FAMILIAL LAW

1/9 Lawrence v. Texas o Privacy: identity, emotional, physical. Not passing strict scrutiny.

Windsor. MARRIAGE Justice Kennedy noted that regulation of domestic relations is within states traditional authority, and that the sweeping nature of DOMA as applying to all federal laws had the purpose and necessary effect of treating differently a relationship that the state treated the same. This demeans the married couple that is treated differently. In concluding, the Court made it clear that [t]his opinion and its holding are confined to those lawful marriages under state law. 2 Gives states authority to NOT give full faith and credit to a same sex marriage from another jurisdiction. o Aka married in mass move to dif state. States have traditionally had the realm of defining for example incest statutes,, marriage regulations laws etc etc. and DOMA does not follow this tradition. Thus, DOMA says no NY you cant define marriage.. OR in another sense the fed level arent going to give credit to what the states definition of marriage is. ROMER v. Evans cant distinguish between groups is because of this case THUS , this is the rational for the WINDSOR CASE

Maynard v Hill Other s can be modified; marriage cannot o A social relation like that of parent and child, the obligations of which arise not from the consent of concurrent minds, but are the creation of the law itself, a relation the most importatnt, as affecting the happiness of individuals, the firt step from barbarism to civilization.

Courts have been reluctance to enforce contracts between husb wife.

RIVKIN v POSTAL (2001) Tenn Ct App FACTS: David Lori met @music convention. - Preggo 95. No abortion. - Moved intogether in Memphis. - Husb sole source of income.

o Counseling because because she knew she was living with a married man. o MS insisted MR buy ring. 97 MR divorce. 3months later ITS OVER RULE: IN TENNESSEE purpose To prevent certain injustice in suits for damages for breach of promise or contract to wed. Proof: written evidence of K signed by the party against whom action brought o OR testimony of at LEAST TWO disinterested witnesses. HERE: MR quitclaim deed JOINT TENANTS w/survivor MR argues was to make sure CHILD taken care of. COURT: QUITclaim deeds are ubiquitous AND parents NOT disinterested

MAJORITY VIEW: NOT recognize claim for breach of promise to mary

CAMPBELL v. ROBINSON Considerations of FAULT has no place in determining ownership of a RING IF gift is conditioned on marriage than MR keeps ring IF NOT conditioned on marriage he gets it back o NOTES:

CLASS PREMarital agrmts.. p128 In re: Adoption of M] o Issue: prohibition of marriage of persons related by adoption (NJ law). o Because of Ps status as daughter, adoptive father is unable to marry her; Law permits exceptions only in exceptional circumstances. o Held: exceptional circums; original adoption of P is vacated w/ respect to the adoptive father; b/c mom & dad divorced + dad & daughter have child together. Note: even if State treats 1st-cousin marriages as void when performed w/in that State, it may still be recognized if validly performed in another State (one that recognizes it). NOTE: Void v. Voidable Marriages: Void: marriage is invalid from its inception (void ab initio); meaning, it never had any legal existence. Either spouse, or a 3-pty may challenge marriages validity, at any time, in any proceeding. Voidable: marriage is valid until it is subsequently declared invalid.

Invalidity can only be asserted by a spouse/ a party to the marriage, and may only occur during the marriage (not after death of other party/spouse). Cannot be collaterally attacked/ in a related proceeding. If later ratified (curing the defect), then no longer voidable; parties must seek divorce. o Ecclesiastical Laws: part. defect in the marriage against public policy Substantive Defects: same-sex, bigamous, incestuous = void. Less Serious Substantive Defects: age = voidable. Note: Non-consummation may be grounds for an annulment; it is not allowed if the parties knew ahead of time that the marriage could not be consummated. o Civil & Crim. Consequences: ALL States specify the degree of consanguinity & affinity to which persons may not marry. Consanguinity: blood relations. Affinity: relations by marriage. parent, grandparent, brother, or sister = universally prohibited. between aunt/nephew or uncle/niece = universally prohibited. Some States extend prohibition to marriages between parents and adopted children. Many States permit first-cousins to marry. Most incestuous marriages = void -and- = crime; (void ab initio/ at its inception). Incest laws apply to both consensual & non-consensual acts of sex or marriage. Punishable if knowingly issue license to couple whose marriage is presumptively void. Some states permit an adult to adopt spouse as their issue for inheritance purposes. c) BIGAMY. Some states allow innocent spouse in a bigamous marriage to be treated as if the marriage was valid, in hopes of receiving spousal support. Some states prohibit the guilty spouse from asserting bigamy as a way of avoiding having to pay support or to split the marital assets. d) AGE. Most States impose age restrict of 18+ to marry, w/o parental or judicial consent. If minor, consent may be needed; unless, pregnant, some states not req. consent then.

Zablocki v. Redhail (1978) Wisconsin statute said that any WI resident having minor children not in his custody and who he is under obligation to pay support for, may not marry unless applicant proves s/he is complying with support obligation. Court strikes down b/c: Marriage is a fundamental constitutional right linked with right to privacy, right to procreate, etc. Thus Court seems to apply strict scrutiny test or close to it ---- state must show

sufficiently important interest and a closely tailored statute... But, this does not mean that every state regulation or prerequisite for marriage must be subjected to rigorous scrutiny. Substantive Due Process cases: often tensions between different claimants fundamental rights e.g., Roes fundamental right to abortion wins against fetus right to life b/c mother is more full person. We see these tensions in subsequent cases Troxel v. Granville (2000) Non-parental visitation statute. Grandparents wanted to visit grandchild after son/father committed suicide. Mother wanted to restrict hours. State restricted hours but mother did not like the hours the State assigned. -Tension between parental right and grandparent right. HOLD: Grandparents lose b/c: REASON: The statute fails to establish a strong presumption in favor of parents, which substantive due process requires Lower court did not use a strong presumption in favor of mother being a fit parent. SEXUAL ORIENTATION (Lawrence v. Texas & Goodridge v. Dept of Public Health (MA)) Bowers v. Hardwick (1986) OVERRULED BY LAWRENCE Substantive Due Process analysis: 1. Identify kind of right at issue? economic right liberty interest, etc. Is it a fundamental right or interest? o deeply rooted in Nations history and tradition (Inez Moore) o implicit in the concept of ordered liberty (Palko) o discrete and insular minorities rel., national, racial, etc. (Carolene P) 2. What kind of test to apply? If fundamental right, then use heightened scrutiny test (strict scrutiny or undue burden). If strict scrutiny test, then state must show compelling interest and a narrowly tailored statute.

EQUAL PROTECTION OF THE LAWS No state shall... deny to any person within its jurisdiction the equal protection of the law. (14th Amdt. 1) Three tiers of Equal Protection analysis: (1)Strict Scrutiny applied when dealing with a suspect classification such as race or a fundamental right such as the right to vote. (I) Govt must sustain and prove (a) compelling govt interest (b) narrowly tailored to fulfill that interest. (2)Middle Tier Scrutiny applied dealing with gender classifications made by govt. (I) Govt must show (a) important govt interest (b) closely related nexus 2 govts classification/goal of the law. (3)Rational Basis scrutiny applied to all other govt classifications. (I) Only requires to be rationally related to some legitimate govt interest. Court may consider its own hypotheticalsnot just the basis proffered by the state.

Origin of heightened scrutiny: famous footnote 4 from Carolene Products prejudice against discrete and insular minorities calls for more searching judicial inquiry b/c usual political processes do not protect such groups. note: gender and other groups (e.g., homosexuals) may be discrete and insular.

Zablocki v. Redhail
Facts. The Respondent has an out-of-wedlock minor daughter, for whom he is under a court order to provide monetary support. The Respondent has been unemployed for long periods of time and at the time of the suit is over $3,700 behind in his support payments. The Respondent's marriage license of September 27, 1974 was denied on grounds that he did not procure a court order granting explicit permission for the marriage to proceed. It is uncontested that the Respondent could not receive such an order because of statutory limitations and his arrearages in child support. Issue. Is the Wisconsin statute's interference with the right to marry a violation of the Fourteenth Amendment's Equal Protection Clause? Held. Yes. Court of Appeals ruling affirmed. - Precedent that marriage is a fundamental right and that the classification at issue significantly interferes with the exercise of the right. Because of this, the State must show a compelling interest in the interference and show that the means chosen to do so are sufficiently related to the interest. originally to be a counseling device, requiring individuals with support obl to children from previous relationships 2 B counseled before entering into a new marriage and perhaps incurring other support obligations. The court was then to give automatic permission for the marriage. However, this does not resemble the enacted statute. The statute as enacted is supposed to aid in collection of child support. o In the case of individuals unable 2 meet req, no money is given to the supported children, but the right to marry is withheld from the individual. o As such, the statute does not add any new collection devices. Because of the broad infringement of the statute, the means are not sufficiently related to the government interest advanced. Overly broad. Dissent. (J. Rehnquist) argues that marriage is not such a fundamental right as to trigger strictest scrutiny. He rather argues for rational basis review. J. Rehnquist argues that the statute at bar passes rational basis review. Concurrence. Justice Potter Stewart (J. Stewart) concurred in the judgment, but believe that rather than invalidating the statute on Equal Protection grounds, the Supreme Court of the United States (Supreme Court) should have invalidated it as an impermissible regulation of marriage that invades the sphere of liberty protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Discussion. The three opinions given illustrate that the lens through which a case is viewed may result in vastly different analysis. The majority opinion focuses on two classes: - 1) Wisconsin residents w/o obl to non-custodial, dependent minor children - 2) Wisconsin residents with support obligations toward such children. - J. Stewart's concurrence does not view the case as one of discriminatory classifications, but one of unwarranted state intrusion into private matters of

citizens. J. Rehnquist argues that marriage is not a fundamental right and thus Wisconsin is not producing a discriminatory class or intruding into personal liberties.

Doctrines 1: Common Law duty of support 2: Common law doctrine of nonintervention

NAME CHANGES: - Not presume that it is detrimental for a child to have a neame that is different from parent. - Neal v. Neal:

Regulation of Unmarried Couples, pp. 360-362, 364-376, 397- 411.

CASE SYNOPSIS Appellant husband sought review of a final judgment of divorce entered by the Newton County Chancery Court (Mississippi), awarding a divorce to appellee wife, together with custody and support of the minor child, and denying the husband's counterclaim for divorce and custody of the child. CASE FACTS The wife filed for divorce on the grounds of adultery and requested permanent custody of the minor child. The husband denied the adultery charge, counterclaimed for divorce based on habitual cruel and inhuman treatment, and also sought custody of the child. The chancellor denied the husband's requests and awarded the wife a divorce, custody, child support, and alimony. The chancellor's judgment also included a division of marital property and future interests in the husband's retirement and pension plans. DISCUSSION The court, en banc, affirmed in part and reversed in part. The court adopted guidelines for the equitable division of marital property and remanded for a reevaluation of the marital division, which included the wife's interests in the retirement and pension plans. The court affirmed the awards for divorce and custody. The court held that the charge of adultery was established by clear and convincing evidence and that the chancellor's finding that the husband was morally unfit to be a parent was not an abuse of discretion.

CONCLUSION The court affirmed the granting of a divorce to the wife, together with custody and support of the minor child. The court adopted guidelines to aid chancellors in the division of marital property under the equitable property division method, reversed the award of marital assets, and remanded to the chancery court to reevaluate the property division in light of the guidelines.

CONDONATION: you have forgiven/ accepted the behavior so it is no longer actionable in a fault divorce proceeding. Also can be described as a legal reconciliation.

Actual knowledge is required to prove condonation. Having sex one time is enough in an adultery action Principle of condonation is based on the idea that once a spouse condones a marital transgression by his or her mate, they are forever barred from using that transgression as grounds for divorce.

HAYMES v HAYMES: constructive abandonment (NY CASE) refusal to have sex with wife over a period of time, he moves for dismissal on grounds of a short reconciliation/ sexual relations. Court held wife DID NOT forgive him in legal sense and therefore a short reconciliation after the divorce action had already commenced does not preclude her fault based claims against the husband. (Abandonment, constructive eviction) Rationale: She gave the marriage a chance, welcomed him back to marital home had consensual sex with him but that does not amount to LEGAL forgiveness so that she loses legal recourse for his bad conduct. Mere cohabitation is not enough. In NY case by case for condoonation NEW YORK: CONDONATION and ABANDONMENT case by case analysis court will look at circumstances VERY closely From Haymes- Some factors court will consider: Reconciliation/ cohabitation made in good faith? Was it at all successful? Who initiated it and with what motivations? Same standard of determining condonation for cruel and inhuman treatment

Other less used defenses include Mental Illness Provocation- Other spouse provoked ensuing bad conduct SOL lapses