Shapo FamilyLaw Spring 2010

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.0Family Law
Prof. Helene Shapo
Spring 2010
WHAT IS A FAMILY?
Theories of Family
I.
TRADITIONAL DEFINITION
A. Rule: The traditional definition of family includes parents and children.
1. BUT: The traditional family model hasnt been relevant for while now.
2. Due to changes in society regarding divorce, same sex relations, etc., few families, if any, would still fit that
definition.
II. FUNCTIONAL DEFINITION: does the family function like a family?

A. Rule: Sometimes courts adopt a functional definition of family which considers different factors to see if the
group acts like a family. (Braschi v. Stahl Factor Test where a gay couple was considered a family b/c they had
a long-term relationship w/ emotional and financial commitments and held themselves out as a family)
1. OTOH: Functional definitions can be (1) intrusive (i.e. have to interview family to see how they act) and (2)
it is hard to define what functions a family really has.
2. OTOH: Today, most traditional families (i.e. parents/kids) wouldnt meet a functional definition.
B. Braschi Factors
1. exclusivity and longevity of relationship
2. level of emotional and financial commitment
3. how the members held themselves out to society
4. reliance upon one another for daily family services
5. permanent authority figure (Penobscot)
Communal Family
Involves non-related individuals (i.e. group homes, students)
I.
FUNCTIONAL FAMILY REQUIREMENT

A. Rule: Cts may require a group not related by blood to meet a functional family definition.
1. ForEx: In Borough of Glassbororo, the court held that a group of student living together during college had
the stability and functional lifestyle (i.e. chores) of a traditional family.
2. OTOH: In Penobscot, the court refused to consider a handicapped group home as a family unit b/c it lacked
stability (patients are in and out) and a permanent authority figure.
II. CONSTITUTIONAL VALIDITY OF STATUTES

A. Rule: The courts are often reluctant to extend protection to communal families. (Village of Belle Terre court
held that a zoning ordinance that excluded communal families was constitutional).
1. Rationale: Perhaps this is due to the fact that court still looks towards traditions of blood ties.
2. OTOH: In Moreno, the court held an act that limited benefits to only traditional families was unconstitutional
b/c blood lines were not rationally related to preventing food stamp fraud.
Extended Family
Does ordinance involve related individuals (i.e. grandparents, aunts/uncles, etc.)
I.
Rule: The SC has held that the extended family deserved protection under the Constitutional b/c notions of extended
families are deeply rooted in the nations history and traditions. (Moore v. City of Cleveland statute that prevented
grandma from living w/ grandkids was unconstitutional)
A. ForEx: Living with grandparents
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B. OTOH: The SC has also held that the Constitution does not grant extended families an affirmative right to
benefits. (Lysing v. Castillo SC upheld statute prohibited extended family from being defined as a family unit
for food stamps).
GETTING MARRIED
Historically, marriage was seen as a contract which imposed rights and obligations on both parties. BUT, courts early on
realized that marriage is more than a mere contract but the foundation of family and society. (Maynard v. Hill)
Breach of Promise to Marry & Gifts

I.
BREACH OF PROMISE TO MARRY (HEART BALM)

A. General Criticisms: Breach of promise to marry is too old-fashioned in its view of marriage and also relies on
stereotypes about women being unable to be self-sufficient and needing husbands.
B. Views
1. Abolished - most states (through anti-heartbalm legislation)
2. Limited Use the few states that allow a claim for breach of promise to marry often include limitations: strict
standards (Rivkin) or limiting damages
a. Rivkin v. Postal Ct held that Postal failed to meet the burden of proof for a breach of promise to marry
claim since she failed to produce written evidence of a promise to marry OR the testimony of two
disinterested witnesses
C. Damages
1. Breach of promise to marry is a hybrid action (combines contract + tort elements)
2. Damages may be recovered for:
a. monetary and social value of the marriage (expectation damages)
b. expenses incurred in preparation for marriage (reliance damages)
c. mental anguish and humiliation (tort damages)
d. punitive damages
D. Traditional Defenses: (1) plaintiffs fraudulent misrepresentation, (2) physical and mental defect, (3) unchastity
to the plaintiff, (4) plaintiffs lack of love for defendant, and (5) mutuality of decision to terminate engagement
E. Seduction (tort) occurs when a chaste woman has intercourse in reliance on defendants promise to marry
1. Criticism: seduction is based on an archaic way of thinking about sexual relations. Today pre-marital sex,
rightly or wrongly, is a common occurrence.
2. A handful of states recognize the action, but rename it intentional misrepresentation
II. GIFTS IN CONTEMPLATION OF MARRIAGE (engagement rings)

A. Rule: Who gets to keep the ring will be based on whether the court goes by the traditional fault based approach or
the modern no-fault approach.
1. Exam: approach is usually determined by the divorce rationales (i.e. does state have fault grounds?)
B. Fault-Based (Traditional) whoever breaks the promise should get to keep the ring
1. Rationale: ring is a symbol of agreement to marry and person at fault broke the agreement
C. No-Fault (Modern Trend) regardless of fault the engagement ring should be returned to donor
1. Rationale: ownership of ring is conditional upon the marriage and if the condition is not satisfied, the ring
should be returned to owner
a. Furthermore, the purpose behind an engagement is test the waters and it would be irrational to penalize
someone for trying prevent a possibly unhappy marriage (that would probably end in divorce)
2. Fowler v. Perry After Perry broke off an engagement, she attempted to pawn the ring, but it was stolen in
the process. She received insurance proceeds from the ring, but Fowler sought recovery. The ct applied a nofault approach and held that b/c an engagement ring is a conditional gift given in contemplation of marriage
and the marriage did not occur, the ring should be returned.
D. Other Gifts for other gifts determine whether they were (1) inter-vivos gifts or (2) conditional?
Pre-Marital Agreements (aka prenuptial, antenuptial)

Pre-marital agreements limit spousal property rights in event of dissolution of marriage or death
I.
REQUIREMENTS FOR VALIDITY: Procedural and Substantive Fairness

A. Rule: Courts typically require pre-marital agreements to have (1) procedural (disclosure + voluntariness) and (2)
substantive fairness in order to be considered valid.
1. Modern Trend: has moved toward viewing pre-marital agreements from a more contract based perspective
and granting validity to a greater scope of agreements.
a. Rationale: This is probably due to changing conceptions of gender which once thought that there needed
to protect women.
b. OTOH: this would seem at odds with the movement away from the traditional notions of marriage as a
contract relationship.
B. Procedural Fairness (disclosure + voluntariness)
1. Full Disclosure disclosure or knowledge of spouses finances
a. Binek v. Binek Ct held that wifes general knowledge of husbands financial standing was sufficient to
satisfy full disclosure.
2. Voluntariness both parties must enter into the contract voluntarily (no fraud, dures)
a. A threat not to marry is not duress.
b. Binek v. Binek husband presented the agreement two days before the wedding and threatened to not
marry if she did not sign, but the court held that agreement was still valid b/c there she understood the
terms and entered into it voluntarily.
C. Substantive Fairness fair and reasonable
1. Factors: related property values, parties financial circumstances, spousal support provided
2. When to determine fairness? (1) prior to execution and/or (2) at enforcement
a. Binek v. Binek
i. (1) Ct held that agreement was valid at time of execution b/c it allowed wife to keep her assets and
required husband to support her throughout the marriage.
ii. (2) Ct also held agreement was valid at time of enforcement b/c it left open the possibility of spousal
support and allowed wife to keep her pre-marital assets.
D. Unconscionability (Uniform Premarital Agreement Act (UPAA)
1. Rule: UPAA furthers the trend in recognizing pre-marital contract validity by requiring unconscionability on
top of the common law conceptions of procedural and substantive fairness.
Restrictions on Entry into Marriage

Constitutional Limitations
I.
MARRIAGE IS A FUNDAMENTAL RIGHT

A. Rule: The right to marriage is a fundamental right. (Loving v. Virginia)
1. OTOH: Ct in Zablocki held that only those restrictions/classifications that interfere directly and
substantially with the right to marry will require strict scrutiny.
B. Race
1. Loving v. Virginia SC held that a statutory ban on interracial marriages was unconstitutional under the
EPC and DPC of the 14th Amendment. The court held that marriage is a fundamental right that is essential to
our existence and survival.
C. Poverty
1. Zablocki v. Redhail SC held that a statute that prevented marriage by persons who didnt pay child support
was unconstitutional under DPC. Court holds that marriage is a fundamental right. While the court found the
states interest in protecting children compelling, the statute was overinclusive and not narrowly tailored..
There were other ways to achieve the states goals.
Capacity Restrictions
Substantive restrictions on who can marry
I.
VOID V. VOIDABLE invalid marriages are classified as either (A) void or (B) voidable
A. Void marriage that is invalid from inception; never had legal existence
1. Substantive Defects (same-sex, bigamy, incest) VOID
2. Either party or a third party may challenge the validity of the marriage at any time and in any proceeding
B. Voidable marriage that is valid until subsequently declared invalid
1. Less Serious Substantive Defects (age) VOIDABLE
2. Only one of the parties may challenge the validity of the marriage and only during the marriage (i.e. not after
death of party). Also, it cannot be collaterally attacked (in another proceeding)
II. SAME SEX MARRIAGE

A. Rule: Traditionally, marriage is between a man and a woman.
1. Modern Trend: There has however become a slow progression towards recognizing same-sex marriages.
Starting from Lawrence (emerging awareness that same-sex conduct is not illegal), laws have slowly
evolved to allow same-sex marriages (i.e. Goodridge).
2. OTOH: Federal legislation has attempted to slow that progression (i.e. DOMAs).
B. Rationale for allowing traditional rule: SEE Goodridge (rejecting the rationales for traditional marriage rule)
1. Goodridge v. Dept. of Public Health (same sex marriage legal in MA) MA SC held that the state could not
deny civil marriage to same-sex couples. It held that the states interests of (1) proving a favorable setting for
procreation, (2) providing an optimal setting for child rearing, and (3) preserving state resources are not
sufficient to survive rational basis review.
C. Progression Towards Allowing Same-Sex Marriage
1. Lawrence v. Texas (privacy in the bedroom) SC held a state statute which prohibited same-sex sexual
intercourse violated the DPC. Ct found that there was an emerging awareness that liberty gives substantial
protection to adults in how they conduct their private sex lives. The courts obligation was to define the
liberty of all, not to mandate a moral code.
a. Scalias Dissent predicted that Lawrence decrees the end of all morals legislation and that laws on
bigamy, adultery, incest, and bestiality could be called into question.
D. DOMA: Limiting Progression
1. Defense of Marriage Act (DOMA) was passed by Congress to undermine the movement to recognize samesex marriages. DOMA does this by:
a. Defining marriage as union of man and woman and spouse as person of opposite sex
b. Specifies that states are not required to give effect to same-sex marriages under the Full-Faith and Credit
E. Domestic Partnerships
1. As an alternative to marriage states have recognized domestic partnerships as a means of granting same-sex
couples the legal benefits of marriage w/o legalizing same-sex marriage.
F. Rule of Lex Loci under the rule of lex loci, a marriage valid where it was performed is valid everywhere, unless
contrary to public policy.
III. INCEST VOID
A. Rule: States provide the level relations (i.e. blood) within which a person cannot marry. Incestuous relationships
are void and thus invalid.
B. State Interests protection of: (1) gene pool, (2) persons from exploitation, (3) family from assumption of
incompatible roles, and (4) societal concepts of decency
1. In Re Adoption of M (relations by adoption) Ct vacated an adoption to allow a father marry his adopted
daughter b/c the daughter was having his baby (legitimize the child). The court deemed that there were truly
exceptional circumstances since the childs best interests were at stake.
C. Constitutionality of Incest Prohibitions
1. Smith v. State (no privacy violation) In a Post-Lawrence decision, the ct held that incest statute did not
violate a fundamental right. Furthermore, the statute was rationally related to the states goals of promoting
morality and family stability.
2. Scalias Dissent in Lawrence decrees the end of all morals legislation
IV. BIGAMY VOID

A. Rule: All states prohibit bigamous marriages and even provide criminal sanctions. The bigamous relationship is
void and thus invalid from inception.
B. State v. Green (no free exercise violation) Ct held that a bigamy statute did not violate Free Exercise Clause b/c
it was rationally related to the states interests of (1) regulating marriage, (2) preventing marriage fraud, (3)
preventing misuse of government benefits, and (4) protecting vulnerable individuals from exploitation.
C. Scalias Dissent in Lawrence decrees the end of all morals legislation
D. Enoch Arden Statutes defense to bigamy where a person who remarries after the disappearance of a spouse,
w/o knowledge that the first spouse is alive, is not guilty of bigamy
V. AGE
A. Rule: All states establish a minimum age for marriage (most 18) due to the assumption that maturity is necessary
to make such a decision.
B. Consent Minors below the statutory age to marry w/ parental and/or judicial consent
C. Void v. Voidable some states classify nonage as void others as voidable
D. Uniform Marriage and Divorce Act (UMDA) minor may marry w/ either parents consent or after finding that
a minor is capable of assuming the responsibilities of marriage and that the marriage would be in his best interests
VI. STATE OF MIND RESTRICTIONS: FRAUD & DURESS
A. Rule: Fraud or duress (enough to overcoming free will) serves as a ground for annulment and thus makes the
marriage voidable.
B. Tests (varies by state)
1. Essential Test misrepresentation must go to the essentials of the marriage (i.e. childbearing)
a. Rationale policy should favor preservation of marriage
2. Materiality Test misrepresentation needs only be material (i.e. would not have married but for)
a. Blair v. Blair Ct denied husbands request for annulment based on the wifes fraudulent
representations regarding sons paternity. Ct found that he would have married her anyway b/c he loved
her and he had questions about paternity prior to marriage.
C. Consummation IF the marriage was consummated, courts may require a higher standard.
D. Limited Purpose Marriages where couples would marry in name only to legitimate the child, and after the
birth, obtain a divorce. Courts have occasionally recognized these marriages to legitimize the child.
E. ANNULMENT V. DIVORCE (SEE DIVORCE SECTION)
Curative Marriages: Common Law Marriage & Putative Spouse Doctrine

I.
COMMON LAW MARRIAGE recognizes marriages that dont go through the procedures in marriage
A. Rule: Only a handful of states recognize common law marriage. The states that recognize common law marriages
require there to be: (1) capacity, (2) an agreement to be married, (3) cohabitation, and (4) holding out to the
community.
1. Rationale: CL marriage avoids harsh consequences, protects poor and ignorant, and protects children from
illegitimacy
B. Agreement to be Married - agreement may be inferred from cohabitation or other circumstantial evidence
C. Standard of Proof clear and convincing evidence
D. Impediments to Marriage valid marriage cannot be formed if a party is already married
1. Jennings v. Hurt Court held that there was no common law marriage b/c after the removal of the
impediment to marriage (i.e. Hurts marriage to another woman) there was not evidence that the parties (1)
held themselves out to be married or that there was any (2) agreement to enter into a common-law marriage.
E. Choice of Law in general, courts will recognize marriages formed in common-law states even if their state
doesnt recognize them.
II. PUTATIVE SPOUSE DOCTRINE recognizes a marriage were party didnt realize an impediment
A. Rule: The putative spouse doctrine requires that the parties (1) participated in a marriage ceremony (2) in good
faith, in the (3) belief that a valid marriage took place, and in (3) ignorance of an impediment to the marriage.
B. Rationale: allows court to protect parties from the harshness of having a marriage deemed invalid.

C. Marriage Ceremony: courts may recognize a putative marriage w/o a ceremony (i.e. common law marriage or if
they believed no ceremony was needed)
BEING MARRIED
Regulation of Roles and Responsibilities
Support and Non-Intervention
I.
DUTY OF SUPPORT
A. Rule: Traditionally the husband had to support (provide necessaries) and wife had to perform domestic services.
Today, both parties have duty to support each other.
B. Necessaries Doctrine: Husbands were required to provide wives with necessaries (i.e. food, shelter). This
created equal protection problems and thus most states either abolished or made it gender-neutral.
II. DOCTRINE OF NON-INTERVENTION

A. Rule: Courts are reluctant to intervene in issues relating to an ongoing marriage (doctrine of non-intervention).
1. Therefore, courts wont step-in regarding duty of support claims while the parties are still married.
B. McGuire v. McGuire Court refused to intervene a wifes demand for support money (husband was frugal ex:
no indoor bathroom) b/c the parties were not separated/divorced. The court held that the living standards of the
family are matters of the household.
Names
I.
METHODS OF NAME CHANGE

A. Common law person had consistent, non-fraudulent use of name
B. Statutorily designed judicial procedure
II. WOMANS NAME

A. Name Retention all states recognize a womans right to retain her birth name at marriage
B. Post-Divorce Name Change most states allow women to change names back to birth name after divorce
III. CHILDRENS NAMES
A. Conflicts in Choice of Names
1. Courts usually use one of the following standards:
a. custodial parent presumption,
b. presumption favoring the status quo, or
c. best interest of child test (followed by majority of jurisdictions)
2. Best Interest Factors: childs preference, effect of name change on parent-child relationship, how long the
child has had the surname, social difficulties child might encounter
3. Neal v. Neal Wife was pregnant when she separated from her husband (divorced after birth). She gave birth
and on the birth certificate put her maiden name as the childs surname. Court held that no law presumes that
it is detrimental for a child to have a name that is different from parent.
B. NO Constitutional fundamental right to choose childs surname
1. Even though Pierce v. Society of Sisters and Meyer v. Nebraska established that parents have a fundamental
to make decisions regarding their children, those rights involved choices in education and child rearing.
Choosing a childs name does not rise to the level of the rights in Pierce and Meyer.
2. Henne v. Wright Statute restricted mothers choices in choosing a surname. Defendants challenged the
statute as a violation of their 14th Amendment right to choose the surnames of their children. Court held that
there is NO fundamental constitutional right of privacy to choose a childs surname and the states goals are
furthered by the statute.
Domestic Violence
I.
BATTERED WOMAN SYNDROME (BWS)

A. Battered womans syndrome is a theory used to explain why women who are abused by husbands do not leave.
B. Evidence BWS can be used to show the reasonableness of fear of imminent danger in a self defense claim.
1. Hawthorne v. State Court held that testimony could be given regarding BWS b/c the typical person would
not understand why a person would not leave her mate, would not inform authorities, etc.
2. Standard for evidence generally accepted by scientists in the particular field of study
C. Violence Against Women Act created a federal remedy against spouses that crossed state lines w/ intent to
injure. Also provided for interstate protection orders.
D. Limits on Testimony of Violence
1. Crawford limits admissions of out of court statements if they are (1) unavailable for trial (i.e. scared) and (2)
if their out-of-court statements are considered testimonial.
2. Crawford v. Washington use of a wifes statements violates the Confrontation Clause since the 6th
Amendment requires witness unavailability and prior opportunity for cross examination when out of court
statements are at issue.
II. DUTY OF LAW ENFORCEMENT

A. Special Relationship Suits against police must be brought under 1983 (must show deprivation of constitutional
right under color of law). For domestic violence, for a cause of action to arise, you must show the state had a
special relationship to the victim and thus was required to protect.
1. DeShaney SCOTUS held that absent a special relationship, the state has no constitutional duty to protect
its citizens against deprivation of life, liberty, or property committed by private individuals.
B. Town of Castle Rock v. Gonzales Gonzales claimed that the police violated her due process rights when they
failed to enforce a restraining order. Her ex-husband had taken the children despite a restraining order and
murdered the children. SC held that there was no DPC violation b/c she did not have a property interest in police
enforcement of the restraining order.
C. Viable Theories of Liability After Castle Rock and DeShaney
1. Custodial Relationship Doctrine provides that police have an affirmative duty to protect a victim in state
custody
a. BUT it ONLY applies if victim is injured in police custody
2. Violation of Equal Protection
a. BUT requires actual proof that the non-arrest policy of some police dept. denies battered spouses the
protection given to victims abused by others (hard to do)
3. Liability under state tort theories
a. BUT may be precluded by sovereign immunity
D. Police Non-Intervention in Domestic Violence: WHY?
1. perception that wives are just trying to scare husbands
2. concern for family dissolution
3. concern that abuser may retaliate
4. mans home is his castle
E. Temporary Restraining Orders (TRO) restrain a person from committing further acts of violence or
harassment
F. Mandatory Policies sometimes needed b/c wives will not press charges or change their minds
1. Mandatory Arrest some states require mandatory arrest for misdemeanor domestic violence cases
2. No-Drop Policy requires the prosecutor to pursue criminal action against the abuser regardless of victims
wishes
III. MARITAL RAPE
A. Common Law Marital Exemption
1. Under common law, a husband could not be guilty for raping his wife.
B. Modern Trend: No Marital Exemption
1. Almost all states today have abolished or limited the marital exemption
2. People v. Liberta Wife had TRO against husband, but husband threatened to kill her and forced her to have
sex with him. Court ruled that there is no rational basis for distinguishing b/w marital and non-marital rape.

Such a distinction was based on archaic notions and a married woman has the same right to control her own
body as an unmarried woman does.
PARENTS AND CHILDREN

I.
Parents have a fundamental right to direct the upbringing of their children

A. Pierce v. Society of Sisters SCOTUS held that a statute that required children to be sent to public school
unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of their
children.
Non-Marital Parents and Children

Establishing Paternity
I.
METHODS FOR ESTABLISHING PATERNITY

A. Presumptions - Original Uniform Parentage Act (UPA)
1. Keys: presumption that children born into marriage (or close) or receiving the child into the home and holding
them out as your own
2. A man is presumed to be the natural father of a child if:
a. child is born in marriage or w/in 300 days of termination
b. before childs birth, man tried to marry childs mother (but marriage is/could be invalid) AND child is
born w/in 300 days of the termination
c. after childs birth, man and childs mother have or have attempted to marry, and
i. he has acknowledged paternity in writing, w/ consent is named on birth certificate, or he is obligated
to support under written promise or court order,
d. he receives the child into his home and openly holds out the child as his natural child; or (changed to
first two years of childs life in new UPA)
e. he acknowledges his paternity in writing
3. Rebutting the Presumption
a. rebutted by clear and convincing evidence. (ex: genetic evidence, father not around, etc.)
b. if 2 or more presumptions apply, weigh the policy rationales
B. Genetic Testing
1. PRWORA requires that at either partys request the court must order genetic testing
2. Courts may deny genetic testing for the best interests of the child (i.e. preserve childs ties to the father who
held himself out as father)
C. Voluntary Establishment of Paternity
1. Both the PRWORA and revised Uniform Parentage Act provide for recognition of voluntary establishments of
paternity. (i.e. father comes out and says they are the father)
II. PROCEDURAL LIMITATIONS

A. Statute of Limitations
1. Rule: Traditionally, states only provided short periods to establish paternity in order to avoid fraudulent
claims.
a. OTOH: Clark v. Jeter (6 years too short) and the Child Enforce Amendments (18 years) have changed
that view and increased SOL.
b. Rationale: It is not the childs fault the he was born into that situation and should not be punished for it.
2. Clark v. Jeter Statute required that a non-marital child must prove paternity before seeking support and that
paternity must be proven w/in 6 years of birth. Legitimate children could seek support at any time. SCOTUS
held statute unconstitutional under Equal Protection b/c 6 years did not provide a reasonable opportunity to
assert a claim.
3. Child Enforcement Amendments of 1984 made creation of an 18 year SOL is a condition for receipt of
federal funds. (Strengthened by the Family Support Act of 1988)
B. Standard of Proof preponderance of evidence.
C. Jurisdiction can be established by
1. failure to pay support (tortuous act)

2.
3.
breach of contract
doing business in state
Support for Non-Marital Children

I.
Rule: Today, all states require both parents have a duty to support regardless of legitimacy
A. Traditionally, nonmarital children only had a right to support from their mothers.
B. Rationale: It is not the childs fault the he was born into that situation and he should not be punished for it.
II. CONTRACEPTIVE FRAUD DEFENSE

A. Rule: Courts do not allow contraceptive fraud to act as a defense against support obligations. This is because it is
in the childs best interest to have two sources of support and the man was free to use contraception of his own.
1. The court may however reduce support obligations (issue not addressed)
B. Wallis v. Smith (contraceptive fraud) Court held that the best interests of the child to require Wallis to pay
support and that he was free to practice contraception on his own. Furthermore the court noted that the UPA
imposes a form of strict liability for child support, without considering which parent is more responsible for the
childs being.
III. SCENARIOS
A. Traditional Sexual Reproduction Support
1. Parties cannot contract b/w themselves to deny a child support
B. Assisted Reproduction Maybe
1. Ferguson v. McKiernan Mother sought child support from a non-institutional, non-anonymous sperm donor
even though there was an agreement (like in clinics) where the donor was freed of his parental rights and
liabilities. Trial Ct reluctantly awarded child support using a best interest of the child approach.
2. UPA UPA provides that a:
a. donor is not a parent of a child conceived by means of assisted reproduction
b. donor can neither sue to establish parental rights, nor be sued and required to support the resulting child
Inheritance Rights for Non-Marital Children

I.
APPROACHES
A. Rule: Although a lot of the discrimination against non-marital children is a thing of the past, it is still present in
inheritance issues.
1. Trend: More states are recognizing the rights of nonmarital children in inheritance. One reason is b/c of the
adoption of the original UPA which created presumptions to aid in identifying fathers.
Un-Married Fathers
I.
CUSTODY
A. Rule: All biological parents, marital and non-marital, have a right to a custody hearing. (Stanley v. Illinois)
B. Stanley v. Illinois SCOTUS held that a presumption (no fitness hearing) that non-marital fathers were unfit was
unconstitutional on equal protection grounds. Court held that all biological parents, including non-marital, are
constitutionally entitled to a hearing on their fitness before children are removed from their custody.
II. BIOLOGY-PLUS TEST

A. Rule: Biological non-marital fathers have constitutionally protected parental rights as long as they accept the
responsibilities of being a parent (biology plus test).
1. Rule: The scope of protection depends on the degree the father manifests an indicia of parenthood (custodial,
parental, financial relationships)
B. Indicia of Parenthood is evidenced by a (1) custodial, (2) parental, and/or (3) financial relationship the father has
to the child.
1. Quilloin v. Walcott (no rights) Court rejected a non-marital fathers attempt to deny adoption (which would
thereby terminate his parental rights) b/c the father failed to ever have or seek child custody.
2. Caban v. Mohammed (rights) Court upheld the non-marital fathers attempt to deny adoption b/c the father
had established a substantial relationship to the child and had admitted his paternity.
3. Lehr v. Robertson (no rights) Court held that a father who does not assume any responsibility for the child
does NOT have a right to notice of adoption proceedings.
C. Putative Father Registries eliminate the need for adoption notifications or consent if they failed to take the
initiative by registering (i.e. no plus in biology-plus test)
D. Uniform Adoption Act allows termination of the rights of the biological father who has not demonstrated an
interest in his child unless there is a compelling reason why he didnt. (i.e. deception by mother)
E. Mother cannot thwart the fathers attempts to establish an indicia of parenthood (Adoption of Kelsey S.
where ct held that biological connection was constitutionally protected if father grasps the opportunity to create
a relationship with his child)
III. CHILD OF MARRIAGE PRESUMPTION
A. Rule: Most states still use a rebuttable presumption (i.e. genetic evidence) that a child is of the marriage
(legitimate). Even with genetic evidence a court could rule that parental obligations still exist for the best interests
of the child.
1. Rationale declaring children illegitimate b/c it would deprive them of certain rights (i.e. inheritance) and it
could lead to them becoming wards of the state
B. Extant (existing) Marriage If the couple is not living together, the presumption may not apply.
C. Michael H. v. Gerald D. SC held that a presumption that a child was a child of marriage to be constitutional.
Court held that based on the traditional preference for legitimizing children, the other man (not husband) did not
have a fundamental right to maintain a relationship w/ his biological child.
D. Establishing Paternity Some states and the new UPA allow putative fathers to request blood tests in order to
establish paternity
10
Adoption
Lofton adoption is a is a statutory privilege, NOT a fundamental right
Parental Consent to Adoption

I.
REVOCATION OF CONSENT
A. Rule: Some states allow a biological parent to revoke consent under some circumstances.
B. Approaches
1. Time Period
a. Ex: Uniform Adoption Act allows parents to revoke consent w/in 8 days of childs birth
2. Fraud, Duress, Coercion
3. Best Interest of the Child
a. Some states determine which parent (adoptive or natural) would be in the best interests of the child
b. Scarpetta v. Spence-Chapin Court allowed a woman to revoke her consent b/c it was in the best
interests of the child to be with its natural mother. The woman gave up her infant to an adoption agency
out of shame and agency placed the child w/ a couple, but shortly thereafter the woman changed her
mind. Court ruled for the woman b/c she was fit, capable, educated, and financially secure.
II. UNMARRIED FATHERS CONSENT

A. See Non-Marital Parents ABOVE
Choosing an Adoptive Family

I.
MATCHING
A. Race/Ethnic Matching debatable whether allowable
1. Rule: Federal legislation provides that no state can deny someone the opportunity to become an adoptive
parent on the basis of race, color, or national origin of the individual or child (if the state wants to receive
federal funds).
a. OTOH: The legislation removes mandatory race-matching. Race/ethnicity can still be a FACTOR in
decisions! Furthermore, it would be difficult to enforce in practice.
b. Debate It could be argued that the best interests of the child would be served in matching race by
avoiding confusion and social stigma. It could also be argued, however, that it is better to provide homes
for as many children as possible.
2. Exception: Indian Child Welfare Act (ICWA) which provides that a Native American child remain w/in the
community whenever possible.
a. In Re Baby Boy C Court held that the Existing Indian Family Exception (exception to ICWA for
children of parents who were not part of tribal community) was inconsistent w/ the goals of the ICWA.
B. Religion Matching
1. Some states allow parents to have a preference for religion matching (NY)
II. SEXUAL ORIENTATION

A. Whether same-sex adoptions are allowed depends on the state. Trend seems to be moving toward allowance of
same sex adoptions (put more children in homes).
B. Lofton v. Sec. of Dept. Children and Family Services Court held that a FL statute which prohibits same-sex
couples from adopting was not a violation of the EPC. Court held that adoption is not a right, but a statutory
privilege and that the state can make restrictions on adopting in order to further the best interests of the child.
1. Court also holds that the best interests of the child would be to be in a traditional family anchored by both a
father and mother.
11
Jurisdiction
I.
APPROACHES
A. Courts use CHILD CUSTODY JURISDICTION statutes SEE CHILD CUSTODY
1. UCCJA and PKPA replaced by UCCJEA
2. BUT: UCCJEA, which has been adopted by the vast majority of states, explicitly states that it doesnt control
in adoptions. Instead it states that the UAA should control.
B. Uniform Adoption Act (UAA) UCCJEA says that it should control, but it has been adopted by only one state
1. A state has jurisdiction for adoption IF:
a. immediately before commencement, minor lived in this state w/ parent, guardian, or prospective parent
for at least 6 months
b. immediately before commencement, the prospective parent lived in this state for at least 6 months
c. agency that placed the minor is located in this state and it is in the childs best interest to assume
jurisdiction b/c:
i. minors parents or prospective parents have significant connection to state
ii. state has substantial evidence concerning the minors future care
d. minor and prospective parent are physically present in state and minor has been abandoned or
necessary in an emergency
e. no other state would have jurisdiction
Sealed Records
I.
GENERAL PROCEDURE: When there is an adoption, a new birth certificate is issued (w/ adoptive parents names)
and the original is sealed.
II. APPROACHES
A. Traditional Approach No Un-Sealing
1. Courts traditionally rejected adult adoptees challenges to open up sealed records. Courts have held that:
a. NO Due Process violation right to privacy does not include right to know birth parents
b. NO Equal Protection violation adoptees are not suspect class
B. Modern Approaches various approaches
1. Viewings Allowed 2 states outright allow adult adoptees to view birth records
2. Good Cause most states allow disclosure upon showing of Good Cause
a. Good cause = medical (genetic diseases)
3. Voluntary Registries states provide information when both parties (adoptee and birth family) register
4. Consent some states allow an intermediary to contact birth parents to get consent
5. Absence of Veto some states allow requests for information in absence of a veto
Open Adoption
I.
OPEN ADOPTION Open adoption is a form of adoption where the birth parent still maintains post-adoption contact
(visitation) w/ the child.
II. APPROACHES
A. Best Interests of the Child Standard enforceability of open adoption agreements (visitation agreements) is
determined by the best interests of the child
1. Groves v. Clark Court held that a post-adoption visitation agreement, which allowed the birth mother to see
her child after adoption, was enforceable as long as it was in the best interests of the child.
B. Voluntary Open Adoptions w/ permission of adoptive parents
1. parents can choose whether or not to abide by visitation agreements
2. focuses more on the rights of the parent to raise their own child
C. UAA permits mutually agreed-upon communication b/w birth and adoptive families w/o making the
agreements enforceable
12
Parental Theories
I.
BIOLOGICAL PARENTS
A. blood/genetic relations
II. PSYCHOLOGICAL PARENTS (PART OF FUNCTIONAL PARENTHOOD)

A. Psychological parenthood is based on:
1. day-to-day interaction,
2. companionship,
3. continuity of care,
4. shared experiences.
B. Can be fulfilled by a biological or adoptive parent as long as they are not absent adult
III. FUNCTIONAL PARENTHOOD
A. Rule: Functional parenthood emphasizes conduct and familial relationships in order to determine parenthood.
1. AKA: psychological parenthood, de facto parenthood, parenthood by estoppels, in loco parentis
B. Rule: Visitation of non-biological parent was in best interest of child if there is a (1) parent-like relationship
PLUS (2) a significant triggering event.
1. Factors on Parentlike Relationship:
a. Whether the biological parent consented to, and fostered, the petitioners formation and establishment of
a parent-like relationship w/ the child
b. Whether the petitioner resided together w/ the child in the same household;
c. Whether the petitioner assumed obligations of parenthood by taking significant responsibility for the
childs care, education and development.
d. Whether the petitioner served in the parental role for a sufficient period of time to enable establishment of
a bonded, dependent parental relationship.
2. Significant triggering event:
a. If the custodial parent interfered substantially with the parent-like relationship
b. If the parent seeking visitation sought court ordered visitation w/in a reasonable time after the custodial
parents interference.
Lesbian Couples: Parenthood

I.
TRADITIONALLY In lesbian mother disputes, there was traditionally a heavy advantage in favor of the biological
mother.
II. ONLY ONE MOTHER RULE

A. Traditionally, courts used the only one mother rule prevented lesbians from both being considered parents
1. Johnson v. Calvert in a dispute b/w a gestational surrogate mother and genetic mother the Court ruled for
the genetic parent noting that a child cannot have two mothers and that the law only recognizes one mother.
a. Overruled by KM v. EG
b. Distinguished in Elisa B. v. Superior Court (child cannot have two mothers and one father; child cannot
have 3 parents)
B. Modern trend has been to recognition of the second parent (non-biological parent)
1. Rationale: two parents can provide more support and the courts are increasingly less likely to let matters of
morality and other issues that may have previously deterred the best interests of the child.
2. Elisa B. v. Superior Court (child support) Court held that the non-biological parent was a presumed mother
and liable for child support b/c she (1) took the children into her home and held (2) them out as her own.
a. In discussing the one-mother rule from Johnson v. Calvert, the court said that a child cannot have 2
mothers and 1 father (i.e. 3 total parents)
3. KM v. EG both lesbian partners (egg donor and gestational mother) were parents of a child born via IVF
(See Assisted Reproduction)
13
Assisted Reproduction
I.
DONOR RIGHTS (FROM CHILD SUPPORT)

A. Rule: In an institutional, anonymous setting, courts will typically find that the sperm donor has no parental
rights or obligations. The UPA follows this approach.
1. OTOH: In non-instructional, non-anonymous courts may ignore non-support agreements for the best interests
of the child. (Ferguson v. McKiernan)
B. Ferguson v. McKiernan Mother sought child support from a non-institutional, non-anonymous sperm donor
even though there was an agreement (like in clinics) where the donor was freed of his parental rights and
liabilities. Ct reluctantly awarded child support using a best interest of the child approach.
C. UPA UPA provides that a:
1. donor is not a parent of a child conceived by means of assisted reproduction
2. donor can neither sue to establish parental rights, nor be sued and required to support the resulting child
II. SURROGACY
A. Surrogacy involves a contractual agreement where a woman agrees to carry a child and then surrender the child.
B. Payment for Surrogacy States differ on whether payment is allowed for surrogacy. Some states consider it
selling a baby, while others (including those adopting the new UPA) allow it.
III. DISPUTE IN ASSISTED REPRODUCTION: SURROGACY AGREEMENTS
A. Rule: In disputes regarding assisted reproduction (i.e. surrogacy disputes), courts will look to the (1) intent of the
parties in an agreement (Johnson v. Calvert) and/or (2) best interest of the child (KM v. EG)
B. Intent Test agreements/intentions that are voluntarily chosen and bargained-for should be enforced.
1. Johnson v. Calvert (uses intent test) gestational surrogate mother refused to give up the child she carried for
the genetic parents. The court ruled for the genetic parents holding that the intent was for the genetic parents
to raise the child. Court also noted that a child cannot have two mothers and that the law only recognizes one
mother.
2. New Uniform Parentage Act (uses intent approach)
a. treats donors (egg and sperm) w/ no legal status and makes the intended mother the legal mother.
b. recognizes the legal mother as the woman giving birth.
c. gestational written agreements are allowed, but the gestational mother must relinquish all rights/duties
and the pregnancy is done through artificial means (not intercourse).
d. allows for payment of consideration.
C. Best Interests of the Child
1. KM v. EG (reject intent test) Woman donated her ova to a lesbian partner (who intended to raise the child
alone) for use in IVF. Court held that both women were mothers under the UPA b/c both parents had
understood the child would be raised in their joint home. Court rejected the intent test used in Johnson v.
Calvert.
D. Two Parent Preference
1. Modern trend has been toward courts preferring to recognize two parents to a child in order to legitimize the
child and also to provide an extra source of support. Today, courts care less about who the 2nd parent is (i.e.
courts care less about absence of genetic and gender).
2. Gillett-Netting v. Barnhart (posthumous children) The court held that children that were conceived
posthumously were legitimate children of their natural parents and thus entitled to Social Security benefits.
IV. FROZEN EMBRYO DISPUTES
A. Contemporaneous Consent courts will require contemporaneous consent even if prior consent was given.
1. Rationale: people have freedom of choice in matters of family life and courts are reluctant to force people to
become parents against their will
2. AZ v. BZ Couple divorced, but prior to the divorce they had kept embryos frozen. The consent form signed
by husband stated that should the couple become separated, the embryos would be returned to the wife. Court
held that the form should not be enforced b/c the form would force the husband to become a parent against his
will. The court emphasized the freedom of personal choice in matters of marriage and family life.
B. Alternative Approach: Balancing courts will balance the parties interests including:
1. Forced parenthood forcing man to become parent against his will
2. Last procreative chance
14
CHILD ABUSE AND NEGLECT

Child Abuse
I.
PARENTAL PRIVILEGE TO DISCIPLINE

A. Parental Discipline Defense (to assault/battery)
1. Rule: A parent has a constitutional right to make decisions concerning a childs upbringing. This includes a
parental privilege to discipline. BUT discipline must be (1) reasonable and (2) actually used to discipline
2. Competing Policies: protection of children v. privacy of the home
B. Parental-Child Immunity Doctrine prevents un-emancipated child from suing a parent in a tort
1. Exam: The modern trend has been away from a strict adherence to the parental-child immunity doctrine.
Some states have abolished the doctrine, others follow a (1) reasonable parent standard (recovery if parent
fails to meet reasonable parent standard of care).
II. ABUSE ANALYSIS Is it abuse or discipline? Two standards:

A. Reasonable Force Standard (majority like the Restatement 2nd)
1. Requirements under the reasonable force standard, the force used must:
a. be an exercise of authority for the childs betterment
b. be reasonable and moderate in amount and severity
2. Defeating Parental Discipline Defense defense can be defeated by either showing:
a. no genuine disciplinary purpose OR
b. that force used was unreasonable
3. Factors in Reasonableness: age, sex, physical/mental condition of child, whether disproportionate to
offense, how likely it is to cause serious harm.
B. Malice Standard (minority)
1. Requirement Parent must act w/ malice. Malice can be shown by a:
a. desire to inflict pain rather than correct the child OR
b. conscious disregard that serious harm will result even if there was a genuine effort to correct
C. Newby v. US (reasonable force standard) Mother beat her daughter in a public park where daughter was hit w/
the back of the hand (rings on it) and kicked while she was down. Court rejected the malice standard and
held that the mother either did not have a disciplinary purpose or the force used was unreasonable.
Neglect
I.
NEGLECT neglect is a parents failure to provide proper parental care (i.e. shelter, medical care)
A. Elements to Consider
1. Financial Means the failure to provide care cannot be due to lack of financial means
a. If poverty alone causes a parent to be unfit, public benefits should be made available to the family
2. Proof neglect does not require proof that the child sustained an actual injury
3. Time neglect cannot be based on a mere snapshot of the situation
B. In Re AH (physical neglect) Court found a mother guilty of neglect even though there was no evidence that the
children were malnourished or unhealthy. Instead, allowing the children to live in deplorable and unsanitary living
conditions (roaches, human feces, etc) was found to be sufficient for neglect.
C. In Re Phillip B (medical neglect) Parents refused to consent to a surgery on their son who had Down Syndrome
even though it would have extended his life. Court could not find neglect b/c of evidence that the surgery could
be risky (due to the Down Syndrome).
II. TOPICS & ISSUES

A. Abandonment is an extreme form of neglect where the parent does not provide support or maintain contact for a
statutory period of time.
B. Failure to Thrive emotional neglect can lead to severe developmental delays (failure to thrive).
C. Religion as a Defense some states provide that faith healing (w/holding treatment b/c of religious beliefs) is
exempt from child abuse and neglect
15
Stages of State Intervention in Child Abuse

Reporting
I.
Rule: All states require certain individuals and professionals to report suspected neglect/abuse.
A. ForEx: In People v. Hodges the court held that a Pastor/School President violated the states child abuse
reporting act when he tried to take care of a child abuse case w/in the church rather than reporting it. The court
held that the states interests in protecting children justified the interference w/ religious practices.
B. Immunity for Reporters all states grant some form of immunity for those that report abuse/neglect that turns
out to be erroneous
II. LIABILITY FOR FAILURE TO REPORT

A. Criminal Liability - misdemeanor
B. Civil Sanctions - suspension or revocation of profession license
C. No private right of action
States Duties
I.
NO AFFIRMATIVE DUTY RULE no liability for gov.

A. Rule: According to DeShaney, the government has no affirmative duty to protect a child from private individuals.
There are, however, two exceptions: (1) state created dangers and (2) custodial relationships.
1. State Created Dangers state placed individual in a position of danger that they would not have face
2. Custodial Relationships state takes a person into custody and holds them (i.e. prisons, foster care)
B. DeShaney v. Winnebago County Court rejects a due process challenge for the states failure to intervene in
suspected abuse. Court held that the DPC was meant to protect individuals from the state, not from eachother.
Court also holds that only when a state has created the harm or there is a custodial relationship does the state
assume an affirmative duty to protect.
1. Ex: Argue that Foster Care is custodial care
II. ADOPTION ASSISTANCE AND CHILD WELFARE ACT requires (to receive funds) states to:
A. Formulate case plans that focus on family reunification
B. Conduct periodic case reviews
C. Make reasonable efforts to prevent the removal of child from the home and facilitate the reunification ASAP.
III. ADOPTION AND SAFE FAMILIES ACT
A. Eliminates reasonable efforts standard for severe cases
B. Aims to facilitate adoption by reducing foster care time
C. Requires states to seek termination of parental rights for children who have been in foster care for 15 of last 22
months.
Summary Seizure Initial Intervention

I.
INTERVENTION THRESHOLD ANALYSIS (FOR SUMMARY SEIZURE)

A. Rule: Parents have a fundamental right regarding matters of child upbringing and therefore there is a strong policy
in favor of keeping the child with their natural parents (i.e. minimum intervention policy).
1. Therefore, only when the child is injured or in immediate danger does the states interest in protecting
children become compelling enough to interfere with a parents rights.
B. Summary Seizure Court determines if an emergency exists or child is in danger and thus the child should be
summarily (w/o opportunity to be heard) removed from his home.
C. In Re Juvenile Appeal A case worker found a families situation to be marginal and after the death of an infant
for unexplained reasons, the state intervened and seized the mothers other children. The court found the state
statute constitutional b/c it included language of immediate danger, but found the children were not suffering
from danger and therefore should be allowed to return to their mother.
16
Foster Care Intermediate Intervention

I.
FEATURES OF FOSTER CARE

A. Foster care involves (1) non-institutional substitute family care for a (2) planned period of time. Foster parents are
licensed by the state, contracted, and compensated.
B. Placement children may be placed in foster care either by:
1. voluntary placement or
2. court order
II. FOSTER PARENTS RIGHTS/OBLIGATIONS

A. Care and custody of the children are transferred to the agency, while day-to-day supervision of the children are
given to the foster parents.
1. The natural parents do not surrender their parental rights.
B. Foster parents have limited rights that CANNOT infringe upon those of the natural parent (who hasnt
given up parental rights).
1. Smith v. OFFER Constitutional challenge that the procedures of removing foster children from foster
homes was an equal protection and due process violation. Court holds that whatever rights foster parents have
are adequately protected. Court also notes that to recognize the foster parents rights would infringe upon the
rights of the natural parents.
a. Concurrence goal of foster care is not to provide permanent substitute, but rather provide a temporary
home.
III. NATURAL PARENTS RIGHTS/OBLIGATIONS
A. Initially Natural parents DO NOT surrender their rights in foster care
B. Termination due to neglect Natural parents have obligation to visit children; failure to do so in 1 year period
can result in termination of parental rights due to neglect
Termination of Parental Rights Extreme Intervention

I.
PROCEDURE TO TERMINATE
A. Stage 1: Unfitness Stage (aka fact finding hearing) initial stage where court determines unfitness
1. Standard of Proof clear and convincing evidence (Santosky v. Kramer)
B. Stage 2: Best Interests Stage (aka dispositional hearing) court determines whether termination would be in
best interests of the child
1. Standard of Proof should be clear and convincing evidence, BUT some states have interpreted Santosky to
only apply to the unfitness stage so they may require another standard
II. ISSUES
A. Standard of Proof the minimum standard of proof to terminate a parents rights is clear and convincing
evidence
1. Santosky v. Kramer SCOTUS rejected the preponderance of evidence standard and held that due process
required at least clear and convincing evidence. The court reasoned that the interests of the parent in
keeping the family intact and the states interest in reducing costs/burdens required use of a stricter standard.
B. Parents Right to Counsel SCOTUS has held that procedural due process did NOT require the parents to be
appointed counsel
17
DIVORCE
Fault Based Divorce
Trend: The modern trend has moved away from the use of fault based grounds for divorce. Others, however, still maintain
fault based grounds and have simply added no-fault divorce to the fault based system.
Fault Based Grounds for Divorce

Some fault-based grounds still used in states include
I.
ADULTERY (29 states)

A. Rule: To prove adultery you must show by clear and convincing evidence that there was an (1) opportunity to
commit the offense AND (2) disposition to commit it
1. BUT: Due to the private nature of adultery, circumstantial evidence may be used
B. Adultery as a Crime in some states adultery is criminalized, but should it still be that way w/ the changes in
sexual mores and views on marital fault that have taken place?
C. Lickle v. Lickle Couple have not cohabited for years and husband has a female friend who suspiciously acts
like a lover (stays the night, but husband maintains no sex occurred). Court held that there was the (1) opportunity
to commit adultery and the (2) disposition to commit it could be inferred b/c the husbands conduct was not
consistent with innocence.
II. CRUELTY (AKA CRUEL AND INHUMAN TREATMENT)

A. To prove cruelty you must show: A (1) course of conduct of (2) cruel behavior that (3) creates an adverse health
effect
1. Course of Conduct cannot be a single occurrence UNLESS the single act was extremely brutal
a. usually must show that the conduct was habitual or occurred so often that its reoccurrence was
expected
2. Cruel behavior must be more than unkindness or rudeness. Must be so unreasonable and severe to be
considered inhumane.
3. Adverse health effect can be satisfied by apprehension of danger to health; includes both mental and
physical health
B. Capps v. Capps Husband brought suit for divorce on grounds of desertion and adultery. Wife brought a crosssuit on grounds of physical cruelty which consisted of single instance of physical abuse. Court held that a single
instance is insufficient b/c it was not so severe as to endanger her life. The court also denied the husbands claim
of desertion b/c the wife left the home w/o legal fault.
III. DESERTION (AKA ABANDONMENT) (27 states)
A. Rule: To prove desertion you must show that there was an (1) end to cohabitation (2) without cause or consent, an
(3) intent to desert (not resume cohabitation) that (4) continued through a statutory period
IV. CONSTRUCTIVE DESERTION
A. Rule: Constructive desertion involves conduct by one spouse that causes the other to leave the home
1. Acts as a defense to desertion OR as a ground for divorce
2. Lack of intimacy is not enough can be looked at as simply just unhappiness
B. Reid v. Reid Wife sought divorce on the grounds of constructive desertion b/c of husbands impotency, work
habits, and lack of intimacy. Court rejected wifes claim of b/c the cause of her feelings cannot be attributed to
the husband (she was simply unhappy). Therefore, when wife left she was the one deserting and thus she forfeited
her right to spousal support.
V. OTHER GROUNDS
A. Drunkenness or Drug Addiction
B. Willful Nonsupport
C. Criminal Conviction or Imprisonment
D. Impotence
E. Insanity
18
Fault Based Defenses

Mostly only applicable to fault based systems
I.
RECRIMINATION (double fault)

A. Recrimination bars divorce in cases where both parties are at fault (both have grounds for divorce).
1. Still applicable in some states although it has been seen as inconsistent in modern society (See Parker v.
Parker)
B. Rationale Recrimination centers on the belief that only innocent parties are entitled to divorce, but should that
be a reason to deny a divorce?
C. Parker v. Parker Wife sought divorce on grounds of cruelty, but husband claimed recrimination based on wifes
adultery. Court held that the misconduct by the wife occurred AFTER the separation and therefore the court
denied the husbands recrimination claim and allowed the divorce.
1. Furthermore, the court held that recrimination was impractical and inconsistent w/ modern society.
II. CONDONATION (forgiveness)

A. Condonation defense to divorce b/c a spouse who forgiven a marital wrongdoing cannot use it as a grounds for
divorce
1. Cohabitation for a short period condonation
B. Criticism Condonation puts innocent spouses in position where they must immediately choose to stay in a
relationship or end it. Is that fair?
C. Haymes v. Haymes Couple separated and then tried to reconcile (had sex on vacation), but could not. Husband
claims that their attempt at reconciliation is a defense to the wifes claim of abandonment. Court holds that a
short attempt at reconciliation (w/ sex) does not bar her divorce claim.
III. CONNIVANCE constitutes express or implied consent by the plaintiff to the misconduct alleged
A. Only requires corrupt consent by plaintiff
B. Cannot occur w/o commission of marital offense
IV. COLLUSION an agreement b/w husband and wife to commit (or give false evidence of a) marital offence that
would be a ground for divorce
A. Requires corrupt consent of both parties
B. Can take place w/o any marital offense (could give false evidence)
V. INSANITY can be ground for divorce AND defense
19
No-Fault Divorce
Currently all states offer some form of no-fault divorce. Two prominent approaches are the: (1) California Family Law Act
and (2) Uniform Marriage and Divorce Act
Approaches & Elements

I.
CALIFORNIA FAMILY LAW ACT

A. Dissolution of the marriage (divorce) may be based on:
1. irreconcilable differences which have caused the irremediable breakdown of the marriage OR
2. incurable insanity
B. Irreconcilable differences must be determined to be (1) substantial reasons for not continuing the marriage and
(2) make it appear that the marriage should be dissolved.
C. Note: Does not have a durational living separate and apart requirement
II. UNIFORM MARRIAGE AND DIVORCE ACT

A. Dissolution of the marriage requires the marriage to be (1) irretrievably broken and that there be (2) evidence
that:
1. parties have lived separate and apart for more than 180 days OR
2. there is serious marital discord
B. To be irretrievably broken, there must be a determination that there is no reasonable prospect of reconciliation in
the marriage.
III. New York Domestic Relations Law maintains some fault based grounds(p. 521)
A. Does NOT ALLOW UNILATERAL DIVORCE
1. Other states do
IV. ELEMENTS
A. Living Separate and Apart (not in CA)
1. Rule: Most divorce statutes (i.e. Uniform Marriage and Divorce Act) provide that living separate and apart
for a statutory period is a no-fault ground for divorce. (CA version does not)
a. BUT: Living apart may mean more than just physical separation. It could mean living apart in a marital
sense. (Bennington v. Bennington husband lived in van outside home, but still performed marital
duties so was not living apart)
2. Three Types of Living Separate and Apart Provisions
a. Parties must live apart under judicial decree or separation agreement for a prescribed period OR
b. Parties must live apart voluntarily with mutual consent OR
c. Parties must live apart for a statutory period (least restrictive)
B. Irreconcilable Differences / Irretrievably Broken (in both CA and UMDA)
1. Rule: Statutes usually require some sort of differences that make the marriage unable to work out.
2. CA requires irreconcilable differences (substantial reasons for not continuing the marriage) while the
UMDA requires the marriage to be irretrievably broken (no reasonable prospect of reconciliation)
Tort Claims in Divorce

I.
TORT CLAIMS IN DIVORCE ALLOWED

A. Some courts allow tort claims in the context of a divorce.
B. Feltmeier v. Feltmeier (IL) A divorced wife sues ex-husband for IIED based on physical abuse during the
marriage. Court held that the repetitive cycles of abuse can be outrageous and beyond the trials of everyday
married life. Court also held that the continuing tort rule applied and thus her claims were not barred by the
statute of limitations.
II. JOINDER
A. Some courts require other prohibit joinder
B. Claim Preclusion in some states if the subject of the tort action is the same as part of the divorce (i.e. abuse in
divorce and as a tort), then the tort action will be disallowed on grounds of res judicata
20
Jurisdiction
I.
JURISDICTION OVER PLAINTIFFS

A. Rule: To obtain a divorce, the plaintiff must (1) be domiciled (intent to stay) in the state (sometimes for a statutory
period) AND (2) give proper notice to meet due process standards.
1. Furthermore: Under the divisible divorce doctrine, personal jurisdiction over the defendant is not needed.
When the parties go to the incidents (property, support, etc.) of marriage personal jurisdiction will be needed.
(See Japanese divorce case)
B. In re Marriage of Kimura Japanese doctor moved to US to work while wife stayed in Japan. Doctor filed for
divorce in Iowa, but personal service wasnt available (was mailed). Court held that as long as 1 spouse in good
faith is domiciled w/in the state, that state can have jurisdiction even if the other spouse had no contact to the
state. Court uses the divisible divorce doctrine say that they would grant the divorce, but would not address the
issues of support and maintenance w/o the other spouses presence.
C. Same Sex Marriages problems arise b/c some states recognize same-sex marriages/partnerships while others do
not. Furthermore, the federal DOMA permits a state to refuse to extend recognition (to allow divorce would be
recognition) of same-sex marriage.
II. DURATIONAL RESIDENCY REQUIREMENTS

A. Some states impose a durational residency requirement before filing for divorce in the state.
1. Prevents forum shopping
B. Sosna v. Iowa court held that a states durational residency requirement (1 year) was constitutional b/c it was not
a denial of the right to divorce, but merely a delay of it.
Annulment v. Divorce
Annulment - declares that no marriage occurred b/c of some barrier
Divorce terminates a valid marriage, enabling parties to re-marry
Jurisdiction:
established by
Financial
Consequences
Relation Back
Doctrine
Annulment
- either parties domicile
- state where marriage was celebrated
- any state w/ personal juris. over spouses
- traditionally: no spousal/child support or division of
property do not follow b/c marriage is invalid
- today: treated like divorce
- relation back doctrine: benefits lost by virtue of the
marriage may be reinstated since the marriage is invalid
- applicable only to annulments
21
Divorce
only domicile
See DIVORCE
N/A
FINANCIAL CONSEQUENCES OF DIVORCE

Property Division
I.
APPROACHES TO PROPERTY DISTRIBUTION

A. Identification Is it property?
B. Characterization Is it marital or nonmarital?
C. Valuation How much is it worth?
D. Distribution - How much does each spouse get?
II. APPROACHES
A. Separate Property Regime (Title System) replaced by equitable distribution
1. Rule: Under the separate property (title) regime, marital assets were split by title. There was no accounting
for non-financial contributions.
a. But: This system has been replaced equitable distribution regime.
B. Equitable Distribution Regime (UMDA) majority
1. Rule: A majority of states (most modeled after original UMDA) currently use the equitable property regime
where courts consider various factors (i.e. non-marital contributions, employment, etc.) to get to a fair
distribution of marital property.
A. Exam: Any non-marital property (acquired prior to marriage & exceptions during) are not split, but
remain with the owner.
2. ORIGINAL UNIFORM MARRIAGE AND DIVORCE ACT (UMDA)
a. Provides that a court may, (1) without regard to marital misconduct (no-fault), (2) equitably apportion
b/w the parties the assets belonging to either or both (3) however and whenever acquired, and (4)
regardless of whether the title is in the name of the husband or wife or both.
b. Marital property includes all property acquired by during the marriage EXCEPT for
i. gifts/inheritance,
ii. property exchanged for separate property, and
iii. property that was part of an agreement not to be included.
c. Nonmarital property remains w/ the owner and is not split. Nonmarital property includes:
i. exceptions listed above AND
ii. property acquired prior to marriage
d. UMDA Factors to Consider
i. contributions (including non-financial)
ii. employment and future employment opportunities
iii. duration of marriage
iv. economic circumstances of each spouse at time of dissolution (including custody of any children)
3. Fault may or may not play a role, depending on the jurisdiction.
C. Community Property Regime (half and half) in a handful of states
1. Rule: The community property system is based on the principle that marriage is a partnership and therefore
each party gets a one-half interest in the marital property. Non-marital property (i.e. brought into marriage)
still remains separate.
III. ISSUES TO CONSIDER
A. Debt debt is also subject to distribution usually under the same principles as property distribution.
B. Fault has is less important today, but some states continue to use fault as a factor for consideration. (not UMDA)
1. Financial misconduct is one of the only grounds used b/c financial misconduct, as opposed to other forms of
fault (i.e. divorce), have a direct impact on the value of the property to be distributed.
C. Equity In some states, if division of marital property did not produce an equitable result, some courts may allow
distribution of separate (nonmarital) property.
D. Modifying Property distribution is not modifiable
E. Attorney Fees Spouse in superior financial position pays. If equal, pay own fees.
F. Family Home even if one spouse owned the home prior to marriage (separate property) courts may consider the
spouses contributions in maintaining and preserving to hold that the home is marital property.
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IV. IS IT MARITAL PROPERTY?

A. Rule: Courts will typically only recognize currently existing property, not future ones (i.e. enhanced earning
capacity)
B. Pension Benefits vested as well as unvested pensions are marital property (majority rule)
1. Bender v. Bender Couple had little marital assets and therefore wife asked for the husbands fireman
pension which would vest in 6 more years. Court held that the husbands expectation in the pension plan
was sufficient to constitute a presently existing property interest for equitable distribution purposes.
The unvested pension benefits were not too speculative to be considered property subject for division.
2. Valuation Systems
a. Present Value calculates PV and divides property; severs ties immediately
b. Present Division court determines the $ of shares of pension benefits to which spouse is entitled
c. Reserved Jurisdiction court reserved jurisdiction to distribute the pension until benefits have matured
3. Retirement Equity Act (REA) provides for enforcement of qualified domestic relations orders (QDROs)
which authorize retirement plan administrators to make payments directly into former spouses account for
spousal/child support.
C. Enhanced Earning Capacity (Degrees & Licenses)
1. Majority View enhanced earning capacity from a degree or license is not a marital asset.
a. OTOH: It can be used as a factor for determining the amount of spousal support (ALI approach) or in
how to divide the property (i.e. give spouse w/o enhanced capacity more property).
b. In Re Marriage of Roberts (degree) wife decided to allow husband to concentrate on law school, but
husband divorced wife after getting his degree. Court held that the value of a degree is too uncertain to
be considered a marital asset.
2. Minority View NY is the only state that treats degrees and licenses as marital property. The spouse can
get the present value of the enhanced earning capacity.
D. Goodwill (i.e. reputation of business)
1. Majority of courts will consider goodwill marital property if the goodwill is not based on the reputation of
the spouse in the business.
Spousal Support (aka maintenance or alimony)

I.
APPROACHES / RATIONALES
A. UMDA Approach self sufficiency / rehabilitation
1. Rule: The UMDA grants spousal support (maintenance) only if the spouse (1) lacks sufficient property to
provide for their reasonable needs and (2) is unable to support themselves.
a. Rationale: stresses self sufficiency of the parties
2. To determine support, courts DO NOT CONSIDER FAULT, but do consider:
a. financial resources
b. time necessary to acquire education or training to enable party to be self sufficient
c. standard of living during marriage
d. duration of marriage
e. age and physical/emotional condition of spouse
f. ability of spouse providing support to meet their own needs
3. Michael v. Michael A wife agreed to work while the husband pursued a writing career. Court awarded the
husband rehabilitative maintenance so that he could become self-supporting.
4. Rosenberg v. Rosenberg involved a traditional marriage where the wife took care of the home and
children and the husband almost exclusively focused on his business. Court holds that the (1) wives nonfinancial contributions entitle her to share of marital property and (2) indefinite alimony was appropriate b/c
she is unlikely to become self supporting.
B. ALI Approach compensation for loss in the standard of living
1. Rule: The ALI approach treats spousal support as means to compensate a spouse for loss in a standard of
living that they would face during divorce.
2. ALI calculates support by multiplying:
a. difference in spouses expected income at dissolution AND
b. a durational factor (# of years of marriage x .01)
c. Property division may be considered in calculation of how much support is necessary
23

II. ROLE OF FAULT DEPENDS ON STATE
A. Mani v. Mani Court refused to deny a husband spousal support b/c his adultery did not affect the economic
status of the couple and it was not egregious. Court held that only egregious fault (murder) or conduct which
affects the economic status of the parties can be used in calculating spousal support.
III. MODIFYING SPOUSAL SUPPORT Changing Circumstances
A. Rule: Courts can modify spousal support upon a showing of substantial change in circumstances. The change
must usually be (1) involuntary, (2) long term, (3) and on-going.
1. Furthermore: The UMDA not only calls for a substantial change in circumstance, but one that would make
the terms unconscionable.
B. Lucas v. Lucas Divorced wife began living w/ another man in a de facto marriage and ex-husband sought
termination of spousal support. Ct held that due to the instability of a de-facto marriage (as opposed to a
marriage), it would be unlikely that a de facto marriage could result in termination of spousal support.
C. Termination Spousal support is usually terminated at:
1. death or
2. remarriage by the party receiving maintenance
Child Support
For non-marital children see above
Approaches to Calculate Support

I.
Income Shares Model (Majority) like parents still together

A. Rule: The income shares model attempts to give the child the same support as if the marriage had not ended.
Model is based on theory that as income increase, the % of the income spent on child decreases.
B. Calculation:
1. Calculate the combined parental income
2. Determine the total obligation of the parents based on % of the combined income that would have gone to
child. Cts use a chart that lists the % based on different levels of income.
3. Divide the obligation based on the proportion of the parents income to the combined income (i.e. if wife
made 60% of household income, wife would pay 60% of total obligation).
II. Percentage of Income Model % of parents income

A. Rule: The percentage of income model allocates support based on the % of the parents income.
B. Calculation: take a % (usually provided by statute) off of the parents income regardless of level of income
III. Melson Formula childs support after parents living expenses
A. Rule: The Melson Formula divides support from the parents available income (i.e. take off parents subsistence
first). It is the most complex formula and therefore the least widely used.
IV. REBUTTABLE PRESUMPTION use of guidelines is a rebuttable presumption that the court can rebut. Is this a
situation where court should rebut the presumption by the guidelines and use its own discretion?
V. ISSUES
A. Family Home use of a home by the custodial parent is considered to be part of support obligation therefore
could be taken into account beyond the formulas.
B. Post-majority Support
1. Usually, after 18 a parents support obligations end, but some states do allow post-majority support. In these
states, the court typically focus on reasonable expenses.
2. Curtis v. Kline Court held that a statute which required divorced/unmarried parents to provide for postmajority education costs was unconstitutional b/c it required divorce parents to do what married parents did
not have to do.
C. There is currently no federal statute that would standardize child support calculations.
24
Modification of Child Support

I.
THREE PONY RULE theres a limit to how much is needed

A. Rule: After a certain point in income an increase in child support goes beyond the reasonable and realistic needs
of the child. (i.e. no kid need 3 ponies)
B. Downing v. Downing father had substantial increase in income and mother filed for increase in child support
obligations. Ct rejected the share the wealth approach and reasoned that after a certain point, extra support
would be unreasonable. Because there was no evidence of a change in the childs needs, the court denied an
increase in support.
II. APPROACHES TO REMARRIAGE / SUCCESSIVE FAMILIES

A. First Family First child support for the first family is of primary concern
1. Pohlmann v. Pohlmann Husband petitioned to reduce his child support obligations based on his decrease in
income, his own remarriage, and new children in his new marriage. Ct held that a parent who chooses to
remarry and become responsible for new children does so at his own risk.
B. Second Family First support is deducted from second/current family first before determining support for the
first family
C. Federal Legislation: the Family Support Act of 1988 leaves it up to the states to determine a parents obligations
when there are successive families.
III. OBLIGATIONS OF STEP-PARENTS
A. Some states require step-parents who accept and receive the child into their home have obligations for the support,
but the obligation does not continue after divorce.
Enforcement
Focus on the DEADBEAT DAD PROBLEM
I.
CRIMINAL VIOLATIONS some states provide statutes making it criminal for non-support
A. State v. Oakley Def. was charged w/ refusing to pay child support for his many kids. Instead of imprisonment,
the trial judge put him on probation and as a condition said that the Def. could not have kids until he demonstrates
he could support them. The court noted the growing concern for deadbeat dads and upheld the condition despite
there being a fundamental right to procreate.
B. Contempt failure to pay support could result in contempt of court (not following court orders) which could
result in imprisonment or monetary fines
1. Imprisonment Usually not used by courts b/c it would prevent parents from making support payments at all
II. LIMITATIONS ON ENFORCEMENT

A. Inability to Pay if they cant pay support, they cant pay fines and other things
B. Burden of Proof Deadbeat Parents Punishment Act: creates a presumption of willful non-payment
III. FEDERAL LEGISLATION (FAMILY SUPPORT ACT)
A. Due to concern for the growing deadbeat dad problem, different federal legislations (i.e. Family Support Act
Title IV-D) require states to use various procedures in enforcement of child support awards including:
1. income withholding
2. automatic tax refund interception
3. automatic liens on assets
4. withholding/suspension/restriction of licenses (i.e. drivers, professional, etc.)
5. notification of credit reporting agencies
25
Jurisdiction Issues: Multi-State Cases

I.
TRADITIONAL APPROACH TO JURISDICTION JUST USE UIFSA

A. Rule: Under the divisible divorce doctrine court needed personal jurisdiction over both spouses (since child
support is an incident of marriage diff than divorce).
B. Traditional Ways to Establish Jurisdiction
1. Single-Act Statutes i.e failure to pay support is considered to be a tortuous act in the state
2. Domicile / Residents did parent who failed to pay live there w/ child? Does the parent seeking support still
take residence there?
3. Child-State Jurisdiction state of childs domicile can be used to establish jurisdiction (not used in Kulko and
was not adopted in UIFSA)
4. Others: Agreement, Personal Service, Purposeful Avail
C. Kulko v. Superior Court (1978 - US) PRE-UIFSA case couple married in CA (during away leave from
military), but lived in NY. When they separated, wife moved to CA w/ kids. Wife sought divorce in CA, but
SCOTUS held that the husband had not purposefully availed himself to CA law. Letting kids live there with the
mother was not enough for the husband to purposefully avail himself to CA law.
II. UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) adopted by ALL STATES
A. The UIFSA provides a procedure for establishing and enforcing child/spousal support.
B. BASIS FOR JURISDICTION OVER ABSENT OBLIGORS
1. resided w/ child in state
2. child resides in state due to acts/directions of obligor
3. intercourse in the state and possible conception (how do you prove this?)
4. any other Constitutional basis (i.e. traditional ways)
C. MODIFICATION
1. Continuing Exclusive Jurisdiction the state that issues a support order retains continuing exclusive
jurisdiction which excludes other states from modifying the order.
a. LOST when the state no longer has an appropriate nexus with the parties or the child to justify exercise
of jurisdiction to modify. (See below)
i. In Letellier both parties and the child moved out of the original state.
2. State may modify an award (and the original state lose continuing exclusive jurisdiction) only if:
a. Child and both parents no longer reside in the issuing state, AND
b. The petitioner is a NON-resident of the state that seeks jurisdiction, AND
c. The state has personal jurisdiction over the respondent
3. Letellier v. Letellier (Modification) Court in D.C. ordered child support and then both parents moved to
different states. Wife filed a motion in her home state to modify award. Court held that under the UIFSA the
D.C. court no longer had continuing exclusive jurisdiction, but she could not file in her home state or else
other party will be at disadvantage.
III. OTHER ISSUES
A. Enforcement v. Modification
1. An issuing state retains jurisdiction to enforce an award even when all parties have left the state and no longer
lived there (i.e. couldnt modify).
B. Full Faith and Credit Statute requires states to follow orders from other states if that other state acted w/in its
state law
26
CHILD CUSTODY
Presumptions
I.
OLD PRESUMPTIONS
A. Tender Years Presumption (Maternal Preference) abolished/unconstitutional
1. Presumption that the child should remain with the mother unless there was a showing of her being unfit
(burden on father to prove). This standard was found to be an unconstitutional gender based classification.
(Devine v. Devine)
B. Primary Caretaker Presumption
1. Presumption that it was in the best interest of the child to allow the child to stay with the person who took care
of the child. Today, it is no longer used as a presumption, BUT is used as a factor in a best interest analysis
2. Factors that could be relevant: who takes care of meals, hygiene, medical, cleaning, education, discipline
II. ALI PRINCIPLES APPROACH PARENTING PLANS

A. Parenting Plans are part of the ALI Principles and are used in some states. They are written agreements b/w the
parents which lay out who will have the decision-making and caretaking authority and also how future disputes
will be resolved.
1. Courts will enforce agreements parenting plans as long as they were entered into voluntarily and would not
harm the child.
B. If the parents did not create a parenting plan (i.e. state doesnt require it), then the court will award custody
based on the allocation of responsibilities during the marriage.
1. The ALI also provides factors that can be used to rebut award:
a. childs preference
b. need to keep siblings together
c. harm to childs welfare (based on emotional attachment to a parent)
d. avoiding impractical and unstable arrangements
e. need to deal w/ parental relocation
Best Interest of the Child Standard

I.
BEST INTERESTS OF THE CHILD STANDARD depends on state statutes

A. Rule: States today use a best interest standard that looks at different factors including wishes of the parent/child,
relationships the child has, etc. (UMDA approach)
1. Criticisms: doesnt provide clear standards, judgments are merely predictions about what judges think the
future will be and what they think a childs interest are.
B. Uniform Marriage and Divorce Act (UMDA) factors to consider
1. parents wishes
2. childs wishes
3. relationship of the child w/ his parents, siblings, and any other person who may affect the childs best interest
4. childs adjustment to his home, school, and community
5. mental and physical health of all individuals involved
6. the court SHALL NOT consider conduct that does not affect a parents relationship to the child.
II. FACTORS IN BEST INTEREST ANALYSIS

A. Race as a (SOLE) Factor unconstitutional
1. ALI Principles prohibit use of race and ethnicity of any party (parent, child, etc.) to determine custody.
2. Supreme Court has held that race cannot be used as the basis for custody awards.
a. Palmore v. Sidoti (US) the mother married a black man after her divorce and the lower court held that
due to the possible discrimination that the child could face from living in an interracial family, the childs
best interests would be served by not giving the mother custody. The SC reversed and held that a custody
award based on race was unconstitutional on equal protection grounds.
3. Racial diversity as a positive courts have awarded custody based on the fact that a one parent is racist and
the other lives in a diverse environment and that it was in the childs best interest to promote
27

B. Sexual Orientation Likely to be a NEGATIVE factor: 3 Approach
1. EXAM: Talk about Lawrence; Talk about State DOMAs
2. 3 Approaches
a. Per Se Rule homosexuality is a irrebuttable presumption of unfitness
b. Rebuttable Presumption homosexual conduct is a rebuttable presumption of unfitness; can be rebutted
w/ proof of absence of harm
c. Nexus Approach (followed by MOST states) parents sexual orientation is a factor only when it has/will
ahve an adverse impact on the child
i. Preferred method by both UMDA and ALI Principles
3. Fulk v. Fulk mother had a homosexual affair and the lower court used that as basis for its custody decision.
Court held that marital fault, religion, personal values, or lifestyle choices cannot be the SOLE basis of a
custody decision.
C. Domestic Violence negative factor in almost all states
1. ARGUE: witnessing domestic violence is harmful to childe
2. Domestic violence is a factor in almost all states
a. Some courts only facto r in domestic violence if it has been directed at the child. (Statistics show that
there are higher rates for child abuse among spousal batterers)
3. Trend evidence of domestic violence creates a rebuttable presumption against abuser
4. Written Findings a few states require judges to make written findings about the existence of domestic
violence
5. Empirical Data Data shows that courts still grant children to abusers
D. Lifestyle Choices (i.e. career advancement)
1. Rowe v. Franklin mother took child to another state to pursue career/education. Trial court removed the
child from mothers custody b/c of her questionable decision-making (i.e. became pregnant w/ another) and
her personal agenda (i.e. law school). Court held that the trial court reached its decision in error by relying
on the wrong factors.
Joint-Custody
I.
JOINT CUSTODY gives BOTH parents legal custody and MAYBE both get physical custody of the child
A. Rationale: The rationale behind joint custody is that the childs best interest is maintained by frequent contact w/
both parents. Each parent has important things that it can bring to the parent-child relationship.
B. Legal Custody major decision-making responsibility for child (upbringing, education, health, etc.)
C. Physical Custody who stays w/ child and takes care of day-to-day decisions
II. APPROACHES
A. Option in best interest determination (most common)
B. Presumption or Preference of Joint Custody
III. FACTORS TO CONSIDER
A. Cooperation b/w Parents because of the shared decision making authority in joint custody, some states will
require evidence that the parents will be able to cooperate.
1. Bell v. Bell Court held that dispute between parents regarding day-care choice was not enough evidence that
the parents could not cooperate in joint custody. There was other evidence that the parents were able to
accommodate each others schedules and share parenting duties.
B. Domestic Violence states treat evidence of domestic violence as either a (1) bar or (2) rebuttable presumption in
child custody awards.
IV. ISSUES
A. Parental Divorce Education In some states, parents who are divorcing must undergo education programs to
teach them about the effects of divorce on children and how they can resolve disputes.
1. Shows the changing preference to get BOTH parents involved, shows the changing attitude about maternal
preference
B. Young Children some have argued that w/ younger children will joint custody serve to harm them? Confuse
them? Lack of stability?
28
Visitation
I.
VISITATION Under visitation one parent gets custody and the other gets visitation rights.
A. Judges Discretion Judges have a great deal of discretion in determining the scope of visitation. Judges can also
set conditions on the length, place, supervision required on visits.
II. DENIAL OF VISITATION RIGHTS courts are reluctant

A. Rationale: Courts feel it is in the childs best interest to have a relationship with the non-custodial parent and
parent-child relationships are a protected interest under the Constitution. Therefore, courts are usually hesitant to
deny visitation rights.
B. Abuse Showings of abuse or other characteristics evidencing unfit parental quality (i.e. drug use) could be used
to deny visitation rights, but even in such cases courts may simply grant supervised visitation.
C. Non-Payment of Support inability to pay child support is insufficient to deny visitation, BUT willful failure
when a parent has the financial means could lead to a denial of visitation rights.
1. Turner v. Turner father was granted visitation rights and ordered to pay child support. He was financially
unable to make the child support payments and eventually he went to jail and lost his visitation rights. Court
held that he should not have been denied visitation b/c denial should only occur when the parent is ABLE to
pay support, but does not.
Modification of Child Custody

I.
STANDARD modifying std > initial award std

A. Rule: Standard for modifying a custody award is usually higher than for initial awards.
1. Rationale: Cts worry about the stability of the parent-child relationship (that just changed from divorce)
B. Rule: Most standard require the plaintiff must show (1) material or substantial change AND (2) best interests of
child would be served by modification OR (3) endangerment to the child.
1. Liberal Approach (some states) modification is simply in best interest of child
2. UMDA requires (1) endangerment to the child OR 2 year waiting period after 1st award
C. Relocation is probably in sufficient to be considered a substantial change
D. Joint custody can be modified under a more relaxed standard (i.e. simple best interest of child) and thus if joint
arrangement doesnt work out, court can modify
II. RELOCATION when custodial parent attempts to move, non-custodial will seek to modify
A. Rationale: Childs best interest may be promoted by preventing the move which would cause disruption on top of
the separation (i.e. new family arrangement + new location).
1. OTOH, the parents interest in moving to a new area may be tied to the childs interests (i.e. job opportunity)
B. Standard
1. Custodial Parent Presumption some courts use a rebuttable presumption of the custodial parents right to
relocate
2. Childs Best Interest (most courts) most courts will use a best interest of the child standard
a. Good faith is a threshold requirement in attempts to modify due to relocation (i.e. if parent attempts to
move as revenge does not work).
b. Motive may also play a role if it is not in the childs best interest. (Ciesluk v. Ciesluk mothers desire
for a fresh start in a new marriage not a childs interest factor)
3. ALI Principles primary parent may relocate w/ child if (1) that parent was exercising majority of custodial
responsibility and (2) there is a legitimate reason for the move.
C. Factors (from Ciesluk): (1) history of relationships of parents w/ kid, (2) anticipated impact of move on kid, (3)
education opportunities, (4) extended familys location, and (5) advantages of staying w/ primary caregiver
D. Burden of Proof The burden of proof is usually on the custodial parent who wants to move to show that the
move will be in the childs best interest. Some states do, however, place the burden on the non-custodial parent.
E. Constitutional Right to Travel Does denial infringe parents right to travel?
1. 3 approaches to balancing right to travel w/ rights of minority parent.
a. Elevate the relocating parents right to travel over the other competing interests (WY)
b. Elevate the childs interest to a compelling state interest therefore eliminating the need to balance the
parents competing rights (MN)
c. Treat all competing interest equally, each parent shows how childs interest will be impacted (NM)
29
Role of Special Participants

I.
REPRESENTATION FOR THE CHILD: Guardians and Attorneys

A. Counsel act in different roles: advocate, fact-finder/investigator, mouthpiece (follow childs wishes)
1. Leary v. Leary Judge appointed counsel for children in a custody dispute, but did not specify role. One
parent disputed that judge made error in not instructing, but court determined that the attorney investigated the
childs preferences and gave her findings to the judge who made the decision. No reversible error was made.
B. Guardian ad Litem makes (1) determination and (2) recommendation regarding the childs best interest.
1. Responsibility is primarily to the court -- he has absolute immunity for judicial function (testifying and
making reports/recommendations)
C. ABA Standards of Practice
1. Abolish guardian ad litem
2. Provide two types of child lawyers: (1) Childs Attorney and (2) Best Interests Attorney.
a. Childs Attorney provides legal representation like a traditional lawyer
b. Best Interests Attorney investigates and advocates the childs best interest
3. Both types of lawyers:
a. Should make evidence based arguments
b. Should NOT play any other role in the case and should not testify, file a report, or make
recommendations
c. Should accept the appointment only if they understand what their function will be
II. ROLE OF EXPERTS

A. Experts can play various roles including: provide judgments, opinions, educate judges/court on issues, etc.
B. Criticisms of Expert Use: expert evaluations give a false sense of reliability and courts rely on their opinions to
too great a degree
C. Parental Alienation Syndrome parents conscious or subconscious attempt to alienate the child from the other
parent; admissible in court, but not widely accepted by psychologists
D. In Re Rebecca B. custodial mother found out that the father was sleeping in the same bed as the daughter on
overnight visits. Father cross petitions for sole custody. Experts (clinical director, psychologist) gave testimony
that childs best interest would be to be w/ father. Lower court says the testimony was flawed and gives custody to
mother. The appellate court held that the court erred in ignoring the expert testimony which was convincing.
Parent v. Non-Parent Disputes

I.
NATURAL PARENT PRESUMPTION

A. Natural Parent Presumption natural get custody minus unfitness and except in loco parentis exception
1. Rule: In parent v. non-parent custody disputes, there is a rebuttable presumption that the natural parent should
get custody. The presumption may be rebutted by evidence of UNFITNESS.
B. In Loco Parentis Exception
1. Rule: For those who are in loco parentis (those who hold themselves out as parent and take on parental
responsibilities) they do not need to show UNFITNESS, but can provide clear and convincing evidence of
BEST INTEREST.
2. Jones v. Boring Jones involved a lesbian couple where the court awarded custody to the non-biological
parent b/c the non-biological parent rebutted the presumption that the natural parent should get custody. The
non-biological proved with clear and convincing evidence that the childs best interest would be best served
with her getting custody. Note: In Jones v. Boring Jones, the court factored in the fact that the biological
mother attempted to sabotage the non-biological mothers relationship w/ the child
C. Policy: Certain parties have strong relationships w/ children which could benefit the children
1. OTOH: Parents right to privacy (i.e. choose how to raise a child)
D. Visitation Rights for 3rd Parties
1. Law favors parental decisions, if the 3rd parties request for visitation is opposed by the parent, the court will
usually weigh in favor of the parent due to the presumption that a fit parent acts in the best-interest of child.
2. State Statutes All states have visitation statutes that grant 3rd parties (i.e. grandparents) visitation right
3. Stepparents
a. Traditionally, stepparents were not entitled to any parental rights once a marriage terminated.
b. Trend, has been toward recognizing stepparents visitation rights given the best interest of the child to
maintain a relationship of someone who was a in loco parentis.
30

II. ALTERNATIVE THEORIES TO PARENTHOOD FOR USE IN CUSTODY DISPUTES
A. Functional Parent
1. Forms: psychological parenthood, de facto parent, parenthood by estoppel, in loco parentis
2. Psychological Parent
a. Psychological parenthood is based on: day to day interaction, companionship, and shared experiences
b. Does not need to be biological or legal parent, can be any caring adult
3. Factors: Parentlike Relationship + Significant Triggering Event
a. Test to Determine Parent-Like Relationship
i. Whether biological parent consented to and fostered the relationship
ii. Whether the petitioner resided w/ the child in the same house
iii. Whether the petitioner assumed the obligations of parenthood (i.e. care, education, finances, etc.)
iv. Whether the petitioner served in parental role for a significant period of time
b. Significant Triggering Event
i. If custodial parent interfered substantially w/ the parent-like relationship AND
ii. If the parent seeking visitation sought court-ordered visitation w/in a reasonable time after the
parents interference
B. ALI Principles: recognizes that biology is not determinative; allows same-sex couples into the mix
1. Parent by Estoppel person who acts as a parent so that the childs legal parent is estopped from denying the
others parental status
a. Created when someone:
i. is obligated to pay child support
ii. lived w/ child 2 years and reasonably believes to be the father,
iii. had an agreement w/ legal parent since the childs birth to be a co-parent
2. De Facto Parent person who is not a legal or parent by estoppel
a. De facto parent is a person who has:
i. regularly performed equal or greater share of caretaking as primary parent,
ii. lived w/ child for at least 2 yrs, and
iii. acted as parent for real reasons w/ agreement of legal parent or as a result of complete failure by legal
parent to fulfill caretaking functions
3. BOTH parent by estoppel and de facto parent are entitled to some custody and decision-making authority
III. LESBIAN MOTHER DISPUTES

A. In custody disputes b/w heterosexual couples, each parent starts off on equal footing and both try to show best
interests
B. For lesbian couples, the biological mother has a natural parent presumption in favor of her getting custody.
C. Used functional definitions to help
IV. FIT PARENT PRESUMPTION

A. Rule: A FIT parent is presumed to act in the best interests of the child. (Troxel)
B. Troxel v. Granville Statute allowed any person at any time to petition for visitation. After the death of one
parent, the other parent wanted to limit the grandparents visitation rights. The SC held that the court violated the
parents due process rights b/c the court did not give weight to her decision which, being a fit parent, was
presumed to be in the best interests of the child. NOTE: court said the statute was unconstitutional as APPLIED,
did not discuss whether statue was unconstitutional on its face.
31
Jurisdiction and Enforcement

I.
UCCJA and PKPA was replaced by the UCCJEA

A. Parental Kidnapping Prevention Act (PKPA) imposes a duty on the States to enforce a child custody
determination entered by a court of a sister state if the determination is consistent w/ the act.
1. Home State is given exclusive continuing jurisdiction
a. Home State is defined as the state which, immediately preceding the time involved, the child lived with
his parents, a parent, or person acting as a parent for at least 6 consecutive months or since birth (if child
is < 6 months old).
2. Jurisdiction of the court that makes a decision is exclusive and continuing as long as that state remains the
residence of the child or of any contestant and it still has jurisdiction under its own law.
3. PKPA and Uniform Child Custody Jurisdiction Act (UCCJA) give the same results
4. According to Baby Girl Clausen, the PKPA (or UCCJA) do not require a best interest inquiry
II. UNIFORM CHILD CUSTODY JURISDICTION ENFORCEMENT ACT (UCCJEA) - almost all states
A. JURISDICTION a state has jurisdiction only if:
1. it is the HOME STATE of the child on the date of the proceeding or was w/in 6 months before the
commencement; OR
2. there is no other state that exercises jurisdiction AND
a. the child and at least one parent have a significant connection with the state other than mere physical
presence AND
b. substantial evidence is available in this state concerning the childs care, protection, training, and personal
relationships;
3. all courts having declined to exercise jurisdiction b/c this court is more appropriate; OR
4. no court would have jurisdiction
B. EXCLUSIVE, CONTINUING JURISDICTION A state which has made a child-custody determination has
exclusive, continuing jurisdiction UNTIL:
1. a court of this state determines that neither the child or childs parents do not have significant connection w/
this state AND that substantial evidence is no longer available in this state concerning the childs care,
protection, training, and personal relationships; OR
2. a court of this state or another determines that the child or childs parents do not presently reside in this state
C. JURISDICTION TO MODIFY DETERMINATION a court may NOT modify award of another state
UNLESS (1) a court of this state has jurisdiction to make initial determination AND:
1. the other state no longer has exclusive, continuing jurisdiction OR
2. this state would be a more convenient forum OR
3. the parents/child do not reside in that state anymore
D. TEMPORARY EMERGENCY JURISDICTION
1. A court has temporary emergency jurisdiction if the child is present in this state and the child has been
abandoned or it is necessary in an emergency to protect the child, sibling, or parent is subjected to or
threatened w/ mistreatment or abuse
HAGUE CONVENTION
I.
II.
III.
IV.
V.
VI.
Convention of civil aspects of international child abduction

Enforced through international child abduction act
Applies to any child under 16 who has been wrongly removed from country of habitual residence
The authorities must return child to the country of habitual residence
Extradition remedy, not substantive
Childs removal is wrongful if in breach of one of the rights of custody - rights relating to the care and right to decide
place of residence
VII. If child removed in breach of other parent's right to custody the child must be returned unless there is a defense (ie. risk
of harm in home)
32
TABLE OF CONTENTS
What is a Family?
Theories of Family .............................................................................................................................................................. 1

Communal Family ............................................................................................................................................................... 1
Extended Family .................................................................................................................................................................. 1
Getting Married
Breach of Promise to Marry & Gifts ................................................................................................................................... 2

Pre-Marital Agreements (aka prenuptial, antenuptial) ......................................................................................................... 3
Restrictions on Entry into Marriage .................................................................................................................................... 3
Curative Marriages: Common Law Marriage & Putative Spouse Doctrine ........................................................................ 5
Being Married
Regulation of Roles and Responsibilities ............................................................................................................................ 6

Parents and Children
Non-Marital Parents and Children ....................................................................................................................................... 8

Adoption ............................................................................................................................................................................ 11
Parental Theories ............................................................................................................................................................... 13
Lesbian Couples: Parenthood ............................................................................................................................................ 13
Assisted Reproduction ....................................................................................................................................................... 14
Child Abuse and Neglect
15
Child Abuse ....................................................................................................................................................................... 15

Neglect............................................................................................................................................................................... 15
Stages of State Intervention in Child Abuse ...................................................................................................................... 16
Divorce
18
Fault Based Divorce .......................................................................................................................................................... 18

No-Fault Divorce ............................................................................................................................................................... 20
Jurisdiction ........................................................................................................................................................................ 21
Annulment v. Divorce ....................................................................................................................................................... 21
Financial Consequences of Divorce
22
Property Division............................................................................................................................................................... 22
Spousal Support (aka maintenance or alimony) ................................................................................................................ 23
Child Support..................................................................................................................................................................... 24
Child Custody
27
Presumptions ..................................................................................................................................................................... 27
Best Interest of the Child Standard .................................................................................................................................... 27
Joint-Custody..................................................................................................................................................................... 28
Visitation ........................................................................................................................................................................... 29
Modification of Child Custody .......................................................................................................................................... 29
Role of Special Participants ............................................................................................................................................... 30
Parent v. Non-Parent Disputes ........................................................................................................................................... 30
Jurisdiction and Enforcement ............................................................................................................................................ 32
33

Shapo FamilyLaw Spring 2010

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II. FUNCTIONAL DEFINITION: does the family function like a family?

FUNCTIONAL FAMILY REQUIREMENT

II. CONSTITUTIONAL VALIDITY OF STATUTES

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Breach of Promise to Marry & Gifts

BREACH OF PROMISE TO MARRY (HEART BALM)

II. GIFTS IN CONTEMPLATION OF MARRIAGE (engagement rings)

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Pre-Marital Agreements (aka prenuptial, antenuptial)

REQUIREMENTS FOR VALIDITY: Procedural and Substantive Fairness

Restrictions on Entry into Marriage

MARRIAGE IS A FUNDAMENTAL RIGHT

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II. SAME SEX MARRIAGE

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IV. BIGAMY VOID

Curative Marriages: Common Law Marriage & Putative Spouse Doctrine

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II. DOCTRINE OF NON-INTERVENTION

METHODS OF NAME CHANGE

II. WOMANS NAME

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BATTERED WOMAN SYNDROME (BWS)

II. DUTY OF LAW ENFORCEMENT

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PARENTS AND CHILDREN

Parents have a fundamental right to direct the upbringing of their children

Non-Marital Parents and Children

METHODS FOR ESTABLISHING PATERNITY

II. PROCEDURAL LIMITATIONS

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Support for Non-Marital Children

II. CONTRACEPTIVE FRAUD DEFENSE

Inheritance Rights for Non-Marital Children

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II. BIOLOGY-PLUS TEST

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Parental Consent to Adoption

II. UNMARRIED FATHERS CONSENT

Choosing an Adoptive Family

II. SEXUAL ORIENTATION

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II. PSYCHOLOGICAL PARENTS (PART OF FUNCTIONAL PARENTHOOD)

Lesbian Couples: Parenthood

II. ONLY ONE MOTHER RULE

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DONOR RIGHTS (FROM CHILD SUPPORT)

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CHILD ABUSE AND NEGLECT

PARENTAL PRIVILEGE TO DISCIPLINE

II. ABUSE ANALYSIS Is it abuse or discipline? Two standards:

II. TOPICS & ISSUES

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Stages of State Intervention in Child Abuse

II. LIABILITY FOR FAILURE TO REPORT

NO AFFIRMATIVE DUTY RULE no liability for gov.

Summary Seizure Initial Intervention

INTERVENTION THRESHOLD ANALYSIS (FOR SUMMARY SEIZURE)

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Foster Care Intermediate Intervention

FEATURES OF FOSTER CARE