and Cristian. As we have noted,
this presumption can be overcome if the district court finds, based on the evidence,
that there is no significant risk to the children and states its reasons in writing or on
the record, § 43–2933(1)(b). In this case, the district court did so find and stated its
reasons in writing. The sex offender has not been naughty lately and everyone seems
to think he is harmless. Pretty much, not an abuse of discretion.
F.
Relocation
States differ about the conditions under which they will permit a custodial parent to
relocate to a new state with a child. As a general matter, the state will require that the
move promote or at least not be adverse to the child’s interests, although the states
differ with respect to what they presume will benefit the child. Sates as a general
matter presume that it is beneficial for the child to have contact with both parents,
absent evidence that contact with one of the parents is somehow harmful.
State laws concerning relocation differ. Some states seem willing to permit a
custodial parent to relocate with the children as long as the move is in good faith
(not to punish the other parent or to undermine the other parent’s relationship with
the children) and the move would not undermine the children’s interests. Other
states require that the parent show that the children’s interests would be promoted
by the move and, further, are unwilling to assume that what is good for the custodial
parent is also good for the children.
DePrete v. DePrete, 44 A.3d 1260 (R.I. 2012): The parties to the case at bar were
married on August 11, 2000, and two minor children were born of that marriage. On
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March 20, 2007, the plaintiff filed for divorce on the ground of irreconcilable
differences that she alleged had caused the irremediable breakdown of the marriage.
A final judgment of divorce was entered on May 16, 2008; that judgment awarded
joint custody of the children to the parties, with physical possession being granted to
plaintiff and with defendant having all reasonable rights of visitation.
On October 19, 2009, plaintiff filed the motion which is the focus of the instant
appeal. That motion sought leave of court to relocate with the two minor children to
San Antonio, Texas, and it sought modification of the final judgment of divorce to
reflect same. As her reason for filing said motion, plaintiff stated that she had
become engaged to Lieutenant Colonel Paul A. Longo (Colonel Longo), an active
duty dental officer in the United States Air Force, who was stationed in San Antonio.
The plaintiff argued that the general quality of life of the parties' children would
improve by their moving to Texas. There was extensive testimony about what a great
change this would be, etc. Father argued against all this other stuff. Ultimately, the
court liked the father better and refused to grant motion. Focus is on the best
interest of the children. All things considered, this doesn’t every look like abuse of
discretion.
1.
Class Notes
Custody has moved from clean break to ongoing parental relationships.
Anything you do to interfere with an ongoing parental relationship is going
to have consequences. Custodial parent can lose custody if they prevent
other parent from seeing child.
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