Professional Documents
Culture Documents
) Role of womens movement, no-fault divorce, reproductive technology, decline in morality STATE INTEREST IN FAMILY FORMATION State priority for marriage -- remedy for poverty, self-sufficiency, social order
THE RIGHT TO PRIVACY: ROOTS AND EVOLUTION Negative v. Positive Rights: Freedom from v. freedom to Jurisprudence of Privacy: 1. Spatial--search and seizure, bedroom 2. Decisional -- right to choose 3. Associational -- freedom of association 4. Informational -- right to access information
Prince v. Massachusetts (1944) Wisconsin v. Yoder: family privacy (Trio: Pierce, Meyer, and Yoder) THE RIGHT TO PRIVACY: SEXUAL EXPRESSION Lawrence v. Texas
GETTING MARRIED: CONTROVERSIES AND CONTRACTS Rivkin v. Postal: breach of promise to marry (2001) Fowler v. Perry: gifts in contemplation of marriage (2005) Injured party gets/keeps the ring, or its value: conditional gift, fraud, unjust enrichment
Simeone v. Simeone: premarital agreements: contrary to public policy? NOT valid for child support or child custody agreements Uniform Premarital Agreement Act (UPAA) -- unenforceable if unconscionable
In re: Marriage of Shanks (2008) Getting Married: Marriage as a Right standard of review=strict scrutiny, compelling state interest Loving v. Virginia: Warren (1967) Race restrictions
Zablocki v. Redhail: Marshall (1978) Poverty restrictions Turner v. Safley (1987): Incarceration restrictions GETTING MARRIED: SUBSTANTIVE RESTRICTIONS: INCEST, POLYGAMY, AGE, FRAUD Annulment=marriage is void Void (bigamy and incest): invalid from inception, attacked by parties, collateral Voidable (fraud, duress and nonage): judicial action to establish invalidity Consanguinity (blood) and affinity (few states) Lawrence has not been interpreted so broadly as to create a fundamental right to engage in all forms of private sexual conduct.
In re Adoption of M. (1998)
State v. Holm: polygamy and right to privacy? States interest in promoting marriage Kirkpatrick v. District Court: age=marital stability Void (common law); now voidable Blair v. Blair (2004): fraud Essentials (stricter test) or material (more liberal test) --marriage is voidable rather than void. But no divorce=no alimony GETTING MARRIED: SUBSTANTIVE RESTRICTIONS: GENDER Goodridge v. Department of Public Health (2003) Challenges: due process, equal protection, right of association, free exercise --impact of Lawrence v. Texas --Defense of Marriage Acts (DOMA) federal and state: nonrecognition of same-sex marriages in other states Kerrigan v. Commissioner of Public Health (2008)
PROCEDURAL RESTRICTIONS, INFORMAL MARRIAGES, AND NONMARITAL COUPLES Carabetta v. Carabetta (1980) No license=no marriage? Putative spouse doctrine: good-faith belief in validity of marriage Jennings v. Hurt (1989): common-law marriage?
1) agreement to enter into marital relationship; cohabit; and hold themselves out and wife conflict of laws: initial residence in a common-law jurisdiction
as husband
Marvin v. Marvin (1976): palimony --courts will enforce express agreements on distribution of property so long as illicit sexual relations are not part of the deal
BEING MARRIED: EVOLVING MODELS OF MARRIAGE AND WORK-FAMILY CONFLICT Marriage as contract and as status: coverture (fiction of marital unity) McGuire v. McGuire (1953): family privacy v. spousal duty to support
Parental leave policies: Pregnancy Discrimination Act: pregnancy as a disability Family Medical Leave Act (FMLA): unpaid leave TORT AND CRIMINAL LAW IMPLICATIONS OF MARRIAGE: LITIGATION Heartbalm Litigation: most states abolished alienation of affection as COA 1. breach of promise 2. seduction -- damaged goods 3. alienation of affection--master/servant
4. conversion -- men only 1. valid marriage; 2) defendants wrongful conduct; 3) loss of consortium; and 4) causal connection Jones v. Swanson (2003)
--no immunity for negligent transmission of disease OR domestic abuse TORT AND CRIMINAL LAW IMPLICATIONS OF MARRIAGE: DOMESTIC VIOLENCE Hawthorne v. State: battered womens syndrome
Town of Castle Rock v. Gonzales (2005): procedural due process? DeShaney v. Winnebago -- no Sec. 1983 suit (affirmative duty to protect)
No drop, dual arrest -- criminalization of victims People v. Liberta (1984): marital rape FAULT-BASED DIVORCE Lister v. Lister: adultery (2008) Circumstantial evidence: inclination and opportunity Muhammad v. Muhammad: cruelty (1993)
Fault-Based Defenses Parker v. Parker: recrimination (1988): both parties are at fault
Ruling: one attempt at reconciliation does not condone Other grounds: collusion, connivance - fabricating evidence In re Blanchflower: what is adultery? (2003)
NO-FAULT DIVORCE Bennington v. Bennington: what is cohabitation? (1978) 1. Living separate and apart
2. Incompatibility 3. Irretrievably broken (UMDA, New York) 4. Residual relevance of fault -- award of spousal support Feltmeier v. Feltmeier (2003)
--but no right to counsel. DIVORCE LAWYERING FINANCIAL CONSEQUENCES OF MARITAL DISSOLUTION 1. common law jurisdiction - spouse who acquired it 2. community property jurisdiction 3. equitable distribution - statutory factors - distribution of separate & joint prop Traditional factors: fault, need, status (style she was accustomed to) Modern: value of homemaking, contribution, limited role for fault
Property Distribution and Alimony -- Theory and Application Traditional: need, fault Modern: self-sufficiency Ferguson v. Ferguson (1994): pensions and retirement benefits
Michael v. Michael (1990) Rosenberg v. Rosenberg (1985) OSpecial Problems and Calculating Future Interests Lucas v. Lucas (2003): modification of spousal support Change in circumstances so substantial & continuing -- terms unconscionable In re: Werthen (2003): property award or spousal support?
Traditional rule: property divisions dischargeable; spousal support not Bankruptcy Act: some property divisions nondischargeable In re: Marriage of Roberts (1996): what is property? Professional licenses and degrees
PARENTS, CHILDREN AND THE LAW: CUSTODY DETERMINATIONS 1. 2. 3. 4. paternal - prior to 19th tender years best interest of the child joint custody - one factor in best interest
VISITATION AND RIGHTS OF NON-BIOLOGICAL PARENTS Hanke v. Hanke (1992): conditions on visitation
Abuse of discretion! Turner v. Turner (1995): non-payment of child support & visitation Troxel v. Granville (2000) Beth R. v. Donna M. (2008): parental rights of same-sex couple Role of: Childs preference--required by UMDA sec. 402(2) Counsel for the child (GAL) Expert testimony
CHILD SUPPORT Wallis v. Smith (2001): no tort liability for misrepresentation of contraception
ESTABLISHING A PARENT-CHILD RELATIONSHIP Who is (and isnt) a parent? Stanley v. Illinois (1972): violation of procedural due process Indicia of parenthood = constitutional protection of parental rights ADOPTION: PARENTAL CONSENT AND PLACEMENT Scarpetta v. Spence-Chapin Adoption Service (1971) Adoption of Kelsey S. (1992)
CHILD NEGLECT AND ABUSE In re: Juvenile Appeal (1983): burden of proof In re: A.H. (2004)
fair preponderance of evidence to clear and convincing evidence Course Themes Role of race, ethnicity, gender -- privacy --dependence upon public benefits -- intrusion Creation of traditional families --low marriage rates among minorities, low income Public contestation v. family privacy Private marital relationships v. state police power Marriage for procreation v. personal fulfillment/non-marital procreation State law v. federal law -- minimal requirements, loss of funding (adoption) Parental autonomy v. best interest of child (Troxel, Michael, Yoder) Classification: equal protection v. race (adoption) and religious freedom (bigamy) 1. Family and the State -family as a social construct -right to privacy v. state police powers -disaggregation of functions (conception, gestation, etc.) -state enforcement of definitions (Scalia) -adjudication of disputes (Shelley v. Kramer) 2. Commercial v. Intimate Relations -Marvin, palimony and commercializing sex -reproductive technologies -- market for bodies -spousal, child support and cash nexus -privatizing risk 3. Changing families -Moore, Belle Terre, Moreno -marriage as rite of passage -evolving family law -role of federal courts (federalism)